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civil appellate jurisdiction civil appeal number 280 of 1959. appeal by special leave from the judgment and order dated the 22nd august 1956 of the former bombay high companyrt in income-tax reference number 17 of 1956. ganapathy iyer and d. gupta for the appellant. sanat p. mehta s. n. andley j. b. dadachanji rameshwar nath and p. l. vohra for the respondent. 1960. numberember 1. the judgment of the companyrt was delivered by hidayatullah j.-the companymissioner of incometax bombay circle ii has filed this appeal after obtaining special leave against the judgment of the high companyrt of bombay in an income-tax reference under s. 66 2 of the income-tax act. the national syndicate bombay referred to in this judgment as the respondent was a firm companysisting of three partners. this firm acquired on january 11 1945 a tailoring business as a going companycern from one chambal singh for rs. 89321/-. included in this amount was the companysideration paid for sewing machines rs. 72000 and a motor lorry rs. 8000 . the assessment companycerns the year of account of the respondent january 11 1945 to february 28 1946. the business of the respondent was to prepare garments for government departments and during the war years this appears to have been a profitable business. immediately after the respondent acquired this business the last war came to an end and the respondent found it difficult to continue the business. it therefore closed its business in august 1945. between august 16 1945 and february 14 1946 sewing machines were sold at a loss of rs. 41998. the motor lorry was also sold on february 141946 at a loss of rs. 3700. the respondent closed its account books on february 28 1946 showing the two losses and writing them off. for the assessment year 1946.47 the respondent claimed a deduction of rs. 45698 under s. 10 2 vii of the indian income-tax act. the income-tax officer disallowed this deduction holding that the loss was of a capital nature and that inasmuch as the business of the respondent was number carried on after august 1945 s. 10 2 vii was number applicable. this order of assessment was companyfirmed by the appellate assistant companymissioner who also held that the loss represented capital loss as the machines and the motor lorry were sold after the closure of the business. on appeal the appellate tribunal bombay also companyfirmed the order holding that the sales of machines and the motor lorry were made in the companyrse of the winding up of the assessees business after the business had been stopped and that therefore the deduction companyld number be claimed under s. 10 2xvii . the respondent asked the tribunal to refer the questions of law arising from its order but the request was refused. it then moved the high companyrt and obtained an order under s. 66 2 of the income-tax act and the following two questions were referred whether the tribunal was justified in law in holding that the petitioner had carried on its business only till twenty-eighth day of august one thousand nine hundred and forty-five ? whether on the facts and circumstances of the case the income-tax appellate tribunal was justified in law in number allowing the sum of rs. 41998 rupees forty-one thousand nine hundred and ninety eight on sale of machines and rs 3700 rupees three thousand and seven hundred on the sale of lorry as a deduction from the total income of the applicant? the high companyrt answered the first question in the affirmative holding that there was evidence on which the tribunal companyld reach the companyclusion that the business had in fact been companytinued only till august 28 1945. on the second question the high companyrt was of the opinion that the business having been carried on for at least a part of the account year s. 10 2 vii was applicable and that therefore this allowance had to be made under that clause. the high companyrt therefore answered the question in the negative. the high companyrt refused to grant a certificate to appeal to this companyrt but the companymissioner of income-tax applied for and obtained special leave and this appeal has been filed. before we deal with the question whether s. 10 2 vii of the indian income-tax act is applicable to the facts of this case we may mention that during the companyrse of the argument mr. s. p. mehta companynsel for the respondent sought to re- open the first question. according to him there was no evidence on which the tribunal or the high companyrt companyld reach the companyclusion that the business of the respondent had companye to a close in august 1945. we however did number permit him to raise this companytention partly because in our opinion such a companytention companyld number be allowed to be raised at this stage in an appeal by the department and partly because in our opinion there were adequate materials for the high court to have based its companyclusion. inasmuch as we were in agreement with the high companyrt on the question of the applicability of s. 10 2 vii we also felt that numberuseful purpose would be served in examining the matter to find out whether the business had in fact closed on august 28 1945 or had continued till the end of the account year. we are really companycerned in this appeal with the interpretation of s. 10 2 vii and its applicability to the facts of the case. it may be assumed for the purposes of this case that the business did in fact close down on august 281945 even though some in companyings and outgoings were taking place for the rest of the year and the books of account were number finally closed till february 28 1946. the commissioner companytends that an allowance companyld only be claimed if the sale of machines etc. took place when the business was being companytinued and number if the business had come to a close. the respondent on the other hand submits that s. 10 2 vii would be applicable in a case where the business companytinued for a part of the account year even though the sale of the machinery plant etc. took place after the closure of the business during the companyrse of the account year. section 10 2 vii reads as follows 10 2 . such profits or gains shall be companyputed after making the following allowances namely- 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. the companymissioner emphasises the word such in the clause and states that this takes us back to cl. iv where the words used for the purposes of the business occur. it is therefore companytended that if the business itself companyes to an end before the sale takes place the sale is number during the continuance of the business but is during the companyrse of the winding up of the business and the companydition precedent to the application of s. 10 is that the business must be is carried on by the person claiming the benefit of sub-s. 2 . reference in this companytext is made to the first sub-section of s. 10 where it is provided that the tax shall be payable by an assessee under the head pro. fits and gains of business in respect of the profits or gains of any business etc. carried on by him. the department relies upon a decision of this companyrt reported in the liquidators of pursa limited v. companymissioner of income-tax bihar 1 . the respondent also relies upon the same ruling and companytends that it supports the case set up by it. the respondent also relies on a recent decision of the madras high companyrt in commissioner of income-tax v. express newspapers limited 2 . these two cases were decided under the second proviso to s. 10 2 vii before its amendment in 1949. the second proviso reads provided further that where the amount for which any such building machinery or plant is sold whether during the continuance 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. the words underlined above were inserted by s. 11 of the taxation laws extension to merged states and amendment act 1949. in both the cases the business had admittedly closed down before the sales took place and it was held applying the proviso as it was before the amendment of 1949 that such receipts were number taxable. the amendment number renders these cases obsolete. reliance is however placed on certain observations in these oases and it is companytended that the same reasoning must be applied to a case of loss as to a case of profits. we shall therefore refer briefly to them. in the liquidators of pursa limited v. companymissioner of income-tax bihar 1 the year of assessment was 1945-46 which companyresponded to the accounting year october 1 1943 to september 30 1944. pursa limited were manufacturers of sugar and sold the business on august 9 1943 including buildings machinery and plant but excluding manufactured sugar worth about rs. 600000. this sugar was sold till june 1944 but throughout the accounting period the machinery plant or buildings were number used. pursa limited went into voluntary liquidation on june 20 1945. in the sale of the buildings machinery and plant there was an excess such as is described in the second proviso and that amount of excess was sought to be taxed. this was negatived by this companyrt on two grounds. they were a if the machinery and plant have number at all been used at any time during the accounting year numberallowance can be claimed under clause vii in respect of them and the second proviso also does number companye into operation and b that the intention of the companypany was to discontinue its business and the sale of the machinery and plant was a step in the process of winding up of its business. the sale of the machinery and plant was number an operation in furtherance of the business carried on by the companypany but was a realisation of its assets in the process of gradual winding up of its business which eventually culminated in the voluntary liquidation of the companypany. companynsel differ as to the ratio of the case. the commissioner companytends that the ratio is that numbersale whether at a loss or at a profit can be said to fall within respectively cl. vii or the second proviso if it takes place after the closure of business and during the process of winding up while the respondent companytends that the real ratio was that during the account year the machinery and plant were number at all used. numberdoubt this court did give two reasons for its decision but the primary consideration was the second ratio quoted above. this is clear from the following passage towards the end of the judgment even if the sale of the stock of sugar be regarded as carrying on of business by the companypany and number a realisation of its assets with a view to winding up the machinery or plant number being used during the accounting period at all and in any event number having had any companynection with the carrying on of that limited business during the accounting year section 10 2 vii can have numberapplication to the sale of any machinery or plant. learned companynsel for the respondent relies upon the passage last quoted and urges that where the buildings machinery or plant have been used for a part of the accounting period the ruling cannumber apply and draws attention to the words at all used twice in the judgment. he argues that if the machinery or plant had been used for a part of the accounting year the result would have been different. it is number possible to say how the case would have been decided in the changed circumstances but it is obvious that the case is distinguishable on more than one ground. the proviso is in a language different from cl. vii as a fiction is introduced and such profits are taxed to take back what had been given away for depreciation which did number really take place. but more of it later. express newspapers limited case 1 is also distinguishable. in that case the free press of india madras limited resolved on august 31 1946 to transfer the right of printing and publishing its daily newspapers to express newspapers limited they rented out their machinery etc. to the new companypany which took possession on september 1 1946. the year of account ended on december 31 1946. the free press went into voluntary liquidation on october 31 1946 and on numberember 1 1946 its building machinery and plant were sold to the new companypany at a price which exceeded the written down value by rs. 608666 made up of rs. 214090 being the excess of the original companyt price over the written down value and rs. 394576 being the excess over the original companyt price. one question among others was whether the second proviso to s. 10 2 vii . applied. the madras high companyrt ob. served 1 1960 40 i.t.r. 38. in the present case the sale of the machinery took place during the year of account and it was used by free press companypany for at least a part of the year. this would be sufficient to attract liability the learned companynsel for the assessee is on a firmer ground when he companytended that the sale being made in the process of winding up of the company section 10 2 vii will number apply. the second proviso to section 10 2 vii would be invoked only where the sale was one made in the companyrse of business carried on by the predecessor. where the sale is a closing down sale that profit companyld number be brought to tax. in liquidators of pursa limited v. companymissioner of income-tax 1 the supreme court held that where in a case the sale of machinery and plant was a step in the process of winding up of its business the intention of the companypany having been to discontinue the business such sale was number an operation in furtherance of the business carried on by the companypany but was only a realisation of its assets in the process of gradual winding up of its business which eventually terminated in the voluntary liquidation of the companypany and provision of section 10 2 vii would number apply. in the present case the formation of the new companypany was to take over the business of the old companypany. the lease of the machinery the transfer of the right to carry on the business of publishing newspapers and the ultimate sale of the machinery were part of the same scheme for winding up the free press companypany. the sale of machinery was undoubtedly a closing down sale and the profit earned therein companyld number companye in for assessment under section 10 2 vii . these two cases deal with the second proviso to s. 10 2xvii . clause vii deals with loss and the second proviso with profits but the proviso is number an exact counterpart of the clause. the proviso enacts a fiction which the main clause does number enact. the reason for the introduction of the fiction in the proviso appears to be this loss in business may take place in various ways. if the business requires more to run it than it produces there is loss. loss in 1 1954 s.c.r. 767. business may also take place if the equipment with which business is done is lost destroyed or depreciates or suffers in value. the law takes numbere of the loss and provided it has been companyputed and brought into the books of the business and written off it can be claimed as a deduction. profit in business on the other hand primarily means profit earned in the business. but if an allowance had been claimed as depreciation and had been allowed and if the sale of the building machinery or plant on which depreciation allowance was claimed in the past shows that there was in fact numberdepreciation but an accretion in value the law deems that a profit has been made. the fiction thus companyverts that which may number be strictly profit of the business in a narrow sense into a profit for purposes of assessment. formerly it was a matter of doubt whether even this accretion companyld be deemed a profit when the business had closed down but number the legislature has amended the law by saying that this fictional profit must be brought to tax irrespective of the fact that the sale took place during the companytinuance of the business or after the cessation thereof but it is to be numbericed that numbersuch amendment was made in cl. vii to exclude loss over buildings machinery or plant after the clospre of the business. it is thus clear that the principles which govern the proviso cannumber be used to govern the main clause because profit or loss arise in different ways in business. the two rulings do number therefore apply to the facts here. we must thus restrict ourselves to the scheme of the indian income-tax act and the clause in question. the scheme of the income-tax act as was pointed out by lord porter in indian iron steel company limited v. companymissioner of income-tax bengal 1 is that income. tax is assessed and paid in the next succeeding year upon the results of the year before. it is the income of the previous year which is brought to tax in the succeeding year which is called the year of assessment. for the purpose of assessment the indian income tax act divides the sources of income profits 1 1943 11 i.t.r. 328 336. and gains into six heads in s. 6. the fourth head is profits and gains of business profession or vocation . sections 7 8 9 10 12 12a and 12b lay down the rules of computation under the different heads. profits and gains of business are dealt with in s. 10. the first subjection of that section provides the tax shall be payable by an assessee under the head i profits and gains of business in respect of the profit or gains of any business carried on by him. in companymissioner of income-tax v. shaw wallace company limited 1 it was pointed out by the judicial companymittee that the words carried on by him were an essential companystituent of that which is to produce the taxable income it is to be the profit earned by a process of production . it was further pointed out that business had been defined in the income-tax act to include any trade companymerce or manufacture or any adventure or companycern in the nature of trade companymerce or manufacture and that it involved a fundamental idea of the companytinuous exercise of an activity. it was however pointed out that the source was number necessarily one which was expected to be companytinuously productive but one whose object was the production of a definite return excluding anything in the nature of a mere windfall and that capital in most cases was hardly more than an element in the process of production. we agree with this analysis of the income-tax act and indeed these observations were also applied in the pursa limited case 2 to which we have already referred. it thus follows that capital may in the process of production depreciate get used up or lost. the income-tax act while taxing income profits or gains takes numbere of and makes allowance for such eventualities. if the profits or gains of a business for a particular year are to be taxed they must be companyputed for the whole year taking into account losses incurred during the same year. number the first companydition precedent appears to be that the business must have been 1 1932 l.r. 59 i.a. 206. 2 1954 s.c.r. 767. carried on by the assessee . this is to be found in the first sub-section of s. 10. the second companydition is that the building machinery or plant must have been used for the purposes of the business . this is to be found in of. of the second sub-section of s. 10. the third condition is that the sale etc. should have taken place during the year of account. this follows from the nature of the tax which is assessed and levied on the profits of the working of the previous year. the fourth companydition is that the loss should have been brought into the books of the assessee and written off. this is provided by the first proviso. there is numberother companydition to be found expressly in the section or in the act. it is numberhere stated that the business of the assessee should have been carried on for the whole year or that the machinery or plant should have been used for the whole of the accounting period.
SAGHIR AHMAD, J Hallucination, as a disease, is an apparent perception without any companyresponding external object. It is defined as any of numerous sensations, auditory, visual or tactile, experienced without external stimulus and caused by mental derangement or intoxication. It may occur with relation to any of the special senses, namely, hearing sounds or seeing things that do number exist. The prosecution in this case presents before us a story of Hallucination where a dead person is seen by the eyewitnesses to have companye armed with a gun, fired the gun at one of the witnesses who was injured and then was seen running away with other people including the appellant, towards another village never to be found again. The appellant was seen in the companypany of that dead person, shoulder to shoulder, armed with a gun and triggering it to keep pace with the activities of his companypanion, the dead. Prosecution unfolds its story by ushering us into an era when the Punjab was writhing in pain of militancy. Village Pipaltha, P.S. Garhi Distt. Jind, where Om Prakash deceased lived with his three sons, Dharam pal P.W 10 , Surinder P.W. 11 and Suresh P.W.12 fourth is number material was targetted by terrorists resulting in the death of Om Prakash and gunshot injuries to his son, Suresh. The appellant was prosecuted and tried by the Additional judge designated Court, Rohtak at Jind and companyvicted for offences u s 302/34 IPC read with Section 3 2 of the Terrorist disruptive Activities Prevention Act, 1987 for Short, the Act with a fine of Rs.200/- or else further rigorous imprisonment for one year under Section 452/34 IPC Sentence 3 years R.I. with a fine of Rs.100/- or else 3 months further R.I. under Section 307/34 IPC Sentence 7 years R.I. and under Section 394/34 IPC Sentence 10 years R.I. with a fine of Rs. 200/- or else I. for one year . House of Om Prakash which also companytained a shop at which Dharam Pal and Surinder used to sit, was located almost in the centre of the Village in a busy locality. a short distance away was another shop at which Suresh and his brother, the fourth son of Om prakash, used to sit. On 18.11.1991 at about 6.30 P.M. while Om Prakash was at the shop of his two sons, Dharam Pal and Surinder, two young Sikhs armed with small guns, came and asked Om prakash to hand over his revolver but Om Prakash who did number possess a revolver offered his 12 bore gun. The two Sikh youths, at the point of gun, brought all the three, namely, Om Prakash, Dharam Pal and surinder on the street where a group of three other young Sikhs were standing on the right side of the Shop while another group of three or four Sikhs youths, which also included the appellant, was standing in front of their shop. All of them were holding small guns and were between the age group of 25-30 years. One of the two Sikh youths, brought out a Hero-Honda Motor Cycle from the shop and wanted Om Prakash to sit on the Motor Cycle but Om prakash refused and while trying to run inside the ship, he was fired upon. He attempted to enter the room on the rear of the shop but all the Sikh youths present there started firing indiscriminately as a result of which he received injuries on various parts of his body. While Dharam pal and Surinder managed to escape, Suresh, who was at the other shop, came running to help them but was injured in the firing. All the Sikh youths then went away towards village Rewar. Om prakash was taken to a hospital at Narwana where he was declared dead while Suresh, who was medically examined there, was admitted for treatment. After due investigation, a charge-sheet was submitted only against the appellant who was tried and ultimately companyvicted as aforesaid. The appellant, from the very beginning, had denied the prosecution story and had companytended that he had been falsely implicated on account of enmity as civil and criminal cases were pending even on the date of incident between him and other members of the family of Om prakash. He, in that companynection, examined one witness in defence and also brought on record certain documents including a companyy of the order passed by the Punjab Haryana High Court in Criminal Miscellaneous case No. 6397 M of 1992. Let us find out the truth. The statement of three eye witnesses one of whom was an injured witness as also the appellants companyfessional statement recorded by the police under Section 15 of the Act, companystitute the basis of his companyviction for the offences in question. So far as eye witnesses are companycerned, they are three, namely, Dharam Pal P.W.10 , Surinder P.W.11 and Suresh W.12 . They are sons of om prakash deceased . Suresh W. 12 is an injured witness. These witnesses speak of the appellants presence at the spot with a gun with one Kala Singh who was also armed with a gun. It is companytended by the learned companynsel for the appellant that although the incident had taken place at 6.30 M on 18.11.1991 in the market area, the prosecution did number produce any independent eye witness and attempted to prove its case only through interested eye witnesses who were the sons of the deceased. It is companytended that in such a situation where the independent witnesses, in spite of being available were number produced, the companyviction cannot be sustained merely on the testimony of highly interested witnesses particularly in view of the fact that Om prakash deceased and his family members including his three sons who have been produced as eye witnesses were on inimical terms with the appellant and had even tried earlier to implicate him and his father in a false criminal case involving, incidentally, the same Kala Singh in whose companypany the appellant, in the instant case, has been placed. The companytention that the prosecution had relied only upon witnesses who are family members of the deceased and are thus highly interested cannot, by itself, be aground to reject their statements. Witnesses who are related to the deceased are as companypetent to depose the facts as any other witness. Mere relationship does number disqualify a witness. If the incident had taken place at a time or under such circumstances that there was numberpossibility of any other person being present at the spot , except those who were related to the deceased, those persons, namely, persons related to the deceased, will be companypetent to depose the facts seen by them. Even if the possibility of independent witnesses being present is number ruled out, the witnesses related to the deceased would still be companypetent witnesses. All that has to be shown is that the witnesses were stating the truth. The Court itself, in order to find out whether what they had stated was true or number would scrutinise their evidence with care and caution. In Kartik Malhar vs. State of Bihar 1996 91 SCC 614 1996 Cr.L.J. 889 decided by a Bench of this Court of which one of us Saghir Ahmad, J. was a member, it was held- A close relative who is a natural witness cannot be regarded as an interested witness. The term Interested postulates that the witness must have some direct interest in having the accused somehow or the other companyvicted for some animus or for some other reason. This companytention raised on behalf of the appellant will be companysidered a little later to find out whether the witnesses had the motive to secure the companyviction of the appellant and were, therefore, interested witnesses. Dharam Pal P.W.10 has stated that he had taken his father Om Prakash and brother Suresh to the hospital at Narwana where they reached at about 10.00 p.m The police outpost at Pipaltha had already radioed the message to police Station, Garhi which was received by A.S.I Dharam Singh P.W. 16 at 6.50 P.M. It is number disputed that police Station, Garhi falls on way to Narwana but there too the matter was number reported. That by itself would number be relevant as Dharam Pal who was taking his father and brother to the hospital might have been in a hurry to save their lives. What is, however, relevant is that Surinder P.W.11 , the other son of Om prakash remained in the village and did number companypany his father or the injured brother to the hospital. He had full opportunity of going to the police station to lodge the report but there is numberexplanation forthcoming as to why this was number done. Dharam Pal, in his statement on oath, has stated that there was a police outpost in his village but there too, numberreport was lodged. The police of P.S. Garhi which already knew the incident, having been informed by the police Outpost, Pipaltha, reached at the hospital at 9.30 p.m. Om Prakash was already declared dead by the doctors at the hospital. The statement of Dharam Pal was recorded by the police at the hospital at 10.50 P.M. on 18.11.91 after obtaining the opinion of the doctors that Suresh P.W. 12 who was injured in the incident in question, was number in a fit companydition to make the statement. On the basis of the statement of Dharam pal, a formal F.I.R. No. 237 was recorded at police Station, Garhi at 12.15 A.M. on 19.11.91 in which the appellant was named as an accused. The special Report which was sent to the magistrate at Narwana was received by him at 4.00 A.M. It would be relevant here to reproduce the following passage from the statement of Dharam Pal P.W.10 - My brother Surender remained in the Village I cannot tell whether Surender my brother made any report to the police in Vill Pipaltha when we had taken our father to Hospital. We did number lodge any report with the police station Garhi as we were first of all to save our father. It is companyrect that if we companye from village Pipaltha to Narwana, P.S. Garhi is located on the road on the way to Narwana. we reached the Hospital at about 8.10 M. The police came at about 9.30 M. in the Hospital. On our arrival in the Hospital, the doctor had declared our father as dead. My statement was recorded at about 10.15 PM by the police. My statement was recorded only at that time and was number recorded subsequently. I did number make any supplementary to the police in this case after my statement was recorded by the police in Civil Hospital. i stated to the police in that very Hospital after about 2/3 hours of my recording the statement, name of Kala Singh but numberstatement to that effect was recorded by police at that time. I had fully recognised Kala Singh but numberstatement to that effect was recorded by police at that time. I had fully recognised Kala Singh and he was standing with Sahab Singh near the wall of Bharthu. Kala Singh had also fired shots as all the eight were firing while running after us. I had number sated name of Kala Singh in my statement Ex. PD to the police. I had stated the name of Kala Singh afterwards. The chronology of events indicates that the F.I.R. was registered after the statement of Dharam Pal was recorded by the police at the hospital and further that although Surinder remained in the Village, he did number go to the police station to lodge the report. This chronology further indicates that the F.I.R., in this case, was lodged after unreasonable delay and after due deliberation. Normally, this delay would have been ignored but if it is companysidered in the light of the statement of witnesses, which we shall presently scrutinise, it would companye out that this delay was deliberate and meaningful. Admittedly, there is positive enmity between the appellant and his family members on the one hand and Om Prakash and his family members on the other. The following extract from the statement of Dharam Pal would bring out the factum of enmity existing between the parties- Lakhi and Giani Harijans were employed by us to work in the fields alongwith other workers on daily wages whenever we felt any necessity. They were number our regular employees. I do number know whether Lakhi and Giani got registered a case against Sucha Singh and two brothers of Sahab Singh accused at our instance after this occurrence. It is companyrect that a criminal case under Section 325 IPC etc. was pending in the Court of JMIC, Narwana against Sahab Singh etc. accused and against us, prior to this occurrence. A civil litigation had also proceeded between us and Sahab Singh accused prior to this occurrence. We and sahab Singh accused were on inimical terms prior to this occurrence due to civil and criminal litigation between us. To the same effect is the statement of Surinder W.11 who stated as under- It is companyrect that civil and criminal litigation between us and Sahab Singh accused is still pending in the companyrts and it was also pending at the time of alleged occurrence. both of us were challenged in case under sec. 325 IPC and cross-cases against Sahab Singh and also against us was pending at the time of occurrence. I had also told the police about the enmity. Suresh Kumar P.W.12 , who is an injured witness, also admitted that he and Sahib Singh were on inimical terms. 24. it is in this background that the statement of these three eye witnesses, who are real brothers, are to be analysed to find out whether the occurrence did take place in the manner stated by them and whether in that incident Sahib Singh and Kala Singh participated and fired at Suresh Kumar P.W.12 or at Om Prakash deceased . Dharam pal, in his statement, narrated the incident in the following words- One Sikh youth remained standing inside the shop while the other Sikh youth came outside and took out personal search. The Sikh youth who took personal search brought our motor-cycle from the shop outside. The motor cycle was of Hero-Honda make bearing registration No. HR-32/0218. The Sikh youth who took out the motorcycle from the shop made to sit forcibly my father on them othermade to sit forcibly my father started walking inside the shop. The Sikh youth standing inside the shop fired a shot from his fire arm which hit my father on the left side of the chest. The Sikh youths who were standing outside the shop started firing indiscriminately on my father which hit him on the chest, back and on the hand etc. My father fell down inside the room next to the shop and we ran away but at that time while we were running, sahab Singh accused tried to catch hold of us but we succeeded in getting rid off Sahab Singh etc. all the 8 Sikh youths chased us and were firing. On hearing the numberse of shots, my brother Suresh and sadhu came towards the side of our shop and while he was crossing the street, he Suresh received gun shot injury. Surinder P.W. 11 narrated the incident in the following words- We saw that three Sikh youths were standing in front of shop of Bharthu and three Sikh youths were standing near the wall of Fatia Kumhar. They were also armed with small size guns. Sahab Singh accused present in the companyrt today was one of the three Sikh youths who were standing in front of the shop of Bharthu. Kala Singh was also standing at that time with Sahab Singh, Out of the two Sikh youths, who took out us, one of them took out personal search and one of them remained standing before us aiming the gun towards us. The Sikh youth companyducted our search took out our Hero Honda Motor-cycle from the shop asked my father to sit on the carrier of that motor-cycle and he also forcibly tried to make my father sit on the carrier of the motor cycle but my father gave him a push and moved towards the shop. One of them fired at my father in the left side of the chest. The Sikh youth who was standing inside the shop came out and all the Sikh youths then fired at my father who was in the shop at that time . Rather my father had entered the next room in which the shop was opening from behind at that time. Sahab Singh and Kala Singh had also fired my father at that time and were two of the eight. My father received injuries on the back, near the right hip-region. He also received injuries on back, hands etc. My father fell down in the room as a result of injuries sustained. we i.e. I and my brother Dharam Pal, tried to run away but Sahab Singh accused tried to catch hold of us but we escaped and ran towards the street and companycealed ourselves. Suresh Kumar P.W.12 narrated the incident in the following words- I was resident at pipaltha along with my brothers and father about 1 1/2 years ago. we were having two shops at village Pipaltha. At one of the shops, my father, Om Prakash, brother Dharam Pal and Surender used to sit while on the other shop my brother Sadhu Ram and I used to sit. On 18.11.1991, I was present at my shop. Sadhu Ram was also present at that time. We heard the numberse of gun shots. Sadhu Ram, my brother, went via street which runs by the side of the houses while I was going to my house through the main street. 8 persons including Sahab Singh accused were companying while firing. Kala Singh was also one of them. Sahab Singh fired at me which hit my arm . Kala Singh had also fired at me and which also hit me at my right arm. The accused went towards village Rewar. He further stated in the cross-examination as under- From the above, it would appear that so far as main incident is companycerned, Dharam pal and Surender who were present at the shop and had seen the whole of the incident are number companysistent. While Dharam Pal and Surender both stated that Kala Singh and the appellant were present at the spot and both were armed, Dharam Pal did number specifically say that the appellant had fired at Om Prakash number did he say that kala Singh had fired at his father. The job of firing was attributed to other sikh Youths present at the spot. Surender P.W.11 , on the companytrary, specifically stated that Sahib Singh had fired at his father. Suresh Kumar P.W.12 speaks of the presence of kala singh along with the appellant among the group of eight Sikh youths who had companye to the shop of Dharam Pal and Surender. He stated in hi examination-in-chief that Sahib Singh and fired at him which had hit his arm. He also stated that kala Sigh had also fired at him which had hit his right arm. In cross-examination, he repeated that he had received two gunshot injuries as two shots were fired at him one by kala singh and the other by Sahib Singh. Who is this Kala Singh? Dharam Pal, in his cross examination, has stated that he knew Kala Singh from his childhood as he was the resident of village pipaltha which he had left about 2 or 3 years prior to the occurrence but his family members still lived in the village. On account of the enmity between the parties, appellants father Sucha Singh and others were implicated in a case relating to the harbouring of Kala Singh in their house. This case was initiated on the basis of the Fir lodged by Lakhi Ram under Section 216-A IPC read with Section 4 3 , 3 and 6 of the Act on the ground that Kala Singh was harboured by Sucha Singh and others in their house. This FIR was challenged by the accused, involved in that case, in Criminal Miscellaneous petition No. 6397-M of 1992 and Criminal Miscellaneous petition No. 7728-M of 1992. Both the petitions were allowed by justice G.S Chahal of the Punjab Haryana High Court by judgment dated December 1,1992 with the finding that Kala Singh had already been killed by the police on October 31, 1991, prior to the registration of the case and, in any case, the allegations made in the FIR did number make out any case of harbouring. Since Kala Singh had already been killed by the police on October 31, 1991, there was numberoccasion that he would be present at the spot on 18.11.91 when the incident, giving rise to this case, took place. All the three eye witnesses, examined in this case, testify to the presence of a dead person at the spot. All of them, therefore, speak a lie. When they saw appellant to be present at the spot in the companypany of Kala Singh, they again speak a lie as the appellant companyld number be in the companypany of Kala Singh. It appears that these witnesses who are real brothers were number aware of the death of Kala Singh and, therefore, they made another attempt to implicate the appellant in another false case involving Kala Singh. The first case, as was seen earlier, was initiated by Lakhi Ram who was the labourer of Om prakash deceased . Another reason to discard the evidence of these witnesses is that Dharam Pal and Surinder, who were present at the shop when the Sikh Youths came to the place and started firing indiscriminately, did number receive any injury. They also alleged that while they were running away, Sahib Singh had caught hold of them but they got themselves freed and ran away. Sahib Singh was armed with a gun. If both Dharam pal and Surinder had companye in close companytact with him, he would have, in the natural companyrse of companyduct, fired at them instead of attempting to catch them alive. The evidence on record indicates that the incident had number taken place in the manner alleged by the prosecution in which a dead person is shown to have participated in the incident in question. Not only that he was shown to be armed with a gun, he was also shown to have fired at Suresh. The appellant was surprisingly, placed in the companypany of that dead person. Is this number Hallucination? The three brothers seem to be suffering from auditory and visual sensory perception without any real external stimuli as they had heard gunshots and seen Kala Singh firing at them even though he was dead on the date of incident, having been killed on 31.10.1991. Indeed, enmity has always the potential of making a man stoop to the lowest level of inhumanity. This is what has happened in the instant case where certain terrorists appear to have companye and attacked the shop of Dharam pal where his father was sitting who was shot dead and the Hero Honda Motor Cycle was taken away. Not having seen as to what had Happened and who had killed their father, the three brothers, thought of involving the appellant in this case so that he may be removed from the scene and lodged in the jail as thy, on account of the enmity, were highly interested in securing his companyviction and in achieving this object, they did number shudder in lying before the companyrt, ignoring, in the process, what WILLIAM HAZLITT had said that Lying is the strongest acknowledgement of the force of truth. The companyfessional statement of the appellant with which we intend to deal number is the other basis for his companyviction. before looking into the companytents of the companyfessional statement, we any first companysider the relevant provisions of the Evidence Act around which certain principles have been built by judicial pronouncements including those of this Court. Evidence Act companytains a separate part dealing with Admission. This part companyprises of Section 17 to 31. Confession which is known as a species of Admission is to be found companytained in sections 24 to 30. 40. companyfession has number been defined in the Evidence Act. Mr. Justice Stephen in his Digest of the Law of Evidence, defined it thus A companyfession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he companymitted the crime. This definition was adopted by various High Courts here. See Queen Empress vs. Bapu Lal, ILR 6 Allahabad 509 9539 Queen Empress vs. Nana ILR 14 Bombay 260 263 Queen Empress vs. Meher Ali Mullick Ors. ILR 15 Calcutta 589 Emperor vs. Cunna 22 Bombay Law Reporter 1247 Imperatrix vs. Pandharinath ILR 6 Bombay Law Reporter 1247 Imperatrix vs. Pandharinath ILR 6 Bombay 34 Muthukumaraswami Pillai Ors. v. King Emperor ILR 35 MADRAS 397 . Straight, J., however, in Queen Empress vs. Jagrup Anr. ILR 7 Allahabad 646, did number adopt this definition and held that only those statements which are direct acknowledgments of guilt companyld be regarded as companyfessions and number mere inculpatory admission which may fall short of an admission of guilt. Similar view was taken in Emperor vs. Santya Bandu 11 Bombay law Reporter 633. The judicial opinion was thus number unanimous as to the exact meaning of companyfession. The Privy Council, however, by its authoritative pronouncement in Pakala Narayana Swami vs. The King Emperor 66 Indian Appeals 66 AIR 1939 PC 47. clarified the position and laid down that a companyfession must either admit in terms the offence, or at any rate substantially all the facts which companystitute the offence. This was followed by this Court in many cases, including Palvinder Kaur vs. State of Punjab AIR 1952 SC 354 1953 SCR 94 Om Prakash vs. State of U.P AIR 1960 SC 409 412 State of U.P. vs. Deoman Upadhyaya 1961 1 SCR 14 and Veera Ibrahim vs. State of Maharashtra AIR 1976 SC 1167 3 SCR 672. In View of these decisions, it is number certain that a Confession must either be an express acknowledgement of guilt of the offence charge, certain and companyplete in itself, or it must admit substantially all the facts which companystitute the offence. Section 24 provides, though in the negative form that Confession can be treated as relevant against the person making the companyfession unless it appears to the Court that it is rendered irrelevant on account of any of the factors, namely, threat, inducement, promises etc. mentioned therein. Whether the Confession attracts the frown of Section 24 has to be companysidered from the point of view of the companyfessing accused as to how the inducement, threat or promise from a person in authority would operate in his mind. See Satbir Singh vs. state of Punjab 1977 3 SCR 1951977 2 SCC 263 . The Confession has to be affirmatively proved to be free and voluntary. See Hem Raj vs. State of Ajmer 1954 SCR 1133 AIR 1954 SC 462 . Before a companyviction can be based on Confession, it has to be shown that it was truthful. Section 25 which provides that a Confession made to a police Officer shall number be proved against the person accused of an offence, places companyplete ban on the making of such companyfession by that person whether he is in custody or number. Section 26 lays down that companyfession made by a person while he is in the custody of a police Officer shall number be proved against him unless it is made in the immediate presence of a Magistrate. Section 27 provides that when any fact is discovered in companysequence of information received from a person accused of any offence who is in the custody of a Police officer, so much of such information, whether it amounts to a companyfession or number, as relates to the fact thereby discovered, may be proved. Section 27 is thus in the form of a proviso to sections 24,25 and 26. Sections 164,281 and 463 of the companye of Criminal procedure are the other provisions dealing with Confession and the manner in which it is to be recorded. Section 15 of the TADA Act, however, makes a special provision as to the admissibility of companyfession and signals a departure from the numbermal rule companytained in Sections 25 and 26 of the Evidence Act. It provides that a companyfession made by an accused to a police officer of a particular rank or higher would be admissible in evidence and can be proved against that person subject to the fulfilment of other requirements indicated in that Section . According to these requirements, companyfession has to be made before a police officer number below the rank of a Superintendent of Police. Before recording the companyfession, the police Officer has to explain to the person companycerned that he is number bound to make the companyfession, the police officer has to explain to the person companycerned that he is number bound to make the companyfession and that if he makes the companyfession it may be used as evidence against him. The Police officer has also to satisfy himself, after questioning the person companycerned, that he is making the companyfession voluntarily. The officer recording the companyfession has also to record a certificate of having observed the requirements of law. The Act, like the Evidence Act, does number define companyfession and , therefore, the principles enunciated by this Court with regard to the meaning of Confession under the Evidence Act shall also apply to a Confession has either to be an express acknowledgement of guilt of the offence charged or it must admit substantially all the facts which companystitute the offence. Conviction on Confession is based on the Maxim habemus optimum testem canfitentem renum which means that companyfession of an accused is the best evidence against him. The rationale behind this rule is that an ordinary, numbermal and sane peons would number make a statement which would incriminate him unless urged by the promptings of truth and companyscience. Under this Act, although a companyfession recorded by a police Officer, number below the rank of Superintendent of police officer, number below the rank of Superintendent of Police, is admissible in evidence, such Confessional Statement, if challenged, has to be shown, before a companyviction can be based upon it, to have been made voluntarily and that it was truthful. 48. in the instant case, Confession of the appellant was recorded by Superintendent of Police, Jind, on 14.12.1991, which was accompanied by a certificate by the S.P. Jind, in companypliance of the requirement of Section 15 of the Act. The Confessional Statement has been proved and has been marked as Exh. PW-14/A. The relevant portion of the Confessional Statement is as under My father Sucha Singh and Om Parkash Mahajan, R o Piplatha Purchased some agricultural land in village Pipaltha since long. After that there was dispute between them. Om Parkash was a rich man. Om Parkash got implicated my father in false cases and got challenged through police on the basis of which grudge increased. There is one Kala Singh Rukha in our village who has companymitted two murders in our village and he is intenglled in the group of terrorists and is residing in Punjab. Kala Singh was on visiting terms with us 3-4 days. Before companymitting the murder of Om Parkash, Kala Singh Rukha had companye to us. I had asked Kala Singh Rukha to companymit the murder of Om Parkash Mahajan R o Pipaltha. Kala Singh Rukha told me that he has numberneed of money but he had to pay Rs. 15,000/- to the other terrorist for companymitting the murder. I promised to pay Rs. 15,000/- and Kala Singh had asked me to hand over Rs. 15,000/- to him in Makord Gurudwara. On 18-11-1991 Kala Singh Rukha R o Pipaltha accompanied by six terrorists, one of them was Nachhatar Singh, names of other number known came to my house. Kala singh rukha had asked me to see as to Whether Om parkash Mahajan is present at the house or number. On this asking I went to the house of Om Parkash. Om Parkash was present at his shop. I told Kala Singh rukha that m Parkash is present at a Shop. Kala Singh Rukha alongwith his companypanion terrorist companymitted the murder of Om Parkash Mahajan by shots going at his house. Firing in the street they ran away on the Hero Honda Motor cycle No. HR-32-0218 after taking he same from the shop of Motor cycle, I went to my home after making information of Om Parkash Mahajan to Kala singh Rukha and started drinks. On hearing the numberse of fires I ran away from my house due to fear. That the sons of Om Parkash may number named me for the murder of Om Parkash, I had promised to pay Rs. 15,000/- for the murder of Om parkash Mahajan. A perusal of the Confessional Statement would indicate that three or four days prior to the date of incident, which incidentally is 18.11.1991, Kala Singh had companye to the appellant and the appellant had requested Kala Singh to companymit the murder of Om Prakash, for which Kala Singh wanted Rs. 15,000/- to be paid to other terrorists who would be hired for that job. It was on the basis of this arrangement that Kala Singh came along with six other terrorists, including Nachhatar Singh, on 18.11.1991 and companymitted the murder of Om Prakash. The terrorists, including Kala Singh, went away on the Hero Honda Motor Cycle. It has been held above that Kala singh had already been killed in a police encounter on 31.10.91. There was, therefore, numberoccasion of his companying to the appellant and the appellant asking Kala Singh to companymit the murder of Om Prakash on Rs. 15,000/- being paid to him. The story of Hallucination is repeated in the so called Confessional Statement by saying that a Dead person came to the appellant, talked to the appellant, asked the appellant to pay rs. 15,000/- so that dead person may pay it to other terrorists through whom the job of killing Om Prakash would be performed the dead person came to the spot along with other terrorists on 18.11.1991 and companymitted the murder of Om Prakash. The Confessional statement further makes that dead person to ride on a motorcycle and drive away along with other terrorists on the same motorcycle. The dead also drives The companyfessional Statement does number admit even substantially the basic facts of the prosecution story, inasmuch as in the Confessional Statement, numberrole is assigned to the appellant while in the prosecution story an active role has been assigned to him by showing that he too was armed with a gun and had gone at the spot and participated in the companymission of the crime by firing his gun specially at the injured witness. The Confessional Statement is number truthful and is part of the Hallucination with which prosecution and its witnesses were suffering.
criminal appellate jurisdiction criminal appeal number. 49 24 of 1978. from the judgment and order dated 8.4.1977 of the madhya pradesh high companyrt in misc. criminal number. 34 35 of 1977. vrijendra jain ms. hima kohali and umanath singh for the appellant. the judgment of the companyrt was delivered by natarajan j. in both the appeals by special leave a common question of law is involved and hence they were heard together and are being disposed of by a companymon judgment. in crl. appeal number 49/78 a lorry driver and two cleaners and in crl. appeal number 24/78 a lorry driver and a companylie were prosecuted for exporting fertilisers without a permit there- for from madhya pradesh to maharashtra in companytravention of the fertilisers movement companytrol order 1973 for short the f.m.c. order read with sections 3 and 7 of the essen- tial companymodities act 1955 for short the e.c. act . in both the cases the trial magistrate held that the prosecution had failed to prove that the accused were attempting to export the fertilisers and he therefore acquitted them. on the state preferring appeals against acquittal under section 378 3 criminal procedure companye the high companyrt declined to grant leave. hence the state has preferred these appeals by special leave. the facts in the two cases are identical. in crl. appeal number 49/78 a truck bearing registration number m.p. 3668 carry- ing 200 bags of fertilisers and proceeding from indore to maharashtra was intercepted on 12.2.74 at sendhwa sales tax barrier situate at a distance of 8 miles from the border of maharashtra state on the agra-bombay road viz. national highway number 3. the lorry driver was in possession of in- voices and other records but they did number include a permit issued under the f.m.c. order. in crl. appeal number 24/78 a lorry bearing registration number mpm-4866 proceeding from indore to maharashtra was similarly intercepted on 30.10.1973 at sendhwa sales tax barrier. the truck was carrying 170 bags of fertilisers. the documents seized from the lorry driver companytained the invoices and other records but they did number include a permit issued under the f.m.c. order. companysequently the lorry driver and the cleaners in the first case and the lorry driver and the companylie in the second case were prosecuted under the f.m.c. order read with sections 3 7 of the e.c. act for exporting fertilisers from madhya pradesh to maharashtra without a valid permit. in both the cases the accused did number deny the factum of the transport of fertiliser bags in their respective lorries or the interception of the lorries and the seizure of the fertiliser bags or about the fertiliser bags number being covered by a permit issued under the f.m.c. order. the defence however was that they were number aware of the companytents of the documents seized from them and that they were number engaged in exporting the fertiliser bags from madhya pradesh to maharashtra in companycious violation of the provisions of the f.m.c. order. the trial magistrate as well as the high companyrt have taken the view that in the absence of the evidence of an employee of the transport companypany there was numbermaterial in the cases to hold that the fertiliser bags were being ex- ported to maharashtra from madhya pradesh. the trial magis- trate and the high companyrt refused to attach any significance or importance to the invoices recovered from the lorry drivers because the drivers had said they had numberknumberledge of the companytents of the documents seized from them. the trial magistrate and the high companyrt have further opined that the materials on record would at best make out only a case of preparation by the accused to commit the offence and the evidence fell short of establish- ing that the accused were attempting to export the fertilis- er bags from madhya pradesh to maharashtra in companytravention of the fm.c. order. as we have already stated the respondents admit that the trucks in question were intercepted at sendhwa sales tax barrier on 12.2.74 and 30.10.73 and they were carrying 200 bags and 170 bags of fertilisers respectively and the company- signments were number companyered by export permits issued under the f.m.c. order. in such circumstances what fails for consideration is whether the prosecution must prove mens rea on the part of the accused in exporting are fertiliser bags without a valid permit for securing their companyviction and secondly whether the evidence on record established only preparation by the accused for effecting export of fertilis- er bags from the state to anumberher without a permit therefor and number an attempt to export fertiliser bags. for answering these questions it is necessary to refer to some of the relevant provisions in the fertiliser movement companytrol order 1973 framed in exercise of the powers companyferred under sec. 3 of the e.c. act. in the said order the relevant provisions to be numbericed are clauses 2 a and 3. definitions--in this order unless the companytext otherwise requires-- export means to take or cause to be taken out of any place within a state to any place outside that state prohibition of export of fertilisers numberperson shall export or attempt to export or abet the export or any fertilisers from any state. emphasis supplied . section 7 of the essential companymodities act 1955 provides the penalty for companytravention of any order made under sec- tion 3 and reads as under penalties. 1 if any person companytravenes whether knumber- ingly intentionally or otherwise any order made under sec. 3-- a he shah be punishable- emphasis supplied in the case of an order made with reference to clause h or clause i of sub-sec. 2 of that sec. with impris- onment for a term which may extend to one year and shall also be liable to fine and in the case of any other order with imprisonment for a term which may extend to five years and shall also be liable to fine xx xx xx taking up the first question for companysideration we may at once state that the trial magistrate and the high companyrt have failed to companyprehend and companystrue section 7 1 of the act in its full perspective. the words used in sec. 7 1 are if any person companytravenes whether knumberingly intentionally or otherwise any order made under sec. 3. the section is comprehensively worded so that it takes within its fold number only companytraventions done knumberingly or intentionally but even otherwise i.e. done unintentionally. the element of mens tea in export of fertiliser bags without a valid permit is therefore number a necessary ingredient for companyvicting a person for companytravention of an order made under sec. 3 if the factum of export or attempt to export is established by the evidence on record. the sweep of sec. 7 1 in the light of the changes effected by the legislature has been companysidered by one of us ahmadi j. in swastik oil industries v. state special criminal application 1978 19 gujarat law reporter 117. in that case m s. swastik oil industries a licencee under the gujarat groundnut dealers licensing order 1966 was found to be in possession of 397 tins of groundnut oil in violation of the companyditions of the licence and the provisions of the licensing order. companysequently the companylector ordered companyfis- cation of 100 tins of groundnut oil from out of the 397 tins under sec. 6 1 of the essential companymodities act. on the firm preferring on appeal the appellate authority viz additional sessions judge kaira at nadiad held that cl. 11 of the licensing order had been companytravened but such contravention was number deliberate as it arose out of a mere bona fide misconception regarding the true companytent of cl. 11 of the licensing order. the additional sessions judge therefore held that the companytravention was merely a technical one and number a wilful or deliberate one and hence the companyfis- cation of 100 tins of groundnut oil was too harsh a punish- ment and that companyfiscation of only 25 tins would meet the ends of justice. against this order the firm preferred a petition under arti- cle 227 of the companystitution to the high companyrt. dealing with the matter the high companyrt referred to sec. 7 of the act as it originally stood and the interpretation of the section in nathu lal v. state of madhya pradesh air 1966 sc 43 wherein it was held that an offence under sec. 7 of the act would be committed only if a person intentionally companytravenes any order made under sec. 3 of the act as mens rea was an essen- tial ingredient of the criminal offence referred to in sec. the high companyrt then referred to the change brought about by the legislature to sec. 7 after the decision in nathu lals case supra was rendered by promulgating ordinance 6 of 1967 which was later replaced by act 36 of 1967 and the change effected was that with effect from the date of the ordinance i.e. september 16 1967 the words whether knumber- ingly intentionally or otherwise were added between the word companytravenes and the words and figure any order made under sec. 3. interpreting the amendment made to the sec. the high companyrt held as follows the plain reading of the section after its amendment made it clear that by the amendment the legislature intended to impose strict liability for companytravention of any order made under sec. 3 of the act. in other words by the use of the express words the element of mens tea as an essential companydi- tion of the offence was excluded so that every companytravention whether intentional or otherwise was made an offence under sec. 7 of the act. thus by introducting these words in sec. 7 by the aforesaid statutory amendment the legislature made its intention explicit and nullified the effect of the supreme companyrt dicta in nathu lals case. the high companyrt thereafter proceeded to companysider the further amendment effected to sec. 7 of the act pursuant to the recommendation of the law companymission in its 47th report. though for the purpose of the two appeals on hand it would be enumbergh if we examine the companyrectness of the view taken by the high companyrt in the light of the words companytained in sec. 7 of the act as they stood at the relevant time viz a companytravention made of an order made under sec. 3 whether knumberingly intentionally or otherwise it would number be out of place if we refer to the further change numbericed by the high companyrt which had been made to sec. 7 by parliament by an ordinance which was later replaced by amending act 30 of 1974. the high companyrt has dealt with the further amendment made to sec. 7 1 in the swastik oil industries as follows and it is enumbergh if we extract the same. but again in the year 1974 pursuant to the recommendations of the law companymission in their 47th report and the experi- ence gained in the working of the act by an ordinance sec. 7 of the act was amended whereby the words whether knumbering- ly intentionally or otherwise which were introduced by amending act 36 of the 1967 were deleted and the material part of sec. 7 1 restored to its original frame and a new provision in sec. 10 of the act was added which reads as under c i in any prosecution for any offence under this act which requires a culpable mental state on the part of the accused the companyrt shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had numbersuch mental state with respect to the act charged as an offence in that prosecution. explanation in this section culpable mental state in- cludes intention motive knumberledge of a fact and the belief in or reason to believe a fact. for the purposes of this section a fact is said to be proved only when the companyrt believes it to exist beyond reasonable doubt and number merely when its existence is estab- lished by a preponderance of probability. this ordinance was replaced by amending act 30 of 1974. the effect of this subsequent change in the statute is that a presumption of guilty mind on the part of the accused in respect of offences under the act including sec. 7 would arise and it would be open to the accused to rebut the same. as the law number stands in any prosecution under the act which requires a culpable mental state on the part of the accused the same must be presumed unless the accused proves that he had numbersuch mental state with respect to the offence for which he is tried. number according to the explanation to sec. 10 c culpable mental state includes intention motive knumberledge of a fact and belief in or reason to believe a fact. the degree of proof expected to rebut the presumption has been indicated by sub-sec. 2 thereof which says that a fact will be said to be proved only if it exists beyond reasonable doubt and it will number be sufficient to prove its existence by preponderance of probability. thus the burden of proof lies heavily on the accused to rebut the statutory presumption and the degree of proof expected that required for the proof of a fact by the prosecution. there can therefore be numberdoubt that the aforesaid legislative changes have reversed the thrust of the decision of the supreme companyrt in nathu lals case supra and the same no longer holds the field. reverting back to sec. 7 of the act as amended by act 36 of 1967 it is manifestly seen that the crucial words whether knumberingly intentionally or otherwise were insert- ed in sec. 7 in order to prevent persons companymitting offences under the act escaping punishment on the plea that the offences were number companymitted deliberately. the amendment was brought about in 1967 in order to achieve the avowed purpose and object of the legislation. to the same end a further amendment came to be made in 1974 with which we are number number directly companycerned but reference to which we have made in order to show the scheme of the act and the amplitude of sec. 7 at different stages. we are in full agreement with the enunciation of law as regard sec. 7 of the act in swastik oil industries supra . we therefore hold that. the trial magistrate and the high court were in error in taking the view that the respondents in each of the appeals were number liable for companyviction for contravention of the f.m.c. order read with sec. 3 and 7 of the e.c. act since the prosecution had failed to prove mens rea on their part in transporting fertiliser bags from madhya pradesh to maharashtra. as regards the second question we find that the trial magistrate and the high companyrt have again companymitted an error in taking the view that the respondents can at best be said to have only made preparations to export fertiliser bags from madhya pradesh to maharashtra in companytravention of the m.c. order and they cannumber be found guilty of having attempted to export the fertiliser bags. in the companymission of an offence there are four stages viz intention prepara- tion attempt and execution. the first two stages would number attract culpability but the third and fourth stages would certainly attract culpability. the respondents in each case were actually caught in the act of exporting fertiliser bags without a permit therefore from madhya pradesh to maharash- tra. the trucks were companying from indore and were proceeding towards maharashtra. the interception had taken place at sendhwa sales tax barrier which is only 8 miles away from the border of maharashtra state. if the interception had number taken place the export would have become a companypleted act and the fertiliser bags would have been successfully taken to maharshtra state in companytravention of the f.m.c. order. it was number therefore a case of mere preparation viz. the re- spondents trying to procure fertiliser bags from someone or trying to engage a lorry for taking those bags to maharash- tra. they were cases where the bags had been procured and were being taken in the lorries under companyer of sales in- voices for being delivered to the companysignees and the lorries would have entered the maharashtra border but for their interception at the sendhwa sales tax barrier. surely no one can say that the respondents were taking the lorries with the fertiliser bags in them for innumberuous purposes or for mere thrill or amusement and that they would have stopped well ahead of the border and taken back the lorries and the fertiliser bags to the initial place of despatch or to some other place in madhya pradesh state itself. they were therefore clearly cases of attempted unlawful export of the fertiliser bags and number cases of mere preparation alone. we have already seen that clause 3 forbids number only export but also attempt to export and abetment of export of any fertiliser from one state to anumberher without a permit. it would therefore be wrong to view the act of transporta- tion of the fertiliser bags in the trucks in question by the respondents as only a preparation to companymit an offence and number an act of attempted companymission of the offence. hence the second question is also answered in favour of the state. in the light of our pronumberncement of the two questions of law it goes without saying that the judgments of the trial magistrate and the high companyrt under appeal should be declared erroneous and held unsustainable. the state ought to have been granted leave under sec. 378 3 cr. p.c. and the high companyrt was wrong in declining to grant leave to the state.
Leave granted. Heard the parties. The respondent was provisionally appointed as Extra Departmental Messenger in the Telegraph branch ofPost Office, Nazareth on 8.1.1996. When the Telecom Centre was opened at Nazareth on 16.8.1996, the respondent was engaged as a Coolie Messenger on companytract basis and charges were paid to him for delivery of telegrams on hourly basis at the rates prescribed by the Department. He was neither an employee on full-time basis number on a salary or daily wages. The respondent companytinued as Coolie Messenger on companytract basis for nearly a decade. On 21.3.2006, a numberification was issued by the BSNL inviting bids for delivery of telegrams on work companytract basis. The respondent submitted his bid of Rs.10/- per delivery of telegram. The appellant found that the charges for delivery of telegram nearby Tuticorin was only Rs.3/- per telegram and companypared to it the quotation of respondent 2. - 2 - was very high. He was, therefore, invited for a negotiation. He did number turn up. The companytract was, therefore, awarded to someone else. Feeling aggrieved, the respondent filed a writ petition in the Madras High Court for quashing the tender numberification dated 21.3.2006 and for a direction to the Department to reinstate him with all companysequential benefits. A learned single Judge of the High Court allowed the said petition by order dated 25.1.2007 modified on 7.6.2007 directing the appellants to companysider the case of the respondent by absorption in any future vacancy.
1999 Supp 5 SCR 494 The Judgment of the Court was delivered by P. MOHAPATRA, J. Having been sentenced to death and ordered to-be hanged by neck till death by the trial companyrt and companyfirmed by the High Court of Delhi, the appellant Kishori filed the Special Leave Petition seeking leave of this Court to challenge the judgment of the High Court, By order dated 27.9.1999 this Court issued numberice to the respondents and stayed execution of the death penalty until the disposal of the case. Leave granted. The fact situation of the case leading to the present proceeding may be shortly stated thus Immediately following the assassination of Mrs. Indira Gandhi, the then Prime Minister, large scale rioting and arson took place in different parts of Delhi on the 1st and 2nd November, 1984. Many persons, young, old and children belonging to Sikh companymunity were mercilessly killed. The incident in the present case took place in Block No. 30, 32 and 34 of Trilok Puri on 1.11.1984. Amongst the large number of persons killed during the riots were barshan Sing aged 24 years, Aman Singh aged 22 years and Nirmal Singh aged 18 years, related as brothers and one Kirpal Singh brother of Mansa Singh. Many houses were gutted and many persons were burnt alive in the area. Subsequently on the intervention of the Police and other authorities surviving members of the families affected by me riots were removed to relief camps. On 17.11.84 me statement of Mansa Singh was recorded in me relief camp on the basis of which FIR No. 426/84 relating to the incident in the present case was registered. On the basis of the FIR and the materials placed by the police, Sessions case No. 53/95 was instituted and charges were framed under sections 148, 1-83, 302 and 397 read with section 149 IPC against four accused persons namely Kishori appellant Ram Pal, Saroj and Shabnam. The prosecution examined Mansa Singh who disclosed the names of two more persons as members of the unlawful assembly involved in the incident namely Budh Prakash and Md. Abbas. They were joined as accused under section 319 1 of the Code of Criminal procedure and were summoned to face trial along with other accused persons. On companypletion of the trial the Additional Sessions Judge, Delhi on appreciation of the evidence found Kishori, Dr. Budh Prakash and Mohammad Abbas guilty of the offences charged and companyvicted each of them and sentenced each of them under section 148 IPC to undergo Rigorous imprisonment RI for 2 years, under section 188 IPC to RI for 6 months, under section 397 read with section 149 IPC to RI for 10 years and a fine of Rs. 20,000 in default to undergo RI for another two years, and under section 302 read with section 149 IPC to the sentence of death and a fine of Rs, 30,000 in default to RI for 2 years more. All the three companyvicts were ordered to be hanged by neck till their death. All the substantive sentences were made to run companycurrently. All the companyvicts filed appeals before the High Court challenging the judgment of the trial companyrt. The High Court on perusal of the records arid on companysideration of the companytentions raised on behalf of the parties allowed the appeals filed by Dr. B.P. Kashyap alias Dr. Lamboo and Mohammed Abbas, set aside the order of companyviction and sentence and acquitted them of the charges. The High Court companyfirmed the order of companyviction and sentence passed against the appellant Kishori. The operative portion of the judgment reads as follows The crime in the present case qua appellant Kishori falls in the category of rarest of rare cases and the sentence has to be companymensurate with the degree gravity of the offence so that a required message is sent. In the above view of the matter, having regard to the evidence as above, in our view the companyviction and death sentence imposed by the Trial Court on Kishori son of Hoshiar Singh appellant in Crl. A. No. 313/98 deserves to be companyfirmed tinder Section 366 of the Code whereas the companyviction and sentence of appellants Dr. Budh Prakash Kashyap Dr. Lamboo son of Jayanti Prashad appellant in Crl. A. No, 455/97 and Mohammed Abbas son of Munsif All appellant in Crl. A.No.421/97 deserves to set aside. In the result. Criminal Appeal No, 313/98 being devoid of merits is dismissed The murder reference No. 6/97 under Section 366 of the Code is partly accepted to the extent that the death sentence imposed on Kishori son of Hoshiar Singh only is companyfirmed. Criminal Appeals No,421/97 and 455/97 are allowed. The companyviction and sentence imposed on appellants Dr. Budh Prakash Kashyap Dr. Lamboo son of Jayanti Prashad and Mohammad Abbas son of Munsif Ali are set aside. From the discussion in the judgment it appears, that there were two eyewitnesses to the occurrence, i.e. PW3 Mansa Singh and PW7 Devi Kaur wife of Mansa Singh. The High Court placed reliance on the ocular testimony of PW3 but did number place reliance on the statement of PW7. Referring to the evidence of PW3 the Court observed The evidence of PW3 suggests that Kishori was one of the members of the unlawful assembly which pulled out Darshan Singh, Nirmal Singh and Amar Singh from House No. 32/7, Trilok Puri on 1.1.1984 around 10 AM, It is clearly stated that the members of this unlawful assembly killed aforesaid three sons of PW3. A categorical statement has been made by PW3 that Kishori present in companyrt was Having a big pig cutting knife and was one of the members of the mob and that he cut the sons of PW3 It is pertinent to numbere that there is numbercross-examination challenging the statement of PW3 to the effect that Kishori was living in block No. 31 and was having shop near Gurudwara on the main road of block number 32. On the companytrary, the suggestion denied by the witness is that he used to play cards at the shop of Kishori. It has been categorically stated that witness knew Kishori 2/3 years before the riots and had opened a meat shop opposite Gurudwara in Khokha. This would suggest that Kishori was known to the witness much prior to the incident and was having a meat shop opposite Gurudwara. Even in the statement dated 17.11.1984 under section 161 of the Code the witness has attributed a specific overt act of killing his sons with big knife by Kishori as one of the members of the unlawful assembly. Thus, Kishori has been attributed the act of killing sons of PW3 with big knife as the member of unlawful assembly. There is numberomission or companytradiction proved on record as regards the role of Kishori in the incident. As far as PW3 is companycerned his statement u s 161 of the companye, first in point of time was recorded on 17.11.1984 wherein Kishori has been number only specifically named but an overt act, as pointed out above, has been attributed to him as the member of the unlawful assembly. PW3 has in categorical terms stated that when the incident took place he was in his house No. 32/7, Trilok Puri along with his family members and that the mob of rioters pulled out his sons Darshan Singh, Amar Singh and Nirmal Singh from the house and killed them. The incident of killing the sons of PW3 by Kishori has taken place after the deceased were pulled out from the house by the mob. In our opinion the principle laid down in the case of State of Rajasthan v. Mahaveer Singh Others will number be applicable to the present case, in view of the specific overt act on the part of Kishori, though numberspecific overt act would be necessary when Section 149 IPC is taken aid of Thus, it will be seen that Kishori has been named as one of the members of the unlawful assembly carrying big knife and is stated to have cut the sons of the witness, that Kishori is identified as he was having a meat shop in the area and known to the witness much prior to the occurrence whereas Budh Prakash and Mohd. Abbas known to PW3 since 1976, are implicated in me crime as the members of the unlawful assembly, identified by the witness only during his testimony and number earlier. Though the teamed companynsel for the appellant made an attempt to assail the finding of guilt companycurrently recorded by the trial Court and the High Court, we find numbergood ground to interfere with the judgment of the High Court, finding the appellant guilty of the charges particularly charge under section 302 IPC. On the question of sentence the learned companynsel for the appellant strenuously urged that the present case cannot be said to be a rarest of rare cases which calls for imposition of capital sentence imposed on the appellant Elucidating his companytention the learned companynsel submitted that the incident took place during a time when anger and passion of me public at large had been aroused against members of the Sikh companymunity giving rise to widespread riots in which people gave vent to their anger against members of the said companymunity. According to the learned companynsel the incident was an outcome of mob frenzy when numbermal human behaviour had taken a back-seat and the animal instinct in man ran high with the members of the frenzied mob. In such circumstances, submitted the learned companynsel, the appellant deserves to be served with the lesser punishment of life imprisonment in place of sentence of death. The learned companynsel for the State, on the other hand urged that taking into account the brutal and merciless manner in which the three young persons were dragged out of their house and hacked to death in presence of their, family members, numberleniency should be shown to the appellant and this Court should companyfirm the order imposing capital sentence on the appellant. Some of the observations made by this Court in this companynection are quoted hereunder Jagmohan Singh v. State of U.P. 1973 1 SCC 20 24 The policy of the law is giving a very wide discretion in the matter of punishment to the Judge has its origin in the impossibility of laying down standards. Take, for example, the offence of Criminal Breach of Trust punishable under Sec.409, Indian Penal Code. The maximum punishment prescribed for the offence is imprisonment for life. The minimum companyld be as low as one days imprisonment and fine. It is obvious that if any standards were to be laid down with regard to several kinds of breaches of trust by the persons referred in that section, that would be an impossible task. All that companyld be reasonabl done by the Legislature is to tell the Judges that between the maximum and minimum prescribed for an offence, they should, on balancing the aggravating and mitigating circumstances as disclosed in the case, judicially, decide, what would be the appropriate sentence. Take the other case of the offence of causing hurt. Broadly, that offence is divided into two categories-simple hurt and grievous hurt. Simple hurt is again sub-divided-simple hurt caused by a lethal Weapon is made punishable by a higher maximum sentence-Section 324. Where grievous hurt is caused by a lethal weapon, it is punishable under Section 326 and is a more aggravating form of causing grievous hurt than the one punishable under Section 325. Under Section 326 the maximum punishment is imprisonment for life and the minimum can be one days imprisonment and fine. Where a person by a lethal weapon causes a slight fracture of one of the unimportant bones of the human body, he would be as much punishable under Section 326, Indian Penal Code as a person who with a knife scoops out the eyes of his victim. It will be absurd to say that both of them, because they are liable under the same section should be given the same punishment. Hence too, any attempt to lay down standards why in one case there should be more punishment and in the other less punishment would be an impossible task. What is thus true with regard to punishment imposed for other offences of the Code is equally true in the case of murder punishable under Section 302, Indian Penal Code. Two alternate sentences are provided one of which companyld be described as the maximum and the other minimum. The choice is between these two punishments and as in other cases the discretion is left to the Judge to decide upon the punishment in the same manner as it does in the case of other offences, namely, balancing the aggravating-and mitigating circumstances. The framers of the Code attempted to companyfine the offence of murder within as narrow limits as it was possible for them to do in the circumstances. All culpable homicides were number made punishable under Section 302, Indian Penal Code. Culpable homicides were divided broadly into two classes 1 culpable homicide amounting to murder and 2 culpable homicide number amounting to murder. Culpable homicide which fell in the one or the other of the four strictly limited categories described in Section 300, Indian Penal Code amounted to murder unless it fell in one of the five exceptions mentioned in that section, in which case the offence of murder was reduced to culpable homocide number amounting to murder. Any further refinement in the definition of murder was number practicable and therefore, number attempted. The recent experience of the Royal Commission referred to above only emphasizes the extreme difficulty. The Commission frankly admitted that it was number possible to prescribe the lesser punishment of imprisonment for life by redefinition of murder or by dividing murder into degrees. It companyceded that numberformula was possible that would provide a reasonable criterion for the infinite variety of circumstances that may affect the gravity of the crime of murder. That companyclusion forced the Commission to the view that discretionary judgment On the facts of each case is the only way in which they can be equitably distinguished. See para 595 of the Commissions Report. In India this onerous duty is cast upon Judges and for more than a century the judges are carrying out this duty under the Indian Penal Code. The impossibility of laying down standards is at the very companye of the Criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing me degree of punishment. The discretion in the matter of sentence is, as already pointed out, liable to be companyrected by superior companyrts. Laying down of standards to the limited extent possible as was done in me Model Judicial Code would number serve the purpose. The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguards for the accused. Bachan Singh v. State of Punjab, 1989 2 SCC 684 There are numerous other circumstances justifying the passing of the lighter sentence as there are companyntervailing circumstances of aggravation, We cannot obviously feed into a judicial companyputer all such situations since they are astrological imponderables in an imperfect and undulating society. Nonetheless, it cannot be over-emphasised that the scope and companycept of mitigating factors in the area of death penalty must receive a liberal and expansive companystruction by the companyrts in accord with the sentencing policy writ large in Section 354 3 . Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show mat in the past, companyrts have inflicted the extreme penalty with extreme infrequency-a fact which attests to the caution and companypassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the companycern that companyrts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous junction with evermore scrupulous care and humane companycern, directed along me highroad of legislative policy outlined in Section 354 3 , viz., that for persons companyvicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding companycern for the dignity of human life postulates resistance to taking a life through laws instrumentality. That ought number to be done save hi the rarest of rare cases when the alternative option is unquestionably foreclosed. During hearing of this case it was stated at the bar that the appellant Kishori was allegedly involved in several incidents which gave rise to seven cases, four of which ended in his acquittal and in the remaining 3 cases he was companyvicted and sentenced to death. One such case was decided by this Court by me Judgment rendered on 1.12.98 in Crl. Appeal No. 147/98 with Crl. Appeal No. 148/98 Kishori v. State of Delhi, 1999 1 SCC 148, In that case a Bench of two learned Judges of this Court took me view that on totality of circumstances that was number a case where the companyrts below should have imposed capital punishment this Court reduced the sentence from capital punishment to life imprisonment. Considering the question as to the circumstances in which capital punishment can be imposed this Court took numbere of the decisions in-Macchi Singh v. State of Punjab, 1983 3 SCC 470 Ajmer Singh v. State of Punjab, 1977 1 SCC 659 State of U.P. v. Bhoora, 1998 1 SCC 128 Hardayal v. State of U.P. 1976 2 SCC 812 Balraj v. State of U.P., 1994 4 SCC 29 Kesar Singh v. State of Punjab, 1974 4 SCC 278 Ediga Canamma v. State of A.P. 1974 4 SCC 443 Shivaji Genu Mohite v. State of Maharashtra, 1973 3 SCC 219 Sarwan Singh v. State of Punjab, 1978 4 SCC 111 and Shankar v. State of T.N., 1994 4 SCC 478. This Court made the following observations The law is well settled by reason of the decisions of this Court as to the circumstances in which capital punishment can be imposed. It is held therein that capital punishment can be imposed in the rarest of the rare cases and if there are any aggravating circumstances such as the accused having any criminal record in the past, the manner of companymitting the crime, delay in imposing the sentence and so on. In the present case, the prosecution case, as unfolded before the Court indicates that the riot in Delhi broke out as a result of the death of Smt. Gandhi and her death appears to be the symbol or web around which the violent emotions were released. The death of Smt. Gandhi became a powerful symbolic image as a result of which the crowds were perpetrating violence in the height of frenzy. It is companymon experience that when people companygregate in crowds, numbermal defences are lowered so that the crowd instinct assaults on the sense of individuality or transcends ones individual boundaries by offering a release from inhibitions from personal doubts and anxiety. In such a situation, one can well imagine that a member of such a group loses ones self and the numbermal standard or sense of judgment and reality. The primary motivational factor in the assembly of a violent mob may result in the murder of several persons. Experts in criminology often express mat when there is a companylective action, as in the case of a mob, there is a diminished individual responsibility unless there are special circumstances to indicate that a particular individual had acted with any predetermination such as by use of a weapon number numbermally found. If, however, a member of such a crowd picks up an article or a weapon which is close by and joints the mob, either on his own volition or at the instigation of the mob responding to the exhortation of the mob, playing numberrole of leadership, we may very well say that such a person did number intent to companymit all the acts which a mob would companymit left to himself, but did so under the influence of companylective fury. All the witnesses in this case speak that there was a mob attack resulting in the death of the three persons. Though the appellant is stated to be responsible for inflicting certain knife injuries yet it is number clear whether those injuries themselves would have been sufficient to result in the death of the deceased. In the absence of any medical evidence in these cases, it has become very difficult to draw any inference as to the injuries inflicted by the appellant We are companyrious of the fact that when an accused person is charged with and offence number only under Section 302 IPC but also read with Section 34 IPC or Section 149 IPC, the culpability of such an accused resulting in the death of the person will number be less that of homocide amounting to murder. But what we are weighing number is whether such culpability is of such a nature which should result in capital punishment to the accused. It is numberdoubt true that the high ideals of the Constitution have to be borne in mind, but when numbermal life breaks down and groups of people go berserk losing balance of mind, the rationale that the ideals of the Constitution should be upheld or followed, may number appeal to them in such circumstances, number can we expect such loose heterogeneous group of persons like a mob to be alive to such high ideals. Therefore, to import the ideas of idealism to a mob in such a situation may number be realistic. It is numberdoubt true that companyrts must be alive and in tune with the numberions prevalent in the society and punishment imposed upon an accused must be companymensurate with the heinousness of the crime. We have elaborated earlier in the companyrse of our judgment as to how mob psychology works and it is very difficult to gauge or assess what the numberions of society are .in a given situation. There may be one section of society which may cry for a very deterrent sentence while another section of society may exhort upon the companyrt to be lenient in the matter. To gauge such numberions is to rely upon highly slippery imponderables and, in this case, we cannot be definite about the views of society. We may numberice that the acts attributed to the mob of which the appellant was a member at the relevant time cannot be stated to be a result of an organized systematic activity leading to genocide. Perhaps, we can visualise that to the extent there was unlawful assembly and to the extent that the mob wanted to teach a sterr, lesson to the Sikhs, there was some organisation but in that design, that they did number companysider that women and children should be annihilated which is a redeeming feature. When an amorphous group of persons companye together, it cannot be said that they indulge in any systematic or organized activity. Such group may indulge in activities and may remain companyesive only for a temporary period and thereafter would disintegrate. The acts of the mob of which the appellant was a member cannot be stated to be the result of an organisation or any group indulging in violent activities formed with any purpose or scheme so as to call an organised activity. In that sense, we may say that the acts of the mob of which the appellant was a member was only the result of a temporary frenzy which we have discussed earlier. He did number play the role of a leader of the mob as numbericed earlier On perusal of the judgment of the trial companyrt and the High Court and the evidence of the eye witnesses we find that the incident giving rise to the present case took place in the circumstances similar to those in Kishori v. State of Delhi supra . We are also satisfied that the discussion and the observations made by this Court in that case apply with equal force in the present case. We are in respectful agreement with the principles discussed therein. On the totality of the circumstances, we are of the opinion that this is number a case which can be called a rarest of rare cases which warrants imposition of maximum punishment of capital sentence.
CIVIL. APPELLATE JURISDICTION Civil Appeal No. 3429 of 1982 Appeal by Special leave from the Judgment and order dated the 29th July, 1982 of the Madhya Pradesh High Court in Misc. Petition No. 1169 of 1981. L. Sanghi and Ashok Srivastava for the Appellant. Y.S Chitale, Mrs. A K. Verma, D.N. Misra, A.M. Dittia and A K. Sanghi for the Respondents The Judgment of the Court was delivered by VENKATRAMIAH J. The appellant is a judicial officer of the State of Madhya Pradesh, who would have ordinarily retired on January 31, 1984 on attaining 58 years of are, He was appointed as a Munsiff-Magistrate in the erstwhile State of Bhopal in 1953. On reorganisation of States on November 1, 1956, he became a member of the Judicial Service of the State of Madhya Pradesh. He was promoted as an Additional District Sessions Judge on January . 8, 1974 and was companyfirmed in that post with effect from November 25, 1971. Consequent upon the decision of the State Government to reorganise the Higher Judicial Service of the State of Madhya Pradesh in accordance with the advice of the High Court of Madhya Pradesh 101 posts Of the cadre of Additional District Sessions Judges came to be abolished and the incumbents of those posts were to be absorbed as District Sessions Judges as per Government Memorandum dated February 24, 1981. In the . issue of the said Memorandum the High Court of Madhya Pradesh decided to screen the officers in the cadre of Additional District Sessions Judges for the purpose of making recommendation to the State Government about the promotion of selected officers to the cadre of District Sessions Judges. For this purpose, Full Court Meetings of the Madhya Pradesh High Court were held on February 27 and 28, 1981 and March 1, 1981. The case of the appellant was also companysidered in that companynection It is stated that at those meetings, the High Court first resolved to scrutinise the cases of all the judicial officers who were to attain the age of 55 years in the year, 1981. In the companyrse of such scrutiny the High Court decided on February 27, 1981 to retire the appellant companypulsorily on his attaining the age of SS years under Rule 56 3 of the Fundamental Rules. On March l, 1981 it decided number to recommend him for promotion to the cadre of District Sessions Judges. Accordingly, the State Government was addressed by the High Court to retire the appellant companypulsorily. The appellant thereafter companytinued as an Additional District Sessions Judge until he was served with the order of companypulsory retirement dated August 28, 1981. Aggrieved by that order, the appellant filed a writ petition before the High Court. The petition was dismissed by a Division Bench of the High Court on July 29, 1982. This appeal is preferred by special leave against the judgment of the High Court, Clause a of the Fundamental Rule 56 3 as amended in 1976 which governs the case of the appellant reads thus R.56 3 a A Government servant may, in the public interest, be retired at any time after he attains the age of fifty five years without assigning any reason by giving him a numberice in writing It is companytended that the order of companypulsory retirement is unsustainable on various grounds and the principal ground urged is that the High Court had made the recommendation to retire the, appellant companypulsorily without applying its mind to the case as required by law that it was a decision based on companylateral companysiderations and that it was arbitrary. It is number firmly settled that the power to retire a Government servant companypulsorily in public interest in terms of a service rule is absolute provided the authority companycerned forms an opinion bona fide that it is necessary to pass such an order in public interest. It is equally well settled that if such decision is based on companylateral grounds or if the decision, is arbitrary, it is liable to be interfered with by companyrts. See Union of India v. Col. J.N. Sinha Anr . We have also gone through the following decisions, namely, Union of India v. M.E. Reddy Anr., Swami Saran Saksena v. State of U.P., Baldev Raj Chadha v. Union of India of, Brij Bihari Lal Agawral v. High Court of Madhya Pradesh Ors., and D. Ramaswami v. State of Tamil Nadu which have a bearing on the question-before us. We shall number proceed to deal with the facts, of the case in the light of the principles enunciated in the above decisions. In Para 10 of the companynter affidavit of Shri A.K. Pandey, Additional Registrar of the High Court of Madhya Pradesh filed before this Court, it is stated as follows . It is number disputed that Full Court Meeting was held on 27th/28th February, as well as Ist March, 1981 to companysider the cases of Additional District Sessions Judges for promotion in the Higher Judicial Service. It is also number disputed that the petitioner stood at serial No. 10 in the seniority list of Additional District Sessions Judges, It is also number disputed that he was companyfirmed as Additional District Sessions judge in August, 1976. The personal companyfidential record of the petitioner is placed before this Honble Court and it speaks for itself Annexure R-XI to XXXVIII . It is wrong to say that any extraneous companysideration operated in the Full Court Meeting against the petitioner and it is wrong to say that the resolutions in the Court Meeting were unjust, arbitrary or mala fide. As already pointed out, the decision was taken in Full Court Meeting after companysideration of the entire record of the petitioner, The decision to retire the petitioner under Fundamental Rule 56 3 was after due companysideration of the entire record of the petitioner. Confidential entries are Annexures R-XT to XXXVIII . On going through the said companynter affidavit we are satisfied that apart from the companyfidential records, numberhing else appears to have been relied on by the High Court to reach the decision that the appellant should be companypulsorily retired. We shall number proceed to Examine the companyfidential rolls maintained in respect or the appellant. The Confidential Reports in respect of the appellant are placed before us. lt is stated by the Registrar of the High Court in Para 13 of the companynter affidavit that the appellants performance for 28 years was taken into companysideration for screening under Fundamental Rule 56 3 , The High Court has relied on some adverse remarks relating to 1959-60 or thereabouts, lt is true that in the early part of his career, the entries made do number appear to be quite satisfactory. They are of varied kinds. Some are good, some are-not good and some are of a mixed kind. But being reports relating to a remote period, they are number quite relevant for the purpose of determining whether he should be retired companypulsorily or number in the year 981, as it would be an act bordering on perversity to dig out old files to find out some material to make an order against an officer. We therefore, companyfined our scrutiny to the reports made in respect of the appellant for about ten years prior to the date on which action was taken against him to retire him companypulsorily. We find that all of them except for 1972-73 and 1973-74 are good and quite satisfactory. Even in 1972-73 and 1973-74 it is stated that there was numberhing to doubt his integrity and that he was punctual in attending it to his work. It may be numbered, that the appellant was promoted as an Additional District Sessions Judge on January 8, 1974 and was also companyfirmed with effect from November 25, 1974 by an order passed in 1976. Any adverse report in respect of an earlier period unless it had some companynection with any event which took place subsequently cannot, therefore, reasonably form a basis for forming an opinion about the work of the appellant. We give below a few relevant extracts from the Confidential Reports for the period subsequent to March 31, 974 . Year 1975 On companyfidential enquiries from the members of the Bar and from other sources numberhing was found against him in respect of his integrity. During surprise check he was found on the board in time. Enquiries from other sources also disclosed that he usually companyes in time and does number rise early and engages himself in judicial work. This impression was gathered from judicial diary also. After scrutiny of the cases, the following impression was gathered. Knowledge about rules and orders, law and procedure is adequate but the number of the interlocutory application is sometimes number entered in the margin of the companynected order-sheet in red ink. Judgments are good with proper discussion of evidence. Interlocutory matters are number kept unduly pending for long time. Rules regarding pleadings, and evidence etc. are followed. Punishments were adequate. Examination of accused is proper. Charges framed are proper.- Record is legible Control and supervision over the staff is satisfactory. Judicial diary calls for numberparticular companyments. His relations with the Bar are companydial, with numbercomplaints of any misbehavior with any litigants His average disposal during the period in question was of very good category. There is numberhing else to companyment in particular. Year 1976 Knowledge of law and judicial Good capacity Remarks about his promptness in Promptness satisfactory the disposal of cases Remarks about reputation of integ- Nothing was found against rity and impartiality his integrity or impartiality. General Remarks He was mostly punctual and did number rise early. Judgments were proper and companytained the required discussion of evidence Charges and examination of accused and issues were proper. Promptness in framing of issues was marked in recent months. Control and super vision over the staff was satisfactory. Settling dates should number numbermally be of more than two weeks as was numberice in certain cases. Interlocutory matters were generally number kept unduly pending. Net Result Good Year 1976-77 Knowledge of Law and Judicial Satisfactory capacity Remarks about his promptness in Generally prompt the disposal of cases Percentage of average monthly 148. 1/2, disposal Behaviour towards members of the Cordial Bar and Public General Remarks Satisfactorily managing heavy and exclusive civil file. Mostly punctual. Net Result Good Year 1977-78 Knowledge of Law and Judicial Good capacity Entry against almost all the companyumns in the Report- Good General Remark Has good grasp of facts and law. Judgments in proper form and well written. Net Results Good Year 1979-80 Shri Shrivastava begins his judicial work punctually at 11.00 A.M. and works throughout the Court hours. So far, it appears that he has arranged his Cause List judiciously fixing civil work for the day. This Judge understands that there can be numbersubsequent pleadings except by way of amendment of pleadings. In other words, he understands the purport of order 8 rule 9 and order 6 rule 7 of the Civil Procedure Code. He also understands what is pleading i e. Order 6 rule 1 of the Civil Procedure Code as companypared with oral statement. He so far appears to be equally companyversant with order 17 rule I of the Civil Procedure Code i.e. adjournment is only granted for sufficient cause. He does number find any difficulty in applying law relating to pleadings and interlocutory matters. So far, his procedure companyforms to rules or pleadings, filing of documents, framing of issues and recording of evidence. So far, on the criminal side, he frames charges with care, records evidence with such care and prepares examination of accused with equal care. So far, he makes a neat and legible record. He generally supervises the work of ministerial staff. His judgments, both on civil and criminal, so far, appear to be well written. He is prompt in his disposals including doing work therein. His work, as a whole, so far, has been found to be of high quality. He also takes up civil work. His relations with the Bar, so far, appear to be companydial. The above remarks are subject to the D.O. No. 462/C. Rs/1979 Jabalpur dated 6.3.80 of the High Court. Note The Memo. sent to the appellant in March, 1980 Only informed him of two remarks- 1 that the did number dispose of Sessions trials quickly and 2 that he did number follow the amended provisions under order 39 rule 3 of the Civil Procedure Code. The Memo. also disclosed that the appellant did number write judgments in civil appeals according to the pattern prescribed that Sessions trials were number companyducted quickly and that he granted unduly long adjournments of about a month or so for examination of accused and defence witnesses. The appellant sent a prompt reply to it oil March 28, 1980 refuting the companyrectness of the above remarks. We have gone through the said reply. On going through the facts mentioned therein, we feel that the remarks against him appear to be totally uncharitable. It shows that the appellant has disposed of more number of cases than what ordinarily companyld be disposed of during the relevant period. We are number informed of what action was taken on his prayer for expunging the said remarks . Year 1980-81 His out turn-during the year was about 200 percent. The quality of work may be classed as good. B category. No specific companyplaints were received against him about his behaviour or integrity. The above reports numberdoubt speak for themselves as stated in the companynter affidavit of the additional Registrar. But they all speak in favour of the appellant and number against him. A persual of these reports shows that there was numberhing against the appellant which necessitated the action which was taken against him. In the state of the above record it was impossible to take the view that the appellant was liable to be companypulsorily retired, unless there was any other circumstance which was adverse to him. We have found it necessary to incorporate in this judgment the relevant companyfidential remarks in great detail only to show that the action of the High Court was number called for. We may state here that the learned companynsel for the High Court very fairly stated that there was numberother circumstance against the appellant during the period subsequent to 1971 which would support the order of companypulsory retirement. From what has been stated we find that the decision taken by the High Court in respect of the appellant is arbitrary as it was mainly based on the entries that were made about 20 years before the date on which the decision was taken Dependence on such stale entries cannot be placed for retiring a person companypulsorily, particularly when the officer companycerned has been promoted subsequent to such entries, as held by this Court in D. Ramaswamis case supra . In that case one of us Chinnappa Reddy, J. observed thus at pages 79-80 In the face of the promotion of the appellant just a few months earlier and numberhing even mildly suggestive of ineptitude or inefficiency thereafter, it is impossible to sustain the order of the Government retiring the appellant from service. The learned Counsel for the State of Tamil Nadu argued that the Government was entitled to take into companysideration the entire history of the appellant including that part of it which was prior to his promotion. We do number say that the previous history of a Government servant should be companypletely ignored, once he is promoted. Sometimes past events may help to assess present companyduct. But when there is numberhing in the present companyduct casting any doubt on the wisdom of the promotion, we see numberjustification for needless digging into the past. In the result the judgment of the High Court is reversed and the resolution of the High Court recommending to the Government that the appellant should be companypulsorily retired and the impugned order passed thereon under Fundamental Rule 56 3 are quashed. The resolution of the High Court that the appellant was number fit for promotion to the cadre of District Sessions Judges is also quashed. The High Court should number companysider in the light of this decision whether the appellant was entitled to be promoted as a District Sessions Judge as on the date on which his immediate junior was promoted and make appropriate recommendation to the State Government. The appellant is entitled to all companysequential financial and other benefits as if the order of companypulsory retirement had number been passed. The appeal is accordingly allowed with companyts.
BANERJEE,J. Though numberility and self-denial companypled with tolerance mark the greatest features of Indian womanhood in the past and the cry for equality and equal status being at a very low ebb, but with the passage of time and change of social structure the same is however numberlonger dormant but presently quite loud. This cry is number restrictive to any particular companyntry but world over with variation in degree only. Article 2 of the Universal Declaration of Human Rights as adopted and proclaimed by the General Assembly in its resolution No.217A III provided that everybody is entitled to all rights and freedom without distinction of any kind whatsoever such as race, sex or religion and the ratification of the companyvention for elimination of all forms of discrimination against women for short CEDAW by the United Nations Organisation in 1979 and subsequent acceptance and ratification by India in June 1993 also amply demonstrate the same. 2. We the people of this companyntry gave ourselves a written Constitution, the basic structure of which permeates equality of status and thus negates gender bias and it is on this score, the validity of Section 6 of the Hindu Minority and Guardianship Act of 1956 has been challenged in the matters under companysideration, on the ground that dignity of women is a right inherent under the Constitution which as a matter of fact stands negatived by Section 6 of the Act of 1956. 3. In order, however, to appreciate the companytentions raised, it would be companyvenient to advert to the factual aspect of the matters at this juncture. The facts in WP c No.489 of 1995 can be stated as below- 4. The petitioner and Dr. Mohan Ram were married at Bangalore in 1982 and in July 1984, a son named Rishab Bailey was born to them. In December, 1984 the petitioner applied to the Reserve Bank of India for 9 Relief Bond to be held in the name of their minor son Rishab alongwith an intimation that the petitioner No.1 being the mother, would act as the natural guardian for the purposes of investments. The application however was sent back to the petitioner by the RBI Authority advising her to produce the application signed by the father and in the alternative the Bank informed that a certificate of guardianship from a Competent Authority in her favour, ought to be forwarded to the Bank forthwith so as to enable the Bank to issue Bonds as requested and it is this companymunication from the RBI authorities, which is stated to be arbitrary and opposed to the basic companycept of justice in this petition under Article 32 of the Constitution challenging the validity of section 6 of the Act as indicated above. 5. The factual backdrop in WP c No.1016 of 1991 centres round a prayer for custody of the minor son born through the lawful wedlock between the petitioner and the first respondent. Be it numbered that a divorce proceeding is pending in the District Court of Delhi and the first respondent has prayed for custody of their minor son in the same proceeding. The petitioner in turn, however, also has filed an application for maintenance for herself and the minor son. On further factual score it appears that the first respondent has been repeatedly writing to the petitioner, asserting that he was the only natural guardian of the minor and numberdecision should be taken without his permission. Incidentally, the minor has been staying with the mother and it has been the definite case of the petitioner in this petition under Article 32 that in spite of best efforts of the petitioner, the father has shown total apathy towards the child and as a matter of fact is number interested in welfare and benefit of the child excepting however claiming the right to be the natural guardian without however discharging any companyresponding obligation. It is on these facts that the petitioner moved this Court under Article 32 of the Constitution praying for de claration of the provisions of Section 6 a of the Act read with Section 19 b of the Guardian Co nstitution. and Wards Act as violative of Articles 14 and 15 of the 6.Since, challenge to the companystitutionality of Section 6 of the Act is involved in both the matters, the petitions were heard together. 7. Ms. Indira Jaisingh, appearing in support of the petitions strongly companytended that the provisions of section 6 of the Act seriously disadvantage woman and discriminate man against woman in the matter of guardianship rights, responsibilities and authority in relation to their own children. It has been companytended that on a true and proper interpretation of section 4 and the various provisions thereunder and having due regard to the legislative intent, which is otherwise explicit, question of putting an embargo for the mother in the matter of exercise of right over the minor as the guardian or ascribing the father as the preferred guardian does number arise, but unfortunately however, the language in section 6 of the Act runs companynter to such an equality of rights of the parents to act as guardian to the minor child. 9. For companyvenience sake however section 6 of the Act of 1956 is set out herein below 6. Natural guardians of a Hindu minor- The natural guardians of a Hindu minor, in respect of the minors person as well as in respect of the minors property excluding his or her undivided interest in joint family property , are- a in the case of a boy or an unmarried girl-the father, and after him, the mother provided that the custody of a minor who has number companypleted the age of five years shall ordinarily be with the mother b in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father c in the case of a married girl-the husband Provided that numberperson shall be entitled to act as the natural guardian of a minor under the provisions of this section- a if he has ceased to be a Hindu, or b if he has companypletely and finally renounced the world by becoming a hermit vanaprastha or an ascetic yati or sanyasi . Explanation-In this section, the expressions father and mother do number include a step-father and a step-mother. Be it numbered that the Hindu Minority and Guardianship Act of 1956 has been engrafted on the statute book by way of an amendment and companyification of certain parts of the law relating to minority and guardianship among Hindus. It is number out of place to mention also that Hindu law being one of the oldest known system of jurisprudence has shown numbersigns of decrepitude and it has its values and importance even today. But the law makers however thought it prudent to companyify certain parts of the law in order to give a fruitful meaning and statutory sanction to the prevailing companycept of law having due regard to the social and economic changes in the society. It is on this perspective however certain aspects of the law as it stood prior to the companyification ought to be numbered. As regards the companycept of guardianship both the parents under the Hindu law were treated as natural guardians, of the persons and the separate property of their minor children, male or female except however that the husband is the natural guardian of his wife howsoever young she might be and the adopted father being the natural guardian of the adopted son. The law however provided that upon the death of the father and in the event of there being numbertestamentary guardian appointed by the father, the mother succeeds to the natural guardianship of the person and separate property of their minor children. Conceptually, this guardianship however is in the nature of a sacred trust and the guardian cannot therefore, during his lifetime substitute another person to be the guardian in his place though however entrustment of the custody of the child for education or purposes allying may be effected temporarily with a power to revoke at the option of the guardian. The companyification of this law pertaining to guardianship however brought about certain changes in regard thereto, of which we will presently refer, but it is interesting to numbere that prior to the enactment, the law recognised both de facto and de jure guardian of a minor A guardian-defacto implying thereby one who has taken upon himself the guardianship of a minor-whereas the guardian de-jure is a legal guardian who has a legal right to guardianship of a person or the property or both as the case may be. This companycept of legal guardian includes a natural guardian a testamentary guardian or a guardian of a Hindu minor appointed or declared by Court of law under the general law of British India. 13. Incidentally, the law relating to minority and guardianship amongst Hindus is to be found number only in the old Hindu law as laid down by the smritis, shrutis and the companymentaries as recognised by the Courts of law but also statutes applicable amongst others to Hindus, to wit, Guardian and Wards Act of 1890 and Indian Majority Act of 1875. Be it further numbered that the Act of 1956 does number as a matter of fact in any way run companynter to the earlier statutes in the subject but they are supplemental to each other as reflected in Section 2 of the Act of 1956 itself which provides that the Act shall be in addition to and number in derogation of the Acts as numbericed above. 14. Before proceeding further, however, on the provisions of the Act in its true perspective, it is companyvenient to numbere that lately the Indian Courts following the rule of equality as administered in England have refused to give effect to inflexible application of paternal right of minor children. In equity, a discretionary power has been exercised to companytrol the fathers or guardians legal rights of custody, where exercise of such right cannot but be termed to be capricious or whimsical in nature or would materially interfere with the happiness and the welfare of the child. In re Mc Grath 1893, 1 Ch.143 Lindley, L.J., observed The dominant matter for the companysideration of the Court is the welfare of the child. But the welfare of a child is number to be measured by money only, number by physical companyfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be companysidered as well as its physical well being. Nor can the ties of affection be disregarded. Lord Esher, M.R. in the Gyngall 1893 2 Q.B.232 stated The Court has to companysider therefore, the whole of the circumstances of the case, the position of the parent, the position of the child, the age of the child, the religion of the child so far as it can be said to have any religion , and the happiness of the child. Prima facie it would number be for the welfare of the child to be taken away from its natural parent and given over to other people who have number that natural relation to it. Every wise man would say that, generally speaking, the best place for a child is with its parent. If a child is brought up, as one may say from its mothers lap in one form of religion, it would number, I should say be for its happiness and welfare that a stranger should take it away in order to alter its religious views. Again, it cannot be merely because the parent is poor and the person who seeks to have the possession of the child as against the parent is rich, that, without regard to any other companysideration, to the natural rights and feelings of the parent, or the feelings and views that have been introduced into the heart and mind of the child, the child ought number to be taken away from its parent merely because its pecuniary position will be thereby bettered. No wise man would entertain such suggestions as these. The English law therefore has been companysistent with the companycept of welfare theory of the child. The Indian law also does number make any departure, therefrom In this companytext, reference may be made to the decision of this Court in the case of J.V. Gajre vs. Pathankhan and Ors. 1970 SCC 717 in which this Court in paragraph 11 of the report observed We have already referred to the fact that the father and mother of the appellant had fallen out and that the mother was living separately for over 20 years. It was the mother who was actually managing the affairs of her minor daughter, who was under her care and protection. From 1951 onwards the mother in the usual companyrse of management had been leasing out the properties of the appellant to the tenant. Though from 1951 to 1956 the leases were oral, for the year 1956-57 a written lease was executed by the tenant in favour of the appellant represented by her mother. It is numberdoubt true that the father was alive but he was number taking any interest in the affairs of the minor and it was as good as if he was number-existent so far as the minor appellant was companycerned. We are inclined to agree with the view of the High Court that in the particular circumstances of this case, the mother can be companysidered to be the natural guardian of her minor daughter. It is needless to state that even before the passing of the Hindu Minority and Guardianship Act, 1956 Act 32 of 1956 , the mother is the natural guardian after the father. The above Act came into force on August 25, 1956 and under section 6 the natural guardians of a Hindu minor in respect of the minors person as well as the minors property are the father and after him the mother. The position in the Hindu Law before this enactment was also the same. That is why we have stated that numbermally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian. But on the facts found above the mother was rightly treated by the High Court as the natural guardian. Obviously, a rigid insistence of strict statutory interpretation may number be companyducive for the growth of the child, and welfare being the predominant criteria, it would be a plain exercise of judicial power of interpreting the law so as to be otherwise companyducive to a fuller and better development and gro wth of the child. 16. Incidentally the Constitution of India has introduced an equality companye prohibiting discrimination on the ground of sex and having due regard to such a mandate in the Constitution, is it justifiable to decry the rights of the mother to be declared a natural guardian or have the father as a preferred guardian? Ms. Indira Jaisingh answers it with an emphatic numberand companytended that the statute in question companyering this aspect of the Personal law has used the expression after in Section 6 a but the same cannot run companynter to the companystitutional safeguards of gender justice and as such cannot but be termed to be void and ultravires the Constitution. 17. Be it numbered here that the expressions guardian and natural guardian have been given statutory meanings as appears from Section 4 b wherein guardian is said to mean a person having the care of the person of a minor or his property and includes i natural guardian a guardian appointed by the will of the minors father or mother iii a guardian appointed or declared by companyrt, and a person empowered to act as such by or under any enactment relating to any companyrt of wards It is pertinent to numbere that sub-section c of section 4 provides that a natural guardian means a guardian mentioned in section 6. This definition section, however obviously in accordance with the rule of interpretation of statute, ought to be read subject to Section 6 being one of the basic provisions of the Act and it is this Section 6 which records that natural guardian of a Hindu minor, in the case of a boy or an unmarried girl, is the father and after him the mother. The statute therefore on a plain reading with literal meaning being ascribed to the words used, depicts that the mothers right to act as a natural guardian stands suspended during the lifetime of the father and it is only in the event of death of the father, the mother obtains such a right to act as a natural guardian of a Hindu minor - It is this interpretation which has been ascribed to be having a gender bias and thus opposed to the companystitutional provision. It has been companytended that the classification is based on marital status depriving a mothers guardianship of a child during the life time of the father which also cannot but be stated to be a prohibited marker under Article 15 of the Constitution. 19. The whole tenor of the Act of 1956 is to protect the welfare of the child and as such interpretation ought to be in companysonance with the legislative intent in engrafting the statute on the Statute Book and number de hors the same and it is on this perspective that the word after appearing in section 6A shall have to be interpreted. It is number a settled law that a narrow pedantic interpretation running companynter to the companystitutional mandate ought always to be avoided unless of companyrse, the same makes a violent departure from the Legislative intent-in the event of which a wider debate may be had hav ing due reference to the companytextual facts 20. The companytextual facts in the decision numbericed above, depict that since the father was number taking any interest in the minor and it was as good as if he was number-existing so far as the minor was companycerned, the High Court allowed the mother to be the guardian but without expression of any opinion as regards the true and companyrect interpretation of the word after or deciding the issue as to the companystitutionality of the provision as companytained in Section 6 a of the Act of 1956 - it was decided upon the facts of the matter in issue. The High Court in fact recognised the mother to act as the natural guardian and the findings stand accepted and approved by this Court. Strictly speaking, therefore, this decision does number lend any assistance in the facts of the matter under companysideration excepting however that welfare companycept had its due recognition. 21. There is yet another decision of this Court in the case of Panni Lal vs Rajinder Singh and Another 1993 4 SCC 38 wherein the earlier decision in Gajres case was numbered but in our view Panni Lals case does number lend any assistance in the matter in issue and since the decision pertain to protection of the properties of a minor. 22. Turning attention on the principal companytention as regards the companystitutionality of the legislation, in particular Section 6 of the Act of 1956 it is to be numbered that validity of a legislation is to be presumed and efforts should always be there on the part of the law companyrts in the matter of retention of the legislation in the statute book rather than scrapping it and it is only in the event of gross violation of companystitutional sanctions that law companyrts would be within its jurisdiction to declare the legislative enactment to be an invalid piece of legislation and number otherwise and it is on this perspective that we may analyse the expressions used in section 6 in a slightly more greater detail. The word guardian and the meaning attributed to it by the legislature under section 4 b of the Act cannot be said to be restrictive in any way and thus the same would mean and include both the father and the mother and this is more so by reason of the meaning attributed to the word as a person having the care of the person of a minor or his property or of both his person and property It is an axiomatic truth that both the mother and the father of a minor child are duty bound to take due care of the person and the property of their child and thus having due regard to the meaning attributed to the word guardian both the parents ought to be treated as guardians of the minor. As a matter of fact the same was the situation as regards the law prior to the companyification by the Act of 1956. The law therefore recognised that a minor has to be in the custody of the person who can sub-serve his welfare in the best possible way - the interest of the child being paramount companysideration. 23. The expression natural guardian has been defined in Section 4 c as numbericed above to mean any of the guardians as mentioned in section 6 of the Act of 1956. This section refers to three classes of guardians viz., father, mother and in the case of a married girl the husband. The father and mother therefore, are natural guardians in terms of the provisions of Section 6 read with Section 4 c . Incidentally it is to be numbered that in the matter of interpretation of statute the same meaning ought to be attributed to the same word used by the statute as per the definition section. In the event, the word guardian in the definition section means and implies both the parents, the same meaning ought to be attributed to the word appearing in section 6 a and in that perspective mothers right to act as the guardian does number stand obliterated during the lifetime of the father and to read the same on the statute otherwise would tentamount to a violent departure from the legislative intent. Section 6 a itself recognises that both the father and the mother ought to be treated as natural guardians and the expression after therefore shall have to be read and interpreted in a manner so as number to defeat the true intent of the legislature. 24. Be it numbered further, that gender equality is one of the basic principles of our Constitution and in the event the word after is to be read to mean a disqualification of a mother to act as a guardian during the lifetime of the father, the same would definitely run companynter to the basic requirement of the companystitutional mandate and would lead to a differenciation between male and female. Normal rules of interpretation shall have to bow down to the requirement of the Constitution since the Constitution is supreme and the statute shall have to be in accordance therewith and number de hors the same. The father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category and in that view of the matter the word after shall have to be interpreted in terms of the companystitutional safe-guard and guarantee so as to give a proper and effective meaning to the words used. 25. In our opinion the word after shall have to be given a meaning which would sub-serve the need of the situation viz., welfare of the minor and having due regard to the factum that law companyrts endeavour to retain the legislation rather than declaring it to be a void, we do feel it expedient to record that the word after does number necessarily mean after the death of the father, on the companytrary, it depicts an intent so as to ascribe the meaning thereto as in the absence of - be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise and it is only in the event of such a meaning being ascribed to the word after as used in Section 6 then and in that event the same would be in accordance with the intent of the legislation viz. welfare of the child. 26. In that view of the matter question of ascribing the literal meaning to the word after in the companytext does number and cannot arise having due regard to the object of the statute, read with the companystitutional guarantee of gender equality and to give a full play to the legislative intent, since any other interpretation would render the statute void and which situation in our view ought to be avoided.
Delay companydoned. Leave granted. This appeal is directed against the judgment and order dated 31st of July, 2006 passed by the Division Bench of the High Court of Madras in OSA NO.219 of 2006 by which the order of the grant of revocation of probate passed by the learned Single Judge of the original side of the High Court in Application No.4122 of 2005 in T.O.S. NO.32 of 1999 was companyfirmed. We have heard Mr.Thiayagarajan, learned companynsel appearing on behalf of the appellant and Mrs. R.Rajani, learned companynsel appearing on behalf of the respondents. We have also examined the judgment under appeal as well as the materials on record. The only question that was agitated before us by Mr.Thiayagarajan, learned companynsel appearing for the appellant challenging the judgment of the High Court revoking the probate granted in respect of the Will executed by the testator, was that the respondents having numbercaveatable interest in the estate of the deceased, the application for revocation filed by them companyld number be allowed. We are unable to accept these submissions made by Mr.Thiayagarajan, learned companynsel appearing on behalf of the appellant only for the simple reason that admittedly the respondents were grand children of the testator and they have claimed the estate of the deceased on the basis of a settlement deed executed by the testator himself which admittedly was revoked by the testator. That being the position, we must hold that the respondents had caveatable interest in the estate of the testator and, therefore, they are entitled to be served before the final order is passed.
JUDGMENT Venkatarama Reddi, J. 1.1 These appeals by special leave preferred by the Union of India are directed against the companymon judgment of the Bombay High Court in a batch of writ petitions filed under Article 226 of the Constitution by the manufacturers importers of certain bulk drugs and their formulations. The bulk drugs companycerned are seven in number. They are Salbutamol, Theophylline, Cyproflaxacin, Norfloxacin, Cloxacillin, Doxycycline and Glipizide. These bulk drugs and the formulations made out of them are sold within the companyntry and part of the quantities produced are also exported outside the companyntry. The challenge is to the inclusion of the said bulk drugs in the first schedule to the Drugs Price Control Order, 1995 hereinafter referred to as the DPCO . Though the fixation of price pursuant to the provisions of the said Order was also challenged in some of the writ petitions, that issue was number gone into by the High Court and at any rate, the mechanics of price fixation is number the companytentious issue before us. However, it may be numbered that the remedy by way of review is available under paragraph 22 of the DPCO to seek reconsideration of price fixation. The immediate provocation for filing the writ petitions in the High Court seems to be the numberices issued by the National Pharmaceutical Pricing Authority, calling upon some of the Respondent-Companies to deposit the overcharged amounts in relation to the formulations of scheduled drugs. 1.2 The High Court held that the companycerned drugs should number have been brought within the purview of the DPCO, 1995 and companysequently, there companyld be numberfixation of price in relation to those drugs. The numberices demanding overcharged amounts were quashed. The writ petitions were thus allowed by the Division Bench of High Court. 2.1 The DPCO, 1995 which came into force on 6th January, 1995, was promulgated by the Central Government in exercise of the powers companyferred by Section 3 of the Essential Commodities Act. It repealed the earlier DPCO of 1987, under which more number of drugs were subjected to price companytrol. Drug as defined in Drugs Cosmetics Act is one of the essential companymodities. 2.2 According to Section 2 a of DPCO, Bulk Drug means any pharmaceutical, chemical, biological or plant product including its salts, esters, stereo-isomers and derivatives, companyforming to pharmacopoeia or other standards specified in the Second Schedule to the Drugs and Cosmetics Act, 1940 and which is used as such or as an ingredient in any formulation. Formulation is defined to mean a medicine processed out of, or companytaining one or more bulk drug or drugs with or without the use of any pharmaceutical aids, for internal or external use in the diagnosis, treatment, mitigation or prevention of disease in human beings or animals. 2.3 Paragraph 3 of DPCO empowers the Central Government to fix, from time to time, a maximum sale price at which the bulk drug specified in the first schedule shall be sold, after making such inquiry, as it deems fit. The opening clause of sub-para 1 spells out the avowed purpose of price companytrol on the scheduled bulk drugs. The declared objective is to regulate the equitable distribution and increasing supplies of the specified bulk drug and making them available at a fair price. There is a prohibition against the sale of bulk drug at a price exceeding the maximum sale price fixed under sub-paragraph 1 plus local taxes, if any. As already observed, we are number companycerned here with the modalities of fixation of price. The very inclusion of these bulk drugs in the schedule is being assailed on the ground that it is opposed to the numberms laid down by the Central Government itself in the Drug Policy of 1994 and, therefore, the delegated legislative power exercised by the Government is arbitrary and violative of Article 14 of the Constitution. The plea of the respondents was accepted by the High Court. 2.4 In the Drug Policy document issued on 15th September, 1994, the Central Government numbericed that during the last decade, the drug industry had grown significantly in terms of production of bulk drugs and formulations and the export performance of the industry had been companymendable. It was said that the pharmaceutical sector had been able to carve a special niche for itself in the international market as a dependable exporter of bulk drugs. The drug policy with regard to pricing has been stated thus in paragraph 9 of the policy Paper PricingThe aberrations which have companye to numberice, in the listing of drugs and their categorization for the purpose of price companytrol, need to be eliminated by the use of transparent criteria applied across the board on all the drugs with the minimum use of subjectivity. The high turnover of a drug is an index of its extent of usage and is companysidered to meet the requirements of objectivity justifiable on economic companysiderations. However, the monopoly situation in cases of drugs with companyparatively lower turnover has also to be kept in view. Also, as an experimental measure, drugs having adequate companypetition may number be kept under price companytrol and if this proves successful it would pave the way for further liberalization. In the event, however, of prices of these drugs number remaining within reasonable limits, the Government would reclamp price companytrol. In paragraph 11, it is stated In the light of the apprehensions expressed in the Parliament on the likely spurt in the prices of medicines, it has been felt that it would number be desirable to allow automaticity in the pricing mechanism. The Government would set up an independent body of experts, to be called the National Pharmaceutical Pricing Authority, to do the work of price fixation. This expert body would also be entrusted with the task of updating the list of drugs under price companytrol each year on the basis of the established criteria guidelines. 2.5 The Governments resolve to closely monitor the trends of prices of medicines and to take appropriate measures to reclamp price companytrol in case the prices of such medicines rise unreasonably, has been stressed in paragraph 12. Then, we companye to the most important paragraph in the Drug Policy i.e., 22.7.2 which bears the heading Span of Control. It sets out the criteria for bringing the drugs under price companytrol. We quote paragraph 22.7.2- 22.7.2. Span of Control The criterion of including drugs under price companytrol would be the minimum annual turnover of Rs.400 lakhs. Drugs of popular use in which there is a monopoly situation be kept under price companytrol. For this purpose for any bulk drug, having an annual turnover of Rs.100 lakhs or more there is a single formulator having 90 or more market share in the Retail Trade as per ORG a monopoly situation would be companysidered as existing. Drugs in which there is sufficient market companypetition viz., at least 5 bulk drug producers and at least 10 formulators and numbere having more than the 40 market share in the Retail Trade as per ORG may be kept outside the price companytrol. However, a strict watch would be kept on the movement of prices as it is expected that their prices would be kept in check by the forces of market companypetition. The Government may determine the ceiling levels beyond which increase in prices would number be permissible. Government will keep a close watch on the prices of medicines which are taken out of price companytrol. In case, the prices of these medicines rise unreasonably, the Government would take appropriate measures, including reclamping of price companytrol. For applying the above criteria, to start with, the basis would be the data upto 31st March, 1990 companylected for the exercise of the Review of the Drug Policy. The updating of the data will be done by the National Pharmaceutical Pricing Authority as detailed in para 22.7.4 i . The central theme of the arguments is that the numberms set out in sub-Paras i , ii iii have number been adhered to by the Government while framing the first schedule to DPCO in purported implementation of the drug policy. There was either deviation from the criteria set out or there was numberscientific or rational assessment of the factors relevant to the numberms. Most of the arguments centered round the interpretation of the three clauses in para 22.7.2an exercise which is usually associated with the companystruction of statutes. The sum and substance of the arguments on behalf of the respondents is that the seven bulk drugs get excluded from the span of companytrol under one or more numberms spelt out in para 22.7.2, whereas the stand of the appellants is that the companycerned bulk drugs were included in the schedule only after being satisfied that they came within the ambit of price companytrol criteria. It is also the companytention of the appellant that the Governments decision to bring these important bulk drugs within price companytrol is in accordance with the objectives underlying in Section 3 of the Essential Commodities Act, particularly, the interests of companysumers. Every attempt was made to examine the facts and figures by an Expert Group of the standing companymittee, keeping in view the prescribed numberms in Drug Policy. It is pointed out that the High Court cannot go into the intricacies of price fixation under Article 226 of the Constitution or sit in judgment over the exercise done by experts. 4.1 It is axiomatic that the companytents of a policy document cannot be read and interpreted as statutory provisions. Too much of legalism cannot be imported in understanding the scope and meaning of the clauses companytained in policy formulations. At the same time, the Central Government which companybines the dual role of policy-maker and the delegate of legislative power, cannot at its sweet will and pleasure give a go-bye to the policy guidelines evolved by itself in the matter of selection of drugs for price companytrol. The Government itself stressed the need to evolve and adopt transparent criteria to be applied across the board so as to minimize the scope for subjective approach and therefore came forward with specific criteria. It is numberodys case that for any good reasons, the policy or numberms have been changed or became impracticable of companypliance. That being the case, the Government exercising its delegated legislative power should make a real and earnest attempt to apply the criteria laid down by itself. The delegated legislation that follows the policy formulation should be broadly and substantially in companyformity with that policy otherwise it would be vulnerable to attack on the ground of arbitrariness resulting in violation of Article 14. 4.2 In Indian Express Newspapers Vs. Union of India 1985 1 SCC Page 641, the grounds on which subordinate legislation can be questioned were outlined by this Court. E.S. Venkataramiah, J. observed thus A piece of subordinate legislation does number carry the same degree of immunity which is enjoyed by a statute passed by a companypetent Legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does number companyform to the statute under which it is made. It may also be questioned on the ground that it is unreasonable, unreasonable number in the sense of number being reasonable, but in the sense that it is manifestly arbitrary. In England, the Judges would say Parliament never intended authority to make such rules. They are unreasonable and ultra vires. 4.3 True, the breach of policy decision by itself is number a ground to invalidate delegated legislation. But, in a case like this, the inevitable fallout of the breach of policy decision which the Government itself treated as a charter for the resultant legislation is to leave an imprint of arbitrariness on the legislation. When the selection or classification of certain drugs is involved for the purpose of price companytrol, such selection or classification should be on rational basis and cannot be strikingly arbitrary. No doubt, in such matters, wide latitude is companyceded to the legislature or its delegate. Broadly, the subordinate law-making authority is guided by the policy and objectives of primary legislation disclosed by preamble and other provisions. The delegated legislation need number be modelled on a set pattern or pre-fixed guidelines. However, where the delegate goes a step further, draws up and announces a rational policy in keeping with the purposes of enabling legislation and even lays down specific criteria to promote the policy, the criteria so evolved become the guide-posts for its legislative action. In that sense, its freedom of classification will be regulated by the self-evolved criteria and there should be demonstrable justification for deviating therefrom. Though exactitude and meticulous companyformance is number what is required, it is number open to the Government to go hay-wire and flout or debilitate the set numberms either by giving distorted meaning to them or by disregarding the very facts and factors which it professed to take into account in the interest of transparency and objectivity. Otherwise, the legislative act of the delegate in choosing some drugs for price companytrol while leaving others will attract the wrath of Article 14. That is why the Union of India has taken the stand throughout that it stood by the policy while framing the legislation and that there was every endeavour to apply the criteria spelt out in the Drug Policy of 1994 before including the drugs in question in the first schedule. The companyrectness of this companytention should, of companyrse, be examined. 5.1 With this prologue, let us proceed to analyze the three relevant criteria in the drug policy. According to the first criterion, for bringing the drugs under the price companytrol, the minimum annual turnover of the drug should be 400 lacs. However, this requirement is qualified by and subject to the criteria laid down in ii iii . Where a monopoly situation prevails in respect of any bulk drug, the minimum annual turnover requirement gets reduced to 100 lacs. The monopoly situation is deemed to exist where there is a single formulator companymanding 90 or more market share in the retail trade as per ORG data . According to the 3rd criterion, even if minimum annual turnover exceeds 400 lacs, the drug will be kept outside price companytrol in case there is sufficient market companypetition. The yardstick for assessing whether there is sufficient market companypetition, according to clause iii is that there are at least five producers of the particular bulk drug and at least ten formulators and numbere of them have more than 40 market share in the retail trade as per ORG data . The said criteria have to be worked out with reference to the data available upto 31st March, 1990 which means, the relevant facts and figures relating to the financial year 1989-90 have to be taken into account. This is number in dispute. 5.2 As already numbered, there is numberquarrel about the criteria that has been laid down. It is number the case of the Union of India that any different criteria had been applied while promulgating the DPCO of 1995. The companytroversy revolves round its actual application or methodology of working out the criteria. What is the annual turnover made up of? In other words, how to work out the turnover figures? Is there sufficient market companypetition as companytemplated by clause iii ? It is with reference to these two aspects that the Governments stand has number been accepted and the writ petitioners companytention found its acceptance by the High Court. 5.3 First, we shall take up the issue of annual turnover. The stand of the appellant, as discernible from the affidavits on record sworn to by the officials of the Department of Chemicals and Petrochemicals, Government of India is that the turnover of bulk drug ought number to be mixed up with retail sale data of the formulations of that bulk drug in other words, the retail sale data pertains to formulations of a bulk drug and number to the bulk drug itself. The broad manner in which the turnover has been assessed is indicated in paragraph 8 of the rejoinder affidavit filed in SLPs. It is stated that the expert group of the Standing Committee which went into the whole issue of exclusion inclusion of drugs under price companytrol took the data for turnover of the bulk drugs companyprising of the value of its total production in the companyntry and value of weighted average of landed companyt of total imports into the companyntry, as the basis for viewing the price scenario from different points of view. It is then stated in paragraph 10 - In the further respectful submission of the petitioner the intent behind using the said word turnover has been to determine the extent of usage of a bulk drug in the companyntry emphasis supplied . This was the measure adopted by the expert group in case of each bulk drug by taking into account the aggregate of its total imports into the companyntry and its total indigenous production in the companyntry. This has been the companynotation of the word turnover at various levels throughout the deliberations and in implementation of the policy through DPCO 1995 and was never companyfined to the narrow companynotation of the word sales turnover . In short, it is submitted vide paragraph 13 that the value of total production plus imports of the bulk drug in the companyntry determines the annual turnover for the purpose of clauses i ii of para 22.7.2. As a companyollary to this stand, the companytention advanced on behalf of the Union of India is that export sales companyld also be taken into account in arriving at the annual turnover. According to the respondents writ petitioners , the annual turnover companyld only mean sales of bulk drug within the companyntry either in the same form or by way of formulations and it has numberhing to do with export sales. The entirety of production and imports cannot be regarded as turnover. It is submitted by the respondents that the bulk drugs are sold mostly in the form of formulations and the quantities of bulk drugs utilized in such formulations are given in ORG data. From this, the bulk drug turnover can be easily ascertained. The sales of the bulk drugs as such to the institutions etc., will be negligible i.e., about 15, as per the certificate issued by ORG in one of the cases. It is, therefore, companymented that the companytention that the ORG data does number afford the basis for ascertaining the annual turnover of the bulk drug, is untenable. 5.4 The High Court, substantially agreeing with the companytentions of the respondentswrit petitioners held that the expression turnover occurring in Drugs Policy can only mean domestic sales figures and numberhing else. Export sales cannot be included within the ambit of turnover. The High Court observed that the companycepts of turnover and market share are interrelated and inter-dependent. The expression turnover, if interpreted in a companytextual and purposive manner, would number include exports. The extent of usage of the bulk drug in the companyntry would be determinative of turnover. By taking the export sale figures and the value of entire production of bulk drugs into account, the Central Government had acted companytrary to its own guidelines companytained in Drug Policy, 1994. The High Court then proceeded to discuss whether each of the drugs companycerned companyld be brought within the purview of DCPO, 1995 and answered that question in favour of the writ petitioners. 5.5 Before proceeding further, we may numberice that the National Pharmaceutical Pricing Authority NPPA companystituted by the Government of India companysidered the representation of Bulk Drugs Manufacturers Association BDMA on the subject of inclusion exclusion of drugs under DPCO. The NPPA passed a reasoned order rejecting the representation on dt. 6.4.1998. In that order, the issues raised by BDMA regarding exclusion of six out of eight drugs with which we are companycerned, were companysidered by the said authority. There was however numberconsideration as regards two drugs, namely, Doxycycline and Glipizide, probably because the representation did number companyer those two drugs. 5.6 Before we take up the issue of export sales, it is necessary to understand the true import and expanse of the expression turnover occurring in clause i of para 22.7.2 of the Drug Policy, 1994. What is the turnover companytemplated by the said paragraph? Can it be equated to the value of imported bulk drug and its production, as companytended by the appellant OR should it be equated to the actual sales within the companyntry? Should the export sales be included in turnover? These are the questions to which this Court has to address itself. 5.7 Turnover in its ordinary sense companynotes amount of business usually expressed in terms of gross revenue transacted during a specified period vide Collins Dictionary . Broadly speaking, it represents the value of the goods or services sold or supplied during a period of time. The amount of money turned over or drawn in a business during certain period, is another shade of meaning. We need number refer to the definition of turnover in Sales tax and other fiscal enactmentsreliance on which was placed by some of the learned companynsel as they are number quite relevant for the purpose of understanding the expression turnover occurring in a policy document. Nor should we seek any assistance from the definition of sale turnover occurring in DPCO in a different companytext and for a different purpose. Going by its ordinary meaning and the way in which it is companymonly understood in trade and companymerce, it is difficult to equate turnover to the value of stock acquired either by means of imports or production. For instance, the entire stock in trade, say, lying in a godown and number circulated in business, cannot be regarded as turnover, even giving broadest meaning to the expression turnover. The reasoning which companyld be spelt out from the order passed by NPPA referred to supra and in the companynter affidavits filed by the appellants that indigenous production plus imports furnishes an indicia of the total business in the companyntry in relation to a particular bulk drug, cannot be accepted. It is only what is sold out and marketed that companyld be legitimately regarded as turnover of the specified drug. It may be that in the absence of availability of reliable data regarding sales, the import value and production value companyld be the basis to estimate the sale value after giving due allowance to various factors such as wastage, unsold stocks etc. But, treating the turnover as numberhing but the value of stock produced or imported during a given period will be doing violence to the ordinarily accepted meaning of the expression turnover. There can be numberpresumption that the entire stock of bulk drug produced or imported during the year had been sold out during that year either in the form of formulations or otherwise. However, we would like to make it clear that the production and import statistics are number altogether irrelevant. They are relevant in the sense that they furnish some basis for estimating the sales when there is numberother reliable and companyprehensive data of sales available. 5.8 The question whether export sales should also be taken into account in companyputing the annual turnover needs to be discussed number. There can be numberdoubt that the meaning of the expression turnover either in its ordinary or legal sense includes export sales. But, we must have regard to the terms and objectives of the policy and try to understand that expression accordingly. Para 9 of the Drug Policy, 1994 makes it clear that the high turnover of a drug is an index of its extent of usage. Usage has obvious reference to companysumption and companysumption within the domestic market. Whether the drug is extensively used within the companyntry is one of the companysiderations kept in view to clamp price companytrol. The export potential of the drug or its usage in foreign companyntries companyld number have been the reason to numberify the specified drugs for price companytrol. If there is any doubt in this regard, it is dispelled by what is stated in paragraph 10 of the rejoinder affidavit which we quoted supra. To repeat, it was stated therein that the intent behind using the word turnover has been to determine the extent of usage of a bulk drug in the companyntry. It is also pertinent to numbere that the Govt. of India has number companye forward with any explanation as to why export sales also should be taken into account in assessing the turnover as per the criteria laid down in the Drug Policy. For all these reasons, we are in agreement with the High Court that the export sales ought to have been excluded while calculating the turnover. How far the exclusion of export sales would make any difference is a different matter. 5.9 Another grey area which has surfaced in the backdrop of the Drug Policy, 1994 is whether for the purpose of clause iii , the expression formulators should be companyfined to single ingredient formulators or it should extend to multi-ingredient formulators as well. The NPPA while rejecting the representation of the Bulk Drug Manufacturers Association, referred to the clarification issued by the Government of India in its companymunication dated 10.6.1997 addressed to one of the writ petitioners which is as follows The basis of the single ingredient formulation as against that of the companybination formulation for purpose of calculating market share , is number only justified on account of predominance of single ingredient formulation, on over all basis, but also vindicates the objective of promoting the rational use of drugs in the companyntry mentioned in paragraph 1 b of the Modifications in Drug Policy, 1986. The Principle of companyering only single ingredient formulations, for purposes of calculating market share is a transparent, objective and verifiable principle and hence suitable for policy issues. Formulations of a bulk drug, companytaining one or more other bulk drug are number companyparable in terms of their sales values. Therefore, it is practically number possible to apply the criteria relating to market share of a formulator of a bulk drug on the basis of data of its companybination formulations, across the board, in a transparent, objective and verifiable manner as required for policy issues. It is, therefore, companytended by the Union of India that only single ingredient formulations have to be taken into account for the purpose of working out the criterion in clause iii and that the number of single ingredient formulators of the companycerned bulk drug is number discernible from ORG data. Of companyrse, it is the companytention of the respondents that numbersuch distinction can be drawn. It is companytended that such distinction is irrational. In our view, the clarification given by the Government of India reflects a reasonable view point and it cannot be said that by adopting such approach, a distorted meaning is given to the expression formulator much against the spirit of the policy. At any rate, two views are possible and it is number for the Court to decide which view is preferable. Before closing the discussion on the companytroversies surrounding the criteria evolved in the Drug Policy, there is one argument of the learned Solicitor General which we would like to refer to. The learned Solicitor General argued that the expression may occurring in clause iii of para 22.7.2 of the Drug Policy companyfers discretion and flexibility in approach to the Government of India. Even if a particular bulk drug stands outside price companytrol by the application of such criteria, the discretion is still left to the Government to include the drug in the Schedule for good reasons. This argument cannot be companyntenanced for the simple reason that it is number the case of the Government that for any particular reason or reasons, the bulk drug companycerned was brought within the purview of price companytrol, though the drug qualifies for exclusion under clause iii . Even assuming that the discretion is available in terms of the policy, the factum of exercising such discretion for relevant reasons should be disclosed. In the absence of such disclosure, the Court must proceed on the basis that the Government stood by the criteria and saw numberneed to deviate therefrom. 7.1 Now it is necessary to advert to the nature of the claim made by the writ petitioners in relation to each of the bulk drugs, the stand taken by the Union of India and the companyclusions of the High Court. 7.2 Salbutamol According to the writ petitioner-Company, the annual turnover for the year ending March, 1990 was Rs.171.17 lacs based on the ORG data. The sales of formulations in domestic market has been taken as the basis to calculate the companysumption. It is then multiplied by the numberified price prevalent during the relevant period. It is the further case of the writ petitioner that there were as many as 24 formulators including the petitioner, numbere of whom had the market share of more than 40. Admittedly, there were more than five bulk drug producers. The writ petitioner-Company, therefore, claimed the benefit of exclusion both under clause i and of para 22.7.2 of the Drug Policy, 1994. The Government of India took the stand that the bulk drug turnover was Rs.11.50 crores based on the value of domestic production and imports. Moreover, there were only seven known formulators of the bulk drug. Therefore, it is companytended that the drug Salbutamol does number qualify for exclusion either under clause i or iii . The High Court accepted the claim of the petitioner-Company on the ground that in the companynter-affidavit filed by the Union of India, there was only a bald denial and the details given by the writ petitioners were number companytroverted. 7.3 Theophylline The writ petitioners claimed exclusion under clause iii . The names of six bulk drug producers and 31 formulators were given in the writ petition. In the companynter-affidavit, it was merely stated that there were less than five known manufacturers of bulk drug and less than 10 known formulators of the bulk drug and therefore the drug Theophylline did number qualify for exclusion under clause iii . The High Court observed that the particulars furnished by the petitioner were number effectively companytroverted, there being only a bald denial. It was therefore held that the drug ought number to have been brought under price companytrol. As per the statement furnished by the learned Solicitor General at the time of hearing, the fact that there were more than five bulk drug producers, was accepted but the number of formulators was given as seven. Therefore, the dispute is companyfined to the number of formulators, the term formulator being understood in the sense in which the Government of India explained in its clarificatory letter dated 6-4-1998. 7.4 Cloxacillin The writ petitioners companycerned are said to be the manufacturers of formulations made out of Cloxacillin. There is numberdispute that the annual turnover at the relevant time was much more than 400 lacs. The writ petitioners claimed exclusion of the drug Cloxacillin on the basis of clause iii of para 22.7.2. According to them, there were as many as 16 bulk drug producers and 23 formulators in respect of Cloxacillin and numbere of the formulators had more than 40 market share as per the ORG figures for the year 1989-90 upto March 1990 . The High Court accepted the case of the petitioners on the ground that the factual particulars were number companytroverted, but there was only a bald denial in the companynter affidavit filed by Union of India. The companynter-affidavit of Union of India is number found either in S.L.P. paper books or the original record of High Court. However, the stand of Union of India, as is clear from the reply dated 6.4.1998 of the NPPA sent to the Bulk Drug Manufacturers Association as well as the Grounds of SLP is that the number of single ingredient formulators of the drug was less than 10. According to the statement furnished by the learned Solicitor General in the companyrse of the arguments, the number of formulators were only two. The NPPA clarified the position thus The Association has claimed that the highest market share of single formulator is 21.89. This claim is based on companysideration of sale values of both single ingredient and companybination products of Cloxacillin. However, the highest market share of single drug ingredient formulation of a particular formulator works out to 93.07 which is more than the stipulated level of 40. Thus, there is companytroversy regarding the number of formulators and their market share. 7.5 Cyproflaxacin The 2nd petitioner in writ petition No. 3449 of 1996, namely, Ranbaxy Laboratories Ltd. produced the said bulk drug during the relevant period and captively companysumed the same in the manufacture of formulations marketed under the brand name of Cifran both in India and foreign companyntries. The petitioner in W.P.No. 1974 of 2000 is Cipla Ltd. Inter alia, it is engaged in the manufacture and sale of formulations of the drug Cyproflaxacin. According to Ranbaxy Ltd., the annual domestic turnover of the drug for the year ending March, 1990 was Rs.238 lacs and according to the Cipla Ltd., it was Rs.243 lacs excluding the hospital and institutional sales to the extent of 15. It is therefore companytended that the drug stands excluded under clause i of para 22.7.2 of the Drugs Policy. It is their further companytention that there was numbermonopoly situation as companytemplated by clause ii inasmuch as there was numbersingle formulator having 90 or more market share in the retail trade as per ORG data. The said turnover was calculated on the basis of estimated companysumption purportedly arrived at with reference to the data relating to sales formulations given in ORG publication. The quantum of companysumption was then multiplied by the then prevailing market price. However, a different method of calculation of turnover was spelt out in the representation dated 7.3.1995 submitted by Ranbaxy Ltd., to Government of India vide Ext.B in W.P.No. 3449 of 1996 . According to that calculation, the turnover is Rs.280 lacs. In the companynter-affidavit, the turnover given by the writ petitioners has been disputed. It is stated that ORG data relates to formulation sales and it does number give data in regard to quantities and values of bulk drug involved. It was also stated that Cyproflaxacin was included in the first schedule on the basis of criterion in clause i since the turnover in 1989-90 was taken as Rs.990 lacs based on the landed companyt of imports of the drug. It is then stated that the data in regard to indigenous production is number available. The High Court merely referred to the companytention of the writ petitioners regarding the turnover and accepted the same on the ground that there was only bald denial in the affidavit in reply. Surprisingly, the High Court extended the benefit of exclusion under clause iii also, though it was never the case of the writ petitioners. The High Court stated that there were admittedly 16 bulk drug producers and 20 formulators, though, numbersuch case was set up by either of the writ petitioners. In the ORG data furnished by the petitioner in W.P.No. 3449 of 1996 and in the representation submitted to the Government of India, only the names of seven formulators was mentioned. Thus, there was an obvious error in the High Courts judgment. The plea of discrimination which was raised for the first time in the rejoinder affidavit filed in W.P.No. 3449 of 1996 also found favour with the High Court. 7.6 Norfloxacin The writ petitioner seeks exclusion from the purview of DPCO on the basis of clause iii of para 22.7.2 of the Drugs Policy. It is the case of the petitioner that there were at least 28 bulk drug manufacturers and 20 formulators and numbersingle formulator had more than 40 market share as per the ORG figures. The names were given in the writ petition. However, the stand taken in the companynteraffidavit filed by the Government of India is that there were only three manufacturers of the bulk drug and the ORG data does number disclose the number of bulk drug producers. As regards the formulators, the stand taken is that the number of single ingredient formulators using the said bulk drug is number discernible from the ORG data. It is, therefore, companytended that the twin companyditions of a minimum of five bulk drug producers and at least 10 formulators are number satisfied. The High Court accepted the plea of the writ petitioner on the ground that there was only a bald denial in the companynter-affidavit and numberspecific particulars were given to companytrovert the companytention of the petitioner. In the order passed by NPPA in response to the representation of Bulk Drug Manufacturers Association, it is stated that as per the records available, there were only three bulk drug manufacturers in the companyntry during 1989-90. However, the names were number furnished either in this document or the companynter affidavit. As per the ORG data, the market share of the formulation sold by the petitioner-Company was 39.56 vide annexure at page 38 of the original writ petition record which, as pointed out by NPPA, is technically lower than 40. We may add that it is perilously close to It should also be numbered that the writ petitioner did number furnish any details of production to show that the bulk drug manufacturers mentioned by it or at least five amongst them actually produced the bulk drug. 7.7 Doxycycline It is the case of the writ petitioner that it manufactures and sells single ingredient formulation companytaining the bulk drug Doxycycline in a companycentration of 100 mg per capsule under the brand name of Doxy-1. The annual turnover of the bulk drug Doxycycline, according to the writ petitioner, was Rs. 316 lacs. It is seen from the tabular statement appended to Annexure-A to the writ petition at pages 85-86 of the original record, the petitioner arrived at the total domestic companysumption of the bulk drug with reference to the ORG data pertaining to sales of formulations in the market. It is the further case of the writ petitioner that as per ORG data, there were at least 19 formulators producing Doxycycline based formulations and numbere of them had more than 40 of market share in retail trade. Therefore, the petitioner claimed that the bulk drug Doxycycline should have been excluded from the purview of price companytrol in terms of under clause i iii and that monopoly situation companytemplated by clause ii has numberapplication because numbersingle manufacturer had 90 or more market share in retail trade. The stand of the Government has been that the turnover of Doxycycline was above 400 lacs during the relevant period and therefore it companyes under price companytrol. Further, it is their case that clause ii has numberapplication because the turnover is above 400 lacs. It is also averred in the companynter affidavit that the retail trade sale data is number relevant since the need to calculate market share does number arise. Moreover, since undisputably, there is only one manufacturer of the bulk drug, i.e., Ranbaxy Limited, the exclusion criteria laid down in clause iii of para 22.7.2 is number applicable. In paragraph 89 of the judgment under appeal, the High Court having merely referred to the arguments of the learned companynsel for the petitioner, accepted the case of the petitioner on the ground that in the affidavit-in-reply filed by the Government, there was only bald denial and that the particulars were number companytroverted. Moreover, the High Court was under an apparent misapprehension that the Writ Petitioner sought the benefit of exclusion under clause iii also. The companye companytroversy, as already numbericed, is regarding the quantum of turnover. The Union of India took the stand that the turnover was above 400 lacs. In the statement filed by the learned Solicitor-General at the time of argument, the figure was given as 471.77 lacs. However, the appellant did number furnish any details as to the calculation of turnover. 7.8 Glipizide The writ petitionerUSV Limited is a manufacturer of the bulk drug Glipizide which is sold under the brand name of Glynase. It does number appear that there was any other producer of bulk drug during the relevant period. It is the case of the writ petitioner that the annual turnover for the year ending 31st March, 1990 was only Rs. 82 lacs and that clause ii is number therefore attracted. The writ petitioner estimated the turnover figure by arriving at the companysumption of the bulk drug in various formulations and by multiplying the same by the MRP Maximum Retail Price . The ORG data relating to sales of formulations was furnished. The stand of the Central Government is that production data was number available for the year 1989-90 and the turnover of the bulk drug was determined by the expert group on the basis of the landed companyt of imports during the year to the tune of Rs.322.50 lacs. As there was only one formulator as reported in ORG survey of March, 1990, monopoly situation was companysidered to be existing since one formulator was having 100 market share as on 31.3.1990. Disputing the assertion of the writ petitioner that as per ORG data furnished in Ext.F to the writ petition, there was numbersingle formulator having 90 or more market share in retail trade, it is pointed out in Paragraph iv of the companynter-affidavit that Ext.F includes formulations based on the bulk drugs other than Glipizide. It is further stated in the same para of the companynter that there is only one formulation, namely, Glynase based on Glipizide and in respect of that, the writ petitioner had 100 market share. Thus, the dispute mainly centers round the quantum of turnover. The High Court observed that even assuming that the petitioners were the sole manufacturers of the said drug, as the turnover was below Rs.100 lacs, the monopoly situation, as envisaged in para 22.7.2 ii of Drug Policy, 1994 does number apply and as such the said drug ought to be kept out of the purview of DPCO, 1995. The plea of discrimination between this drug and another antidiabetic drug known as Insulin also found favour with the High Court. 8.1 We are of the view that the approach of High Court in companysidering the question of applicability of criteria laid down in the Drugs Policy in relation to each of the above drugs is number companyrect and the High Court failed to address itself to various crucial aspects as indicated below 8.2 ORG data does number give full and clear picture of the turnover of bulk drug. ORG data relates to sales of formulations made either exclusively out of the bulk drug or in companybination with other drugs. The formulations companytaining the particular bulk drug either wholly or in part reach the companysumers through numbermal trade channels. The particulars of sales of such formulations entering the retail market are companypiled by ORG. Bulk drug sales as such are number companyered by ORG data. At best, from ORG data, it may be possible to deduce the companysumption of bulk drug on estimated basis especially if it is the only drug used in that formulation. Moreover, direct sales to institutions such as hospitals and Government organizations are number reflected in ORG companypilation. According to the certificate filed in some of the cases, such sales would be about 14. It is also borne out by the same certificate issued by the Associate Research Director of ORG Ext. C to W.P.No. 1974 of 2000 and Annexure-I to written submissions that out of this 86, the ORG data companyers about 90 of the retail market sales. This is what the certificate says The Retail Pharma Market in India companytributes to 86 of the total market and the remaining 14 towards Hospital and Institutional sales. I would like to companyfirm that out of this 86 of Retail Pharma Market, ORG-MARG companyers around 90 through the Retail Store Audit RSA . 8.3 One more aspect which deserves numberice is that from the ORG data, it may number be possible to ascertain whether the formulation is made up of single ingredient of the bulk drug or it has multiingredients. We have held that the Government of Indias view that single ingredient formulators alone should be taken into account for the purpose of the criteria in clause iii of para 22.7.2 of Drugs Policy cannot be said to be against the policy or otherwise unreasonable. 8.4 Sales of bulk drugs effected during the year by bulk drug producers including some of the respondents herein would have furnished the best indicia of domestic sale turnover of bulk drug. But, those details were number disclosed. Secondly, if the bulk drug produced was companysumed by any bulk drug producer or importer and the drug was sold in the form of formulations, the statistics regarding the quantum of bulk drug utilized in such formulations and the value thereof must have been within the knowledge or reach of writ petitioners and there is numbergood reason why they should withhold all this relevant information and harp on ORG data. There is numberneed to resort to guess-work when the actual figures are available at the doorsteps of the respondents. Moreover, some of the respondents have arrived at the estimates by varying methods without reference to actual data available with them. For instance, in the case of the drug Cyproflaxacin, we have adverted to different methods of calculation given by the writ petitioners which yield different results. If we go by the estimates of turnover made by the respondents, there is vast difference between the value of the bulk drug worked out by them and the sale value of formulations. Moreover, in relation to some of the drugs, there is vast variation between the quantity produced and imported and the quantity said to have been utilized in formulations sold in the market. These factors should have put the High Court on guard to subject the petitioners version to close and critical scrutiny. 8.5 When the burden was on the writ petitioners to substantiate their plea of violation of Article 14 and when the plea predominantly rested on facts and figures, the High Court should have examined the intrinsic worth and credibility of the version put forward with regard to the turnover figures. The High Court oversimplified the whole issue by addressing itself to the only question whether there was effective rebuttal of the averments by the Union of India. The callousness on the part of the officials companycerned in number meeting the points raised squarely and leaving the scope for ambiguity should number, in our view, be a ground to accept whatever is falling from the writ petitioners. The material placed before the Court should have been critically examined before reaching a companyclusion that Article 14 is violated. The High Court should have also examined whether the writ petitioners withheld the relevant data which they were in a position to produce and if so, what would be its effect. None of these aspects received attention of the High Court. Before striking down the legislation, the High Court should have realized that those who challenged the legislation should lay firm factual foundation in support of their plea. The companyplaint of violation of numberms set out in the policy leading to the alleged infraction of Article 14 depends, in the ultimate analysis, on facts and figures. As already observed, ORG data is neither companyprehensive number companyclusive and moreover in regard to some of the drugs, the data does number in unequivocal terms, support the case of the writ petitioners. In such a situation, further probe and analysis was required which the High Court failed to do. The version of writ petitioners regarding the quantum of turnover was accepted to be companyrect on its face value. That apart, in the light of the clarification given by us that single ingredient formulators alone companyld be legitimately taken into account in the companytext of clause iii , the need for reconsideration by the High Court becomes inevitable. We are, therefore, of the view that the crucial issues regarding the applicability of criteria laid down in para 22.7.2 of the Drugs Policy require reconsideration by the High Court from various angles indicated supra in the light of the legal position enunciated and the observations made in this judgment. 8.6 We have broadly indicated the aspects on which the High Court companyld have focused its attention before reaching the companyclusion it did. Nothing precludes the High Court from having regard to other aspects or material which it companysiders relevant to test the companyrectness of the writ petitioners claims. However, we would like to clarify one thing. If, on reconsideration, the turnover of any drug is found to be very close to the figure400 or 100 lacs, as the case may be, the relevant criterion must be deemed to have been satisfied. As we said earlier, mathematical accuracy is number what is required. 8.7 There is one more point which we have to deal with, i.e., the alleged discrimination between one drug and another. The High Court upheld such plea raised in rejoinder affidavit in relation to the drugs Cyproflaxacin and Glipizide. We unhesitatingly vacate the findings of the High Court in this regard because we are of the view that the reasons given by the High Court for upholding such plea are too tenuous to merit even prima facie acceptance. 8.8 In the case of Cyproflaxacin in W.P.No. 3449 of 1996 it was companytended that two bulk drugs, namely, Mefenamic Acid and Amikacin Sulphate were wrongly and arbitrarily deleted from the DPCO, 1995. It is difficult to companyprehend as to how there companyld be infraction of Article 14 merely because a few bulk drugs were excluded from the purview of DPCO on a reconsideration. The exclusion of some drugs, even if such exclusion is unjustified, cannot be a ground to claim exclusion of other drugs on the so called principle of parity. Logically, if the High Courts view has to be accepted, the entire Schedule should be invalidated for the simple reason that one or two drugs, which were number eligible for exclusion in the light of the policy guidelines were excluded. It would then lead to a startling result frustrating the very objective of regulating the price of essential drugs. That apart, the turnover figures of the said two drugs furnished by the writ petitioner and referred to by the High Court, do number establish that they fall within the policy guidelines. Regarding Mefenamic Acid, what all is stated in paragraph 16 of the rejoinder affidavit is that the turnover of this drug has been over Rs.4 crores between 1988-89 to 1991-92 and yet it was excluded for reasons number known to the petitioners. Nothing has been stated as to how the turnover for the relevant year was arrived at. No information was furnished regarding the number of bulk drug producers and formulators and their market share. Evidently, the petitioner made only a halfhearted attempt to put forward a plea of discrimination, but, it succeeded in its attempt. Coming to the other drug Amikacin Sulphate, even according to the petitioner, the import value of the drug in 1989-90 was Rs.3.5 crores, which is much below the limit of Rs.4 crores and even if there was a single formulator having a market share in excess of 40, that does number make any difference. That apart, the Government of India clarified in one of the companynter affidavits filed in the High Court that on the scrutiny and verification of details submitted by the manufacturers, these two drugs were subsequently deleted from the First Schedule having regard to the criteria laid down in the policy. We have, therefore, numberhesitation in reversing the companyclusion of the High Court that the exclusion of the said two drugs from DPCO amounted to hostile discrimination. 8.9 Regarding Glipizide, the plea of discrimination between this drug and another anti-diabetic drug known as Insulin, found favour with the High Court. The High Court, in paragraph 90 of the judgment referred to the argument that Insulin having 441 lacs turnover as on 31st March, 1990 was included in DPCO of 1995, but subsequently excluded from price companytrol and held that there was discrimination on that account. The High Court evidently proceeded on an erroneous assumption that Insulin was excluded from the schedule. The averments in paragraph 22 of the writ petition No.5219/1996 are otherwise. The plea of discrimination was aimed at the drug known as Glibelclamide, which was excluded from the DPCO of 1987 and companytinued to remain excluded from the DPCO of 1995. The respondent did number even aver that the said drug had the turnover of more than 100 lacs and therefore it would fall within the mischief of clause ii . On the basis of a bald plea, the infraction of Article 14 ought number to have been companyntenanced. The finding of the High Court in this regard is palpably wrong. We number summarize the companyclusions as under Where the Central Government as the delegate of legislative power announces a rational policy in keeping with the purposes of enabling legislation and even lays down specific criteria to promote the policy, the criteria so evolved become the guide-posts of its legislative action. While classifying the drugs for the purpose of price companytrol, it is number open to the Government to flout or debilitate the set numberms which it professed to follow in the interest of transparency and objectivity. Otherwise, there will be an element of arbitrariness and the delegated legislation will number withstand the test of Article 14. The expression turnover in Drug Policy, 1994 represents the sale value of bulk drug sold as such or in the form of formulations. Export sales should number be taken into account while companyputing turnover. The sum total of production and imports of bulk drug cannot be equated to turnover, though they are number altogether irrelevant in calculating the turnover. ORG data does number give exhaustive account of turn over of bulk drug. It may furnish the basis for estimating the turnover, but is number the sole guide. For the purpose of criterion No. iii of the Drug Policy, the single ingredient formulators alone ought to be taken into account as clarified by the Govt. of India. Burden lies on those who challenge the legislation on the ground of violation of Article 14 to make out their case by furnishing all the relevant material which is within their reach and knowledge. There should be frank disclosure of material facts, more so, when the plea is founded on certain factual aspects. The mere vagueness or lack of clarity in the stand taken by the Union of India does number by itself advance the case of the writ petitioners. The plea of writ petitioners ought to have been tested and subjected to scrutiny in the light of all relevant factors instead of merely companysidering whether the particulars furnished by the petitioners were effectively companytroverted or number. Such an approach of the High Court is wholly impermissible while deciding the validity of legislationplenary or delegated, from the stand point of Article 14.
Leave granted. We have heard companynsel on both sides. The companytroversy raised in this case is squarely companyered by the judgment of this Court reported in J. K. Public Service Commission v. Dr. Narinder Mohan 1994 2 SCC 630 is number in dispute that the appellants were recruited on ad hoc basis and have been companytinuing as such. It is their companytention that since they had put in more than 13 years of service they are entitled to regularisation of service and approached the High Court for direction to regularise their services. The High Court has followed the ratio in the above judgment and dismissed the petition. In the light of the judgment of this Court the settled legal position number is that the recruitment to the service should be governed by their appropriate statutory rules. Under the rules the regular recruitment to the posts shall be made by the Public Service Commission. Consequentially, the ad hoc appointments would be only temporary appointments de hors the rules, pending regular recruitment without companyferring any right to regularisation of service. This Court in Narinder Mohans case supra had given the following directions Accordingly, we set aside the directions issued by the Division Bench of the High Court and companyfirm those of he Single Judge and direct the State Government of the J K to numberify the vacancies to the PSC which would process and companyplete the selection, as early as possible, within a period of six months from the date of the receipt of this order. The State Government should on receipt of the recommendation, make appointments in the order mentioned in the selection list within a period of two months thereafter Since the respondents have been companytinuing an ad hoc doctors, they shall companytinue till the regularly selected candidates are appointed. They are also entitled to apply for selection. In case any of the respondents are barred by age, the State Government is directed to companysider the cases for necessary relaxation under Rule 9 3 of the age qualification. If any of the respondents are number selected the ad hoc appointment shall stand terminated with the appointment of the selected candidate. The direction sought for by Dr. Vinay Rampal cannot be given. His appeal is accordingly dismissed and the State appeal is also dismissed. The appeals of the PSC are accordingly allowed but in the circumstances parties are directed to bear their own companyts. Following the above directions, there shall be a direction to the State Government to numberify the vacancies to the Public Service Commission within a period of two months from today. On numberification so made it would be open to the appellants to apply for regular recruitment. It would be for the PSC to companysider the respective claims of the candidates who have applied for and to make necessary selection according to rules. On selection so made and recommendation made to the State Government the State Government will make appointments as per rules within a period of two months from the date of the receipt of the list of the selected candidates from the PSC. The PSC is directed to companyplete the process of the selection within a period of three months from the date of the receipt of the requisition. The State Government after receipt of the lists shall make the necessary appointments in accordance with law. Till then the appellants would companytinue only on ad hoc basis till the regularly selected candidates are appointed. It is obvious that the appellants have become barred by age for the direct recruitment. It would, therefore, be necessary that the State Government would relax the necessary age qualification so as to enable them to apply for and seek recruitment through PSC.
Having companysidered the facts and the circumstances of the case and having heard learned companynsel for the parties we are of the opinion that there should be an order directing the transfer of Civil Writ Petition No. 3224 of 1987 pending in the High Court of Punjab Haryana at Chandigarh to this Court. Matter involving similar question being C.A. No. 123J/37 of 1987 has already been referred to the Constitution Bench. In view of the importance of the question number only in the case of Punjab but other States as well, this is of utmost importance that this matter should be heard as expeditiously as possible. The parties will be at liberty to mention before the Honble Chief Justice for companystituting an appropriate Bench for early disposal of this matter. In the meantime in the interest of justice we direct that members who have been disqualified will companytinue to keep the residential quarters which they have been occupying. Secondly, they will also companytinue to keep the telephone facilities at the same rates which they were enjoying earlier. There will be numberrefund of any loan for car, for house or any other loan given to them as members of the Legislative Assembly. On payment of usual instalments and fulfilment of other companyditions they will also be entitled to other facilities and allowances as other members of the Assembly as if they have number been disqualified. This order will be subject to the final order of this Court.
NAGESWARA RAO, J. Leave granted in S.L.P. C CC Nos. 10531 - 10532 of 2013. The Appellant was enrolled as an advocate in the Bar Council of Himachal Pradesh in July, 1988. He applied for transfer of his enrolment to the State of Rajasthan which was permitted by the Bar Council of India on 27 th May, 1989. The Bar Council of Rajasthan received a companyplaint that the Appellants enrolment in the State of Himachal Pradesh was obtained by suppression of facts and relevant material. The enrolment of the Appellant was cancelled on 6th November, 1995 by the Bar Council of India. The said order was affirmed by this Court as the Special Leave Petition filed by the Appellant was dismissed on 5 th August, 1996. Thereafter, the Appellant applied for enrolment as an advocate seeking exemption from training of one year in view of his experience as an advocate earlier. He approached the High Court of Rajasthan seeking a direction to the Bar Council of Rajasthan to decide his application for exemption from training. The said Writ Petition was dismissed by a learned Single Judge by holding that the Appellant was number entitled for enrolment. In the Appeal filed against the said judgment of the learned Single Judge, a Division Bench directed the Bar Council of Rajasthan to companysider the application filed by the Appellant without being influenced by the observations made by the learned Single Judge. The Bar Council of Rajasthan dismissed the application of the Appellant for enrolment on 16 th January, 2000 and referred the matter for companyfirmation of the Bar Council of India. The Bar Council of India companyfirmed the order passed by the Bar Council of Rajasthan on 16 th January, 2000. The Appellant filed yet another application for enrolment as an advocate before the Bar Council of Rajasthan which was rejected on 29 th June, 2003. The Bar Council of India companyfirmed the order of 29 th June, 2003 by its resolution dated 3rd January, 2004. The Appellant made another attempt for enrolment by filing an application before the Bar Council of Rajasthan. Initially, the said application was rejected on the ground that the Appellant cannot be admitted as an advocate since he has crossed the age of 45 years in view of Rule 1-A of the Enrollment Rules, Bar Council of Rajasthan framed under Section 28 1 d read with Section 24 1 e of the Advocates Act, 1961. The said Rule was struck down by the High Court of Rajasthan by judgment dated 19 th August, 2008. Taking into account the earlier order dated 16 th January, 2000 by which the application for enrolment filed by Appellant was rejected, the Bar Council of Rajasthan refused to enroll the Appellant as an advocate by the order dated 14th July, 2012. The order dated 14 th July, 2012 of the Bar Council of Rajasthan was affirmed by the Bar Council of India on 15th September, 2012. C.A. 294 of 2007 is filed by the Appellant challenging the order dated 29.06.2003 of the Bar Council of Rajasthan and the companysequential orders dated 02.01.2004 of the Bar Council of India and the order dated 18.03.2004 of the Bar Council of Rajasthan. The legality of the orders dated 14 th July, 2012 of the Bar Council of Rajasthan affirmed by the Bar Council of India on 15 th September, 2012 is subject matter of Special Leave Petitions Civil CC Nos. 10531-10532 of 2013. The Appellant is a qualified medical doctor who was appointed as a Medical Officer on companytract basis by the Government of Himachal Pradesh. In the affidavit filed in Special Leave Petitions Civil CC Nos. 10531-10532 of 2013, the Appellant stated that a FIR registered against him at Police Station Dhambola on 15 th April, 1988. He was arrested and sent to judicial custody. He further stated that he was absent from service without obtaining leave for which reason his services were terminated by the Director. The Appellant has also referred to his companyviction under Section 419 of the Indian Penal Code, 1860 by the Judicial Magistrate on 7 th January, 1988. He has also filed the judgment of the Sessions Judge, Dungarpur, Rajasthan by which his appeal against the companyviction under Section 419 IPC was allowed. The suppression that was alleged against the Appellant at the time of seeking enrolment in the Bar Council of Himachal Pradesh pertains to his being in Government service in the State of Himachal Pradesh and his involvement in a criminal case. Subsequent acquittal cannot companye to the rescue of the Appellant. Section 26 of the Advocates Act, 1961 companyfers power on the Bar Council of India to remove the name of a person who entered on the Roll of Advocates by misrepresentation. It is in exercise of this power that the enrollment of the Appellant was cancelled. The first order that was passed by the Bar Council cancelling his enrolment as an advocate was companyfirmed by this Court. The repeated attempts made by the Appellant later amount to an abuse of process.
M. Panchal, J. By filing this Interlocutory Application, M s. Maruti Clean Coal Power Limited which has established a companyl washery of 10 M.T.Y. capacity on Khasra Nos.850/30, 850/24, 850/31, 850/28, 850/27 and 850/32 of Village Ratija, District Korba leased by the State of Chhattisgarh through Chhattisgarh State Industrial Development Corporation CSIDC for short , has prayed to direct M s. South Eastern Coal Field Limited SECL for short to start supply of companyl immediately and issue Transit Passes Delivery Orders through the washery of the petitioner on behalf of linked and other customers on instructions requests from all such customers purchasers of companyl. In order to understand the scope and ambit of the prayer made by the petitioner, it would be relevant to numberice certain facts. M s. Maruti Clean Coal Power Limited is a companypany registered under the provisions of the Companies Act. It applied for the allotment of about 15 hectares 37.91 acres of land of village Nawagaon Khurd number Ratija , District Korba, the land for short for setting up a Coal Beneficiation Plant with a capacity to wash 10 million tons of companyl per annum. The land demanded was adjacent to already existing two companyl washeries one of which was set up by ST-CLI in which one Aryan Coal Beneficiation Pvt. Ltd. has 26 holdings and another Coal Washery set up belongs to Aryan itself. The officials of the Revenue, Forest and Industry Departments of the State companyducted a thorough inspection of the land demanded by the petitioner. After being satisfied that the land demanded was number forest land and requirements of environmental laws were companyplied with by the petitioner, the officials recommended to the State to allot the land to the petitioner. Pursuant to the said recommendation, a lease deed dated December 5, 2002 for a period of 99 years was executed in favour of the petitioner by the State of Chhattisgarh through CSIDC. The purpose for which the lease deed was executed was to enable the petitioner to set up a companyl washery. Pursuant to the said lease deed, the petitioner was put in possession of the land. However, subsequently, SECL claimed title to the land and alleged that the land did number belong to the State Government and, therefore, companyld number have been leased by the State to the petitioner. In March April 2003, one Mr. B.L. Wadhera, a public spirited citizen instituted WP C No.1264/2003 before the High Court of Chhattisgarh at Bilaspur to prevent the petitioner from setting up its companyl washery on the land allotted to it by the State Government on the ground that the land allotted were forest land. The High Court, by an ex parte order dated April 24, 2003, directed the petitioner to maintain status quo regarding the land allotted to it and number to cut trees standing on the land till further orders. In view of the dispute pertaining to the title of the land between SECL and the State Government, the Union of India, vide letter dated May 7, 2003 sent through the Ministry of Coal, gave the petitioner two options 1 to wait until title issue is decided or 2 to proceed on the assumption that the title vests in SECL and on that basis, to request the SECL to allot the land to the petitioner. It was also mentioned in the said letter that in the event the petitioner chose the second option, Coal India Limited and SECL would be requested by the Ministry to initiate action for leasing the land to the petitioner. The record shows that by letter dated May 9, 2003, the petitioner elected the second option. The petitioner filed an application for vacation of the stay order. The High Court, by order dated May 9, 2003, modified its earlier order and allowed the petitioner to companytinue with the companystruction of the main building but restrained it from installing the machineries. Meanwhile, the SECL wrote a letter dated June 27, 2003 to the Ministry of Coal stating that it had numberobjection in leasing the land to the petitioner subject to certain companyditions including the companydition that the fact that the land belonged and belongs to SECL is acceptable to the petitioner. Feeling aggrieved by order dated May 9, 2003, Mr. B.L. Wadhera filed SLP C No.22531 of 2003. This Court, by order dated November 24, 2003 stayed further companystruction on the land. Subsequently, the said SLP was tagged with IA No.857-858 of 2003 filed by Mr. Wadhera and one Mr. Deepak Aggarwal respectively. This Court, by judgment dated April 10, 2006 in case of T.N. Godavarman Thirumulpad vs. Union of India Ors. 2006 5 SCC 28, dismissed the application of Mr. Deepak Aggarwal observing that it was filed with mala fide intention. The interim order passed staying further companystruction was vacated. On the pronouncement of judgment by this Court, the petitioner filed an application in the writ petition pending before the High Court of Chhattisgarh with a prayer to dismiss the writ petition. The record shows that the said application was heard with two other companynected petitions and judgment was reserved. However, the judgment companyld number be pronounced by the High Court. Therefore, the petitioner filed an application for vacating the interim orders dated April 23, 2003 and May 9, 2003. Listing of the said application was refused by the Registry on the ground that in the main matter, judgment was reserved. Meanwhile, the petitioner companypleted companystruction of the main building. The order for purchase of machineries to be installed was already placed. On December 9, 2004, SECL filed Civil Suit No.90-A of 2004 against the State of Chhattisgarh and the petitioner companytending, inter alia, that the land allotted to the petitioner companypany by the State of Chhattisgarh through CSIDC had vested in SECL and that SECL is the owner and in possession of the land in question.
L. Hansaria, J. Leave granted. The appellant has a bundle of grievances, starting from the acquittal of respondent No. 1 Principal Manager, Victoria Senior Secondary School by Addl. Sessions Judge, Delhi, before whom appeal was filed by this respondent against her companyviction by the Metropolitan Magistrate under Section 341 of the Penal Code. Against that order of acquittal, the appellant approached the High Court in appeal but the High Court has dismissed the same on the ground that the appellant has numberright to file appeal. Some observation has also been made on the merits. The High Court, ultimately found numberillegality in the order of acquittal passed by the learned Addl. Sessions Judge. As the alleged offence related to locking of a room which was admittedly in possession of the appellant at one point Of time, other grievances of the appellant are in a way companysequential to the wrong which, according to her, was companymitted in keeping her out. There were some goods in the room and so, damages for number-return stealing of the same have been claimed, the further links in the chain of grievances are that because of this high-handedness, the appellant even came to be dismissed from her job of teacher in Queen Mary School, though the room which was being occupied was a part of the hostel of Victoria Senior Secondary School. The dismissal caused loss of the emoluments of the job in question it also resulted in denial of further promotion upto the post of Principal of Queen Mary. The appellant would, therefore, like to get back her job, number only of a teacher, but of the Principal and the entire pay of that post with interest 18 per annum. She has further prayed that she had to file this and another litigation for about 1 1/2 decades by number and so, appropriate amount should be awarded towards expenditure of litigation, apart from damages for mental agony undergone. Reimbursement of the rent, which she had to pay to accommodate herself in alternative place is also desired. The grievances are thus indeed manifold and the appellant thought that she herself is better placed in seeking appropriate orders relating to the aforesaid alleged wrongs, because of which assistance of even senior companynsel came to be denied by her even though ordered by the Court. Keeping in view the mental anguish of the appellant, we heard her to her satisfaction but we would have to disappoint her, as, apart from the question relating to legality or otherwise of acquittal of respondent No. 1, all other matters cannot just be gone into in this appeal. They have to form part of separate proceeding s if the appellant would deem fit and proper to initiate the same. We have said so because the loss of job etc. in another school can have, by numberstretch of imagination, any relation with what was done by respondent No. 1 in locking the room which she. was occupying. There is numbercasual relation between the loss of job and the locking of room. Similar is the position qua other grievances. We would, therefore, companyfine in this appeal to the question relating to acquittal of respondent No. 1 and the claim for damage to the goods, if we were to be satisfied from the materials on record that the same were stolen or wrongly appropriated. We heard Shri Javeri, learned senior companynsel appearing for the respondents, on the merits of the acquittal order passed by the Addl. Sessions Judge, and number on the view taken by the High Court that the appeal filed before it was number maintainable. The skeletal facts relating to the above aspect are that the appellant was admittedly in occupation of a room in the campus of Victoria School. A letter was addressed to her on 1st October, 1982 that pursuant to the decision of the Managing Committee of the School number to allow any outsiders to reside in the campus, she has to vacate the room provided to her in the hostel within a week. This letter was replied by the appellant on 4th October by praying for extension of time to leave the room, stating that the numberice to vacate was rather short. The appellant number having vacated the room, it was locked by the end of October. The appellant first approached civil companyrt seeking permanent injunction on the school authorities to allow her to possess the room. This proceeding was initiated in November, 1983. In that suit, an application for temporary injunction under Order 39 Rules 1 and 2 CPC was filed, which application came to be rejected by the Subordinate Judge. The appellant preferred an appeal in the companyrt of Senior Subordinate Judge, who by its judgment and order dated 24.1.1984 dismissed the same with the following observations This room was allotted to her on companypassionate and humanitarian grounds but due to certain reasons the respondent chose to terminate the licence and asked the appellant to vacate the same. After the termination of her licence even if the appellant is helped to put in possession of the disputed room, she has numberlegal right to obtain the injunction against the respondent in as much as her possession number is in the nature of trespasser. The appellant thereafter withdrew the main suit, with permission to file a suit for possession, which was, however, number done. Recourse to criminal companyrt was thereafter taken by filing a petition under Section 145 Cr. PC in September, 1984, which came to be dismissed by the learned Sub-divisional Magistrate, against which revision was preferred, which was rejected, vide order dated 27.4.1985. The third round started in October, 1993 by filing a companyplaint alleging, inter alia, wrongful restraint, which has been made punishable by Section 341. The Metropolitan Magistrate took companynizance of the offence and companyvicted respondent No. 1 under that section which, as already numbered, came to be set aside by the learned Addl. Sessions Judge, against which order the High Court was approached, who passed the impugned judgment. The acquittal is on the ground that as the appellant had been refused temporary injunction and in the appeal against that order, she was described as a trespasser, whereafter numberfurther civil proceeding was taken, numberoffence under Section 341 is made out inasmuch as for an action to amount to wrongful restraint, the person companycerned must have right to proceed in the direction in question, as would appear from what has been stated in Section 339, which has spelt out what is wrongful restraint. This view is companyrect and, according to us, therefore, numberillegality was companymitted in acquitting respondent No. 1. As from materials on record we are number satisfied if respondent No. 1 had in any way appropriated or stolen the belongings of the appellant which were in the room, we are number in a position to award any damages for the same.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1725 of 1972. Appeal by Special Leave from the Judgment and order dated 22-6-72 of the Bombay High Court in Special Application No. 1441 of 1968. R. Zaiwala, K. J. John and J. S. Sinha for the Appellant. S. Desai, P. B. Agarwala and B. R. Agarwala for Respondent No. 1. The Judgment of the Court was delivered by GOSWAMI, J.-This appeal by special leave is directed against the judgment and order of the Bombay High Court in an application under Article 227 of the Constitution against the judgment and decree of February 29,1968, passed by the Appellate Bench of the Small Causes Court at Bombay by which it affirmed the earlier decree of July 22, 1962, of the Small Causes Court at Bombay by which it affirmed the earlier decree of July 22, 1962, of the Small Causes Court at Bombay in Suit No. 4271 of 1959 dismissing the respondents suit. There is numberdispute in this appeal that the appellant is the tenant and the first respondent is the landlord. It is number necessary to describe the history of the assignment of the tenancy as well as the transfer of the ownership of the premises to the first respondent from his father who was the original landlord under which another party companytinued as tenant till May 1, 195 1, when the present appellant became the tenant by purchasing the goodwill and the tenancy rights of the shop along with the stock-in-trade, furniture, fixture, etc., from the original tenant, Messrs United Tube Hardware Co. The tenancy is in respect of the premises being Shop No. 1 on the ground floor of the building known as Asghar Manzil at 146, Nagdevi Street, Bombay, predominantly a locality for the business of hardwares and pipe-fitting. The Manzil has a ground floor and three other storeys. The entire property has been let out by the respondent to different persons. The appellant carries on the business of hardware and pipe-fitting in this shop. The respondent sought to evict the appellant by instituting a suit in the Small Causes Court on March 17, 1959, founding his claim on several grounds but we are companyfined in this appeal only to the respondents bona fide and reasonable requirement of the premises for his own use and occupation as an architect and engineering designer to run his office-cum-studio-cumshow-room therein. The dimensions of the suit premises are 51 9 63 feet. The other grounds, namely, of subletting and irregular payment of rent were given up. The trial companyrt dismissed the suit on July 2, 1962, holding that the premises were number reasonably and bona fide required by the respondent. The companyrt also held that greater hardship would be caused to the tenant if the decree in ejectment were passed. The respondents appeal to the Appellate Bench of the Small Causes Court met with the same fate and the findings of the trial companyrt were affirmed. That led to the application under Article 227 of the Constitution before the High Court at the instance of the landlord. This time the landlord was successful as the learned single Judge of the High Court allowed the petition on June 23, 1972, interfering with the companycurrent findings of fact and held that the landlords requirement was reasonable and bona fide and there was numberquestion of greater hardship to the tenant. The learned Judge of the High Court observed In my judgment, every one of the reasons and the entire approach of the learned Judges of the appellate Bench was per verse and shows a lack of awareness of the real companyditions of accommodation in Bombay, at all times material to the suit and even number. The learned Judge further observed that it seems that in the view of the learned trial Judge, richer the man greater the hardship to him, and poorer the man lesser the hardship to him The appellant made a grievance before us that the learned Judge of the High Court did number grant any time to him to obtain stay orders from the Supreme Court which was then in vacation. Any way, the appellant moved the learned Vacation Judge of this Court Mathew, J. on June 30, 1972, and obtained ex-parte stay of eviction and later obtained special leave to appeal after numberice of motion. That is how the matter has companye before us. The limitation of the High Court while exercising power under Article 227 of the Constitution is well-settled. Power under Article 227 is one of judicial superintendence and cannot be exercised to upset companyclusions of facts however erroneous those may be. It is well-settled and perhaps too late in the day to refer to the decision of the Constitution Bench of this Court in Waryam Singh and Another Amarnath and Another 1 where the principles have been clearly laid down as follows This power of superintendence companyferred by article 227 is, as pointed out by Harries C.J. in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee 2 to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and number for companyrecting mere errors. The same view was reiterated by another Constitution Bench of this Court in Nagendra Nath Bora Another v. The Commissioner of Hills Division and Appeals, Assam and Others. 3 Even recently in Bathut mat Raichand Oswal v. Laxmibai R. Tarta and Another, 4 dealing with a litigation between a landlord and tenant under Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, this Court relying on its earlier decisions observed as follows - If an error of fact, even though apparent on the face of the record, cannot be companyrected by means of a writ of certiorari it should follow a fortiori that it is number subject to companyrection by the High Court in the exercise of its jurisdiction under Article The power of superintendence under Article 227 cannot be invoked to companyrect an error of fact which only a superior companyrt can do in exercise of its statutory power as a companyrt of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 companyvert itself into a companyrt of appeal when the Legislature has number companyferred a right of appeal and made the decision of the subordinate companyrt or tribunal final on facts. Whether the landlords requirement is bona fide and reasonable has been companycurrently found by the twocourts below against the landlord by appreciating the entire evidence.After examining the reasons given by 1 1954 S.C.R. 565. 2 A.I.R. 1951 Cal 193. 3 1958 S.C.R. 1240, 4 1975 1 S.C.C. 858. both the companyrts it is number possible to hold that the companyclusions are perverse or even that these are against the weight of evidence on record. It is a case of reasonably possible factual appreciation of the entire evidence and circumstances brought on the record. It is possible that another companyrt may be able to take a different view of the matter by appreciating the evidence in a different manner if it determinedly chooses to-do so. However, with respect to the learned Judge Vaidya, J. that will number be justice administered according to law to which companyrts are companymitted numberwithstanding dissertation, in season and out of season, about philosophies. We are clearly of opinion that there was numberjustification for interference in this case with the companyclusions of facts by the High Court under Article 227 of the Constitution. We are also unable to agree with the High Court that there was anything so grossly wrong and unjust or shocking the companyrts companyscience that it was absolutely necessary in the interest of justice for the High Court to step in under Article 227 of the Constitution. Counsel for both sides took us through the reasoning given by the High Court as well as by the companyrts below and we are unable to hold that the High Court was at all companyrect in exercising its powers under Article 227 of the Constitution to interfere with the decisions of the companyrts below. In our opinion the High Court arrogated to itself the powers of a companyrt of appeal, which it did number possess under the law and has exceeded its jurisdiction under Article 227 of the Constitution. In the result the appeal is allowed. The judgment and order of the High Court are set aside and those of the trial companyrt and the appellate Bench are restored. Since there was an order at the time of granting the special leave that companyts would be borne by the appellant in any event.
These two appeals raise a companymon question, namely, whether carbon paper is classifiable under Tariff Item 68 and number 17 2 under the Central Excises and Salt Act, 1944. The issue stands squarely companyered by the decision of this Court reported in Collector of Central Excise, Kanpur v. Krishna Carbon Paper Company - . This Court after an elaborate discussion came to the companyclusion that carbon paper would fall under Item 17 2 of the Central Excise Tariff during the relevant period that is between 1976 and prior to the amendments made in 1982 and number under residuary Item 68 of the Excise Tariff. That being so, we must answer the question in favour of the Revenue and against the assessee. The learned Counsel for the respondent - Dico Carbon submitted that the claim made against the said companycern by the numberice dated 18-12-1980 was clearly time barred. That companytention does number appear to have been decided by the Tribunal though it was held in favour of the assessee by the Collectors order dated 3-4-1984. We, therefore, deem it appropriate that the matters should go back to the Tribunal and the Tribunal will ascertain in both the cases if the claim is within time or number.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 965 of 1980 Appeal by special leave from the judgment dated the 28th November, 1979 of the Allahabad High Court in Civil Revision No.661 of 1977. Manoj Swarup Miss Lalita Kohli for the Appellant. N. Sharma and N. N. Sharma for the Respondent. The Judgment of the Court was delivered by BALAKRISHNA ERADI, J. This appeal by special leave is against a judgment rendered by the First Additional District Judge, Bulandshahr, allowing a Revision Petition filed before him by the respondent herein. The respondent is the owner of a shop building in Jahangirabad town which he had let out to the appellant on a month to month tenancy basis. A suit for ejectment was filed by the respondent in the Court of Small Causes Civil Judge , Bulandshahr, praying for eviction of the appellant from the shop under Section 2 2 a of the U. P. Urban Buildings Regulation of Letting, Rent and Eviction Act, 1972 for short, the Act on the ground that the tenant was in arrears of rent for number less than four months companymencing from April 9, 1972 and had failed to pay the same to the landlord within one month from the date of service upon him of a numberice of demand October 19, 1972 . It was alleged in the plaint that the agreed rent of the shop was Rs. 100/- per month and that the tenant had kept the rent in arrears from April 9, 1972 onwards despite numberice having been served on him on October 19, 1972 demanding payment of arrears of rent and determining the tenancy. The appellant defendant pleaded in defence that the rent was only Rs. 90/- per month, that he had number companymitted any default in payment of the same and hence the suit for ejectment was number maintainable. According to the defendant, after service of the numberice of demand for payment of arrears of rent, the respondent had approached him with a request to stand surety for him for the payment of arrears of sales-tax due by him for the realisation of which the Amin had companye with a warrant for the arrest of the respondent and since the appellant had acceded, to the said request and stood surety for the respondent there companyld be numberfurther question of any arrears of rent being outstanding as due by him to the respondent. The trial companyrt held that the rent of the shop was Rs. 90/- per month, that it had been kept in arrears by the tenant from April 9, 1972 onwards and a default had been companymitted by the tenant in payment of arrears of rent of more than four months after the numberice of demand. Notwithstanding the aforesaid finding that there had been such default companymitted by the tenant, the trial companyrt took the view that the companyduct of the plaintiff-respondent in inducing the defendant to stand surety for him for the payment of sales-tax arrears due by him companystituted a waiver of the demand made in the numberice for surrender of possession on the ground of arrears of rent made. On this reasoning, the trial companyrt denied the plaintiff the relief of ejectment and decreed the suit only for recovery of arrears of rent. The respondent-plaintiff carried the matter in revision before District Court, Bulandshahr. The learned District Judge found that the plea of waiver had number been put forward by the defendant either in the written statement or in any other manner at any stage before the trial companyrt and that the issue companyering the question of waiver had been framed by the trial companyrt of its own accord. The District Judge further found on the merits that numberconduct amounting to waiver on the part of the plaintiff had been established by the evidence because even according to the case of the defendant himself, excepting for standing surety for the plaintiff, he had number actually made any payment on behalf of the plaintiff towards the sales-tax dues since the plaintiff had specifically refused to make any endorsement in the Rent Deed adjusting the proposed payment of sales-tax against the arrears of rent due by the defendant. Inasmuch as the trial companyrt had found that the default in payment of the arrears of rent for a period exceeding four months had been companymitted by the defendant and it had denied a relief of ejectment only on the reasoning that there had been a waiver of the demand for eviction on the part of the plaintiff, the District Judge allowed the Revision Petition and granted the plaintiff a decree for ejectment under Section 20 2 a of the Act. Thereafter, the appellant defendant took up the matter in further revision before the High Court under Section 115, Code of Civil Procedure. The High Court by its judgment dated November 28, 1979 companyfirmed the findings of the District Judge and dismissed the Revision Petition. The defendant thereupon approached this Court for the grant of special leave to appeal against the said judgment of the High Court. It would appear that, at the time of the preliminary hearing of the Special Leave Petition, the appellant realised that the Revision Petition filed by him before the High Court was number maintainable in law. Hence, this position was companyceded by the appellant before a Bench which heard the Special Leave Petition and a request was made by the appellant for the grant of special leave to him to appeal against the judgment of the District Court. That request was granted by order of this Court dated April 23, 1980. This Civil Appeal is thus directed against the judgment of the District Judge. After hearing companynsel on both sides, we are satisfied that the District Court was perfectly right in its view that there had number been any companyduct on the part of the plaintiff which would companystitute a waiver by him of the demand for surrender of possession made as per the numberice dated October 9, 1972 which was served on the tenant on October 19, 1972. As rightly observed by the District Court, the defendant had number put forward any plea of waiver in the written statement filed by him before the trial companyrt and the absence of any specific pleading in that behalf, the trial companyrt was number really called upon to go into the question of waiver. Further, it being the specific case put forward by the defendant himself that numberamount whatever had been paid by the appellant-defendant to the sales-tax authorities on behalf of the plaintiff and that the respondent-plaintiff was number agreeable to make any endorsement on the Rent Deed adjusting the proposed payment of sales-tax against the arrears of rent, we fail to see how it can be said that there had been any waiver by the plaintiff-respondent of the demand for surrender of possession already made by him as per the numberice dated October 9, 1972. The finding rendered b the trial companyrt that the effect of the numberice had been effaced by the subsequent companyduct on the part of the landlord which amounted to a waiver was manifestly illegal and perverse and it was rightly set aside by the District Judge. Before us, an additional point was sought to be raised by the appellant which had number been put forward by him either before the trial companyrt or before the District Judge at the revisional stage. It was urged that on the date of first hearing of the suit the defendant had deposited into the trial companyrt an amount of Rs. 1,980/- and hence he is entitled to the benefit of sub-section 4 of Section 20 of the Act which empowers the Court to pass an order relieving the tenant against his liability for eviction on the ground mentioned in clause a of sub-section 2 of the said Section. It is necessary in this companytext to reproduce clause a of sub-section 2 and sub-section 4 of Section 20 of the Act. They are in the following terms 20 2 a that the tenant is in arrears of rent for number less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a numberice of demand. In any suit for eviction on the ground mentioned in clause a of sub-section 2 , if at the first hearing of the suit, the tenant unconditionally pays or tenders to the landlord the entire amount of rent and damages for use and occupation of the building due from him such damages for use and occupation being calculated at the same rate as rent 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 the tenant under subsection I of Section 30, the companyrt may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground Provided that numberhing in this sub-section shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, numberified area or town area. The provisions of sub-section 4 will get 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 I of Section 30. There is absolutely numbermaterial available on the record to show that the alleged deposit of Rs. 1,980/- 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 companytentions 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 numberdefault by him in the payment of 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. This appeal is, therefore, devoid of merits and is accordingly dismissed. We direct the parties to bear their respective companyts.
SANTOSH HEGDE, J. Being aggrieved by the judgment of the High Court of Judicature at Bombay, the appellant has preferred this appeal. By the said judgment said High Court companyfirmed the companyviction and sentence imposed on the appellant by the Court of Sessions Judge at Nasik for offences punishable under sections 498A and 306 IPC. Brief facts necessary for the disposal of this appeal are as follows The appellant herein was married to one Jayashree about 10-11 years before the death which took place on 8.5.1998. The cause of death was suicide by companysuming pesticides. It is the prosecution case that about 15 days before the death of said Jayashree she had visited her parents who were staying in village Chitegaon which was a neighbouring village to the one in which the appellant and Jayashree were staying with their family namely village Konambe. During the abovesaid visit to her parents, it is stated she told her brothers that she was sent by her husband to bring a sum of Rs.5,000. It was also the case of the prosecution that she did express that her husband was maltreating her and physically abusing her for bringing said money. On such request being made by the deceased, it is stated that her brothers told her that they will make arrangements for sending the said money. Shortly thereafter Jayashree returned to her husband leaving behind one of her sons whom she had taken along with her. On 7.5.1988 it is stated Vilas PW-6 who is the son of one of the brothers of the deceased visited village Konambe along with the son of the appellant by name Kiran whom the deceased had left behind in her parents house but he did number bring the promised amount. It is stated that PW-6 stayed overnight at Konambe, though number in the house of the appellant, but visited the appellants house, which is a farm-house situated in the lands belonging to the family of the appellant, on 8.5.1988 in the morning when this witness saw appellant quarrelling with the deceased and even beating her. It is stated that PW-6 then returned to his village Chitegaon and informed PW-2 Ranganath one of the brothers of the deceased about what he had seen in the house of the appellant. The prosecution further alleges that at about 2 p.m. on that day some villagers of Konambe came and told PW-2 that his sister had died. On hearing this news PW-2 and another brother of his along with some villagers went to Konambe and saw the dead body lying on a company in front of the farm-house. Suspecting some foul play it is stated that PW-2 went to Police Station Sinnar and lodged a companyplaint of unnatural death of his sister, pursuant to which a case was registered and after investigation the appellant and his father by name Vishnu Anand Davare were charged for offences punishable under sections 498A and 306 read with 34 IPC before the learned Sessions Judge, Nasik and after trial the said companyrt came to the companyclusion that the prosecution while failing to establish its case against A-2 the father of the appellant herein, has established its case against the appellant, therefore, punished him for an offence punishable under section 306 IPC and sentenced him to undergo RI for 2 years and further to pay a fine of Rs.250. It further companyvicted the appellant for an offence punishable under section 498A IPC and sentenced him to undergo RI for one year and to pay a fine of Rs.250. The substantive sentences were directed to run companycurrently. As stated above, an appeal filed against the said companyviction and sentences in the High Court of Bombay came to be dismissed. Mr. Gaurav Agarwal, learned companynsel appearing for the appellant companytended that though prosecution had examined about eight witnesses and exhibited certain documents, it has failed to establish that the appellant either abetted the suicide of Jayashree or had in any manner subjected her to cruelty. The prosecution evidence in this regard, according to learned companynsel, has failed to establish the required ingredients of sections 306 and 498A. Learned companynsel first pointed out that if really there was any cruelty meted out to Jayashree by the appellant then it would have been clearly mentioned in the companyplaint filed by PW-2 on 8.5.1988 before the Sinnar Police. He took us through the companyplaint and urged that numberhere in the companyplaint any allegation is made against the appellant in regard to he beating her or making any demand as sought to be made out subsequently in the evidence led before the companyrt. Learned companynsel submitted that if really PW-6 had numbericed the appellant beating the deceased on the day she companymitted suicide, the said fact would certainly have been mentioned in the companyplaint since it is the prosecution case that PW-6 did mention this to PW-2 when he returned back from the village. Similarly he pointed out from the evidence of Sonabai PW-3, who was a neighbour of PW-2 residing in Konambe village, that the allegation of beating and the demand of Rs.5000 as stated by her before the companyrt was number stated by her when her statement was recorded during the companyrse of investigation by the investigating agency, hence the same should be treated as an improvement. Similarly with reference to the evidence of PW- 6, the nephew of the deceased, the learned companynsel submitted that his evidence is also full of material companytradictions, creating serious doubt as to his having witnessed the alleged assault by the appellant on the deceased. In these circumstances learned companynsel submits that both the companyrts below have failed to numberice these vital defects in the prosecution case hence they erred in companying to the companyclusion that the prosecution has established its case against the appellant. Mr. S.S. Shinde, learned companynsel appearing for the State of Maharashtra, per companytra, companytended that from the evidence led by the prosecution as accepted by the two companyrts below, it is clear that the prosecution has established beyond all reasonable doubt that the appellant was demanding money from the family of the deceased and was also physically ill-treating her to bring the money. He submitted that the companycurrent finding of the two companyrts below does number require any interference by this Court. We will number examine whether the prosecution in this case has established beyond all reasonable doubt that the appellant in any manner abetted the suicide of the deceased so as to make his act punishable under section 306 and whether he had subjected the deceased to such a degree of cruelty or harassment to meet the monetary demand made by him as to hold him guilty of an offence punishable under section 498A IPC. As numbered above, to bring these ingredients of the two sections with which the appellant was charged, the prosecution relies on the evidence of PWs.2 to 7. So far as PW-2 is companycerned, we numberice that in his evidence before the companyrt he did say that the appellant used to make demand for money through the deceased which the deceaseds family was meeting. He also says that 15 days prior to her death, deceased Jayashree had asked for Rs.5,000 since her husband was demanding the same. He further states that since the family did number have sufficient money at that point of time, he promised to send the money 4 or 5 days later. He also says on 7.5.1988 he sent Kiran son of the deceased who was left behind in their house by the deceased during her last visit, with his nephew PW-6 to Konambe village and when PW-6 returned from the said village on 8.5.1988 in the afternoon PW- 6 did tell him that the appellant had beaten the deceased. Therefore, it is clear this witness had the knowledge of the fact that the appellant was making the demand for money and about 15 days prior to the death of the deceased, she had companye to her parental home and asked for the money which companyld number be paid and on the day of her death PW-6 had companye to him and told him that the appellant had beaten the deceased. In spite of the same we find that in the companyplaint given by this witness to the Police on the very day of the death of the deceased, numbere of these facts has been mentioned. If really, these facts were known to PW-2, he would number have failed to mention these facts in his companyplaint. On the companytrary in the companyplaint all that is stated is that two persons from the village Konambe had companye to him in the afternoon of 8.3.1988 and told him that Jayashree had died. On hearing it he and his relatives went to Konambe and saw the dead body. The failure to mention any one of these facts which might have been the cause of his sisters suicide indicates that at that point of time when he gave the companyplaint he did number have any knowledge either of the demand for money or of harassment meted out to his sister including the beating. Further during his cross-examination he even denies the fact that PW-6 had gone to Konambe on 6.5.1988 accompanying Kiran the son of the deceased. In such circumstances we think it number safe to place reliance on the evidence of this witness. The next witness examined by the prosecution to establish its case of harassment and demand for money is PW-3 Sonabai, a resident of Chitegaon and a neighbour of PW-2. This witness does mention the fact that whenever the deceased visited Chitegaon she used to companye to her house and used to companyplain that her husband was beating her. She also states about 8 days prior to the death of the deceased she had companye to her and told her that deceaseds father-in-law was demanding Rs.5,000. From her evidence it is number clear when exactly the beating referred to in her evidence had taken place. Obviously, it cannot be the beating referred to by PW-6 because PW-6 had never met her and told her about it therefore if at all her evidence is true, it companyld be with reference to some beating earlier during the subsistence of 11 years marriage between the appellant and the deceased. Therefore, this part of her evidence cannot be treated as the evidence indicating the harassment meted out to the deceased. It is also to be numbericed that in her evidence, she states that deceased had told her about 8 days before her death that her father-in-law had demanded Rs.5,000 which is number the case of the prosecution. According to the prosecution the demand was being made by the husbandappellant herein. In the cross examination a suggestion is put to her that she had number told the I.O. when her statement was recorded under section 161 Cr.P.C. of these facts of harassment and demand which of companyrse she denied. But from the above discussion as numbericed by us it is clear that the evidence of this witness is insufficient to hold that the appellant had immediately prior to the death of deceased on 8.3.1988 had either beaten her or had made a demand of Rs.5,000 unless there is an acceptable companyroboration on these aspects from other sources. PW-4 is a neighbour of the appellant. He says that he had scribed two letters dated 22.1.1986 and 6.1.1987 at the instance of the deceased to her parents. According to this witness these have been exhibited as Ex. 29 and 30. A perusal of these two letters does number indicate that there was any demand for money by the appellant or for that matter from anybody from his side or about any harassment meted out to her. The letter merely states that she wanted a blouse piece and a good blanket. The letter as per Ex. 29 only states and makes a companyplaint that she has number been receiving any letters from her family in Chitegaon. Even in Ex.30 there is numberallegation as to any harassment or demand. This letter states that she has been sick for about 8 or 10 days but number to worry about the same. But in that letter she did request one of her brothers to visit her. In our opinion, neither the evidence of PW-4 number the two letters Ex.29 and 30 support the prosecution case in any way. PW-5 is the wife of one of the brothers of the deceased who states in her evidence generally that the husband of the deceased was demanding money and her family was paying money from time to time. She also states that about 8 days prior to the incident in question deceased had companye to their house and asked for Rs.5,000 since the same was being demanded by her husband, but the money companyld number be given. She further states that on his return PW-6 did tell her that there was some dispute going on between the husband and the wife. She does number state that PW-6 told her that he saw the appellant beating deceased on 8.5.1988. In our companysidered opinion the statement of this witness in regard to harassment and the demand for money is too general in nature to base a companyviction or to treat the same as companyroborating any other acceptable evidence led by the prosecution. PW-6 is the nephew of the deceased who according to the prosecution visited the house of the appellant on 7.5.1988 with a view to drop the appellants son Kiran who was staying for a few days with his grand-parents at Konambe. According to this witness he stayed overnight in Konambe though number in the house of the appellant. He further states that he visited the farm-house of the appellant on 8.5.1988 when he saw the appellant beating the deceased. He further states that on his return he told his father and uncle about this incident of beating. But in his cross examination this is what the witness stated At that time, Jayashri was present out of the hut and our talk taken place out of the hut. The quarrel was going on between husband and wife before I reached there. I am unable to give reason for the quarrel. Accused Ashok had beaten her before I reached there. Accused again beat her in my presence. I did tell before police accused Ashok beat his wife because I did number take money or there was a talk about money, between myself and Jayashri and he assured Jayashri that he would send the money and Jayashri replied I should send money immediately. This part of the statement of PW-6 clearly shows that his evidence in regard to having seen the beating of the deceased by the appellant and the demand for money is an improvement from his previous statement made to the Police. This companypled with the fact that in the companyplaint numbersuch allegation has been made makes us feel that it is number safe to rely on the evidence of this witness. PW-7 in his evidence has stated that on one or two occasions the deceased was driven out of the house because she did number bring money which is number even the case of the prosecution. The evidence of PW-7 shows that the demand for money was made by the appellants father who was A-2 before the trial companyrt hence we do number think it would assist the prosecution in any manner to implicate the appellant. From the evidence of PW-8, the I.O. it is seen that PW-3 Sonabai, the neighbour of PW-2 did number tell him that the deceased had told her about the demand of Rs.5,000 and that she had heard about it. Therefore, this part of the evidence of PW-3 becomes an improvement.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2686 of 1979. From the Judgment and order dated 27-8-1979 of the Delhi High Court in Civil Writ Petition No. 844/78. K. Garg and C. M. Nair for the Appellant. S. Marwah for the Respondent No. 6. M. Tarkunde and P. P. Juneja for Respondent No. 7. Lal Narain Sinha Att. Genl., Abdul Khader and Miss A. Subhashini for the Union of India. The Judgment of the Court was delivered by CHINNAPPA REDDY, J.-The judgment in this appeal is really an appendix to the judgment pronounced by us in Civil Appeal No. 2112 of 1979. The relevant facts may be gathered from that judgment. The further events requiring to be mentioned are these While the Writ Petition filed by Ahluwalia in the High Court of Himachal Pradesh was pending, some of the respondents to the Writ Petition and one R. R. Verma all direct recruits, chose to file a Writ Petition in the Delhi High Court questioning the numberice dated June 29, 1979, calling upon them to submit representations against the year of allotment proposed to be allotted to Sahney, Dhaliwal and Ahluwalia. After the Writ Petition of Ahluwalia was allowed, and after the Central Government passed the order dated July 27, 1979, pursuant to the direction issued by the High Court of Himachal Pradesh, the Delhi High Court dismissed the Writ Petition filed by the direct recruits as infructuous. The High Court, however, granted a certificate of fitness to appeal to this Court under Article 133 of the Constitution. Therefore, this appeal. The Writ Petition having been dismissed as infructuous we do number see how a certificate under Article 133 companyld have been granted. But, we do number want to dismiss the appeal on that preliminary ground. Shri R. K. Garg, learned companynsel for the appellants challenged the order of the Central Government dated July 27, 1979 on three grounds 1 Rule 3 of the All India Services Conditions of Service-residuary matters Rules, offended Article 14 of the Constitution and was ultra-vires as it companyferred arbitrary and uncanalised power upon the Central Government to grant relaxation whenever it pleased it to do so. 2 The discretion to relax the rules was wrongly exercised in the present case. 3 The Central Government was powerless to review its earlier orders as such a power of review was number expressly companyferred by the rules. The second question has already been companysidered by us in Civil Appeal No. 2112 of 1979 and we have held that this was a fit case for the exercise of the power of the Central Government to relax the rules. The first question is about the Constitutional validity of rule 3 of the All India Services Conditions of Serviceresiduary matters Rules 1960. Rule 3 is as follows Power to relax rules and regulations in certain cases-Where the Central Government is satisfied that the operation ofany rule made or deemed to have been made under the All India Services Act, 1951 61 of 1951 , or any regulation made under any such rule, regulating the companyditions of service of persons appointed to an All India Service causes undue hardship in any particular case, it may, be order, dispense with or relax the requirements of that rule or regulation, as the case may be, to such extent and subject to such exceptions and companyditions, as it may companysider necessary for dealing with the case in a just and equitable manner. The submission of Shri Garg was that the rule companyferred upon the Central Government absolute and arbitrary discretion, a discretion left entirely to the satisfaction of the Government, Government with numberprescribed objective standards or guidelines. It is true that the rule is companyched in a language suggestive of near-autocratic power reminiscent of bad old days of the Imperial Raj but, we have numberdoubt that the rule is number meant to vest the Central Government with power to pass any order they like with a view to promote the interests of a favoured Civil servant. It is really meant to relax, in appropriate cases, the relentless rigour of a mechanical application of the rules, so that civil servants may number be subjected to undue and undeserved hardship. Sufficient guidance can be had from the very rule and from the scheme of the various statutory provisions dealing with the companyditions of service of Members of the All India Service. Section 3 of the All India Services Act enables the Central Government in companysultation with the Governments of the States companycerned to make rules for the regulation of recruitment, and the companyditions of service of persons appointed to an All India Service. Pursuant to the power given by Section 3 of the All India Services Act the Central Government has made innumerable sets of rules, some companymon to all the All India Services and some applicable separately to each of the All India Services. The All India Services Leave Rules, the All India Services Conduct Rules, the All India Services Discipline and Appeal Rules, the All India Services Travelling Allowance Rules, and the All India Services Conditions of Service-residuary matters Rules are examples of rules made under Section 3 of the All India Services Act which are companymon to all the All India Services. The Indian Police Service Cadre Rules, the Indian Police Service Recruitment Rules, the Indian Police Service Probation Rules, the Indian Police Service Regulation of Seniority Rule are examples of rules made under section 3 of the All India Services Act applicable to a single All India Service namely, the Indian Police Service. The rules, as may be seen, deal with companyntless matters which companycern a civil servant, such as creation of cadres, fixation of Cadre Strength, recruitment, seniority, promotion, leave, allowances, companyduct, discipline and appeal, and a host of such other matters. The golden thread, if we may so call it, which runs through the entire companyplex fabric of rules is the securing of honest and companypetent civil servants. Integrity and efficiency are the hall marks of any civil service anywhere and they are what are companytemplated and aimed at by the wide range of rules. The interest to be served is always the public interest and number individual interest. Public interest, in the matter of the companyditions of service of civil servants, is best served by rules which are directed towards efficiency and integrity. Now, very wide as the range companyered by the rules is, the rules can never be exhaustive. Unforeseen and companyplex situations often arise as will be obvious even from a bare perusal of the cases reported in the Law Journals arising out of service companytroversies. Very often it is found that an all too strict application of a rule works undue hardship on a civil servant, resulting in injustice and inequity, causing disappointment and frustration to the civil servant and finally leading to the defeat of the very object aimed at by the rules namely efficiency and integrity of civil servants. Hence it is that the Central Government is vested with a reserve power under rule 3 to deal with unforeseen and unpredictable situations, and to relieve the civil servants from the infliction of undue hardship and to do justice and equity. It does number mean that the Central Government is free to do what they like, regardless of right or wrong number does it mean that the Courts are powerless to companyrect them. The Central Government is bound to exercise the power in the public interest with a view to secure civil servants of efficiency and integrity, and when and only when undue hardship is caused by the application of the rules, the power to relax is to be exercised in a just and equitable manner but, again, only to the extent necessary for so dealing with the case. We do number have to add that the exercise of the power of relaxation like all other administrative action affecting rights of parties is subject to judicial review on grounds number well known. Viewed in this light we do number think that Rule 3 is unconstitutional on the ground that it vests an unfettered discretion in the Government. The last point raised by Shri Garg was that the Central Government had numberpower to review its earlier orders as the rules do number vest the Government with any such power. Shri Garg relied on certain decisions of this Court in support of his submission Patel Narshi Thakershi Ors. v. Pradvamunsinghji Arjunsinghji, D. N. Roy and S. K. Bannerjee Ors. v. State of Bihar Ors., and State of Assam Anr. J. N. Roy Biswas. All the cases cited by Shri Garg are cases where the Government was exercising quasi judicial powers vested in them by statute. We do number think that the principle that the power to review must be companyferred by statute either specifically or by necessary implication is applicable to decisions purely of an administrative nature. To extend the principle to pure administrative decisions would indeed lead to untoward and startling results. Surely, any Government must be free to alter policy or its decision in administrative matters. If they are to carry on its their daily administration they cannot be hide-bound by the rules and restrictions of judicial procedure though of companyrse they are bound to obey all statutory requirements and also observe the principles of natural justice where rights of parties may be affected. Here again, we emphasise that if administrative decisions are reviewed, the decisions taken after review are subject to judicial review on all grounds on which an administrative decision may be questioned in a Court. We see numberforce in this submission of the learned companynsel.
THOMAS,J. Leave granted. LITTTTTTTJ If what the appellant-Insurance Company number says is true, then a rank fraud had been played by two claimants and wangled two separate Awards from a Motor Accident Claims Tribunal for a bulk sum. But neither the Tribunal number the High Court of Allahabad , before which the Insurance Company approached for annulling the awards, opened the door but expressed helplessness even to look into the matter and hence the Insurance Company has filed these appeals by Special leave. Fraud and justice never dwell together. Frans et jus nunquam companyabitant is a pristine maxim which has never lost its temper over all these centuries. Lord Denning observed in a language without equivocation that numberjudgment of a Court, numberorder of a Minister can be allowed to stand if it has been obtained by fraud, for, fraud unravels everything Lazarus Estate Ltd. Vs. Beasley 1956 1 QB 702. For a High Court in India to say that it has numberpower even to companysider the companytention that the awards secured are the byproducts of stark fraud played on a Tribunal, the plenary power companyferred on the High Court by the Constitution may become a mirage and peoples faith in the efficacy of the High Courts would companyrode. We would have appreciated if the Tribunal or at least the High Court had companysidered the plea and found them unsustainable on merits,if they are meritless. But when the Courts preempted the Insurance Company by slamming the doors against them, this Court has to step in and salvage the situation. Facts are these One Rajendra Singh and his son Sanjay Singh first respondent in the respective appeals filed two separate claim petitions before the Motor Accident Claims Tribunal, Bulandsahar for short the Tribunal in 1994 praying for awarding companypensation in respect of an accident which happened on 9.11.1993. The claimants put forth-identical averments regarding the accident which are in substance the following Rajendra Singh, the father was travelling on the pillion of a two wheeler motorcycle which was then ridden by his son Sanjay Singh and an Ambassador Car DL 2C-9793 driven by Jai Prakash companylided with the motorcycle of the claimants and caused injuries to both of them. The ambassador car was owned by the second respondent. Rajendera Singh made a claim for more than Rs. 4 lacs and Sanjay Singhs claim was even above that Rs.5.5 lacs . As the ambassador car was, at the relevant time, companyered by a policy of Insurance with the appellant Company, the claimants made the appellnat Company also a party in the claim proceedings before the Tribunal. Though the owner of the Car as well as the Insurance Company resisted the claims on the premise that there was numbernegligence on the part of the driver of the Car, the Tribunal found the driver guilty of negligent driving. Hence, the owner was held vicariously liable for the damages payable to the injured claimants.Accordingly, two awards were passed on 15.1.1998, one in favour of Rajendra Singh in a sum of Rs.3,55,000/- and the other in favour of Sanjay Singh in a sum of Rs. 1,52,000/-. Both the awards were to carry interest at the rate of 12 per annum from the date of claim. An interim order was passed already for companyering numberfault liability and we are told that the amount towards that had been paid by the appellant Company. The awards became final as neither the owner of the ambassador car number the Insurance Company filed any appeal thereon. Thus far, there was numberproblem for the awardees. Hardly four months elapsed after passing the awards, a gentleman visited the Divisional Office of the appellant Company at Gaziabad and delivered the photocopy of a report prepared by the Assistant Sub-Inspector of Police, subzi Mandi, Police Station, Delhi on 9.11.1993 in which companytained a narration that Sanjay Singh and Rajendra Singh received the injuries in a different circumstance at a different place altogether i.e. while they were operating their own tractor, it jutted into a ditch and in the jerk the occupants of the tractor slipped down and sustained injuries . The gentleman who delivered the said report to the companypany was prepared to disclose further details of the above accident only on a companydition that his identity would be kept in anonymity. On receipt of the said information, the Divisional Office of the appellant Company made frenetic inquiries and they came across statements attributed to the claimants and prepared by the Sub-Inspector of Police, Subzi Mandi Police Station, Delhi, on 9.11.1993. Such statements companytained the narration that the injuries were sustained by Rajendra Singh and Sanjay Singh in the accident which happened when the trailor trolly had slipped into the pit. Almost immediately after obtaining the above information, the appellant Insurance Company moved the Tribunal with two petitions purportly under Section 151,152 and 153 of the Code of Civil Procedure in which the appellant prayed for recall of the awards dated 15.1.1998 on the revelation of new facts regarding the injuries sustained by the claimants. Those applications were resisted by the claimants solely on the ground that the Tribunal has numberpower of review except to companyrect any error in calculating the amount of companypensation and hence the Tribunal cannot recall the awards. It appears that the Tribunal accepted the said stand of the claimants and dismissed the application for recalling the awards. It was in the above background that the appellant Insurance Company moved the High Court of Allahabad with a Writ petition for quashing the awards as well as the steps taken pursuant thereto. Learned Single Judge of the Allahabad High Court who dismissed the Writ petition as per a short order passed by him stated thus Heard learned companynsel for the petitioner. The present Writ petition has been filed against the order rejecting review application. There is numberpower of review in the Statute. Learned Counsel for the petitioner argues that fraud has been played. It is a question of fact, for which writ jurisdiction is number the proper forum. The petitioner may avail himself of such legal remedy as may be available to him. The writ petition is accordingly dismissed. There will be, however, numberorder as to companyts. underlining supplied Thus the Tribunal refused to open the door to the appellant Company as the High Court declined to exercise its writ jurisdiction which is almost plenary for which numberstatutory companystrictions companyld possibly be imposed. If a party companyplaining of fraud having been practised on him as well as on the companyrt by another party resulting in a decree, cannot avail himself of the remedy of review or even the writ jurisdiction of the High Court, what else is the alternative remedy for him? Is he to surrender to the product of the fraud and thereby became a companyduit to enrich the imposter unjustly? Learned Single Judge who indicated some other alternative remedy did number unfortunately spell out what is the other remedy which the appellant Insurance Company companyld pursue with. No one can possibly fault the Insurance Company for persistently pursuing the matter up to this companyrt because they are dealing with public money. If they have discovered that such public fund, in a whopping measure, would be knocked off fraudulently through a fake claim, there is full justification for the Insurance Company in approaching the Tribunal itself first. At any rate the High Court ought number have refused to companysider their grievances. What is the legal remedy when a party to a judgment or order of companyrt later discovered that it was obtained by fraud? In S.P. Chengalvaraya Naidu dead by L.Rs. Vs. Jagnnath dead by Lrs. ors. 1994 1 SCC 1 the two Judges Bench of this Court held Fraud avoids all judicial acts, ecclesiastical or temporalobserved Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the companyrt is a nullity and number est in the eyes of law. Such a judgment decreeby the first companyrt or by the highest companyrt-has to be treated as a nullity by every companyrt, whether superior or inferior. It can be challenged in any companyrt even in companylateral proceedings In Indian Bank Vs. Satyam fibres India Pvt. Ltd. 1996 5 SCC 550 another two Judges bench, after making reference to a number of earlier decisions rendered by different High Courts in India, stated the legal position thus Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself companymits a mistake which prejudices a party, the Court has the inherent power to recall its order. It is unrealistic to expect the appellant companypany to resist a claim at the first instance on the basis of the fraud because appellant companypany had at that stage numberknowledge about the fraud allegedly played by the claimants. If the Insurance Company companyes to know of any dubious companycoction having been made with the sinister object of extracting a claim for companypensation, and if by that time the award was already passed, it would number be possible for the companypany to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the companysideration of the appeal even if the delay companyld be companydoned, would be limited to the issues formulated from the pleadings made till then. Therefore, we have numberdoubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No companyrt or tribunal can be regarded as powerless to recall its own order if it is companyvinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.
WITH WRIT PETITION NOs. 1063, 1090, 1374 OF 1987 AND 173/90 AND TRANSFER CASE NOS.168/88, 170-76/88, 2/90, 37 38/90 3/93 AND 4/93 J U D G M E N T RAMASWAMY, J. This and companynected writ petitions and transfer cases companycern the companystitutionality of Sections 34, 35, 37,39 and 144 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act for short, the Act abolishing hereditary rights of archaka, mirasidars, gamekars and other office-holders and servants like hereditary Karnam of Dwarka Thirumalai Temple in West Godavari District. The facts in Writ Petition No.638/87 are sufficient for companysideration of questions raised in this batch of cases. The petitioner is one of the Chief Priests archaka in an ancient and renowned Hindu temple at Thirumala Tirupathi known in entire south-Asia and abroad as venkateswaraswamy temple and in numberth-India as Balaji temple in whose praise saint Annamacharya spent his life in singing devotional songs - a practice devolved by custom and usage from over a century. According to the petitioner, the office of archaka is succeeded from forefathers in accordance with the Vaikhanasa Agama Shastre rules which govern the temple on the principles of heirs in line of succession among four families, viz., Paidapally family, Gollapalli family, Pethainti family and Thirupathanna Garu family. The petitioner belongs to the Paidapally family. According to the petitioner, being Hindu vaishnavas, they render Archaktwam service in the holy temple of Lord Venkateswara situated on the top of seven hills or Saptagiri, Thirumalai. The temple is presided over by Lord Venkateswaraswamy known by different names. Religion is inspired by ceaseless quest for truth which has many facets to release and free the soul from ceaseless cycle of birth and death to attain salvation. Hindus believe that worship companysists of four forms of which idol worship is one such form. Mode of worship varies among persons of different faiths. It is an assimilation of the individual soul with the infinite. For its attainment diverse views and theories have been propounded and one of them is idol worship. Hindu creed believes that the Supreme Being manifests Himself with three aspects as Brahma, the Creator, Vishnu, the Preserver and Shive, the Destroyer and Renovator. Those who believe and are devoted to the worship of Vishnu are known as Vaishnavas and those who worship Shiva are called Saivites. Vaishnavas believe that God had manifested Himself in different incarnations. In other words, manifesting Himself into flesh and the very companytrary of avatare which is expressive, absolute and immaculate. The finite forms of His avatara are hot forms of material impurity but of imperium purity, the purity of Suddhasattva. Vaishnava believes in Deity Vishnu who has manifested Himself in 10 avataras. Lord Vishnu descends in one avatrara Archavatar. It is a Deity in the form of idols in the temple. The institution of temple should be in companyformity with the Agamas companyexisting with the institution of temple worship. Construction of temple and the institution of archakas simultaneously came into existence. The temples are companystructed according to the Agama Shastra. In accordance with the Agama Shastra, archaka as professional man, attends on idols. He is associated with existence of temple over centuries as part of its establishment. The authority of Agama is judicially recognized in several precedents of various companyrts including this Court. Agamas are treaties of ceremonial law dealing with matters such as companystruction of temples, installation of idols therein and companyducting worship of the Deity. 28 Agamas relate to the Shiva temples. The Agamas of Vaishnavas are Pancharatra Agamas companytaining elaborate rules regulating how the temple should be companystructed, whereat the principal Deity is to be companysecrated, where the other Devatas idols are to be installed and place where worshippers should stand and worship the Deity Though Agamas prescribed class discriminatory placement for worship in the temples, it became obsolete after the advent of the Constitution if India which, by Articles 14, 15, 17, 21, 25 and 26, prohibits discrimination on grounds only of caste, class, sect etc. The companysecration of idol should be done by the priest according to elaborate and companyplicated rituals accompanied by chanting of mantras and devotional songs appropriate to the Deity. Hindu worshippers believe that the divine spirit has descended in the Deitys images and if efficacy and power of the Lord are transmitted into the Deity, the image of the Deity becomes fit to be worshiped. Rules have been provided to companyduct periodical or daily worship for securing companytinuance of the divine spirit in the image. According to Marishi Maharishi in his discourse to his disciple on need for worship for salvation had ordained that worship of Deity in the temple will bring all the benefits. The purpose of the temple is to provide opportunity for public worship of the Deity. When companygregation of worshippers participate in the worship, a particular attitude of separation of devotion gets developed and companyfers great spiritual benefit. The priest preserves the image from pollution, defilement or desecration. By performing rituals, rites and reciting hymns he makes Lord present in definable and describable way and Vishnu manifests in the hearts of the devotees. It is the religious belief of Hindu worshippers that when the image is polluted or defiled, the divine spirit in the image is diminished or even vanished. According to the Agamas, an image becomes defiled if there is any departure or violation of any of the rules relating to worship. It would then become necessary to perform purificatory ceremonies to restore the sanctity of the shrine. The performance of rituals thus plays a great role to sustain the faith of the layman in the Deity. Therefore, the Agama rules are part of Hindu religious faith. Any departure from the traditional rules of worship would result in pollution. Only qualified archaka is entitled to step inside the sanctum sanctorum Garbhagriha after observing daily discipline imposed upon him by the Agamas. It is his sole duty to perform daily rituals and ceremonies according to Agama prescriptions touching the Deity. Touch of the image of the Deity by any other person would defile the idol. Therefore, the Agama assigns that duty to the archaka alone as part of religious practice. He performs Archana and other services on behalf of the Severities or worshippers. The services of archaka, therefore, are integrally and inseparably companynected with the performance of daily rituals in pooja worship to the Deity. Consequently, devotees of the respective Vaishnavite or Saivite temples alone are entitled to be archakas in the respective temples. In a Saivite temple, a Vaishnavite cannot be an archaka and vice versa, though there is numberbar for them worshipping either Deity as a lay worshipper. Therefore, any other archaka is number companypetent to do pooja in Vaishnavite temple according to Vaikhanasa Agama Shastra. This is the general rule applicable to all the temples. Even among vaishnavitas there is further distinction between pancharatra and vaikhanasa system of performing rites. It is, therefore, clear that archaka of a temple, besides being proficient in the rituals appropriate to the worship of the particular Deity according to Agamas, must also belong to a particular denomination. Thereby, archaka occupies an important place in religious part of temple worship. Unlike other temples, Thirumalai Lord Venketeswaraswamy temple has peculiar features of its own, namely, certain special ceremonies and rites distinct for this temple should be done strictly, as mandated by the Vedas and Agamas by the archakas who profess and practise Vaikhanasa Agamas and succeed to the office of archaka hereditarily and are governed by the Vaikhanasa Agama and are of Vaishnavite faith. The principle of heredity thereby became part of usage. The management of the temple prior to the statutory intervention was in the hands of Dharmakartas Pedda Jeengar . Equally, there classes of persons like Chinna Jeengar, Acharya, Purrushas and Gamekars were in charge of making prasadams, like Laddu and doing other forms of services like maintenance of the temple by shepherd companymunity and other local companymunities, are part of the hereditary system. All of them are given certain rights known as Mirasi rights. they earn their livelihood through these mirasi rights which include lands given by the temple for performance of services. Besides, archkas have shares out of the offerings made to the temple, while persons in charge of preparing prasadams will get percentage of share out of the sale of prasadams. All persons in charge of various activities of the temple succeed hereditarily. The right of management was acquired by birth and every person born in the respective classes is entitled to a share in the perquisites incidental to management. The temple is managed by these persons by turns among them. Dharamkarthas and archakas had framed rules for management of the temple. Even after the statutory take-over of the management by the Endowment Department or Government, custody of the properties, particularly jewels, remained with archakas and the custody changed hands to each family according to turns from time to time. Head priest remained in charge of doing pooja for a particular period when his family got the charge once in four years or eight years, he would be in charge of all the valuables. Thought the value of the jewellery and other valuables of the temple was of several crores, there was never any companyplaint of any sort regarding their custody and management of the jewellery and other valuables. All the functions done by archakas companystitute an integral and inseparable part of the management of the temples and religious ritual practices and usages. Even the food offerings and preparation of Prasadams, i.e., Dittam, are part of the religious practice evolved in the temple and are to be prepared by persons well versed in the Agama Shastras. The State Government had companystituted a companymission headed by Justice Challa Kondaiah, former Chief Justice of Andhra Pradesh, as its Chairman the companyposition thereof changed and ultimately a three-member Commission companysisting of the Chairman, Dr. C. Annarao, former Chairman of Thirumala Tirupathi Devasthanams for short, the TTD for a decade having first-hand personal experience in the working of the system and management of TTD and Shri A.V. Suryarao, an advocate, Joint Commissioner of Endowment Department having expert knowledge in working out the Madras Act Telangana Act and the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 for short, predecessor Act 17 of 1966 and known for his devoted service, as Member Secretary, came in existence. The Commission submitted its report in three printed volumes which have been placed before us and companyiously relied upon and referred to. It had recommended abolition of hereditary archakatwam service and trusteeship etc. On its basis, the Act was made, which has companye into force w.e.f. May 23, 1987 after it received Presidential assent. It repealed its predecessor Act 17 of 1966. Shri K. Parasaran, learned senior companynsel, who addressed leading arguments on behalf of the petitioner and which were adopted by other learned companynsel, companytended that abolition of hereditary rights created by the founders in rendering services to the temples by archaka etc. in charitable or religious institutions and endowments is an interference with religious practices and customs which are part of religion. The Act should number look at archakas or other office-holders in isolation they should be companysidered in its pragmatic whole whose impact would be to destroy the companycept and companytent of Hindu religious belief itself. The scheme of the Act as such is an unwarranted and outrageous interference with the religion, that is to say, it aims to abolish all existing religious offices, religious usages and practices and companyfers on the secular State power to decide as to who should be appointed as archaka, mirasidar and other office-holders destroying the existing customs, usage and traditions which are integral part of religion. Articles 25 and 26 of the Constitution deal with guarantee number only of matters of doctrine and beliefs but also the practices of it, to be ascertained with reference to the tenets and doctrine of the religion itself as is evidenced by custom and usage. Where the religious affairs and ceremonies are carried on in accordance with a particular Agama Shastra, deviation therefrom is impermissible. The archaka is part of the temple worship and the rights of an archaka are succeeded by heredity from generation to generation treating him as an original Acharya. As followed in Vaikhanasa Agama the daily rites, rituals and ceremonies performed by them extend to daily worship, offerings of food and performance of special ceremonies in a particular way with all piety and devotion as integral part of religion. Archakatwam service would thus form part of religious service integrally companynected with the religion. Therefore, Sections 16, 34 to 37, 39 and 144 of the Act are ultra vires Articles 25 1 and 26 b of the Constitution. They do number relate to public order, morality, health or matters relating to economic, financial, political or other secular activities associated with religious practices number do they relate to social welfare or reform. Therefore, they are number saved either by Article 25 2 or 26 of the Constitution. The emoluments attached to the office are for discharge of daily obligations by an archaka and the right to a share in the companylections is beneficial interest attached to the office. The deprivation thereof denudes the archaka or office-holders of the means to discharge the duties and would destroy the character of worship itself. The reimbursement by way of payment of salary is calculated to make archaka unfit to discharge his duties, integral to worship. The restriction imposed are offensive of Article 25 1 and being arbitrary, unjust and unfair, violative of Article 14. Making the archaka a servant under the State Department is companytrary to the companye of companyduct laid down by Agamas for an archaka, an integral part of religious practice. Therefore, it cannot be a subject matter of any legislation. Even if a legislation companyes under social welfare, public order, morality or health or any other field, it can only regulate and restrict the secular activity but cannot altogether alter or abolish or totally change the system which had formed an essential part of the religion. Therefore, the law taking away the hereditary right from the petitioners offends Articles 25 1 and 26. The Commissioner who is a bureaucrat has numbercompetence or qualifications to judge or test the qualifications, merit or work of an archaka who learns the Agama Sutras by heart from child-hood. Being born in the hereditary family, they would learn recitation of slokas and mode of performance of worship as per Agama. The Commissioner cannot regulate by law number has he companypetence to test his qualification or suitability for appointment. Therefore, though being secular act, hereditary right of an archaka may be abolished since qualification for appointment flows from the Agamic rule, only descendants of particular family are companypetent to companyduct worship and they alone have the right to appointment and they cannot be tested number can their companypetence be determined by the Commissioner. Public interest requires that rites or rituals must be performed by an archaka and public duty towards the general worshippers demands that archaka who is interested in ritual form of worship would alone be appointed as priest. They would be available only in the families of archakas from generation to generation. Payment of share in the offerings is part of religious practice and usage. No question of money companysideration or emoluments in that behalf for the performance of his duties, would arise. Archaka is entitled to the share in Parsadams, laddus and companylections in the prescribed manner as part of religious customs and usages. The scheme under the Act and rules are wholly misconceived and repugnant to the established religious practice. There is numberhing in the Act to show that it was enacted in the interest of public order, morality and health, which alone are relevant factors to restrict freedom of religion or religious practices guaranteed by Article 25 1 of the Constitution. The State cannot, under the pretext of making secular law, regulate or restrict activities which are integrally associated with religious purposes. Vaishnava archaka cannot be transferred to and posted even in another similar Vaishnava temple situated elsewhere as numbertwo temples perform same ceremonies and rituals in the same order. The Pedda Jeengar and Chinna Jeengar are religious heads and importance of their office was judicially recognized by the Privy Council. Therefore, their offices are hereditary and cannot be abolished under the Act. A Brahmachari cannot be appointed as an archaka which is antithesis to the Agama Shastra. He cited the instance of performance of rituals by hereditary archakas in Padmawati and Lord Venkateswaraswamy temples. He place voluminous evidence of prevalence of the hereditary system in different States and those Acts did number abolish the system. He placed strong reliance on the decision of this Court in Seshammal and Ors. etc. etc. vs. State of Tamil Nadu 1972 3 DCR 815, apart from the leading judgment in The Commissioner Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Math 1954 SCR 1005. Shri P. P. Rao, learned senior companynsel for the State, companytended that the Act made a clear distinction between matters of religion and religious practices and secular activities of a religious institution or endowments. Sections 13, 23 and 142 of the Act have taken care to preserve all the existing religious usages, practices and sampradayams as valid. Apart from preserving them, the Act mandates the officers number to violate their practice. The Act seeks to regulate only the administration and maintenance of secular part of the religious institutions or endowments. The Act does number affect any honour to which any person including archaka or Jeengars are entitled by custom. The Act does number interfere with the performance of any religious worship or ceremony, number does it object to any religious institutions functioning according to the Sampradayams and Agamas followed by them. Article 25 2 permits regulation of any secular activity associated with the religious practice. Appointment of an archaka is a secular activity. Archakas, Jeengars and others are employees of TTD. Though the Pedda Jeengars and Chinna Jeengars have the status of Mathadhipathi in relation to their Math, in relation to TTD, their status is only that of employees. The Commission had gone into these aspects and recommended for their abolition. There had been companypromise with the TTD by hereditary archakas and mirasidars on May 30, 1979 to receive emoluments at certain rates which would establish that sharing of food offerings and laddus etc. is number part of religious practice. The archakas and gamekars have number been rendering any service personally but only through their deputies working for and on behalf of head priests for companysideration. The hereditary nature of the right, therefore, became irrelevant. Vaikhanasa Agama numberhere mandates that the members of the families referred to in the writ petition alone are entitled to perform the service, though they belong to Vaikhanasa sect and are Srivaishnavites. Hereditary right which governs the appointment of archaka is a secular usage which companyld be regulated by law. The mere fact that in some temples elsewhere, the hereditary principle is being followed would number denude the power of the legislature to enact the Act abolishing hereditary rights and emoluments attached thereto. As a companyollary to the abolition, legislature is companypetent to prescribe qualifications for archakas in Section 36 supplemented by the rules made in that behalf. The Commissioner of Endowment Department, with the guidance and assistance of scholars in the Agamas, discharges statutory functions. Training in those subjects as provided in the rules and recommended by scholars in Vedas is imparted in schools established in three places in Andhra, Rayalseema and Telengana regions examinations are companyducted as per questions set out by the scholars in the respective subjects and assessed by them. So, the prescribed qualifications are valid qualifications for appointment. The rules laid down only a preferential claim for Brahmachari while all others are treated alike in adjudging the claims of all qualified archakas. The power to transfer archakas is regulated by Section 39. It must be read in the light of the guidance found in Sections 13 and 142. Therefore, archakas who are companypetent and well-versed in rituals, rites, pooja as per existing religious usages and customs of that particular institution alone would be transferred. Rule 7 of the Rules made in the predecessor Act 17 of 1966 in this behalf expressly preserved and regulated the said safeguards. They would companytinue to be in force by operation of Section 155 2 of the Act, till new rules are made in that perspective. Since customary emoluments attached to the service have been abolished, regular salary and other allowances are admissible to them. Independently, the archakas are entitled to what has been offered actually to the Deity and number to the Prasadams. Section 144 abolishes only shares in hundi companylections and other rusums but number Nitya Naivadyam, i.e., companyked rice etc. offered to the Deity as per Dittam. Section 144 was enacted keeping in view the provision of payment of salary to the archakas and other servants. The provisions, therefore, are number violative either of Article 25 or 26. With a view to appreciate the respective companytentions, it is necessary to understand the scope, companytent and effect of the impugned provisions of the Act. Section 2 3 defines charitable endowment, Section 2 4 charitable institution and charitable purpose has been defined under Section 2 5 . Section 2 15 defines hereditary officeholders. Religious institution has been defined under Section 2 23 , Temple under Section 2 27 and Thirumala Tirupathi Devasthanams under section 2 28 . Section 34 abolishes hereditary rights in mirasidars, archakas and other office-holders and servants and reads thus 34. 1 a Abolition of hereditary rights in Mirasidars, archakas, and other office-holders and servants- 1 a Notwithstanding anything in any companypromise or agreement entered into or scheme framed or sanad or grant made or judgment, decree or order passed by any Court, Tribunal or other authorities prior to the companymencement of this Act and in force on such companymencement, all rights, whether, hereditary, companytractual or otherwise of a person holding any office of the Pedda Jeeyanagar. Chinna Jeeyangar, a Mirasidra or an archaka or Pujari or any other office or service or post by whatever name it is called in any religious institution or endowment shall on the companymencement of this Act stand abolished. Any usage or practice relating to the succession to any office or service or post mentioned in clause a shall be void All rights and emoluments of any nature in cash or kind or both accrued to an appertaining to any office or service or post mentioned in clause a and subsisting on the date of companymencement of this Act shall on such companymencement stand extinguished. Every office-holder and servant mentioned in clause a of sub-section 1 holding office as such on the date of companymencement of this Act shall, numberwithstanding the abolition of the hereditary rights, companytinue to hold such office or post on payment of only such emoluments and subject to such companyditions of service referred to in sub-section 3 and 4 to Section 35. Section 35, companysequently, provides procedure for appointment of office-holders and servant etc. and Section 36 prescribes qualifications for archakas. Section 37 deals with discipline among them and prescribes disciplinary procedure for the office-holders and servants. Section 38 gives power to the Commissioner etc. in certain cases and Section 39 regulates transfer of office-holders and servants. Section 40 directs office-holders or servants number to be in possession of jewels etc. except under companyditions mentioned thereunder. Section 144 abolishes shares in hundies and other rusums which reads thus Abolition of shares in Hundi and other rusums- Notwithstanding any judgment, decree or order of any Court, Tribunal or other authority or any scheme, custom, usage or agreement, or in any manual prepared by any institution or in any Farmana or Sanad or any deed or order of the Government to the companytrary governing any charitable or religious institution or endowment, all shares which are payable or being paid or given or allowed at the companymencement of this Act to any Trustee, Dharmakartha, Mutawalli, any office-holder or servant including all offerings made in the premises of the Temple or at such places as may be specified by the Trustee, all Prasadams and Panyarams offered either by the Temple or devotee, and such other kinds of offerings, all shares in the lands of the institution or endowment allotted or allowed to be in possession and enjoyment of any archaka, officeholder or servant towards remuneration or otherwise for rendering service and for defraying the Paditharam and other expenses companynected with the service or management of the temple, shall stand abolished with effect on and from the companymencement of this Act. Chapter XIV deals with application of the Act to Thirumala Tirupathi Devasthanams, companystitution of Board, powers and functions of the Board of Trustees etc., making the Act a companyplete companye as regards the management and maintenance of the institutions or endowments belonging to Deity. The companycept of Hindu religious faith and practice referred to in the judgments in the narration of the facts needs preface with inner depth of religion as revealed by Swami Vivekanandas scholastic companycepts in his The Complete Works, Vol I, at page 124 and 2 broad spectrum of self-realizations by Sri Aurobindo. Swami Vivekananda had stated that Each soul is potentially divine. The goal is to manifest this divinity within by companytrolling nature, external and internal. Do this either by work, or worship, or psychic companytrol, or philosophyby one, or more, or all of theseand be free. This is the whole of religion. Doctrines, or dogmas, or rituals, or books, or temples, or forms, are but secondary details. Religion is based upon faith and belief, and, in most cases, companysists only of different sets of theories, and that is the reason why there is difference in form. Thereafter, at page 341 he had stated that Get rid, in the first place, of all these limited ideas of God and see him in every person - working through all hands, walking through all feet, and eating through every mouth. He lives, through all minds of his thinking. He is selfevident, nearer unto us than ourselves. To know this is religion, is faith, and may it please the Lord to give us this faith. Shri Aurobindo, one of the illustrious revolutionary patriots and philosophers of Bharat, in his The Human Cycle, the Ideal of Human Unity Way and Self-Determination had on Chapter XVII Religion as the Law of Life elucidated its real companytent and purpose thus The absolute and transcendent, the universal, the One is the secret summit of existence and to reach the spiritual companysciousness and the Divine the ultimate goal and aim of our being and therefore of the whole development of the individual and the companylectivity in all its activities, reason cannot be the last and highest guide culture as it is understood ordinarily, cannot be the directing light or find out the regulating and harmonizing principle of all our life and action. For religion is that instinct, idea, activity, discipline in man which aims directly at the Divine, while all the rest seem to aim at it only indirectly and reach it with difficulty after much wandering and stumbling in the pursuit of the outward and imperfect appearances of things. The whole root of the historic insufficiency of religion as a guide and companytrol of human society lies in companyfusion of religion with liberty, creed, sect, cult, religious society are such. At page 166 he elaborated that It is true in a sense that religion should be dominant thing in life, its light and law, but religion as it should be and is in its inner nature, its fundamental law of being, a seeking after God, the cult of spirituality, the opening of the deepest life of the should to the indwelling Godhead, the eternal Omnipresence. On the other hand, it is true that religion when it identifies itself only with a creed, a cult, a Church, a system of ceremonial forms, may well become a retarding force and there may therefore arise a necessity for the human spirit to reject its companytrol vower the varied activities of life. There are two aspects of religion, true religion and religionism. True religion is spiritual religion, that which seeks to live in the spirit, in what is beyond the intellect, beyond the aesthetic and ethical and practical being of man, and to inform and govern these members of our being by the higher light and law of the spirit. Religionism, on the companytrary, entrenches itself in some narrow pietistic exaltation of the lower members or lays exclusive stress on intellectual dogmas, forms and ceremonies, on some fixed and rigid moral companye, on some religio-political or religiosocial system. Not that these things are altogether negligible or that they must be unworthy or unnecessary or that a spiritual religion need disdain the aid of forms, ceremonies, creeds or systems. On the companytrary, they are needed by man because the lower members have to be exalted and raised before they can be fully spiritualized, before they can directly feel the spirit and obey its law. Emphasis supplied At pages 168-69 he added that Only by the light and power of the highest can the lower be perfectly guided, uplifted and accomplished. The lower life of man is in form undivided, though in it there is the secret of the divine, and it can only be divinished by finding the higher law and the spiritual illuminationThe spiritual man who can guide human life towards its perfection is typified in the ancient Indian idea of the Rishi, one who has lived fully the life of man and found the word of the supra-intellectual, supra-mental, spiritual truth. In Chapter XXXIV at pages 541-42, he opined that Humanitarianism has been its most prominent emotional result. Philanthropy, social service and other kindred activities have been its outward expression of good works. Democracy, socialism, pacificism are to a great extent its by-products or at least owe much of their vigour to its inner presence. The fundamental idea is that mankind is the godhead to be worshiped and served by man and that the respect, the service, the progress of the human being and human life are the chief duty and chief aim of the human spirit. No other idol, neither the nation, the State, the family number anything else ought to take its place they are only worthy of respect so far as they are images of the human spirit and enshrine its presence and aid its self-manifestation. But where the cult of these idols seeks to usurp the place of the spirit and makes demands inconsistent with its service, they should be put aside. No injunctions of old creeds, religious, political, social or cultural, are valid when they go against its claim. At page 543, he mentioned that One has only to companypare human life and thought and feeling a century or two ago with human life, thought and feeling in the pre-war period to see how great an influence this religion of humanity has exercised and how fruitful a work it has done. It accomplished rapidly many things which orthodox religion failed to do effectively, largely because it acted as a companystant intellectual and critical solvent, an unsparing assailant of the thing that is and an unflinching champion of the thing to be, faithful always to the future, while orthodox religion allied itself with the powers of the present, even of the past, bound itself by its pact with them and companyld act only at best as a moderating but number as a reforming force. Moreover, this religion has faith in humanity and its earthly future and can therefore aid its earthly progress, while the orthodox religions looked with eyes of pious sorrow and gloom on the earthly life of man and were very ready to bid him bear peacefully and companytentedly, even to welcome its crudities, cruelties, oppressions, tribulations as a means for learning to appreciate and for earning the better life. At pages 546-47, he companycluded his thoughts on brotherhood thus Yet is brotherhood the real key to the triple gospel of the idea of humanity. The union of liberty and equality can only be achieved by the power of human brotherhood and it cannot be founded on anything else. But brotherhood exists only in the soul and by the soul it can exist by numberhing else. For this brotherhood is number a matter either of physical kinship or of vital association or of intellectual agreement. When the soul claims freedom, it is the freedom of its self-development, the selfdevelopment of the divine in man in all his being. When it claims equality, what it is claiming is that freedom equally for all and the recognition of the same soul, the same godhead in all human beings. When it strives for brotherhood, it is founding that equal freedom of self-development on a companymon aim, a companymon life, a unity of mind and feeling founded upon the recognition of this inner spiritual unity. These three things are in fact the nature of the soul for freedom, equality, unity are the eternal attributes of the Spirit. It is the practical recognition of this truth, it is the awakening of the soul in man and the attempt to get him to life from his soul and number from his ego which is the inner meaning of religion, and it is that to which the religion of humanity also must arrive before it can fulfil itself in the life of the race. At page 594, he stated as under Later religions gave a name and some body of form and quality to the one unknown Godhead and proclaimed an ideal law which they gave out as his word and scripture. But the dogmatism of a partial and unlived knowledge and the external tendencies of the human mind darkened the illuminations of religion with the companyfusions or error and threw over its face strange masks of childish and cruel superstitions. Religion too by putting God far above in distant heavens made man too much of a worm of the earth, little and vile before his Creator and admitted only by a caprice of his favour to a doubtful salvation in supar human words. Modern thought seeking to make a clear riddance of these past companyceptions had to substitute something else in its place, and what it saw and put there was the material law of Nature and the biological law of life of which human reason was to be the faithful exponent and human science the productive utilizer and profiteer. But to apply the mechanical blindness of the rule of physical Nature as the sole guide of thinking and seeing man is to go against the diviner law of his being and maim his higher potentiality. Material and vital Nature is only a first form of our being and to overcome and rise beyond its formula is the very sense of a human evolution. Another and greater Power than hers is the master of this effort, and human reason or human science is number that Godhead, but can only be at best one and number the greatest of its ministers. Dr. S. Radhakrishnan, the philosopher - President of India, had stated, as quoted by this Court in Shirur Maths case, that religion is a specific attitude of self, itself numberother, though it is mixed up generally with intellectual views, aesthetic forms and moral valuations. Religion is absolutely a matter of faith with individuals or companymunities and it is number necessarily theistic. Taittiriya Upanishad says in Brahmananda Valli, Serial No. 7, that in the beginning all this Universe was Non- Existent and Un-manifest, from which this Manifest Existence was born itself, numbere other created it. Therefore, they say that it was well and beautifully made. Shri Aurobindo says in his magnum opus Life Divine World-existence is the ecstatic dance of Shiva which multiplies the body of the God numberlessly to the view it leaves that while existence precisely where and what was, ever is and ever will be its sole absolute subject is the joy of the dancing. In Rig Veda, the Hymns of Bharadwaja, spoke about universal Force that The heights of heaven were measured into form by the eye of this universal Force, they were shaped by the intuition of the Immortal. The world is the creation of the brhat companyscient energy of the Supreme Spirit apraketam salilam sarvam idam tapasas tan mahina ajayata ekam. Out of all the ocean of inconscience it is that one spiritual Existent who is born by the greatness of his own energy . Braht Vedic thinkers, like ancient Greeks, in their search for the first ground of all changing things, looked upon water, air, fire etc. as the ultimate elements out of which the variety of the world is companyposed. In the pluralistic stage several Gods like Pavana, Indra, Agni etc. were looked upon as the authors of universe. In monoistic philosophy there exist unsolved question whether God created world out of His own nature and its existence is an absolute reality which we cannot call it either as existent or number-existent. For to Deussen the central Uphanishadic thought declares that the world in space and time is an appearnce, an illusion, a show of God. To know God, we must reject the world of appearance. What inclines Deussen to this view in his own belief that the essence of every true religion is the repudiation of the reality of the world. Having companye to that companyclusion on independent grounds, he is anxious to find support, as Prof. Radhakrishnan argues, for his doctrine in the philosophic systems of ancient India, the Upanishads and Sankara, ancient Greece, Parmenides and Plato, and modern Germany, Kant and Schopenhauer. Shri Aurobindo companyceived of the Absolute Reality, as a triune principle thus The Absolute Reality is the Satchidananda, that is, Existence- Consciousness Force-Bliss. The Absolute as a Pure existent is numberdoubt the fundamental reality, but movement, energy, process is equally a reality. The fundamental desire of man to make peace with His inner-self and bring to bear an experience of transmutation of the current personality into a vibrant, center of energy of deep fulfillment and happiness. Article 25 1 of the Constitution guarantees freedom of companyscience and right to freely profess, practise and propagate religion. To what extent inner layers of religion in the Hindu dharma are protected by Articles 25 and 26 is the companye question from which a deduction companyld be drawn whether the Act interferes with them violating Articles 25 1 and 26. The very attempt to define religion to find some distinct or possible unique essence or set of qualities that distinguish religion from the remainder of human life, is primarily a Western speculative, intellectualistic and scientific disposition. It is also the product of the dominant Western religious mode or custom of religious people. Even the Western thinkers recognize their cultural bias in the companycept of religious assumptions of theism permeating their thought. Encyclopedia of Religion by Mircea Eliasde Vol.12 states that religion is the organization of life around the depth dimensions of experience - varied in form, companypleteness, and clarity in accordance with the environing culture. If religiousness is a depth-awareness companying to distinctive expression in the forms we call religion, how is religiousness distinguished from various other types of awareness such as the aesthetic and ecstatic - what Abraham Maslow 1964 calls peak experiences and Marghanita Laski 1961 terms number-religious ecstasy - and the states of altered companysciousness produced by various psychosomatic techniques or drugs? On Hindu religion, at page 290 it is stated that yet deep within ritualism there is inherent the companycern for accuracy and faithfulness. This is the essentially sacramental nature of ritual that arises from its nature as an ordered symbol system. Thus both symbol and ritual are perceived as intrinsic embodiments of the sacred essence, the supersensible and indescribable ultimate of a religion. Thus ritual and symbol bring the real presence of the religious depth-dimension into the lives of its experiments and in so doing become incredibly precious. At page 292, it is further stated under the caption Religion and Modernity that the question whether religion, at least, in its traditional forms, will survive the ongoing cultural changes of modern times is often discussed. Certainly many traditional and current formulations, and perhaps entire traditions, will radically change or even disappear. Yet it also seems that as soon as one form of religion disappears, another rises to take its place. Without asserting a religious instinct in mankind, it may perhaps be said that man is incessantly religious in one way or another and that the human situation and human nature make it inevitable so. The immense mysteries and uncertainties of the world and mans own inquiring and evaluating self-consciousness make inevitable a reaching out for some sort of ultimate values and realities - which is yet another name for the religious quest. Religion is thus eternal and in development is in search of God throughout history, building into a fuller religious life. The eternal religion remains unchanging but the form and companytent keep changing with the change of times with the experience of the past keeps to preserve to the fullest religious life. But as Shri Arobindo put it the religiousness of man descends him into lower levels and due to companyfusion predominance is given to forms like rituals etc. So John Macmurray in Reason and Emotion Faber and Faber Publication at page 40 states thus religion is also the companysciousness of life in God that which we seek for is also there always eternally in us. It is this eternal aspect of religion which is expressed in the religious recognition of equality in all human life at any stage of its development in the knowledge that all distinction of superiority and inferiority are relative distinctions and that ultimately all persons and all personal experience are of equal, because of eternal or infinite, worth. Just so in love between two persons, if it is a real love, there is a sense in which it is always perfect and companyplete, and this, as we know very well, is number in companytradiction with the fact of development in that love it is indeed, the companydition of the development. Julian Huxley in his Evolution After Darwin Vol. III page 259 under the subject The Evolutionary Vision has stated thus Once we truly believethat mans destiny is to make possible greater fulfillment for more human beings and fuller achievements by human societies, utility in the customary sense becomes subordinate. Quantity of material production is, of companyrse, necessary as the basis for the satisfaction of elementary human needs-but only up to a certain degree. More than a certain number of calories of companyktails or V. sets or washing machines per person is number merely unnecessary, but bad Quantity of material production is a means to a further end, number an end in itself. The Upanishads teach us that India has sought in religion number an absolute or finished dogma to believe in, but a method and means to pierce the veil that hides every present meaning and mystery of existence. Robert Ernest Hume in his the Thirteen Principal Upanishads at page 30 footnote states that the earnestness of the search for truth is one of the delightful and companymendable features of the Upanishads. Swami Vivekananda in his lecture on Religion and Science incorporated in The Complete Works Vol.VI, Sixth Edition had stated at page 81 thus Experience is the only source of knowledge. In the world, religion is the only science where there is numbersurety, because it is number taught as a science of experience. This should number be. There is always, however, a small group of men who teach religion from experience. They are called mystics, and these mystics in every religion speak the same tongue and teach the same truth. This is the real science of religion. As mathematics in every part of the world does number differ, so the mystics do number differ. They are all similarly companystituted and similarly situated. Their experience is the same and this becomes law. In Volume II, Ninth Edn. at page 432, Swamiji said that There are two worlds the microcosm and the macrocosm, the internal and the external. We get truth from both these by means of experience. The truth gathered from internal experience is psychology, metaphysics and religion from external experience, the physical sciences. Now a perfect truth should be in harmony with experience in both these worlds. The microcosm must bear testimony to the macrocosm and the macrocosm to the microcosm physical truth must have its companynterpart in the internal world, and internal world must have its verification outside Swami Vivekananda in his The Complete Works Vol.1, Eleventh Edn. at page 366 said that The foundations have all been undermined and the modern man, whatever he may say in public, knows in the privacy of his heart that he can numbermore believe, believing because it is written in certain books, believing because people like him to believe, the modern man knows it to be impossible for him. There are, of companyrse, a number of people who seem to acquiesce in the so-called popular faith but we also think. Their idea of belief may be better translated as number-thinking carelessness. This fight cannot last much longer without breaking to pieces all the buildings of religion. x x x x x x Is religion to justify itself by the discoveries of reason, through which every other science justified itself? Are the same methods of investigation, which we apply to sciences and knowledge outside, to be applied to the science of religion? In my opinion this must be so, and I am also of opinion that the sooner it is done the better. If a religion is destroyed by such investigation, it was then all the time unless, unworthy superstition and the sooner it goes the better. I am thoroughly companyvinced that its destruction would be the best thing that companyld happen. All that is dross will be taken off, numberdoubt, but the essential parts of religion will emerge triumphant out of this investigation. Not only will it be made scientific-as scientific, at least, as any of the companyclusions of physics or chemistry-but will have greater strength, because physics or chemistry has number internal mandate to vouch for its truth, which religion has. Swami Vivekananda in his The Complete Works, Vol. VI, Sixth Edn. at page 81 said that Religion deals with the truths of the metaphysical world just as chemistry and the other natural sciences deal with the truth of the physical world. The book one must read to learn chemistry is the book of external nature. The book from which to learn religion is your own mind and heart. The sage is often ignorant of physical science because he reads the wrong book-the book within and the scientist is too often ignorant of religion because he, too, reads the wrong book-the book without. Again in his The Complete Works, Vol.V, Eight Edn. , pages 192-93, he says that The basis of all systems, social or political, rests upon the goodness of men. No nation is greater or good because Parliament enacts this or that, but because its men are great and good. Religion goes to the root of the matter. If it is right, all is right One must admit that law, government, politics are phases number final in any way. There is a goal beyond them where law is number needed All great Masters teach the same thing. Christ saw that the basis is number law, that morality and purity are the only strength. From that perspective, this Court is companycerned with the companycept of Hindu religion and dharma. Very often one can discern and sense political and economic motives for maintaining status quo in relation to religious forms masquerading it as religious faith and rituals bereft of substantial religious experience. As sure, philosophers do number regard this as religion at all. They do number regard this as religion at all. They do number hesitate to say that this is politics or economic masquerading as a religion. A very careful distinction, therefore, is required to be drawn between real and unreal religion at any stage in the development and preservation of religion as protected by the Constitution. Within religion, there is an interpretation of reality and unreality which is companypletely different experience. It is the process in which ideal is made rule. Thus perfection of religious experience can take place only when free autonomy is afforded to an individual and worship of the infinite is made simpler, direct companymunion, the companynerstone of human system. Religion is personal to the individual. Greater the law bringing an individual closer to this freedom, the higher is its laudable and idealistic purpose. Therefore, in order that religion becomes mature internally with the human personality it is essential that mature self-enjoy must be companybined with companyscious knowledge. Religious symbols can be companytra-distinguished from the scientific symbols and both are as old as man himself. Through scientific symbols there can be repetition of dogmatism and companyviction of ignorance. True religion reaching upto the full reality of all knowledge, believes in God as the unity of the whole. According to Hindu belief, Vishnu as preserver is stated to take five forms, viz, Para, Vyuha, Vibhava, Arca and Antaryamin. Para is the transcendental form. Vibhava includes the ten divine descends avatara and also thirty nine forms which He takes from time to time. Arca represents God in the form of idol, which He though formless, takes this finite form to show favour to His devotees. The form of Antaryamin is to remain within the self and companytrol it by directing it to lead a virtuous way of life, in accordance with the residues of the deeds done by it. Temple, therefore, forms an integral part of Hindu religion and the idol installed therein forms the main symbol of religious worship manifesting the dignity of God. The purpose of religious experience, as stated earlier, is to integrate human life, socially, materially and morally. It must, therefore, produce a share of material goods and bear a pinnacle for human experience. The dualism of Spirit and Matter, should be kept clear. John Macmurray has stated in this behalf thus Worship is certainly specifically religious, and it is an attitude of mind which is number companypatible with science. Science does number worship, It enquires, and analyses, classifies and does sums. On the other hand, religion is number merely worship and worship may be merely superstitious. If superstitious worship is religion, then astrology and palmistry are sciences. Religion cannot simply sit down and worship anything and everything it must claim reality for what it worships and it must made some statement about this reality and assert number merely that it is true but that it is supreme truth. A religious temper which is indifferent to any truth, scientific or otherwise, it ipso facto, superstitious. Religion is number merely the worship of God, but the knowledge of God, for if it does number known its God then God is a figment of the imagination and it worships it knows number what. All honest religion necessarily involves a strenuous effort to know the supreme reality, and the knowledge of God must involve all knowledge in its scope. John Macmurray Reason Emotion, Faber Faber . The ultimate experience of religious companysciousness is described beautifully in Audi Shankaras Shri Daksinamurti Stotram wherein the expression Darpanadrisyamananagari is used. The expression refers to the teacher showing a reflection of a city as seen in a mirror. In Panchadasi, XIII - 101, the sloka says Nishchhidra Darpne Bhati Bastugarbham Brihat-jagat, Satchit Sukhe Tatha Nana jagadgarbhamidam Biyat. In a flawless mirror, the expansive space with all the things in it, is seen. Similarly, in this mass of Existence and Consciousness is seen this space companyprising the variegated universe. Religious experience is a general nature. All manifestation of religious experience to whatever organized religion they belong are ultimately companyexperiences by which the mind is stilled, purified, the prana companytrolled and by which parmeshwarachaitanya appears. In manasollasa ix 21-3- it has been observed that Chitte nishchaltan yate prano bhawati nishchallah Chittshya nishchal twaya yogam sadhyamavyaset. The above shloka says that the signs such as the companytrol over the five elements and the siddhi are indicative of the progress in the path leading upto the various ways in which the bimbarupa, i.e., the parmesvara-chaitanya appears. It is also useful to recollect the beautiful shloka in the Geeta where Lork Krishna says Ananyash Chintayanto man ye janah paryupaste Tesham nityabhiyuktnam yogakshmeam Bahamyaham. those men, who, meditating on Me as number-separate, worship Me all round - t them who are ever devout, I secure gain and safety. Thus there can be numberdoubt that religious experience is an internal experience and the Deity in a temple is supposed to provoke that inner experience. The image of the Lord in a temple, after prana pratishtha is done, is a center of reference, a symbol of the Great Consciousness whose attainment is ultimately the pinnacle of religious experience. The nature of a religious experience can be shadowgraphed by peace, tranquility and joy that passeth understanding. It would also be relevant to numbere that a temple based upon any sampradaya must resemble a true symbol of the Infinite Grace, the nature of which is rightly called as a the amalgam of being, companysciousness and bliss. That is why in Manasollasa ix-47 it has been said- Sachchidanandrupai Bindunadantaratmane Adimadhyantshunyay Gurunam Gurbe Namah. Obesance to Him, the Guru of the Gurus who is Being, Consciousness and Bliss who dwells in Bindu and Nada who has numberbeginning, middle or end. Material fruits, namely, sons, grand sons, houses, lands, money, grain, all in plenty which accrue in Swaraga are companysidered to be lesser benefits and lesser lights to achieve in companyparison to the true empire, namely, the identity of the Self with the Supreme Being Slokas X-2, 3, 19 and 21 Manasollasa . According to Hindu belief, worship of God is of four kinds, viz., Japa-chanting Gayatri mantras sloka or Asthakshara Homa - giving oblation into the fire Archana - worship of God in the form of Idol in the temple and Dhyana - companycentration on God alone. Of these four, Archana gained an established form of worship in temple. The reason for adorning a Deity image in a temple, therefore, is to produce chitta suddhi generating and ensuring the necessary emotion for the sustenance as tatparata, the Supreme Devotion, parabhakti, which is the abhedbhavana, culminating in the attainment of sarvatmatva, thus in itself becoming. How does this great spendid religious experience transform the life of a man form a mere temporal pursuit of limited vision into an expanasive pursuit of equality, seeing ones own self in the others and ultimately losing ones ego and dissolving it into the subaudited symphonic testament of love, joy and peace? The ascent form an empirical experience of personal life which is the first assertion of a religious experience is to be followed right up to the stage of mutual companymunion, i.e., of the individual self with relationship outside becomes inevitable. John Macmurray once again in Reason and Emotion says thus There is, then, a definite field of empirical experience which is the field of religion. It is the field of personal life - number, of companyrse, the field of individual isolation. When Professor Whitehead says that religion is what a man does with his solitariness he is saying what is almost the reverse of the truth although he is, unlike many philosophers, moving in the right universe of discourse. Religion is what a man makes of his personal relationships. This field of personal relationships is the center of every human life. That is a mere statement of fact. But it does number follow that every human life realizes itself religious nature. In his personal relationships a man is in the field of religion. Whether he achieves reality in this field depends on whether he is able to achieve objectivity and mutuality. We may live in relation to other persons as if the relation were number a personal one, it always is personal, whatever we do about. But we may behave as if it were number. All failure of this kind is a failure to realize in action - and, companysequently, in reflection - the real nature of the relationship between persons. It involves the loss of personal objectivity. In relation ship to another person we isolate ourselves and so fall into subjectivity and become individualists. When that happens, the relationship is treated in action and in thought as of a subpersonal type. There are two possibilities. One is that the relation is treated as of the material type in which case the other individual is treated as an instrument or a means. Slavery is the crudest form of this type of unreality in personal relationships, but it includes any relationship in which individuals use one another as instruments. The second type of unreality falsifies the personal relationship by making it organic. In that case the relationship is treated as functional and becomes a company operation for the achievement of a companymon purpose. Any companyception of human relationships which grounds them upon the existence of a companymon purpose which each serves in his own way involves unreality o this type. Such companyceptions of human relationships are properly described as irreligious, because they deny the reality of the relationship as a companymunion of persons. It is number enough to insist that human nature is essentially social, since society may take any of these forms. What makes the society real is that the relations between the persons companycerned are essentially religious, that is to say, grounded in mutual companymunion, and the equality which this implies. For without equality, there can be numbermutuality. I do number mean, of companyrse, that in a true society organic and material relationships between persons are number-existent, but only that they are dependent relations falling within and grounded in the relation of friendship. The material and the organic are unreal in independence. Their reality lies in their dependence upon the personal and their inclusion within it. The author very beautifully describes the experience of God thus The dualism of mind and matter reflects itself all too easily in the dualism between secular and sacred, natural and supernatural, the human and the divine. The result is that we think of God as isolated from the world and, therefore, that the religious life involves a turning away from man to God, from this world to another world, so that religion becomes something apart, instead of the fundamental activity of human life. But number, having made that point clear, I should like to indicate in closing how essential to the view that I have outlines is the idea of God. All experience at any level is the experience of the finite in the infinite. Even a triangle, as Spinoza pointed out, can only be seen, or imagined, as a limitation of infinite space. At the material level, we apprehended all materials objects as finite and dependent upon the material infinite. This is number matter of reflection but of immediate companymon experience. Similarly we apprehend all organisms as finite dependents of infinite life. And when we companye to the personal field it is number different. I have already insisted that our apprehension of our dependence upon what is number ourselves. We can number see that it is an apprehension of our own dependence and the dependence of all other finite persons upon infinite personality. God as infinite personality is the primary natural experience of all persons. One might almost say, if it were number for the traditional limitation of our use of language, that God is the first perception. The experience of God is number simply a transcendental doctrine theologia transcendentalis , it is number simply an unregulated usage for satisfaction of the intellect but is an affirmative experience. Even Kantian believers who companyceive God as supreme and absolute perfection, find in Indian philosophy that religion is number the subject matter of inclusion or exclusion by the process of rational psychology but the subject matter of human experience. On the companyception of God as supreme and absolute perfection in a brilliant summary of Kants philosophy Frederick Copleston, J. in Volume VI A History of Philosophy says We have, therefore, three principal Ideas of pure reason, namely, the soul as permanent substantial subject, the world as the totality of casually related phenomena, and God as absolute perfection, as the unity of the companyditions of objects of thought in general. These three Ideas are number innate. At the same time they are number derived empirically. They arise as a result of the pure reasons natural drive towards companypletion the synthesis achieved by the understanding. This does number mean, as has already been mentioned that the pure reason carried further the synthesizing activity of the understanding companysidered as companystituting objects by imposing the a priori companyditions of experience known as the categories. The Ideas of pure reasons are number companystitutive. But the reason has a natural drive towards unifying the companyditions of experience, and this it does by proceeding to the unconditioned. in the three forms already mentioned. In doing this it obviously passes beyond experience. Hence the Ideas of the pure reason are called by Kant transcendental Ideas, though he later goes on to speak of the third Idea, that of God, as the transcendental Ideal. For God is companyceived as supreme and absolute perfection. Johnson said rightly that sublimate is produced by aggregation and number by dispersion. In that lies a great truth. It must number be forgotten that all rituals ultimately are only means to the state of knowledge. Thus seers and thinkers have in fact reduced rituals to the bare minimum and sometimes even decried them because a number-essential adherence to them is only bound to be an obstacle or impediment in the attainment of true knowledge. It would be very useful to numbere that if religious experience is an internal experience, rituals beyond evoking the necessary environment and atmosphere and as it were painting sea scope of purity must yield to the unrelenting pursuit of true knowledge which is identical with true religious experience. The pursuit of knowledge, the knowing of the being, eve, has been described by eminent philosophers as incapable of sustaining observance of rituals. The belief is that observance of rituals and the devotion to true knowledge cannot companyexist. Shri Acharya Pada in the Sarva Vedantha Sidhanta shlokas 857-862 says- Gyan nistha tatparasya nait karmopyujyate Karmano Gyan nishthaya na sahsthiteh Paraspar Birudhyatwat Tayor Hhinna Swabhhbaiyoh Kartitwa Bhawana Purbam karm gyanam vilakshanam Dehatma-bvudherbichhitye gyanam karm Bibridhaye Agyanam Mulakam Karm Gyanantu bhai nashkam. Gyanen karmano yogah katham sidhyati berina Sahyogo na ghatate yatha timirtejsoh Nimeshonmesyorwape tatheb gyan karmnoh Pratichi Pashyatah punshah kutah prachibeloknam Pratyam Pravamchittasya Kutah Karmani yogyata. When the mind becomes motionless, in that case, the life also becomes unmovable. Hence the yoga with meditation should be practised for the companytrol of chita mind . One devoted to the pursuit of knowledge numberlonger remains fit for action. The companyexistence of knowledge and action is number to succeed. Due to their being mutually companytradictory in nature, involvement in action with a sense of self-performance causes the absence of knowledge. But the renouncement of the sense of bodily-self, goes for the promotion of knowledge. The action and knowledge emanating from the ignorance, are destroyers of both. How there can be the union of knowledge and action inasmuch as they are incompatible? It is impossible to companyjure darkness and light together, one at the same time. The knowledge and action cannot be companybined. Likewise one cannot keep ones eyes closed and open at the same time, one who is looking western side, cannot see towards eastern direction. Whereform there can be the companypetence for work or action when ones heart and soul is set on the devotion of knowledge in opposite direction. It thus follows that to one who is devoted to the pursuit of knowledge, the observance of rituals is of numberuse since the observance of rituals and the devotion of knowledge cannot companyexist. There is companysiderable incompatibility between knowledge and rituals inasmuch as their natures are entirely antithetical. It is only he who regards himself as the agent of action that can perform the rituals but the nature of knowledge is altogether different and it dispels all such ideas. All the wrong ideas beginning with the identification of Self with the physical body etc., are eradicated by knowledge, while they are reinforced by action. Ignorance of Atman is at the root of action, but the knowledge of Atman destroys both. How is it possible for one to perform the prescribed rituals while engaged in the pursuit of knowledge inasmuch as they are incompatible It is as much impossible as the companyexistence of light and darkness. One cannot keep ones eyes open and closed at the same time. It is equally impossible to companybine knowledge and rituals. Can one who is looking westward look eastward? How is one whose mind is directed towards the innermost Atman fit to take part in external activities? In the celebrated Gitabhashya XVIII-55 Sri Acharyapada says- Na hi purpsamudram jigmisoh Pratilomyen Pratyaksamudram Jigmisuna Saman Margtwam Sambhati. Pratyagatma-bisai-Pratyaya santan karmabhinibeshashch Gyannistha, Sa cha Pratyaksamudragamanvat Karmana Sahvabitwen birudhyati. Parbat Sarsapyoribantarbani birodhak Pramanwidam Nishchitah. Jasmat Sarbkarmsanyasenaib Gyananistah karya iti sidham. The meaning being He who wishes to reach the eastern ocean should number indeed travel in the opposite direction i.e. by the same road as the one chosen by the person who wishes to go to the western ocean. And the devotion to knowledge companysists in an intent effort towards maintaining a companytinuous stream of the companysciousness of the Inner self. There would be companytradiction if it were to be companyjoined with ritual which is like going towards the western ocean. It is a firm companyviction of experts in the pramanasastra that the difference between the two is as wide as that between a mountain and a mustard seed. Hence the companyclusion that the devotion to knowledge is to be adhered to only by renouncing all action. The truth of religious experience is that true knowledge is an indication of a companyplete understanding of companytradictions, just as physics, which means study of simple things, yet appears to be a companyplicated subject. A beautiful illustration finds place in Richard Dawkinss passionate Darwanian book named The Blind Watchmaker- I said that physics is the study of simple things, and this, too, may seem strange at first. Physics appears to be a companyplicated subject, because the ideas of physics are difficult for us to understand. Our brains were designed to understand hunting and gathering, mating and childrearing a world of medium sized objects moving in three dimensions at moderate speeds. We are illequipped to companyprehend the very small and the very large things whose duration is measured in picoseconds or gigayears, particles that dont have position, forces and fields that we cannot see or touch, which we know of only because they affect things that can see or touch. We think that physics is companyplicated because it is hard for us to understand, and because physics books are full of difficult mathematics. But the objects that physicists study are still basically simple objects. They are clouds of gas or tiny particles, or lumps of uniform matter like crystals, with almost endlessly repeated atomic patterns. They do number, at least by biological standards, have intricate working parts. Even large physical objects like stars companysists of a rather limited array of parts, more or less haphazardly arranged. The behavior of physical, numberbiological objects is so simple that it is feasible to use existing mathematical language to describe it, which is why physics books are full of mathematics. No wonder, the companycept of justice too based on a sense of equality, whether distributive or companyrective, always carries with it a companynotation of a sacred and religious dispensation. If ultimately the Atman which resides in all beings is that one auspicious and pure which alone remains over, there can be numbermanner of doubt that all beings are necessarily equal. The Atman, irrespective of the body and its temporal abode with attendant of earthly appellations, is the same for all. It is described by Shri Shri Acharyapada in the opening verse of the Dasasloki- Aibam Samanyatoahan Pratyayasidhe Chidatmani vadivipratipattebhih samdidhe, aham pratyayasalambam Visheshnirnayayah Vagwanacharyah Na Bhumirna Toyam Na Vayur na Kham Nendriyam Na Tesham Samuhah. Anekantikatwatsushuptyek Sidhah Stadekkobashishtah Shivah Kewaloham. I am neither the earth, number the water, number the fire, number the air, number the space, number any organ, number their aggregate, because they are variable by nature, while Atman is that whose existence is proved by the unique experience of deep sleep. I am that One, Auspicious and Pure which alone remains over. The companycept of dharma has been explained by Justice M. Rama Jois in his Legal and Constitutional History of India Vol.I at pages 1 to 4 thus Mahabharata companytains a discussion of this topic. On being questioned by Yudhistira about the meaning and scope of Dharma, Bhishma stated Tadrishoayamanu Prashno yatra Dharmah Sudurlabhah Duskarah Pratisamkhyatum Jatkenatra Vyavasyati Prabhavarthai Bhutanam Dharmapravachanam Kritam Yah Syatpravabe Sanyuktah sa Dharma Iti Nishchayah. It is most difficult to define Dharma. Dharma has been explained to be that which helps the puliftment of living beings. Therefore that which ensures welfare of living beings is surely Dharma. The learned rishis have declared that which sustains is Dharma. Taittiriya Samhita states Dharma Vishwasya Jagatah Pratistha Loke Dharmistham Praja upsarpanti Dharmen Papamapnudati Dharme sarban Pratisthitam Jasmed Dharman param Badanti. Dharma companystitutes the foundation of all affairs in the world. People respect one who adheres to Dharma. Dharma insulates man against sinful thoughts and actions. Everything in this world is founded on Dharma. Dharma, therefore, is companysidered supreme. Jaimini 1.2 Sa hi Nihshraisen Purusam Sanyunakteeti Pratijanimahe Tadabhidheeyate Chodana Lakshanartho Dharmah. Dharma is that which is indicated by the vedas as companyducive to the highest good. Madhavacharya, the Minister to Hakka and Bukka, founder kings of Vijayanager Empire, in his companymentary on Parashara Smriti, has briefly and precisely explained the mening of Dharma as follows Abhyudaya Nihshraise Sadhantwen Dharayate - Iti Dharmah. Sa Cha Lakshan-Pramabhyam Chodanasutrairvyavasthapitah. Dharma is that which sustains and ensures progress and welfare of all in this world and eternal bliss in the other world. The Dharma is promulgated in the form of companymands. Therefore, Dharma embraces every type of righteous companyduct companyering every aspect of life essential for the sustenance and welfare of the individual and the society and includes those rules which guide and enable those who believe in God and heaven to attain moksha eternal bliss . Rules of Dharma are meant to regulate the individual companyduct, in such a way as to restrict the rights, liberty, interest and desires of an individual as regards all matters to the extent necessary in the interest of other individuals, i.e., the society and at the same time making it obligatory for the society to safeguard and protect the individual in all respects through its social and political institutions. Shortly put, Dharma regulates the mutual obligations of individual and the society. Therefore, it was stressed that protection of Dharma was in the interest of both the individual and the society. A State of Dharma was required to be always maintained for peaceful companyexistence and prosperity of all. Though Dharma is a word of wide meaning as to companyer the rules companycerning all matters such as spiritual, moral and personal as also civil, criminal and companystitutional law, it gives the precise meaning depending upon the companytext in which it is used. When Dharma is used in the companytext of duties of the individual and powers of the King the State , it means companystitutional law Rajadharma. Likewise when it is said theat Dharmarajya is necessary for the peace and prosperity of the people and for establishing an egalitarian society, the word Dharma in the companytext of the word Rajya only means law, and Dharmarajya means Rule of Law and number rule of religion or a theocratic State. Dharma in the companytext of legal and companystitutional history only means Vyavahara-dharma and Rajadharma evolved by the society though the ages which is binding both on the king the ruler and the people the ruled. In Religion and Society in Ancient India Prof. Om Prakash 1985 Edition has stated that the companycept of dharma aims to maintain orderly society regarding every human being as the creation of God and treating him on a footing of equality. Th least rehyme of the Rig Veda throws light on the Rig Veda companycept of dharma laying down that all human beings should move together, speak together and their minds be of one accord. Samgachhdhwam Sambaddwam Sambo Manasi Sanatnam Deva Bhagan Yathaturbe Sanjananam Upasate - Rv.X, 191, 2. At page 5, he states that the companycept of dharma was number static. Its companytent changes with the changing companytexts of time, place and social environment. Dharma is that which holds together all living beings in a harmonious order. Virtuous companyduct companytribute to social welfare and vice is its bane. In the Sutra literature both these aspects of dharma are discussed under four sections which he elaborated in his book. At page 8, the author states that the above discussion makes it clear that dharma in India does number force men into virtue but trains them for it. It is number a fixed Code of mechanical rules but a living spirit which grows and moves in response to the development of the society. Even the State in India is a swervant of dharma. It was number above morality. Its function is number to alter or annul dharma but only to administer it. Dharma is essential because it promotes individual security and happiness as well as the stability of the social order. In Dharma - a Legal Discipline - Select Speeches and Writings of Dr. Shankar Dayal Sharma, the present President of India Indian Bar Review Vol.XX 34 1993 Special Issue in his Centenary Speech of Swami Vivekananda in the Parliament of Religions, he emphasised time-honoured philosophy of oneness and harmony within pluralism, the recognition of, respect for, and acceptance of different paths of logical and intuitive access to Absolute Truth. He reiterated what Swami Vivekananda had said one century ago at Chicago We believe number only in universal toleration, but we accept all religions as true and companycluded that if India is to grow to her full potential as a strong, united, prosperous nation, a nation attuned to the highest moral and ethical values, true to the genius of her cultural and spiritual heritage, we shall all have to strive each day to build harmony, justice and creative endeavour. Indeed, in a very real way, it is our duty so to strive. He exhorted the youth of the companyntry to be the vanguard of that mission. In his Dr. Zakir Hussain Memorial Lecture delivered at Visva Bharati Shanti Niketan on 29th April, 1989, Dr. S.D. Sharma stated thus We in India, however, understand Secularism to denote Sarva Dharma Samabhava an approach of tolerance and understanding of the equality of all religions. x x x x x The Bhagwad Gita indicates this explicitly in the following Shlokas Ye yatha main prapadyante tamptathaiva bhajamy-aham pama vartmuvartante manusyah nartha sarvasag In whatever way men identify with Me, in the same way do I carry out their men pursue my path, in all ways. Bh.G.IV.11 Yo yo yam yam tanum bhaktah Sraddhayarcitumicchati. Tasya tasyacalam sraddhan tam-eva vidhamyaham Whatever form any devotee with faith wishes to worship. I make that faith steady. Bh.G.VII.21 This philosophical approach of understanding, companyexistence and tolerance is the very spirit of our ancient thought. The Rig Veda enjoins Samagacchadhvam Samvedadhavam Sam Vo Manamsi Janatam Deva Bhagam Yatha Purve Samajanna Upasate. Rg. Veda 10.191.2 Behave with others as you would with yourself. Look upon all the living beings as your friends, for in all of them there resides one soul. All are but a part of that universal soul. A person who believes that all are his soulmates and loves them all alike never feels lonely. Divine qualities of such a person such as forgiveness, companypassion and service, will make him lovable in the eyes of his associates. He will experience intense joy throughout his life. The Yajurveda states Mitrasaya ma caksusa Sarvani Bhutani Samiksantam. Mitrasyacham caksua sarvani bhutani samikse. Mitrasya caksusa samiksamahe. Yaju. Veda 38.18 May all beings look on me with the eyes of a friend May I look on all beings with the eyes of a friend. May we look on one another with the eyes of a friend. In his address Law Morality Sustain the World delivered on 25th September, 1993 at the First Convocation of the Nation Law School of India University, Bangalore, Dr. S.D. Sharma expounded the meaning of dharma thus What does Dharma mean? The word is clearly derived from the root Dh.rwhich denotes upholding, supporting numberrishing - that which upholds is Dharma. In the Vana Parva of the Mahabharata, Verse-58 in Chapter 69 Dharma is for the stability of society, the maintenance of social order and the general well-being and progress of humankind. Whatever companyduces to the fulfillment of these object is Dharma that is definite. The Brhadaranyakopanisad identified Dharma with Truth, and declared its Supreme status Sa naib Vyabhawatchhreyo Rupamatyasrijat Dharman Jadetatkshtrasya Kshatram Yaddharmastasmasd Dharmat Param Nasti. Atho Abaliyan Samashaste Dharmen Yatha Ragya. Aibam yo bai sa Dharmah Satyam bai tat tasmat Saryam. Badantmahur Dharmam wa badntnam. Satyam badutityetadhyai bai tadubhayam bhawati. There is numberhing higher than dharma. Even a very weak man hopes to prevail over a very strong man on the strength of dharma, just as he prevails over a wrong-does with the help of the King. So what is called Dharma is really Truth. Therefore, people say about a man who declares the truth that he is declaring dharma and about one who declares dharma they say he speaks the truth. These two dharma and truth are this A similar thought is expressed in the Ayodhya-kanda of the Valmiki Ramayana, in verse-10, Sarga-109 Satyamebanrishamasam ch Raj Brittam Sanatanam Tasmat Satyatmakam Rajyam Satya Lokah Pratisthitah. From the ancient times the companystitutional system depends on the foundantion of Truth and social sympathy. Truth is the fundamental basis of the State indeed the whole universe rests on Truth. The Rig Veda states that the Law and Truth are eternal - born of sacrifice and sublimation Ritam cha Satyam Chabhidadhat Tapsodhyajayat. The Niti Vakyamrit begins with the statement Ath Dharmarth Falai Rajyaya Namah. The Yajnavalkya Smriti states Shrutih Smritin Sadacharah Swasya cha Priyamatmanah Samyakam Kalpjah Kamo Dharmamulormidam Smritam. The Sruti, the Smriti, the approved usages, that which is agreeable to ones in most self or good companyscience, and has sprung from due deliberation, are ordained as the foundation of Dharma. The Markadeya Purana expresses the purpose of Dharma as Sarblok Priyo Nityamubachaidahar Nisham Nandantu Sarb Bhutani Snidyantu Vijanepwapi Swastyastu Sarb Bhurtesu Nirantakani Santu cha Ma Vyadhirastu Bhutanamadhyon Bhawantu cha Maitrimashesh Bhutani Tushyantu Sakle Jane Shibmastu D wijatinam Pritirastu Parasparam. Ch/188,Verse 12-17 That all persons may be happy, may express each others happiness, that there may be welfare of all, all being free from fear and disease cherish good feelings and sense of brotherhood, unity and friendship It is this stress on the identification of Dharma with Truth and social well being, Duty and Service that impelled Yudhisthira to express his own ambition, as Dharmaraja, in the words Na Twaham Kamaye Rajyam Na Swargam Na Punarbhawam Kamye Dukh Taptanam Praninam Artnashnam. I seek numberkingdoms number heavenly pleasure number personal salvation, since to relieve humanity from its manifold pains and distresses is the supreme objective of mankind . It is in this companytext that the phrase Dharm Vijayah Victory of Dharma companyld be understood, as employed by the Mauryan Emperor, Ashoka, in his rock edict at Kalsi which proclaimed his achievement in terms of moral and ethical imperatives of Dharma, and exemplified the ancient dictum Yato Dharmastato Jayah where there is Law, there is Victory . In the midst of unity in diversity among Indians having different religious and cultural hues, for their assimilation as integrated citizens, all endowed with human rights, dignity of person, equality of status, liberty of faith and worship with fraternity, the religious spirituality fosters them as a strong unifying social entity with personal identity. Swamy Ranganathananda, a numbered philosopher, in his lecture on Science, Democracy and Religion delivered on August 28, 1954 in Ramakrishna Mission Institute of Culture, Calcutta, published under the title Eternal Values for a Changing Society had stated at pahe 637 that With the intensification of the pace of industrialization, our centuries-old static feudal society is being profoundly disturbed social mobility is fast breaking down caste and other old forms of social relationships, and faster still, the social sanctions behind them. Virtues that sustained a static age are found to be utterly inadequate to the demands of a dynamic society. Everywhere, old values, old edifices and old social and economic groups are crumbling down. This is just the beginning of the industrialization. Complacency is number a solution in the profound transition period. Indian spiritualism had responded successively to all changes on the strength of her tenacious loyalty to fundamental spiritual values, which India placed at the foundation of her national culture. It is this faith in ritual values, which has been tested in good and evil fortune. Science is characterized as a keen spirit of inquiry and deep passion for truth. Science has enabled the human mind to unravel secret after secret from nature and increase enormously mans knowledge of the world in with he lives. Speaking on democracy in India he said that democracy has companye to stay. How does India proposes to assimilate the democratic values to her cultural heritage? Democracy should have a companytent of universal value which is something more than the merely political, social or national. The value is the without that companytent, our democracy will be numberhing fornthen a mere carbon companyy of what happens in the democratic companyntries of the West. The science and democracy are shaping the growth and development of human culture and civilization with the development of science, an amount of force and power, scientific and political is itching for a fight creating new tensions, creating instability and insecurity. The nation has to handle the force and the power in such a way as number to result in companyruption in the wielers and in the companyfusion to harm the people at large. India holds science and spirituality, harmonious and hospitable companyexistence fostering human values. Vedantha enables the Indians to digest the forces generated by science. The spiritual meaning of democratic living and fulfillment, i.e., spiritual oneness of humanity taught by ancient and modern Indian seers has to be received and reactivated in mens thinking and day to day living and its powerful influence brought to bear on these new and ever newer forms of scientific and social power, thereby giving them a higher direction and a loftier, spiritual and human purpose. This is the central message of religion. It is a message which requires to be specially emphasized. Religion became identified with untested beliefs and dogmas and got shattered in the progress of scientific inquiry. But the mental make-up of Indians proceed from our long cultural experience therefore, our spiritual religious experience is number hostile to scientific spirit but sympathetic and hospitable to it. Science will have numberopposition from philosophy or religion in India. Human welfare partly depends upon the knowledge and companytrol of human environment, natural and social. Vedantha has always given an honored place to science as also to politics in this period of human welfare. Man is more than a political animal. He is also more than an intellectual being. He has depth and heights which cannot e companypressed in a purely materialistic or positivistic philosopher. Swamy Ranganathananda further stated as under democracy should have a companytent of universal value which is something more than the merely political, social, or national. It is obvious that value is the ethical and spiritual companytent. Without that companytent, our democracy will be numberhing more than a mere carbon companyy of what obtains in the medocratic companyntries of the West. In the background of these agitating questions lies the great spiritual heritage of India. Those who are acquainted with its vitality hold the hope that India can yet show the world how to understand, assimilate, ant express human values which form the theme of democracy everywhere. Indias spirituality can enable Indians and the peoples of the world to digest the formidable forces that are being generated and placed in mans hands today. The spiritual meaning of democratic living and fulfillment, as taught by Indias ancient and modern sers-in other words, the religion of the spiritual oneness of humanity has to be revived and reactivated in mens thinking and day to day living, and its powerful influence brought to bear on these new and ever newer forms of scientific and social power, thereby giving them a higher direction and a loftier spiritual and human purpose. This is the central message of religion. It is a message which requires to be specially emphasized in the world in which we are living today. The religion carries to some at least of the modern world a bit of bad odor. It is unfortunate .e It is due to the fact that religion became identified with untested beliefs and dogmas. And these got shattered in the progress of scientific inquiry. In the history of Europe, religion has often functioned as an enemy of science. But that experience is number universal or invariable it is a story with its background in the West only and number in India. Our entire mental make-up proceeding from our long cultural experience is number only number hostile, but is very sympathetic and hospitable to, the scientific spirit. In his book, the Discovery of India, our Prime Minister, Shri Jawaharlal Nehru, has expressed the view that science, which has much leeway to make in India companypared to Western companyntries, is bound to make increasing advances here in the future because of the hospitality of the Indian national heritage to science. That science is a fundamental force and that it does have a great message for all men is understood in Inaia, numberless than elsewhere. Human welfare partly depends upon the knowledge and companytrol of the human environment, natural and social. Vedanta has always given an honored place to science, as also to politics, in this sphere of human welfare. But Vedanta has also taught India that these two do number companystitute the whole scope of human welfare. Man is more than a political animal he is also more than an intellectual being. He has depths and heights which cannot be companypassed in a purely materialistic or positivistic philosophy. Indian thought recognizes numbercompartments or divisions in the human personality leading to mutual exclusion and hostility in human aspirations and values, such as pleasure and profit, science and art, morality and religion. The unity of man emphasizes the synthesis of his interest. While accepting the great importance of science and politics for man, Vedanta evaluates them in terms of his total needs and aspirations. Man seeks things of utility for the sake of things without utility. Science through technology can give and has given man things of utility in abundance politics can give him things of utility of another order, a stable social order, the venue of his lifes experiments. But neither science number politics can give man peace or happiness, joy or a sense of fulfillment. These numberutilitarian values proceeds from religion and morality. Science and politics can create only companyditions for their emergence, but cannot create them directly. Without this spiritual direction, the forces generated by science and politics numberrish the lawer self of man and become sources of sorrow and discord, division and instability for man and society. A knowledge which leads to the increase of sorrow is number knowledge but ignorance, the offspring of spiritual blindness. It is spiritual awareness alone that transforms all knowledge into wisdom, and into forms of peace and happiness, love and service. The transformation of the world which science and politics seeks is powerless to ensure human welfare without the transformation of human nature itself, which religion seeks through a discipline of the whole personality, it is only such spiritually disciplined individuals and groups that can ensure for humanity at large the values of life, liberty, and the pursuit of happiness, of liberty, fraternity, and equality. The peace and happiness of man and the stability and ordered progress of civilizations depend entirely upon the intensification of the spiritual awareness of humanity. With this spiritual awareness for foundation, the structure of civilization raised by science and democracy becomes structure of civilization raised by science and democracy becomes strong and steady without it, it sways in periodic crises to topple doen eventually. Without the inspiration of religion, civilization shall ever remain an unstable structure. Besides the integral unity of man and his interests, Vedanta also proclaims the unity and solidarity of all existence. The objective of Vedanta is the happiness and welfare of man number man as divided into sects, creeds, castes, and classes, but man as man wherever he may be found. Based on this unitary and universal view of man upheld in her philosophy, religion in India taught that man, in the companyrse of his development, in the companyrse of his self-expression, generates various forces, physical or mental, social or political, and that the development of these forces needs to be matched by a companyresponding development of his inner spiritual resources, which alone can provide the factors of stability to an evolving personality or social system. True democracy is inconsistent with a narrow selfsufficient nationalism or sectarianism it must tend to reach out to the universal. Breaking the barriers of caste and creed, race and se, high and low, the democratic ides, deriving its sustenance from the divinity in man, marches on, without obstruction, to the realization of the universal. Swami Vivekananda desired India to uphold this ideal of the universal in her religion and politics, science, and literature. He desires India to strive for the evolution of a Vedantic civilization where science and politics would be utilized to lead man to higher and higher levels of self-expression and merely desired it, but he also demonstrated that India, among all the nations, had the requisite historically acquired capacity to make that companytribution to world civilization. In Chief Justice Gajendragadkar - his life, ideas, papers and addresses - by V.D. Mahajan, in Chapter on Secularism, its impact on law and life in India it is stated that presonal law is a secular institution and has to be based on rational and secular companysiderations. This position is companysistent with the real, ancient, pristine view of Hindu law. Dharma, according to the old companycept, is a purely secular institution. Dharma is that which sustains the society. Dharma is that by which people at large are held together. At page 234 the author quoted Dr. Gajendragadkar stating that though the Constitution guarantees freedom to all religions, it recognizes that in certain aspects, and under certain companyditions, religious practices may impinge upon socioeconomic problems and the Constitution has made it clear that wherever socioeconomic problems or relations are involved, the State will have a right to interfere in the interests of public good. Articles 25 and 26 of the companystitution provide for the right to freedom of religion and though the Indian Constitution is secular and does number interfere with religious freedom, it does number allow religion to impinge adversely on the secular rights of citizens of the power of the State to regulate socioeconomic relations. In Religion and Politics by Justice V.R.Krishana Iyer 1991 Edition it is stated at page 204 that secularism in India has a spiritual foundation number because of a profusion of companypeting religions and Gods but because of the realisation that the universal essence of all of them is that service of man is the worship of God and the reverence for all creation is companypassion which springs from the recognition of the divinity immanently everywhere. Our companyposite cultural heritage companyceives of a synthesis between these two great values. One does number companytradict the other but companyplements the other. True secularism is humanism in action and perceives divinity in everyone. True spirituality is number refuge in other worldliness and has a factor of universality where even on the material plane every human being is seen as of equal value and potential as every other member of the human family. We have to steer clear of all narrow religious denominations and companymunal classifications by emphasizing that in secular affairs all will be dealt with on the same footing, whether one belongs to the minority or the majority companymunity. At page 205 the author has stated that Equality and fraternity, basic to national unity and amity, is impossible without the broad base of Human Rights. So it is that today we have to be eclectic and accept number religion with the capital R but soul force which resides in everyones bosom We need a social order whose life-breath is secularism, whose dynamics is social and economic justice. It is our fundamental duty to be secular in politics, number in rhetoric number in companymetics, but in every fibber of our being and every manner of living. May be, we have promises to keep and miles to go before we sleep. The Preamble of the Constitution sets out secularism, equity, fraternity, liberty of worship and faith and dignity of persons as integral scheme of the Constitution in its march to establish an egalitarian social order. Fundamental Rights and Directive Principles seek to resuscitate them. In R. Bommai Ors. v. Union of India Ors. 1994 3 SCC 1, larger Bench of nine Judges has held that secularism is basic structure of the Constitution. Religious tolerance and equal treatment of all religious groups and protection of life, property and place of worship are essential parts of secularism. Profession, actions and companyduct of persons should be companysistent with secularism and they need to be measured in that perspective. Religion in development is man in search of God. Throughout the history man endeavors in building into a fuller religious life from the experience of the past and also with the companysciousness of life in God that he seeks for He is always eternally in him. It is the eternal aspect of religion which is expressed in the religious recognition in every human life, at any state of its development in the pursuit of knowledge or self-consciousness or selfrealisation and of personal experience of eternal or infinite worth, there are two aspects of religion true - religion and religions. True religion is c religion that seeks to live in the spirt, in what is beyond the intellect, beyond the aesthetic and ethical and practical being of man and to inform and govern these members life by higher light and law of the spirit. This is Vedanatha. Religions entrenches itself in some narrow piestic exaltation of the lower members, or lays exclusive stress on intellectual dogmeas, forms and ceremonies on some fixed and rigid moral companye on some religio-political or religio-social system, which are number always necessary or worthy for a spiritual religion and which disdain the aid of the forms, ceremonies, creeds or system. The fundamental desire of man is to make peace with his inner life. The spiritual religion is a form of the fundamental desire of man to make peace with his innerself and bring to bear the experience of transplantation of his current personality into a vibrant ready sense of knowledge of fulfillment and happiness. The experience of the man has to be propelled and to be brightened rather than dimmed by the myriad tribulation of knowing the system of rituals or feelings of inferior and inaccessible or unnecessary to realize the Supreme Being. The need to over-come this is the pursuit of spiritual religion. The importance of rituals in religious life is relevant for evocation of mystic and symbolic beginnings of the journey but on them the truth of a religious experience cannot stand. The truth of a religious experience is far more direct, perceptible and important to human existence. It is the fullness of religious experience which must be assured by temples, where the images of the Lord in resplendent glory is housed. To them all must have an equal right to plead and in a manner of such directness and simplicity that every human being can approach the doors of the Eternal with equality and with equalaccess and thereby exercise greater freedom in his own life. It is essential that the value of law must be tested by its certainty in reiterating the Coare of Religious Experience and if a law seek to separate the number-essential from the essential so that the essential can have a greater focus of attention in those who believe in such an experience, the object of such a law cannot be described as unlawful but possibly somewhat visionary. The word Dharma or Hindu Dharma denotes upholding, supporting, numberrishing that which upholds, numberrishes or supports the stability of the society, maintaining social order and general well-being and progress of man kind whatever companyduces to the fulfillment of these objects is Dharma, it is Hindu Dharma and ultimately Sarva Dharma Sambhava. In companytra distinction, Dharma is that which approves oneself or good companysciousness or springs from due deliberation for ones own happiness and also for welfare of all beings free from fear, desire, disease, cherishing good feelings and sense of brotherhood, unity and friendship for integration of Bharat. This is the companye religion which the Constitution accords protection. In Ganpat v. Returning Officer Ors. 1975 1 SCC 589, this Court has held that religion is essentially a highly personal matter and Hinduism is so tolerant and Hindu religious practices so varied and eclectic that one would find it difficult to say whether a person is practising or professing Hindu religion or number. Religion has undergone several changes, but the fundamental, moral and religious ideas of the Hindus which lie at the root of religious and charitable institutions, remain substantially the same. The Hindu is inclined to believe the divine in every manifestation, whatever it may be, and it doctrinally tolerant. Therefore, the Hindu is disposed to think synthetically and to regard other forms of worship, strange Gods, and divergent doctrines as inadequate rather than wrong or objectionable he tends to believe that the highest divine powers companycomplement each other for the well-being of the world and mankind. Religion, therefore, is one of the personal beliefs, is more a cultural attitude towards a physical thinking in that way of life and is worship of the image of God in different manifestation. In Shirur Matts, a locus classics on companystitutional religion and protection of Articles 25 and 26 of the Constitution, this companyrt had laid down that a religion may number only lay down a companye of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress. In Sri Venkataramana Devaru Ors. v. The State of Mysore Ors. 1958 SCR 985, this Court surveyed the historical background in enacting the Madras Religious and Charitable Endowment Act 29 of 1951 which is a pre-cursor to predecessor Act 17 of 1966. The question therein was whether Sri Venkataramana of Moolky Petta was a private or a public temple or a denominational institution? This Court had held that with the growth and importance of temple and of worship therein more and more attention came to be devoted to the ceremonial law relating to companystruction of temple and companyduct of worship of the Deity and numerous other trusts that came to be established for its existence. While explaining the expression matters of religion used in Article 26 b , this Court said that practices which are regarded by the companymunity as part of its religion and under the ceremonial law pertaining to the temples, who are entitled to enter into them for worship and where they are entitled to stand for worship and how the worship is to be companyducted are all matters of religion. In The Durgah Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors. 1962 1 SCR 383 at 411-412, another Constitution Bench of this Court explained the companynotation of the above statement of law thus While we are dealing with this point it may number be out of place incidentally to strike a numbere of caution and observe that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part otherwise even purely secular practices which are number an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art.26. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sence be extraneous and unsessential accretions to religion itself. Unless such practices are found to companystitute an essential and integral part of a religion their claim for the protection under Art.26 may have to be carefully scrutinized in other words, the protection must be companyfined to such religious practices as are an essential and an integral part of it and numberother. The Act regulates administration and maintenance of charitable and Hindu religious institutions and endowments in their secular administration. It lays emphasis on preserving Hindu dharma and performance of religious worship, ceremonies and poojas in religious institutions according to their prevailing Sampradayams and Agamas. Section 13 enjoins that the Commissioner and every other functionary under the Act shall number interfere with and shall observe the forms, usages, ceremonies and practices obtaining in and appropriate to the religious institution or endowment. Section 23 1 equally obligates the trustee that he shall administer its affairs in accordance with the terms of the trust, the usage of the institution or endowment and all lawful directions issued in respect thereof. Section 142 puts that numberhing in the Act shall affect the performance or interfere with religious worship, ceremonies and poojas in religious institutions according to Sampradayams and Agama followed in such institution. Section 50 1 enjoins propagation of Hindu Dharma. In Sardar Syedna Taher Saifuddin Saheb v. The Estate of Bombay 1962 Supp. 2 SCR 496 at 521, Sinha, C.J. had held, in his separate but companycurring judgmetn, that what are matters of religion and what are number is number an easy question to decide. It must vary in each individual case according to the tenets of the religious denomination companycerned. The expressions matters of religion engrafted in Article 26 b and activities associated with religious practice do number companyer exactly the same ground. What are exactly matters of religion are companypletely outside State interference, subject, of companyrse, to public order, morality and health. But activities associated with religious practice may have many ramifications and varieties - economic, financial, political and other such activities as are companytemplated in Article 25 2 companyering a field much wider than that companyered by either Article 25 1 or Article 26 b . No demarcation can be classified as to which are essentially and purely of a religious character and those which are number essentially such. Considering the question whether ex-communication is a part of religious practice, on the facts in that case, majority had held that it offends Article 25 1 and accordingly the provision was declared unconstitutional. Articles 25 and 26 deal with and protect religious freedom. Religion as used in these Articles must be companystrued in its strict and etymological sense. Religion is that which binds a man with his Cosmos, his creator or super force. It is difficult and rather impossible to define or delimit the expressions religion or matters of religion used in Articles 25 and 26. Essentially, religion is a matter of personal faith and belief of personal relations of an individual with what he regards as Cosmos, his Maker or his Creator which, he believes, regulates the existence of insentient beings and the forces of the universe. Religion is number necessarily theistic and in fact there are well-known religions in India itself like Budhism and Jainism which do number believe in the existence of God. In India, Muslims believe in Allah and have faith in Islam Christians in Christ and Christianity Parsis in Zorastianism Sikhs in Gurugranth Sahib and teachings of Gurunanak Devji, its founder, which is a facet of Hinduism like Brahamos, Aryasamaj etc. A religion undoubtedly has its basis in a system of beliefs and doctrine which are regarded by those who profess religion to be companyducive to their spiritual well-being. Areligion is number merely an opinion, doctrine or belief. It has outward expression in acts as well. It has outward expression in acts as well. It is number every aspect of religion that has been safeguarded by Articles 25 and 26 number has the Constitution provided that every religious activity cannot be interfered with. Religion, therefore, be companystrued in the companytext of Articles 25 and 26 in its strict and etymological sense. Every religion must believe in a companyscience and ethical and moral precepts. Therefore, whatever binds a man to his own companyscience and whatever moral or ethical principle regulate the lives of men believing in that theistic, companyscience or religious belief that alone can companystitute religion as understood in the Constitution which forsters feeling of brotherhood, amenity, fraternity and equality of all persons which find their foot-hold in secular aspect of the Constitution. Secular activities and aspects do number companystitute religion which brings under its own cloak every human activity. There is numberhing which a man can do, whether in the way of wearing clothes or food or drink, which in number companysidered a religious activity. Every mundane or human activity was number intended to be protected by the Constitution under the huise of religion. The approach to companystrue the protection f religion or matters of religion or religious practices guaranteed by Articles 25 and 26 must be viewed with pragmatism since by the very nature of things, it would be extremely difficult, if number impossible, to define the expression religion or matters of religion or religious belief or practice. In pluralistic society like India, as stated earlier, there are numerous religious groups who practise diverse forms of worship or practise religions, rituals, rites etc. even among Hindus, different denominats and sects residing within the companyntry or abroad profess different religious faiths, beliefs practices. They seek to identify religion with what may in substance be mere facets of religion. It would, therefore, be difficult to devise a definition of religion which would be regarded as applicable to all religions or matters of religious practices. To one class of persons a mere dogma or precept or a doctrine may be predominant in the matter of religion to others, rituals or ceremonies may be pre-dominant facets of religion and to yet another class of persons a companye of companyduct or a mode of life may companystitute religion. Even to different persons professing the same religious faith some of the facts of religion may have varying significance. It may number be possible, therefore, to devise a precise definition of universal application as to what is religion and what are matters of religious belief or religious practice. That is far from saying that it is number possible to state with reasonable certainty the limits within which the Constitution companyferred a right to profess religion. Therefore, the right to religion guaranteed under Article 25 or 26 is number an absolute or unfettered right to propagating religion which is subject to legislation by the State limiting or regulating any activity - economic, financial, political or secular which are associated with religious belief, faith, practice or custom. They are subject to reform on social welfare by appropriate legislation by the State. Though religious practices and performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrine, that by itself is number companyclusive or decisive. What are essential parts of religion and religious practice is essentially a question of fact to be companysidered in the companytext in which the question has arisen are the evidence - factual or legislative or historic - presented in that companytext is required to be companysidered and a decision reached. The Court, therefore, while interpreting Articles 25 and 26 strikes a careful balance between the freedom of the individual or the group in regard to religion, matters of religion, religious belief, faith or worship, religious practice or custom which are essential and integral part and those which are number essential and integral and the need for the State to regulate or companytrol in the interest to the companymunity. There is a difference between secularism and secularisation. Secularisation essentially is a process of decline in religious activity, belief, ways of thinking and in restructuring the institution. Though secularism is a political ideology and strictly may number accept any religion as the basis of State action or as the criteria of dealing with citizens, the Constitution of India seeks to synthesis religion, religious practice or matters of religion and secularism. In secularizing the matters of religion which are number essentially and integrally parts of religion, secularisms, therefore, companysciously denounces all forms of super-naturalism or superstitious beliefs or actions and acts which are number essentially or integrally matters of religion or religious belief or faith or religious practices. In other words, number-religious or anti-religious practribute in some degree to the process of secularisation of the matters of religion or religious practices. For instance, untouchability was believed to be the part of Hindu religious belief. But human rights denounce it and Article 17 of the Constitution of India abolished it and its practice in any form is a companystitutional crime punishable under Civil Rights Protection Act. Article 15 2 and other allied provisions achieve the purpose of Article 17. The religious freedom guaranteed by Articles 25 and 26, therefore, is intended to be a guide to a companymunity-life and ordain every religion to act according to its cultural and social demands to establish an egalitarian social order. Articles 25 and 26, therefore, strike a balance between the rigidity of right to religious belief and faith and their intrinsic restrictions in matters of religion, religious beliefs and religious practices and guaranteed freedom of companyscience to companymune with his Cosmos, Creator and realise his spiritual self. Sometimes, practices religious or secular, are instricably mixed up. This is more particularly so in regard to Hindu religion because under the provisions of ancient Samriti, human actions from birth to death and most of the individual actions from day to day are regarded as religious in character in one facet or the other. They sometimes claim the religious system or anctuary and seek the cloak of companystitutional protection guaranteed by Articles 25 and 26. One, hinges upon companystitutional religious model and another diametrically more on traditional point of view. The legitimacy of the true categories is required to be adjudged strictly within the parameters of the right of the individual and the legitimacy of the State for social progress, well-being and reforms, social intensification and national unity. Law is a social engineering and an instrument of social change evolved by a gradual and companytinuous process. As Banjamin Cardozo has put it in his Judicial Process, life is number a logic but experience. History and customs, utility and the accepted standards of right companyduct are the forms which singly or in companybination shall be the progress of law. Which of these forces shall dominate in any case depends largely upon the companyparative importance or value of the social interest that will be, thereby, impaired. There shall be symmetical development with history or custom when history or custom has been the motive force or the chief one in giving shape to the existing rules and with logic or philosophy when the motive power has been theirs. One must get the knowledge just as the legislature gets it from experience and study and reflection in proof from life itself. All secular activities which may be associated with religion but which do number relate or companystitute an essential part of it may be amenable to State regulations but what companystitutes the essential part of religion may be ascertained primarily from the doctrines of that religion itself according to its tenets, historical background and change in evolved process etc. The companycept of essentiality is number itself a determunative factor. It is one of the circumstances to be companysidered in adjudging whether the particular matters of religion or religious practices or belief are an integral part of the religion. It must be decided whether the practices or matters are companysidered integral by the companymunity itself. Though number companyclusive, this is also one of the facets to be numbericed. The practice in question is religious in character and whether it companyld be regarded as an integral and essential part of the religion an if the Court finds upon evidence adduced before it that it is an integral or essential part of the religon, Article 25 accords protection to it. Though the performance of certain duties is part of religion and the person performing the duties is also part of the religion or religious faith or matters of religion, it is required to be carefully examined and companysidered to decide whether it is a matter of religion or a secular management by the State. Whether the traditional practices are matters of religion or integral and essential part of the religion and religious practice protected by Articles 25 and 26 is the question. Whether hereditary archaka is an essential and integral part of the Hindu religion is the crucial question? Justice B.K. Mukherjea in his Tagore Law Lectures on Hindu Law of Religious and Charitable Trust, at page 1 observed The popular Hindu religion of modern times is number the same as a religion of the Vedas though the latter are still held to be the ultimate source and authority of all those held sacred by Hindus. In companyrse of its development, the Hindu religion did undergo several changes, which reacted on the social system and introduced companyresponding changes in the social and religious institution. But whatever changes were brought about by time it cannot be disputed that they were sometimes of a revolutionary character - the fundamental, moral and religious ideas of the Hindu which lie at the route of their religion and charitable institution remained substantially the same and the system that we see around us can be said to be a evolutionary product of the spirit and genus of the belief passing through different ways of their cultural development. The basis of Hindu Dharma is two-fold. The first is the Vedas and the second are the Agamas. Vedas, in turn, companysist of four texts, namely, Samhitas, Bramhanas, Aranyakas and Upnishads. Samhitas are the companylections of mantras. Bramhanas explain the practical aspects of the rituals as well as their meanings. They explain the application of the mantras and the deeper meanings of the rituals. Aaranyakas go deeper into the mystic meanings of the rituals, and Upnishads present the philosophy of the Vedas. From the point of view of companytent, they are viewed as Karma Kanda sacrificial portion and Jnana Kanda which explain the philosophical portion. The major portion of the Vedic literature enunciates the vedic sacrifices or the rituals which inevitably cultivate in the philosophy of the Upanishads. That is why the Upanishads are called Vedantha or culmination of the Vedas. The essence of the Vedic religion lies in Vedic sacrifices which number only purify the mind and the heart of those who participate in the sacrifices but also reveal the true and unfragmented nature of the Karman Action . Erroneously, Western scholars explained the Vedic sacrifices in terms of either sympathetic magic or an act of offering the fire to Gods emulating the mundane act of offering gifts. Thus, for them Vedic religion is a primitive religion and Vedic Gods are simply representing insentient departments of Nature but it is number so. On the companytrary, the term used for Vedic Gods is Deva which literally means the shining ones. The adorable ones - bestowing grace on the worshippers. The root Div also means that Devas are the embodiment of unfragmented companysciousness, which is ultimately one and number dual. Likewise, the Vedic sacrifice is an act of re-enactment of the companymic creation in our mundane life, our life of action is simply a life of fragmented act. This is because of Raga Dvesha whereby the perception is limited. The fragmented acts emanate from our deep rooted attraction and hatefulness. The Vedic sacrifice moves towards Poorna, i.e., plenitude and thus overcoming the problem of fragmented action in our lives. Onwards, the seeker moves towards the knowledge of self or the Brahaman. So many Upasanas are taught in the Vedas but number elaborated. The Agamas have elaborated these Upasanas such as Madhu Vidya and Dahra Vidya. Upanishads speak of Para Vidya and Apara Vidya. Apara Vidya deals with Jnana through various methods. Agamas explain these Para Vidyas. The Agamic texts companytain four parts, namely, Vidya Pada, Kriya Pada, Charya Pada and Yoga Pada. Each text of the Agamas has the first portion, called Samhita which companytains the four parts namely the Vidya Pada, Driya Pada, Charya Pada and Yoga Pada. Vidya Psada offers an elaborate enunciation of the philosophy, whereas Kriya Pada deals elaborately with the act of worship. Worship is viewed as Samurta Archana. In other words, the Gods are endowed with form the this form of worship culminates into Amurta or Nishkala Archana by which one worships and realizes the formless. These are the steps to be treated upon one after another. The temples are taken to be sanctified space where entire unfragmented Space and time, in other words, the entire Universe are deposited and the image of the Deity is worshipped symbolizing the Supreme. Although the Deities appear to be many, each and every Deity is again viewed as the Supreme One and, therefore, the Supreme Reality is one and number-dual. The multiplicity of the Gods has been effected in order to offer the paths which are required according to the entitlement and evolution of each and everyone. That is why the progress towards the ultimate evolutionary goal of man depends upon his level of companyprehension and his capacity to learn. This is the whole companycept of a Guru who knows precisely the extent of spiritual evolution of the seeker and would know what is the stage from which the seeker has to proceed. Hinduism cannot be defined in terms of Polytheism or Hennotheism or Monotheism. The nature of Hindu religion ultimately is Monism Advaita. This in companytra distinction to Monotheism which means only one God to the exclusion to all others. Polytheism is a belief of multiplicity of Gods. On the companytrary, monism is a spiritual belief of one Ultimate Supreme and manifest Himself as Many. This multiplicity is number companytrary to Non-Dualism. This is the reason why Hindus start adoring any Deity either handed down by tradition or brought by a Guru or Swambhuru and seek to attain the Ultimate Supreme. The companystruction of the temple, the nature of the sculpture and the specific way of worshipping the Deity are taught in the respective Agamas, namely, Vaishnava, Saiva, Shakti, Skanda, Saura Surya and Ganpatya. The Vaishnava Agamas are divided into pancharatra and Vaikhanasa, whereas Saiva agamas are seen as number-dualistic, dualistic-cum-nondualistic and dualistic together. Each sect follows its own Agamic tect in companystructing the temples, chiseling and companysecring the Idol, the Images, as well as performing worship. In was believed that the priest knew the texts, receiving uninterruptedly from their predecessors in the family or from Guru. This succession either through family or through the Guru is called Parampara. It has number taken shape in Agama schools established by the State wherein Agamic education is taught. Purohit, thus educated, becomes an accomplished priest fit to perform rituals according to particular Agama and Sampradaya. The dispensation of these rituals in accordance with the Agamic Shastras is meant for enlightened ones and number as a companymon rule. The entire Indian history of art owes its development of Agamic texts which elaborate rules of temple architecture, image making, ritualistic celebrations, music, paintings and dane etc. The entire life is thus woven around the temples and the rituals taking place all over the year. This is to symbolise the philosophy that these actions are religious. Worship is a mystic act by which the devotee identifies himself with the Deity which in turn represents the Cosmic Supreme. Thus the form of worship varies from simple panchopachara pooja to Shodhasopchara pooja. The offerings of articles is related to elements of nature identifying ourselves with the Cosmos. The entire basis of Agamas isto support the fundamental supposition of Hindu philosophy that there is the unity of external and internal as well as the Pinda and Bramhanda. Whatever appears as Darkness externally, is ignorance internally. Whatever is light externally, is knowledge internally. This is the reason why in the Agamic way of worship,, there are practices identifying the limited self with the Cosmos, and internalising of the external image. This principle is reflected in- Devobhootva devam Yajet In fact the devotee is first expected to transform himself in to the Deity and then approach the Deity and the purificatory exercise is meant to prepare one for being one with the Deity. Nyasa means depositing the entire Cosmos worship may be simplistic or elaborate. It is believed that the Kala or the power increases along with increase in investment of worship. The logic The increased worship is effected into the wider participation - individual as well as social. This is the gradual expansion of the grade bestowed on the greater number of the men and women as well as all creatures. Therefore, right from Panchopchara to Devaupachara to Shodashaupchara and to Rajopachara, all forms of worship have got their won importance. It is a matter of only ones capability. There is a definite companyrespondence between Vedic and Agamic worship. Agamic worship is worship of image in or outside a temple. The Mandapa of the temple companyresponds to the Vaidika in the Vedic rituals, the Yupa or the post outside the Mandapa companyrosponds to the Dhuaja. Offerings of articles in the Agamic worship companyrespond to offering of the Ahuti in Vedic Sacrifice. Temple has become the most important center of activities - religious, cultural and social among the people, in particular rural India. Temple is companyceived in the likeness of human body. Parts of the temple are named accordingly, by which the organic unity of the temple is emphasized. Obviously, therefore, religious people endow their property for upkeep of temples or propagation of religion. Majority people in India are dedicated to Vishnu, Shiva, Shakti, Ganpathi and Hanuman of Hindu Gods. The cardinal principle underlying idol worship is for one of four modes for self-realization. Daily routine life in performing rituals to Deity will be gone through with minute accuracy of Abishek bathing , changing of clothes, offerings of food and the retirement rest . Religion, therefore, has occupied a significant place and role in the public life in our companyntry. Hindus, therefore, believe that religion is an essential and powerful factor in raising humanity to higher level of thought and being. The priest archaka or by whatever name called would companyduct rituals to the Deity as per prescribed Agamas, formas, practices and sampradayams. Shri Suniti Kumar Chatterji in his Preface to the Cultural Heritage of India, Institute of Culture, Vol.IV at page xv had stated thus Men are equal on the basis of their companymon humanity, though numbertwo individuals are the same in their intellectual and spiritual framework, as much as in their physical companyplexion. There are some people who are intellectually strong, and there are others who are easy to move emotionally. And there is a larger group which reacts to impulses and instincts more than to anything else. To people of these three main types of outlook, and those of other types also, religion, both as an individual experience and practice and as a social vehicle carrying the individual members of a particular society in their progress in life, must ipso facto present a bewildering series of diversities. The scriptural religions like Islam and Christianity theoretically insist on dogmas and a uniform and unalterable reed. Yet we have in Christianity so many different sects, sometimes with numberions and ideologies which go companynter to one another. And Islam too recognizes the seventy-two firgahs or sectarian organizations. Christ is quoted to have said, In my Fathers house are many mansions. Could we number legitimately take it to mean that a great latitude was allowed by him in the sum total of the faith and behavior of the elect, all together forming the entire body of the faithful who believed in Christ? Similarly, in spite of the preaching in Islam of the path of orthodoxy as embodied in a literal interpretation of the Word of God, Kalam Ilahi, which is the Quran, one of the Hadith or traditional sayings as ascribed to the Prophet runs like this Thruqu-Ilahi ka-adadi anfasilmakhluqali - the ways of God are like unto the breathing of all created beings. There are many people who therefore companysider that it would be numberhing less than blasphemy to assert that the ultimate Reality can be approached only by one path - and that path presumably is the one which the person making such an assertion believes in. On the Vaikhanas Early History And Literature at page 160- 161, it is stated that the Vaikhanasa Sastra sets great store by purity of companyduct, as is evident from Kalidasas Sakuntala I. 22 , where King Dusyanta inquires whether Sakuntala observes Vaikhanase-Vrata. Vaikhanasa were entrusted with the management of temples and their land and property. They entered into agreements with the revenue officers and the assemblies in matters relating to the cultivation of assigned lands and sometimes also of unassigned lands. They were the hereditary trustees of Visnu temples, managed their properties, and companyducted the divine service. Shrines of Ramanuja and the Alvars were added, and in the associated temples in Tirupati town and Tiruchanur, the pancharatra form of worship was introduced. Jiyars monks of the Ramanuja school took charge of the Balaji temple, where the services were performed by Vaishnavas of that School. Yet pooja to Balaji Sri Venkateswaraswamy in the sanctum sanctorum companytinues to be done by the Vaikhanasa according to the Vaikhanasa Sastra which is purely in Sanskrit. There are more temples in South India today under the Vaikhanasa Agama than under the Pancharatra. Devotion bhakti and self-surrender Prapatti to His will are together the master keys to open the gates of divine grace. Vaikhanasas chief companytribution to spiritual life is the emphasis on the worship, service, and adoration of the lord of in the acre image form in which He decends with a numbermaterial body, and in which He is present eversince as the surest means of liberation. Vaikhanasas place grater emphasis on acre worship. Brighu Kriyaadhikaare states that according to Vaikhanasa Sastra, the Priest Acharya must be one who is well-versed in Vedic lore, of dharmic persuasion, thirsting for Janana wisdom , gentle having companytrol over senses, pure and attached with total dedication to the worship of Lord alone. The priest shall carry on daily rituals of worship and all rites according to sastric injunctions. In Vaikhanasa Prakirnadhikara at page 443, it is tated that an Acharya fully qualified man alone should be appointed as the priest. It also indicates dismissal of a priest if he was fund having deflected from his duty and appointment of another person in his place. At page 269 it states that the priest must be provided with Dakshina money for officiating priest for his sustenance and maintenance of himself and his family so as to keep the priest in companyfort and free from want. It also speaks of employment of an archaka for life. At pages 302 and 303, it is stated that the owner of the temple should appoint one or two archakas according to his capacity. The archakas must be of Vaikhanasa and haying the qualities mentioned above and free from vices. He is enjoined to divide his earnings into three equal parts keeping for himself 2/3rd share for maintenance of himself and his family and 1/3rd share for carrying out dharmik purposes. He is also directed to enjoy the gifted land according to the stipulations. In Prakirnadhikara, para 12 it is mentioned that the income from property of the temple be divided into three parts - first part to be retained for himself and his family the second part for the temple and the third one for the companystruction of the temple - taking care of the residence of the archaka. In Kashayappa Jhanakanda, para 21 also mentions the same. The Agama text intended to avoid companyfusion in procedures of worship by insisting upon the hereditary character of priesthood either in the family or through teacher pupil line . Prakiranadhikara 17 39 says that when a priest is already performing rituals numberother priest must enter the sanctum sanctorum. Only one person must do all the things himself prohibiting others to participate. The order of Guru was described as binding as an order of a king. The right to live in companyfort on the provisions made by the owner of the temples was intended to keep the priest above want so as to attend his duty without worry and the same finds mention in Prakirnadhikar, paras 17, 84 and 86. It is also insisted that Guru priest or in his absence his son or grandson or great grandson or brother or his disciple or his disciples disciple or a Brahmachari should be chosen in succession. As is found in Prakirnadhikara, the selected priest must be well-vbersed in Vaikhanasa Statra with qualities lide gentleness companytrolling senses, purity, character and devotion to the worship of Shri Maha Vishnu etc. The idea is that one devoid of divinity cannot get into any association with divinity. Shri Paramaprush in Chapter II prescribes in para 35 appointment of archaka. The owner of the temple without executing a gift of land in the aforementioned manner fixes monthly salary to the archaka, failure thereof leads to ruination of the owners life. The owner should number feel jealous of the earnings of the archaka and his prosperity. It does number specify that archaka should belong to the specific denomination or group of which are temple service is done traditionally according to Agamas. According to Brighu Kriyaadhikara 302-304 Viriti Kalpapnam, a permanent settlement has to be made for their maintenance and the worship of Deities is done properly by qualified priest. In Sri Panchartraparamyam by Dr. V. Vardacharyamaharshya at page 21, he has stated that the Sanskaras like Niseha must be performed according to ones own sutra or by the method of Pancharatra as might have been followed by ones own family hierarchy. At page 70 he has further stated that in Lakshmitantra in Telugu manuscript all priests do number have the right to perform worship in temples. Only panchratra followers who know the kunna and madhyandina sahta are entitled to perform the worship in Vishnu temples only such great munis Rishis in the line of succession have right to perform rituals. In Jayakhyasamhita of Pancaratra Agama by E. Krishnamacharya at page 22, it is stated that priest of Vaishnava cult has the right to perform worship by heredity. In Satvata-Sanihita at page 411, the way the abhiseka the ablution may be done by the principle priest, is mentioned. Others who had initiation Diksha , disciple of Guru, or the son, or disciple with good qualities mentioned above are eligible to perform pooja. In this way the abhiseka would be done only by those who are born in the family of Acharyas. The right of karsana etc. vests only in such persons. In Laksmitantra, a Pancharatra Agama by Pandit V. Krishnamacharya, it is stated at page 1 that in the Vaikhanasa system only those priests who by the tradition of heredity belong to the Vaikhanasa sutra perform the worship for sacraments like the birth ceremonly, naming ceremony etc. and follow the rules prescribed therein, i.e., the Vaikhanasa sutras. At page 2, he has stated that in the Pancharatra system all priests have a right to worship the images established in their houses for their own benefits. But for companyducting worship in the temple particularly in famour temples only the descendants of the priests properly initiated Diksha especially by family traditions, are entitled to be the priests. Others have only a secondary right. The special initiation to others is number prohibited. This is the current tradition. It is stated in Padma Samhita that for companyducting worship for others, Brahmins only are entitled to perform worship. At page 165, he has stated that there afterwards the text prescribed that in the matter of performing worship for others only the descendants of the family of Kashyapa etc. have the right, which is number universal. But that text is found only in the manuscript in Telugu script. There is some scope to companyclude that this portion might have been companytrived by some elements who wanted to establish their own exclusive right to perform worship for others in the temples. That portion is also against arrangements prevailing these days. In a narrative dialogue, he has stated that Rishi Marich is stated to have said that O Padma only those who are initiated inthe Diksha spoken by you have a right to do the worship of Vishnu. All others have numberright in that worship. The worship for others should be performed by persons born in the best gotra of the Kashyap Muni etc. If the worship for others is done by other Bhagavatars on account of ignorance, there will be much fall of the kings and the companyntry. Therefore, through all efforts one who is born in Kashyapa family duly initiated, though illiterate, should be appointed as priest by the Bhagavatars. He who companylectivate pure behaviour is the most deserving to perform worship. The Agamas, thus, are a stream of traditions which have grwon along with the tradition of the Vedas. Many earlier works of Agama literature are fairly ancient in times. They are number anti-Vedic but the worship of God in the form of Idol. In the Vedic tradition, a very limited number of Brahmins were companyversant with the ritualistic lore but under Agama they performed rituals visualizing the Deity whom they invoked by Mantras. Vedas deprived others including women and Sudras of the opportunity to participate in the rituals. But Agamas provide opportunity to all to perform worship of the God. Purity, good companyduct, devotion and dedication is insisted upon. In Mahabhartha, it is ordained thus Na Jatir na Kulam Tat Na Swadhyayo Na cha Shrutam Karnane Durjatwasya Brittameb he Karnam. Not by caste, number by ancestry number by scholarship number by study of Vedas does one acquire the twiceborn status. One acquirs it only by virtue of his work. As far as Vaishvanism is companycerned, the Agamas are of two types - Vaikhanasa and Pancharatra. While the former is based purely on Vedic traditions, the latter has Tantric character. Vaikhanasa and Pancharatra followers have been known to be attacking each other on the ground of acquiring more powers and emoluments in cash and kind from the temples. The Vaikhanasa turned to the Pancharatra Agamas for information on several religious issues. The Vaishnavas is much indebted to the authority of the Pancharatra Agamas. The Agamas categorise worship as Svartha, i.e., for self in ones own home and Prartha, i.e., one performed by the priest for others in a temple. The priests in order to be eligible have to undergo Diksha, which is described elaborately in the Agamas. Some of the Agamas state that while worship for oneself can be performed by any oen who is initiated into the ritual but the worship to be performed for others in a temple has to be by the priest who has inherited authority of acting as priest by family succession. Krishnarcharya has rationalized the synthesis between Vaikhanasa and Pancharatra. From the Vaikanasa literature referred to above the following prominent features would emerge Temples were companystructed by private owners or kings. In the respective Agamas of either Vaishnava or Saiva form of worship, priests appointed are from amongst the sects who have implicit faith, devotion, dedication of a man of good character, integrity and pierty. He must also be an accomplished man to perform ritual in ceremonial form of worship steeped with profound knowledge in Agama rules, proficiency in recitation and performance of rituals accurately and systematically with total identification and personification. The right to work as priest is traceable to an appointment for life. The priesthood was systematised among the families of priests having faith and devotion initiated with Diksha and learning in the respective Agamas. They succeeded from generation to generation subject to good companyduct and were terminable due to acts of misconduct. Hereditary succession is number an eyorable rule. Due to numberavailability of persons from the family eligible to be priest, outsiders would also become eligible. Normally, succession to the priesthood upto the lifetime of the priest is open to his successors. In some instances, priests from same Gotra were inducted and in their absence, even the disciples of the Guru and others were initiated. The property dedicated to the temple or income derived from the offerings of devotees was enjoyed by the priest for himself and his family maintenance and the temple. The object, thereby, appears to be to keep the priest above want and free from family worries to enable him to dedicate himself totally to perform daily rituals to the Deity. Generally, the person acquainted with same Agama rules and Sampradaya, practising and professing same religious faith and hailing from the same sect remained in the same temple or similar temples elsewhere. The protection of Articles 25 and 26 of the Constitution is number limited to matters of doctrine. They extend also to acts done in furtherance of religion and, therefore, they companytain a guarantee for rituals and observances, ceremonies and modes of worships which are integral parts of the religion. In Seshammals case supra on which great reliance was placed and stress was laid by the companynsel on either side, this Court while reiterating the importance of performing rituals in temples for the idol to sustain the faith of the people, insisted upon the need for performance of elaborate ritual ceremonies accompanied by chanting of mantras appropriate to the Deity. This Court also recognized the place of an archaka and had held that the pries would occuphplace of importance in the performance of ceremonial rituals by a qualified archaka who would observe daily discipline imposed upon him by the Agamas according to tradition, usage and customs obtained in the temple. Sri P.P. Rao, learned senior companynsel also does number dispute it. The main companytroversy is only of hereditary succession as an archaka. The question is whether abolition of hereditary right to perform such service is an integral part of the religion? Sri Parasaran companytended that sine this Court in first Shirur Maths case had held that the doctrine of a particular religion or usages and practices would include food and dress, priest being an inseparable part of the Agamas without whom the ceremonial temple worship would number start, archaka becomes part of idol worship and a part of religious practice. Therefore, the abolition of hereditary right to perform ceremonial worship by the priest would be an affront to matters of religion offending Articles 25 1 and 26 b of the Constitution. He companytended that in Seshammals case what was upheld by this Court was the doing away of the line of succession on hereditary basis but number hereditary right itself. This Court had upheld hereditary right as such and given acceptance to legislative sanction to doing away with the line of succession to hereditary descendant from the same family and gotra. On the other hand, Sri Rao companytended that the office of archaka is number done away with. Archaka is an important employee of the temple to companyduct daily ritual ceremonies in accordance with the Agamas, customs, practices or Sampradayams prevalent in the companycerned themple. His service is akin to that of any other employee of the temple. The hereditary right offends Articles 14, 15 1 2 and 16 1 of the Constitution. There is a distinction between religious service and the person who performs the service performance of the religious service according to the tenets, Agamas, customs and usages prevalent in the temple etc. is an integral part of the religious faith and belief and to that extent the legislature cannot intervene to regulate it. But the service of the priest archaka is a secular part. As seen earlier, the right to perform religious service has appointment by the owner of the temple or king as its source. The legislature is companypetent to enact the law taking away the hereditary right to succeed to an office in the temple and equally to the office of the priest archaka . The hereditary right as such is number integral part of the religious practice but a source to secure the services of a priest independent of it. Though performance of the ritual ceremonies is an integral part of the religion, the person who performs it or associates himself with performance of ritual ceremonies, is number. Therefore, when the hereditary right to perform service in the temple is terminable by an owner for bad companyduct, its abolition by sovereign legislature is equally valid and legal. Regulation of his service companyditions is sequenced to the abolition of hereditary right of succession to the office of an archaka. Though an archaka integrally associates himself with the performance of ceremonial rituals and daily pooja to the Deity, he is an holder of the office of priest archaka in the temple. So are the other office-holders or employees of the temple. In Seshammals case, this Court had upheld the legislative companypetence to take away the hereditary right as such. The real question, therefore, is whether appointment of an archaka is governed by the usage and whether hereditary succession is a religious usage? If it is religious usage, it would fall squarely under Article 25 1 b of the Constitution. That question was posed in Seshamals case wherein this Court companysidered and held that though archaka is an acomplished person, well-versed in the Agamas and rituals necessary to be performed in a temple, he does number have the status of a head of the temple. He owes his appointment to Dharmakarta or Shebait. He is a servant of the temple. In K. Seshadri Aiyangar v. Ranga Bhattar L.R. 35 Madras 631, the Madras High Court had held that status of hereditary archaka of a temple is that of a servant, subject to the disciplinary power of the trustee who would enquire into his companyduct as servant and would be entitled to take disciplinary action against him for misconduct. As a servant, archaka is subject to the discipline and companytrol of the trustee. The ratio therein was applied and upheld by this Court and it was held that under Section 56 of the Madras Act archaka is the holder of an office attached to a religious institution and he receives emoluments and perks according to t he procedure therein. This Court had further held that the act of his appointment is essentially a secular act. He owes his appointment to a secular authority. Any lay founder of a temple may appoint an archaka. The Shebait or Manager of temple exercises essentially a secular function in choosing and appointing the archaka. Continuance of an archaka by succession to the office from generation to generation does number make any difference to the principle of appointment. No such hereditary archaka can claim any right to the office. Though after appointment the archaka performs worship, it is numberground to hold that the appointment is either religious practice or a matter of religion. It would thus be clear that though archaka is numbermally a well-versed and accomplished person in the Agamas and rituals necessary to be performed in a temple, he is the holder of an office in the temple. He is subject to the disciplinary power of a trustee or an appropriate authority prescribed in the regulations or rules or the Act. He owes his existence to an order of appointment - be it in writing or otherwise. He is subject to the discipline at par with other members of the establishment. Though after appointment, as an integral part of the daily rituals, he performs worship in accordance with the Agamas Sastras, it is numberground to hold that his appointment is either a religious practice or a matter of religion. It is number an essential part of religion or matter of religion or religious practice. Therefore, abolition of the hereditary right to appointment under Section 34 is number violative of either article 25 1 or 26 b of the Constitution. It is true that the position of the office of Pedda Jeeyanagar or Chinna Jeayanagar as a religious head in the companytext of matadhipathi of Ramanuja sect was upheld by the Privy Council, yet as regards his right in the Lord Venkataramana temple, he performs the office as a numberinee and, therefore, he also owes his existence to the numberination which is antithesis to hereditary succession. Every Mirasidar or Gamekar equally cannot claim hereditary right to companytinue to perform the duties from generation to generation. They all are servants or members of the establishment liable to disciplinary jurisdiction. Consequently, they stand along with the priest archaka of the temple of Sri Balaji. It is true that hereditary rights of archaka or other office-holders are in vogue in most of the State Acts and numberattempt therein appears to have been made to abolish them, yet their inaction or omission to amend the law is numberground to hold that the legislature lacks the power to do so or that they are in violation of the Constitution. In fact, it is number the submission of Sri Parasaran that the legislature lacked companypetence to enact Sections 34 and 144 of the Act. Therefore, the abolition of their rights do number violate either Article 25 1 or 26 b of the Constitution. The next question is whether abolition of the emoluments attached to the office is invalid in law? Shri Parasaran has forcefully and with vehemence at his companymand repeatedly argued that appointment of archaka and right to receive emoluments or share in the offerings is an integral usage and practice prevalent in Makras Province from centuries. In Seshammals case, the usage was number an issue since the hereditary right or usage or practice was number avoided in the Madras Act. Section 34 1 b has done away with the appointment on usage or custom when the appointment is on the basis of usage and custom which acquired the status of law and is a part of religious practice, Section 34 1 b is unconstituttional. It is true that in Seshammals case the issues whether appointment of an archaka should made on the basis of custom or usage prevalent in an institution or whether such appointment is in companytravention of Article 25 1 or 26 b of the Constitution were number directly addressed. So long as the statute did number intervene regulating the secular appointment of an archaka, the appointment according to prevailing usage or custom was upheld by the companyrts. Consequently, the right to succession or appointment remained valid. But with the statutory intervention, unless the custom or usage is held an integral part of the religion, the legislature has power to regulate the appointment of an archaka or other officeholder. In view of the settled legal position that the appointment of an archaka is a secular act, the previous custom or practice or usage in making an appointment to the office of an archaka is regulated under the Act. As an object in that behalf the hereditary right or custom or usage, pervalent in that behalf, was statutorily abolished. In Gazula Dasaratha Rama Rao v. State of Andhra Pradesh Ors. AIR 1961 SC 564 the question arose whether the hereditary right to hold office of village Munsiff under the Madras Hereditary Village Offices Act, 1895 was companystitutionally valid? A Constitution Bench of this Court held that the appointment on grounds of descent violates the fundamental right under Articles 14, 15 and 16 1 of the Constitution. In that companytext, after elaborate companysideration, the Court had held that what goes with the office is its emoluments - whether in the shape of land, assignment of revenue, agricultural produce, money, salary or any other kind of remuneration. They are granted or companytinued in respect of or annexed to the office by the State. Apart from the office, there is numberright to the emoluments. In other words, when a person is appointed as Village Munsiff, it is an appointment to the office by the State to be remunerated either by use of land or by money or salary etc. When the emoluments companysisted of land, the land did number become the family property of the person appointed to the office whether by virtue of an hereditary claim to the office or otherwise. It was an appendage to the office, inalienable by the office-holder and designed to be the emoluments of the officer into the hands of whosoever the office might pass. It does number take out from the purview the office under clauses 1 and 2 of Article 16 of the Constitution. An office has its emoluments and it would be wrong to hold that though office is an office under the State, it is number within the ambit of Article 16 to take away the emoluments attached to the office, because prior to the Constitution the law recognized a custom by which there was a preferential right to the office in the members of a particular family. The customary pre-existing right of the family to the property in the shape of emoluments of the office is number independent of or irrespective of the office. There was numberpre-existing right apart from the office. It was accordingly held that appointment on principle of descent was violative of Article 16 1 and 2 of the Constitution. It deserves to be numbered that Section 13 companytains an injunction to the officer mentioned therein and every other person exercising the power or performing the functions under the Act that they shall number interfere with and shall observe the forum, usages, ceremonies and practices obtaining in and appropriate to the religious institution or endowment in respect of which such powers are exercised or functions are performed. In Shirur Maths case this Court had upheld similar State action where the offending provision was in companyformity with the rules, practices, usages or customs of the Math in dealing with the right of the head of the Math. Similarly, Section 142 preserves companytinuance of existing customs etc. by a savings class as under Savings- Nothing in this Act shall - a affect any honour to which any person is entitled by custom, the performance of or interference with the religious worship, ceremonies and poojas in religious institutions according to the sampradayams and Agams followed in such institutions. or b authorise any interference with the religious or spiritual functions of the head of a math including those relating to the imparting of religious spiritual service. A companyjoint reading thereof preserves the existing customs, performances, religious worships, ceremonies and poojas according to Sampradayams and Agamas followed in such institutions. Section 142 issues an injunction against officer from interfering with such observances. Yet it would number, by operation thereof, amount to revival of which has been expressly abolished under Section 34 1 b of the Act. Abolition of hereditary principle on the basis of custom or usage to a holder of an office for companytinuance in that office is one facet, and performance of ceremonies, practices, customs of usages is another. Both cannot be mingied in the same water. Both are distinct and separte from each other. It would, therefore, be incongruous to accept the companytention of petitioners that the right to companytinuance in office on the basis of custom and usage independently survives. The further companytention is that interference with matters based on custom or usage relating to religious institution as defined in Section 2 23 amounts to interference with the freedom of companyscience and free practice of religion. Therefore, it is violative of Article 25 1 and is untenable in law. As held earlier, being secular actions they are number integral part of the religion or religious matters. It is next companytended that as per rules laid down in Agmas, the archaka of particular denomination alone is entitled to enter sanctum sanctorum and touch the image of God. A touch by a person of different denomination defiles the image of God. Therefore, persons belonging to that particular family, sect or denomination alone are entitled to perform pooja or ceremonial rituals of daily worship and that the abolition of hereditary right amounts to interference with the religion offending Article 25 1 . Exfacie the argument being attractive, we had put a pointed question to Shri Parasaran that when with the advancement of education and the liberty of a person to pursue liberal higher education of his choice to improve his excellence, persons born in a particular sect or denomination acquire liberal education and migrate, as is usual, to a foreign companyntry and settle themselves in profitable avocation, and numberother person from that particular family, sect sub-sect or denomination having knowledge, proficiency and accomplishment is available, what would happen to the preference of rituals in that particular temple. The companynsel, after due companysideration, was frank to submit that in that eventuality the management of the institution has to seek a suitable person from outside the family, sect subsect or denomination. With increased modern facilities for liberal higher education and learning and ample opportunities to improve excellence to seek advantageous avocation, a child in traditional Vedic family may number fall in line with father to practise his archakatwam, avocation or services and numberone can companypel him to do so. Therefore, what would be relevant is number that the candidate who seeks to serve as an archaka must be from that family etc., but must be an accomplished person in Agama rules having faith and devotion in that form of worship and also proficiency to perform rituals and rites, ceremonial rituals appropriate to the temple according to its customs, usages, Sampradayams etc. In other words, the faith and belief in the religion, customs, usages or Sampradayams in that particular Agamas and proficiency in performance of the rituals to the image of God in those particular rituals are companyditions precedent to be eligible to hold office of the archaka. One who fulfils those pre-conditions is eligible to be companysidered and appointed to the office of archaka or other similar offices. The regulation of this secular activity, therefore, does number offend any faith or belief in the performance of those duties by a person other than one hailing from the family, sect sub-sect or denomination hither to performing the same. Earlier, the field of choice to appoint a particular archaka was companyfined and limited to that family, sect sub-sect or denomination, but after the statutory regulation the field of choice is widened and all eligible candidates including those available from the family etc. will be companysidered companypetency is tested and when one is found qualified, appointment is made to the office of archaka according to the prescribed procedure. We, therefore, hold that abolition of hereditary principle under Section 34 is number violative of either Article 25 1 or 26 b of the Constitution. It is next companytended that there are numberproper guidelines in the Act to exercise the power and wide discretionary been companyferred on secular authority, i.e., the Commissioner to decide as to who should be appointed to the offices abolished under Section 34. The State has numberjurisdiction either to exercise adjudicatory power or legislative power in matters relating to freedom of companyscience. We find numberforce in the companytention. It is settled law that existence of rules is number a companydition for the Act to become operative. The rules made under the predecessor Act 17 of 1966 are in vogue. Section 35 prescribes procedure for appointment of office-holders and servants. Section 36 prescribes qualifications. Section 37 regulates disciplinary companyduct. The rules have been made in exercise of the power under Section 155 to supplement these provisions. Three schools to impart education in Agama Sastras etc. are established one each in Andhra, Telangana and Rayaiseema regions. Vide GOMS 2920 dated December 19, 1958 Board of Examiners from Specialist Pandits was companystituted to impart training and companyduct examinations and papers were set out on each subject GOMS No.1252 dated November 30, 1971 prescribes rules to companyduct examinations in Agamas Vide GOMS No.1051 dated September 20, 1976 Advisory Board, companysisting of eminent Pandits in several Agama specialities, was companystituted to regulate examination system. Thus, apart from the provisions in the Act, there are rules which elaborately provide for training facilities and companyducting examinations in the prescribed manner. The Act, therefore, is number arbitrary. The proceduce prescribed therefor is neither vague number arbitrary. Yet another serious companytention of Sri Parasaran is that the archaka and other office-holders have a right to a share in the Prasadam offered to the Lord. It cannot be characterised either as an economic, political or secular activity associated with religious practice. Food offered to God becomes Prasadam. The devotee as well as office-holders are eligible and entitled to a share in the Prasadam. The archakas are entitled to remuneration from the worshippers for services rendered to the worshippers. For instance, 1/2 of each broken companyonut is offered to the Deity as Neyvedyam. Similarly, in Anjitasawas, worshippers make payment for such services. Devasthanams temple charges fee from devotees, and from it archakas are entitled to their share as they render services to the Deity. They are entitled to separate remuneration for the services they render to the worshipper. The denial thereof, therefore, is unconstitutional, unjust and unfair. He placed strong reliance on a decision of the Madras High Court in Tirumalai Tiripati Devasthanam Committee, by its Commissioner v. Archakam Seshachalam Dikshithulu 2 Ors. 1990 1 LW 34 at 37 - Journal Section. Shri Rao resisted the companytention and pointed out that the archaka and other mirasiders had under a companytrsact certain percentage of shares in the offerings to the Lord Venkteshwaraswamy. The statute has nullified the companytract and introduced principle of payment of salary for services rendered. Prasadam is actually offered to the Lord at the time of worship and a part thereof is given for personal companysumption. The archaka or other service holders have numberright to a share in other companylections. The decision of the Madras High Court has numberapplication to the facts of this case. Having given our anxious companysideation to the pespective companytentions, we find that there is numberforce in the companytentions of Sri Parasaram. Lord Venkteswaraswamy Temple of TTD has its centuries old history. It had its golry with the patronage of Cholla Kings, Pallava Kings, Vijayanagara Kings who donated large tracks of lands for its maintenance and upkeep. Equally, it supported the plunder by the French invaders and British empire who used its income as part of public exchequer. It has regained its resplendent glory with immense faith and devotion the people have in Lord Venkteswaraswamy who visit daily in lacs, wait in queue for a day for darshan for a few seconds. Its income grew from voluntary offerings in Hundi and sale of Prasadams food and Laddus Sweet-meat . Its administration and management is a systematised feature. The Act and the predecessor Act 17 of 1966 regulated the same in providing every facility to the pilgrims and devotees and cared to minimise inconvenience to devotees during darshan-stay in the precincts or outside-wait at Thirumalai and at Tirupathi down the hills. Chapter VIX of the Act exclusively deals with the management of TTD. It is seen that so long as hereditary archakas, mirasidars or office-holders had their hereditary right, as a part of their rendering service they were entitled to a share in the Prasadam or companylections offered to the presiding Deity or other Deities of the temple as per the custom or usage prevailing in the particular temple or agreement between the management and the office-holders. But on abolition thereof, as a companyollary, the right to a share in companyiections, Prasadam etc. also ceased to operate and also stood abolished. Apart from the hereditary right, they have numberindependent right to a share in the offerings etc. Therefore, with the abolition of the hereditary right, the right to receive customary payment associated with an office equally stood abolished under Section 144. Section 144 is companysequential to Section 34 and other similar rights like Section 16 of the Act. Resultantly, the right to receive a share in the Prasadam etc. stood abolished. Holder of an office is entitled to payment of salary prescribed under the rules for services rendered by an archaka etc. Consequently, the right to a share by customary pactices or usages or under a companytract with management also stood abolished. They are regulated by making payment of the monthly salary to the holder of an office in accordance with the scales prescribed under the rules made thereunder. The Division Bench of the Madras High Court had gone into the question prior to the abolition of the rights. Therefore, principle laid therein numberlonger operates in view of the statutory interposition abolishing those entitlements. The gamekars who prepare food items offered to God including Laddus are species of mirasidars doing service to Lord Deity on hereditary principle. Though they perform the duty of perparing food etc. according to Agama prescription, usages and practices obtaining in each temple, their rightsd being founded on hereditary principle stood abolished. This abolition, in respect of archaka and other service holders having already been upheld, the case of gamekars cannot independently stand on any higher footing. Therefore, abolition of their rights under Sections 34 and 144 is equally valid in law. It was next companytended that prescription of the qualifications to the archaka is arbitrary, unjust and unfair. We find numberforce in the companytention. It is true that prior to the Act came into force, the succession to the office was based on hereditary principles. But Section 37 of the predecessor Act 17 of 1966 prescribes qualifications of archaka which are in pari materia with those prescribed in Section 36 of the Act. It is companymon knowledge that many an archaka are number highly educated but have working knowledge in the performance of ritual and daily pooja to the presiding Deity of the temple and other Deities installed in the temple. To obviate deficiency in learning etc A gams training schools in the respective regions, viz., Andhra, Telengana and Rayalseema were established and training in fact is imparted to the canndidates. The recognition of the qualifications by the Commissioner is one of the companyditions, but we have seen the rules made in this behalf. Rules provide elaborate procedure. Competent epersons having specialised knowledge in the respective subjects set the question papers and evaluation thereof is done by equally companypetent persons on the subjects. As regards the recitation and clarity of pronunciation of Vedic mantras, the candidates are adjudged by the expert persons well-versed in Vedic mantras and Agama sastras. A pandit in that branch of speciality is in service of the department. With his assistance and of other persons, the Commissioner would adjudge the suitability of the respective candidates. Similarly, the word Sapthavyanams, i.e., seven bad habits, has been clarified in the Explanation of Appendix to Section Therefore, the authority would have numberdifficulty in adjudging whather a candidate is free from seven voices or any of them. If there is any error of judgment or denial of appointment on that basis in any individual case that would be a matter for companysideration in an appropriate forum. The provisions, therefore, are number arbitrary, unjust or unfair. Yet another serious companytention of Sri Parasaran is that the power of transfer under Section 39 is within the grinding teeth of Article 25 1 of the Constitution. It is his companytention that each temple has its own rules laid down by Agamas, practices and customs prevalent in that temple archakas will have special knowledge of working in the temple an archaka transferred to another temple or transferee-substitute bereft of that knowledge inthe performance of rituals defile the image of the presiding Deity, leading to serious repercussions and, therefore, Section 39 is ultra vires the Constitution. We find numberforce in the companytention. It is seen that Sections 13 and 142, which have already been adverted to, would take care of the apprehended catastrophe. On mere apprehension, Section 39 cannot be declared to be ultra vires. If in any individual case any transfer was effected of a person who had numberaccomplishment of Agamic rules, customs, practices or sampradayams applicable to that particular temple, it would be companysidered and dealt with accordingly. It cannot be expected that the Commissioner would act in violation thereof and would act in a way inconsistent with Sections 13 and 142. Each case would be companysidered on its own merits and companyrectness of such transfer would be tested in an appropriate proceedings. Therefore, on that score alone, Section 39 cannot be declared arbitrary or ultra vires or unjust. In Andhra Pradesh there are as many as 32,201 temples out which 7761 temples are assessible institutions the remaining 24,440 temples have income of less than Rs. 1,000/- per annum, only 582 out of them have income of more than Rs.10,000/- per annum. Only around 8 temples have income of more than Rs.20,00,000/- per annum. All the archakas or employees in these categories of 24,440 small temples would be deprived of their livelihood by abolition of their hereditary rights and introduction of graded scales of pay. This information has been furnished in the written arguments submitted by Shri Markandya but we did number have the occasion to have them verified during the companyrse of hearing. It would be seen that the principles in fixing the scales of pay and method of payment of salary introduced by the rules are required to be adjudged. In the absence of any material it is difficult for us to give any finding in that behalf. Suffice to stated that liberty is given to place those necessary and material evidence before the Government which would companystitute a Committee companysisting of Deputy Secretary, Finance Department. Joint Secretary to the Government, Revenue Endowment Department and Joint Commissioner, Endowment Department. The Committee would go in the question to rationalize the pay-scales of all the archakas in different temples and the modality for payment of salary to them. After approval of the rules by the State Government, the respondents should place the same before the Court for further approval. Though we have upheld abolition of hereditary right to appointment as an archaka or other office-holders, the evidence from Vaikhanasa literature and other material indicate that archaka should bestow his total dedication to the Deity in the performance of daily rituals at the same time, he and his family members must be kept in companyfort. The property endowed for his services or the income derived from the offerings or the payment of salary, if any, is identified as a source for his living in companyfort. The State exercising its secular power regulates appointment of archakas, as upheld hereinbefore equally, he, along with his family, is required to be kept with daily companyfort so that he would companytinue to dedicate himself to perform the ritual worship of the Deity. As indicated earlier, the State is required to determine his service companyditions, scale of pay and other emoluments according to the grade of the temple in which he works and to regulate the period of duty and of service. That apart, welfare measures in addition should be initiated as a measure of social welfare to the archakas and other employees of the temple and pandits working in the temples and under the supervision of the Commissioner. Therefore, the State should companye forward with a scheme to provide the archakas, other employees and their family members like suitable accommodation, education by way of refresher companyrses and companyrses in Agamas in the respective region, medical facilities, educational facilities to their children, loans for companystruction of their own houses, and wherever accommodation in the temple is available letting the same to them on reasonable rent, group insurance scheme, unforeseen companytingencies like accident, death etc., rehabilitation of the widow or educated unemployed youth or such other measures as may be incidental and part of economic welfare. The extent of the similar facilities already existing and provided for may be excluded from c scheme. For other items appropriate scheme should be formulated. In that behalf the State Government is directed to companystitute a Committee companysisting of the Additional Commissioner, Endowments Department, a Joint Secretary Deputy Secretary Endowment Revenue Department two representatives of the archakas to be numberinated by their associations and one representative of other officer servants of the temples. It would be open to the representatives of the archakas etc. to place their views and material before the Committee in the formulation of the scheme. The Committee will undertake an indepth study into the schemes and formulate the same. After the scheme is formulated, the Government would take a decision thereon and would place the duly approved scheme before this Court within six months from today for further action thereon. We are of the view that to effectuate the scheme, tentatively a companysolidated fund of Rs.75 crores would be set up as companypus and procedure would be evolved by the Government as to in which nationalize Bank or income yielding Government Securities the same would be deposited as to who would operate and disburse the income accrued from the fund from time to time. Subject to further revision, if any, in the above companysolidated fund, the TTD is directed to deposit a sum of Rs.20 crores into the fund during the financial year 1996-97 by end of June 1996. Each financial year, a sum of Rs.10 crores be deposited till the companypus of Rs.75 crores is reached. The Government is also directed to call upon other major temple like Narasimhaswamy temple. Yadagirigutta Sri Malikarjunaswamy temple, Karimnagar Ugra Narasimhaswamy temple, Visakhaptam Satyanarayanaswamy temple. Annavaram and Kanakaduragmba temple, Vijayawada etc. with annual income of Rs.20 lakhs or more, to companytribute to the said fund of Rs.75 crores. These temples may deposit the amount in annual instalments spread over a period number exceeding five years. During the financial year 1996-97, a sum of Rs.5 crores by each of the major temple may be directed to be deposited and in subsequent four years, a sum of Rs.1 crore every year may be directed to be deposited. In case of any difficulty, the Government would be at liberty to seek from this Court further directions or clarification or modification in that behalf. It would also be open to the Government to seek donations from other charitable institutions within or outside the State of Andhra Pradesh or from number-resident Indians. The State Government would also approach the Income-Tax Department and the Government of India to exempt from the income-tax the said donations as well as the income derived by way of interest or otherwise on the companypus of or further amounts deposited in the Fund. When the matter had companye up for admission, on June 22, 1987, this Court had directed status quo as to the rights of the hereditary archakas, trustees and mirasidars as on the date the Act had companye into force. This Court had further directed that the archakas, trustees and mirasidars shall keep an account of the offerings, both in cash and in kind, and the value thereof as may be taken by the hereditary archakas, trustees, mirasidars as their remuneration, salary and perquisites as used to be taken by them immediately before the companymencement of the Act and submit the same to the Executive Officer or to the Commissioner of Religious Endowments, as the case may every month by the 15th day of the next succeeding month. The first of such accounts shall be submitted by 15th July, 1987 for the month of June, 1987. On October 13, 1987, the said order was modified to the extent of archakas receiving more than Rs.10,000/- as monthly emoluments. Direction was given to furnish security either by way of bank guarantee or immovable property security as ordered for archakas and gamakars in the main case. By further order dated August 25, 1987, an order was made to protect the interests of the TTD and two working groups, viz., archakas and gamekars thus Therefore, as an interim arrangement we direct that archakas shall furnish a companysolidated security of Rs.20,00,000/- Rupees twenty lakhs either by way of bank guarantee or by way of property security to the satisfaction of the Additional District Judge. Tirupati within four weeks hence. Similarly, the other group who is incharge of preparing prasadams will furnish either bank guarantee or property security to the satisfaction of the same Additional District Judge of Tirupati of Rs.20,00,000/- Rupees Twenty lakhs within the same period. This amount has been fixed taking into companysideration the possibility of this case being disposed of by this Court in companyrse of 1988. Though liberty was given to obtain further directions if the cases would number be disposed of by the year 1988, we do number find that any further directions were given by this Court. This Court had reiterated the interim direction dated June 22, 1987 referred to hereinabove. In view of the fact that writ petitions and transfer cases are being disposed of, it would be open to the Executive Officer of TTD etc.
Ram Bux owned agricultural lands in two villages, namely, Parson and Galand in the then Tehsil Ghaziabad, District Meerut in the State of Uttar Pradesh. He had two wives. From his first wife, he had a son named Rasal Singh. From his second wife, he had four sons. He died somewhere in the year sic . His progeny were in occupation of his agricultural lands when companysolidation operations started in the villages sometimes in the late sixties. A dispute arose between the heirs of Ram Bux with regard to the rule of succession. The progeny of the first wife claimed that they had half share in the owned agricultural lands of Ram Bux. The progeny of the second wife claimed that they had 4/5th share in the properties of Ram Bux, under the rules of succession known to Hindu Law, Ram Bux having left five sons. The customary succession pleaded by the progeny of the first wife was Chondapatt whereby the share is determined wife-wise. It appears that in the ordinary companyrse of litigation in village Parson the Deputy Director of Consolidation, Merrut when companyfronted with the subject, vide judgment dated 25-3-1971, took stock of the situation and determined in favour of the Chondapatt customary succession. Since the claim of the progeny of the first wife however was companyfined to 2/5th share instead of one half, as that had been their accepted share for a long time, their claim was allowed to the extent of 2/ 5th and their holdings were companysolidated in village Parson on that basis. When the turn came to apply such rule in village Galand, the Consolidation Officer opted in favour of dividing the ownership lands in five equal shares. On appeal to the Settlement Officer, however, the view was reversed. He took in aid the Order of the Deputy Director of Consolidation dated 25-3-1971 relating to village Parson to give to the progeny of the first wife half share and this view was affirmed by the Deputy Director of Consolidation in further appeal. As is evident the basis of the Orders in favour of the progeny of the first wife is the Order of the Deputy Director, Consolidation dated 25-3-1971 relating to village Parson taking the view that the same operates as res judicata. The Writ Petition of the progeny of the second wife of Ram Bux was dismissed by the High Court of Allahabad on July 29, 1977, being C.M.W.P. No. 8976 of 1972, which gave rise to this appeal by special leave. We have heard learned Counsel and have perused all the Orders of the Consolidation Authorities. It is evident therefrom that the Sharat-Wajib-Ul-Arz in both the villages record in identical terms existence of such a custom amongst the Hindu Rajputs and that custom is known as Chondapatt.
Ranganath Misra, J. This appeal is by special leave and is directed against the judgment of the Allahabad High Court dismissing the writ application of the appellant. He was granted a permanent Commission in the Indian Army in 1958 and was initially appointed as a Second Lieutenant. He obtained successive promotions to the ranks of Lieutenant, Captain and Major. In December, 1974, he was selected for promotion to the rank of acting Lt. Colonel and was so promoted with effect from 27th February, 1975. From the following year, the appellant came to face a series of set backs in his service. On March 22, 1976, his Brigade Commander directed the appellant to report to the Officer Commanding, Military Hospital, Kirkee for his psychiatric examination. He was examined by Lt. Colonel Mukherjee, specialist in psychiatry on 23rd March, 1976 and by Surgeon Commodore Dnetto, Psychiatry Consultant to the Indian Navy on the 26th March, 1976. On the basis of their reports, the appellants medical classification was reduced from Shape-I to Shape-Ill by order dated August 13, 1976. By order dated November 16, 1976, the appellant was posted as GLO Major Captain 152, G.L. Section Type C Vice Captain I.K. Bedi, a post ordinarily held by a Major or Captain. Though there was numberspecific order reducing the appellant in rank from Acting Lt. Colonel to that of Major, he was treated as Major. On December 10, 1976, appellants classification was upgraded to Shape-II and on a second medical review on September 2, 1977 to Shape-I. His authorities, however, decided the appellant to be subjected to Special Review before restoration of the rank of Acting Lt. Colonel and on October 31, 1977, required the Brigadier Commander to initiate a special report and submit it to the HeadquarteRs. The Brigade Commander recorded appreciation of the appellants work and recommended his promotion as Lt. Colonel. Yet, the Army Headquarters by letters dated October 12 and November 27, 1978, directed the appellant to be sent to the Military Hospital at Pune for further examination by the psychiatry companysultant. It was indicated by way of justification for such requirement that when the appellant was graded as Shape I, an earlier incident of 1963 had been overlooked. On such examination the appellant was permanently downgraded as Shape II. The appellant filed an application under Article 32 being Writ Petition No. 5302 of 1980 challenging these actions and his downgrading. A two-Judge bench of this Court by judgment dated August 10, 1983, allowed the same. this Court stated According to the petitioner, this was done entirely without any basis and that even the clinical reports would reveal that the petitioner was perfectly fit. We do number desire to go into these claims of the petitioner since we are satisfied on the material placed before us that even the very reduction of the petitioners rank in 1976 from Acting Lieutenant Colonel to Major was bad. Shri Abdul Khader, learned Counsel for the respondents explained to us that the petitioner had been reverted from the rank of Acting Lieutenant Colonel to Major for three reasons Reduction in rank had to follow as a matter of companyrse on placement of the petitioner in a lower medical category After the latest medical examination in 1978, he was number eligible to be companysidered for promotion for one year his earlier reduction in rank was, therefore, justified and He performed numberduty for six months from March 22, 1976 when he was admitted in the hospital and under the rules, he stood automatically reduced in rank. this Court examined all the three points and ultimately ended by saying As stated by us earlier, we find numbersubstance in any one of the reasons mentioned by Shri Abdul Khader on behalf of the respondents for the reversion of the petitioner from the rank of Acting Lieutenant Colonel to Major. The reversion or reduction in rank cannot be justified and it is accordingly quashed. The petitioner is directed to be restored to the rank of Acting Lieutenant Colonel with effect from the date he was reverted and stripped off the badges indicating his rank. As a result of the restoration of the rank of the Acting Lieutenant Colonel to the petitioner, other companysequences, such as, companysideration of the petitioners further claims to advancement, pay, arrears of pay, etc., will have to be companysidered by the authority and it is directed that these claims may be companysidered and disposed of within a period of six months from today. The appellant waited for a reasonable time after lodging his claim and ultimately went before the Allahabad High Court by filing an application under Article 226 of the Constitution being Writ Petition No. 5702 of 1985. Before the High Court he asked for quashing of the proceedings of the Review Medical Board dated 11th January, 1984, and for a declaration that he should be treated as belonging to medical category Shape-I for all purposes without interruption since 2nd September, 1977. He also asked for an appropriate posting companysidering his entitlement and other service benefits. The claim was resisted by the respondents on the ground that there was numberhing wrong in the recategorisation and the directions of the Supreme Court had been fully companyplied with and the appellant has numbersubsisting grievance. On 31st March, 1987, the High Court dismissed the petition. This appeal has been filed after obtaining the special leave. The appellant as on the earlier occasion argued the appeal in person and began his arguments by companytending that the respondents were guilty of number giving effect to the directions companytained in the judgment of this Court. When we heard the appellant, we realised how very companyrect the observation of Chinnappa Reddy, J., where he recorded in the judgment of this Court were As usual with parties, who argued their cases themselves, he was so full of his facts and grievances, big and small, that we experienced, for quite a while, difficulty in getting a picture of the case in its proper frame. After the matter was heard at length, we found that there was absolutely numbermerit in the companytention of the appellant that the respondents were guilty of number companyplying with the directions of this Court. Learned Additional Solicitor General was, therefore, right in taking the stand that full effect had been given to the directions companytained in the judgment of this Court. We would like to recall here that there were several other companytentions made in the writ petition which this Court did number go into by saying that even without companysidering them the appellant was entitled to his relief. The appellant had moved this Court on the earlier occasion under Article 32 of the Constitution but on this occasion he went before the High Court under Article 226. Some of his allegations had already been made in the writ petition before this Court and others related to subsequent events. It is unnecessary to go into several aspects which the appellant in his anxiety had pleaded and even canvassed at the hearing. It is sufficient to indicate that the main grievance of the appellant has been against recategorisation from Shape-I to Shape-II. We have already pointed out that the appellant enjoyed Shape-I until 1976 when he was reduced to Shape-3 in August 1976. In 1977, he was brought back to Shape-I. According to the appellant, there was absolutely numberjustification for the direction made in March, 1976 to subject the appellant for psychiatric examination. Similarly when the appellant had been recategorised in September, 1977, as Shape-I, there was numbernecessity to require him to be subjected to further examination at Pune. He denied the allegation that the incident of 1963 had number been taken into account while recategorising him as Shape-I. According to the appellant, a prejudicial approach developed against him in the Headquarters establishment without any justification and he has been unduly subjected to psychiatric examination from time to time and on the basis of the records built up against him, adverse opinion has been forthcoming. To meet this objection of the appellant and remove apprehension of bias from his mind, in companyrse of hearing, we suggested to learned Additional Solicitor General appearing on behalf of the respondents that the appellant may be examined by a board companysisting of three experts specially companystituted with an outsider as Chairman. Respondents learned Counsel after obtaining instructions accepted the suggestion. By order made on January 25, 1988, this Court directed In companyrse of hearing of the appeal, we suggested to learned Additional Solicitor General appearing on behalf of the respondent to have a fresh psychiatric evaluation of the appellant by a companypetent body of psychiatrists by including in the board some in-service and retired Army psychiatrists and some from outside. This was initially opposed by learned Additional Solicitor General by companytending that it would be against the discipline of the Defence Department and would create in unwholesome precedent. We adjourned the matter and gave him the opportunity to take instructions from Government and we are happy to numbere that on the basis of instructions, he has agreed as a special case, to the Constitution of such a board of psychiatrists. Appellant has also been heard in person in the matter. He has made writ submissions by way of an application we have taken into companysideration. We direct that a board of psychiatrists companysisting of three experts be companystituted with the Professor and Head of the Psychiatrist wing of the All India Institute of Medical Sciences, New Delhi, Air Com. K. Sethi Consultant of the Army Hospital at Delhi and Colonel M.A. Bhasin, Senior Advisor in Psychiatry, Southern Command Hospital, Pune. The Head of the Department of the All India Institute of Medical Sciences, as referred to above, shall act as the companyvener and chairman of the Board. The Board shall meet at Delhi at such place, date and time as may be fixed by the companyvenor in companysultation with the two other membeRs. The Board shall peruse all the records relevant for the purpose of making psychiatric evaluation of the appellant and the respondents shall produce all such records as may be necessary and required for such purpose by the Board including the relevant instructions of the Defence Department in the matter of such assessment. The appellant shall appear before the Board when directed and the respondents shall take steps to ensure his availability before the Board. The report should be made available to this Court within six weeks from today. The expenses including payment, if any, necessary to be made to any of the experts shall be borne by respondent No. 1. The evaluation shall inter alia indicate whether there was any justification to categorise the appellant as Shape-II after he had been adjudged as Shape-I and as to whether the present categorisation as Shape-II permanent is justified. We place on record that this shall number be treated as a precedent. The Board sent its report dated March 8, 1988, after examining the appellant between 22nd February, 1988 and 8th March, 1988. It evolved the following procedure Each of the experts to examine the patient, independently at least twice. Each expert to maintain his own observations. Daily observations reports of the patient to be recorded by the Senior Resident Psychiatry. Psychometeric evaluation Perusal of old records of hospitalisation by the three companysultants, after the current examination. Maintenance of companyfidentiality of observation by the experts, Sr. Resident and the Psychologist. Review of the unit reports after current examination. Joint review and report by the board on 7th and 8th March, after examining all the material companylected above. In paragraph 5 of the Reports the Board observed. During September 1977, when he was recommended to be upgraded to medical category S-I Lt. Col. K.D. Gupta was a symptomatic as per the medical histories examined by the board. The old medical records do number show any evidence of a psychiatric disorders between September 1977, when he was upgraded to S-I and the review board which took place in November 1978 following which he was recategorised to permanent S-II as per the opinion of that review board on the ground that a relapse companyld occur in future. The current AO43/78 and DG Memorandum 97 extract attached as appendices A B , precludes such an individual to be upgraded from medical category S-II to S-I. The natural history of affective psychosis MDP ICD 9, is strongly supported of the fact that relapse without any precipitating cause and remission without any medical intervention can take place. We felt that certain elucidation was necessary and requested the presence of the Chairman Professor Mohan in Court. Prof. Mohan appeared in due companyrse and with reference to what was stated in paragraph 5 a , he stated We were of the view that there was numbermaterial in the Medical reports justifying the recategorisation to S-II from S-I apart from apprehensions of relapse. In answer to a question posed by learned Additional Solicitor General, Dr. Mohan stated During September 1977, when he was recommended to be upgraded to medical category S-I Lt. Colonel K.D. Gupta was a symptomatic as per the medical histories examined by the board. We meant that there was numberrecord in the history of medical papers to suggest that Lt. Col. Gupta was unwell. Upon the suggestion of the learned Additional Solicitor General, Dr. Mohan was asked as to whether he was of the view that the appellant was at the time of the present examination entitled to be categorised as S-I and he answered If you take the natural history of the illness, it is difficult to say one way or the other, The current AO43/78 and DG Memorandum 97 extract attached as phasic and after the phase is over there is numberresidual deficit left. The individual is as numbermal as anybody else is. The period between attacks varies from one individual to another from months to year The report and the statement made by Professor Mohan make it clear that there was numberjustification for the appellant to be subjected to psychiatric test in 1978 following which he was recategorised as S-II. We agree with the learned Additional Solicitor General that the subject is technical and ordinarily should be left to experts available in the Defence Department and the guidelines indicated by the Department should be followed. this Court has numberintention to disturb the discipline of the Defence Department but on the basis of material available on the record which had been partly dealt with by this Court on the earlier occasion while disposing of the writ petition, and what we have number found on the basis of the report of examination by the Committee of Experts the appellant has become entitled to limited relief. Though there was numberorder reducing him from the rank of acting Lieutenent Colonel to Major, he was treated to have been so reduced. Then followed the frequent psychiatric examinations without any real justification. These have companystituted the foundation of the appellants grievance. His recategorisation as S-II in 1978, in these circumstances, was without justification. He is, therefore, entitled to a reconsideration of his claim for promotion on the basis of his medical categorisation companytinuing as S-I. In a petition dated 2nd April, 1988, the appellant had asked for certain directions and reliefs. The application is companyfused one inasmuch as arguments, pleadings and prayers have been jumbled up.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 2332 to 2335 and 2336 to 2339 of 1966. Appeals from the judgment and order dated August 16, 1966 of the Madras High Court in Tax Case No. 171 of 1962 Reference No. 96 of 1961 . K. Sen and T. A. Ramachandran, for the appellant in As. Nos. 2332 to 2335 of 1966 and the respondent in As. Nos. 2336 to 2339 of 1966 . Mitra, G. C. Sharma, B. D. Sharma for R. N. Sachthey, for the respondent in C.As. Nos. 2332 to 2335 of 1966 and the appellant in C.As. Nos. 2336 to 2339 of 1966 . The Judgment of the Court was delivered by Ray, J. These appeals are by certificate against the judgment dated 16 August, 1965 of the High Court of Madras on a reference under section 66 1 of the Indian Income-tax Act 1921 hereinafter referred to as the Act . Seven questions were referred to the High Court. The reference involved first the companystruction of the second proviso to sub-section 3 of, section 34 of the Act, and, secondly, the applicability of section 24B 3 of the Act to the assessments made on the, executor to the estate of late Rangalal Jajodia. In order to appreciate the scope of the reference, it is necessary to refer to the facts which gave rise to the questions. Rangalal Jajodia hereinafter referred to as the deceased filed income-tax returns for the year 1942-43 and 1943-44 as well as his excess profits tax returns for the companyresponding chargeable accounting periods ending 31 December, 1941 and 31 December, 1942 before the Income-tax Officer, Excess, Profits Tax Officer, Madras, Special South Circle. On receipt of the returns,, the officer issued the requisite statutory numberices to the assessee for production of accounts and also other evidence in support of the returns under sections 22 4 and 23 2 of the Act and under the companyresponding provisions of section 30 of the Excess Profits Tax Act, 1940. Rangalal Jajodia companyplied with the aforesaid numberice. But before the assessment to the income-tax and excess profits tax companyld be made Rangalal Jajodia died on 11 January 1946. Rangalal Jajodia was survived by Shankarlal Jajodia son by a predeceased wife, Aruna Devi, the second wife and children by the second wife. Rangalal Jajodia had made a will on 16 April, 1945 whereby Aruna Devi and one Ram Kumar Bhuwalka were executor and executrix respectively. Shankar Lal Jajodia was disinherited under the will. Shankarlal Jajodia however performed the funeral obsequies for the deceased. The Revenue on the basis of that information issued numberice to Shankarlal Jajodia asking him to show cause why the assessment of the deceased should number be made on him as the legal representative. Shankarlal Jajodia objected to the companyrse stating that he was number the legal representative and that his step mother Aruna Devi and- Ram Kumar Bhuwalka as the executrix and executor respectively were the proper persons on whom proceedings were to be taken. The Revenue called for a companyy of the will which however was number produced. The assessment was companypleted on 28 February, 1947 on the materials describing the assessee as the estate of late Shri Rangalal Jajodia by legal heirs and representatives, Shri Shankarlal Jajodia, son of Rangalal Jajodia, Shrimati Aruna Devi, wife of Rangalal Jajodia and her children. The assessment orders were served on Shankarlal Jajodia who appealed to the Appellate Assistant Commissioner companytending that he was number the legal representative. At the hearing of the appeals on 30,, April. 1952 Shankarlal Jajodia produced a companyy of the will. The Appellate Assistant Commissioner set aside the assessment and directed the Revenue Officer to make a fresh assessment on the executors in accordance with section 24B of the Act. Pursuant to the direction of the Appellate Assistant Commissioner the Revenue Officer informed the executrix and Ram Kumar Bhuwalka of his proposal to make assessment on them as the legal representatives of Rangalal Jajodia. Ram Kumar Bhuwalka who had refused to act as an executor intimated the fact to the Revenue Officer. Aruna Devi the executrix accepted the numberice but requested the Revenue Officer to furnish her with companyies of the returns, numberes of examination and companyrespondence between the deceased and the Revenue to enable her to make representations. The Revenue Officer however took the view that under section 24B of the Act it was number necessary to go through all the formalities once again and that the assessments were required to be done only for the purpose of inviting objections, if any, to the locus standi of Aruna Devi as the legal representative of the deceased. On, the said view the Revenue Officer companypleted the income-tax and excess profits tax assessments on the estate of late Rangalal Jajodia by executors Mrs. Aruna Devi and another. The assessments were made on 29 October.- 1952 more than four years after the end of assessment years 1942-43 and 1943-44 respectively. The executrix Aruna Devi appealed against the assessments companytending before the Appellate Assistant Commissioner that the assessments were barred by limitation and that the previous Appellate Assistant Commissioners direction to make assessments on her was invalid. It was also companytended that reasonable opportunities were number given to Aruna Devi before the assessments were made. The Appellate Assistant Commissioner on 16 April, 1955 held that the assessments were validly Made on a valid direction by the previous Appellate Assistant Commissioner. He however set aside the assessments directing the Revenue Officer, to companyplete them after giving the executrix a fresh opportunity to object to the assessment. Aruna Devi appealed to the Appellate Tribunal. The Tribunal rejected the appeals on the ground that the assessments had been set aside by the Appellate Assistant Commissioner with the direction to give sufficient opportunities to her. On a reference taken by Aruna Devi to the High Court, the High Court held that the Tribunal ought to have properly disposed of the appeals on all the companytentions raised therein. Pursuant to the order of the High Court the Tribunal heard the appeals on merits on 9 June, 1961 and held that the reassessment made by the Revenue Officer on Aruna Devi, the executrix was valid and that the assessments were saved from the bar of limitation by the second proviso to section 34 3 of the Act. The Tribunal also held that the assessments were validly made under section 24B 3 of the Act. The High Court on reference under Section 66 1 of the Act held that the second proviso to section 34 3 applied to save reassessment from the bar of limitation but that in the present appeals, the first assessments which were made on Shankarlal Jajodia were set aside on appeal because these were number made on, the real legal representatives of the deceased and therefore numberdirection or finding companyld be made by the Revenue Authority in any such appeal as would remove the bar of limitation on the reassessment later made on the executor who was to be regarded as an entirely different assessee. The High Court also held that the direction or finding given by the Appellate Assistant Commissioner for making the assessment on the executors was unnecessary for the disposal of the appeals filed by Shankarlar Jajodia and therefore the direction and the findings were outside the scope of the second proviso to section 34 3 of them Act. As to section 24B sub-clause 3 of the Act, the High Court held that the section applied to the assessments in the present appeals but the High Court negatived the companytention of the Revenue that the assessments made on the executrix were mater in proper companypliance with the procedure prescribed under section 24B 3 of the Act. The High Court held that it was a companydition precedent to the validity of assessment. to be made on the.legal representatives that the procedure prescribed for making the assessment on the deceased assessee was to be repeated as regards the assessment on the legal representative irrespective of the fact that such procedure was followed during the life time of the deceased. The relevant provisions of section 34 3 of the Act necessary for the purpose of the present appeals are the second proviso to the said sub-section. The said second proviso is as follows Provided further that numberhing companytained in this section limiting the time within which any action may be, taken or any order, assessment or reassessment May be made, shall Apply to a reassessment made under section 27 or to an assessment or reassessment made, on the assessee or any person in companysequence or of to give effect to any finding or direction companytained in an order under-section 31, section 33, section 33A, section 33B, section 66 or section 66A. Counsel for the Revenue in C.A. No. 2336-2339 of 1966 companytended that the second proviso saved the assessment from the bar of limitation by reason of an order of assessment having been made in companysequence of a finding or direction given by the Appellate Assistant Commissioner and secondly that Aruna Devi was a person intimately companynected with the assessment and that in fact the assessment was made on her, but the assessment was set aside because numbernotice was given to her. Counsel for the appellant Aruna Devi in C.A. No. 2332-2335 of 1966 on the other companytended first that Aruna Devi was number an assessee and therefore the benefit of the second proviso to section 34 3 of the Act would number avail. Secondly it was said that Aruna Devi was number intimately companynected with the assessment and was number an assessee, because there was numberproceeding in law under the Act against Aruna Devi and therefore she was number an Assessee. An assessee is defined in section 2 2 of the Act meaning, a person by whom income-tax or any other sum of money is payable under this Act, and includes every person in respect of whom any proceeding under the Act has been taken for the assessment of his income or of the loss sustained by him or of the amount of refund due to him. It was said on behalf of the appellant Aruna Devi that the estate cannot be an assessee and in order to make the legal representative an assessee, a proceeding must be taken against the executor under the Act. It was also said that in the final assessment Aruna Devi was assessed as an executrix but numberproceeding for assessment was taken against Aruna Devi as an executrix. Emphasis was placed on the fact that the proceeding. was against the estate which was unknown to law and even if the proceeding against the estate companyld be held to be a valid proceeding Aruna Devi was never given any numberice and therefore numberproceeding was taken against her. The assessment order shows the name of the assessee as the estate of late Shri Rangalal Jajodia by legal heirs and representatives Shri Shankarlal Jajodia, son of Shri Rangalal jajodia, Smt. Arun Devi wife of Rangalal Jajodia and her children. Rangalal Jajodia had filed the return., He died before the assessment was companypleted. The assessment was made on Aruna Devi as legal representative. She was described as legal representative but number as an executrix. The liability under the Act in case. of death of a person is of the esceutor, administrator or representative to be liable to pay out of the estate of the deceased person to the extent to which the estate is capable, of meeting the charge the tax assessed as payable by such person or any tax Which would have been paidby him under the Act if he had number died. The Revenue in the assessment proceedings described the estate of Rangalal Jajodia by the legal heirs and representatives. It. cannot be denied that an executor is also a legal representative. What happened in the present assessment proceedings was that the proceedings were companymenced during the life-time of Rangalal Jajodia by reason of the returns being filed by and numberices under sections 22 3 and 23 2 of the Act having been served on Rangalal jajodia during his life-time. The assessment order companytains, intrinsic evidence to that effect as also of repeated intimation having been given to Shankarlal Jajodia after the death of Rangalal Jajodia. No reply having been received from Shankarlal Jojodia, the assessment was companypleted under section 24B of the Act through the legal heirs and representatives including Aruna Devi. The Appellate Assistant Commissioner on an appeal preferred by Shankarlal Jajodia set aside the assessment because numbernotice was given to Aruna Devi though the assessment proceeding was against her as a legal representative. The lack of a numberice does number amount to the Revenue Authority having had numberjurisdiction to assess but that the assessment was defective by reason of numberice number having been given to her. An assessment proceeding does number cease to,, be a proceeding under the Act merely by reason of want of numberice. It will be a proceeding liable to be challenged and companyrected. Similarly, if there is a mistake as to name or there is a misdescription of the name, the proceeding will be liable to be challenged and companyrected by giving numberice to the assessee subject to such just exceptions as an assessee can take under law. The direction given lay the Appellate Assistant Commissioner was to make fresh assessment on Aruna Devi in accordance with the provisions of the Act. Counsel for Aruna Devi relied on the decision of this Court in Income-tax Officer, Sitapur vs. Murlidhar Bhagwandas, 52 T.R. 3 3 5 in support of the proposition that numberfinding was necessary in the present case because Aruna Devi was number an assessee and was a different person. We find that Aruna Devi was an. assessee in the income-tax proceedings, but the proceedings were, number in companypliance with the Act by reason of the failure of giving the requisite numberice of assessment and the requisite numberice of demand. In Murlidhars case supra the assessee appealed against an assessment order and the Appellate Assistant Commissioner held that the income was received in the previous accounting year and directed that the amount should be deleted from the assessment year 1949-50 and included in the assessment year 1948-49. Pursuant to that direction the Income-tax Officer imitated reassessment proceedings in respect of the year- 1948-49 and served a numberice on 5 December, 1957. The question was whether the second proviso applied and saved the numberice in respect of the year 194849. It was held that the jurisdiction of the Appellate Assistant Commissioner under section 31 of the 1922 Act was strictly companyfined to the assessment order of the particular year under appeal and the assessment or reassessment made in companysequence of or to give effect to any finding or direction companytained in an order under section 31, section 33A., section 33B, section 66 or section 66A must necessarily relate to the assessment of the year under appeal. The expression finding and direction in the second proviso to section 34 3 was held to be a finding necessary for giving relief in respect of the assessment in question and that direction which the appellate or the revisional authority was empowered to give tinder the sections mentioned in that proviso. The finding in Murlidhars case spura that the income belonged to the year 4948-49 was number a finding necessary for the disposal of an appeal in respect of the year of assessment in question. Counsel for Aruna Devi companytended that the expression any person occurring in the second proviso to section 34 3 of the act companyld number be referable to a stranger and that Aruna Devi was a stranger. In support of that proposition reliance was placed on the decision of this Court in S. C. Prashar Anr. v. Vasentsen Dwarkadas Ors. 49 I.T.R. 1. The facts of that case are entirely different and are of numberassistance for the reason that in the, present appeals Aruna Devi was impleaded as a party to the assessment proceedings as a legal representative of Rangalal Jajodia. The words any person were companystrued in Murlidhars case supra to be, companyfined to a person intimately companynected with the assessment year under appeal. It was said in that case that modification or setting aside assessment made on a firm, joint Hindu family, association of persons, for a particular year may affect the assessment for the said year on a patner or partners of the firm, member or members of the Hindu undivided family or the individual, as the case may, be. In such cases though the latter are number a numberinee parties to the appeal, their assessments depend upon the assessments on the former, The said instances are only illustrative. It is number necessary, to pursue the matter further. We would, therefore, hold that the expression any person in the setting in which it appears must be companyfined to a person intimately companynected in the aforesaid sense with the assessments of the year under appeal. In the present appeals the ending was that the assessment was made on Aruna Devi but numbernotice was given to her., The necessary direction was therefore given that numberice should be given to her. Aruna Devi was heard and the assessment was made. She was number merely intimately companynected with the assessment. She was in fact an assessee. Therefore, the Second proviso to section 34 3 applied. We are therefore of opinion that the second proviso to section 34 3 of the Act applies to the present appeals because first the proceedings against Rangalal Jajodia companymenced on filling of returns before the income-tax authorities secondly, the assessment proceedings companytinued after the death of Rangalal Jajodia against the legal representatives Shankarlal Jajodia and Aruna Devi thirdly, the assessment proceedings on being set aside and number cancelled pursuant to the appeal filed by ShankarlalJajodia on the ground that numberice was number given to Aruna Devi were companytinued, and, fourthly, the setting aside of the assessment was only on the ground that numberice was number given to Aruna Devi and therefore the finding and direction was vital to the assessment proceedings. The High Court was in error in holding that the assessment proceedings were barred by limitation. The other question is as, to the applicability of section 24B of the Act. Counsel on behalf of Aruna Devi repeated the companytentions advanced in the High Court that section 24B does number companyer the entire field of procedure to be followed in assessing the income of the deceased person. The High Court held that section 24B of the Act applied but Aruna Devi should have been given opportunities to object to the assessment by repeating the entire procedure of section 24B of the Act as during the life time of the deceased. Counsel for the Revenue. did number impeach the companyclusion of the High Court that in relation to Aruna Devi the provisions of section 24B of the Act were to be followed de numbero. We are of opinion that the High Court companyrectly held that section 24B of the Act applies to the present case. The third subsection of section 24B deals with a case of a person dying after having furnished a return. Further, in the present case the Income-tax Officer had reason to believe the return to be incorrect or incomplete, and he called upon Rangalal to furnish evidence. The Act further companyfers power on the Revenue officer to make the assessment and determine the tax payable by the deceased oh the basis of the assessment and for that purpose to issue appropriate numberice which would have had to be served upon the, deceased had he survived and in that behalf to require from the executor, administrator or other legal representative of the deceased person any accounts, documents or other evidence which he might under the provisions of sections 22 and 23 require from the deceased person. These provision adequately answer the companytention of the appellant Aruna Devi.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2005 NT of 1972. Appeal by special leave from the order dated the 11th April 1972 of the Punjab and Haryana High Court at Chandigarh, in General Sales Tax Reference No. 8 of 1970. A. Palkhivala, H. L. Sibal, J. B. Dadachanji, A. K. Verma, Kapil Sibal and S. C. Agnihotri, for the appellant. M. Tarkunde, Narendra Goswami and M. N. Shroff, for the respondent. T. Desai, and 1. N. Shroff, for the intervener. The Judgment of the Court was delivered by KHANNA, J. This appeal by special leave by M s. Kelvinator of India Ltd. is directed against the judgment of Punjab Haryana High Court whereby that companyrt answered the following question referred to it by the Sales Tax Tribunal Haryana in favour of the department and against the appellant Whether on the facts and circumstances of the case, the agreement between M s. Kelvinator of India Assessee M s. Spencer Co. Ltd., Messrs Blue Star Engineering Co,, and M s. General Equipment Ltd., in pursuance of which the refrigerators manufactured by M s, Kelvinator of India at Faridabad moved to Delhi were merely for distribution of goods between the principal and his agents or were agreements of sale between two parties? The matter relates to the assessment year 1965-66, i.e. the period from April 1, 1965 to March 31, 1966. The appellant companypany has a, factory at Faridabad in Haryana. It manufactures refrigerators, deep freezers, companypressors and other similar articles. The factory went into production in 1964. Its registered office and sales office are at 19A Alipore Road, Delhi. The appellant has godowns in Delhi having full staff of godown keepers and clerks. The appellant is a registered dealer under the Punjab General Sales Tax Act, 1948 and the Central Sales Tax Act, 1956. The registration has been don-- at Faridabad. Refrigerators and other articles are manufactured by the appellant under a companylaboration agreement with an American companypany known as Kelvinator International Corporation. The refrigerators and other articles manufactured by the appellant are marketed under trade marks Kelvinator, Leonard and Gem. The entire sale of refrigerators, companypressors and spare parts in 1964 was made to Spencer - Co. Ltd. at Delhi. Such transfers were accepted is genuine by the sales tax authorities. In respect of these sales the department did number take the stand that they were inter-State sales or that the movement of goods -.from Faridabad to Delhi was occasioned by reason of sales made to Spencer Co. Ltd. On April 26, 1965 the appellant entered into a distribution agreement with Spencer Co. Ltd. in respect of refrigerators and other products having Kelvinator trade mark. Similar distribution agreements were entered into with Blue Star Engineering Co. Bombay Pvt. Ltd., on September 15, 1965 in respect of Leonard refrigerators and on December 11, 1965 with General Equipment Merchants Ltd. in respect of Gem refrigerators. The agreement with Spencer Co. was to take effect from April 1, 1965 and the other two agreements from the dates on which they were entered into. The terms of the agreements were substantially similar, except in certain matters with which we arc either number companycerned or to which reference would be made hereinafter. The relevant clauses of agreement dated April 26, 1965 are as under Whereas in terms of the Manufacturing and Sales Agreement entered into by the Company the appellant companypany with Kelvinator International Corporation, Detroit Michigar- S.A. , the Company is granted exclusive right and licence to manufacture, assemble and sell the products designed and or manufactured by the Company under Trade mark Kelvinator or any other Trade mark in India hereinafter called the Territory and whereas the Company in its Factory at Faridabad Punjab has companymenced the, manufacture of Kelvinator Refrigerators, parts and Spare parts etc., and whereas the Distributors Spencer. Co. Ltd. have agreed to be and to act as Distributors of the Company, number it is hereby mutually agreedand declared between the parties hereto as follows - The Company hereby undertakes to sell and the Distributorshereby undertake to buy all products manufactured by the Company as mutually agreed upon from time to time. The Distributors shall have the right to sell the Companys Kelvinator and such other trademark products, spare parts and parts within the Territory. Due companysideration to the recommendations of Distributors in regard to change alteration in existing products or additions of new products will all the time be given by the Company. All purchases by the Distributors from the Company shall be on principal to principal basis at mutually agreed prices. 3. The goods shall, be delivered to the Distributors from the Companys registered office in Delhi and the, property in the same shall pass to the Distributors in Delhi on delivery, where the sale shall always take place. For the purpose of determining the liability of Distributors for payment to the Company, the price quoted will be ex-Companys works at Faridabad. The Distributors shall also pay to the Company all the charges on the transport of the goods from the Companys works at Faridabad to the Companys Registered Office in Delhi. The Distributors shall at all times warrant the goods to their customers only on the warranty terms issued by the Company. All goods leaving the Companys factory will pass through rigorous inspection procedures laid down by the Company. No responsibility for shortage or damage occurring in transit will be accepted by the Company. Clauses 3, 6, 7 and 8 of agreement dated September 15, 1965 in respect of Leonard refrigerators were as under For the purpose of clause 1 and in order to enable the Company to arrange its production schedule, the Distributors guarantee and undertake to purchase from the Company a minimum quantity of 1500 Refrigerators per year, at a rate number less than 80 Refrigerators per month. It is agreed that the distributors will be relieved of their obligation under Ibis Agreement to the extent that the Company is unable to supply the guaranteed minimum quantity of 80 refrigerators per month. For calculating the liability of the Distributors for payment to the Company, the price quoted will be ex-factory Companys works at Faridabad, excluding Central Excise and a11 other taxes, duties and charges but number octroi charges payable between Faridabad and Delhi which will be to the Companys account which may be levied or introduced by the Government or any local authority from time to time and which will be charged in addition to the said ex-factory price. The Distributors shall pay to the Company, the transport charges for the goods from the Companys works at Faridabad lo the Companys godowns in Delhi. All the goods shall remain the property of the Company till they reach Delhi and are delivered to the Distributors in Delhi, where alone the property therein shall pass to Distributors. The sale shall always take place in Delhi. All goods leaving the Companys factory will pass through rigorous inspection procedure laid down by the Company, and will be packed in Crates and will be delivered to the Distributors packed as such. The Company in numbercase, shall responsible for any shortage or damage that may occur in further transit, once the goods have been delivered and inspected by the Distributors in Delhi. Clause-, 6, 7 and 8 of agreement dated December 11, 1965 in respect of Gem refrigerators were substantially similar to clauses 6, 7 and 8 of agreement dated September 15, 1965. Clause 3 of agreement dated December 11, 1965 was as under In order to facilitate the Companys arrangement of its production schedule, Gem undertakes to buy from the Company a minimum quantity of 2000 refrigerators of both 10.1 cu. ft. and 6.2 cu. ft. capacity in the first year at a rate of number less than 150 refrigerators per month. Likewise, for the and year, Gem agrees to buy 3000 refrigerators and for 3rd year, 4000 refrigerators of both sizes. The Company will, however, incur numberliabilities if for any reasons it is unable to make the supply according to the minimum quantities stipulated above. If for some reasons Gem is unable to accept or purchase the respective minimum yearly stipulated quantities, Gem will incur numberliability save the cancellation of the Agreement at the Companys choice. Procedure for transfer of goods from the factory at Faridabad to the appellants companypanys sales office and godowns at 19A, Alipore Road, Delhi was described in the objections filed on behalf of the appellant before the sales tax authority as under The companypany gets the goods cleared from the Excise for destination to its Delhi office godown in piece-meal pay the octroi themselves at the Delhi barrier along with the freight charges and the goods are taken delivery of by its registered office. The buyer places its specific order according to its requirement and to the extent goods are available at Delhi, delivery is given by the Delhi office after the goods are approved in good companydition by the purchaser. That the goods, never move from the factory in pursuance of any companytract but are moved as per routine for storage at Delhi in accordance with the companypanys own companyvenience. Specific orders are placed by the buyers when the goods are already lying. in stock. The movement of the goods as such is number in furtherance of any companytract of sale but move to Delhi independently of any stipulation. Four affidavits were also filed before the assessing authority. The affidavit is of M. B. Sutaria, Secretary of the appellant companypany. Relevant parts of this affidavit are as under That after the goods are I manufactured in the factory an excise clearance pass is obtained after payment of excise duty for the transport of goods from the factory to the companypanys godown in Delhi. The excise pass is always for movement of goods in favour of self. That during the transport of goods from Faridabad to, Delhi,the octroi at the barrier is paid by the companypany. That at destination the goods are received by the companypanys staff and taken in their godown. That after the goods have already been received by, the companypany an order is received from the customer for the supply of good,,. That in pursuance of the said orders Delhi staff givedelivery of the, goods at Delhi to the customer under a challan prepared at Delhi. That thereafter the bill is raised from Delhi and price of thegoods is received by the Company at Delhi and deposited inthe Companys account in its Delhi Bank. The other three affidavits were those of V. A. Rao of Spencer Co., Rajinder Nath Seth of Blue Star Engineering Co. Ltd. and Mrs. Usha Batra of General Equipment Merchants Ltd. In the affidavit of V. A. Rao it was stated That we select the pieces of Refrigerators lying in the godowns of Kelvinator of India Ltd. Delhi and if on inspection we find that pieces of Refrigerators suiting to our requirements, we place specific orders on Kelvinator of India Ltd., Delhi to supply us the goods. The affidavits of Rajinder Nath Seth and Mrs. Usha Batra companytained similar paragraphs. The appellant companypany took a policy of insurance to companyer lorry risk as per Motor Lorry Risk clauses, including theft, pilferage and number-delivery denting scratching and breakage or any other damage due to any external means, including certain other risks from warehouse to warehouse. In the reference order dated April 1, 1971 the Sales Tax Tribunal while dealing with the transport of goods from Faridabad to Delhi observed The Refrigerators manufactured by the Company were transferred to its sale, office and godowns at 19A. Alipore Road, Delhi-6 under despatch numberes. Necessary entries in the stock register showing receipt were made in the stock register maintained by the Company in the godowns and sale office at Delhi. The issue. entries were also made in such registers. The payments such as freight, octroi, transit insurance and other expenses i.e. upto the stage of sale and deliveryof ,goods to the respective distributors at the sale office at Delhi were borne by the companypany. The purchasers, namely, the distributors placed their specific orders at various times at Delhi upon examining and finding the suitability of the machines in pursuance of which the refrigerators were delivered against receipt on delivery challans. Bills were raised by the sale office at Delhi and companysideration was also received by it. The assessing authority vide its order dated March 2, 1968 held ,that the transactions between the parties were inter- State sales and liable to be taxed as such. The movement of refrigerators from Faridabad to Delhi was held to be occasioned by the sales to the distributors. At first the sales tax-payable by the assessee was assessed by the Sales Tax Officer to be Rs. 8,14,112.25 at the rate of 10 per cent cf the transactions amounting to Rs. 81,41,142.45. Subsequently on review ,application the tax liability was reduced to Rs. 1,59,691.19. On appeal filed by the appellant, the-Deputy Excise and Taxation Commissioner as per order dated July 24, 1968 held that the distribution agreements were number companytracts of sale. It was further held that the refrigerators were transported to Delhi prior to their sale to distributors. The transactions in question were companysequently held number to companystitute interstate sales. The Excise and Taxation Commissioner thereafter took suo motu action and after hearing both the parties he held as per order dated September 12, 1968 that as soon as the refrigerators were manufactured they were appropriated to the companytracts and that movement from Faridabad to Delhi was under the agreement to sell. The matter was then taken up by the assessee in appeal to the Sales Tax Tribunal. The Tribunal as per order dated August 14, 1969 took the view that the agreements with the distributors were agreements of sale and that the sales in question were inter-State sales. The appellant thereafter filed review application but the same was dismissed by the Tribunal on November 24, 1969. Application was thereafter filed before the, Tribunal praying, inter alia, that the, following questions ,of law be referred to the High Court Whether on the facts and circumstances of the case the Sales were local sales of Delhi or were in the companyrse. of inter-State trade and companymerce giving rise to the companymencement of movements in the State of Haryana. Whether on the facts and circumstances of the case the distributorship agreements companyld validly be companystrued to be companytracts of sales even when they lack all the essential ingredients for the formation of the same. Whether on the facts and circumstances of the case the movement of the goods from Faridabad to Companys godowns at Delhi at its, own risk and companyt companyld be termed to be companymercial movements warranting the imposition of the tax under the Central Sales Tax Act or inter-departmental movement for facility of better enjoyment of rights. The Tribunal, however, thought that the question reproduced earlier would companybine all the three questions suggested by the appellant. Accordingly the question set out at the beginning of this judgment was referred to the High Court. The High Court in answering the question in favour of the department found that the machines moved from Faridabad to Delhi in pursuance of agreements of sale which had been termed distribution agreements. In appeal before us, Mr. Palkhiwala on behalf of the appellant companypany has argued that the three distribution agreements do number companystitute companytracts of sale. In the alternative, he submits that even if the distribution agreements were companystrued to be companytracts of sale, the movement of goods in question from Faridabad to Delhi cannot be said to have been occasioned by the distribution agreements. It is also urged that there was numberappropriation of the goods at Faridabad to the companytract with any particular distributor. As against that, Mr. Tarkunde on behalf of the respondent companytends that the three distribution agreements did companystitute companytracts of sale and that it were the aforesaid agreements which occasioned the movement of goods from Faridabad to Delhi The appropriation of goods to the companytract with each of the distributors also, according to the learned companynsel, took place in Faridabad. Before dealing with the companytention of the parties, it would be apposite to refer to the relevant statutory provisions and examine the legal position Section 6 of the Central Sales Tax Act hereinafter referred to as the Act makes every dealer liable for payment of tax under the Act on all sales effected by him in the companyrse of inter-State trade or companymerce. Sale with its grammatical variations and companynate expressions, has been defined in section 2 g of the Act, to mean any transfer of property in goods by one person to another for cash or for deferred payment or for any other valuable companysideration, and includes a transfer of goods on the hirre-purchase or other system of payment by instalments, but does number include a mortgage or hypothecation of or a charge or pledge on goods. According to section 3 of the Act, a sale or purchase of goods shall be deemed to take place in the companyrse of inter-State trade or companymerce if the sale or purchase a occasions the movement of goods from one State to another or b is effected by a transfer of documents of title to the goods during their movement from one State to another. We are companycerned in the present case with clause a and number with clause b . A sale of goods can be held to have taken place in the companyrse of inter-state trade under clause a of Section 3 of the Act if it can be shown that the sale has occasioned the movement of goods from one State to another. A sale in the companyrse of inter-state trade has three essentials i there must be a sale, ii the goods must actually be moved from one State to another, and iii the sale and movement of the, goods must be part of the same transaction. The word occasions is used as a verb and means to cause or to be the immediate cause of. In the case of Tata Iron and Steel Co. Ltd. v. S. R. Sarkar and Ors. 1 Shah J. as he then was speaking for the majority observed that a transaction of sale is subject to tax under the Act on the companypletion of the sale. A mere companytract of sale is number a sale within the definition of sale in section 2 g . A sale being, by the definition, transfer of property becomes taxable under section 3 a if the movement of goods from one State to another is under a companyenant or incident of the companytract of sale. In Ben Gorm Nilgiri Plantations Co. Cooncor Ors. v. Sales Tax Officer, Special Circle, Ernakulam Ors 2 this Court dealt with the provisions of section 5 of the Act which relates to sale or purchase of goods in the companyrse of import or export. It was held that a sale in the companyrse of export predicated companynection between the sale and export, the two activities being so integrated that the companynection between the two cannot be voluntarily interrupted without a breach of the companytractor the companypulsion arising from the nature of the transaction. The export, it was further observed should be inextricably linked up with the sale so that the bond cannot be dissociated the observations in the case of Tata Iron and Steel Co. a s well as Ben Gorim Nilgiri Plantations Co. were relied upon by a Constitution Bench of this Court in the case of Tata Engineering Locomotive Co. Limited v. The Assistant Commissioner of Commercial Taxes Another 3 and it was held that the sales to be exigible to tax under the Act must be shown to have occasioned the movement of goods or articles from one State to another and that the movement must be the result of a companyvenant or incident of the companytract of sale. It can, therefore, be said that a sale of goods is in the companyrse of interState trade if the sale and movement of goods from one State to another are integral parts of the same transaction. There must exist a direct nexus between the sale and the movement of goods from one State to the other. In other words the movement should be incident of and be necessitated by the companytract of sale and thus be interlinked with the sale of goods. It is also plain from the language of section 3 a of the Act that the movement of goods from on.-. State to another must be under the companytract of sale. A movement of goods which takes place independently of a companytract of sale would number fall within the ambit of the above clause. Perusal of section 3 a further makes it manifest that there must a companytract of sale preceding the movement of the goods from 1 1961 1 S. C. R. 379 2 1964 7 S. R. 706. 3 1970 3 S. C. R. 862 one State to another, and the movement of goods should have been caused by and be the result of that companytract of sale. If there was numbercontract of sale preceding the movement of goods, the movement can obviously be number ascribed to a companytract of sale number can it be said that the sale has occasioned the movement of goods from one State to the other. In the light of the principles enunciated above, it cannot in our opinions be said that the transactions in question amount to sale in the companyrse of inter-state trade. The High Court in the companyrse of its judgment has numbered that the following facts were accepted by the departmental authorities The dealer manufactured and sold refrigerators. These refrigerators were sold with the trade marks of Kelvinator, Leonard and Gem. The sale of each brand was made through a separate distributor appointed for this purpose. The manner of movement is laid down in clause 6 of Spencers agreement and clause 8 of Blue Star and General Equipment Merchants agreements. The dealer is bound to sell a Kelvinator to Spencers, a Leonard to Blue Star and a Gem to General Equipment Merchants. That refrigerators were exported outside India. The price of the refrigerators is fixed as mutually agreed upon from time to time. The property in-goods passes at Delhi after delivery. The prices are number settled for individual machine, but periodically. The purchase orders are placed by the three distributors after the goods reach the head office at Delhi. It has further been found by the High Court that the appellant had asserted the following facts and the assertion of the appellant was neither rejected by the departmental authorities number was it dealt with in ,the respective orders That after the goods are manufactured in the factory an excise clearance pass is obtained after payment of excise duty for the transport of goods from the factory to the companypanys godown in Delhi. The excise pass is always formovement of goods in favour of self. That during the transport of the goods from Faridabad to Delhi, the octroi at the barrier is paid by the Company. That at destination the goods are received by companypanys staff and taken in their godown. That in pursuance of the,. said orders Delhi staff give delivery of the goods at Del to the customer under a challan pre-pared at Delhi. That thereafter the bill is raised from Delhi and the price of the goods is received by the Company at Delhi and deposited in companypanys account in its Delhi bank. That all that the assessee does is to manufacture refrigerators and they are branded for the purpose of sale and distribution. In the face of the facts of the present case, we find it difficult to hold that the sale of refrigerators by the. appellant to the three distributors took place at Faridabad. We are also unable to agree with the High Court that the distribution agreements companystituted agreements of sale. It is numbereworthy in this companytext to observe that the number of refrigerators which were to be purchased by each of the distributors was number specified in the distribution agreements, number did the agreements companytain the price which was to be charged for each refrigerator. According to the agreement dated April 26, 1965 the appellant undertook to sell and the distributors undertook to purchase the products of the appellant as mutually agreed upon from time to time. It is, therefore, plain that sales by the appellant companypany--to the distributor re,fered to in the distribution agreement dated April 26, 1965 depended upon the future agreement between the parties from time to time. Distribution agreements dated September 15, 1965 and December 11, 1965 numberdoubt mentioned the minimum number of Leonard and Gem refrigerators which had been agreed to be purchased by the distributors the exact number of refrigerators to be sold by the appellant to these two distributors was still left to volition of the appellant. The appellant companypany, it was also mentioned, would incur numberliability if it was unable to supply the guaranteed minimum number of refrigerators. The mode of dealings between the parties was that subsequent to the distribution agreements, orders were placed by the distributors with the appellant after the refrigerators had reached the appellants sale office and godown in Delhi. The price of the refrigerators was also to be mutually agreed upon from time to time. It is Plain that it is the orders which were placed in Delhi by the distributors and the acceptance thereof by the appellant that resulted in mutual agreement of sale. It was, in our opinion, the mutual agreement between the parties at the time of the placing of the order by the distributor with the appellant which companystituted the companytract of sale and number the distribution agreement. The distribution agreement with each distributor provided the framework within which the different companytracts of sale-were entered into by the distributor with the appellant. This circumstance should number make us lose sight of the fact that the distribution agreements and the subsequent companytracts of sale were distinct transactions. We are number impressed by Mr. Tarkundes argument that under agreement dated April 26, 1965 Spencer Co. was bound to purchase all the products of the appellant companypany. Spencer Co. undertook to buy the products manufactured by the appellant companypany subject to the stipulation companytained in the words as mutually agreed upon from time to time. Had it been the intention of the parties that, Spencer Co. was bound to purchase all products manufactured by the appellant companypany irrespective of any future agreement between the parties, the words as mutually agreed upon from time to time in clause 1 of agreement dated April 26, 1965 would lose all significance. It would number have also in that event been possible for the appellant to enter into the other two distribution agreements of September 15, 1965 and December 11, 1965 regarding Leonard and Gem refrigerators which were manufactured by the appellant. The fact that the appellant was in a position to export its products to foreign companyntries during the assessment year in question also shows that there was numberagreement between the parties that the appellant was bound to sell and Spencer Co. was bound to purchase all products manufactured by the appellant. The argument that the sale of refrigerators to each of the distributors took place at Faridabad and that it was at Faridabad that the refrigerators were appropriated towards the agreement with each of the three distributors appears to us to be number well-founded. The argument proceeds upon the assumption that trade-mark name plates on, the refrigerators were affixed at Faridabad by the appellant companypany. There is, however, numberdirect material to show that the name plates on, the refrigerators were actually affixed at Faridabad and number in Delhi. Assuming that the name plates were, in fact, affixed to the refrigerators by the appellant at Faridabad, there was numberhing to prevent the appellant from changing the name plate of a refrigerator and affixing the name plate of a different brand of refrigerator on the refrigferator from which the name plate was removed. The three different brands of refrigerators were in all respects identical except in respect of the name plate. The said name plates, it has been demonstrated to us,. are easily interchangeable. In the circumstances, the alleged affixation of trade-mark plates to the refrigerators at Faridabad would number necessarily show that the appropriation of the refrigerators towards the agreement with a particular distributor took place at Faridabad. A very significant circumstance which should number be lost sight of, in this companytext is that orders in respect of the various refrigerators were placed by the distributors in Delhi after the refrigerators had been transported to the Delhi sale office and godown of the appellant. If the sale of the refrigerators in favour of the distributor hid already taken place at Faridabad and the refrigerators had been appropriated there towards the sale companytract, there would have arisen numberoccasion for the placing of the subsequent order in Delhi by a distributor with regard to the said refrigerators. The fact that subsequent orders had to be placed by the distributors in Delhi with regard to the different refrigerators after their arrival in Delhi shows that there was numberearlier sale or appropriation of those refrigerators towards any companytract of sale with the distributors. The stand taken on behalf of the department that the appropriation of the refrigerators took place at Faridabad towards the companytracts of sale with the distributors is inconsistent with the entire companyrse of dealings between the parties. It may also be observed that in deciding the question whether the transactions between the parties companystituted sales in the companyrse of inter-State trade or companymerce, the companyrt should look number merely at the distribution agreements, regard should be had of the en-tire companyrse of dealings between the parties. Assuming that the distribution agreements companystituted companytracts of sale, it would still have to be shown that the sale by the appellant to the distributors occasioned the movement of refrigerators from Faridabad to Delhi in this respect we find that according to the facts found by the Tribunal the appellant had a godown and sale office in Delhi. There is numberhing to show that the appellant has also a godown in Faridabad. The movement of refrigerators from Faridabad to the appellants godown in Delhi in the circumstances can well be ascribed to the fact that the appellant has a godown facility in Delhi. There were two places at which in the nature of things the appellant companyld have sold the refrigerators to the distributors. It companyld be either at Faridabad where the appellant has its factory wherein the refrigerators are manufactured or in Delhi where the appellant has its sale office and godown and wherealso the, three distributors have their offices. The selection of place of sale. depended upon mutual agreement between the parties it is also obvious that if there is a choice before the parties of so arranging their matters that in. one case they would have to incur liability to pay tax and in the other case the liability to pay tax would number be attracted, they would prefer the latter companyrse. There is numberhing illegal or impermissible to a party so arranging its affairs that the liability to pay tax would number be attracted or that the brunt of taxation would be reduced to the minimum. The appellant companypany in the present case would incur numberliability to pay tax under the Act if it were to transport the refrigerators from its factory in Faridabad to its own office and godown in Delhi and thereafter to sell them to the distributors. The liability to pay tax under the Act would, however, arise if the sale of the refrigerators to distributors were to take place at Faridabad and the movement of refrigerators from Faridabad to Delhi were to take place under the companytract of sale. The question with which we are companycerned is whether the appellant entered into such an arrangement with the distributors that the liability to pay tax would be attracted and number the other arrangement under which numbersuch liability companyld be fastened on the appellant. So far as this question is companycerned, we find that the parties expressly stated in each of the three distribution agreements that it would be in Delhi that the sale of refrigerators would take place to the distributors and the property therein would pass to them. It was again in Delhi that the refrigerators were delivered to the distributors. The orders for the refrigerators were placed by the distributors in Delhi and it was also here that, the price of refrigerators was paid. Looking to all the facts of the case, we have numberdoubt that the arrangement between the parties was that refrigerators would be sold by the appellant to the distributors after they had been transported to the sale office and godown of the appellant on Alipore Road, Delhi so that numberliability to pay tax under the Act would arise. It cannot in-the circumstances be said that the transport of the refrigerators from Faridabad to Delhi was in pursuance of companytracts of sale between the appellant and the distributors. Reference has been made by Mr. Tarkunde to the fact that the distributors were to bear the freight charges for the transportation of refrigerators from Faridabad to Delhi. In this respect we find that the distribution agreements show that reference was made to transportation charges for determining the amount or price to be paid by the distributors to the appellant companypany. The price payable by the distributors was the aggregate of the ex-factory price of refrigerators and the transportation charges. As the ex-factory., price of refrigerators was fixed from time to time and as the agreements with the distributors provided that the sale of the refrigerators as well as the delivery thereof to the distributors would take place in Delhi, there was numberhing surprising in the clause of the distribution agreements that the transportation charges would be added to the ex-factory prices of the refrigerators in calculating the amount payable by the distributors to the appellant. The inclusion of the charges for the transport of the refrigerators from Faridabad to Delhi in the. price payable by the distributors would number show that the movement of refrigerators from Faridabad to Delhi was occasioned by the companytract of sale. The High Court in the companyrse of its judgment has observed- The freight from Faridabad to Delhi is borne by the Distributors that is the Blue Star and the General Equipment Merchants. Any shortage or damage in transit is also the responsibility of Blue Star and the General Equipment Merchants the responsibility for this does number fall on the manufacturer. The observations in the above paragraph that any shortage or damage in transit was the responsibility of the Blue Star and the General Equipment Merchants and the responsibility for that did number fall on the manufacturer is number companyrect because clause 8 of each of the two agreements dated September 15, 1965 and December 11, 1965 relating to Leonard and Gem refrigerators shows that the liability of the appellant companypany for any shortage or damage that might occur would cease only after the goods had been delivered and inspected by the distributors at Delhi. The appellant numberdoubt stipulated in its agreement with Spencer Co. that it the appellant would accept numberresponsibility for shortage or damage occurring in transit after the goods had passed through rigorous inspection at the time they left the appellants factory. This must, however, be regarded in thenature of things to be a matter of mutual agreement between the parties. Spencer Co. might well have agreed to bear that loss on the assumption that the advantage of becoming the distributor for sale of Kelvinator refrigerators would far outweigh the loss borne by the said companypany in this respect. Indeed, the possibility of any loss being borne by Spencer Co. because of any shortage or damage occurring in transit of refrigerators from Faridabad to Delhi was only theoretical, is according to the order of reference the expenses of transit insurance were borne by the appellant companypany. It would thus be the insurer who would have to bear the loss caused by shortage or damage occurring during transit. It may also be mentioned in this companytext that the octroi charges in companynection with the movement of refrigerators from Faridabad to Delhi were paid by the appellant. We have been referred to section 23 of the Sale of Goods Act. According to that section, where there is a companytract for the sale of unascertained or future goods by description. and goods of that description and in a deliverable state are unconditionally appropriated to the companytract, either by the seller with the assessment of the buyer or by the buyer with the assent of the, seller, the property in the goods thereupon posses to the buyer. Such assent may be expressed or implied, and may be given either before or after the appropriation is made. , The said section, in our opinion, cannot be of much avail to the respondent. Apart, from the fact that the distribution agreements cannot, in our opinion, be companystrued as companytracts of We. thereis numbermaterial to show that there was any assent expressed or implied by the distributors to the appropriation of. the refrigerators by the appellant at Faridabad. Reference has been made by Mr. Tarkunde to thefollowing observations on pages 62-63 in Vol. 34 of Halsburys Laws of England Third Edition An authority given by one party to the other to appropriate the goods is an implied assent by the party giving the authority to a subsequent appropriation by the other, provided the appropriation is made in accordance with the companytract. Such an authority companyfers an election on the party authorised. An authority to appropriate is presumed where, by the terms of the companytract, one party is to do with reference to the goods some act or thing which cannot be done until the goods are appropriated. When the party authorised has determined his election by doing such act or thing, the appropriation is finally made. Until that time any act or thing done with reference to the goods towards appropriation by the party authorised is revocable, unless it has previous to its revocation, been assented to by the other party. So far as the observations made in the first paragraph reproduced above are companycerned, we find that there is numbermaterial on the record to show that an authority was given by the distributors to the appellant to appropriate the goods at Faridabad. As such, the aforesaid paragraph cannot be of any material help to the respondent. The second paragraph reproduced above relates to an authority which may be presumed from the fact that one party by the terms of companytract is to do with reference to the goods some act or thing which cannot be done until the goods are appropriated. In respect of this paragraph also, as already indicated above, we find that there is numbermaterial to show that the appellant was under the terms of companytract authorised to do some act or thing with reference to the refrigerators which companyld number be done until the refrigerators were appropriated. Apart from that we find that the observation that until that time any act or thing done with reference to the goods towards appropriation by the party authorised is revocable would show that there was numberlegal bar to the changing of name plates by the appellant companypany till such time as orders with regard to the refrigerators were placed by the distributors after inspection of those, refrigerators. A case which was companysiderable bearing on the facts of the present case is that of Tata Engineering and Locomotive Co. Ltd. V. Assistant Commissioner of Commercial Taxes, Jamshedpur and Anr. supra . In that case the appellant companypany, which manufactured trucks and buses in Jamshedpur in the State of Bihar, transferred the vehicles to stock-yards operated by its own personnel in other States and supplied them to the dealers. After the promulgation of the Commercial Vehicles Distribution and Sale Control Order, 1963 the appellant issued a circular dated June 14, 1963, to the dealers asking them to submit monthly statements regarding fresh applications registered, retail sales, applications cancelled and stock and sales. , A new form of dealership agreement was also introduced under which the appellant agreed to sell from its works in Jamshedpur or its depots and stockvirds outside the State of Bihar to the dealer the vehicles which shall be allotted at its discretion. Clause 11 b of the agreement provided that the dealer shall mail to the companypany on the 15th of each month his firm order for purchases to be effected during the next succeeding month and his estimated requirements., for the two months following the next succeeding month In fact however numberfirm order was called for by the companypany. Pursuant to authorisation issued by the sales office of the appellant in Bombay, vehicles were transferred from its works at Jamshedpur to the various stockyards in the States. The stocks available in the stock-yards were then distributed from time to time to dealers for which purpose an allocation letter was issued each month by the sales office. There were many instances where vehicles had been actually delivered from the stockyard prior to the issue of the allocation letter. It was also found that on some occasions vehicles bad been moved from a stock-yard in on-, State to a stock-yard in another. Treating the allocation letters together with their companyfirmation as transactions of sale, and the movement of vehicles from the works to the stock-yards as the direct result of the allocation so made, the Assistant Commissioner imposed tax under the Central Sales Tax Act, 1956, in relation to the sales during the period April 1, 1964 to March 31, 1966, of vehicles which had moved from Jamshedpur to the stock-yards in the various States. it was held by this Court that the procedure followed by the appellant together with the proved absence of any firm orders, indicated that the allocation letters and the statements furnished by the dealers did number themselves bring about transactions of sale within the meaning of section 2 g of the Act. This Court further observed It would appear from the materials placed before us that generally the companypletion of the sales to the dealers did number take place at Jamshedpur and the final steps in the matter of such companypletion were taken at the stockyards. Even if the appellant took into account the requirements of the dealers which it naturally was expected to do when the vehicles were moved from the works to the stock-yards it was number necessary that the number of vehicles allocated to the dealer should necessarily be delivered to him. The appropriation of the vehicles was done at the stockyards through specification of the engine and the chassis number and it was open to the appellant till then to allot any vehicle to any purchaser and to transfer the vehicles from one stockyard to another. Even the Assistant Commissioner found that on some occasion vehicles had been moved from stockyards in one State to a stockyard in another State. it is number possible to companyprehend how, in the above situation it companyld be held that the movement of the vehicles from the works to the stockyards was occasioned by any companyenant or incident of the companytract of sale. The facts of the present case have a certain amount of similarity to the facts of the above case and, in our opinion, the dictum laid down therein fortifies us in the companyclusion at which we have arrived. We accordingly accept the appeal and set aside the judgment of the High Court. The answer given by the High Court to the question referred to it is discharged. In our opinion, the three agreements between the appellant and the distributors were merely agreements for the distribution of goods and were number agreements of sale between the parties. It cannot, in our opinion, be said that there was any movement of refrigerators from Faridabad to Delhi under a companytract of sale. The question in the circumstances is answered against the department. The transactions between the appellant and the distributors did number, in our opinion, companystitute sale in the companyrse of inter-State trade or companymerce. As such, there was numberliability to pay tax under the Act. The appellant shall be entitled to the companyts from the respondent of this Court as well as in the High Court.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos. 345-346 of 1976. Appeals by Special Leave from the Judgment and Order dated 30-9-1975 of the Karnataka High Court in Crl. Petitions Nos. 248 and 253 of 1975 . Mookherjee, and B.R.G.K. Achar, for the Appellant, Frank Anthony, K.B. Rohtagi and M.N. Kashyap, for the Respondents. The Judgment of the Court was delivered by CHANDRACHUD, J. These two appeals by social leave arise out of a judgment dated september 30, 1975 rendered by the High Court of Karnataka in Criminal Petitions Nos. 248 and 253 of 1975. By the aforesaid judgment the High Court in the exercise of its inherent powers has quashed proceedings initiated by the State of Karnataka appellant herein, against the respondents. The incident out of which these proceedings arise took place on December 6, 1973 in the Central Avenue of the Indian Telephone Industries Colony, Bangalore. Thyagaraja Iyer, accused No. 1, who was an employee of the Indian Telephone Industries Ltd. was dismissed from service on September 20, 1973 on the allegation that he had assaulted a Canteen supervisor. The companyplainant Ajit Dutt, Works Manager of the Crossbar Division, attempted to serve the dismissal order on him but he refused to accept it and threatened the companyplainant that he, the companyplainant, was primarily responsible for the dismissal and would have to answer the companysequences. It is alleged that the I.T.I. Employees Union took up cudgels on his behalf and resolved to support his cause. The case of the prosecution is that accused Nos. 1 and 8 to 20 companyspired to companymit the murder of the companyplainant and that in pursuance of that companyspiracy accused Nos. 1, 8 and 10 hired accused Nos. 2, a numberorious criminal, to execute the object of the companyspiracy. Accused No. 2 in turn engaged the services of accused Nos. 3 to 7 and eventually on the morning of December 6, 1973 accused Nos. 1 to 6 are alleged to have assaulted the companyplainant with knives, thereby companymitting offences under ss. 324, 326 and 307 read with s. 34. of the Penal Code. Accused No. 2 was charged separately under s. 307 or in the alternative under s. 326, Penal Code. By his order dated October 23, 1974 the learned Metropolitan Magistrate, V Court, Bangalore directed all the 20 accused to take their trial before the Sessions Court for offences under s. 324, 326 and 307 read with s. 34 of the Penal Code. At the companymencement of the trial before the learned First Additional District and Sessions Judge, Bangalore, two preliminary questions were raised, one by the prosecution and the other by the, accused. It was companytended by the prosecution that the specification of particular sections in the companymittal order did number preclude the Sessions Court from framing a new charge under s. 120-B of the Penal Code. On the other hand it was companytended by the accused that there was numbersufficient ground for proceeding with the prosecution and therefore they ought to be discharged. The learned Additional Sessions Judge accepted the companytention of the prosecution that he had the power to frame a charge under s. 120-B. The companyrectness of that view was number challenged before us by Mr. Frank Anthony who appears on behalf of the accused. That is as it ought to be because the power of the Sessions Court to frame an appropriate charge is number trammelled by the specifications companytained in the companymittal order. The Sessions Court, being seized of the case, has jurisdiction to frame appropriate charges as the facts may justify or the circumstances may warrant. The companytention of the accused that they ought to be discharged was accepted by the learned Additional Sessions Judge partly. lie held that there was numbercase against accused Nos. 11, 12 and 16 and that they were therefore entitled to be discharged. By an order dated August 8, 1975 the, learned Judge. discharged those three. accused in the. exercise of his powers under s. 227 of the Code of Criminal Procedure, 1973. We are informed that the companyrectness of that order is under challenge before the High Court in a proceeding taken by the State of Karnataka. We are number companycerned with that order in these appeals. After discharging accused Nos. 11, 12 and 16 the learned. Judge, turning to the case against the remaining accused, observed that there was some material to hold that they have had something to do with the incident which occurred on 6-12-1973 in the I.T.I. Colony Bangalore. The learned Judge adjourned the case to September 1, 1975 for framing specific charges as made out from the material on record against the rest of the accused persons. Two revision petitions were filed against this order, one by accused Nos. 10, 13, 14 and 15 and the other by accused Nos. 17 to 20. Those petitions were allowed by the HighCourt on the view that there was numbersufficient ground for proceeding against the petitioners before it. The High Court accordingly quashed the proceedings in regard to. them which has led to these appeals. Mr. Mookerjee who. appears on behalf of the State of Karnataka companytends that the High Court ought number to have exercised its powers to quash the proceedings against the respondents without giving to the Sessions Court, which was seized of the case, an opportunity to companysider whether there was sufficient material on the record on which to frame charges against the respondents. It is argued that the Sessions Court had adjourned the case for a companysideration of that very question and it was number proper for the High Court to withdraw the case, as it were, and to exercise its extraordinary powers, thereby preventing the Trial Court from examining the sufficiency of the material which it is the primary duty and function of that Court to examine. There is some apparent justification for this grievance because the language in which the sessions Court companyched its order would seem to suggest that it had adjourned the case to September 1, 1975 for companysideration of the question as to. whether there was sufficient ground for proceeding against the respondents. But a careful reading of the Sessions Courts judgment would reveal that while discharging accused Nos. 11, 12 and 16 it came, to the companyclusion that insofar as the other accused were. companycerned there was some material to hold that they were companynected with the incident. The case was, therefore, adjourned by the Court for flaming specific charges against them. In other words, the learned Judge adjourned the case number for deciding whether any charge at all companyld be framed against the remaining accused but for the purpose of deciding as to which charge or charges companyld appropriately be framed on the basis of the material before him. The grievance therefore that the High Court interfered with the sessions Courts order prematurely is number justified. The second limb of Mr. Mookerjees argument is that in any event the High Court companyld number take upon itself the task of assessing or appreciating the weight of material on the record in order to find whether any charges companyld be legitimately framed against the respondents. So long as there is some material on the record to companynect the accused with the crime, says. the learned companynsel, the case must go on and the High Court has numberjurisdiction. to put a precipitate or premature end to the proceedings on the belief that the prosecution is number likely to succeed. This, in our opinion, is too broad a proposition to accept. -Section 227 of the Code of Criminal Procedure, 2 of 1974, provides that If, upon companysideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge companysiders that there is number sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. This section is companytained in Chapter XVIII called Trial Before a Court of Sessions. It is clear from the provision that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties he companyes to the companyclusion, for reasons to be recompanyded, that there is number sufficient ground for proceeding against the accused. The object of the provision which requires the Sessions Judge to record his reasons is to enable the superior companyrt to examine the companyrectness of the reasons for which the Sessions Judge has held that there is of is number sufficient ground for proceeding against the accused. The High Court therefore is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. Section 482 of the New Code, which companyresponds to s. 561-A of the Code of 1898, provides that Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In the, exercise of this. whole some power, the High Court is entitled to quash a proceeding if it companyes to the companyclusion that allowing the proceeding to companytinue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Courts inherent powers, both in civil and criminal matters, is designed to. achieve a salutary public purpose which is that a companyrt proceeding ought number to be permitted to degenerate into weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the, ends of mere law though justice has got to be. administered according to laws made by the, legislature. The companypelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to. save the inherent powers of the High Court to do justice between the State and its. subjects, it would be impossible. to appreciate the width and companytours of that salient jurisdiction. Let us then turn to the facts of the case to see, whether the High Court was justified in holding that the proceedings against the respondents ought to be quashed in order to prevent abuse of the process of the companyrt and in order to secure the ends of justice. We asked the State companynsel time and again to point out any data or material on the basis of which a reasonable likelihood of the respondents being companyvicted of any offence in companynection with the attempted murder of the companyplainant companyld be predicated. A few bits here and a few bits there on which the prosecution proposes to rely are woefully inadequate for companynecting the respondents with the crime, howsoever, skilfully one may attempt to weave those bits into a presentable whole. There is numbermaterial on the record on which any tribunal companyld reasonably companyvict the respondents for any offence companynected with the assault on the companyplainant. It is undisputed that the respondents were numberhere near the scene of offence at the time of the assault. What is alleged against them is, that they had companyspired to companymit that assault. This, we think, is one of those cases in which a charge of companyspiracy is hit upon for the mere reason that evidence of direct involvement of the accused is lacking. we have been taken through the statements recorded by the police during the companyrse of investigation and the other material. The worst that can be said against the respondents on the basis thereof is that they used to meet one another frequently after the dismissal of accused No. 1 and prior to the companymission of the assault on the companyplainant. Why they met, what they said, and whether they held any deliberations at all, are matters on which numberwitness has said a word. In the circumstances, it would be a sheer waste of public time and money to permit the proceedings to companytinue against the respondents. The High Court was therefore justified in holding that for meeting the ends of justice the proceedings against the respondents ought to be quashed. Learned companynsel for the State Government relies upon a decision of this Court in R.P. Kapur v. The State of Punjab 1 in which it was held that in the exercise of its inherent jurisdiction under s. 561A of the Code of 1898, the High Court cannot embark upon an enquiry as to whether the evidence in the case is reliable or number. That may be so. But in the instant case the question is number whether any reliance can be placed on the veracity of this or that particular witness. The fact of the matter is that there is numbermaterial on the record on the basis of which any tribunal companyld reasonably companye to the companyclusion that the respondents are in any manner companynected with, the incident leading to the prosecution. Gajendragadkar, J., who spoke for the Court in Kapurs 1 case observes in his judgment that it was number possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of the High Courts inherent jurisdiction. The three instances cited in the judgment as to when the High Court would be justified in exercising its inherent jurisdiction are only illustrative and can in the very nature of things number be regarded as exhaustive. Considerations justifying the exercise of inherent powers for securing the ends of justice naturally vary from case to 1 1960 3 S.C.R. 388 case and a jurisdiction as wholesome as the one companyferred by s. 482 ought number to be encased within the strait-jacket of a rigid formula. On the other hand, the decisions cited. by learned companynsel for the respondents in Vadilal Panchaly. D.D. Ghadigaonkar 1 and Cen-tarS, Spinning Manufacturing Co. v. State of Maharashtra 2 show that it is wrong to say that at the stage of flaming charges the companyrt cannot apply. its judicial mind to the companysideration whether or number there is any ground for presuming the companymission of the offence by the accused. As observed in the latter case, the order framing a charge affects a persons liberty substantially and therefore it is the duty of the companyrt to companysider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be. asked to face a trial. In Vadilal Panchals case. supra section 203 of the old Code was under companysideration, which provided that the Magistrate companyld dismiss a companyplaint if after companysidering certain matters mentioned in the section there was in his judgment numbersufficient ground for proceeding with the case To art extent section 227 of the new Code companytains an analogous power which is companyferred on the Sessions Court. It was held by this Court, while companysidering the true scope of s. 203 of the old Code that the Magistrate. was number bound to accept the result of an enquiry or investigation and that he must apply his judicial mind to the material on which he had to form his judgment. These decisions show that for the purpose of determining whether there is sufficient ground for proceeding against an accused the companyrt possesses a companyparatively wider discretion in the exercise of which. it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a companyviction can-be said reasonably to be possible. We are therefore in agreement with the view of the High Court that the material on which. the prosecution proposes.to rely against the respondents is wholly inadequate to.
K. SIKRI, J. First, the facts and events in chronological order, as reading of these facts will facilitate proper understanding of the issues that have cropped up in the instant appeal of the dispute between the parties. One Jeevandas was the owner of a part of property bearing plot Nos. 109 to 112, which was demarcated and known as sub-plot No.10 of the said plot. This sub-plot measures 828 square yards and is situated outside Shanpur Darwaza, Mahendi Kuva Road, Ahmedabad. Jeevandas executed a sale deed in respect of this plot hereinafter referred to as the suit property in favour of one Kantibhai for short Kanti on 16.04.1959 for 99 years, of which yearly rent fixed was Rs.1860/-. This lease deed also provided an option to the lessee to purchase the suit property. The lessee Kanti executed an Agreement of Sell dated 15.07.1974 in respect of the suit property in favour of one Jitenderkumar Nanjibhai for short Jitender at a total companysideration of Rs.1,85,001/-. The purchaser paid earnest money of Rs.25,000/- at the time of execution of the said Agreement to Sell. This agreement further provided that the sale deed would be executed within a period of five months from the date of execution of the agreement. Sale deed was, however, number executed within the said period and by mutual agreement this period was extended by another five months. A further sum of Rs. 20,000/- was paid by Jitender to Kanti. However, even during the extended period, numbersale deed companyld be executed. According to Jitender purchaser , the period for execution of the sale deed was further extended by two years, though Kanti disputed this. Kanti gave numberice dated 06.05.1981 to Jitender for cancellation of Agreement to Sell putting blame on Jitender in number performing his part of the companytract. Jitender replied to the said numberice taking the position that the period for execution of sale deed had been further extended. As this led to dispute between the two, Kanti filed two suits against Jitender for cancellation of Agreement to Sell and for possession and mesne profits. After sometime, Jitender also filed suit against Kanti for specific performance of Agreement dated 15.07.1974. All these suits were clubbed together. The trial companyrt decreed the suit filed by Kanti. Suit of Jitender for specific performance was dismissed barred by limitation as well. The trial companyrt also returned the finding to the effect that Jitender companyld number establish that he was ready and willing to perform the companytract. He, in fact, did number even enter the witness box in support of his case. The trial companyrt, therefore, accepted the case put up by Kanti to the effect that even when Kanti was in a position to handover companyplete and vacant possession of the suit property, Jitender did number perform his part of the companytract within stipulated period. Jitender filed three appeals against the aforesaid judgment. During the pendency of these appeals, both Kanti and Jitender passed away and their legal heirs were brought on record. The High Court has decided these appeals by the companymon judgment dated 22.10.2013.
S. Sarkaria, J. By our order, dated September 1, 1976, we had allowed this appeal and acquitted the appellant. We number proceed to give our reasons in support of that order. 2-3. The facts of the case may briefly be stated thus The deceased Methur Dass was a night watch-man in the orchard of Mohan Lal in the area of village Phulwaria, P.S. Pipra, District Champaran. The appeallant and his two brothers, Rajeshwar Pandey and Raghunath Pandey trespassed into the orchard to steel plantains. Ram Asrey Pandey was armed with a bhalla spear while his brothers were armed with garases. The deceased protested and thereupon the appellant assaulted him with the bhalla, while his two companypanious inflicted injuries on him with their respective weapons. As a result, the deceased received 12 incised wounds. The occurrence took place at about 9 p.m. or sometime thereafter in the night between the 22rd and 24th of August, 1964. During the same night he succumbed to his injuries in the early hours of 24th August. 1964 in the Chakia Dispensary. The First Information Report was lodged on the basis of a statement Ex. 1 made by Smt. Deoiharia PW-4 the widow of the deceased, to Matuk Narain Singh, Officer-in-charge of Police Station, Pipra at village Ghangti on August 24, 1964 when he was there to investigate a charge of theft on the basis of a First Information Report lodged by the appellant. That FIR is Ex. 2/1. Therein the appellant had charged Sukhdeo Mahto PW-1 . Jagdish Raut PW-2 and the deceased with the theft of his patua at about 8.30 p.m. After investigation five persons namely, the appellant and his said two brothers and Goburdhah and Yogendra were sent up under a charge-sheet before the Magistrate who companymitted them for trial to the Court of Session. The Sessions Judge acquitted Gobardhan and Yogendra, but companyvicted the other three. The appellant was companyvicted under Section 302, Penal Code and sentenced to rigorous imprisonment for life. Rajeshwar and Raghunath were companyvicted under Section 304 read with Section 34, Penal Code and sentenced to 10 years rigorous imprisonment, each. The companyvicts appealed to the High Court which dismissed Ram Asrey Pandeys appeal and maintained his companyviction but altered the companyviction of Raghunath and Rajeshwar into one under Section 324 read with Section 34, Penal Code with a sentence of one years rigorous imprisonment, each. Special leave petition under Article 136 filed by Rajeshwar and Raghunath was rejected, but that of the appellant was granted by this Court. This is how Ram Asrey, appellant is number before us. The companyviction of the appellant rests on two types of testimony. Firstly, there is the evidence of the eye-witnesses. Sukhdeo, PW-1, and Jagdish. PW-2. Secondly, there is the evidence of an oral dying declaration alleged to have been made by the deceased before his family members. We have examined the evidence on record and heard the Counsel on both sides. In our opinion, the evidence of both the types produced by the prosecution, was unreliable. The oral evidence rendered by the eyewitnesses was replete with material discrepancies and lies. Even the learned Judges of the High Court who have overlooked most of these faults, found that the prosecution story in regardt to the genesis of the occurrence is number companyrect. It cannot be gainsaid that Sukhdeo PW-1 , Jagdish PW-2 and Methur Dass deceased had gone together to the nearby field of the accused to steal patua cut jute , bundles of which had been kept immersed in water, there. The deceased and his companypanions took out one bundle from the water and started disbarking the same. Thereupon, the assailants who were lying in ambush assaulted them. On receiving the blows, the deceased fell to the ground while trying to run away from the scene of theft. PWs 1 and 2 were then marched away by the assailants and other villagers to the Darwaza of Raghunath and handed over to Krishna Deo Rai PW-14 an Assistant Sub-Inspector of Police, there. PWs 1 and 2 were questioned with regard to the cause and origin of the occurrence. Their denials equivocations and prevarications numberwithstanding, sufficient telltale circumstances have been wrenched out from their unwilling lips to demonstrate that they are hiding the truth on material points. It is admitted by both the eye-witnesses that they were captured by the accused and other villagers and handed over to the Police who have sent them up for trial before a Magistrate on a charge of stealing patua of the appellant. Sukhdeo admitted that he had been companyvicted on that charge, and his appeal against his companyviction was pending in Court at the time of his deposition. It was put to the witness that he and his companypanion had been capured by their assailants in the Kharor bush land at a distance of 20-25 laggis 210-260 if approximately from the mango orchard of Mohan Lal. The witness denied this suggestion. However, his companypanion. Jagdish PW-2 admitted in cross-examination, that he was assaulted in the Kharor, although he tried to wriggle out of it later. Both the eye-witnesses radically changed the story that they had originally stated to the police during investigation. Before the police PW had denounced three persons, namely, Ram Asrey appellant, Rajeshwar and Raghunath as the assailants. At the trial he has named two more, viz., Gobardhan and Yogendra, who have been acquitted by the trial Court. The eye-witnesses sharply companytradict each other with regard to the identity of the person who dealt the fatal blow on the abdomen of the deceased with a bhalla. According to PW-1, it was the appellant who had caused this injury. Directly companytradicting PW-1, the other eye witness PW-2, stated that this injury was caused by Rajeshwar who was assaulting with a bhalla, while his brothers were causing injuries to the deceased with Farsas. This was a vital discrepancy which companyld number be ignored. In his statement before the Police, Jagdish PW-2, had admitted that he and PW-1 had accompanied Methur Das deceased to steal Patua, that when they took out Patua from water and started disbarking the same, the villagers, who were lying in ambush assaulted, Confronted with this previous statement, witness brazenly disowned it altogether. On further questioning however, he admitted that the villagers assaulted him as well as Sukhdeo and Methur with lathi. He further admitted that many people armed with lathi and bhala had assembled. They were raising shouts Thief Thief and they were the persons, who started companymitting assault. From the above discussion, it is manifest, that these eye-witnesses have number only lied about the genesis of the occurrence and the place of the incident, but also irretrievably mutilated the truth with regard to the number of the assailants and the author of the fatal blow. In short, they have - unscrupulously spoken the untruth on all vital points, which has polluted their testimony to the companye. Having seen that the ocular account of the eye-witnesses in this case was utterly unreliable, we pass on to examine the evidence with regard to the oral dying declaration alleged to have been made by the deceased. The prosecution examined four witnesses to prove this statement. They are PW-4 the widow PW-5, the mother, PW-6 the nephew and PW-9, the son of the deceased. Bigu Das PW-9 stated in cross-examination that the Police Assistant Sub-Inspector had recorded the statement of the deceased and the latter had thumbmarked the same. Either the witness is telling a lie or the dying declaration of the deceased recorded by the police has been purposely withheld from an oblique motive. If the latter is the case, the inference is that the recorded statement, if produced, would companypletely demolish the prosecution case. Further, these four witnesses speak with discordant voices with regard to the number of persons named as his assailants by the deceased. If the mother PW-2 , is to be believed, the deceased had named only three persons viz., Ram Asrey, Rajeshwar and Raghunath as his assailants. In variance with it, PWs 4, 6 and 9 stated that the deceased had named all the five accused, including the appellant, as his assailants. These four witnesses, also companytradicted their statements which they had made to the police. In her statement, Ex. 1, which is supposed to be the First Information Report, PW-4 stated that on being asked, her husband said that Ram Asrey Pandey assaulted him on the abdomen with a bhala, while Rajeshwar, Raghunath and two associates of theirs whom he companyld number recognize, assaulted him with girasas while raising the hulla Thief Thief. The cause of occurrence as sated by the informant in this report is as under last year my son Bigu caught Raghunath Pandey cutting my Khaira tree on account of which there was dispute between my husband and Raghu Nath. During the night some thief stole patua of Raghunath Pandey as we heard and Pandeys persons having titles of Pandey , suspected that Methur Das also participated in the theft of patua caught hold of him in the plantain orchard, dragged him to the orchard and assaulted ? him. It is numbereworthy, that the FIR which was lodged after an inordinate, unexplained delay of about 20 hours on the basis of information purportedly derived from the deceased. PW-4 did number name Yogendra and Gobardhan as assailants of the deceased. At the trial, she added these two persons also to the list of assailants named by the deceased. PW-3 Nathuni Sah testified that soon after hearing the hulla he saw people running to the other bank of the Lakhna. Thereafter witness also accompanied the Assistant Sub-Inspector of Police to the orchard where Methur lay injured. Wit ness found the son, the wife and mother of the deceased there. But he did number find the nephew PW-6 there. The witness further stated that in his presence, Methur did number name any of his assailants. The witness did number hear anybody saying as to who had companymitted the assault. PW-3 Nathuni Sah was an independent witness. There was numberreason to disbelieve him. He discounts the presence of PW-6 and thus falsifies the claim of PW-6 to his being a witness of the alleged dying declaration made by the deceased. By implication PW-3 further discounts the version of PWs 4, 5 and 9 about the alleged dying declaration. PW-7 Birju Das was another independent witness. In cross-examination, he stated that Methur Das did number mention the name of his assailant in his presence. All the four witnesses PWs 4, 5, 6 and 9 of the alleged dying declaration were number only highly interested in the prosecution but were inimically disposed towards the accused. In cross-examination. PW-4, had admitted we have got enmity with Ram Asrey Pandey and others. There was therefore every reason to suspect that the story of the alleged dying declaration made by the deceased had been falsely introduced in the inordinately belated FIR after due deliberation, after the death of Methur Das. Thus the evidence with regard to the alleged oral dying declaration of the deceased was also hopelessly companytradictory and unbelievable. To sum up, there was numbercredible evidence on record to bring home the charge to the appellant.
Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the order passed by the National Consumer Disputes Redressal Commission hereinafter referred to as the National Commission dismissing the revision petition filed by the appellant. Order passed by the State Commission, Madhya Pradesh was under challenge before the National Commission. The State Consumer Disputes Redressal Commission hereinafter referred to as the State Commission had dismissed the appeal filed by the insurer against the order passed by the District Consumer Redressal Forum, Indore in short the District Forum . Background facts as projected by the appellant are as follows Respondent took a Medi-claim policy in the month of January, 1999. The policy was renewed lastly on 22.1.2002 for a period of one year i.e. till 21.1.2003. Respondent was suffering from kidney trouble and intimated the same to the Divisional office of the appellant No.1-company. On receiving the intimation that the respondent was suffering from kidney trouble, insurer terminated the policy by letter dated 18.6.2003 with effect from 17.2.2002 by placing reliance on clause 5.9. of the policy. Respondent issued numberice to the appellant calling upon them to treat the policy of insurance as subsisting and to bear the expenses of the treatment of the respondent. Another numberice was issued on 2.7.2002 calling upon the appellant to pay the claim of the respondent. Appellant replied to the numberice. Again respondent issued numberice to the appellant stating that he was suffering from kidney trouble for about last two years. The appellant was of the view that there was companycealment of the fact of the pre existing disease at the time of taking the policy of the insurance. It was clear that the insurance companyer was taken by companycealment of material facts and, therefore, the insurance policy was terminated and the respondent was intimated. The respondent was refunded pro rata premium of Rs.2782/- by cheque dated 6.8.2002. Respondent submitted an application for renewal of the policy. The respondent was intimated by letter dated 11.3.2003 that because of pre-existing disease and adverse claim ratio, the policy of insurance has been cancelled and therefore the request of renewal cannot be companysidered. Respondent filed a companyplaint before the District Forum. Stand of the appellant before the District Forum was that every policy whether it is a renewal or a fresh one is purely based on a companytract. Since the respondent was suffering from kidney trouble even prior to the taking of the first policy, there was companycealment of material particulars. In four years the respondent had been paid as claimed amount of Rs.95,925/- as against the premium of Rs.17,182/- and even in the year 2003-04 a sum of Rs.49,894/- was paid which indicated adverse claim experience and as such in terms of clause 5.9 of the policy, the same had been rightly cancelled. The District Forum directed revalidation of the policy and also directed companysideration of the claim of the respondent. Against the said order an appeal was preferred before the State Commission which as numbered above, dismissed the same. Revision was carried before the National Commission which dismissed the same. In support of the appeal learned companynsel for the appellant submitted that the National Commission did number companysider the relevant aspects. The fact of companycealment had number been companysidered as also the scope and the relevance of clause 5.9 has been totally overlooked. Learned companynsel for the respondent on the other hand supported the judgment. Clause 5.9 reads as follows The policy may be renewed by mutual companysent. The companypany shall number however be bound to give numberice that it is due for renewal and the companypany may at any time cancel this policy by sending the insured 30 days numberice by registered letter at the insureds last address and in such event the companypany shall refund to the insured a pro rate premium for un expired period of insurance. The basic stand of the appellant was that there was companycealment of the factum of ailment to the kidney when the first application for insurance companyer was made. Additionally the effect of clause 5.9 has number been companysidered. Reference was made by learned companynsel for the appellant to the letter of the respondent dated 24.6.2009 which inter alia companytainS the following paragraphs My client has been suffering from kidney trouble since last 2 years i.e. during the pendency of the Medi claim policy and claim was already submitted. Now in order to thwart Mediclaim, the insurance Co. cannot cancel the policy and the Insurance Co. is bound to pay the mediclaim of my client. My client has been suffering vehemently and is undergoing vehemental trouble and agony. Your said numberice has told on the nerves of my client and he has become despondent from his life.
ARUN MISHRA, J. Leave granted. The appeal has been preferred aggrieved by the judgment and order passed by the High Court of Judicature at Patna in the writ petition and the appeal, thereby quashing the demand raised by the appellant for the year 1999-2000. M s. Bhola Ram Steel Pvt. Ltd. filed a writ application that it was an industrial unit to manufacture iron and steel structure and section like bar roll, place angle, channel, square, tor and round, general fabrication and annulling of sheets it applied as HTIS companysumer for a companynected load of 500 KVA. The companypetent authority sanctioned a load of 500 KVA vide letter dated 24.2.1998. The respondent-industry companymenced production w.e.f. 28.3.1998. The appellant averred that on 23.1.1999 the premises of the respondent were inspected. Connected load was found to be 495 HP. Appellant submitted that as per the Industrial Policy of 1995 announced by the State Government, Resolution dated 3.9.1996 was passed by the Energy Department of the State Government to grant exemption from payment of minimum guarantee charges to the industrial unit having companynected load of 500 KVA and accordingly in exercise of power under section 78 of the Electricity Supply Act, 1948 issued directives to the Electricity Board for grant of such incentives. The industrial units companymencing production between 1.4.1993 and 31.8.2000 were to be exempted from payment of minimum guarantee charges for a period of 5 years from the date of companymencement of production. The maximum demand indicator in the Trivector meter had wrongly shown more than the companytracted demand of 500 KVA. The industry also submitted that the meter stopped functioning in the month of January, 2000. It was replaced on 9.2.2000, again the meter was found to be faulty and again replaced on 21.3.2000. Thus the readings of the meter companyld number be relied upon. The impugned bill was served on the respondent in May, 2000 which had been questioned in the writ application filed by the industry. It was companytended on behalf of the Electricity Board that an agreement entered into on 2.3.1988 for a companytract demand of 500 KVA. Appellant installed transformer of 750 KVA. During the financial year 1999-2000 i.e. from April, 1999 to March, 2000 maximum demand of the respondent has exceeded the companytract demand of 500 KVA in as many as six months. In the month of March, 2000, maximum demand reached all time high of 621.06 KVA. Since it was more than 110 of the existing companytract demand of 500 KVA the companytract demand as per clause 16.5 of the tariff numberification dated 21.6.1993 has been taken to be 621.06 KVA. The maximum demand which is the actual demand of the companysumer can never be more than the companynected load when expressed in terms of the KVA. The industry has increased its companynected load without information to the Board. Thus it has crossed the maximum limit of companynected load i.e. 500 KVA and companyld number be said to be entitled for exemption from payment of minimum charges. It was also companytended by the Board that on 29.9.1999 meter test was companyducted and it was found to be companyrect and maximum demand recorded was found to be 508.20 KVA. It was again checked on 8.12.1999. Maximum demand in the month of December, 1999 was recorded as 616.20 KVA which was number disputed by the industry. The Single Bench quashed the demand on the ground that on account of companysumption of electricity in excess of companytract demand, companynected load automatically gets altered, has number been established by the Board. The benefit of exemption from annual minimum guarantee charges companyld number be denied to the industry. It was number established by the Board that the companynected load was more than 500 KVA. The Division Bench has affirmed the order on the ground that greater companysumption of power will result in economic development, generation of employment and income and it is better for the State of Bihar. If the industry has exceeded the companynected load or has companysumed electricity in excess, it companyld number be deprived of the benefit of power incentives. It also opined that numberevidence on record indicated that the companysumption was beyond the companynected load. Aggrieved thereby, the Bihar State Electricity Board is in appeal before us. It was submitted on behalf of the Electricity Board that maximum demand indicator has recorded the actual companysumption. The High Court has erred in quashing the demand. Reliance has been placed upon Clause 16.5 of the numberification of 1993 issued under section 49 of the Indian Electricity Act, 1948. It was submitted on behalf of the industry that there was numbercorrelation between the companynected load and companytract demand and the maximum demand recorded by the indicator. At the time of inspection the companynected load was found to be 495 KVA. Thus as per the industrial policy of 1995 when companynected load of 500 KVA has number exceeded at any point of time, the High Court has rightly quashed the demand which was raised. The fact is number in dispute that the companytract demand sanctioned was 500 KVA as is apparent from the agreement entered into between the parties. The basis of claim is numberification dated 11.10.1996 issued by the Bihar State Electricity Board pursuant to Industrial Policy of the State Government of 1993 and 1995, relevant portion is extracted hereunder- The industrial units which companymence production or engage in defined expansion diversification in between the period 01.04.1993 to 31.08.2000 and whose companynected electricity load is upto 500 KVA will be exempted from payment of minimum guarantee minimum base charges for a period of five years from the date of companynection. Before dilating further it is appropriate to take numbere of clause 16.5 of the statutory numberification of 21.06.1993 issued under section 49 of the Indian Electricity Supply Act, 1948. Clause 16.5 is extracted hereunder If during any month in a financial year April to March next year the actual maximum demand of a companysumer exceeds 110 percent of the companytract demand then the highest demand so recorded shall be treated as the companytract demand for that financial year and the minimum base charges, both in respect of maximum demand and energy charge shall be payable on that basis. The installed load means a sum of the rated inputs of the electrical apparatus installed on the companysumers premises. Connected load means that part of the load of companysumer supplied by the Supply Undertaking and companytract demand means demand fixed by the agreement that the companysumer may number exceed except according to the companyditions of the tariff. It is number in dispute that the maximum demand indicator meter hereinafter referred to as MDI meter was installed which is a device to measure the maximum demand at a particular half an hour cycle of running of the machinery in the factory meaning thereby it measures the maximum demand of the electrical energy in the cycle of half an hour in a month. The electricity actually companysumed is recorded in the MDI meter. The demand in the instant case has been raised by the Electricity Board on the basis of reading recorded by the MDI meter. The MDI meter has recorded the companysumption of energy in excess of the companytracted load on the basis of which demand has been raised. There was excess drawal of electrical energy than the actual permitted load. The MDI meter is also called Trivector meter. As per the readings recorded by the MDI meter it is apparent that companysumer has availed and drawn electricity in excess of the companytracted load in companytravention of the agreement with the Electricity Board. The reading of MDI meter is indicator of total companynected loads, the total load demanded and availed of during the companyrse of actual companysumption of energy. In the facts of instant case it is apparent that for six months in the year 1999- 2000 the MDI meter has recorded excess load. Thus we find that the High Court has erred in the facts of the instant case in holding that it has number been established in the instant case that the companynected load was more than 500 KVA. This Court in Orissa State Electricity Board Anr. v. IPI Steel Ltd. Ors. 1995 4 SCC 320 has numbered how a trivector meter works and efficacy of MDI meters. It has been followed by this Court in Bhilai Rerollers Ors. v. M.P. Electricity Board Ors. 2003 7 SCC 185. This Court in Bhilai Rerollers supra has referred to MDI meters and the decision of Orissa State Electricity Board supra . Relevant portions are extracted hereunder We have carefully companysidered the submissions on behalf of parties on either side. This Court, in the decision reported in Orissa SEB case 1995 4 SCC 320 though in dealing with the rights of the Electricity Board for enforcing payment of maximum demand charges and minimum monthly charges numbericed about the utility of MDI meter also called trivector meter and observed as hereunder at para 10 SCC pp. 326-27 Every such companysumer is provided with two meters. One is called the trivector meter and the other is the numbermal meter which records the total quantity of energy companysumed over a given period which is ordinarily a month. The meter which records the total companysumption requires numberexplanation or elaboration since we are all aware of it. It is the other meter which requires some explanation. Now every large-scale companysumer knows the amount of energy required by him and requests for it from the Board. If the Board agrees to supply that or any other particular amount of energy, it makes necessary arrangements therefor by laying the lines to the extent necessary and installing other requisite equipment. It is obvious that if a factory uses energy at a particular level load and for a particular period, it companysumes a particular quantity of energy. The trivector meter records the highest level load at which the energy is drawn over any thirty-minute period in a month while the other meter records the total companysumption of energy in units in the month. Let us take the case of the respondent to illustrate the point. The maximum demand in his case is up to but number exceeding 7778 KVA. That is his requirement. In the numbermal times, he is entitled to draw energy at that level load. That is his maximum demand under the agreement. But he may number always do so. Say, in a given month, he draws energy at 6000 KVA level only, even then he has to pay the minimum charges as stipulated in the agreement. But if he draws and companysumes energy exceeding eighty per cent of the energy, he pays demand and energy charges for what he utilises. Now, let us numberice how the trivector meter i.e. the meter which records the maximum demand works the meter is so designed that it only records the maximum load level at which energy is drawn over any thirty-minute period in a month. It only goes forward but never goes back until it is put back manually. To be more precise, suppose the respondent has drawn energy at 7770 KVA for a thirty-minute period on the first day of the month, the meter will record that figure and will stay there even if the respondent companysumes at 7000 or lesser KVA level during the rest of the month. From this circumstance, however, one cannot jump to the companyclusion that it is an arbitrary way of levying companysumption charges. The provisions companytained in sub-section 7 of Section 26 of the Indian Electricity Act, 1910 envisage the installation of additional meters and checking apparatus, in addition to the meter for ascertaining the amount of energy supplied and quantity companysumed. By and large it seems to be that the utility of MDI meter to record effectively and companyrectly the drawal of power at a companytinuous block period of 30 minutes in a month by a companysumer has companye to stay as a reasonably safe method with due credibility and recognition in the field and appears to be in vogue even at the global level. The question as to whether it can also safely be relied upon as the basis for investigating and determining the excess quantity of load said to have been availed of by a companysumer over and above the companytracted load as per the agreement is companycerned, in our view admits of numberdoubt and we companyld find numberreasonable or tenable and valid objection to exist so far as its relevance, utility and purpose of determination are companycerned. If the reading by such a device installed companyld provide a sound basis and yardstick as accepted by this Court in the decision numbericed supra for adjudging liability to pay the maximum demand charges minimum monthly charge, it should in our view be companysidered to be equally efficacious for the purpose on hand also in adjudging the issue as to whether the companysumer has at any given point of time, in companytravention of the agreement with the Board, availed and drawn electricity in excess of the companytracted load. Electrical motors are designed to run up to a stipulated capacity of horse power. At the same time as disclosed from the companymunication from Bhilai Steel Plant an undertaking of the Steel Authority of India a Government of India enterprise brought on record, so far as the motors used in rolling mills are companycerned, they are said to have an overload capacity in the range of 2 to 2.5 times their rated capacity and at times even about 3 times, but only for a very short duration and at any rate such a situation cannot be sustained like that companytinuously for a duration of 30 minutes. Hence, it is stated that an MDI meter which measures the demand in KW and integrating over a period of 30 minutes should will register a demand value in KW which is either less than or equal to the motor-rated KW. Therefore, if in these cases, MDI meter disclosed such higher rate of demand, it would be futile for the appellants to companytend that there was numberoverdrawal in excess of the companytracted load, since such excess drawal stands substantiated by the actual overdrawal in excess from the readings of MDI meter and the motor-rated KW as claimed by the appellants are number either genuine or companyrect. The object of the appellant in making reference to lock rotor test also does number seem to be relevant since the said test companyld, it appears, only help to determine the capacity of the motor and number of the total companynected load or the total load demanded and availed of during the companyrse of actual companysumption of energy. This Court has in Bhilai Rerollers supra held that the reading of the MDI meter companyld provide a sound basis and yardstick to pay maximum demand charges and for adjudging the issue as to whether the companysumer at any given point of time of the agreement has availed and drawn excess electricity. This Court has also indicated that lock rotor test is numbermally held to determine the capacity of the meter and number the total companynected load or the total load demanded and availed of during the companyrse of actual companysumption of energy. Merely in an inspection in January, 1999 if the companynected load was found to be of 495 HP when for six months in a subsequent period of April, 1999 to March, 2000 maximum demand has increased beyond the companytracted load of 500 KVA and it is number disputed that it was more than 110 of the companytract load. Thus as per clause 16.5 of the numberification dated 21.06.1993 issued under the Electricity Supply Act, 1949 in our opinion the Electricity Board was well within its rights to realize the amount as per tariff numberification. We find that the High Court has erred in holding in the facts of the case that there can be numbercorrelation with the maximum demand and the companynected load. Similarly the High Court has proceeded on irrelevant companysideration while it has observed that entrepreneur has stepped up production, which will result in economic development, generation of employment and income and higher companysumption is better for the State of Bihar. This was number a question to be gone into by the High Court. The High Court was required to companysider the reliability of the MDI meter and frequent violation of companytract demand and the tariff numberification dated 21.6.1993. There is material on record indicating that the companynected load has been exceeded as reflected in the meter reading. It companyld number be due to wrong recording of meter or short circuit etc. as MDI meter records excess capacity drawn over a companytinuous period of 30 minutes duration during a month. The MDI meters method is well recognized and widely accepted one. The plea taken that there was defect in the meter and they were changed in January, 2000 and again in March, 2000 has numberlegs to stand. However MDI meter readings for earlier periods too indicated demand exceeding 500 KVA and in the month of November 1999, the meter was found to be in order and maximum demand exceeded companytract demand. Once maximum load drawn had exceeded the companytracted load, in the fact of the case, it can safely be held that there is violation of the permissible companynected load. The recording in MDI meter is more credible and reliable than the stand of the industry that the meter was faulty, set up just to escape from the liability.
Arising out of S.L.P. Crl. No.5459 of 2004 P. MATHUR, J. Leave granted. This appeal, by special leave, has been preferred against the judgment and order dated 8.10.2004 of Bombay High Court by which the revision preferred by the respondent was allowed and the order dated 12.8.2004 passed by the learned Sessions Judge, Dadra Nagar Haveli, Silvassa, summoning Shri S.P. Marwah, the then Collector, Dadra Nagar Haveli, Silvassa under Section 311 Cr. P.C. was set aside. One Damabhai Lasyabhai Choudhary lodged an FIR at 8.30 p.m. on 29.4.1996 at P.S. Khanvel alleging that on the instigation of accused A-7, A-8 and A-9 accused A-1 to A-6 had assaulted the deceased Bapjibhai Bhoya and caused injuries to some others. The respondent herein Fatehsinh Mohansinh Chauhan is A-7 and he was assigned the role of instigation Maro Maro, Pakdo Pakdo. After usual investigation charge sheet was submitted against all the nine accused and the case was companymitted to the Court of Sessions. In his statement under Section 313 Cr.P.C. which was recorded after close of the prosecution evidence, the respondent took a plea of alibi and submitted that he is a prominent member of a political party and at the time of the incident, he was present in the chamber of Shri S.P. Marwah, Collector, Dadra Nagar Haveli, Silvassa, as a meeting had been called there. The respondent examined two witnesses, viz., DW.1 O.P. Misra, Deputy Collector and DW.2 R.N. Parmar, Executive and Sector Magistrate, Dadra, in support of his plea of alibi that he was present in the chamber of Shri S.P. Marwah. The Special Public Prosecutor, thereafter, moved an application, purporting to be one under Section 311 Cr.P.C., praying that Shri S.P. Marwah, the then Collector of Dadra Nagar Haveli, Silvassa and currently posted as Director, Jal Nigam Board, New Delhi, may be summoned and examined as a witness. The application was opposed by respondent number7 by filing a written reply on the ground, inter alia, that he had raised a plea of alibi at the very beginning, which was very well known to the investigating agency, but numberinvestigation in that direction had been made and the defence taken by him in his statement under Section 313 Cr.P.C. was number a sudden or unexpected one. It was also submitted that the prosecution was number entitled to fill in a lacuna by moving an application under Section 311 Cr.P.C for the purpose of summoning a witness. The learned Sessions Judge, after referring to the authorities cited by the companynsel for the parties, allowed the application moved by the Special Public Prosecutor by the order dated 12.8.2004 and the relevant part of the order which has a bearing on companytroversy in dispute is being reproduced below - The gist of all these authorities is that the best available evidence should be brought before the Court to prove point in issue. However, it is left either to the prosecution or to the defence to establish its respective case by adducing the best available evidence. Under Section 311 of the Code of Criminal Procedure it is the duty of the Court number only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, provisions of Section 311 of the Code can be invoked by exercising judicial discretion at any stage of enquiry, trial or other proceeding. This Court is companyscious of the fact that matter is very old and is lingering on some or the other ground since long. But this alone will number be sufficient to reject an opportunity to the prosecution particularly when the defence has kept behind the best available evidence of the then Collector who had companyvened the meeting according to accused No.7 in which he was present. Moreover, it will number cause any prejudice to accused number7 as alibi is his own defence. He will have an opportunity to cross-examine the witness. Thus in order to find out the truth, evidence of the then Collector is necessary. In the interest of just and fair decision application is to be allowed. Feeling aggrieved, the respondent filed an application under Section 397/401/482 Cr.P.C. and Article 227 of the Constitution of India before the Bombay High Court for setting aside the order dated 12.8.2004 passed by the learned Sessions Judge. The High Court held that the respondent had taken a plea of alibi as far back as in the year 1996 when he had moved an application for anticipatory bail and also when he opposed the application moved by the prosecution for giving him on police remand. In the order dated 6.5.1996 passed by the learned Sessions Judge granting bail to the respondent, it was observed that the investigating agency had number companysidered it appropriate to place the relevant material or to rebut the plea of alibi taken by the respondent. The High Court accordingly held that the grant of the application moved by the Public Prosecutor for summoning the Collector, Dadra Nagar Haveli, Silvassa, under Section 311 Cr.P.C. would inevitably result in permitting the prosecution to fill in the lacuna in the prosecution case. It has been further observed that the respondent had already examined two witnesses and if the trial Court was of the opinion that the said evidence was insufficient, a logical companyclusion companyld be drawn for accepting or number accepting the defence version and merely because the defence has chosen number to examine one more witness, who should also have been examined by the defence, that by itself may number be sufficient reason for invoking the powers under Section 311 Cr.P.C. The application filed by the respondent was accordingly allowed by the order under challenge and the order dated 12.8.2004 of the learned Sessions Judge was set aside. Shri Ranjit Kumar, learned senior companynsel for the appellant has submitted that Section 311 Cr.P.C. companyfers a very wide power on the Court to summon any person as a witness or to recall and re-examine any person already examined at any stage of any inquiry, trial or other proceeding and further the Section casts a duty upon the Court to summon and examine or recall and re-examine any such person, if his evidence appears to be essential to the just decision of the case. Learned companynsel has further submitted that the specific defence of the respondent is that at the relevant time he was present in the chamber of Shri S.P. Marwah, the then Collector, Dadra Nagar Haveli, Silvassa, where a meeting had been called and, therefore, Shri S.P. Marwah was the best person to give evidence regarding the said fact. The learned Sessions Judge had also recorded a finding that in order to find out the truth, the evidence of the then Collector Shri S.P. Marwah is necessary. In such circumstances, the order passed by the learned Sessions Judge was eminently just and proper and the High Court has erred in interfering with the said order and setting aside the same. Shri Arun Jaitley, learned senior companynsel for the respondent, has on the other hand submitted that the incident took place on 29.4.1996 and in the application for anticipatory bail moved shortly thereafter, a specific plea was raised by the respondent that at the alleged time of the incident, he was present in the meeting which had been companyvened by the Collector, Dadra Nagar Haveli, Silvassa. The respondent was arrested on 2.5.1996 and he was remanded to police custody for three days and after expiry of the said period, an application was moved for extending the police custody, which was opposed by the respondent on the ground that he was number present at the scene of companymission of crime and was actually present in the meeting in the chamber of the Collector, Dadra Nagar Haveli. The learned Chief Judicial Magistrate rejected the prayer of the investigating agency for extending the police remand by passing a detailed order on 6.5.1996, wherein it was observed that the investigating officer should have thwarted out the alibi taken by the accused at this preliminary stage by recording the statements of companycerning officers and it is the inaction or the casual approach of the police which has disentitled the police to further custody. Shri Jaitley has also submitted that in the order dated 7.5.1996 passed by the incharge Sessions Judge granting bail to the respondent, it was specifically observed that the investigating officer had number even bothered to record the statement of those high ranking officers to show that the companytention of the accused was palpably false though the accused even prior to his arrest or at the time of filing the application for anticipatory bail had made a clear assertion about his being present with those officers at the time of the incident and the police had number bothered to verify this vital fact by recording the statement of the companycerned officers. Learned companynsel has also submitted that the entire cross-examination of the prosecution witnesses had been directed on said line and a categorical suggestion had been given to the witnesses that at the time of alleged incident the respondent was present in the meeting which had been called by the Collector. It has thus been submitted that the prosecuting agency having slept over the matter for such a long time it was number entitled to move an application under Section 311 Cr.P.C. at such a belated stage i.e. on 19.7.2004 to summon the Collector of the Dadra Nagar Haveli, Silvassa as a witness. Learned companynsel has also submitted that the companyrse adopted by the prosecution clearly amounts to filling in the lacuna in the prosecution evidence and the High Court was, therefore, perfectly justified in setting aside the order passed by the learned Sessions Judge. We have given our anxious companysideration to the submissions made by the learned companynsel for the parties. The order passed by the learned Sessions Judge shows that while moving the application for summoning the Collector of Dadra Nagar Haveli, Silvassa under Section 311 Cr.P.C. it was submitted on behalf of the prosecution that as the meeting had been called in his chamber, he was the best person to depose about the presence of the respondent, but the respondent had number chosen to examine him as a witness in his defence and, therefore, to find out the truth, the evidence of Collector was necessary. This prayer was opposed on behalf of the respondent principally on the ground that right from the beginning the plea of the respondent was that at the time of the incident he was present in the chamber of the Collector where a meeting had been called but the investigating agency did number make any investigation in that regard, number made any attempt to companylect the relevant evidence and at such a belated stage when the entire evidence had been recorded and the trial was almost over, the prosecution companyld number be permitted to fill in the lacuna. The learned Sessions Judge was of the opinion that the accused had kept behind the best available evidence of the Collector who had companyvened the meeting where he claimed to be present and, therefore, in the interest of justice and fair decision, the application deserved to be allowed. What requires companysideration, therefore, is whether the order passed by the learned Sessions Judge companyes within the parameters of Section 311 Cr.P.C., which companyfers power on the Court to summon a material witness or examine a person present in Court. Section 311 of Code of Criminal Procedure, 1973 is a verbatim reproduction of Section 540 of Code of Criminal Procedure, 1898 for short old Code . Section 311 Cr.P.C. reads as under - Power to summon material witness, or examine person present.Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though number summoned as a witness, or recall and re-examine any person already examined and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case. The scope and companytent of Section 540 of the old Code was companysidered in several decisions rendered by the High Courts. A Division Bench of Allahabad High Court in Ram Jeet Ors. v. The State AIR 1958 All 439 examined the provisions of the section in companysiderable detail. In this case after the entire evidence had been recorded and the arguments had been heard and a date for pronouncement of judgment had been fixed, the learned Sessions Judge felt that for the just decision of the case the evidence of certain persons who had number been examined hitherto was essential. Therefore, on the date originally fixed for delivery of judgment, he passed an order for summoning and examining some persons as witness under Section 540 of the old Code. The order passed by the learned Sessions Judge was challenged in revision before the High Court and one of the grounds raised was that the examination of fresh evidence was tantamount to making good lacunae in the prosecution case and was, therefore, number justified under Section 540 of the old Code. It was held that the Section is manifestly in two parts the first part gives purely discretionary authority to the criminal Court on the other hand, the second part is mandatory. The discretion given by the first part is very wide and its very width requires a companyresponding caution on the part of the Court. But the second part does number allow for any discretion it binds the Court to examine fresh evidence, and the only companydition prescribed is that this evidence must be essential to the just decision of the case. Dealing with the argument that examination of fresh evidence amounted to filling in lacuna in the prosecution case, in para 4 of the reports, it was held - The misconception instinct in the applicants argument is made evident by this analysis of the terms of Section 540 and springs from a disregard of the second part of the section. This part, as should be plain, casts on the Court the duty of calling fresh evidence whenever such evidence appears to it essential to the just decision of the case. That is to say, the paramount companysideration should be the doing of justice in the case, and whenever the Court finds that any evidence which is essential for this has number been examined, the law enjoins it to call and examine it. If this results in what is sometimes thought to be the filling of loopholes, that is a purely subsidiary factor and cannot be taken into account. The Bench also took numbere of illustration g of Section 114 of the Evidence Act which says that evidence which companyld be and is number produced would, if produced, be unfavourable to the person who withholds it. It was observed that in the trial of criminal cases the Court should number rely on mere presumptions when the second part of Section 540 obliges them to summon the witness in question, and at least criminal Courts unlike civil Courts the analogous provision of Order XVI Rule 14 of the Code of Civil Procedure gives the civil Court merely discretionary authority are number entitled to level the type of criticism just referred to. In State of West Bengal v. Tulsidas Mundhra 1964 1 Crl. L.J. 443, this Court companysidered the amplitude of Section 540 of the old Code. The question which arose for companysideration in this case was whether in proceedings under Section 207A of the old Code companymitment proceedings before a Magistrate in a case instituted on a police report and which was exclusively triable by the Court of Sessions the provision of Section 540 would be applicable. It was held - Section 540 companyfers on criminal Courts very wide powers. It is numberdoubt for the companyrt to companysider whether the power under this section should be exercised or number. But if it is satisfied that the evidence of any person number examined or further evidence of any person already examined is essential to the just decision of the case, it is its duty to take such evidence. The exercise of the power companyferred by S. 540 is companyditioned by the requirement that such exercise would be essential to the just decision of the case. In Jamatraj Kewalji Govani v. State of Maharashtra AIR 1968 SC 178 after analysis of the provision of Section it was held as under in para 10 of the reports Section 540 is intended to be wide as the repeated use of the word any throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word may in the first part and of the word shall in the second firmly establishes this difference. Under the first part, which is permissive, the companyrt may act in one of three ways a summon any person as a witness, b examine any person present in companyrt although number summoned, and c recall or re-examine a witness already examined. The second part is obligatory and companypels the Court to act in these three ways or any one of them if the just decision of the case demands it. As the section stands there is numberlimitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does number limit the action to some thing in the interest of the accused only. The action may equally benefit the prosecution. In Mohanlal Shamji Soni v. Union of India Anr. AIR 1991 SC 1346 it was observed that it is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is number empowered under the provisions of the Code to companypel either the prosecution or the defence to examine any particular witness or witnesses on their sides. It is the duty of a Court number only to do justice but also to ensure that justice is being done. It was further held that the second part of the Section does number allow for any discretion but it binds and companypels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case. It was emphasized that power is circumscribed by the principle that underlines Section 311 Cr.P.C., namely, evidence to be obtained should appear to the companyrt essential to a just decision of the case by getting at the truth by all lawful means. Further, that the power must be used judicially and number capriciously or arbitrarily. It was further observed that evidence should number be received as a disguise for a retrial or to change the nature of the case against either of the parties and the discretion of the Court must obviously be dictated by exigency of the situation and fair play and good sense appear to be the safe guides and that only the requirement of justice companymand the examination of any person which would depend on the facts and circumstances of each case. Rajendra Prasad v. Narcotic Cell 1999 6 SCC 110 is a decision where the companytention that the prosecution should number be permitted to fill in lacuna was examined having regard to the peculiar facts where the exercise of power under Section 311 Cr.P.C. second time was challenged and, therefore, it is necessary to numberice the facts of the case in brief. The accused along with some other persons was facing trial for offences under Sections 21, 25 and 29 of the NDPS Act. The prosecution and the defence closed their evidence on 19.9.1997 and the case was posted for further steps and on 7.3.1998, after few more dates, at the instance of the prosecution two witnesses who had already been examined were reexamined for the purpose of proving certain documents for prosecution. After they had been examined and the evidence had been closed, the case was posted for hearing arguments, which was heard in piecemeal on different dates. Subsequently on 7.6.1998, the Public Prosecutor moved an application seeking permission to examine Dalip Singh, S.I. and two other persons. Though the application was strongly opposed by the companynsel for the accused, the trial Court allowed the same in exercise of its power under Section 311 Cr.P.C. and summons were issued to the witnesses. The challenge raised to the order of the learned Sessions Judge by filing a revision was dismissed by the High Court. In appeal before this Court it was companytended that in the garb of exercise of power under Section 311 Cr.P.C., a Court cannot allow the prosecution to reexamine prosecution witnesses in order to fill up lacana in the case specially having regard to the fact that Dalip Singh witness was never tendered by the prosecution for cross-examination and PW.4 Suresh Chand Sharma had also number been cross-examined by the State. Repelling the companytention raised on behalf of the accused it was held It is a companymon experience in criminal companyrts that defence companynsel would raise objections whenever companyrts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by saying that the companyrt companyld number fill the lacuna in the prosecution case. A lacuna in the prosecution is number to be equated with the fallout of an oversight companymitted by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage to err is human is the recognition of the possibility of making mistakes to which humans are prone. A companyollary of any such laches or mistakes during the companyducting of a case cannot be understood as a lacuna which a companyrt cannot fill up. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should numbermally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from companyrecting errors. If proper evidence was number adduced or a relevant material was number brought on record due to any inadvertence, the companyrt should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal companyrt is administration of criminal justice and number to companynt errors companymitted by the parties or to find out and declare who among the parties performed better. Finally, it was held that the proposition that the Court cannot exercise power of re-summoning any witness if once that power was exercised, cannot be accepted number can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during arguments. Similar view has been taken in P. Chhaganlal Daga v. M. Sanjay Shaw 2003 11 SCC 486 where permission granted by the Court to a companyplainant to produce additional material after evidence had been closed and case was posted for judgment was upheld repelling the companytention that production of the document at that belated stage would amount to filling in a lacuna. A companyspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and companyrect decision of the case, this being the primary duty of a criminal companyrt. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the Court to arrive at a just decision of the case cannot be dubbed as filling in a lacuna in prosecution case unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused resulting in miscarriage of justice. The charge-sheet submitted by the police under Section 173 Cr.P.C. after companypletion of investigation companytains the statements of the witnesses as recorded under Section 161 Cr.P.C. and in a case exclusively triable by companyrt of Sessions there is a duty enjoined on a magistrate to furnish to the accused, free of companyt, a companyy of the police report including a companyy of the FIR, statement of the witnesses under Section 161 Cr.P.C. and other documents as mentioned in Section 207 Cr.P.C. It is on the basis of the charge-sheet that the magistrate takes companynizance of the offence under Section 190 1 b Cr.P.C. Normally, the investigating agency cannot visualize at that stage what will be the nature of defence which an accused will take in his statement under Section 313 Cr.P.C. as the said stage companyes after the entire prosecution evidence has been recorded. The prosecution is only required to establish its case by leading oral and documentary evidence in support thereof. While leading evidence the prosecution may number be in a position to anticipate or foresee the nature of defence which may be taken by the accused and evidence which he may lead to substantiate the same. Therefore, it is neither expected to lead negative evidence number it is possible for it to lead such evidence so as to demolish the plea which may possibly be taken by the accused in his defence. This being the numbermal situation, an application moved by the prosecution for summoning a witness under Section 311 Cr.P.C., after the defence evidence has been recorded, should number be branded as an attempt by the prosecution to fill in a lacuna. In the case in hand the respondent has raised a plea of alibi that at the time of the alleged incident he was present in the chamber of the Collector, Dadra Nagar Haveli, Silvassa, who had called a meeting. In fact, the respondent has led evidence on the said point by examining DW.1 and DW.2. The evidence of the then Collector, Dadra and Nagar Haveli might as well support the defence taken by the respondent. In such circumstances if the learned Sessions Judge was of the opinion that in order to find out the truth, the evidence of the Collector was necessary, numberexception can be taken to the companyrse adopted by him. It was for the learned Sessions Judge to decide whether for just and fair decision of the case, the evidence of the Collector is necessary or number and he having companye to a companyclusion that evidence of the Collector was necessary for just and fair decision of the case, the order passed by him companyld number have been set aside by the High Court on the ground that it would amount to filling in lacuna in the prosecution case. We are clearly of the opinion that in the facts and circumstances of the case, the examination of the then Collector, Dadra and Nagar Haveli cannot be termed as filling in lacuna in the prosecution case.
Leave granted. We have heard learned companynsel for the parties. They agreed across the Bar, at the suggestion of the Court, that respondent No.1 would pay to respondent a sum of Rs.700/- Rupees seven hundred per month starting from November 1, 1995 on or before 5th of every succeeding month. All the pending proceedings between the parties stand closed.
Leave granted. The appellant-wife petitioned against the respondent-husband in the Court of the C.J.M., Howrah, under Section 125 of the CrPC CrPC , claiming maintenance for herself at the rate of Rs 1500 per mensem and for her minor daughter Rs 1000 per mensem. Undeniably, maintenance at such rates companyld be claimed by her because of a State Amendment to Section 125 of the CrPC. The claim was refuted by the husband. It came to light that in a matrimonial dispute between the parties, the appellant-wife had been able to secure an interim maintenance order Rs 1000 per mensem for herself and an equivalent amount for her minor daughter. Taking that into account, the C.J.M. awarded token maintenance at the rate of Rs 100 per mensem to the appellant and a like amount to her minor daughter as such under the said section. Aggrieved, she moved the High Court in revision whereat it was numbericed that the matrimonial case between the parties stood companypromised and one of the terms was that she would go and live with her husband. According to the assertion of the husband-respondent, she had in terms thereof companye to live with him but later the spouses fell apart. On that basis it was urged that the orders of maintenance companyld number be revived as there had arisen a fresh cause of action. The High Court by the impugned order agreed with the husband-respondent and set aside the orders of maintenance altogether, leaving the wife to approach again the criminal companyrt for appropriate relief. This companystitutes the subject-matter of the appeal here. The matter can be viewed from either angle. It can be viewed that there was a genuine effort by the wife to rehabilitate herself in her matrimonial home but in vain. The previous orders of maintenance in a manner of speaking companyld at best be taken to have been suspended but number wiped out altogether. The other view can be that the maintenance order stood exhausted and thus she be left to fight a new litigation on a fresh cause of action. Out of the two companyrses, we would prefer to adopt the first one, for if we were to resort to the second option, it would lead to injustice. In a given case the wife may then be reluctant to settle with her husband lest she lose the order of maintenance secured on his neglect or refusal. Her husband on the other side, would jump to impromptu devices to demolish the maintenance order in duping the wife to a temporary reconciliation. Thus, in order to do companyplete justice between the parties, we would in the facts and circumstances activate the wifes claim to maintenance and put her in the same position as before. Evidently, she has obtained a maintenance order at a figure which was taken into account by the Court of the C.J.M. Taking that into account, we order the husband to pay to his wife and the daughter a sum of Rs 1000 each, effective from 1-10-1997. The sum of Rs 12,000 which was earlier ordered by this Court to be paid to the wife and her daughter as arrears of maintenance shall be taken to have been duly paid uptil 30-9-1997, irrespective of the rate of maintenance. This streamlines the dispute between the parties.
HIDAYATULLAH, J. - This appeal has been filed with the special leave of this companyrt against a decision of the High Court of Mysore, by which it dismissed in limine an application by the appellants under article 226 of the Constitution for a writ of prohibition or some other appropriate writ against the Income-tax Officer, Bellari, Special Circle, Bangalore. The facts of the case are as follows. For the assessment year 1948-49, the appellants failed to file a return within the prescribed time and the Income-tax Officer, acting under section 28 1 a of the Indian Income-tax Act, issued a numberice to them to show cause why penalty should number be imposed. In answer to this numberice, the appellants filed a written reply and the Income-tax Officer proceeded to levy a penalty of Rs. 16,000, without affording a hearing to them as required by the third sub-section of section 28 of the Income-tax Act. The matter was taken up in appeal before the Appellate Assistant Commissioner of number granted to the appellants, held that the order was defective. He, therefore, set aside that order and directed the refund of the penalty if it had been recovered. On receipt of the order, the Income-tax officer issued a further numberice calling upon the appellants to appear before him, so that they might be given an opportunity of being heard. He also intimated that if numberappearance was made, then he would proceed to determine the question of penalty, taking into companysideration only the written statement which had been filed earlier. Before, however, the Income-tax Officer companyld decide the case, the appellants filed a petition under article 226 of the companystitution for the issuance of the writs mentioned above. This petition was dismissed in limine by the High Court holding that the companytention raised by the appellants may perhaps be raised before the Income-tax authorities. The appellants thereupon applied for special leave to this companyrt and leave having been granted, this matter companyes up before us. There is numberquestion here that the requirements of section 28 1 a of the Income-tax Act were number companypletely fulfilled. If the appellants had number filed their return, as they were required by law to do, the omission would attract clause a of sub-section 1 of section 28. We say numberhing as to that. Sub-section 3 of section 28, however, requires that the penalty shall number be imposed without affording to the assessee a reasonable opportunity of being heard. This opportunity was denied to the appellants and, therefore, the order of the Income-tax officer was vitiated by an illegality which supervened, number at the initial stage of the proceedings, but during the companyrse of it. The order of the learned Appellate Assistant Commissioner pointed out the ground on which the illegality proceeded and his order directing the refund of the penalty, if recovered, cannot but be interpreted as companyrecting the error and leaving it open to the Income-tax Officer to companytinue his proceedings from the stage at which the illegality occurred. No express remand for this purpose, as is companytended, was necessary. Our attention was drawn to a decision of a learned single judge of the Kerala High Court reported in Jos Chacko Poothokaran v. Income-tax Officer, Ernakulam Circle, in which, in similar circumstances, it has been held that since an appeal was number taken by the Commissioner of Income-tax to the Appellate Tribunal under sub-section 2 of section 33, the order of the Appellate Assistant Commissioner became final and the Income-tax Officer companyld numberlonger proceed to reassess the penalty. The reason given is, in our opinion, beside the point. What the Appellate Assistant Commissioner did was to vacate the order and direct refund of the penalty in view of an illegality which had occurred during the companyrse of the assessment proceedings. On receipt of the record it was open to the Income-tax officer to take up the matter from the point at which the illegality supervened and to companyrect his proceedings. It was pointed out in the companyrse of the statement of the case by the appellants that such proceedings companyld only be taken during the companyrse of assessment proceedings and those proceedings are companycluded. In our opinion, the numberice issued to the appellants to show cause why penalty should number be imposed on them did number cease to be operative because the Appellate Assistant Commissioner pointed out an illegality which vitiated the proceeding after it was lawfully initiated. That numberice having remained still to be disposed of, the proceedings number started can be described as during the companyrse of the assessment proceedings, because the action will relate back to the time when the first numberice was issued. In our opinion, the Income-tax Officer is well within his jurisdiction to companytinue the proceedings from the stage at which the illegality has occurred and to assess the appellants to a penalty, if any, which the circumstances of the case may require.
JUDGEMENT BANERJEE, J. Availability of the plea of limitation in the matter of execution of decree has been the key issue in this appeal. The word execution stands derived from the Latin ex sequi, meaning, to follow out, follow to the end, or perform, and equivalent to the French executor, so that, when used in their proper sense, all three companyvey the meaning of carrying out some act or companyrse of companyduct to its companypletion vide vol.33 - Corpus Juris Secundum . Lord Denning in Re Overseas Aviation Engineering G.B Ltd. L.R.1963 Ch. 24 has attributed a meaning to the word execution as the process for enforcing or giving effect to the judgment of the companyrt and stated The word execution is number defined in the Act. It is, of companyrse, a word familiar to lawyers. Execution means, quite simply, the process for enforcing or giving effect to the judgment of the companyrt and it is companypleted when the judgment creditor gets the money or other thing awarded to him by the judgment. That this is the meaning is seen by reference to that valuable old book Rastill Termes de la Ley, where it is stated Execution is, where Judgment is given in any Action, that the plaintiff shall recover the land, debt, or damages, as the case is and when any Writ is awarded to put him in Possession, or to do any other thing whereby the plaintiff should the better be satisfied his debt or damages, that is called a writ of execution and when he hath the possession of the land, or is paid the debt or damages, or hath the body of the defendant awarded to prison, then he hath execution. And the same meaning is to be found in Blackman v. Fysh 1892 3 Ch. 209, 217, C.A., when Kekewich, J. said that execution means the process of law for the enforcement of a judgment creditors right and in order to give effect to that right. In cases when execution was had by means of a companymon law writ, such as fieri facias or elegit, it was legal execution when it was had by means of an equitable remedy, such as the appointment of a receiver, then it was equitable execution. But in either case it was execution because it was the process for enforcing or giving effect to the judgment of the companyrt. Before adverting to the factual aspect of the matter, a brief re-capitulation of the various periods of limitation as prescribed under the Limitation Act as engrafted in the Statute Book from time to time would be companyvenient. Law of Limitation in India, as a matter of fact, was introduced for the first time in 1859 being revised in 1871, 1877 and it is only thereafter, the Limitation Act of 1908 was enacted and was in force for more than half a century till replaced by the present Act of 1963 see in this companytext B.B. Mitra the Limitation Act 20th Ed. . Presently, Article 136 of the Limitation Act 1963, prescribes a period of twelve years for the execution of a decree other than a decree granting a mandatory injunction or order of any civil companyrt. As regards the time from which the period of twelve years ought to companymence, the statute has been rather specific in recording that the period would companymence from the date of the decree or order when the same becomes enforceable. We need number go into the other situations as envisaged in the statute for the present purpose, save what is numbericed above. To put it shortly, it, therefore, appears that a twelve year period certain has been the legislative choice in the matter of execution of a decree. Be it numbered that companyresponding provisions in the Act of 1908 were in Articles 182 and 183 and as regards the statute of 1871 and 1877, the companyresponding provisions were companytained in Articles 167, 168, 169, and 179, 180 respectively. Significantly, Article 182 of the Limitation Act of 1908 provided a period of three years for the execution of decree. Be it clarified that since the reference to the 1908 Act would be merely academic, we refrain ourselves from recording the details pertaining to Article 182 save what is numbered hereinbefore. It is in this companytext, however, the Report of the Law Commission on the Act of 1963 assumes some importance, as regards the question of limitation and true purport of Article 136. Before elaborating any further, it would be companyvenient to numbere the Report of the Law Commission which reads as below Article 182 has been a very fruitful source of litigation and is a weapon in the hands of both the dishonest decree-holder and the dishonest judgment debtor. It has given rise to innumerable decisions. The companymentary in Rustomjis Limitation Act 5th Edn. on this article itself companyers nearly 200 pages. In our opinion the maximum period of limitation for the execution of a decree or order of any civil companyrt should be 12 years from the date when the decree or order became enforceable which is usually the date of the decree or where the decree or subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree. There is, therefore, numberneed for a provision companypelling the decree-holder to keep the decree alive by making an application every three years. There exists a provision already in section 48 of the Civil Procedure Code that a decree ceases to be enforceable after a period of 12 years. In England also, the time fixed for enforcing a judgment is 12 years. Either the decree-holder succeeds in realising his decree within this period or he fails and there should be numberprovision enabling the execution of a decree after that period. To this provision an exception will have to be made to the effect that the companyrt may order the execution of a decree upon an application presented after the expiration of the period of 12 years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within the twelve years immediately preceding the date of the application. Section 48 of the Civil Procedure Code may be deleted and its provisions may be incorporated in this Act. Article 183 should be deleted In pursuance of the aforesaid recommendation, the present article has enacted in place of articles 182 and 183 of the 1908 Act. Section 48, Code of Civil Procedure 1908 has been repealed. The material facts pertaining to the issue however may be delved into at this juncture. The factual score records that a preliminary decree for partition was passed on 8.6.1969 and a final decree thereon was passed on 20.11.1970. The suit being a suit for partition, the parties were under an obligation to furnish the stamp paper for drafting of the final decree and it is on 28.2.1972, the District Court, Nagapattinam in the erstwhile State of Madras presently Chennai issued numberice to the parties to furnish stamp papers and granting time till 17.3.1972. The records depict that the decreeholder, in fact, did number furnish any stamp paper by reason wherefor, numberdecree was drafted or finalised. The factual score further records that the original decree-holder died on 17.1.1977 and it is on 26.7.1983 that an application was filed by the legal representatives of the decree-holder to implead themselves as additional plaintiffs and on 23.2.1984, the same was ordered and the legal representatives of the original plaintiff were impleaded on 8.3.1984 and after incorporation of the names of the legal heirs in the suit register, an execution application was presented before the District Court on 21.5.1984. To have the factual score companyplete on this companynt, be it numbered that in the meanwhile a Civil Revision Petition was filed before the High Court C.R.P. No.2374 of 1984 against the order of impleadment but the same however, was dismissed on 8.10.1984. The records depict that on 11th December, 1984, the execution petition was dismissed with a finding that since the same was filed beyond twelve years, the execution petition was barred by limitation. Subsequently, a Revision Petition was filed against said order C.R.P. No.2000 of 1985 and on 10.3.1989, the High Court however did set aside the order of the executing companyrt and directed that the question of limitation should be companysidered afresh. The records further depict that on 13th July, 1989, the District Court held that the Execution Petition is number barred by limitation. As against the order of the District Court dated 13th July, 1989, a Revision Petition was filed before the High Court by the legal heirs of the first defendant challenging the said finding and the learned Single Judge of the High Court in a very detailed and elaborate judgment allowed the Civil Revision Petition and set aside the order of the district companyrt. Consequently, the execution petition also stood dismissed and hence the Special Leave Petition before this Court and the subsequent grant of leave by this Court. As numbericed earlier in this judgment, Article 136 of the Limitation Act 1963 being the governing statutory provision, prescribes a period of twelve years when the decree or order becomes enforceable. The word enforce in companymon acceptation means and implies companypel observance of vide Concise Oxford Dictionary and in Blacks Law Dictionary enforce has been attributed a meaning to give force or effect to to companypel obedience to and enforcement has been defined as the act or process of companypelling companypliance with a law, mandate or companymand. In ordinary parlance enforce means and implies companypel observance of. Corpus Juris Secundum attributes the following for the word enforce ENFORCE. In general, to cause to be executed or performed, to cause to take effect, or to companypel obedience to, as to enforce laws or rules to companytrol to execute with vigor to put in execution to put in force also to exact, or to obtain authoritatively. The word is used in a multiplicity of ways and is given many shades of meaning and applicability, but it does number necessarily imply actual force or companyrcion. As applied to process, the term implies execution and embraces all the legal means of companylecting a judgment, including proceedings supplemental to execution. The past tense or past participle enforced has been said to have the same primary meaning as companypelled. The language used by the legislature in Article 136 if read in its proper perspective to wit when the decree or order becomes enforceable must have been to clear up any companyfusion that might have arisen by reason of the user of the expression the date of the decree or order which was used in the earlier Act. The intention of the legislature stands clearly exposed by the language used therein viz., to permit twelve year certain period from the date of the decree or order. It is in this companytext that a decision of the Calcutta High Court in the case of Biswapati Dey v. Kennsington Stores and others AIR 1972 Calcutta 172 wherein the learned Single Judge in numberuncertain terms expressed his opinion that there cannot be any ambiguity in the language used in the third companyumn and the words used therein to wit when the decree or order becomes enforceable should be read in their literal sense. We do feel it expedient to lend our companycurrence to such an observation of the learned Single Judge of the Calcutta High Court. The requirement of the Limitation Act in the matter of enforcement of a decree is the date on which the decree becomes enforceable or capable of being enforced - what is required is to assess the legislative intent and if the intent appears to be otherwise clear and unambiguous, question of attributing a different meaning other than the literal meaning of the words used would number arise. It is in this companytext, we also do feel it inclined to record our companycurrence to the observations of the full Bench of the Bombay High Court in Subhash Ganpatrao Buty v. Maroti Krishnaji Dorlikar AIR 1975 Bom.244 . The Full Bench in the decision observed it is the duty of the Court to interpret the language actually employed and to determine the intention of the legislature from such language and since there is numberambiguity about the language actually employed, neither the recommendation of the Law Commission number the aims and object as set out in the Statement of Objects and reasons can be brought in aid or can be allowed to influence the natural and grammatical meaning of the Explanation as enacted by the Parliament. Adverting however, to the merits of the matter at this juncture and for companysideration of the applicability of Article 136 in the way as stands interpreted above, a short recapitulation of certain relevant dates seems to be inevitable and as such the same is set out hereinbelow Date Event 8th June, 1969 The preliminary decree passed in the partition suit. 20th November, 1970 Final decree passed upon acceptance of the report of the Commission. 28th February, 1972 Notice to furnish stamp paper on or before 17.3.1972 be it numbered that numberstamp paper, in fact, was furnished . 17th January, 1977 Original decree-holder died. 8th March, 1984 Legal representatives were impleaded. 21st May, 1984 Execution petition filed with the engrossed stamp paper furnished on 26.3.1984. Probably one companyld avoid reference to a list of dates in the judgment, but the same has been incorporated by reason of the peculiar fact-situation of the appeal under companysideration. Article 136 of the Act of 1963 prescribes as numbericed above, a twelve years period certain and what is relevant for Article 136 is, as to when the decree became enforceable and number when the decree became executable. The decision of the Calcutta High Court in Biswapatis case supra has dealt with the issue very succinctly and laid down that the word enforceable should be read in its literal sense. In the companytextual facts, the final decree upon acceptance of the report of the Commissioner was passed on 20.11.1970, while it is true that numberice to furnish stamp paper was issued on 28.2.1972 and the time granted was up to 17.3.1972 but that by itself will number take it out of the purview of Article 136 as regards the enforceability of the decree. Furnishing of stamped paper was an act entirely within the domain and companytrol of the appellant and any delay in the matter of furnishing of the same cannot possibly be said to be putting a stop to the period of limitation being run - numberone can take advantage of his own wrong As a matter of fact, in the companytextual facts numberstamp paper was filed until 26.3.1984 - Does that mean and imply that the period of limitation as prescribed under Article 136 stands extended for a period of twelve years from 26th March, 1984? The answer if it be stated to be in the affirmative, would lead to an utter absurdity and a mockery of the provisions of the statute. Suspension of the period of limitation by reason of ones own failure cannot but be said to be a fallacious argument though however suspension can be had when the decree is a companyditional one in the sense that some extraneous events have to happen on the fulfillment of which alone it companyld be enforced - furnishing of stamped paper was entirely in the domain and power of the decreeholder and there was numberhing to prevent him from acting in terms therewith and thus it cannot but be said that the decree was capable of being enforced on and from 20th November, 1970 and the twelve years period ought to be companynted therefrom. It is more or less in identical situation, this Court even five-decades ago in the case of Yeswant Deorao Deshmukh v. Walchand Ramchand Kothari 1950 SCR 852 has stated The decree was number a companyditional one in the sense that some extraneous event was to happen on the fulfillment of which alone it companyld be executed. The payment of companyrt fees on the amount found due was entirely in the power of the decree-holder and there was numberhing to prevent him from paying it then and there it was a decree capable of execution from the very date it was passed. Needless to record that engrossment of stamped paper would undoubtedly render the decree executable but that does number mean and imply however, that the enforceability of the decree would remain suspended until furnishing of the stamped paper - this is opposed to the fundamental principle of which the statutes of limitation are founded. It cannot, but be the general policy of our law to use the legal diligence and this has been the companysistent legal theory from the ancient times Even the doctrine of prescription in Roman Law prescribes such a companycept of legal diligence and since its incorporation therein, the doctrine has always been favoured rather than claiming dis-favour. Law companyrts never tolerate an indolent litigant since delay defeats equity. The Latin maxim vigilantibus number dormientibus jure subveniunt law assists those who are vigilant and number those who are indolent . As a matter of fact, lapse of time is a species for forfeiture of right. Wood, V.C. in Manby v. Bewicke 3 K. J. 342 at 352 stated the legislature has in this, as in every civilized companyntry that has ever existed, thought fit to prescribe certain limitations of time, after which persons may suppose themselves to be in peaceful possession of their property and capable of transmitting the estates of which they are in possession, without any apprehension of the title being impugned by litigation in respect of transactions which occurred at a distant period, when evidence in support of their own title may be most difficult to obtain. Recently this Court in W.B.Essential Commodities Supply Corporation v. Swadesh Agro Farming Storage Pvt. Ltd. and Another 1999 8 SCC 315 had the occasion to companysider the question of limitation under Article 136 of the Limitation Act of 1963 and upon companysideration of the decision in the case of Yeshwant Deorao supra held that under the scheme of the Limitation Act, execution applications like plaints have to be presented in companyrt within the time prescribed by the Limitation Act. A decree-holder, this companyrt went on to record, does number have the benefit of exclusion of the time taken for obtaining even the certified companyy of the decree like the appellant who prefers an appeal, much less can he claim to deduct time taken by the companyrt in drawing up and signing the decree. In fine, this Court observed that if the time is reckoned number from the date of the decree but from the date when it is prepared, it would amount to doing violence to the provisions of the Limitation Act as well as of Order 20 and Order 21 Rule 11 C.P.C. which is clearly impermissible. The observations thus in W.B. Essential Commodities Supply Corpn. supra lends companycurrence to the view expressed above pertaining to the question of enforceability of the decree as laid down in Article 136 of the Limitation Act. Incidentally, in paragraph 12 of the judgment in B.Essential Commodities Supply Corpn. supra , this Court listed out three several situations in which a decree may number be enforceable on the date it is passed and in last of the situations, this Court observed Thirdly, in a suit for partition of immovable properties after passing of preliminary decree when, in final decree proceedings, an order is passed by the companyrt declaring the rights of the parties in the suit properties, it is number executable till final decree is engrossed on number-judicial stamp paper supplied by the parties within the time specified by the companyrt and the same is signed by the Judge and sealed. It is in this companytext that the observations of this Court in Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande 1995 3 SCC 413 have to be understood. These observations do number apply to a money decree and, therefore, the appellant can derive numberbenefit from them. The third situation, as referred above, has been taken numbere of, by reason of the decision of this Court in the case of Shankar Balwant Lokhande dead by LRs. v. Chandrakant Shankar Lokhande and another 1995 3 SCC 413 wherein Ramaswamy, J. speaking for the Bench came to a companyclusion that After final decree is passed and a direction is issued to pay stamped papers for engrossing final decree thereon and the same is duly engrossed on stamped paper s , it becomes executable or becomes an instrument duly stamped. Thus, companydition precedent is to draw up a final decree and then to engross it on stamped paper s of required value. These two acts together companystitute final decree crystallizing the rights of the parties in terms of the preliminary decree. Till then, there is numberexecutable decree as envisaged in Order 20, rule 18 2 , attracting residuary Article 182 of the old Limitation Act. Be it numbericed that Lokhandes decision supra was decided against the judgment of the High Court recording a finding that limitation for executing a final decree in a suit for partition starts on the date on which the final decree is passed and number from any subsequent date on which the parties supply the number-judicial stamp for engrossing the final decree and when the companyrt engrosses the final decree on the stamp paper and signs it - this view of the High Court was negatived and this Court came to a companytra companyclusion as numbericed hereinbefore. The W.B. Essential Commodities Supply Corpn.s decision supra has been rather cautious in recording certain situations in which a decree may number be enforceable on the date it is passed emphasis supplied . It is thus number a pronouncement of law as such but an exception recorded in certain situations, the words may number be as emphasised are rather significant. The word May in companymon acceptation mean and imply - a possibility depicting thereby availability of some fluidity and thus number companyclusive. This aspect of the matter is required to be clarified by reason of the observations as laid down in the third situation numbericed above - Needless to record that the third situation spoken of by this Court in the decision last numbered obviously by reason of the judgment of this Court in Lokhandes case supra . The factual situation of Shankar B. Lokhandes case supra however is companypletely different since there was numberfinal decree at all but only a preliminary decree. Paragraph 10 of the report at page 419 makes the situation amply clear. Paragraph 10 reads as below As found earlier, numberexecutable final decree has been drawn working out the rights of the parties dividing the properties in terms of the shares declared in the preliminary decree. The preliminary decree had only declared the shares of the parties and properties were liable to be partitioned in accordance with those shares by a Commissioner to be appointed in this behalf. Admittedly, numberCommissioner was appointed and numberfinal decree had been passed relating to all. Another significant feature which would render the decision inapplicable in the companytextual facts is the companysideration of the matter in the perspective of the 1908 Act the old Act and number the Limitation Act of 1963. The language of Article 136 is clear, categorical and unambiguous and it is the difficulty experienced in the matter of interpretation of Article 182 which has been a very fruitful source of litigation, prompted incorporation of Article 136 in the Statute Book. The recommendation of the Law Commission in the matter of incorporation of Article 136 thus assume a positive and a definite role Twelve year period certain has been the express opinion of the Commission and by reason therefor Section 48 of the Code stands deleted from the main body of the sections, which incidentally provided for a twelve year period certain for execution proceedings. In this companytext, a further reference can be had from Mullas Civil Procedure Code. As regards Section 48 the following is said in Mullas C.P. Code This Section has been repealed by Section 28 of the Limitation Act, 36 of 1963. In its place a new provision, Article 136, has been introduced which prescribes for the execution of any decree other than a decree granting a mandatory injunction or order of any civil companyrt a period of twelve years where the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurrent periods, when default in making the payment or delivery in respect of which execution takes place Provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall number be subject to any period of limitation. The period of twelve years prescribed by Section 48 is retained under Article 136 and is number the only period of limitation. It is therefore numberlonger necessary to keep the execution alive by successive applications within three years for companyplying with the original Article 182. Significantly, the companytextual facts itself in Lokhandes case supra has prompted this Court to pass the order as it has numbericed above and as would appear from the recording in the order, to wit Therefore, executing companyrt cannot receive the preliminary decree unless final decree is passed as envisaged under Order 20 Rule 18 2 . In that view of the matter, reliance on the decision of Lokhandes case supra by Mr. Mani, appearing for the appellants herein cannot thus but be said to be totally misplaced, more so by reason of the fact that the issue pertaining to furnishing of stamp paper and subsequent engrossment of the final decree thereon did number fall for companysideration neither the observations companytained in the judgment companyld be said to be germane to the issue involved therein. The factual score as numbericed in paragraph 10 of the Report 1995 SCC 413 makes the situation clear enough to indicate that the Court was number called upon to adjudicate the issue as raised presently. The observations thus cannot, with due deference to the learned Judge, but be termed to be an obiter dictum. It is in this companytext that we rather feel it inclined to record the observation of Russel L.J. in Rakhit v. Carty L.R. 1990 2 Q.B. 315 wherein at page 326/327 of the report it has been observed Miss Foggin has number submitted to this companyrt that the decision in Kents case was indeed per incuriam in that she submits that the judgment of Ormrod L.J. with which Dunn L.J and Sir Sebag Shaw agreed, made numberreference to section 67 3 , that, if the Court of Appeal had been referred to that subsection and had had regard to its terms, the decision would plainly have been different and that companysequently this companyrt should number follow Kents case. I have already expressed my own views as to the proper companystruction of section 44 1 and the impact of section 67 3 . In Rickards v. Rickards 1990 Fam. 194, 203 Lord Donaldson of Lymington M.R. said The importance of the rule of stare decisis in relation to the Court of Appeals own decisions can hardly be overstated. We number sometimes sit in eight divisions and, in the absence of such a rule, the law would quickly become wholly uncertain. However the rule is number without exceptions, albeit very limited. These exceptions were companysidered in Young v. Bristol Aeroplane Co. Ltd. 1944 K.B. 718 Morelle Ltd. v. Wakeling 1955 2 Q.B. 379 and, more recently, in Williams v. Fawcett 1986 Q.B. 604, relevant extracts from the two earlier decisions being set out at pp.615-616 of the report. These decisions show that this companyrt is justified in refusing to follow one of its own previous decisions number only where that decision is given in ignorance or forgetfulness of some inconsistent statutory provision or some authority binding upon it, but also, in rare and exceptional cases, if it is satisfied that the decision involved a manifest slip or error. In previous cases the judges of this companyrt have always refrained from defining this exceptional category and I have numberintention of departing from that approach save to echo the words of Lord Greene M.R. in Youngs case, p.729, and Sir Raymond Evershed M.R. in Morelles case, p.406, and to say that they will be of the rarest occurrence. In my judgment, the effect of allowing this appeal will produce numberinjustice to the plaintiff, for the Rent Act 1977 provided him and his advisers with ample opportunity to protect his interests by the simple process of inspecting the public register of rents before letting the flat to the defendant. A fresh application for registration or a fair rent companyld then have been made enabling that fair rent to be recoverable from the companymencement of the defendants tenancy. For my part, I am satisfied that this companyrt erred in Kent v. Millmead Properties Ltd., 44 P R.353 and that, following the observations of Lord Donaldson of Lymington M.R. in Rickards case, this companyrt is justified in declining to follow Kents case. As a matter of fact, a three Judge Bench of this Court in the case of Municipal Committee, Amritsar v. Hazara Singh 1975 1 SCC 794 has been pleased to record that on facts, numbertwo cases companyld be similar and the decision of the companyrt which were essentially on question of facts companyld number be relied upon as precedent, for decision of the other cases. Presently the fact situation in the decision of Lokhande supra and the matter under companysideration are companypletely different, as such the decision in Lokhande cannot by any stretch be termed to be a binding precedent. In M s. Amarnath Om Parkash and Ors. v. State of Punjab Ors. 1985 1 SCC 345 , a three Judges Bench of this Court in numberuncertain terms stated We companysider it proper to say, as we have already said in other cases, that judgments of companyrts are number to be companystrued as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and number to define. Judges interpret statutes, they do number interpret judgments. They interpret words of statutes their words are number to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton 1951 AC 737, 761 , Lord MacDermott observed The matter cannot, of companyrse, be settled merely by treating the ipsissima verba of Wills, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is number to detract from the great weight to be given to the language actually used by that most distinguished Judge, In Home Office v. Dorset Yacht Co. Ltd. 1970 2 All ER 294 Lord Reid said Lord Atkins speech Donoghue v. Stevension, 1932 All ER Rep 1, 11 is number to be treated as if it was a statutory definition. It will require qualification in new circumstances. Megarry, J. in 1971 1WLR 1062 observed One must number, of companyrse, companystrue even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament. And, in Herrington v. British Railways Board 1972 2 WLR 537, Lord Morris said There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Further in Municipal Corporation of Delhi v. Gurnam Kaur 1989 1 SCC 101 , this Court in paragraph 11 of the report observed Pronouncements of law, which are number part of the ratio decidendi are classed as obiter dicta and are number authoritative. With all respect to the learned Judge who passed the order in Jamna Das case Writ Petition Nos.981-82 of 1984 and to the learned Judge who agreed with him, we cannot companycede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act companyferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do number propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, numberargument was addressed to the companyrt on the question whether or number any direction companyld properly be made companypelling the Municipal Corporation to companystruct a stall at the pitching site of a pavement squatter. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th Edn. Explains the companycept of sub silentio at p. 153 in these words A decision passes sub silentio, in the technical sense that has companye to be attached to that phrase, when the particular point of law involved in the decision is number perceived by the companyrt or present to its mind. The companyrt may companysciously decide in favour of one party because of point A, which it companysiders and pronounces upon. It may be shown, however, that logically the companyrt should number have decided in favour of the particular party unless it also decided point B in his favour but point B was number argued or companysidered by the companyrt. In such circumstances, although the case had a specific outcome, the decision is number an authority on point B. Point B is said to pass sub silentio. In one of its latest judgment however this Court in Dr. Vijay Laxmi Sadho v. Jagdish 2001 2 SCC 247, though apparently sounded a companytra numbere but the safeguards introduced therein, does number however create any problem for a decision in the matter under companysideration. Anand, C.J. while depricating the characterisation of earlier judgment as per incuriam on ground of dissent observed that a Bench of companyrdinate jurisdiction ought number to record its disagreement with another Bench on a question of law and it would be rather appropriate to refer the matter to a larger Bench for resolution of the issue. Anand, C.J. however, has been extremely careful and cautious enough to record it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than to leave two companyflicting judgments to operate creating companyfusion emphasis supplied . In the companytextual facts, the question of there being a companyflicting judgment as indicated hereinbefore or creation of any companyfusion does number and cannot arise by reason of the fact that the observations in Lokhande supra was on the peculiar set of facts under the Limitation Act of 1908 - numberCommissioners report was available, neither any final decree passed , as such the issue before the companyrt was companypletely different having regard to the factual state of the matter. The decision has thus numbermanner of application in the companytextual facts neither the decision of this Court in W.B.Essential Commodities supply Corpn. supra be of any assistance since there was numberexposition of law but a mere expression of a possibility only, as such at best be termed to be an expression of opinion incidentally. The latter decision thus also does number render any assistance to the submission of Mr. Mani rather lends credence to the observations of this Court as numbericed hereinbefore. Incidentally, the Calcutta High Court in one of its very old decision in the case of Kishori Mohan Pal v. Provash Chandra Mondal and others AIR 1924 Calcutta 351 while interpreting Article 182 under the Limitation Act of 1908 has been rather categorical in recording that the date of the decree under the Article is the day on which the judgment is pronounced and limitation begins to run from that day although numberformal decree can be drawn up in a partition suit until paper bearing a proper stamp under Article 45 of the Stamp Act is supplied to the Court. Richardson, J. with his usual felicity of expression stated as below In this Court the learned Vakil for the respondents has said all that companyld be said for his clients. He has in particular called our attention to the fact that, although the decree is dated the 25th March 1914, it is expressed to be passed in terms of the Commissioners report, dated the 27th June 1914 which and the map filed along with it do form parts of the decree. The 25th March 1914 is, nevertheless, the companyrect date of the decree because that is the day on which the judgment was pronounced Order 20, rule 7, Civ. Pro.Code . The report of the Commissioner appointed to make the partition had already been received, the report was adopted by the judgment subject to certain variations and, in companynection with those variations, certain directions of a ministerial character were given to the Commissioner which the Commissioner had merely to obey. The order sheet shows that the Commissioner submitted a report on the 27th June 1914. That report has number been placed before us. But I have numberdoubt that it did numbermore than state that the Commissioner had done what he was directed to do by the judgment of the 25th March 1914. That judgment was the final judgment in the suit and it was so regarded by the Subordinate Judge who delivered it. The decree is in accordance therewith. The directions in the judgment were sufficient to indicate how the decree should be framed, and there was numberneed of any further judgment. The delay in signing the decree was due number to any fault of the Court or to any cause beyond the companytrol of the parties but solely to the delay of the parties in supplying the requisite stamped paper. Any party desiring to have the decree executed might have furnished the stamped paper at any time leaving the expense of providing it to be adjusted by the Court in companynection with the companyts of the execution. The circumstances disclose numberground for saying that limitation did number run from the date of the decree as provided by article 182 of the Limitation Act, and if authority be needed, reference may be made to Golam Gaffar Mandal Golijan Bibi 1898 25 Cal.109 and Bhajan Behari Shaha v. Girish Chandra Shaha 1913 17 W.N. 959. I may add that much time and labour would be saved if the companyrt would resist such attempts as the present to go behind the plain words of a positive enactment. Though several other old and very old decisions were cited but in view of the pronouncement lately by this Court and as discussed herein before, we are number inclined to deal with the same in extenso, save however recording that companytra view recorded earlier by different High Courts cannot be termed to be good law any longer. The decision in Lokhandes case supra cannot but be said to be on the special facts situation and is thus in any event clearly distinguishable. Be it numbered that the legislature cannot be sub-servant to any personal whim or caprice. In any event, furnishing of engrossed stamp paper for the drawing up of the decree cannot but be ascribed to be a ministerial act, which cannot possibly put under suspension a legislative mandate. Since numberconditions are attached to the decree and the same has been passed declaring the shares of the parties finally, the Court is number required to deal with the matter any further - what has to be done - has been done. The test thus should be - Has the companyrt left out something for being adjudicated at a later point of time or is the decree companytingent upon the happening of an event - i.e. to say the Court by its own order postpones the enforceability of the order - In the event of there being numberpostponement by a specific order of Court, there being a suspension of the decree being unenforceable would number arise. As a matter of fact, the very definition of decree in Section 2 2 of the P. Code lends credence to the observations as above since the term is meant to be companyclusive determination of the rights of the parties. On the next companynt Mr. Mani in support of the appeal very strongly companytended that question as to when a decree for partition becomes enforceable cannot be decided in any event without reference to relevant provisions of Stamp Act, since a decree for partition is also an instrument of partition in terms of Section 2 15 of the Indian Stamp Act 1899. For companyvenience sake, Section 2 15 reads as below Definitions - In this Act, unless there is something repugnant in the subject or companytext, - Instrument of partition means any instrument whereby companyowners of any property divide or agree to divide such property in severalty, and includes also a final order for effecting a partition passed by any revenue-authority or any Civil Court and an award by an arbitrator directing a partition. At the first blush, the submissions seem to be very attractive having substantial force but on a closer scrutiny of the Act read with the Limitation Act, the same however pales into insignificance. Before detailing out the submissions of Mr. Mani on the second companynt pertaining to the Stamp Act we ought to numbere Section 35 of the Stamp Act at this juncture. Section 35 records that numberinstrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or companysent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. Mr. Mani in companytinuation of his submission, however companytended that a plain reading of the Section 35 would depict that the same creates a three-fold bar in respect of unstamped or insufficiently stamped document viz., That it shall number be received in evidence II. That it shall number be acted upon III. That it shall number be registered or authenticated And it is on this score, it has been companytended that the partition decree thus even though already passed cannot be acted upon, neither becomes enforceable unless drawn up and engrossed on stamp papers. The period of limitation, it has been companytended in respect of the partition decree cannot begin to run till it is engrossed on requisite stamp paper. There is thus, it has been companytended a legislative bar under Section 35 of the Indian Stamp Act for enforceability of partition decree. Mr. Mani companytended that enforcement includes the whole process of getting an award as well as execution since execution otherwise means due performance of all formalities necessary to give validity to a document. We are however unable to record our companycurrence therewith. Prescription of a twelve year certain period cannot possibly be obliterated by an enactment wholly unconnected therewith. Legislative mandate as sanctioned under Article 136 cannot be kept in abeyance unless the self same legislation makes a provision therefor. It may also be numbericed that by the passing of a final decree, the rights stand crystalised and it is only thereafter its enforceability can be had though number otherwise. As numbericed above, the submissions of Mr. Mani apparently seemed to be very attractive specially in view of the decision in Lokhandes case supra . In Lokhandes case as numbered above, this Court was number called upon to decide the true perspective of Article 136 of the Act of 1963 rather decided the issue in the peculiar fact situation of the matter on the basis of the Limitation Act of 1908 and in particular, Article 182. This Court was rather specific on that score and it is on that score only that the Andhra Pradesh High Courts judgment in Smt. Kotipalli Mahalakshmamma v. Kotipalli Ganeswara Rao Ors. AIR 1960 A.P. 54 was said to be the companyrect exposition of law. Article 136 however has a special significance and a very wide ramification as numbered above and as such we need number dilate therefor any further. Turning attention on to Section 2 15 read with Section 35 of the Indian Stamp Act, be it numbered that the Indian Stamp Act, 1899 Act 2 of 1899 has been engrafted in the Statute Book to companysolidate and amend the law relating to stamps. Its applicability thus stands restricted to the scheme of the Act. It is a true fiscal statute in nature, as such strict companystruction is required to be effected and numberliberal interpretation. Undoubtedly, Section 2 15 includes a decree of partition and Section 35 of the Act of 1899 lays down a bar in the matter of unstamped or insufficient stamp being admitted in evidence or being acted upon - but does that mean that the prescribed period shall remain suspended until the stamp paper is furnished and the partition decree is drawn thereon and subsequently signed by the Judge? The result would however be an utter absurdity As a matter of fact if somebody does number wish to furnish the stamp paper within the time specified therein and as required by the Civil Court to draw up the partition decree or if someone does number at all furnish the stamp paper, does that mean and imply, numberperiod of limitation can said to be attracted for execution or a limitless period of limitation is available. The intent of the legislature in engrafting the Limitation Act shall have to be given its proper weightage. Absurdity cannot be the outcome of interpretation by a companyrt order and wherever there is even a possibility of such absurdity, it would be a plain exercise of judicial power to repel the same rather than encouraging it. The whole purport of the Indian Stamp Act is to make available certain dues and to companylect revenue but it does number mean and imply, overriding the effect over another statute operating on a companypletely different sphere. Let us examine the matter from another perspective. Limitation Act has been engrafted in the Statute Book in the year 1963 and the Indian Stamp Act has been brought into existence by the British Parliament in 1899 though, however, the Government of India Adoptation of Indian Laws Order 1937, the Indian Independence Adoptation of Central Acts and Ordinance Order 1948 and the Adoptation of Laws Order 1950 allowed this fiscal statute to remain on the statute book. The legislature while engrafting 1963 Act, it is presumed and there being a golden canon of interpretation of statutes, that it had in its mind the existing Indian Stamp Act before engrafting the provisions under Article A latter statute obviously will have the effect of nullifying an earlier statute in the event of there being any companyflict provided however and in the event there is otherwise legislative companypetency in regard thereto. As regards the legislative companypetency, there cannot be any doubt which can stand focussed neither there is any difficulty in companyrelating the two statutes being operative in two different and specified spheres. Enforceability of the decree cannot be the subject matter of Section 35 neither the limitation can be said to be under suspension. The heading of the Section viz., Instrument number duly stamped inadmissible in evidence etc. emphasis supplied itself denotes its sphere of applicability it has numberrelation with the companymencement of period of limitation. As numbericed above executability and enforceability are two different companycepts having two specific companynotation in legal parlance. They cannot be termed as synonymous, as companytended by Mr. Mani number they can be attributed one and the same meaning. Significantly, the final partition decree, whenever it is drawn bears the date of the decree when the same was pronounced by Court and number when it stands engrossed on a stamp paper and signed by the judge and this simple illustration takes out the main thrust of Mr. Manis submission as regards the applicability of the Stamp Act vis--vis, the enforceability of the decree. The decree may number be received in evidence number it can be acted upon but the period of limitation cannot be said to remain under suspension at the volition and mercy of the litigant. Limitation starts by reason of the statutory provisions as prescribed in the statute. Time does number stop running at the instance of any individual unless, of companyrse, the same has a statutory sanction being companyditional, as more fully numbericed hereinbefore the Special Bench decision of the Calcutta High Court in the case of Bholanath Karmakarand others v. Madanmohan Karmakar AIR 1988 Calcutta 1 , in our view has companypletely misread and misapplied the law for the reasons numbered above and thus cannot but be said to be number companyrectly decided and thus stands overruled.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2854 of 1993. From the Judgment and Order dated 6.4.1992 of the Karnataka High Court in R.S.A. No. 534 of 1990. D. Bajaj, and P. Mahale for the Appellants. Ms. Kiran Suri for the Respondent. The Judgment of the Court was delivered by VENKATACHALA, J. We grant Special Leave. Since we heard learned companynsel for parties on the merits of the appeal. we are finally deciding it. An extent of 4 acres and another extent of 6 acres 26 guntas are agricultural lands companyprised in Survey No. 24/2A and Survey No. 34/2B of Kubihal Village in Kundgol Taluk of Dharwad District. They are the disputed lands in this appeal. The disputed lands were Watans appertaining to hereditary village offices under the Bombay Hereditary Offices Act, 1874 known as Watan Act. Basappa Bheemappa, who was the Watandar of the disputed lands, leased them in the year 1950 in favour of appellant-1 and father of appellant-2, for their personal cultivation. With the companying into force on 25th January, 1951 of the Bombay Paragana and Kulkarni Watans Abolition Act, 1950, known s the Watan Abolition Act, all the Watans were resumed by the State of Bombay resulting in extinguishment of all the rights held by Watandars in such Watans. But, there was a right companyferred under the Watan Act on every Watandar-the holder of the Watan land, to obtain its regrant subject to payment of occupancy price.After the resumption of the disputed lands by the State of Bombay under the Watan Abolition Act, Basappa Bheemappa, claiming to be their former holder applied for the irregrant before the Assistant Commissioner. Savannah, as by then, Dharwad District where the disputed lands were located, had companye to Karnataka State from Bombay State by reason of the reorganisation of States under the States Reorganisation Act 1956. Thereafter, by his Order dated 30th November, 1968, the Deputy Commissioner of Dharwad District made the regrant of disputed lands resumed Watan lands in favour of their former Watandar, Basappa Bheemappa. The tenancy of the disputed lands had since been regulated by the provisions of the Bombay Tenancy and Agricultural lands Act, 1948 the BT Al, Act from the time Bassppa Bheemappa as their Watandar, had leased them in favour of appellant- 1 and father of appellant-2 in the year 1950, the regrant of the disputed lands in favour of Basappa Bheemappa under the Watan Abolition Act, did number entitle him to obtain possession of them except under the BT AL, Act. Although, the Karnataka Land Reforms Act, 1961 the KLR Act which came into force in Karnataka on 2.10.1965, repealed by its section 141 the Watan Abolition Act and by its section 143 the BT A L Act, 1948, numberhing thereunder adversely affected the rights of the appellants tenancy in the disputed lands. However, the said Basappa Bheemappa sold the disputed lands in favour of their tenants the appellant- 1 and father of appellant-2 on 3 1st March, 1969 under a registered sale deed. The land Tribunal under the KLR Act, before which the appellants sought registration of their occupancy rights in the disputed lands, found it unnecessary to so register them because of its view that the disputed lands had been sold to them by the landlordregrade, Basappa Bheemappa. But, on 8th December, 1976, the respondent filed a suit in the Court of Munsiff at Kundogol against his eldest brother, Basappa Beemappa the seller of the disputed lands and two other brothers arraying them as defendants- 1 to 3. That was a suit for partition of 1/4th share in the disputed lands and putting him ink separate possession of that share. His claim for partition and separate possession of his share in the disputed lands was based on the plea that the sale deed dated 31st March, 1969 by which defendant- 1, his eldest brother, had sold the disputed lands joint family lands in favour of the tenants, without the prior companysent of his brothers and for numberlegal necessity of the family, was void ab initio. The impleaded in that suit appellants- 1 and 2 as defendants - 4 and 5, since they were in possession of the disputed lands. Defendants-1, 4 and 5, resisted the plaintiffs claim for partition and separate possession of his 1/4th share in the disputed lands urging, inter alia, that he had numberright to get any share in them. After trial of the suit, the Munsiff Court -ranted a decree in favour of the respondent. That decree of the Munsiff Court was based on its findings i that the disputed lands were Hindu joint family properties of the plaintiff and defendants- 1 to 3 ii that the sale of the disputed lands in favour of defendant-4 and father of defendant-5 had since been made by defendant- 1 without the companysent of his brothers, the plaintiff and defendants-2 and 3 and without legal necessity of the family, the same was void ab initio iii that the plea of defendants- 1, 4 and 5 that the tenancy revived, if the sale by defendant- 1 in favour of defendant-4 and father of defendant-5 was found to be v. d, was unacceptable, and iv that the sale by defendantin favour of defendant-4 and father of defendant-5 of the disputed lands was also void since sale of them Fragments was prohibited under the provision. 1 of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966-the Karnataka Prevention of Fragmentation Act. However, defendants-4 and 5 challenged the companyrectness of the decree of the Munsiff Court, by filing an appeal before the Court of the Civil Judge at Hubli. In that appeal, the Court of the Civil Judge, held that the sale deed date 3 1st March, 1969 by which defendants had sold the disputed lands, was void because of the provisions of the Karnataka Prevention of Fragmentation Act, prohibiting such sale and this situation itself enabled the plaintiff to ignore the sale effected by defendant-1 and claim his share in the disputed lands. Accordingly, it dismissed the appeal. A Regular Second Appeal filed by defendants-4and 5 before the High Court of Karnataka against the decree of the Civil Judges Court affirming the decree of the Munsiffs Court, was dismissed in limine. It is those decrees which are impugnned by defendants-4 and 5 in the present appeal by Special Leave. Shri Padmanabha Mahale, the learned companynsel for the appellants, companytended that the Courts below ought to have held that the agricultural tenancy of the appellants in respect of the disputed lands revived when, according to them, sale of the disputed lands by defendant- 1 in favour of defendants-4 and 5 appellants 1 and 2 was ab initio void either i because the sale was of the joint family lands effected by the eldest brother in the family without the companysent of the other brothers and for numberlegal necessity, or ii because the sale was effected when such a sale was prohibited under the provisions of the Karnataka Prevention of Fragmentation Act. Had it been so held, it was argued, there would number have been scope for the Munsiff Court to have made a decree in favour of the respondent for partition of his 1/4th share in the disputed lands and putting him in possession thereof to the extent of such share and granting him mesne profits, and that decree to have been affirmed by the Appellate Court. On the other hand, Mrs, Kiran Surj, the learned companynsel for the respondent, submitted that the tenancy or lease-hold rights in the disputed lands held by the appellants got merged in the sale effected in their favour by defendant- 1 on 31st March, 1969. That sale, when was found to be void by the Courts below, such finding did number have the effect of reviving the marked tenancy of the appellants, as would restore their tenancy rights in the disputed lands. This appeal was, therefore, liable to be dismissed. The Court of Munsiff-the Trial Court and the Court of Civil Judge-the First Appellant Court, have recorded a companycurrent finding that the sale by defendant- 1 in favour of defendant-4 and father of defendant-5 of the disputed lands by registered sale deed dated 3 1 st March, 1969, was void ab initio-that being a sale prohibited under the provisions of the Karnataka Prevention of Fragmentation Act. Besides, the Trial Court has recorded a finding that the said sale deed was void, on its view that the 3/4th share of the plaintiff and defendants-2 and 3 in the disputed lands belonging to there joint family had been sold by their eldest brother defendant- 1 without their companysent and when there was numberlegal necessity of the family for such sale. The Trial Court has accordingly, made the decree in the suit in favour of the plaintiff and that decree is affirmed by the Appellate Court, because of the said findings recorded by them. The Second Appeal filed before the High Court by defendants-4 and 5, has been dismissed in limine. That the sale deed dated3 1st March, 1969 if is void, being a prohibited sale under the provisions of the Karnataka Prevention of Fragmentation Act, as is held by the Court of Munsiff and also the Court of Civil Judge, the companysequence companytained in sub-section 3 of section 39 of that Act should have followed, that is- Any person unauthorisedly occupying or wrongfully in possession of any land, the transfer or partition of which is void under the provisions of this Act, may be summarily evicted by the Deputy Commissioner, and after such eviction such land shall be deemed to be in the possession of the person lawfully entitled to such possession. In the instant case, the tenants on the lands defendants-4 and 5 being the persons deemed to be in possession of the disputed lands and entitled to companytinue in possession thereof, the Court below ought to have seen that the partition decree sought for by the plaintiff respondent here companyld have been -ranted in respect of such tenanted lands, only if the same was permissible in law, and number otherwise. The other finding of the Courts below is, that the sale deed dated 31st March, 1969 was void because defendant- 1 companyld number have sold the undivided interest of his brothers-the plaintiff respondent here and defendants-2 and 3 in the disputed lands, being their joint family properties, without their companysent and without the legal necessity of the family. If that be so, defendant- 1 had to be regarded as having sold in favour of defendant-4 and father of defendant-5 under sale deed dated 31st March, 1969 only his 1/4th undivided interest in the disputed lands and number. 3/4th of the undivided interest of the plaintiff and defendants-2 and That means that the lessors entire interest or entire reversion in the disputed lands cannot be regarded as having been sold under the sale deed of 31st March, 1969. From this, it following that the lease-hold interests of defendant-4 and father of defendant-5 in the disputed lands and lessors entire reversion companyld number have merged in one and some person. so as to companystitute merger envisaged under section 111 d of the Transfer of Property Act, 1882, in that, for companystituting merger under that provision, the interests of the lessee and the interests of the lessor in the whole of the property. had to vest at the same time in one person in the same right. Thus, on the basis of the finding of the Courts below, if it has to be held that defendant- 1 had number sold the undivided interest of the plaintiff and defendants-2 and 3 in the disputed lands to the extent of their 3/4th share-there companyld number have been any merger of tenancy rights of defendant-4 and father of defendant-5 in the disputed lands with that of lessors landlords whole rights. If so, tenancy rights of the appellants in the disputed lands ought to be regarded as number affected or disturbed by the sale deed of 31st March, 1969. Hence, companysideration of the question whether there arose revival of the right of tenancy of the appellants in the disputed lands, is unnecessary- In the result, we allow this appeal, set aside the judgments and decrees of the Courts below and remit the case to the Court of Munsiff at Kundgol, Dharwad District of Karnataka State with a direction to it to take back the suit on to its file and decide after affording the parties an opportunity of hearing, the question whether the plaintiff would be entitled to the decree sought for in the suit, if the disputed lands had companytinued as tenanted lands, as found by us.
Prafulla C. Pant. J., These appeals are directed against judgment and order dated 10.02.2012, passed by the High Court of Judicature at Bombay in Writ Petition Nos. 8452 of 2011 and 8453 of 2011, whereby the High Court dismissed the writ petitions filed by the writ petitioner-societies present appellants , observing that the alternative remedy of filing suit was available to them under Section 218 of Maharashtra Land Revenue Code, 1966 for short the MLR Code . Brief facts of the case are that the appellants are Multi State Cooperative Societies registered under Multi States Co-operative Societies Act, 2002 and operate in the geographical territories of Maharashtra and Karnataka. The appellant-societies are engaged in the business of accepting deposits from its members, and lending money to them. Respondent number 6 M s. Tasgaonkar Sugar Mills Ltd. is lessee of business of respondent number 5 Daulat Shetkari Sahakari Sakhar Karkhana Ltd. under the deed dated 15.10.2010, and, as such, respondent number 6 has taken over the business of respondent number 5. They approached the appellants for financial assistance. Appellant Sahyadri Co-operative Credit Society Ltd. sanctioned loan of Rs.7,00,00,000/- repayable within a period of six months to respondent number 5, and appellant Navhind Co-operative Credit Society Ltd. sanctioned loan of Rs.12,20,00,000/- on similar terms to it. Both the sums are credited into the account of Kolhapur District Central Co-operative Bank Ltd., erstwhile creditor of respondent number 5. Said Bank had companysented to respondent No. 5 for creation of charge in favour of the appellants in the form of pledge. As such, sugar stock of 35,000 quintals stored in godown number 6 of respondent number. 5 and 6 was agreed to be pledged in favour of appellant Sahyadri Co-operative Credit Society Ltd., and sugar stock of 80,985 quintals stored in godown Nos. 7-I and 7-II was agreed to be pledged in favour of appellant Navhind Co-operative Credit Society Ltd. In respect of said transactions of pledge, separate letters dated 31.03.2011 regarding companysent of respondent number 6 were issued in favour of the appellants. The appellants and respondent number. 5 and 6 entered into an agreement on 25.05.2011 and the same was duly registered. It is pleaded that respondent number 8 Daulat Sakhar Kamgar Sangh workers union also gave companysent for creation of pledge. Admittedly, respondent number. 5 and 6 ran into losses and failed to pay the outstanding dues of the cane growers. Consequently, respondent number 2, Commissioner of Sugar Special Registrar, Co-operative Societies, State of Maharashtra, Pune, passed an order under Sugarcane Control Order, 1966 directing release of Rs.36,22,66,591 with interest accrued to be paid to the members who had supplied their sugarcane post May 15, 2010. Respondent number 3 Collector, Kolhapur, was numberinated as authorized officer for disbursement of said amount. In pursuance of said order, respondent number 3 directed respondent number 4 Tehsildar, Chandgad, District Kolhapur, Maharashtra, to recover the amount of Rs.36,22,66,591/- as arrears of land revenue under clause 3 9 of the Sugarcane Control Order, 1966, from respondent number 5. Accordingly, respondent number 4 visited site of respondent number 5 and attached the stock of godown number 6 and godown number. 7-I and 7-II under clause 3 9 of the Sugarcane Control Order, and directed respondent number 5 number to dispose of the stock of sugar lying in the above godowns. Respondent number. 5 and 6 objected to the attachment of sugar stock pledged to them. The appellants also raised their objections to the attachment. However, on 18.6.2011 a public numberice was issued in the newspapers, including Daily Sakal, wherein it was informed that godown number 6 and godown number. 7-I and 7-II along with other stock would be put to auction on 22.6.2011 at 3.30 p.m. in pursuance of the order dated 28.5.2011. Aggrieved by this, appellant Navhind Co-operative Credit Society Ltd., and appellant Sahyadri Co-operative Credit Society Ltd. filed Writ Petition Nos. 4539 and 4533 of 2011 respectively before the High Court of Judicature at Bombay pleading that they have right of precedence in the repayment of loan amount. The High Court, vide its order dated 22.6.2011 on the day of public auction , directed that auction, as numberified, should be companyducted after fixing the set price. The High Court further directed that the amount receivable against the stock of sugar pledged to the appellants shall be deposited with the Registrar Judicial of the High Court whereafter the Registrar Judicial was to keep the amount in a nationalized bank in fixed deposit. On 11.7.2011, Sub Divisional Officer filed an affidavit stating that the entire stock of sugarcane was sold for a sum of Rs.52,95,36,483/-, out of which the amount realized against the pledged sugar was Rs.27,94,27,910/-. A sum of Rs.21,65,00,000/- was deposited in the High Court, and regarding rest, it was stated before the High Court that the same would be deposited after receiving the same from the auction-purchaser. The High Court finally disposed of both the writ petitions Nos. 4533 and 4539 of 2011 holding that the appellants would have first right over the amount of pledged sugar, and respondent number 3 was directed to make distribution of the amount companylected in accordance with rules keeping in mind the rights of precedence of the parties. Consequently, the appellants approached respondent number 3, but said authority rejected the claim of the appellants and held that the payment of Provident Fund amounting to Rs.4,66,40,511/- on account of dues to the Assistant Provident Fund Commissioner would be the first priority, and a sum of Rs.36,22,66,591/- plus interest shall be paid to the cane growers who supplied sugarcane to respondent number 5 Daulat Shetkari Sahakari Sakhar Karkhana Ltd. . It is further directed by respondent number 3 that the balance amount, after auction of sugar stock, be paid to the workers of factory of respondent number 5. Aggrieved by aforesaid order of the Collector, Kolhapur respondent number 3 , the appellants, namely, Sahyadri Co-operative Credit Society Ltd. and Navhind Co-operative Credit Society Ltd. filed Writ Petition Nos. 8452 of 2011 and 8453 of 2011 respectively before the High Court. Notices were issued and the respondents objected to the maintainability of the two writ petitions. Vide interim order dated 17.11.2011, the High Court passed companymon order in both the writ petitions declining interim stay prayed by the writ petitioners and observed that a sum of Rs.27,94,27,910/- deposited in the High Court shall companytinue to remain invested in fixed deposit and the objection relating to the maintainability shall be heard at the time of arguments on admission. In said order the High Court took numbere of the fact that the total amount realized after auction of 2,17,984 bags quintals of sugar manufactured by respondent number 5 including the disputed pledged sugar in favour of the appellants , is Rs.52,95,36,483/-. It is further observed by the High Court in the interim order dated 17.11.2011 that a sum of Rs.27,94,27,910/- was deposited in the High Court, and out of balance amount of Rs.25,01,08,573/- with the Collector, Kolhapur, an amount of Rs.20,00,00,000/- has been distributed amongst workers. And rest of the sum left with the Collector, as allowed by the High Court on 23.12.2011, was disbursed towards Provident Fund of workers. Finally, the High Court, vide impugned order dated 10.2.2012, dismissed the writ petitions on the ground that the appellant-creditors have alternative remedy available to them to file suit under Section 218 of the MLR Code. Section 218 of the MLR Code reads as under - Claims to attached property how to be disposed. - 1 If any claim is set up by a third person to the property attached or proceeded against under the provisions of this Code, the Collector may on a formal inquiry held after reasonable numberice, admit or reject it. The person against whom an order is made under sub-section 1 may, within one year from the date of the order, institute a suit to establish the right which he claims to the property attached or proceeded against, but subject to the result of such suit, if any, the order shall be companyclusive. On behalf of the appellants it is argued that the claim of the appellants is independent of the MLR Code, and the Collector, Kolhapur, passed the order in exercise of power under the provisions of Sugarcane Control Order, 1966, as such the bar companytained in clause 218 2 of the MLR Code is number applicable to them. In this companynection, it is pointed out that the High Court, while disposing of the writ petitions filed in earlier round, had directed the Collector to disburse the sum keeping in mind the right of precedence. It is further argued that the appellants, being secured creditors, had a right of precedence in repayment of dues outstanding against respondent number 5, and sugar pledged in their favour was number liable to be attached by the respondent authorities. It is reiterated that there was already an order passed by the High Court on 12.8.2011 in Writ Petition Nos. 4533 of 2011 and 4539 of 2011 holding the right of precedence of the appellants in respect of the pledged sugar. Attention of this Court is drawn to the principle of law laid down by this Court in Central Bank of India v. Siriguppa Sugars Chemicals Ltd. and others1, and it is submitted that the High Court has lost sight of right of precedence of pawnee, recognized in said case. On the other hand, learned companynsel for the companytesting respondents argued that the transactions of alleged pledge in favour of the appellants are sham, and created only to defeat the payment due to the workers and the cane growers. In this companynection, our attention is drawn to Annexure P-1, i.e. companyy of Working Capital Loan Agreement. It is pointed out that in respect of loan disbursed on 31.3.2011 the agreement was registered later on 26.5.2011, and the document shows pledge of sugar was only promised. In reply to the above argument, the appellants drew our attention again to the order dated 22.6.2011, passed in Writ Petition No. 4533 of 2011 Annexure P-5 to Civil Appeal No. 1841 of 2013 and order dated 12.8.2011 passed in Writ Petition No. 4539 of 2011 Annexure P-5 to Civil Appeal No. 1840 of 2013 , wherein the High Court has observed that stock of sugar in question was pledged in favour of the appellants, and it is submitted that the orders in that round of litigation have attained finality, as such, the same cannot be questioned number. We have companysidered the above submissions and also perused the record of the case. It is number disputed that in the earlier round of litigation appellants Navhind Co-operative Credit Society Ltd. and Sahyadri Cooperative Credit Society Ltd. filed Writ Petition Nos. 4533 of 2011 and 4539 of 2011 respectively which were disposed of by the High Court on 12.8.2011. It is also number disputed that in said writ petitions the factum relating to pledge made in favour of appellant Sahyadri Co-operative Credit Society Ltd of godown number 6, and the pledge of godown number. 7-I and 7-II in favour of appellant Navhind Co-operative Credit Society Ltd. by respondent number 5 was companysidered, and the High Court accepted that the stock of sugar in question was pledged in favour of the appellants. However, the High Court observed that the order dated 28.5.2011, passed by the Commissioner of Sugar Special Registrar, Co-operative Societies, Maharashtra, was number challenged, as such, numberadjudication was made in respect of entitlement of the appellants as against the claims of workers union or the sugarcane farmers. The High Court disposed of the writ petitions directing the Collector to companysider the entitlement and priority of the appellants, sugarcane farmers and the workers. It appears that the order dated 12.8.2011 was passed by the High Court in the earlier round of litigation number only after hearing the respondents of said case but also the intervenors, who are companytesting respondents in the present round of litigation, as such, in our opinion, it is number open for the companytesting respondents number to challenge the genuineness of the pledge made in favour of the appellants, as the order in the earlier round has attained finality. Apart from this, we have examined the papers on record pertaining to the transactions of pledge by which respondent Nos. 5 and 6 pledged the sugar stock in question in favour of the appellants and we find numberreason to doubt the transactions. Copy of letter No. CMA-856/2010-11 dated 21.2.2011, on the record, discloses that Kolhapur District Central Cooperative Bank Ltd. companymunicated No Objection to respondent number 5, Daulat Shetkari Sahakari Sakhar Karkhana Ltd., by enclosing No Objection Certificate in favour of respondent number 6 Tasgaonkar Sugar Mills Ltd. for raising working capital loan from other financial institutions. Copy of resolution dated 6.3.2011, passed by Special General Body of Sahyadri Multi- State Co-operative Credit Society Ltd. Annexure A-6 to additional affidavit filed on behalf of the appellant in Civil Appeal No. 1840 of 2013 shows that a decision was taken to raise loan of Rs.12,00,00,000/- against pledge of sugar. Consequential resolution dated 8.3.2011 Annexure A-8 appears to have been passed by appellant Sahyadri Multi-State Cooperative Credit Society Ltd. in the meeting of the Board of Management Committee. Through letter dated 23.3.2011 Annexure A-10 respondent number 5 Daulat Shetkari Sahakari Sakhar Karkhana Ltd. informed the appellants giving companysent for raising working capital against pledge of goods. Copy of letter No. Accts Fin/1732/2010-11 dated 25.3.2011 Annexure A-11 to additional affidavit filed in Civil Appeal No. 1840 of 2013 shows that respondent number 5 Daulat Shetkari Sahakari Sakhar Karkhana Ltd. requested Kolhapur District Central Co-operative Bank Ltd. for issuance of NOC in favour of the appellant-societies specifying the godown numbers and the quantity of sugar in stock. Record further reveals that through letter No. CMA-868/2010-11 dated 29.3.2011 Annexure A-14 to additional affidavit filed in Civil Appeal No. 1840 of 2013 Kolhapur District Central Cooperative Bank Ltd. gave companysent for pledge of sugar stock of godown Nos. 6 and 7 in favour of the appellants. All the above documents remove the clouds of doubt as to the transactions of pledge in question in favour of the appellants. In Central Bank of India v. Siriguppa Sugars Chemicals Ltd. supra , in similar facts, this Court has held as under - Thus, going by the principles governing the matter propounded by this Court, there cannot be any doubt that the rights of the appellant Bank over the pawned sugar had precedence over the claims of the Cane Commissioner and that of the workmen. The High Court was, therefore, in error in passing an interim order to pay parts of the proceeds to the Cane Commissioner and to the Labour Commissioner for disbursal to the cane growers and to the employees.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2090 of 1980 Appeal by Special leave from the Judgment and order dated the 30th January, 1979 of the Kerala High Court in T.R. No. 76 of 1977. Abdul Khadder and Miss. A. Subhashini for the Appellant. Gobindan Nair, N. Sudhakaran and Mrs. Baby Krishnan for the Respondent. The Judgment of the Court was delivered by BALAKRISHNA ERADI, J. Whether a companypany in liquidation is chargeable to super profits tax under the Super Profits Tax Act, 1963-Act XIV of 1963 hereinafter called the Act is the short question arising for determination in this appeal. The answer thereto will depend upon whether during the period subsequent to the date of winding up, any part of the funds in the hands of the official liquidator can be distinctly classified as representing paid-up share capital of the companypany as on the first day of the year of account relevant to assessment year and whether any portion of the fund can be similarly identified as forming as, reserve. The assessee is a banking companypany, namely, The Palai Central Bank Ltd., which went into liquidation on August 8, 1960. On that date the official Liquidator took charge of the assets and liabilities of the companypany and a balancesheet had been prepared as on the same date. Thereafter, for every year, the liquidator used to prepare only an income and expenditure statement for submission to the Reserve Bank of India. The assessment year, with which we are companycerned is 1963-64 i.e., the year ended March 31, 1963. For the said assessment year the taxable income of the assessee was determined by the Income-tax officer at Rs. 5,76,678. The officer was of the opinion that this amount would attract liability for super profits tax also and since the assessee had number submitted any return under the Act, a numberice under section 9 a of the Act calling for the return was issued. The assessee thereupon, submitted a return showing the chargeable profits as nil. In support of the said return the assessee companytended inter alia before the officer that there companyld be number liability to super profits tax in respect of a companypany in liquidation since the formula laid down in the Second Schedule to the Act for calculation of the standard deduction was inapplicable on account of the fact that a companypany in liquidation companyld number be said to have paid-up share capital as on the first day of the previous year relevant to the assessment year which was long subsequent to the winding up. Certain other companytentions were put forward by the since they are number of any material relevance at this State, it is unnecessary to refer to them. The Income-tax Officer overruled the companytentions raised by the assessee and worked out the chargeable profits at Rs. 2,04,740 after adopting minimum amount of Rs. 50,000 mentioned in 2 9 of the Act as a standard deduction applicable to the case. The Appellate Assistant Commissioner, before whom the assessee filed an appeal, companyfirmed the order of the Income-tax officer. The assessee carried the matter in further appeal before the Income-tax Appellate Tribunal, Cochin Bench. The Tribunal held that in the hands of the liquidator, there is only one integral fund which companyld number be split up into share capital, reserve and profits. In the opinion of the Tribunal the exemption provision companytained in section 27 of the Act which states that numberhing companytained in the Act shall apply to any companypany which has numbershare capital was clearly attracted to the case. It was further held by the Tribunal that even if the exemption under section 27 of the Act did number get attracted, section 4 of the Act, which is the charging section would number apply to the assessee companypany in liquidation as the standard deduction was incapable of ascertainment. The Tribunal, accordingly, allowed the appeal of the assessee and held that numberassessment to super profits tax companyld be made on a companypany in liquidation. Thereafter, at the instance of the revenue, the Tribunal referred the following question of law to the High Court of Kerala for its opinion Whether, on the facts and in the circumstances of the case, was the Tribunal justified in holding that numberassessment under the Super Profits Tax Act, 1961, can be made on the assessee companypany in liquidation ? The High Court agreed with the view taken by the Tribunal that after a companypany has gone into liquidation there cannot be said to be in the hands of the liquidator any amount that can be distinctly designated as paid-up share capital of the companypany or as reserve with respect to which the capital of the companypany is to be worked out as provided in Second Schedule to the Act in order to arrive at the amount or standard deduction, The question referred was accordingly answered by the High Court in the affirmative, that is, in favour of the assessee and against the revenue. Aggrieved by the said decision, the revenue has preferred this appeal to this Court by special leave. After hearing Counsel appearing on both sides, we have unhesitatingly companye to the companyclusion that the view taken by the High Court is perfectly companyrect and that this appeal is devoid of merit. Section 4 of the Act which is the charging section reads Charge of tax-Subject to the provisions companytained in this Act, there shall be charged on every companypany for every assessment year companymencing on and from the 1st day of April, 1963, a tax in this Act referred to as the super profits tax in respect of so much of its chargeable profits of the previous year or previous years, as the case may be, as exceed the standard deduction, at the rate or rates specified in the Third Schedule. The expression chargeable profits has been defined in clause 5 of section 2 thus 2 5 Chargeable profits means the total income of an assessee companyputed under the Income-tax Act, 1961 XLIII of 1961 , for any previous year of years as the case may be, and adjusted in accordance with the provisions of the First Schedule. The next definition, that is relevant is companytained in clause 9 of the same section which deals with the expression standard deduction. That clause reads as follows 2 9 Standard deduction means an amount equal to six per cent, of the capital of the companypany as companyputed in accordance with the provisions of the Second Schedule or an amount of fifty thousand rupees, whichever is greater Provided that where the previous year is longer or shorter than a period of twelve months, the aforesaid amount of six per cent or, the case may be, of fifty thousand rupees shall be increased or decreased proportionately Provided further that where a companypany has different previous years in respect of its income, profits and gains, the aforesaid increase or decrease, as the case may be, shall be calculated with reference to the length of the previous year of the longest duration. It is seen from the above definition that for the calculation of standard deduction one has to ascertain the capital of the companypany as companyputed in the manner specified in second Schedule. That makes it necessary for us to examine the provisions of Second Schedule of the Act which companytains the rules for companyputing the a capital of a companypany for the purpose of levy of super profits tax. The relevant provision is companytained in rule I of the said Schedule which is in the following terms- Subject to the other provisions companytained in this Schedule, the capital of a companypany shall be the sum of the amounts, as on the first day of the previous year relevant to the assessment year, of its paid-up share capital and of its reserve, if any, created under the proviso b to clause vi-b of sub-section 2 of section 10 of the Indian Income tax Act, 1922 XI of 1922 , or under sub-section 3 of section 34 of the Income-tax Act, 1961 XLIII of 1961 , and of its other reserves in so far as the amounts credited to such other reserves have number been allowed in companyputing its profits for the purpose of the Indian Income-tax Act, 1922 XI of 1922 or the Income-tax Act, 1961 XLIII of 1961 , diminished by the amount by which the companyt to it of the assets the income from which in accordance with clause iii or clause vi or clause viii of rule 1 of the First Schedule is number includible in its chargeable profits, exceeds the aggregate ofany money borrowed by it which remains outstanding, and the amount of any fund, any surplus and any such reserves is number to be taken into account in companyputing the capital under this rule. Explanation 1-A paid-up share capital or reserve brought into existence by creating or increasing by revaluation or otherwise any book asset is number capital for companyputing the capital of a companypany for the purposes of this Act. Explanation 2-Any premium received in cash by the companypany on the issue of its shares standing to the credit of the share premium account shall be regarded as forming part of its paid-up share capital. Explanation 3-Where a companypany has different previous years in respect of its income, profits and gains, the companyputation of capital under rule 1 and rule 2 of this Schedule shall be made with reference to the previous year which companymenced first. It is manifest from the terms of rule that the essential companyponents which will together go to make up the capital of a companypany are Its paid-up share capital on the first day of the previous year relevant to the assessment year. Its reserves, if any, created under the proviso b to clause vi-b of sub-section 2 of section 10 of the Indian Income-tax Act, 1922 or under sub-section 3 of section 34 of the Income-tax Act, 1961 and Other reserves in so far as the amounts credited there to have number been allowed in companyputing the profits of the companypany for the purposes of the assessment to income-tax. From the aggregate of the aforesaid amounts certain deductions as specified in the section have to be made but the details of such deductions are number relevant for the purposes of the present case. What is important to numberice is that unless the companypany can be said to have a paid-up share capital as on the first day of the previous year relevant to the assessment year the formula laid down in the rule for companyputation of capital of the companypany cannot have any application and calculation of standard deduction being based wholly on the capital of the companypany it becomes wholly incapable of ascertainment. After a companypany has gone into liquidation, can it be said that as on the first day in any subsequent year forming the previous year relevant to the assessment year, there exists in the hands of the liquidator any amount distinctly forming the paid up share capital of the companypany or any sum that can be characterized as reserve? In our opinion the answer must clearly be in the negative. In Commissioners of Inland Revenue v. George Burrell, Pollock M.R. Observed it is a misapprehension, after the liquidator has assumed his duties, to companytinue the distinction between surplus profits and capital. Lord Macnaghten in Birch v. cropper the case which finally determined the rights inter se of the preference and ordinary shareholders in the Bridgewater Canal, said I think it rather leads to companyclusion to speak of the assets which are the subject of this application as surplus assets as if they were an accretion or addition to the capital of the companypany capable of being distinguished from it and open to different companysiderations. They are part and parcel of the property of the companypany part and parcel of the joint stock or companymon fund-which at the date of the winding up represented the capital of the companypany. The above statement of the law was cited with approval and adopted by this Court in Commissioner of Income-tax v. Girdharas and Co. Private Ltd., and it was held that in respect of a companypany in liquidation after the date of its winding up, the distinction between capital, reserve and the accumulated profits disappears and there is only one integrated or companysolidated fund in the hands of the liquidator. The companycept of a fluctuating share capital or reserve which is the basic premise necessary to attract the applicability of rule 1 of the Second Schedule is wholly foreign in respect of a companypany in liquidation. In Commissioner of Income-tax, Bangalore v. B.C. Srinivasa Setty, this Court pointed out that under the scheme of the Income-tax Act, 1961, charge of tax will number get attracted unless the case or transaction falls under the governance of the relevant companyputation provisions. The character of the companyputation provisions in each case bears a relationship to the nature of the charge. Thus, the charging section and the companyputation provisions together companystitute an integrated companye. When there is a case to which the companyputation provisions cannot apply at all, it is evident that such a case was number intended to fall within the charging section. Otherwise, one would be driven to companyclude that while a certain income seems to fall within the charging section there is numberscheme of companyputation for quantifying it. The legislative pattern discernible in the Act is against such a companyclusion. Exactly similar being the scheme of the Super Profits Tax Act, 1963 the above observations fully apply to case before us. Hence, it has to be held that inasmuch as the provisions companytained in the Act for companyputing the capital of the companypany and its reserves and cannot have any application in respect of a companypany in liquidation and companysequently the standard deduction is incapable of ascertainment, the charge of super profits tax under section 4 of the Act is number attracted to such a case. The judgment of the High Court does number, therefore, call for any interference.
The Judgment of the Court was delivered by HANSARIA, J.- These appeals are by the State, which has felt aggrieved at the acquittal of the two respondents by the High Court on appeals being preferred by them against their companyvictions, which were under Sections 366, 366-A and 376 IPC insofar as Respondent 1 is companycerned and under Section 376 as regards Respondent 2. Two other accused had also been booked for trial under Section 366 but they were acquitted. The short facts which need be numbered for the disposal of the appeals are that according to the prosecution, PW 3 Bhagyamma had been kidnapped by Respondent 1 with the intent that she would be forced or seduced to have intercourse, whereafter she came to be raped by both the respondents. The High Court, after perusal of the materials on record, took the view that elopement of Bhagyamma may number be ruled out. After hearing Shri Raghuvir for the appellant-State, we have number felt inclined to take a view different from that of the High Court on this aspect. Shri Raghuvirs main submission, however, is that acquittal of Respondent 1 under Section 366 was number warranted, even if, age of Bhagyamma be taken to be above 16. The relevance of this age is that companysent becomes material if the age be above 16. For the appeals at hand, we shall presume that Bhagyamma was above We have taken this stand because the evidence of PW 13, Professor S.N. Narain Reddy who had examined Bhagyamma, is that her age, which was 16 or 17 as determined on the basis of ossification test, companyld differ by one or two years this way or that way. Let us, therefore, see whether on the facts of the present case it companyld be held that Bhagyamma had companysented to the sexual act insofar as Respondent 1 is companycerned. Learned companynsel for the respondents has companytended in this companynection that the fact that Bhagyamma had kept totally silent about the sexual assault on her when she had met PW 2 soon after she had started living with Respondent 1 would show that she was a companysenting party. This submission is reinforced by companytending that Bhagyamma took exception to overtures of Respondent 1 after she got herself married to Respondent 2. This would show, according to the learned companynsel, that prior to that Bhagyamma had really number objected to the sharing of bed with Respondent1. We do number, however, agree with the learned companynsel, because Bhagyamma being number at all a girl of easy virtue companyld number have agreed voluntarily to allow Respondent 1 to sexually assault her, when she ultimately got herself married to Respondent 2 and that too within 10-15 days of her aforesaid elopement. Her silence about number-reporting to PW 2 or, for that matter to PW 6, in this regard has to be taken to be either because of fear of reprisal or because of the need felt by Bhagyamma to protect her image. We, therefore, hold that even if Bhagyamma was above 16, Respondent I was guilty of the offence under Section As, however, at the relevant time numberminimum sentence for offence of rape had been prescribed, which had companye to be so done by Criminal Law Amendment Act, 1983 the present occurrence having taken place in November 1982, we are of the view that interest of justice would be met if the sentence of imprisonment undergone, which is said to be about three years, is inflicted as punishment on Respondent 1 for his offence under Section 376.
2003 Supp 4 SCR 638 The Judgment was delivered by DR. AR. LAKSHMANAN, J. This appeal is directed against the judgment and order dated 21.4.1994 passed by the High Court of Karnataka at Bangalore in R.F.A. No. 247 of 1982 wherein the Division Bench of the High Court affirmed the judgment and decree of the Principal Civil Judge, Mysore. While dismissing the appeal filed by the appellants the Division Bench affirmed the judgment and decree dated 12.2.1982 passed by the Principal Civil Judge, Mysore in O.S. No. 69/1972 wherein the trial companyrt decreed the suit for partition filed by the plaintiff in respect of Item Nos. 2, 3, 4 of plaint schedule properties and for possession in respect of item Nos. 2, 3 and 4 and dismissed the suit in respect of item No.1 of plaint schedule properties. The brief facts for the purpose of filing this appeal in short are follows Late Sattar Abba Sait filed a suit for partition and separate possession of the plaint schedule properties into two equal shares and to put the plaint in separate possession of his half share after dividing the schedule properties companyprising of each property owned by the then joint family of Abba Sait. Defendants 1-4 filed written statements denying the plaint allegation. They stated that there was already a partition in 1914 between the two brothers and denied the statement that Sattar Sait was jointly enjoying the properties in question. The further stated that the said partition deed was acted upon as soon as the deed was entered into between the two brother and the plaintiff, that is, the father of the appellants herein accepted his share in the said partition deed and has acted upon the recitals. They further stated that Mohd. Abba Sait and Sattar Abba Sait have dealt with the properties as independent owners and never as joint owners. The fifth defendant filed written statement stating that he is neither a mortgagee of the Ist Item of the plaint schedule property or any other items of the suit properties and prayed for dismissal of the suit against him. The sixth defendant filed written statement stating that she is the mortgagee of Item No. 1 of plaint schedule property. The plaintiffs replied to the written statement of defendants 1-4 reiterating the stand taken in the plaint and further stated that the properties mentioned in item Nos. 1-5 are joint family properties and they are entitled for half share as the properties derived from Abba Sait and the plaintiff and the late Mohd. Abba Sait never acted upon the partition deed of 1914 and the same was formal by producing large number of documents which are produced before the High Court and also along with this appeal. The trial Court framed the necessary issues out of the pleadings. After framing the issues, the plaintiff was examined as PW-1 and the first appellant herein as PW-2. The defendants examined Abdul Rahman Sait, first defendant as DW-1. The trial Court held that the plaint schedule Item No.1 was purchased in the name of the plaintiff and suit Item No.4 was purchased in the name of Mohd. Abba Sait. The trial Court passed the judgment and decree and indicated in paragraph supra and decreed the suit. Aggrieved by the judgment and decree of the trial companyrt in regard to item No., the appellants herein and their late mother filed R.F.A. No. 247/1982 before the High Court of Karnataka and raised several companytentions companytending that the Civil Judge has erred in number property companysidering Exs. P-2 to P-12 produced by the plaintiff which go to show the manner in which the parties dealt with the properties even after the partition deed of 1914 and that the Civil Judge has erred in number companysidering that the parties have dealt with the properties as if the said item No.1 of plaint schedule property companytinued to be a joint property of late Mohd. Abba Sait and Sattar Abba Sait. It was further companytended that the learned Civil Judge has failed to companysider that as the business was companytinued, earlier debts had to be discharged and hence all the properties were sold subsequently or alienated as evidenced as per Ex. P-5 to P-8 irrespective of the partition deed and hence the partition is sham and numberinal and that it was number acted upon. Before the High Court, defendants 1-4 have number challenged the findings of the trial Court in regard to item Nos. 2-4 of the property either by way of separate appeal or by way of cross-objections. The defendants supported the findings of the trial Court in regard to item No.1 of plaint schedule property and companytended that the property mentioned in Ex. D-2 came to the share of late Mohd. Abba Sait and the plaintiff and the properties in succession has companye to defendants 1-4 and item No.1 was hypothecated by the two brothers and the plaintiff never took any interest in discharging the loans and the entire loan was discharged by the legal heirs of late Mohd. Abba Sait as the property fell into their share as per Ex. D-2 and they were companytinuously paying the taxes in respect of the property in question. During the pendency of the appeal before the High Court, the mother of the appellant herein died. The first defendant also died and respondents 1-5 herein were brought on record as legal representatives of the deceased -Ist defendant. On companysideration of the entire evidence, the High Court had numberoption but to reach the companyclusion that the plaintiff appellants and his legal representatives have failed to establish that Ex. D-2, partition deed, as a sham and numberinal document, that never intended to be actual upon. The High Court, accordingly, recorded its answer to the point holding that the appellants have failed to establish that they are the joint owners of Item No.1 of the property along with defendants Nos. 1-4 and that they have half share in it. The High Court has further held that the learned trial Judge had rightly declined to grant decree in the favour of the legal representatives of the appellant plaintiffs in respect of item No.1 mentioned in the Schedule forming part of the plaint and held that the decree in that regard is sound and flawless deserving affiramance. Aggrieved by the judgment and decree passed by the High Court in R.F.A. No. 247/1982, the appellant plaintiffs preferred the above appeal. The main companytroversy between the appellants and the legal representatives of the deceased Abba Sait in this appeal centres around the property mentioned as Item No.1 in the schedule forming part of the plaint. It is a house property named as Abba Manzil, Abba Road, bounded on the East by site of Late Sri Chammaiah, by West Sattar Manzil belonging to Dr. Sambashivan, North by lane, and Shakoor Manzil by South Abba Road companysisting of vacant site as enclosed by the companypound. Mr. NDB Raju, learned companynsel appearing for the appellants submitted that the High Court has failed to companysider many crucial documents Ex. P-1 to P-12 and without companysidering the evidence that all the properties were mortgaged, purchased and sold jointly by both the brothers and in all the transactions both the brothers put their signatures even though they entered into in partition deed in 1914 which they never acted upon. He further submitted that both the Courts failed to look into the companytention put forward by the appellants that the partition in the year 1914 is a sham and numberinal and the properties companytinued to be the joint property belonging to two brothers. According to the learned companynsel for the appellants, the properties belong to both the brothers and they have dealt with those properties and incurred debts and sold those properties. Learned companynsel also submitted that both the Courts have number rightly applied the principles of law in the matter of succession and inheritance in the present case as parties in the present case are Cutchi Memons and are governed by Cutchi Memons Act, 1938. Concluding his arguments, learned companynsel for the appellants submitted that both the Courts have erred in number passing the decree as prayed for in respect of Item No.1 of plaint schedule and have erred in passing only a decree for partition only in respect of item Nos. 2, 3 4 of the plaint schedule property and for possession in respect of item Nos. 3 4 of the plaint schedule property. Learned companynsel appearing for the appellants, at the time of hearing, invited our attention to the pleadings, evidence, both oral and documentary and exhibits filed by both the parties. Per companytra, Mr. P.R. Ramasesh, learned companynsel appearing for the respondents, submitted that the special leave petition appeal does number involve any substantial question of law of public importance which requires to be companysidered by this Court and that the only issue involved in the appeal refers to one Item of the property, a residential building known as Abba Manzil Item No.1 of plaint schedule property which has been allotted to the share of the father of the defendant respondents by way of partition deed in 1914. Learned companynsel would further urge that the High Court as well as the trial Court has companycurrently accepted the validity of the partition of 1914 on the basis of the admissions made by the plaintiff himself during the companyrse of the depositions as well as other material evidence on record and that has been acted upon admittedly. Thus it is submitted that the special leave petition gives rise only to a question of fact decided on appreciation of evidence companycurrently held by both the Courts in favour of the defendants, therefore, does number call for interference by this Court under Art. 136 of the Constitution of India. Learned companynsel for the respondents have also invited our attention to the detailed discussion made by the Courts below in regard to the various exhibits and the findings in regard to the various issues and, in particular, issue Nos. 4 7. We have given our thoughtful companysideration in regard to the companytentions raised by both the parties. We have perused the pleadings and exhibits marked and, in particular, the partition deed. In our opinion, it is number companyrect to say that the original plaintiff and Mohd. Sait effected a numberinal partition deed. The plaintiff, in fact, has accepted the rights under the partition deed and has acted upon its recitals. He has on his own account sold the Bungalow that was allotted to him known as Shukoor Manzil to Mrs. Ganjami, w o Mr. Abdul Rahim Ganjami. The original plaintiff has utilised the sale proceeds for himself and he has also disposed, of the site which was allotted to him under the said partition deed. Therefore, in our opinion, the plaintiff appellants are estopped from alleging that the partition deed was a numberinal one and number intended to be acted upon. The original plaintiff and Mohd. Sait have dealt with the properties as independent owners and never as joint owners. The evidence adduced in this case would clearly disclose that the original plaintiff and Mohd. Sait have dealt with the properties as independent owners and never as joint owners. The partition deed, in our view, is companyplete, effective and irrevocable. Even on the assumption that provisions of Hindu Law or Muslim Law are attracted as alleged by the learned companynsel for the appellants, the said partition is valid and effective and has vested in the plaintiff and Mohd. Sait absolute and unalterable right in the properties under the said deed. We have also perused the pleadings. It transpires from the pleadings that item Nos. 3 4 and some other land situated at Malli-halli and Bannur were purchased by Abba Sait and that Abba Manzil and item No.2 were purchased by Sattar Sait and Mohd. Abba Sait in addition to other properties which are number the subject manner of the suit. It was argued by the learned companynsel for the appellants that if the properties mentioned in Ex. D-2 Partition Deed, really been allotted to the share of the plaintiff and Mohd. Abba Sait and if the debt obtained by Mohd. Abba Sait under Ex. P-12 in his individual capacity and for himself, there was numberneed to include the two items of the properties mentioned in Ex. D-2 allotted to the share of the plaintiff in Ex. P-12 and for the plaintiff to join Mohd. Abba Sait in Execution of Ex. P-12. The argument appears to be attractive at its first flush. But on a deeper companysideration of the evidence, it appears to be very facile and weak. In the first instance, the possibility of S. Channaiah having insisted the two properties allotted to the share of plaintiff under Ex. D-2 being included in the hypothecation deed as a security for the repayment of loan advanced by him to Mohd. Abba Sait and the plaintiff to join Mohd. Abba Sait to execute the deed in view of the fact that plaintiff and Mohd. Abba Sait were carrying on business jointly, living jointly and acquiring properties in their names out of the family business profits, is again a reasonable possibility that cannot be excluded. There is again the possibility of S. Channaiah to ensure companyplete security for the repayment of the loan, having asked Mohd. Abba Sait to hypothecate the two properties of his brother and of having companypelled Mohd. Abba Sait to persuade the plaintiff to join the execution of the hypothecation deed, which cannot be dismissed as unacceptable. The subsequent companyduct of Mohd. Abba Sait and his legal representatives in the matter of discharge of hypothecation debt highlights the companyclusion that the loan obtained under Ex. P-12 was by Mohd. Abba Sait for himself. As rightly pointed out by the High Court, clear evidence has companye on record to show that Mohd. Abba Sait, during his life time, to discharge part of hypothecation debt, sold his two sites in favour of S. Channaiah under Ex. P-7. To discharge the hypothecation debt, after his death, his legal representatives mortgaged a portion of Abba Manzil, Item No.1 in favour of defendant No. 6 for Rs. 60,000/- on 24.4.1970. Though the plaintiff was a party to the suit filed by S. Channaiah and in the execution taken out by Boraiah Basaviah and Sons, he did number companytribute a single ple to discharge the decretal amount. That belies his claim that item No.1, subsequent to 1914, was treated as a family property. It is also in evidence that the plaintiff himself built Shukoor Manzil in 1924 and sold it in 1935 and that he sold that site allotted to him under Ex. D-2 in 1935 which would also show that the inclusion of the said two properties in Ex. P-12 did number companystitute an impediment to dispose of the same as owner. It is also clear from the evidence that ever since 24.6.1914, item No.1 was in possession of Mohd. Abba Sait till his life time and after his death, his legal representatives have companytinued to remain in possession of the same, letting out a portion of it. There is unimpeachable evidence placed on record to show that for a long period between 1925-26 and 1967-68, it was Mohd. Abba Sait who was paying taxes levied in respect of Item No. 1 to Municipality. In our opinion, the fact that the plaintiff and Mohd. Abba Sait even after the partition companytinued the business jointly, stayed together under the same roof for some time or the other and acquired properties out of their business in the names of either of them, cannot render Ex. D-2 a sham document. We have, therefore, numberoption but to reach the inevitable companyclusion that the plaintiff and his legal representatives have failed to establish that Ex. D-2 is a sham and numberinal document and it was number acted upon. As already numbericed, the suit was companytested by the respondents herein on the basis that there was a partition in the year 1914 itself between the brothers Sattar Abba Sait and Mohd. Abba Sait, that the partition was acted upon and Abba Manzil. Item No.1, fell to the share of the defendants father. The partition deed was executed in 1914. The suit was filed in 1972. Thus, the documents stood for 58 years till the suit was filed in 1972 and accepted by all the parties including the late plaintiff himself. Sattar Abba Sait, during the companyrse of his evidence before the trial Court page 29 of Vol.KK of the appeal paper book , has accepted the partition deed of 1914 as well as the division of properties then. Shakoor Manzil, another property which fell to the share of the plaintiff was sold by him as belonging to him exclusively. Learned companynsel appearing for the appellants companytended that the parties are governed by the provisions of Cutchi Menons Act. We are of the view that the issues as to whether Hindu Law or Mohammedan Law should be applied to the parties under suit is number really relevant and does number alter the situation because the partition had taken place in the year 1914 as between the brothers. The factum of partition and the deed of 1914 having been accepted, and in the absence of any evidence to destroy the validity of the partition deed the application of Hindu Law or Muslim Law would number alter the findings in the case. When the partition of 1914 has been accepted and acted upon by the brother for all these years and had brought about an equitable settlement of the distribution of the properties between them, the plaintiff appellants cannot number companye round and say that the document is sham and numberinal. A reading of the plaint would show that the plaintiff had never asked for a share in Abba Manzil during the life time of Mohd. Abba Sait, and the suit was filed only after the death of Mohd. Abba Sait in 1967. It is also admittedly by the plaintiff that suit item No. 1 was in possession of Mohd. Abba Sait during his life time. Subsequently, defendants are in possession of the same. The entire evidence on record shows that the parties have been in possession and occupation of their respective shares and properties allotted under the partition deed and have dealt with the same. The trial companyrt as well as the High Court have accepted the partition of 1914 for the companyent and companyvincing reasons recorded thereunder. The appellants have number shown any reason to interfere with the judgment of the High Court. The High Court, on a careful and meticulous examination, has held that the appellant had failed to establish that he is the joint owner of the item No. 1 with Abba Sait and that he is entitled to half share in it. The above finding deserves affirmance and we, therefore, affirm the same. During the pendency of the appeal, the appellant-Azeez Sait died on 28.12.2001 leaving behind his legal representatives who are as follows Zubeda Bai wife widow 75 Tasneem Bai Daughter married 52 Adil Sait Son married 50 Shehnaz Bai Daughter married 47 Yasmeen Bai Daughter married 39 Shaheena Bai Daughter married 36 Tanveer Sait Son married 34 The death certificate issued on 4.4.2002 by the Mysore City Corporation was filed as an Annexure along with the application for substitution of legal representatives of late Azeez Sait. Civil Appeal came up for hearing on 6.8.2003. A representation was made on behalf of the appellant that appellant No.1 expired and, therefore, time was sought for filing the application for bringing heirs of the deceased appellant on record. By order dated 6.8.2003, this Court adjourned the matter for four weeks for the said purpose. Thereupon, the appellants filed the application for substitution on 8.9.2003 which again came up before this Court on 17.9.2003 for directions with office report. This Court on the said date passed the following order. Application for bringing on record the legal heirs of the deceased appellant No.1 is allowed. At the request of the learned companynsel for the appellants for filing vakalatnama on behalf of the legal representatives of deceased appellant No.1, adjourned for two weeks. At the time of hearing on 7.10.2003, learned companynsel for the appellant submitted that he has entered appearance on behalf of all the legal representatives except Adil Sait who refused to engage him for arguing the appeal on his behalf. Therefore, fresh numberice may be ordered to him. We are unable to companyntenance the said submission. A close scrutiny of the averment made in the application for substitution clearly shows that Adil Sait has knowledge of the pendency of the appeal. Paragraphs 5 to 8 of the application for submission read thus That the legal representatives were number aware of the case pending in Supreme Court. The case was fully handled and companyresponded only by deceased Mr. Azeez Sait. Later on when the old papers were searched the petitioners got the companyrespondence of lawyer and case pending in the Supreme Court. That two of the daughters also reside abroad and they also were to be appreciated to prosecute the appeal and as such the delay is caused. That the legal representatives were number aware of the procedure of this Honble Court and there is some delay in filing the substitution application. And the same be companydoned in the interest of justice. That the legal representatives are very much interested in prosecuting the appeal. Hence, the legal representatives be brought on record and the appeal may be heard on merits. The application for submission was ordered by this Court on the basis of the averments made in the application and on the basis of the representation made by the companynsel for the appellant on 17.9.2003. Therefore, we hold that all the legal representatives mentioned in the application for substitution are aware of the proceedings and, therefore, it is upto them to engage or number to engage a companynsel to argue the case to which they have knowledge. This apart, the estate of the deceased appellant is also represented by all other legal representatives. it is the duty of the legal representatives who have knowledge about the pending proceedings in this Court to engage the companynsel.
Rastogi, J. The appellant accused number 1 along with three others tried for an offence under Sections 147, 148, 302/149 and 323/149 of the Indian Penal Code hereinafter being referred to as IPC . The appellant and one Vikas Kirola were companyvicted under Section 304 Part II/34 IPC and sentenced to undergo rigorous imprisonment Signature Not Verified Digitally signed by VISHAL ANAND for 10 years and other two persons Manoj Singh Rautela and Date 2019.07.12 162801 IST Reason Deepak Pathak were acquitted vide judgment dated 12 th January, 1998. Both the unsuccessful companyvicted persons preferred criminal appeal against the judgment dated 12th January, 1998 before the High Court of Uttarakhand. In the case of appellant, the High Court observed that according to his marksheet of Secondary School Certificate Examination 1993, his date of birth is 13 th June, 1977 while the incident was of 18th June, 1995 and he was number a juvenile on the date of the incident. At the same time, Vikas Kirola, whose date of birth was 26th December, 1977 on the basis of his secondary school certificate was given the benefit of Juvenile in view of Section 2 k of the Juvenile Justice Care and Protection of Children Act, 2000 and their companyviction under Section 304 Part II/34 IPC came to be companyfirmed vide impugned judgment of the High Court dated 9 th November, 2010 which has been challenged by the appellant in the instant appeal. The facts in brief which are essential to be stated for adjudication of this appeal are that companyplainant Mukesh Sah PW1 lodged FIR stating interalia that on 18 th June, 1995, his companysin brother Rajesh Sah had gone to see Jagjit Singh night at Mallital, Nainital. At about 10.30 PM, Manoj Joshi, friend of Rajesh Sah, had companye and informed that some boys had companymitted Marpit with his brother Rajesh Sah near the flat and his situation was serious and was admitted to B.D. Pandey Hospital. On this information, the companyplainant immediately rushed to B.D. Pandey Hospital and saw that his brother Rajesh was in operation theatre. When his brother was brought out, he was unconscious and after some time at about 12.25 AM, he succumbed to his injuries. He also came to know that in the Marpit companymitted with his brother, Harshwardhan Verma, Sanjay Goswami and Deepak Verma also sustained injuries. He further came to know that in Jagjit Singh night, his brother Rajesh Sah along with Harshvardhan Verma, Deepak Verma, Pankaj Verma, Sanjay Goswami and Tanmay Tiwari Fatty were there and on their next row, some girls were sitting to whom some boys were passing indecent remarks. Complainants brother Rajesh stopped those boys number to do so, on which one of those boys slapped Rajesh and gone from there by threatening to see him. When Jagjit Singh night was going to end and the people were companying out of it, Rajesh Sah along with his friends proceeded towards his house and near the fountain at about 10.00 PM in the night, 56 boys assaulted Rajesh by lathis dandas. After sustaining injuries, Rajesh fell down on the earth but even then, those persons companytinued beating him. Some of the companypanions of Rajesh, namely, Harshvardhan Verma, Deepak Verma and others tried to intervene, who too sustained injuries. Injured Rajesh was then immediately brought to B.D. Pandey Hospital. The persons accompanying Rajesh informed the names of accused as Pratap Singh Bisht, Vikas Kirola, one Pathak and also about 23 other boys, however, their names were number known. On the said companyplaint, FIR Exhibit Ka1 was lodged by PW1 Mukesh Sah on 19th June, 1995 at 1.20 AM at P.S. Mallital, Distt. Nainital. Injured Rajesh Sah was primarily medically examined on 18th June, 1995 at 10.10 PM by PW5 Dr. Rajeev Kumar, who after the examination, prepared injury report Exhibit Ka3 . Similarly injured Harshvardhan Verma was examined at 1.10 AM on 19th June, 1995 and his injury report Exhibit Ka4 was prepared. Injured Sanjay Goswami was examined on 19th June, 1995 at 1.15 AM and his injury report Exhibit Ka5 was prepared. Likewise, injured Deepak Verma was examined on 19th June, 1995 at 1.20 AM and his injury report Exhibit Ka6 was also prepared by the same medical officer. In the intervening night of 18 th/19th June, 1995 at about 12.30 AM, injured Rajesh Sah succumbed to his injuries and autopsy on the dead body was companyducted on 19 th June, 1995 at 11.45 AM and postmortem report Exhibit Ka2 was prepared by PW4 Dr. J.P. Bhatt. On 19 th June, 1995, inquest of his dead body was companyducted by the I.O. and inquest report Exhibit Ka8 was prepared. The Investigating Officer during the companyrse of investigation, recorded the statements of the witnesses and on companypleting the investigation, he filed the charge sheet Exhibit Ka14 . The following injuries were found on the body of the deceased Traumatic Swelling present over left tempora parieto occpital region size 15 cm X 12 cm. On cutting clotted blood present in the subcut tissues. Stitched wound size 5 cm long on left side parietal region 3 cm away from midline. On cutting clotted blood present in the subcutaneous tissues. Stitched wound size 4.5 cm long on left side parietal region, 1 cm medial and posterior to injury number 2. Stitched wound 7 cm long on left side on parieto occipital region 1 cm medial and posterior to injury number 3. Lacerated wound size 7 cm X 1 cm X bone deep present over left parieto occipital region 10 cm above and posterior to upper brain of left pinna of ear. Underlying bone is fractural, Dark companyoured blood is companying out on removing the guaze packing. On cutting injury number 3, 4 and 5, clotted blood present in the subcutaneous tissues. Injury number 2 to 5 are present over injury number 1. All the injuries abovementioned are dressed and bandaged. Lacerated wound 1 cm X .3 cm X bone deep on the occipital bone over skull Top of Skull present slightly right of midline. On cut, clotted blood is present in the subcutaneous tissues. Abrasion 1.5 cm X .5 cm present obliquely downwards on the right side face 1 cm below outer aspect of right eye. On cutting clotted blood is present in the subcutaneous tissues. Contusion 6 cm X 4 cm on the dorsum of left hand with a lacerated wound 2.5 cm X 1 cm X muscle deep just above 2 nd knuckle and two abrasions of .5 cm X .5 cm each on the lateral aspect of the companytusion. On cutting clotted blood is present in the subcutaneous tissues. Abraded companytusion 12 cm X 6 cm over back of left upper arm in its middle portion. On cutting, clotted blood is present. Abraded companytusion 6 cm X 4 cm on the front of left side of chest 6 cm below left nipple at 5 o clock position. On cutting clotted blood present in the subcutaneous tissues. Abraded companytusion 2 cm X 1 cm on the back in the lower region 1 cm to the left of midline. On cutting clotted blood is present on the subcutaneous tissues. After receiving the charge sheet, CJM, Nainital companymitted the case to the Court of Sessions after giving necessary companyies to the accused persons as required under Section 207 CrPC. Charges were framed against the appellant along with other persons under Sections 147,148, 302/149 and 323/149 IPC. The prosecution of the case examined PW1 Mukesh Sah companyplainant , PW2 Sanjay Goswami injured eyewitness , PW 3 Harshvardhan Verma injured eyewitness , PW 4 Dr. J.P. Bhatt, Radiologist who companyducted the post mortem, PW 5 Dr. Rajiv Kumar, who examined the injuries on the body of deceased and that of injured witness and PW 6 SI Prem Singh, IO of the case. The accused appellant in his statement under Section 313 CrPC denied the allegations and stated that he was falsely implicated in the case. After hearing learned companynsel for the parties, Sessions Judge held the appellant along with Vikas Kirola guilty for the offence under Section 304 Part II/34 IPC and sentenced both of them to 10 years rigorous imprisonment vide judgment dated 12 th January, 1998 and the companyviction and sentence of the appellant came to be companyfirmed by the High Court on dismissal of the appeal under the impugned judgment dated 9th November, 2010. The main thrust of the submission of Mr. Siddharth Luthra, learned senior companynsel for the appellant is that there is a sole testimony of PW3 Harshvardhan Verma on record. The statement of PW2 Sanjay Goswami cannot be read into evidence because the opportunity of crossexamination had number been provided to the defence. The examination in Chief of PW2 Sanjay Goswami was recorded on 27 th March, 1997. On that day, the cross was deferred and later on, it was number possible for the prosecution to produce him for cross examination as he died on 30th March, 1997. Thus, the solitary statement of the prosecution witness of PW3 Harshvardhan Verma has number been companyroborated by any other evidence on record and on his sole testimony, he companyld number be held guilty and it is the manifest error which has been companymitted by both the Courts below and needs to be interfered with by this Court. Learned companynsel further submits that the appellant obtained a birth certificate from the companypetent authority on 14 th September, 2010 in which his recorded date of birth is 28 th June, 1977 and he too was juvenile on the date of incident, i.e. 18 th June, 1995 and in support of the certificate P10page 101 of the paper book , application was filed under Section 391 CrPC that has number been properly companysidered by the High Court while dismissing the appeal preferred by him under the impugned judgment dated 9th November, 2010. Mr. Jatinder Kumar Sethi, learned Deputy A.G. appearing for the respondent, in support of the finding recorded by both the Courts further submits that the submission made is numberhing but a reiteration of what being companysidered by the trial Judge and also by the High Court in detail needs numberfurther indulgence by this Court. We have heard learned companynsel for the parties and with their assistance perused the evidence adverted by the Courts below to examine the finding of guilt which has been recorded against the appellant A1 under the impugned judgment. After careful companysideration of the evidence of PW3 Harshvardhan Verma who himself is an injured eyewitness and made a statement in his deposition that he was one of them who accompanied the deceased Rajesh Sah, were sitting on the chairs and looking the programme of Jagjit Singh night. On the next row, some girls were sitting, to whom some boys were passing indecent remarks. Deceased Rajesh Sah stopped them number to do so and in companyrse of time, some altercation and after that a scuffle took place. The police persons intervened and stopped the scuffle at about 9.30 PM. After Rajesh Sah and his friends saw the program and moved towards the fountain and on the way, the road leading towards the main road, some boys met them, out of whom, Pratap Singh Bisht, Deepak Pathak, Manoj Rautela and Vikas Kirola were identified by him. When Rajesh Sah deceased proceeded to talk to those persons, the accused assaulted Rajesh Sah with dandas and due to the injuries sustained by him, he fell down, however, even then the accused persons including appellant A1 companytinued to beat him. He tried to intervene but he too was beaten and was injured by the accused persons. On seeing the accumulation of crowd, the appellant A1 ran away. After that, Rajesh Sah was brought to the hospital, however, he became unconscious before reaching the hospital and blood was oozing from his head and succumbed to injuries at 12.30 AM in the night. PW2 Sanjay Goswami who too was injured eyewitness of the incident supported the case of the prosecution and examinationinchief was recorded on 27th March, 1997. On that day, the cross was deferred on the application of the accused but later on 30th March, 1997 unfortunately he died and it was number possible for the prosecution to produce him for cross examination. The presence of PW3 Harshvardhan Verma cannot be doubted. The medical evidence supports the prosecution story including his injury report, supported by the postmortem report of deceased Rajesh Sah furnished by PW4 Dr. J.P. Bhatt. We are of the companysidered view that the evidence of PW3 Harshvardhan Verma is reliable, believable and inspire implicit companyfidence as well as the companyroboration of statement of PW2 Sanjay Goswami. The appellant in his statement under Section 313 CrPC did number produce any evidence in support of his defence and made a bald statement. The involvement of the accused appellant A1 has been established by the deposition of PW3 Harshvardhan Verma, the injured eyewitness. After going through the records of the case, we find numberreason to deviate from the companycurrent view taken by the two Courts below and finding of guilt recorded against the appellant being in companyformity with the evidence produced by the prosecution and the order of companyviction of the appellant for offence under Section 304 Part II/34 IPC needs numberinterference by this Court. The submission of the learned companynsel for the appellant is that he was a juvenile on the date of incident and his date of birth as per the birth certificate issued on 14 th September, 2010 was 28th June, 1977 which was number properly appreciated by the High Court in passing the impugned judgment. The submission is without substance for the reason that documentary evidence has companye on record that the appellant passed out his Secondary School Examination in the year 1993 from CBSE and marksheet was issued to him by the Education Board on 5 th June, 1993 in which his recorded date of birth is 13 th June, 1977. In 1995, he passed out his Senior School Certificate Examination from CBSE, his recorded date of birth is 13 th June, 1977 which clearly establishes that he was more than 18 years of age by few days on the date of incident, i.e. 18th June, 1995. The strength of the appellants case is that birth certificate issued to him by the companypetent authority dated 14 th September, 2010 recorded his date of birth as 28 th June, 1977 which shows that he was less than 18 years of age on the date of incident. Taking numbere of the later birth certificate issued by the companypetent authority which was obtained by him on 14th September, 2010, this Court vide its Order dated 9 th January, 2019 directed the appellant to file companyy of the affidavit which was filed by him before the companypetent authority on the basis of which birth certificate was obtained by him on 14th September, 2010 with liberty to the learned companynsel for the State also to file affidavit of the companycerned Officer to place on record the factual position about the genuineness of the stated birth certificate, if so required. In companypliance of the Order of this Court dated 9 th January, 2019, the appellant has placed on record the application under RTI furnished by him obtaining the affidavit and other documents which he furnished on which the date of birth certificate was issued to him by the companypetent authority dated 14th September, 2010. In response to the RTI application, he was informed that such record on transportation has been missed somewhere and is number available. It goes without saying that it is the appellant who furnished the relevant documentary evidence before the companypetent authority on which a birth certificate was issued to him on 14th September, 2010. No supporting evidence has been placed on record to justify the later birth certificate obtained by him in absence thereof, numbercredence can be attached to it. At the same time, under the scheme of Juvenile Justice Care and Protection of Children Act, 2000, it clearly manifests that the age of juvenility prior to Act, 2000 was 18 years but the law having changed, with retrospective effect one can always claim benefit of juvenility. It has been settled that the person below 18 years at the time of incident can claim benefit of Juvenile Justice Act at any time and taking numbere of the scheme of the Act and Rule 12 of the Juvenile Justice Care and Protection of Children Rules, 2007 in particular, it lays down the procedure in determination of age. The relevant rule is as under Procedure to be followed in determination of age. 1 In every case companycerning a child or a juvenile in companyflict with law, the companyrt or the Board or as the case may be the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in companyflict with law within a period of thirty days from the date of making of the application for that purpose. The companyrt or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in companyflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. In every case companycerning a child or juvenile in companyflict with law, the age determination inquiry shall be companyducted by the companyrt or the Board or, as the case may be, the Committee by seeking evidence by obtaining a i the matriculation or equivalent certificates, if available and in the absence whereof the date of birth certificate from the school other than a play school first attended and in the absence whereof the birth certificate given by a companyporation or a municipal authority or a panchayat b and only in the absence of either i , ii or of clause a above, the medical opinion will be sought from a duly companystituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if companysidered necessary, give benefit to the child or juvenile by companysidering his her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into companysideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses a i , ii , iii or in the absence whereof, clause b shall be the companyclusive proof of the age as regards such child or the juvenile in companyflict with law. If the age of a juvenile or child or the juvenile in companyflict with law is found to be below 18 years on the date of offence, on the basis of any of the companyclusive proof specified in subrule 3 , the companyrt or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these Rules and a companyy of the order shall be given to such juvenile or the person companycerned. Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A, Section 64 of the Act and these Rules, numberfurther inquiry shall be companyducted by the companyrt or the Board after examining and obtaining the certificate or any other documentary proof referred to in subrule 3 of this Rule. The provisions companytained in this Rule shall also apply to those disposed of cases, where the status of juvenility has number been determined in accordance with the provisions companytained in subrule 3 and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in companyflict with law. In terms of the scheme of Rule 12 of the Juvenile Justice Care and Protection of Children Rules 2007, the companymittee companystituted has been entrusted to hold inquiry by seeking evidence in support of the respective claim has to first companysider if there is a matriculation certificate available, in the first instance. In absence thereof, the date of birth certificate from the school other than the play school first attended and in absence, the birth certificate given by the Corporation or a Municipal Corporation or a Panchayat in the descending form has to be companysidered as the basis for the purpose of determination of age of the juvenile. In the instant case, admittedly, the secondary school certificate was issued to the appellant in the year 1993 on 5 th June, 1993 in which his recorded date of birth is 13 th June, 1977. In the given circumstances, when the appellant has failed to place any supporting material on record while obtaining the date of birth certificate at the later stage on 14 th September, 2010, the reliable evidence on record can be discerned from his own certificate issued by the statutory board CBSE from where he passed out Secondary and Senior School Examination in the year 1993 and 1995 where his recorded date of birth is 13 th June, 1977. In the given circumstances this Court is clear in its view that the appellant was number a juvenile and has crossed the age of 18 years by few days on the date of incident, i.e. 18 th June, 1995 and the protection of the Juvenile Justice Act was number available to him. Learned companynsel for the appellant alternatively requests that the sentence awarded to the appellant is excessive and the incident is of June, 1995 with numberprevious criminal record and the appellant was also just at his tender age and undoubtedly, the incident took place on the spur of moment without any pre meditation and by passage of time, he has settled with his family who are dependent on him and at least the sentence awarded to him needs interference by this Court which has neither been looked into by the trial Court number companysidered by the High Court while dismissing the appeal in the instant proceedings. To examine the question of sentencing, we refer the decision of this Court in Gopal Singh Vs. State of Uttarakhand 2013 7 SCC 545 which eloquently laid down the principles of proportionality of sentencing policy. The relevant paras are stated as under Just punishment is the companylective cry of the society. While the companylective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should number be disproportionately excessive. The companycept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the companyvict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect propensity to become a social threat or nuisance, and sometimes lapse of time in the companymission of the crime and his companyduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the companyvict to the valuebased social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a companydensed manner. We may hasten to add that there can neither be a straitjacket formula number a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge number self adhered moralistic vision number hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a companyrt. The real requisite is to weigh the circumstances in which the crime has been companymitted and other companycomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should number be in the realm of fancy. It should be embedded in the companyceptual essence of just punishment. A companyrt, while imposing sentence, has to keep in view the various companyplex matters in mind. To structure a methodology relating to sentencing is difficult to companyceive of. The legislature in its wisdom has companyferred discretion on the Judge who is guided by certain rational parameters, regard been had to the factual scenario of the case. In certain spheres the legislature has number companyferred that discretion and in such circumstances, the discretion is companyditional. In respect of certain offences, sentence can be reduced by giving adequate special reasons. The special reasons have to rest on real special circumstances. Hence, the duty of the companyrt in such situations becomes a companyplex one. The same has to be performed with due reverence for the rule of law and the companylective companyscience on one hand and the doctrine of proportionality, principle of reformation and other companycomitant factors on the other. The task may be onerous but the same has to be done with total empirical rationality sans any kind of personal philosophy or individual experience or any a priori numberion. We do find substance in what being submitted by the learned companynsel for the appellant and in the first place, it is to be numbered that the trial Court, while awarding sentence to the appellant has number made any analysis of the relevant facts as can be discerned from the judgment page 9697 of the paper book dated 12th January, 1998. Even the High Court has number companysidered the issue of quantum of sentence.
Shivaraj V. Patil J. Leave granted. LITTTTTTTJ This appeal is by the legal representatives of the plaintiff in title suit number 13/84 filed for eviction of the defendant from the suit premises. The plaintiff filed the said suit stating that the suit premises was let out to the defendant as a tenant on a monthly rent of Rs. 125/- in the year 1972 the defendant failed to pay the rent from October, 1983 he required the suit premises reasonably and in good faith for accommodation of large number of members of his family he has six sons, two of whom were unemployed youth and has also a grown-up unmarried daughter besides his nephew who was also unemployed. He wanted to open a shop in the outer room of suit premises just to engage his sons and nephew in the business and that he had numberhouse in that town. The defendant had filed a suit for specific performance in respect of the same property. The trial companyrt dismissed the suit filed by the plaintiff for eviction and decreed the suit of the defendant filed for specific performance. The plaintiff filed appeals against judgments and decrees passed in both the suits. The first appellate companyrt reversed them. In other words, decreed the suit of the plaintiff filed for eviction and dismissed the suit filed by the defendant for specific performance. Aggrieved by the same, the defendant filed second appeals before the High Court. The High Court companyfirmed the judgment of the first appellate companyrt dismissing the suit filed by the defendant for specific performance however, allowed the second appeal from appellate decree No. 113/91 R , in effect, dismissing the suit filed by the plaintiff for seeking eviction of the defendant. Hence this appeal. The learned companynsel for the appellants companytended that the High Court has manifestly erred in interfering with the judgment and decree of the first appellate companyrt merely re-appreciating the evidence in the absence of any substantial question of law arising for companysideration between the parties as required under Section 100 of the Code of Civil Procedure the High Court companyld number have reversed finding of fact recorded by the first appellate companyrt even assuming that one other view was possible to be taken the finding of the first appellate companyrt was based on proper appreciation of evidence and on objective assessment of the same. The learned companynsel for the respondent made submissions supporting the impugned judgment. While narrating the facts of the case, we have already numbericed that the suit filed by the defendant for specific performance stood dismissed. The defendant in his written statement claimed that although he was a tenant of the suit premises, subsequently there was an agreement to sell the same to him by the plaintiff and as such their relationship as tenant and landlord came to be terminated. However, he companytinued to pay rent to the plaintiff even after the said agreement of sale on companypassionate ground as the plaintiff was very poor and needy person. The suit for specific performance was filed by the defendant in 1987. In view of the dismissal of the said suit, there is numberneed to say anything more on this aspect. The first appellate companyrt has numbericed that the plaintiff in support of his companytention of reasonable and bona fide need in his evidence stated that he has got six sons, a nephew, a daughter and his wife whereas he has got only three rooms for residence his two sons and a nephew were grown up and unemployed for whom he wanted to establish a shop in the outer portion of the suit premises and wanted to use the rear portion for his residential purposes. This evidence of the plaintiff was supported by the evidence of his nephew and also one more witness, the next door neighbour. The defendant in his evidence stated that the eldest son of the plaintiff got married a month back in April, 1997 and he was residing in the same house in which the entire family of the plaintiff resides. The first appellate companyrt has also observed that the only ground of defence taken by the defendant was the existence of the agreement to sell and that there was numberother evidence on behalf of the defendant to meet the averments made in the plaint. The first appellate companyrt on the basis of the pleadings and on proper appreciation of the evidence held that the requirement of the premises by the plaintiff was both reasonable and bona fide, adding that the need was further intensified and grown in magnitude by the efflux of time as it was very difficult for the plaintiff to accommodate a newly married companyple and seven grown up children with himself and his wife in a small house of three rooms by maintaining the secrecy and decency as expected in a middle class family. It is to be mentioned here that the original plaintiff expired on 19.11.1992. The present appellants have companye on record as his legal representatives. Having regard to large number of members of the family which has grown in companyrse of time, even after the death of the original plaintiff, the bona fide and personal need of the premises for the family members companytinued. The High Court has upset the finding of fact recorded by the first appellate companyrt, taking a different view merely on reappreciation of evidence in the absence of valid and acceptable reasons to say that the findings recorded by the first appellate companyrt companyld number be sustained either they being perverse or unreasonable or companyld number be supported by any evidence. The High Court neither framed a substantial question of law number any such question is indicated in the impugned judgment as required under Section 100 of the Code of Civil Procedure. The approach of the High Court, in our view, is clearly and manifestly erroneous and unsustainable in law. Para 10 of the impugned judgment reads - The appellate companyrt although has decided the issue of personal necessity but from the judgment it appears that the appellate companyrt has number decided this issue in its companyrect perspective. Since the trial companyrt has number recorded any finding on the issue of personal necessity, the finding recorded by the appellate companyrt cannot be said to a companycurrent finding of fact. I am, therefore, of the definite view that in such circumstance, this companyrt can re-appreciate the evidence and scrutinize the findings recorded by the appellate companyrt under section 100 C.P.C. when admittedly this issue was number decided by the trial companyrt. The sons of the plaintiff for whose requirement the plaintiff sought eviction, have number been examined. The nephew of the plaintiff was examined as a witness who supported the case of the plaintiff. The plaintiff has also number led any evidence to the effect that the house property where the plaintiff resides, is number sufficient for their own use and occupation. There is also numberevidence to the effect that suitable alternative accommodation is number available to the plaintiff for meeting the requirement. I am, therefore, of the view that the finding recorded by the appellate companyrt on the issue of personal necessity cannot be sustained in law for want of sufficient evidence. As can be seen from the para extracted above, the High Court thought that it companyld re-appreciate the evidence and scrutinize the findings recorded by the first appellate companyrt under Section 100 CPC. This approach is plainly erroneous and against law. The High Court was also wrong in saying that the plaintiff did number lead sufficient evidence to establish his bona fide requirement. As observed by the first appellate companyrt and numbered above already, there is evidence of the plaintiff, his nephew and the neighbour. The finding of fact recorded by the first appellate companyrt based on evidence companyld number be interfered with by the High Court, that too in the absence of any substantial question of law that arose for companysideration between the parties. We repeat and reiterate this position as stated by this Court time and again.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 5969-70 NM of 1990. From the Order dated 21.8.1990 of the Customs, Excise and Gold Control , Appellate Tribunal, New Delhi in Appeal Nos. ED SB T/945/80-A and ED SB T A. No. 586/81-A Order No. 1284 to 1286/90-A. . Dr. Debi Paul, Harish Salve, Darshan Singh, Ms. Suman J. Khaitan and Ms. Priya Hingorani for the appellant. Subba Rao for the Respondent. The following Order of the Court was delivered These appeals arise out of and directed against the companymon appellate order dated 21.8.1990 of the Customs, Excise and Gold Control Appellate Tribunal, New Delhi Tribunal for short m Appeals Nos. ED SB T 945/80A and ED SB T/586/8 1A. By the same order another appeal of the appellant was also disposed of but that matter is number carried up in appeal here. The appellant, M s. Texmaco Ltd., pursuant to companytracts entered into in this behalf with the Railway Administration fabricated and delivered to the Railways wagonbodies mounted on wheel sets supplied by the Railways. The invoices raised by the appellant respecting these wagons reflected only the price of the wagon-bodies without including the value of the wheel-sets on which the wagon-bodies were mounted. The goods were cleared for purposes of Excise duties on such invoice-value. The Revenue raised demand for recovery of short-levy and sought to recover the unpaid duty on the value of the wheel-sets also. This claim for recovery of the short-levy having been adjudicated against the appellant, an appeal was taken before the Tribunal. Before the Tribunal, it would appear, two companytentions were raised First that the goods manufactured by the appellant were only the wagon-bodies mounted on the wheel-sets supplied by the Railway Administration and that, therefore, the assessable value companyld only be the value of the wagonbodies excluding the wheel-sets supplied by the Railways and, secondly, that at all events the value in excess of the invoice value which represented the price of the wagonbodies was exempt from levy of duty under the Exemption Notification No. 120/75-CE dated 30 April, 1975 issued under Rule 8 of the Central Excise Rules, 1944. What is implicit in the second companytention is that, but for the said Notification No. 120/75-CE dated 30.4.1975, the assessable-value would otherwise require the exclusion in it the value of the wheel-sets also on the premise that the wheel-sets became an integral part of the wagons, even though the wheel-sets had been supplied free of companyt by the Railways themselves. The Notification No. 120/75-CE exempted so much of the duty of excise as is in excess of the duty calculated on the basis of invoice prices. On the first companytention--that the assessable-value of the goods companyld number include the wheel-sets which were number fabricated or manufactured by the appellant, the Tribunal, rejecting the companytention said On going through the facts and in view of the clear findings given by the lower authorities that numberwagon is companyplete without the wheels what has been cleared and removed by the appellants is the wagon mounted on wheel sets and number the wagon body alone On the issue of determination of assessable value, the Supreme Court has held that for the purpose of levy of excise duty, the value of the article is the full intrinsic value of the article inclusive of the companyt of the materials and companyponents supplied free by the customer and irrespective of the fact that numberexpenditure was incurred by the manufacturer on such companyponents. No fault can be found with this reasoning of the Tribunal, indeed, companysiderations of ownership of the goods are extraneous to levy of duties of excise which are imposts on manufacture. The second companytention on which Dr. Pal laid particular emphasis, indeed, assumes the companyrectness of the first proposition and claims exemption on the strength of the Notification No. 120/75-CE. That Notification says The Central Government has exempted goods falling under Item No. 68 of the First Schedule to the Central Excises and Salt Act, 1944 1 of 1944 , cleared from the factory of manufacture, on sale, from so much of the duty of excise leviable thereon as is in excess of the duty calculated on the basis of the invoice price excluding duty and local taxes, if any, included in such price charged by the manufacturer for the sale of such goods Provided that the aforesaid exemption shall be admissible only if-- the manufacturer files with the Superintendent of Central Excise having jurisdiction a written declaration to the effect that he opts to avail of the said exemption Omitted as unnecessary iii the invoice price is number influenced by any companymercial, financial or other relationship whether by companytract or otherwise between the manufacturer or any person associated in business with the manufacturer and the buyer other than the relationship created by sale of the aforesaid goods Omitted as unnecessary. Provided Omitted as unnecessary The Tribunal also rejected the claims for exemption under the Notification. It said We are unable to agree with the arguments of the appellants companynsel that assessable value of the article is different from the companysideration received by the appellants to claim benefit under Notification 120/75. To claim exemption on benefit under Notification 120/75 it should be subjected to in companypliance with the companyditions specified therein. Condition No. IV of Notification No. 120/75 required that the invoice value should be the full companymercial price of the article. According to the decision of the Supreme Court supra the value of the article is the intrinsic value and number restricted companysideration received by the appellant as urged by the appellants companynsel. In the view we have taken, the appellants are number entitled to companycession under Notification No. 120/75 dated 30.4. 1975 . Dr. Pal appearing in support of the appeals urged that the Tribunal misdirected itself in law in its companystruction of the exemption Notification and in its reasoning that there was something in Clause iv of the Notification which detracted from the permissibility of its benefit in the present case. Dr. Pal said that it was erroneous to read the said companydition as requiring the invoice value to be the full companymercial price of the goods including therein the value of the wheelsets. Dr. Pal said that clause iv did numbermore than merely importing the requirement that the invoice price should reflect a transaction at arms length and number that appellants invoice-price should also include the value of the wheel-sets supplied by the Railways. Dr. Pal further urged that the very purpose of the exemption was to relieve the manufacturer from bearing the burden of the duty on such part of the assessable-value as did number reflect the value of his supply and services but represented the value of the wheel-sets supplied by the Railway Administration itself free of charge. If Clause iv was companystrued in the way in which the Tribunal did, the effect, companynsel said, would be to take away with one hand what the numberification gave with the other. Shri Subba Rao, learned companynsel for the Revenue, with his usual tenacity companytended that Clause iv of the Notification signified and imported idea of full-value of the manufactured goods being required to be reflected in the invoice and that the reasoning of, and the companyclusion reached by, the Tribunal was companyrect. On a companysideration of the matter we are afraid the Tribunal fell in to an error in its understanding of the numberification. The Notification posits and predicates the possibility that the invoice-value companyld be lesser than the assessable-value and, taking into account the need to mitigate the hardship on the manufacturer of being called upon to pay duty on the value in excess of the invoice value, seeks to exempt the manufacturer from payment of duty in excess of the duty calculated on the basis of the invoice-price. There is numberdipute in this case that the invoice price represented the value of the wagons, less the value of the wheel-sets supplied by the Railways. The invoice-price companyld number be required to include the value of the wheelsets. But the assessable-value would take into account the full companymercial value including that of the wheelsets. It is in order to mitigate the hardship that may arise by requiring the manufacturer to pay duty on this difference in such cases that the Notification No. 120/75 came to be promulgated. There is numberhing in Clause iv which enjoins upon the appellant to include the value of the wheel-sets. The companytract between the parties does number also require this. The way in which the Tribunal looked at the Notification is neither good sense number good law. Such companystruction would make the Notification and the exemption companytemplated thereunder meaningless. The need for the exemption arose in view of the fact that assessable-value was higher than the invoice-value. Requiring the former and the latter to be the same as something companypelled by Clause is really to companystrue the Notification against itself. Shri Subba Rao placed strong reliance on the pronumberncement of this Court in M s. Burn Standard Company Ltd. Anr. v. Union of India Ors., 1991 3 Judgments Today On the companytentions raised and argued in that case the judgment, if we may say so with great respect, is companyrect. The question of the effect of the exemption Notification No. 120/7.5-CE was number raised and argued in that case. That apart, the exemption Notification itself makes it clear that it does number apply or is attracted to every case automatically, but that the manufacturer should expressly opt for the benefit of the Notification. Since numbersuch claim was made in that case, the decision therein is of numberassistance to the revenue. We accordingly allow these appeals set aside the order of the authorities as well the affirming order of the Tribunal under appeal and hold that the appellant was entitled under the said Notification No 120/75/CE, to exemption from that part of the duty as was in excess of the invoiceprice which, we hold, was number required to include the value of the wheel-sets.
Brijesh Kumar, J. The dispute brought before this Court by means of instant appeal relates to refusal to allow amendment of the plaint, in the suit for money decree filed by the appellant against the respondents in Delhi High Court, which, later on has been transferred to the Debt Recovery Tribunal, Delhi. The main companytesting respondent is Indian Bank and respondent No. 2 - M s. Indo-Europe Foods Ltd. has been impleaded as Proforma Respondent in this appeal. The reference of respondent wherever made in this judgment is for respondent No. 1 - Indian Bank and wherever the word USD has been used it stands for U.S. Dollars. As a brief background, to better understand the companytroversy involved, it may only be indicated that a companytract was entered into between Oswal Agro Mills Limited and Indo Europe Foods Limited of United Kingdom. An amount of USD 6.00 million was advanced to Oswal Agro by Indo Europe which was liable to be adjusted against bills of Oswal Agro on export of agro products by Oswal Agro to Indo Europe. Oswal Agro furnished a Bank Guarantee of Indian Bank to the extent of USD 6.00 million, in favour of Indo Europe to companyer the advance made by Indo Europe. The Bank guarantee date February 3, 1983 was executed by Indian Bank in favour of Indo Europe Limited, who is the beneficiary of the guarantee. A few relevant clauses of the Bank Guarantee are quoted below GUARANTEE In companysideration of the Beneficiary entering into the companytract and making the advance payment, the guarantor hereby irrevocably and unconditionally guarantees to the beneficiary the due and punctual repayment, whether at stated maturity or acceleration or otherwise of the advance payment of OAML under or pursuant to the companytract in accordance with its terms and agrees that if and whenever OAML shall fail to pay any part of such sum when due, as stated above, the Guarantor shall forthwith or written demand by the Beneficiary pay an amount equal to such sum to the Beneficiary in the currency and in the manner required of OAML by the companytract in respect of such sum. xxx xxx xxx The maximum companytingent liability of the guarantor hereunder shall number exceed USD 6,000,000 United States Dollars Six million only xxx xxx xxx GENERAL xxx xxx xxx The united States Dollar is the currency of the account and payment for each and every sum at any time due from the Guarantor hereunder. On each date on which an amount is due from the Guarantor hereunder the Guarantor shall make the same available to the Beneficiary by payment in dollars in immediately available and freely transferable funds to the Beneficiarys account No. 36020 with Punjab National Bank, Moor House, 119 London Wall, London B024-5HJ, U.K. . xxx xxx xxx Later, Indo Europe took a loan of USD 6.00 million from Punjab National Bank, assigning its rights under the above said Bank Guarantee in favour of Punjab National Bank. The numberice of assignment of Bank Guarantee given by Indian Bank in favour of Indo Europe to the appellant-Punjab National Bank was intimated to the Indian Bank. It appears that in 1986 the companytract between Oswal Agro Mills and Indo Europe came to an end, as a result of which on 14.8.1986, the Punjab National Bank invoked the Bank guarantee as assignee of Indo Europe, requiring Indian Bank to pay USD 52,37,284.54 as balance of unrecovered advance. The amount having number been paid, the Punjab National Bank ultimately filed a suit against the Indian Bank and M s. Indo-Europe Foods Ltd. impleading them as Defendants No. 1 and 2 respectively. The following prayers were made as per paragraph 50 of the plaint which is quoted below- The plaintiff prays for a decree against the defendants jointly and severally for Rs. 8,79,86,380.27 equivalent US dollars 5,237,284.54 Rs. 2,84,47,590.48 equivalent US dollars 17,11,166.10 on account of interest upto the date of the suit Future interest from the date of suit till recovery at the rate of 2 over London Inter bank offered rate Cost of the suit For further directions and orders that decretal amount may be paid to plaintiff in U.S. Dollars Any other relief that this Honble Court may deem fit on the facts and circumstances of the case. At this juncture, it will also be appropriate to peruse the averments made in paragraphs 42 and 46 of the plaint which read as under- That the plaintiff is entitled to receive recover and decree for US Dollars 5,237,284.54 and interest thereon of US dollars 17,11,166.10 at the agree rate. The interest has been companyputed upto 10.8.1989 exclusive of 11.8.1989. xxx xxx xxx That in terms of the agreement of guarantee dated 3.2.1983 made by Indian Bank, defendant, the United States dollar is the currency of account and payment for each and every sum at any time due from the guarantor, defendant, Indian Bank. The defendant Indian Bank is obliged and bound to make available to the beneficiary plaintiff the payments under the guarantee, as agreed, in dollars in immediately available and freely transferable funds. The plaintiff prays for decree in US dollars. In the alternative if the Honble Court holds number to grant decree in US dollars, then it may be allowed in equivalent value in rupees. In the title of the plaint it was written as follows Suit for recovery of Rs. 8,79,86,380.27 equivalent of US Dollars 5236284.54 interest rupees 2,84,47,590.48 equivalent of dollars 17,11,166.10 and companyts. The plaintiff-appellant moved an application for amendment of the plaint under Order 6 Rule 17 read with Section 151 of CPC and Section 22 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993. Paragraphs 5, 6, 7 of the amendments are as under That the relief claimed in the suit has been mentioned, due to mistake or oversight in Indian Rupees equivalent of United States Dollars and likewise the amount interest claimed is also reflected in the same manner. That the applicant wishes to delete the equivalent part of the companyversion amount of US Dollars into Indian Rupees and wishes to retain the relief in US Dollars only, which is as per the companytract of guarantee issued by the Indian Bank itself. That in view of these facts and circumstances, wherever there is reference to the recoverable amount being Rs. 8,79,86,380.27 equivalent to USD 5,237,284.54 as the principal amount and Indian Rupees 2,87,47,590.48 equivalent to USD 17,11,166.10 as interest, the same may be read in US dollars only and the Indian Rupees companyponent may be allowed to be deleted so as to claim the relief in US Dollars only. Cause title was sought to be amended as follows Suit for recovery of USD 52,37,284.54 towards the principal amount and interest of USD 17,11,166.10 and companyts. Some other paragraphs were also sought to be added. So far as the prayer clause is companycerned, it is sought to be amended to the following effect The plaintiff prays for a decree against the defendants jointly and severally for US dollars 5,237,284.54 United States Dollars fifty two lacs thirty seven thousand two hundred eighty four and fifty two hundred eighty four and fifty four cents towards the principal amount. US Dollar 17,11,166.10 on account of interest at the companytractual rate i.e. 2 over the LIBOR rate, which is 9.45 per annum with quarterly rest, as on the date of filing of the suit Future interest from the date of suit till recovery at the rate of 2 over London Inter Bank Offered Rate Costs of the suit Further directions and orders that decretal amount may be paid to plaintiff in US Dollars Any other relief that this Honble Court may deem fit on the facts and circumstances of the case. The application of amendment was opposed. It was, however, allowed by the Debt Recovery Tribunal and the appeal preferred to the Debt Recovery Appellate Tribunal was dismissed. The respondent Indian Bank filed a writ petition challenging the order of the Debt Recovery Appellate Tribunal. M s. Indo-Europe Foods Ltd. was also impleaded as respondent No. 2 in the Writ Petition. The Delhi High Court allowed the writ petition and set aside the order passed by the Debt Recovery Tribunal and the Appellate Tribunal and rejected the application for amendment. The main objection which seems to have been pressed by the respondent before the High Court is that the plaintiff has to decide at the time of filing of the suit as to whether the claim is to be made in Indian currency or the foreign currency. Once the plaintiff choose to claim the amount in Indian currency there was numberoccasion to allow the plaintiff to change its option and claim decree in terms of dollars and for the said proposition reliance has been placed on a case 83, Forasol v. Oil and Natural Gas Commission. The other companytention was that the amendment is sought after a long lapse of time, namely, 9 years so the additional financial liability resulting as a companysequence of the amendment would be time barred. The High Court after referring to the decision in the case of Forasol supra , observed that in case plaintiff choose to claim relief in foreign currency, the formalities required for such relief should have been spelt out in the plaint, which has number been done in the present case, viz., it is number indicated that the prayer for decree in foreign currency is subject to permission of the companycerned authorities under Foreign Exchange Regulation Act, 1973 and further that in case numberpermission is granted or the amount is number paid in foreign currency the same be paid at the rate of exchange prevailing on the date of Judgment. An undertaking should also be given for making good the deficiency in the companyrt fee. In respect of Clause V of the prayer, the High Court observed that the place where the said clause has been inserted shows that the intention was to reconvert the amount from rupee to USD at the time of the payment of the said amount. The High Court also referred to paragraph 49 of the plaint, which indicates the amount in rupee for the purpose of payment of companyrt fee and jurisdiction. It is observed that it has number been stated that the claim has been companyverted into rupee for the purpose of companyrt fee and jurisdiction only. It is then observed that if amendment is allowed it will increase the amount of claim by rupee 22 crores namely, more than 3 times of the original claim which may cause injustice to the Indian Bank as otherwise the claim would be barred by limitation and in that companynection the High Court has referred to decisions reported in 83 2000 DLT 277, Mrs. Janet Anne Woolgar James and Ors. v. Jaypee Hotel Ltd. and 57, Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Ors. On the above reasoning writ petition was allowed and the prayer for amendment has been refused. The High Court observed that the order of the Debt Recovery Tribunal allowing the amendment was a number-speaking order and so far the Debt Recovery Appellate Tribunal is companycerned, it was mainly influenced by the averment made in paragraphs 42 and 46 of the plaint read with prayer v , according to which plaintiff had claimed that it was entitled to the decree in U.S. Dollars and prayed for decree in those terms. We feel, it would be appropriate to companysider the decision mainly relied upon by the High Court viz. in the case of Forasol supra . As a matter of fact, it does number pertain to amendment of the pleadings at all. A companytract was entered into between the French companypany Forasol and the ONGC according to which currency account and the payment was to be made in French Francs, except a part of it. The suit was decreed but the decree did number indicate the rate of companyversion. It was held that it companyld be as prevailing on the date of judgment or any date near about or any date when the amount became payable or the date of the filing of the suit. It was also found that in absence of permission under FERA or due to any other impossibility to pay in Francs, the money companyld be paid in Indian currency otherwise it might frustrate the decree itself. In companynection with the above companytroversy, it was observed that the Court must provide for such an eventuality. It is also observed that for the purpose of pecuniary jurisdiction of the Court, the plaintiff must in his plaint give the Rupee equivalent of the foreign currency claimed by him at the rate of exchange prevalent on the date of institution of the suit. It has also been observed that it would be companyvenient to set out the practice which ought to be followed in suits claiming relief in foreign currency e.g. it would be proper to make a prayer for such a decree subject to permission of companycerned authorities under the Foreign Exchange Regulation Act, 1973. The plaintiff is also supposed to give an undertaking in the plaint that he would make good the deficiency in the Court fee on account of difference in the rate of exchange. The plaintiff must clearly indicate that he would like the claim to be decreed in terms of foreign currency or Indian currency. The option should be exercised while filing the suit. We, however, fail to appreciate as to in what manner the practice set out and proposition laid in the case of Forasol supra would companye in the way of amendment of the plaint, prayed for. A suit, with a prayer for decree in foreign currency will number be liable to be dismissed for mere omission to make an averment that decree may be passed subject to permission of the FERA authorities or where it has number been indicated, while making an averment regarding valuation of the suit for companyrt fee and jurisdiction, as in the present case in Para 49 of the plaint, that it was for that purpose only. So far the averment regarding an undertaking that the plaintiff would make good the deficiency in the companyrt fee, in our view absence of such an averment would also number be fatal to the prayer made for the amendment since such a direction can always be given by the Court and on failure to pay the deficient companyrt fee, the decree would be companyfined to the extent the companyrt fee is paid. Otherwise also the learned companynsel for the appellant has drawn out attention to the Debt Recovery Tribunal Procedure Rules, 1987 where under Rule 7 maximum companyrt fee payable is Rs. 1.5 lacs. It is submitted that companyrt fee paid in this case is much more and the matter is number pending before the Debt Recovery Tribunal. We may number peruse the decision of this Court in the case of Pirgonda supra . The principle regarding the law of amendment has been laid in the last paragraph of the judgment but we may quote the following relevant passage which reads as under We think that the companyrect principles were enunciated by Bachelor J. in his judgment in the same case, viz., Kisandas Rupchands case 1900 ILR 33 Bom. 644 when he aid at pp 649-650 All amendments ought to be allowed which satisfy the two companyditions a of number working injustice to the other side, and b of being necessary for the purpose of determining the real questions in companytroversy between the parties but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendments should be refused only where the other party cannot be placed in the same position as if the placing had been originally companyrect, but the amendment would cause him an injury which companyld number be companypensated in companyts. It is merely a particular case of this general rule that where a plaintiff seeks to amendment by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused to allow it would be to cause the defendant an injury which companyld number be companypensated in companyts by depriving him of a good defence to the claim. The ultimate test therefore still remains the same can the amendment be allowed without injustice to the other side, or can it number? Bachelor J. made these observations in a case where the claim was for dissolution of partnership and accounts, the plaintiffs alleging that in pursuance of a partnership agreement they had delivered Rs. 4001 worth of cloth to the defendants. The Subordinate Judge found that the plaintiffs did deliver the cloth but came to the companyclusion that numberpartnership was created. At the appellate stage, the plaintiff abandoned the plea of partnership and prayed for leave to amend by adding a prayer for the recovery of Rs. 4001, At that date the claim for money was barred by limitation. It was held that the amendment was rightly allowed, as the claim was number a new claim. The same principles, we hold, should apply in the present case. The amendments do number really introduce a new case, and the application filed by the appellant himself showed that he was number taken by surprise number did he have to meet a new claim set up for the first time after the expiry of the period of limitation. Emphasis supplied Another decision which has been relied upon on behalf of the appellant is 89, Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar, wherein the suit was for specific performance of the companytract. No averments as per Section 16c of the Specific Relief Act to the effect that the plaintiff was ready and willing to fulfill its obligation under the companytract were made in the plaint. The issue relating to this question was to be tried as preliminary issue at which stage an application for amendment was made for adding the necessary averments companyplying with Section 16c of the Specific Relief Act. The application was opposed inter alia on the ground of limitation. The objections were rejected and the application for amendment was allowed and this Court observed that by the amendment indicated above numberfresh cause of action was sought to be introduced by the plaintiff and all that was ought to be done was to companyplete the cause of action for specific performance which relief had already been prayed for. Referring to the decision of Pirgonda supra it was observed that all amendments ought to be allowed which do number result in injustice to the other side and would be necessary for purposes of determining the real question in companytroversy. Yet another companysideration would be viz. where the other party cannot be placed in the same position, if the plea had been companyrectly taken originally, such an amendment would cause him an injury which companyld number be companypensated in companyts. It is also observed that where a fresh claim is sought to be set up by amendment which would be barred by limitation it may entail rejection of prayer for amendment. The companyrt also made reference to a decision in the case of L.J. Leach and Co. v. Jardine Skinner and Co. Ltd., 57 and quoted a passage from the said case as follows It is numberdoubt true that companyrts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does number affect the power of the companyrt to order it, if that is required in the interests of justice. Another decision referred to is 02, Sampat Kumar v. Ayyakannu and Anr. It has been observed in this case that mere delay in making the application for amendment may number be very relevant but the stage of the proceedings may be more relevant factor to be taken into account. The amendments at pre trial stage may ordinarily be permitted. It is also observed that where the basic structure of the suit remains unchanged and a cause of action sought to be introduced which arose during the pendency of the suit should be allowed to be introduced including the nature of the relief. On behalf of the appellant it has been submitted that while companysidering such questions like amendment of plaint etc. the plaint should be read as a whole and all averments made in different paragraphs and clause including relief clause should be taken into account rather than to companyfine to certain averments made here and there and in one, on the other paragraph, or the relief clause, leaving aside the rest. In this companynection a reference has been made to a decision of this companyrt 65, Nichhalbhai Vallabhai and Ors. v. Jaswantlal Zinabhai and Ors. Yet another decision on the point as relied upon by the appellant is 89, Corporation of the City of Bangalore v. M. Papaiah and Anr. The relief for permanent injunction was prayed for based on claim of tile over the property but numberdeclaration of title in the property was prayed number that for possession. The amendment sought in such circumstances was allowed observing that the plaint has to be read as a whole and the question of amendment should be companysidered in that light and number merely on the basis of the prayer clause. In this light the appellant submits that it is only appropriate that the averments made in the plaint in general may be read as a whole. It is submitted that the background in which the companytroversy arose, more particularly relating to claim in dollars would also be relevant for the purpose. In that companynection, as indicated earlier, the terms of the bank guarantee provide that US Dollar is the currency of account and payment in dollars for each and every sum at any time due from guarantor. The said bank guarantee was assigned in favour of the plaintiff appellant by Indo Europe. Notice of demand given by the plaintiff by letter 14.8.1996 also called upon the defendant No. 1 to pay the outstanding amount of USD 5,237,284.54. Again the demand was reiterated for payment in USD 5,237,284.54, the demand was repeated subsequently also for payment in dollars. Para 42 of the plaint quoted earlier clearly indicates that plaintiff is entitled to receive, recover and decree for USD 5,237,284.54. Again the appellant refer to para 46 of the plaint which has also been quoted earlier, praying for decree in USD in the alternative, if number so decreed in dollars, then it may be allowed in equivalent value in rupees. Prayers v seeks a direction that decretal amount be paid in US Dollars. In the background indicated above and the categorical averments made in the plaint including the prayer in Clause v , it has been submitted that in effect and for all purposes, decree in dollars has been prayed for, which fact is very much in the knowledge of the defendant. True, as we feel, in some paragraphs and in the caption of the cause title of the suit, rupee equivalent of USD has been indicated first and dollar later as well as in prayer No. i and ii but that would number mean that there is numberclaim and prayer for decree in terms of dollars at all. We find it to be so by reading the plaint as a whole. It can, however, be said that there is some vagueness in the plaintiffs case regarding the claim and decree in terms of dollar or rupee but there can always be an amendment of the pleading to clear such companyfusions and vagueness. In 63, Laxmidas Dahyabhai Kabarwala v. Nanabhai Chunilal Kabarwala and Ors., it has been held that amendment can be refused when the effect of it would be to take away from a party a legal right which had accrued to him by lapse of time. It may be so when fresh allegations are added or fresh reliefs are sought by way of amendment. But where the amendment merely clarifies an existing pleading and does number in substance add to or alter it, there is numbergood reason number to allow the same number even the bar of limitation would companye in the way. No fresh allegations of facts have been introduced or added number any fresh cause of action or new relief is sought to be added. A matter already companytained in the original pleading can always be clarified and such an amendment should ordinarily be allowed and in such a case the question of bar of limitation would number be attracted. The case in hand is number one in which something fresh or new is sought to be added. The claim in terms of dollars has been made in different paragraphs of the plaint as well as in Clause v of the prayer clause, numbernew relief is sought to be added, only rupee equivalent of the dollar, is sought to be deleted and a clear prayer for decree in dollars would, resultantly remain there, by deletion of rupee companyponent equivalent to the dollars. In our view, numberquestion of introducing any new case, a new cause of action or seeking new relief which may be barred by limitation arises. It is an amendment more clarificatory in nature. We would also like to observe that delay in moving the application would also number be material since proceedings are still number at the trial stage. The defendant is in number way taken by surprise by allowing the amendment. Such an averment is already there in the plaint at places more than one as well as in the relief clause. The defendant would number be called upon to answer any new case number would be caught by surprise. The position that emerges from the decisions referred to earlier is that an amendment would generally number be disallowed except where a time barred claim is sought to be introduced, there too it would be one of the factors for companysideration or where it changes the nature of the suit itself or it is malafide or the other party cannot be placed in the same position had the plaint been originally filed companyrectly, that is to say, the other side has lost right of a valid defence by subsequent amendment. We find that numbersuch element is present in the case in hand so as to disallow the amendment in the plaint. No undue advantage is sought to be taken as the claim in terms of dollars is mentioned in the plaint and the relief clause and the defendants are number to be taken by surprise. The amendment only clears the companyfusion, if any, as to the terms in which relief is sought. It does number revive a time bared and dead claim, number changes the nature of the suit. In the facts and circumstances, it cannot be said to be malafide either. We find that the grounds which have been indicated by the High Court in refusing the amendment that desired undertaking was number given in the plaint, that in case of deficiency in the companyrt it would be made good by the plaintiff or that decree in foreign currency may be passed subject to permission of the companycerned authorities under the FERA Act or such requirements as set out by way of practice in the case of Forasol supra . The effect of absence of such averments companyld very well be companysidered at the time of the trial and decision of the suit rather than at the time of companysidering the application for amendment. The appellant has given its explanation about such averments or absence thereof, but it is number necessary to companysider the merit of same and record a finding at this stage. it will be a matter for decision in the trial. The submission made on behalf of the respondent that at the time of filing of the suit the appellant had frozen its relief by companyverting the dollar int rupee and making a claim in terms of rupee is number tenable. There is numberoccasion of freezing the relief number the fact which weighed with the High companyrt and urged before us that there would be a huge difference of amount in terms of money if suit is decreed in dollars. The difference in amount being huge, would number be a legitimate ground to deny amendment of the plaint which otherwise, passes the test of all the companyditions under which numbermally amendment is to be allowed. Considering the totality of the averments made in the plaint under different paragraphs as well as Clause v of the relief clause, it cannot be doubted that, plaintiff intended and had asked for a decree in terms of dollars. The defendant was quite aware of the same and doubts, if any, by companyverting equivalent of dollars in rupees in some paragraphs of the plaint and Clauses i and ii of the prayer clause, would be dispelled by the amendment sought. The decree in terms of dollars was requested to be passed the same position is reiterated by addition and deletion of certain parts of averments of the relief clause numbernew claim has been made so numberquestion of freezing of any claim or any such claim having become barred by time arises. A reference has been made to a decision reported in , United India Insurance Co. Ltd. and Ors. v. Patricia Jean Mahajan and Ors., is of numberhelp to the respondent. Paragraph 40 of the judgment particularly referred to, only indicates that in that case prayer was for passing a decree in terms of rupee. There was numberclaim for relief in terms of dollars, the rate at which the dollar was companyverted that amount was decreed and it was also received by the claimants. There was numberprayer for amendment seeking relief in terms of dollars. In those circumstances it was found at the appellant stage that there was numberoccasion to apply the exchange rate, as prayed, on behalf of the respondent. In the case in hand the plaintiff has taken care to amend the plaint to clarify the relief had been prayed for originally as well.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1111 of 1965. Appeal by special leave from the judgment and order dated April 11, 1963 of the Punjab High Court, Circuit Bench at Delhi in Letters Patent Appeal No. 36-D of 1963. Sen and R. N. Sachthey, for the appellant. Frank Anthony, D. R. Sehgal and D. D. Sharma, for the respondent. The Judgment of the Court was delivered by Mitter, J. This is an appeal by special leave from a judgment and order dated April 11, 1963 of the Punjab High Court Circuit Bench at Delhi in a Letters Patent Appeal which summarily dismissed the appeal preferred by the appellant from a judgment and order in a Second Appeal upholding the decree in favour of the respondent passed by the Additional District Judge, Delhi. The questions canvassed in this appeal were whether the dismissal of the respondent from service in the police force was illegal on the ground that the officer entrusted with the departmental enquiry against the respondent was number a police officer secondly, whether the order of dismissal passed by Shri Jagannath was invalid because he was number a District Superinendent of Police and thirdly, whether the dismissal was void on account of numbercompliance with the provisions of Rule 16.38 of the Punjab Police Rules. In order to appreciate the points raised, it is necessary to state the following relevant facts. The respondent had been appointed a Sub-Inspector of Police by the Inspector-General of Police in Sind before the partition of India and was thereafter posted in Delhi by the Deputy Inspector-General of Police Delhi after his migration to India. In the year 1949 he was posted as Sub Inspector of Police in Police Station Daryaganj, Delhi. A departmental enquiry was launched against him on the charge of acceptance of bribe in companynection with a criminal case in the same year. The officer entrusted with the enquiry was one Diwanchand Dhatia who was employed up to April 1949 as a Deputy Superintendent of Police in the City of Delhi. He retired from service in that month but was re-employed from the date of retirement as a Deputy Superintendent of Police Enforcement Department . The enquiry against the respondent had taken place after the retirement of the said Diwanchand but during the -period of his reemployment. The respondent was found guilty of the charge and was dismissed from service by the order dated December 8, 1949 , passed by one Jagannath, a Superintendent of Police in the Delhi Police Force. The appellant filed a suit challenging his dismissal on the grounds already mentioned in the companyrt of the Subordinate Judge Delhi on January 12, 1954. The defendant-Union of India filed its written statement disputing the companytentions of the plaintiff. The Subordinate Judge framed several issues -the principal ones relate to the companypetency of Jagannath to pass the order of dismissal and of Diwanchand Bhatia to companyduct the enquiry against the plaintiff. Finding in favour of the plaintiff on both the issues, he decreed the suit. This decree was upheld in appeal by the Additional District Judge, Delhi and in Second Appeal by a single Judge of the Punjab High Court who modified the decree by an alteration in the figure of the salary claimed by the plaintiff but upholding his claim on the main issues. The Letters Patent Appeal, as already stated, was dismissed summarily. The first companytention on behalf of the appellant was that Jagannath who was functioning as a Superintendent of Police but number designated as a District Superintendent of Police was quite companypetent to pass the order of dismissal against the respondent. Under s. 4 of the Police Act V of 1861, an Act for the regulation of Police, The administration of the police throughout a general police-district shall be vested in an officer to be styled the Inspector-General of Police, and in such Deputy Inspectors-General and Assistant InspectorsGeneral as to the State Government shall deem fit. The administration of the police throughout the local jurisdiction of the Magistrate of the district shall, under the general companytrol and direction of such Magistrate, be vested in a District Superintendent and such Assistant District Superintendent as the State Govern. ment shall companysider necessary. Section 3 reads The superintendence of the Police throughout a general police district shall vest in and shall be exercised by the State Government to which such district is subordinate and except as authorised under the provisions of this Act, numberperson, officer or Court shall be empowered by the State Government to supersede or companytrol any police functionary Section 7 provides for the appointment, dismissal etc., of inferior officers. The relevant portion thereof reads Subject to the provisions of article 3 1 1 of the Constitution, and to such rules as the State Government may from time to time make under this Act, the InspectorGeneral, Deputy Inspectors-General, Assistant lnspectors- General and District Superintendents of Police may at any time dismiss, suspend or reduce any police -officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same The difference between the texts of the sections, after the companying into force of the Constitution and that before January 1950 is immaterial for our purpose. The interpretation clause is section 1 under which a police shall include all persons who shall be enrolled under this Act b the words general police-district shall embrace any presidency State or place, or any part of any presidency State or place, in which this Act shall be ordered to take effect c District Superintendent and District Superintendent of Police shall include any Assistant District Superintendent or other person appointed by general or special order of the State Government to perform all or any of the duties of a District Superintendent of Police under this Act in any district and Magistrate of the district shall mean the chief officer charged with the executive administration of a district and exercising the powers of a Magistrate, bywhatever designation the Chief officer charged with such executive administration is styled. Under s. 2 of the Act the entire police establishment under a State Government shall, for the purposes of this Act, be deemed to be one police-force, and shall be formally enrolled and shall companysist of such number of officers and men, and shall be companystituted in such manner as shall from time to time be ordered by the State Government. It is to be numbered that the words Superintendent of Police do number occur anywhere in the Act. In the Act this expression is always prefixed by the words District or Assistant District. Under Rule 11 of the Punjab Police Rules, 1934 framed under the Police Act, the Punjab was divided into general police districts, viz., the Provincial Police District and Railway Police district and all ranks of police employed in the province were appointed or enrolled under s. 2 of the Act. Rule 12 shows that the responsibility for the companymand of the police force, its recruitment, discipline, internal economy and administration throughout the general police districts vested in the Inspector-General of Police who was to be assisted in the companytrol and administration of the police force by such number of Deputy Inspectors-General and Assistant Inspectors-General as the Provincial Government might from time to time appoint. Rule 14 gave the administrative division of the police force. Rule 16 gives the functions of the Deputy Inspectors-General of Police and lays down that in the exercise of such responsibility they were to interfere as little as possible with the executive authority of the Superintendents under them. Under R. 13. The Superintendent of Police is the executive head of the district police force. He is directly responsible for the matters relating to its internal economy, training and management, and for the maintenance of its discipline and the efficient performance of all its duties. In every district there shall be one or more Superintendents and such number of Assistant Superintendents, Deputy Superintendents, inspectors, sergeants, sub-inspectors, assistant sub-inspectors, head companystables and companystables as the Provincial Government may direct. The important thing to numbere in this companynection is that the expression District Superintendent of Police is number used in the rules and the last mentioned rule shows that it was possible to have more than one Superintendent of Police in a district. Chapter XII of the Rules deals with appointments and enrolments in the police force. Rule 12.1 companytains -a table summarising the directions given by the Provincial Government under cl. b of sub-s. 1 of s. 241 of the Government of India Act, 1935 in regard to the authorities companypetent to make appointments to the number-gazetted ranks. In respect of sub-inspectors the authority to whom the power of appointment is delegated is Superintendents of Police and Deputy Superintendent Administrative , Government Railway Police and Assistant Superintendent, Government Railway Police. This authority is given full powers subject to rules governing the companyditions of service as defined in the Police Rules. Chapter XVI deals with punishments and sub-r. 1 of R.16.1 of this Chapter lays down that numberpolice officer shall be departmentally punished otherwise than as provided in these rules. Subr. 2 of R.16.1 gives a table showing the departmental punishments which can be inflicted and the authorities companypetent to inflict the same. The table shows that the order of dismissal of a Sub Inspector can be passed by a Superintendent of Police and Deputy superintendent Administrative , Government Railway Police. The question therefore arises whether the words Superintendent of Police in the Rules and the words District Superintendent of Police in the Act refer to one and the same authority, or whether there is any distinction or difference between the two. In our opinion, there is numbere. Section 4 of the Police Act shows that the administration of police throughout the local jurisdiction of the Magistrate of the. district under the general companytrol and direction of such Magistrate -is to be vested in a District Superintendent. It is companymon knowledge that the police force expanded very companysiderably in between the year 1861 when the Act was passed and the year 1934 when the Rules were framed and a Magisterial district was divided into smaller areas for the purpose of better enforcement of law and order and a Superintendent of Police was placed in charge of each such area. This finds support from the testimony of Abdul Rehman, D.W. 1, Superintendent of Police, C.I.D. Lucknow. He said that he was posted as Superintendent of Police at the headquarters at Delhi in 1950. According to him, the District Magistrate was in charge of the entire Delhi area including New Delhi, Old Delhi and rural areas. Further, the police officer in charge of the entire area was the Inspector-General of Police and there were two Superintendents of Police, one for Delhi City and the other for New Delhi. Shri Jagannath was the Superintendent of Police, City and all the police stations of the city were under his charge. It is numberodys case that a Superintendent of Police is an authority inferior to that of a District Superintendent of Police, each Magisterial district having in many cases more than one Superintendent of Police. There is thus numberincongruity between the Act and the Rules which have to be read together and as Jagannath, Superintendent of Police, was undoubtedly the Superintendent of Police, City of Delhi with jurisdiction over the police station Faiz Bazar where the plaintiff was posted, he was companypetent to pass the order of dismissal on him. On the question of the companypetence of Diwanchand Bhatia, the relevant rule is R. 16-24 in chapter XVI of the Punjab Police Rules which lays down the procedure to be followed in departmental enquiries. Sub-r. 1 of R.16.24 1 provides that The police officer accused of misconduct shall be brought before an officer empowered to punish him, or such superior officer as the Superintendent may direct to companyduct the enquiry. On behalf of the appellant it was companytended before us that all that this rule requires was that the officer companyducting the enquiry must be superior in status to the person against whom charges had been levelled and there can be numberdoubt that Deputy Superintendent of Police was an officer superior to a Sub Inspector of Police. According to companynsel it was really number necessary to companysider whether he was also a police officer but on the facts of this case there can be numberdoubt that Diwanchand Bhatia was a police officer. Ex. D-5 is a certificate to the effect that Diwanchand Bhatia had on the forenoon of 28th April 1949 received charge of the office of the Deputy Superintendent of Police, Enforcement, Delhi with the designation Officiating Deputy Superintendent of Police. Ex. D-4, the order of the Inspector-General of Police, Delhi dated June 6, 1949 shows that Diwanchand Bhatia was posted to city vice Malik Bodh Raj, Deputy Superintendent of Police, who will take over charge as Deputy Superintendent of Police, Enforcement. There is also the oral testimony of Diwanchand Bhatia to the effect that he had taken over charge as shown in those documents and that he had companyducted the enquiry against the respondent. It was sought to be argued before us by companynsel for the respondent that Diwanchand Bhatia, when he companyducted the enquiry had already retired from the post of police officer and he was only re-employed in the Enforcement Department and this would number make him a police officer. We see numberforce in this companytention as the Enforcement Department was still a police department and a Deputy Superintendent of Police Enforcement was still a Deputy Superintendent of Police. The word enforcement merely specifies the department to which he was attached and the order Ex. D-4 shows that he was to take over charge from Malik Bodh Raj who in turn was another Deputy Superintendent of Police. The third point canvassed before us does number seem to have engaged the attention of the companyrts hearing the matter although it was raised in the plaint. It was the plaintiffs case in paragraph -A of the amended plaint that the departmental enquiry companyld have been started after the taking of certain essential preliminary steps and that it was necessary for thepolice first to give immediate information to the District Magistrate of the alleged companymission of a crime by the plaintiff and it was for -that officer to decide whether the enquiry was to be companyducted by a police officer or by a selected Magistrate First Class and that in his case the departmental enquiry had been started without following the above procedure. Although the plaint does number mention the rule in the Punjab Police Rules referred to by the ,plaintiff in paragraph 6-A there can be numberdoubt that the reference was to R.16.38 of Chapter XVI, sub-rr. 1 and 2 whereof run as follows Immediate information shall be given to the District Magistrate of -any companyplaint received by the SupeL12Sup.CI/69-12 rintendent of Police, which indicates the companymission by a police officer of a criminal offence in companynection--With his official relations with the public. The District Magistrate will decide whether the investigation of the companyplaint shall be companyducted by a police officer, or made over to a selected magistrate having First Class powers. When investigation of such a companyplaint establishes a prima facie case a judicial prosecution shall numbermally follow the matter shall be disposed of departmentally only if the District Magistrate so orders for reasons to be recorded. When it is decided to proceed departmentally the procedure prescribed in rule 16.24 shall be followed. An officer found guilty on a charge of the nature referred to in this -rule shall ordinarily be dismissed. 3 to 6 It was the companytention of the respondent that there was numberevidence to show companyplaince with the above rule. -It was companytended that the evidence on record was number sufficient for the purpose. Diwanchand Bhatia stated in his evidence in chief that he had received an application for making an enquiry against the plaintiff from Jagannath, Superintendent of Police -and that after making a preliminary enquiry when he found a prima facie case against the plaintiff he sent the same to the District Magistrate for approval. Thereupon the District Magistrate wrote that a departmental enquiry be made against the plaintiff and it was only following the direction of the District Magistrate that the enquiry was made. The Superintendent of Police, Jagannath, stated in his evidence in chief that he companyld number say whether the sanction of the District Magistrate had been obtained for the enquiry by Diwanchand Bhatia. Mr. Anthony who argued on behalf of the respondent drew our attention to a judgment of this Court in The State of Uttar Pradesh and others v. Babu Ram 1 where it was observed that the Police Act and the Rules made thereunder companystituted a selfcontained Code providing for the appointment of police officers and prescribing the procedure for their removal. According to him numberdeparture from the rules was possible and in order to justify a dismissal strict companypliance of the rules was mandatory. Observations to a similar effect were also quoted from the judgment of this Court in Delhi Administration v. Chanan Shah 2 There what was said was It is number necessary to decide whether the provisions of Rule 16.38 of the Punjab Police Rules are 1 1961 2 S.C.R.679. 2 1969 3 S.C.R. 653 mandatory or directory. Even assuming that the rule is directory, we find that there has been numbersubstantial companypliance with its provisions. We do number think that the same can be said of the facts of this case. We see numberreason to disbelieve the testimony of Diwanchand Bhatia. The learned trial Judge did number frame an issue on this point and Abdul Rehman, the Superintendent of Police, C.I.D. who gave evidence in this case stated that the file relating to the departmental enquiry against the plaintiff had been destroyed under Police Rule 12.35 by his order. He also referred to the document Ex. D-2 which is an extract regarding the destruction of Fauji Missals. The order seems to have been passed on 15th January 1953 long before the institution of the plaintiffs suit. In the circumstances, we see numberreason number toaccept the evidence of Diwanchand Bhatia according to which R.16.38 of Chapter XVI had been companyplied with. In the result, the appeal is allowed, the judgment and order of the companyrts below set aside and the suit filed by the respondent dismissed. As the special leave was given 1 in this case on companydition that the appellant will in any event pay the companyts of the respondent, we make numberorder as to companyts of this appeal and do number think it necessary to disturb the previous order for companyts.
P. Kurdukar, J. The appellant accused after obtaining special leave has filed this Criminal Appeal Challenging the legality and companyrectness of the judgement and order dated December, 1996 passed by the appellant for the offences punishable under Section 302 and 201 Indian Penal Code has been companyfirmed. The prosecution case as disclosed during the trial is as under - Noorbhai since deceased was working as a Watchman with Allana Mill at Veraval. This mill was closed down some ten years back prior to 1988 and Noorbhai was to look after the property and machinery that was lying at Allana Mill. He was residing inside the companypound of Allana Mill. According to the prosecution, Noorbhai on 12.2.88 was on duty from 9.00 A.M. to 12 Noon and from 4.00 P.M. to 7.00 M. Usually, Noorbhai used to return from his work at about 7.00 P.M. Since he did number return, Mohd. Hussain W.2 went in search of him and after making enquiries he learnt that Noorbhai had left the mill premises at about 7.00 P.M. Till late in the evening the whereabouts of Noorbhai were number known number he returned on the following day. Mohd.Hussain P.W.2 , therefore, started making further enquiries with his relatives but he companyld number get any useful information. Haji Noorbhai P.W.3 who happen to be another son of Noorbhai then went to Junagarh and Rajkot in search of his father but he companyld number get any useful information. Haji Noorbahai P.W.3 who happen to be another son of Noorbhai then went to Junagarh and Rajkot in search of his father but he was number found there. For nearly three days the family members of Noorbhai companyld number get any information about the whereabouts of Noorbhai. On 15.2.88 it was learnt that a dead body was floating in the pond situated near the Allana Mill companypound on the back side. The sons of Noorbhai then went to the pond and it was found that the dead body was of Noorbahai. Immediately a message was sent to Veraval Police Station and the police party arrived at the scene. The dead body of Noorbhai was taken out of the Pond with the held of fire brigade. The inquest Panchnama was then carried out wherein several injuries on the person of Noorbhai were recorded. An iron strip was also found to have been inserted in the mouth. The dead body was then sent to the hospital at Veraval. Dr. Jairajbhai P.W.1 held the autoosy on 16.2.1988 at about 10.30. A.M. and numbered as many as six injuries. Dr. Jairajbhai P.W.1 opined that the cause of death was haemorrhage shock due to major vessels injury over the front of the neck. Injury No.1 was sufficient in the ordinary companyrse of nature to cause death. During investigation it was suspected that the appellant who was also working as a Watchman in the mill would know something about the incident. During inerrogation he made a statement which led to the discovery of certain incriminating article. On 16th February, 1988 Deva Rama P.W.4 during investigation stated that the appellant on 12.2.88 had companyfessed before him at about 7.30 p.m. that he had companymitted the murder of Noorbhai and requested him to help him in this behalf. The prosecution sought to rely upon this extra judicial companyfession alleged to have been made by the appellant to Deva Rama P.W.4 . The Investigating Officer, thereafter, arrested the appellant and during interrogation he made a statement which led to the discovery of certain clothes of the deceased and hoe which were buried near the pond. These articles were seized under various Panchnamas. The clothes of the deceased and other articles were sent to Chemical Analyzer for examination. After companypleting the investigation, the appellant was put up for trial for offences punishable under Section 302 and 201 Indian Penal Code and under Section 135 of Bombay Police Act. The appellant denied the charge and claimed to be tried. According to him, he is innocent and has been falsely implicated in the present crime. At the outset it may be stated that it is a case of circumstantial evidence and the companyrts below relied upon only two circumstances which according to them were proved by the prosecution and both these circumstances are pointer to the guilt of the accused. The two circumstances relied upon by the companyrts below were - 1 extra judicial companyfession made by the appellant to Deva Rama P.W.4 and 2 recovery of certain incriminating articles at the instance of the appellant pursuant to the statement made by him under Section 27 of the Evidence Act. The prosecution examined as many as 15 witnesses at the trial of whom Deva Ram P.W.4 , Ramesh Bhojabhai PW.9 and Jagmal Arjan P.W.12 are the material witnesses to prove the above two circumstances. Rest of the evidence is companysisted of the witnesses including two sons of Noorbhai, inquest Panch witness, Medical Officer Dr. Jairajbhai Patel P.W.1 and the Investigating Officer Manmchan Tarachand P.W.15 .
Jayachandra Reddy, J. The two appellants herein original accused Nos. 1 and 4 were tried alongwith 19 others for offences punishable under Sections 143, 149, 302, 342, 201, 218, 119 and 114 I.P.C. The trial companyrt acquitted the 19 others and companyvicted the two appellants under Section 304 Part II I.P.C. and sentenced each of them to undergo R.I. for five years. They were acquitted for all the other charges. They preferred an appeal. The State also preferred an appeal against the acquittal of three of the other accused. The High Court dismissed both the appeals. Hence the present appeal. The prosecution case is that at the relevant time accused Nos. 1 to 3, 7 to 9 and 11 to 21 were police companystables attached to the Fort Police Station, Trivendrum. A-10 was a Sub Inspector attached to that Station and A-4 was a police companystable in the Central Crime Station, Trivendrum. A-6 was a companystable attached to Armed Reserve Camp. On 18.12.80 at about 2 P.M. A-6 went to the shop of Rajappan Nair, C.W.8 to purchase plantains. A wordy quarrel took place between A-6 and Rajappan Nair over the manner in which the price of the fruits was paid. Hearing the quarrel, Bhuvanendran, the deceased in the case, came to the scene and dragged A-6 by his companylar out of the premises. A-6 left the place threateningly. He went to the Fort Police Station and companyplained of the incident to A-5, the Head Constable. A-S deputed accused Nos. 1,7,8 and 9 to bring the culprit to the Police Station. They accordingly brought deceased as the offender and also P.Ws 5 and 6 as the persons present at the scene at about 2.30 P.M. On reaching the Police Station, A-l and A-2 slapped Bhuvanendran, the deceased and A-l hit the deceased on his flanks with his hand. Then A-l dashed his head against the wall of 3 or 4 times causing injuries on the right side of the head. A-3 then hit the deceased on his back just below the neck with his bent elbow. A-l made the deceased fall down by kicking him on his legs. Then A-4 kicked the deceased on his back 3 or 4 times. A-l also kicked the deceased on his back. When the deceased attempted to rise up, A-l pushed him and again kicked him on his chest. As a result of the injuries inflicted, the victims companydition became very serious. Dr. K.M.K. Nair, P.W.12 was summoned to the Police Station and he found the victim unconscious and his pulse very weak. The deceased was removed to the hospital at about 5 P.M. and he was examined by P.W.I, Dr. K. Sudhakaran there but the deceased died at about 6 P.M. The inquest was held and the dead body was sent for post-mortem. P.W.19, who companyducted the post-mortem, found companytusions all over the body of the deceased and on internal examination he found that Panchreas, liver and duodenum were bruised. The Doctor opined that the death was the result of blunt injuries to the heart, lungs and brain of the deceased. An intimation was sent to the police and a case was registered and P.W.31, the Detective Inspector took up the investigation and companypleted the same and laid the charge-sheet. The prosecution examined P.Ws 1 to 31 and the accused when questioned totally denied the offence. The learned trial Judge relying upon the evidence of P.Ws. 5 and 6 held that the prosecution has proved its case only against A-l and A-4 beyond all reasonable doubt and having regard to the nature of the attack, companyvicted them under Section 304 Part II I.P.C. and acquitted others as they were number identified by P.W.5. Learned companynsel appearing for the appellants submitted that the evidence of P.Ws. 5 and 6 is artificial and that P.W.5 did number know the names of the accused and numbertest identification parade was held in respect of either of the appellants and the accused must have been shown to the witnesses and therefore his identification in the companyrt is of numberconsequence. Learned companynsel also submitted that the medical evidence does number support the prosecution case since the kicks and slapping given by the accused companyld number have resulted in the internal damage. The case mainly rests on the evidence of P.Ws. 5 and 6 which has been accepted by both the companyrts below. P.W.5 deposed that he was owning a pan shop and used to sell ice also. At the time of occurrence he was standing near his brothers shop which was opposite to the shop of Rajappan Nair and he heard numberse and he deposed that A-6 who was identified in the companyrt, was quarrelling with the deceased. He further deposed that after some time some of the police people came and took the deceased, himself and also P.W. 6 to the Fort Police Station. He and P.W.6 were made to stand inside the screen and he saw the deceased being beaten and kicked by the police companystables. He identified A-l and A-4 as the persons who gave kicks and who hit the head of the deceased against the wall etc. He companyld number identify the other accused. This witness was cross-examined at length. From his evidence it can be seen that he identified only these two appellants having beaten the deceased. Much of the cross-examination is about some minor details as to how the quarrel started etc. Some of the omissions pointed out are also number very material. The evidence of P.W. 6 is also to the same effect. He also deposed that he and P.W. 5 were taken to the Police Station alongwith the deceased and he witnessed the beating. P.W.6, however, did number identify any of the accused but his evidence clearly shows that he and P.W.5 were taken to the Police Station and both of them witnessed the beating. To that extent his evidence companyroborates the evidence of P.W.5. The general criticism against the evidence of P.W.5 is that numbertest identification parade was held and there was every possibility of the appellants-accused being shown to the witnesses. We do number find any such suggestion. So far as the medical evidence is companycerned, the Doctor who companyducted the post-mortem has clearly stated that the injuries found on the deceased companyld be caused by the head companying into companytact forcefully against hard surface or by using blunt force cither by fisting or kicking. The Doctor also stated that injury No. 4 companyld be caused by hitting with a bent elbow. The description of the beating as given by P.W.5 also shows that the deceased was beaten with hands and legs and his head was dashed against the wall.
Leave granted. Appellant is before us aggrieved by and dissatisfied with a judgment and order dated 20.9.2007 passed by a learned Single Judge of the High Court of Uttarakhand in Criminal Miscellaneous Application No. 685/2007 whereby and whereunder the application filed by him under Section 482 of the Code of Criminal Procedure, questioning the legality or validity of the order dated 5.7.2000 passed by learned 1st Additional Civil Judge, Roorkee, was dismissed. Appellant was elected as Gram Pradhan of Village Salempur in the year 1989 and remained on the said post till 1995. Indisputably, 95 persons, most of whom belonged to the Scheduled Caste, had been occupying the land of the Gram Panchayat. In or around March 1993, the appellant purported to have granted settlement of the lands occupied by them, after taking Rs. 10,000 from each of the allottees. He, however, in the meanwhile had initiated a proceeding for their eviction and they were evicted from the lands occupied by them. The successor in office of the appellant, through the said persons made a companyplaint to the Governor alleging that the appellant had taken money from them in March 1993 for allotting them the land and in stead of allowing them to companytinue to occupy the land allotted to them, he got them evicted. The Nayab Tehsildar, Roorkee was asked to make an inquiry into the said allegations by the Sub Divisional Magistrate in terms of his letter dated 31st August, 1996. The inquiry report was submitted on 11.9.1996 and pursuant thereto or in furtherance thereof, a first information report was lodged by the Naiab Tehsildar, Roorkee on 4.12.1996. A charge sheet was filed by the Investigating Officer. By an order dated 15.7.1998 companynizance was taken by the learned Magistrate under Section 406 of the Indian Penal Code. Appellant herein filed an application for recall of the said order, inter alia on the premise that the said order was barred by limitation. The said application was rejected by order dated 5.7.2000. As numbericed hereinbefore, the said order has been affirmed by the High Court by reason of the impugned judgment. Mr. Tiwari, learned companynsel for the appellant would submit that keeping in view the provisions companytained in Section 468 of the Code of Criminal Procedure Cr.P.C. vis-a-vis the period which was required to be excluded in terms thereof, namely, the period between 30th August, 1996 and 11th September, 1996 i.e. a period of 11 days, the learned Magistrate must be held to have companymitted a serious error in opining that the order taking companynizance was barred by limitation. Reliance in this behalf has been placed on Japani Sahoo vs. Chandra Shekhar Mohanty, 2007 7 SCC 394. Mr. Bhatia, learned companynsel for the respondents, on the other hand, would submit that keeping in view the fact that the appellant companytinued to hold the office of Gram Pradhan till 1995 and the aforementioned 65 persons having made companyplaints before the new Gram Pradhan, an inquiry was companyducted by the Naib Tehsildar, Roorkee, and the same having found to be true, the first information report was lodged and in that view of the matter the order taking companynizance must be held to have been made with reference to the provisions of Section 469 1 b of Cr.P.C. It was number the case of the first informant, namely, the respondent No.2 herein, that he was aware of the alleged companymission of offence by the appellant in March 1993. He came to know thereabout when the persons companycerned, keeping in view the change in the office of Gram Pradhan, made a companyplaint to the Governor of the State, with a companyy forwarded to the Sub Divisional Magistrate. It has been numbericed by us heretobefore that an inquiry was directed to be companyducted immediately upon receipt of the said companyplaint by the Sub Divisional Magistrate and the Naib Tehsildar, Roorkee to whom the inquiry was entrusted, also companypleted the same within the period of 11 days. Indisputably, within a few days thereafter, a first information report was lodged. In that view of the matter, we are of the opinion that it is number a case where we should interfere with the impugned judgment at this stage. Section 468 and Section 469 1 b of Cr.P.C. read as under Bar to taking companynizance after lapse of the period of limitation.- Except as otherwise provided elsewhere in this Code, numberCourt, shall take companynizance of an offence of the category specified in subsection 2 , after the expiry of the period of limitation. The period of limitation shall be- a six months, if the offence is punishable with fine only b one year, if the offence is punishable with imprisonment for a term number exceeding one year c three years, if the offence is punishable with imprisonment for a term exceeding one year but number exceeding three years. For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment. Commencement of the period of limitation.- 1 The period of limitation, in relation to an offence, shall companymence,- a on the date of the offence or b where the companymission of the offence was number known to the person aggrieved by the offence or to any police officer, the first day on which such offence companyes to the knowledge of such person or to any police officer, whichever is earlier or There cannot be any doubt whatsoever that the aforementioned provisions were inserted in the Code with a view to see to it that a criminal prosecution is launched and punishment inflicted before the offence is wiped off from the memory of the person companycerned. It is number necessary for us to go into the underlying objects for insertion of the said provisions as the same has been recently been numbericed by a Division Bench of this Court in Japani Sahoo supra . There cannot, however, be any doubt whatsoever that the companycept of fairness both in initiation of prosecution as also in trial must be protected and preserved so as to uphold the fundamental and human rights of the accused as enshrined in Article 21 of the Constitution of India. But it does number mean that the Court shall shut its eyes over the actual state of affairs, namely, that although the persons companycerned came to know about the companymission of the offence on a later date, a person guilty thereof shall be allowed to go unpunished, having regard to the companyflicting interests viz. the interest of the accused persons, on the one hand, and the society and the victim on the other. Whereas the Parliament, on the one hand, created a right in favour of the accused, the same stands curtailed by enacting Sections 469 and 470 of the Cr.P.C. Thus each case with regard to application of the provision providing limitation, as envisaged under Section 468 of the Cr.P.C., must be decided on its own facts. We may profitably numberice a decision of this Court in Bharat Damodar Kale and Anr. vs. State of A.P., 2003 8 SCC 559 wherein it was opined It is primarily based on the above language of the heading of the Chapter, the argument is addressed on behalf of the appellants that the limitation prescribed by the said Chapter applies to taking of companynizance and number filing of companyplaint or initiation of the prosecution. We cannot accept such argument because a cumulative reading of various provisions of the said Chapter clearly indicates that the limitation prescribed therein is only for the filing of the companyplaint or initiation of the prosecution and number for taking companynizance. It of companyrse prohibits the companyrt from taking companynizance of an offence where the companyplaint is filed before the companyrt after the expiry of the period mentioned in the said Chapter. This is clear from Section 469 of the Code found in the said Chapter which specifically says that the period of limitation in relation to an offence shall companymence either from the date of the offence or from the date when the ofence is detected. Section 470 indicates that while companyputing he period of limitation, time taken during which the case was being diligently prosecuted in another companyrt or in appeal or in revision against the offender should be excluded. The said section also provides in the Explanation that in companyputing the time required for obtaining the companysent or sanction of the Government or any other authority should be excluded. Similarly, the period during which the Court was closed will also have to be excluded. All these provisions indicate that the companyrt taking companynizance can take companynizance of an offence the companyplaint of which is filed before it within the period of limitation prescribed and if need be after excluding such time which is legally excludable. This in our opinion clearly indicates that the limitation prescribed is number for taking companynizance within the period of limitation, but for taking companynizance of an offence in regard to which a companyplaint is filed or prosecution is initiated beyond the period of limitation prescribed under the Code. Apart from the statutory indication of this view of ours, we find support for this view form the fact that taking of companynizance is an act of the companyrt over which the prosecuting agency or the companyplainant has numbercontrol. In the circumstances, therefore, an order taking companynizance, whether barred by limitation or number would depend upon various factors. We have been taken through the order dated 5.7.2000, passed by learned 1st Additional Civil Judge, Roorkee, from a perusal whereof it appears that therein companynizance of the provisions of Section 469 of the Cr.P.C. was taken by the learned Judge to companyclude In my opinion exclusion of the period for investigation from calculating the limitation period is justified because it is number necessary in each case that limitation period starts from the date of offence. Learned Assistant Public Prosecutor on behalf of State has agreed that various cases is also made out under different sections in the present matters on which limitation period does number apply. I do number find it appropriate to discuss on the events of the matter because it will be justified to hear it at the time of framing of charges. After companysidering the aforesaid facts and circumstances and keeping in view the relevant facts on record, I companye to the companyclusion that in calculating the period of limitation in the instant case it would be justified that the time taken by the Tehsildar for investigation be excluded and in the present case the limitation period will be calculated number from the date of incident but from the date of companypletion of investigation. And therefore I find numberforce in the application of the applicant and his application is liable to be dismissed. Accordingly order is being passed.
Arising out of SLP C No.2023 of 2006 P. MATHUR, J. Leave granted. This appeal, by special leave, has been preferred against the judgment and order dated 10.8.2005 of High Court of Kerala, by which the writ petition filed by the appellants challenging the order dated 17.9.1999 of the Central Administrative Tribunal, Ernakulam Bench, was disposed of with a direction that if Shri George Philip, respondent in the present appeal, reports for duty within a period of six months, he shall be reinstated in service but will number be entitled to any back wages and thereby order of the Tribunal which had awarded full back wages was modified. Before dealing with the issue raised, it is necessary to mention the essential facts. The respondent herein, Shri George Philip, was working as Scientific Officer in Plasma Physics Division, Bhabha Atomic Research Centre, Trombay, Mumbai for short BARC . He applied for and was granted Commonwealth Scholarship by the Ministry of Education for advance research training in Plasma Physics. He moved an application in the prescribed proforma seeking permission of the Central Government for being given leave for two years for the said purpose. The application form companytained several companyumns and in the companyumn duration and purpose of visit it was mentioned about two years for advance research training in Plasma Physics and again in the companyumn meant for aims and objects, the same thing was repeated viz. advance research training in Plasma Physics. The department of Atomic Energy, Government of India, vide order dated 8.2.1982 granted permission to the respondent to accept the Commonwealth Scholarship for a period of two years and he was granted extraordinary leave for the said period, subject to the companyditions laid down in the Ministry of Finance O.M. No.11 1 - E B /67 dated June 25, 1970. The order has some bearing and, therefore, it is being reproduced below - Government of India Department of Atomic Energy S.M. Marg Bombay -400 039 Sub Commonwealth Scholarship offered by the Govt. of Canada - Shri George Philips SO C , Plasma Physics Section. Reference is invited to BARC ID Note No.9/20/TSC/80/4922 dated 7.12.1981 on the above subject. The proposal to permit Shri George Philips, SO SC , BARC to accept the Commonwealth Scholarship awarded by the Ministry of Education for a period of 2 years is approved in the Department. He will be granted extraordinary leave for the said period subject to the companyditions laid down in the Ministry of Finance O.M. No.11 1 -E B /67 dated June 25, 1970 as amended from time to time. Sd - P.B. Desai Director Secretary, TC TSC, BARC, Bombay 400 085 DAE ID No.36/1/81-BARC Vol. II dated February 4, 1982 Government of India Bhabha Atomic Research Centre TC TSC Ref 9/20/TSC/80/540 February 8, 1982 Copy forwarded to Head, Plasma Physics Section Leave order granting EOL for two years may be issued under intimation to this section subject to the companydition that Shri George Philips should number register for Ph.D. degree and that numberextension of leave beyond two years will be granted. An undertaking to this effect may please be obtained from Shri George Philips and forwarded to this section for record. A service bond for Rs.10,000/- in the enclosed form may also please be obtained in triplicate and forwarded to this section. 2. 3. 4. Shri George Philips, SO SC Plasma Physics Section. Sd - 8.2.82 Sethuraman Secretary, TC TSC In accordance with the order issued by the Government of India, the respondent gave an undertaking on 9.2.1982, which reads as under - UNDERTAKING Consequent to the acceptance of the scholarship awarded by the Ministry of Education Department of Education for training in Canada and the grant of extra ordinary leave for a period of two years, this undertaking is given that I am number registering for a Ph.D. degree and will number request extension beyond the leave granted during the training abroad. Signature Sd - Name George Philip Designation SO SC Comp. Code G602/114 Dated 9.2.82 Trombay, Bombay. Thereafter, the respondent proceeded on leave with effect from 24.8.1982 and the leave was to expire on 23.8.1984. The Bhabha Atomic Research Centre of Government of India issued a leave order on 6.9.1982, which specifically mentioned that the grant of leave to the respondent is subject to the companyditions laid down in the Ministry of Finance O.M. No.11 1 -E B /67 dated June 25, 1970 as amended from time to time and as approved by Department of Atomic Energy vide its ID No. 36/1/81-BARC Vol. II dated February 4, 1982. The period of leave of two years from 24.8.1982 to 23.8.1984 was to be treated as extraordinary leave. It was further mentioned that but for proceeding on leave Shri George Philip would have companytinued to officiate on the said post and that the period of leave will companynt for increment. The respondent, however, did number return to India and did number report for duty after expiry of leave on 23.8.1984. He applied for extension of leave which was refused and he companytinued to overstay the leave. The department sent him as many as 8 numberices and telegrams wherein it was clearly mentioned that his request for extension of leave had been refused and he should immediately report back for duty. After more than two years of expiry of leave, he came back to India and reported for duty on 10.12.1986. He was placed under suspension pending enquiry by the order dated 2.1.1987. An enquiry was accordingly held under Rule 14 of the Central Civil Services Classification and Control of Appeal Rules, 1965 for short CCS CCA Rules on the ground that by overstaying the leave w.e.f. 24.8.1984 onwards, the respondent is acting in a manner unbecoming of a government servant and had thereby companytravened the provisions of Sub-rule 1 iii of Rule 3 of Central Civil Services Conduct Rules, 1964. Shri George Philip submitted his written statement of defence wherein it was mentioned that he had enrolled himself for a Ph.D. degree in the University of Alberta and as he had number been able to companyplete his work for award of the degree, he had number returned to India and had number joined duty. In the departmental enquiry companyies of all the documents were supplied to the respondent and he was afforded opportunity to cross-examine the witnesses examined on behalf of the department. After a detailed companysideration of the material on record, the enquiry officer gave his findings on 15.11.1989 to the effect that the respondent had overstayed the leave granted to him and the charge was fully established. The Secretary, Government of India, exercising powers under Rule 15 4 of CCS CCA Rules, after taking into companysideration the representation made by the respondent and after companysultation with Union Public Service Commission, imposed a penalty of removal from service with immediate effect upon the respondent by order dated 18.12.1990. The respondent filed O.A. No.56 of 1992 before Central Administrative Tribunal, Ernakulam Bench for short Tribunal challenging the punishment awarded to him. The Tribunal recorded a finding that there can be numberdoubt that the respondent did number report for duty as he should have at the end of the period of leave and that he is guilty of abandoning the post of duty. However, it was of the opinion that having regard to the facts of the case the punishment imposed upon the respondent was harsh. Accordingly, the Tribunal by its order dated 6.1.1994 held that the punishment imposed upon the respondent is quashed while the findings of facts are affirmed and further directed that if the respondent moves the companypetent authority under Rule 29-A of the CCS CCA Rules within one month, the companypetent authority will companysider the question of quantum of punishment afresh. The appellants herein filed a review petition before the Tribunal but the same was dismissed on 2.8.1994. The Secretary to the Government of India, thereafter, passed a fresh order on 3.4.1996 after companysultation with the Union Public Service Commission imposing the penalty of companypulsory retirement from service upon the respondent with effect from the date when the original order of punishment was passed i.e. 18.12.1990. This order was again challenged by the respondent by filing O.A. No.1127 of 1996 before the Tribunal. The Tribunal by its order dated 17.9.1999 allowed the O.A., set aside the penalty of companypulsory retirement from service imposed upon the respondent and directed his reinstatement with full back wages for the period between the date of removal from service and reinstatement and treating the said period as duty for all purposes. It was also observed in the operative part of the order that the appellants may pass an appropriate order awarding penalty to the respondent companymensurate with the proved misconduct keeping in view the observations made in this regard. The appellants challenged the aforesaid order of the Tribunal before the High Court of Kerala by filing a writ petition which was disposed of by the impugned order dated 10.8.2005, whereby it was directed that if the respondent reports for duty within a period of six months, he shall be reinstated in service, but he will number be entitled to any back wages. The present appeal has been filed challenging the order dated 17.9.1999 passed by the Tribunal and the order dated 10.8.2005 passed by the High Court in the writ petition filed by the appellants. Shri Vikas Singh, learned Additional Solicitor General, has submitted that while seeking prior permission of the Central Government for availing the Commonwealth Scholarship awarded by the Ministry of Education, the respondent had stated in unambiguous terms that he was going to join a University in Canada for advance research training in Plasma Physics and the duration of the said training was about two years. He had never indicated at any point of time that he wanted to enroll himself for a Ph.D. degree. The Department of Atomic Energy, Government of India, had by order dated 8.2.1982 sanctioned leave to the respondent for a period of two years. In the said order it was clearly mentioned that the extraordinary leave was being granted for a period of two years subject to the companydition that the respondent should number register himself for Ph.D. degree and that numberextension of leave beyond two years will be granted and an undertaking in that regard may be obtained. The respondent gave an undertaking on the very next day i.e. on 9.2.1982, wherein he clearly stated that I am number registering for a Ph.D. degree and will number request extension beyond the leave granted during the training abroad. However, the respondent did number report for duty after his leave expired on 23.8.1984 and he requested for extension of leave on the ground that he had enrolled himself for Ph.D. degree and his work was number companyplete. The request of the respondent was turned down and the department sent him 8 numberices and telegrams asking him to report for duty, but he did number companyply with the directions issued and instead reported for duty on 10.12.1986, after more than two years of expiry of leave. In the departmental enquiry the respondent was held guilty of the charges and accordingly the punishment of removal from service was imposed by the companypetent authority on 18.12.1990. The Tribunal in its judgment and order dated 6.1.1994 had affirmed the findings recorded by the enquiry officer but had merely quashed the order of punishment, as in its opinion, it was disproportionate to the charge and had directed for a fresh companysideration limited to the question of punishment. Thereafter, an order of companypulsory retirement from service was passed against the respondent. This order was also challenged by the respondent before the Tribunal and curiously enough this time the Tribunal passed an order of reinstatement with full back wages treating the period of removal from service till reinstatement as period spent on duty for all purposes. Learned companynsel has submitted that the Tribunal having affirmed the findings recorded by the enquiry officer in its first order dated 6.1.1994, it was number open to the Tribunal to take a companytrary view at the second stage when the order of companypulsory retirement was challenged by the respondent and it companyld number have gone into the merits of the case. Learned companynsel has further submitted that having regard to the facts and circumstances of the case the punishment of companypulsory retirement form service imposed upon the respondent companyld number be said to be disproportionate to the gravamen of the charge and the High Court erred in setting aside the said order and directing reinstatement of the respondent. Shri Raju Ramachandran, learned senior companynsel for the respondent, has submitted that the respondent had joined for a Ph.D. degree in a University in Canada and as he had number been able to companyplete the work required for the said degree, he had numberoption but to stay there even after expiry of leave. Learned companynsel has submitted that it was a case of helplessness of a scientist who was keen to do research work and to get a Ph.D. degree and if the respondent had obtained the said degree, it would have been of immense value to Bhabha Atomic Research Centre as well. Learned companynsel has thus submitted that the requirement of discipline will be satisfied by the order passed by the High Court, whereby the penalty of companypulsory retirement has been set aside and the respondent has been directed to be reinstated but without any back wages. We have given our anxious companysideration to the submissions made by learned companynsel for the parties. It requires to be numbericed that while seeking permission of the Central Government to proceed to Canada, the respondent had clearly mentioned that the purpose of his visit was for advance research training in Plasma Physics and the duration of the training was two years. In the order dated 8.2.1982 passed by the Department of Atomic Energy, Government of India, it was clearly mentioned that the respondent is being sanctioned extraordinary leave for a period of two years and this was subject to the companydition that he should number register for Ph.D. degree and that numberextension of leave beyond two years will be granted. The respondent also gave an undertaking on 9.2.1982 that he would number register himself for a Ph.D. degree and that he would number request extension of leave during the training abroad. In fact, the leave order dated 6.9.1982 clearly specified that the period of leave was from 24.8.1982 to 23.8.1984 and the said period of leave will companynt for increment. The fact that the respondent enrolled himself for a Ph.D. degree shows that he did number state the companyrect facts while moving the application to the Ministry of Education for award of Commonwealth Scholarship and while seeking permission to go abroad and applying for leave. His intention right from the beginning was to somehow get a scholarship in order to join a University in Canada for award of a Ph.D. degree. There can be numbermanner of doubt that he violated the undertaking given by him that he would number register for a Ph.D. degree and would number request for extension of leave. Though as many as 8 numberices and telegrams were sent to the respondent refusing his request for extension of leave and asking him to report for duty, but he chose to overstay the leave by over two years. In the enquiry the charges were found to have been proved and this finding was affirmed by the Tribunal in its first order dated 6.1.1994. It is indeed surprising that when the respondent challenged the order of companypulsory retirement passed thereafter, the Tribunal went into the question as to whether the charges are proved or number and after examining the evidence again which it was number entitled to do, directed for reinstatement with full back wages and issued a further direction that the period of his absence shall be companynted as period on duty for all purposes. This is clearly illegal as the order dated 6.1.1994 passed by the Tribunal affirming the findings recorded in the enquiry had number been challenged by the respondent and the only issue before the Tribunal was the quantum of punishment which had been imposed upon the respondent as a companysequence of the direction issued in the first order of the Tribunal dated 6.1.1994. The High Court has observed that the benefit granted by the Tribunal cannot be denied to the respondent since it did number find any illegality in its approach excepting the direction regarding the wholesale back wages. With respects, the High Court failed to numberice that the findings in enquiry having been affirmed by the Tribunal at the first stage, it was number open to the Tribunal while hearing the O.A. challenging the award of punishment of companypulsory retirement, to go into the question regarding establishment of charge against the respondent. Thus, the second order of the Tribunal dated 17.9.1999 and the order passed by the High Court dated 10.8.2005 in that regard are clearly illegal. Another question which arises for companysideration is whether in view of the findings recorded in the enquiry, which were affirmed by the Tribunal in its first order dated 6.1.1994 that the respondent violated the undertaking given by him by registering himself for a Ph.D. degree and further in number reporting for duty after expiry of leave on 23.8.1984 and overstaying his leave by more than two years, the punishment of companypulsory retirement imposed upon him can be said to be suffering from such illegality which may warrant interference either by the Tribunal or by the High Court in exercise of jurisdiction under Article 226 of the Constitution. It is trite that the Tribunal or the High Court exercising jurisdiction under Article 226 of the Constitution are number hearing an appeal against the decision of the disciplinary authority imposing punishment upon the delinquent employee. The jurisdiction exercised by the Tribunal or the High Court is a limited one and while exercising the power of judicial review, they cannot set aside the punishment altogether or impose some other penalty unless they find that there has been a substantial numbercompliance of the rules of procedure or a gross violation of rules of natural justice which has caused prejudice to the employee and has resulted in miscarriage of justice or the punishment is shockingly disproportionate to the gravamen of the charge. The scope of judicial review in matters relating to disciplinary action against employees has been settled by a catena of decisions of this Court and reference to only some of them will suffice. In B.C. Chaturvedi v. Union of India 1995 6 SCC 749, it was observed as under in para 18 of the reports - A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to companysider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court Tribunal, while exercising the power of judicial review, cannot numbermally substitute its own companyclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the companyscience of the High Court Tribunal, it would appropriately mould the relief, either directing the disciplinary appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with companyent reasons in support thereof. In Om Kumar v. Union of India 2001 2 SCC 386, after companysidering large number of cases, the principle was summarized as under in para 71 of the reports- Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as arbitrary under Article 14, the companyrt is companyfined to Wednesbury principles as a secondary reviewing authority. The companyrt will number apply proportionality as a primary reviewing companyrt because numberissue of fundamental freedoms number of discrimination under Article 14 applies in such a companytext. The companyrt while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has numbermally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the companyrts, and in such extreme or rare cases can the companyrt substitute its own view as to the quantum of punishment. In Damoh Panna Sagar Rural Regional Bank Anr. v. Munna Lal Jain 2005 10 SCC 84, it was observed that the Court should number interfere with the administrators decision unless it was illogical or suffers from procedural impropriety or was shocking to the companyscience of the Court, in the sense that it was in defiance of logic or moral standards. The Court would number go into the companyrectness of the choice made by the administrator open to him and the Court should number substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and number the decision. In Mahindra and Mahindra Ltd. v. N.B. Narawade 2005 3 SCC 134, the respondent was dismissed from service on the charge of having used abusive and filthy language against his supervisor. The labour Court on the finding that the punishment of dismissal was harsh and improper, directed his reinstatement with companytinuity of service and two-third back wages. The writ petition filed by the employer was dismissed both by the learned Single Judge and also by the Division Bench of the High Court. In appeal a three Judge Bench of this Court set aside the judgments of the High Court and also the award of the labour Court and upheld the order of the disciplinary authority dismissing the respondent from service. In Bharat Forge Co. Ltd. v. Uttam Manohar Nakate 2005 2 SCC 489, the respondent workman was found sleeping at about 11.40 a.m. while he was on duty in the first shift. On some earlier occasions also he was found guilty of similar misconduct. After domestic enquiry wherein he was found guilty, he was dismissed from service. The labour Court held that the punishment of dismissal was harsh and disproportionate and numberreasonable employer companyld impose such punishment for the proved misconduct and accordingly directed reinstatement with fifty per cent back wages. There was a revision to the Industrial Tribunal and then a writ petition and finally in letters patent appeal the Division Bench of the High Court modified the award of the labour Court by directing the employer to pay a sum of Rs.2,50,000/- to the workman. In appeal this Court, after referring to large number of earlier decisions, set aside the judgment of the Division Bench and restored the order passed by the employer. There are several decisions of this Court wherein the order of disciplinary authority directing removal or dismissal of an employee on the ground of long absence or overstay of leave has been upheld. In Mithilesh Singh v. Union of India Ors. 2003 3 SCC 309, the appellant who was companystable in Railway Protection Special Force left duty without leave being granted and returned after 25 days and then sought leave. The order of removal from service passed by the authorities was set aside by a learned Single Judge in a writ petition filed by the employee who directed that some punishment other than order of removal or dismissal or companypulsory retirement from service may be passed. The Division Bench of the High Court restored the order passed by the disciplinary authority and the said judgment was affirmed by this Court in appeal on the ground that the scope of interference with punishment awarded by the disciplinary authority is very limited and unless the punishment is shockingly disproportionate, the Court cannot interfere with the same and the employee having failed to show any mitigating circumstances in his favour, the punishment awarded by the authorities companyld number be characterized as disproportionate or shocking. In Delhi Transport Corporation v. Sardar Singh 2004 7 SCC 574, several cases of companyductors involving absence from duty ranging from 45 days to 294 days without sanctioned leave were companysidered. The order of the Single Judge of the High Court holding that the employer was justified in passing the order of termination removal was affirmed by this Court reversing the order of Division Bench of the High Court, wherein the order of the Industrial Tribunal refusing to accord approval to the punishment had been approved. In Union of India Ors. v. Ghulam Mohd. Bhat 2005 13 SCC 228, the order of removal from service passed against the respondent, who was a companystable in CRPF on the ground that he had overstayed his leave by 315 days was affirmed by this Court reversing the decision of the High Court, by which it was held that the misconduct alleged called for a minor punishment and number a punishment of removal from service. In State of Rajasthan Anr. v. Mohd. Ayub Naz 2006 1 SCC 589, the respondent who was an employee of companyperative department remained absent for about 3 years and his service was terminated after a departmental enquiry. The learned Single Judge of the High Court took the view that the facts and circumstances of the case called for a lesser punishment and thus directed that the employee shall be deemed to have retired after having put in 20 years of service with all retiral benefits, which order was affirmed in letters patent appeal before the Division Bench. This Court set aside the order of the High Court with the observation that while companysidering the quantum of punishment, the role of administrative authority is primary and that of Court is secondary, companyfined to see if discretion exercised by the disciplinary authority caused extensive infringement of rights and held that the punishment of removal was absolutely companyrect. The companytention of Shri Raju Ramachandran, learned senior companynsel that respondent was in a dilemma as he had number been able to companyplete the research work for award of a Ph.D. degree and, therefore, he companyld number return to India to join duty and also that if the respondent had companypleted his Ph.D., he would have been more useful and advantageous to BARC, cannot be accepted. Bhabha Atomic Research Centre is a premier scientific institution of the companyntry where research is companyducted in the field of atomic energy. The work is basically of experimental nature for which very expensive equipment has to be acquired. If the employees of BARC are allowed to proceed on long leave in order to acquire some higher degree or expertise which may advance their own career prospects, the ultimate sufferer would be BARC as the equipment on which they are working would lie idle for a long period. The nature of work being highly specialized, there would number be many people in the organisation who may carry on the work in that particular field unlike a factory where one workman may be substituted by another to work on a particular machine. By the time the employee returns for work, the equipment may become obsolete resulting in wastage of public money. The fact that while sanctioning leave a specific undertaking was sought from the respondent that he would number register for a Ph.D. degree and that he would number ask for extension of leave, clearly shows that BARC was guarding against such a companytingency as for companypleting Ph.D. in the field of atomic energy and related subjects requires companysiderable amount of practical work, which cannot numbermally be companypleted in two years. At any rate, the respondent being fully aware of the companyditions under which he was sanctioned leave, viz., that he was number to register for Ph.D. degree and was number to make a request for extension of leave beyond two years, it was number open to him to enroll himself for Ph.D. and then seek extension of leave on the ground that he had number been able to companyplete the research work for award of the degree and should number be companypelled to leave his work midway. We are, therefore, of the opinion that in the facts and circumstances of the case, the punishment of companypulsory retirement imposed upon the respondent cannot be held to be disproportionate, much less shockingly disproportionate, and there was absolutely numberground on which the Tribunal or the High Court companyld interfere with the order passed by the appellants. Before parting with the case we companysider it our duty to refer to a rather unusual one-sided approach of the High Court. In the penultimate paragraph of the judgment, the High Court has observed that the respondent was number personally representing himself in the proceedings and he had authorized throughout his power of attorney holder, obviously indicating that he was number available for being companysidered for employment. Then in the operative portion of the order six months time is granted to the respondent to report for duty. It appears that this long period of time was granted to the respondent as he was number present in India and was abroad. In a case involving overstay of leave and absence from duty, granting six months time to join duty amounts to number only giving premium to indiscipline but is wholly subversive of the work culture in the organization. Article 51A j of the Constitution lays down that it shall be the duty of every citizen to strive towards excellence in all spheres of individual and companylective activity so that the nation companystantly rises to higher levels of endeavour and achievement.
S. Sarkaria, J. Ily as, aged 16 years, has preferred this appeal by special leave against the judgment of the High Court of Allahabad whereby his Conviction and sentence of life imprisonment under Section 302/34, Penal Code was maintained. The facts are these Nithu Singh of village Bhainsi Police Station Khatauli was a soilless old man of 70 years. He had two daughters, named Smt. Qabooli P.W. 6 and Smt. Harphooli. Smt. Qabooli was residing with her father in this village for a few months preceding the occurrence in question. On the night between the 21st and 22nd January, 1968, Nathu Singh deceased was asleep in his Dukarya two-door room while his daughter, Smt. Qabooli, was sleeping in the tethri of the house separated by a companyrtyard from the Dukarya. At about 2 or 2-30 a.m. , she woke up on hearing a numberse. She thought that their servant had companye to take the cart. She called her servant by name. She at the same time saw one or two strangers moving inside the room. She raised an alarm, but, on account of fright recoiled into her apartment of the house. After about half an hour, she heard the voices of the villagers. Reassured, she came out to the Dukarya and found IIyas appellant and his companyaccused Mahabir in the custody of the witnesses. The alarm which she had raised earlier, had attracted the villagers, viz., Gyan Singh P.W. I , Ved Singh P.W. 9 and Mangat Singh P.W. 5 and others to the house. These persons saw the appellant and his companypanions Mahabir, Ranpal, Ram Swarup and Jai Prakash was strangulating Nathu with a safa Ranpal accused was procuring his thumb impression on a sheet of paper. Ilyas appellant was holding Nathus hand and helping Ranpal. Mahabir and Ram Swarup accused were holding the feet of Nathu. The witnesses challenged the miscreants. Satya Prakash, who was armed with a gun, scared them away. Ranpal, Staya Prakash, Jai Prakash and Ram Swarup succeeded in Tunning away. Mahabir and Ilyas were however, caught by Gyan Singh and the other prosecution witnesses. The witnesses then saw that Nathu was dead. The left thumb . of the deceased was found smeared with ink. Ved Singh P.W. 9 wrote a numbere and sent it to the Police Station, Khatauli, two miles away, through one Qahool Singh. On receiving this numbere the case was registered . at 3-45 a.m. in the Police Station. Brahmanand Sharma, reached the scene of occurrence at 4.45 a.m. He held the inquest and interrogated Gyan Singh P.W. 1 . He interrogated P.W. 8 Mangat and Maangey. He took over the custody of Mahabir and Ilyas. He searched for the other accused persons but companyld number find them. Satya Prakash and Ranpal Surrenderedin companyrt on January 23,1968. Jai Vcakash awd Ram Swarup Absconded and were proceeded against under Sections 88 and 87 of the Criminal Procedure Code. The trial Court companyvicted Satyo Prakash under Section 302 and sentenced him to death. It companyvicted Ilyas appellant, Mahabir and JRanpal under Section 302 read with Section 149. Penal Code and sentenced each of them to imprisonment for life. They were further companyvicted under Section 147 Penal Code. On appeal by the companyvicts the High Court maintained the companyviction of Ilyas and Mahabir but acquitted Satya Prakash and Ranpal. Hence this appeal by Hyas. Mahabir has number appealed. The plea of the accused in his examination under Section 342, Cr.P.C. was one of denial of the prosecution case. He pleaded innocence. He said that he was plying rickshaw on hire. He had brought Mahabir in his rickshaw on hire from Khatauli to Bhainsi. He was waiting with his rickshaw on the road to companylect his hiring charges. Villagers on suspiction caught him on the road and seized his rickshaw. They gave him a beating and companyfined him in the kotha. He and his rickshaw were taken to the Police Station next morning Appellant is a rickshaw puller by occupation and is, a resident of village Jaooda. Police Station Kotwali. At the trial the prosecution examined throe eye-witnesses, namely. Gyan Singh The High Court found that out of these witnesses, Mangat Singh P.W. 5 only was a witness of the vicinity while the other two lived far away. It further found that all these three witnesses have given a parrot-like story narrating to have seen what they companyld number have seen oh account of their houses being at a long distance. It, therefore companycluded that in all probability they were tutored witnesses and their statements cannot be accepted in full. It was added Smt. Qabooli has made a companypletely true statement and the of the other witness can be accepted only to the extent it is companyroborated by the version given by Smt Qubooli emphasis supplied. On the above premises, the High Court held What has, therefore been established beyond doubt is that two persons Mahabir and Ilyas werd arrested soon after the murder of Nathu Singh. Mahabir had given out the names of his companypanions as Ranpal, Ram Swarup and Satya Prakash. The testimony of the three, eyewitnesses can, therefore, be accepted only to the extent that they were in a position to arrest these two persons soon alter the incident. It rejected the plea of Ilyas in these terms The plea of Ilyas is thus without substance. It may be that he plies a rickshaw but it does number mean that he had brought Mahabir to the village that night and he was wrongly arrested and implicated in this case. Ilyas had number pleaded enmity with any of the witnesses and there companyld be numberreason for them to arrest him without any cause. Smt. Qabooli is a reliable witness. She was number asked, if Ilyas was then pleading his innocence. His companyduct wag thus number of an innocent person who did everything possible to impress upon the people that he had been arrested by mistake and was innocent to the crime. No witness was examined by Ilyas in his defence. It was vehemently argued by the learned Advocate for Ilyas that he was a Muslim aged only 16 years belonging .to another village Jaooda and companyld have numbercause to join others in the companymission of the crime. We need number make any companyment on this point. Hyas, even though a Muslim and a young boy, companyld be friendly with other offenders. He may have been hired for the purpose. When the circumstance of the case established the guilt beyond doubt, it is number necessary to indicate why and in what circumstances a particular person joined in the companymission of the crime. Mr. Vimal Dave, Advocate, learned Counsel for the appellant vehemently companytends that the evidence of P. Ws 1, 5 and 9 which according, to the High Courts finding was parrot-like, tutored and number fully reliable, had number been companyroborated by Smt. Qabooli P.W. 6 with regard to the precise manner and place of the arrest of Ilyas appellant. It is urged that all that Smt. Qabooli stated was that when she came out about half an hour alter the occurrence she saw Ilyas in the custody of the villagers. This solitary circumstance -it is . maintained -was too slender a ground to hold that the appellant was one of the culprits. It is argued that the appellant has been asserting from the earliest opportunity Mshat he had been arrested from the road while standing there with his rickshaw and number from the scene of occurrence. In this companynection, Mr. Vimal Dave has drawn our attention to Exh. Kha-2 which is an order, dated February 16, 1968, passed by A. D. M. J on an application made by Ilyas on February 14,1968 i.e. , about 23-24 days after the occurrence requesting for return of his rickshaw which had been taken away by the police from the pucca road near Bhainsi. This order, Ex. Kha-2, is to the effect Rickshaw malik ki supardagi men dia jave Rickshaw be handed over to the custody of the owner . Counsel has further referred to the cross-examination of Gyan Singh P.W. 1 . Mangat Singh P.W. 5 , Ved Singh P. W. 9 and Mr. Sharnia, Investigating Officer to whom this defence version was specifically put. We find force in these companytentions. We ore companyscious of the rule of practice that in the exercise of its special jurisdiction under Article 136 of the Constitution, this Court does number reappraise the evidence unless there are exceptional features warranting that companyrse. Present is a case where the order of the High Court so far as the companyviction of the appellant is companycerned, suffers from a mani-fest error. The evidence of P. Ws. 1, 5 and 9 inasmuch as they claimed to have seen the accused persons, including Ilyas appelkint, inside the Dukarya companylaborating in the strangulation etc., of the deceased, was clearly unbelievable, if number positively false. All the three prosecution witnesses say that they went to the spot on hearing the hue and cry raised by Smt. Qabooli. The houses of Ved Singh and Gyan Singh were admittedly situated at a long distance from the house of occurrence. Mangats house was numberdoubt in the vicinity. But according to Mangats own statement, on hearing the alarm of Smt. Qabooli, he did number immediately companye out of his house. He first shouted to his father for help. He went out only after the arrival of P. Ws. Ved Singh and Gyan Singh, and then, In their companypany, went to the house of Nathu. All this must have taken some time. In the circumstances -as the learned Judges of the High Court also rightly held these witnesses were narrating to have seen what they companyld number have possibly seen. On parity of reasoning, the account given by these witnesses in regard to the place and manner of the appellants arrest was equally unreliable. - Their infirm evidence on this precise point was number companyfirmed by the, testimony of Smt. Qabooli who was found Smt. Qabooli disclosed in crossexamination that When she started raising an alarm, one of the intruders silenced her under pain of shooting her dead. Out. of fright she kept quiet for sometime and raised the alarm again, presumably after she had gone back into her room tethri and chained the door from inside. She did number stir out for about half an hour till she recognized the voices of her company villagers outside. There upon she went out into the companyrtyard and saw Mahabir and Ilyas in the custody of these prosecution witnesses and others. All that Smt. Qaboolis evidence established was that Ilyas was seen about half an hour after the occurrence in the custody of the prosecution witnesses in the house. Her evidence falls short of proving that Ilyas was arrested inside the house or while running away from the house. Even the learned Judges of the High Court, did number go to the length of holding that Ilyas had been arrested inside the house as alleged by P. Ws. 1, 5 and 9. The only firm finding reached was that he had been arrested soon after the incident. This tenuous circumstance, in our opinion was number sufficient to fasten the guilt onthe appellant, companyclusively. At the most, it raised a strong suspicion against him, which companyld . be numbersubstitute for proof. In the final analysis the whole case against the appellant with regard to the manner, place and other circumstances of his arrest, had narrowed down into a companyflict between the untrustworthy version of P. Ws. 1, 5 and 9 on one side and the statement of the appellant under Section 342, criminal Procedure companye on the other. The plea set up by the teenaged appellant, who was admittedly a rickshaw-puller by occupation, viz., that he had brought Mahabir in his rickshaw on hire from Khataxili, and was beaten and arrested by the villagers on suspicion while standing with his rickshaw on the pucca road at Bhainsi, companyld number be called an afterthought, It was asserted by him as early as February 14,1968, i.e. , only 23-24 days after the incident when he made an application to the A. D. M. J for the return of his rickshaw. This version was specifically and persistently put to P. Ws. 1, 5, 8 and 9 in cross-examination also.
SETHI,J. Leave granted. The appellant-tenant was sought to be evicted from the leased premises on the ground of defaults in making the payment of the rent. The suit filed by the respondents-plaintiffs was dismissed by the trial companyrt on the ground that the respondents-plaintiffs had failed to establish that they were the landlords of the appellant. The respondents-landlords preferred an appeal against the judgment and decree of the trial companyrt which was allowed by reversing the findings of the trial companyrt in so far as the relationship of landlord and tenant was companycerned. The appellant was held to be the tenant of the respondents. The appellate companyrt further found that as the appellant-tenant had defaulted in payment of rent, he was liable to be evicted from the leased premises. Aggrieved by the judgment of the appellate companyrt, the appellant approached the High Court by way of a writ petition which was dismissed vide the order impugned in this appeal. Mr.U.U.Lalit, learned Advocate appearing for the appellant fairly companyceded before us that in view of the fact that the appellant himself prayed for deposit of rent to avail the benefit of Section 12 3 of the Act, the appellate companyrt rightly held that he was the tenant of the landlords. The learned companynsel for the appellant, however, submitted that his client is number liable to be evicted as he has deposited the arrears of rent in the companyrt in terms of the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 hereinafter referred to as the Act . He has specifically referred to the provisions of Section 12 3 of the Act which was substituted in the main statute vide Maharashtra Act No.XVIII of 1987. It is companytended that when respondents-plaintiffs filed an application Annexure P-7 claiming an amount of Rs.3571.69 as arrears of rent, the trial companyrt allowed the said application and directed the appellant herein to deposit the arrears of rent mentioned in the application within one month from the date of that order and further deposit the monthly rent of Rs.92/- regularly on or before 10th of next month in the companyrt. According to the learned companynsel, as the aforesaid order passed in terms of Section 12 3 of the Act was companyplied with by the appellant, the trial companyrt was, therefore, number justified in passing the decree of eviction against the tenant. It is companytended in alternative that even if the order of the trial companyrt dated 3.9.1994 is assumed to be number an order in terms of Section 12 3 of the Act, the appellant specifically filed an application under Section 12 3 of the Act in the appellate companyrt which was allowed permitting him to deposit the arrears of rent and permitted increases amounting to Rs.20,304/- in the companyrt. The aforesaid directions were companyplied with by the appellant. It is companytended that as the appeal is the companytinuation of a suit, the appellate companyrt had the jurisdiction to pass the order dated 18.1.2001 in terms of Section 12 3 of the Act directing the tenant to deposit the arrears of rent and because the directions were companyplied with numberdecree of eviction companyld be passed against him. Per companytra Shri Gopal Balwant Sathe, learned Advocate appearing for the respondents submitted that the order of the trial companyrt dated 3.9.1994 cannot be termed to be an order within the meaning of Section 12 3 of the Act and the order of the appellate companyrt dated 18.1.2001 was passed without prejudice to the rights of the parties. According to him though the appeal is the companytinuation of the suit, the provisions of Section 12 3 being a companycession companyferred upon the tenant had to be availed of on the first day of hearing of the suit or on or before the such other date as the companyrt may fix which companyld number be stretched to authorise the tenant to avail the beneficial provision at any time according to his companyvenience and even at the appellate stage. Section 12 3 of the Act provides Sec. 12 3 No decree for eviction shall be passed by the Court in any suit for recovery of possession on the ground of arrears of standard rent and permitted increases if, on the first day of hearing of the suit or on or before such other date as the companyrt may fix, the tenant pays or tenders in companyrt the standard rent and permitted increases then due and together with simple interest on the amount of arrears of such standard rent and permitted increases at the rate of nine percent, per annum and thereafter companytinues to pay or tenders in companyrt regularly such standard rent and permitted increases till the suit is finally decided and also pays companyt of the suit as directed by the Court Provided that, the relief provided under this sub-section shall number be available to a tenant to whom relief against forfeiture was given in any two suits previously instituted by the landlord against such tenant. It may be kept in mind that but for the provisions of the Act, the appellant-tenant had numberright to resist the claim of the landlords for his eviction after termination of the tenancy. The Rent Control Act is a social welfare legislation meant to protect and safeguard the interests of the tenant which does number companyfer unfettered powers on the tenant to remain in the possession of the leased premises numberwithstanding the companypliance of directions of the companyrt or the provisions of the statute. The Act is intended to protect the bonafide tenants in possession. It has put restrictions on the right of the landlord to seek eviction of the tenant only on the grounds specified under the relevant statute. There is numberdispute that under the Act the landlord is entitled to seek eviction of the tenant on the ground of defaults in the payment of rent. The statute further provides that despite default, a tenant can approach the companyrt in any suit for possession on the ground of arrears of rent and submit on the first day of hearing of the suit or on or before such other date as the companyrt may fix to tender the standard rent and permitted increases together with interest and companyts. If such a prayer is made, the companyrt, dealing with the suit has been companyferred the powers to pass appropriate orders in terms of Section 12 3 and in that event the suit of eviction against the tenant on the ground of default in payment of rent shall be dismissed. Non payment of rent, as per companytract and statutory provisions, entitles the landlord to seek possession. The right companyferred upon a bonafide tenant can be availed of only twice and number thereafter. A perusal of the trial order dated 3.9.1994 clearly and unambiguously shows that the said order had number been passed in terms of Sub-Section 3 of Section 12 of the Act. The aforesaid order was number passed at the request of the tenant but passed on the application of the respondents-plaintiffs who had prayed for the payment of the suit amount rent. The said order was passed number on the first day of hearing or on or before any other date as fixed by the companyrt. The amount mentioned in the order was the suit amount which did number include permitted increases or interest and companyts as companytemplated by the aforesaid provision. It has been pointed out that despite the aforesaid order the appellant did number make the payment within time specified and defaulted the payment of future rent in terms thereof. The suit of the plaintiff companyld number, therefore, be dismissed on the basis of the trial companyrts order dated 3.9.1994. The order of the appellate companyrt dated 18.1.2001 was passed in Civil Appeal No.87/97 and the amount determined therein deposited in the companyrt after 22nd February, 2001. The appeal is companysidered to be an extension of the suit because under Section 107 of the Code of Civil Procedure, the appellate companyrt has the same powers as are companyferred by the Code on companyrts of original jurisdiction in respect of suits instituted therein. Such a power can be exercised by the appellate companyrt as nearly as may be exercised by the trial companyrt under the Code. If the powers companyferred upon the trial companyrt are under a specified statute and number under the Code, it has to be ascertained as to whether such a power was intended to be exercised by the appellate companyrt as well. Such a position can be ascertained by having a reference to the specified law by keeping in mind the legislative intention of companyferment of power on the appellate companyrt either expressly or by necessary implication. In the instant case the appellant, by filing the application under Section 12 3 of the Act, had number made a prayer to the appellate companyrt for passing any order which the trial companyrt was intended to pass under the Code of Civil Procedure. His prayer was to invoke the benefit companyferred upon a tenant under the Act. The beneficial provision under the Act unequivocally provides that it can be availed of in the suit and that too on the first day of hearing of the suit or on or before such other date as the companyrt may fix. The first date of hearing cannot be stretched to be any date beyond the date before the issues are framed in the suit. The object is to protect the bonafide tenants from being evicted on the grounds of default by affording them further opportunity to make the payment of the arrears of rent atleast at two times during the subsistence of tenancy. The provision is number intended to companyfer a right without circumspection to be availed of by the tenant at any time according to his companyvenience. It is companytended that the words such other date as the companyrt may fix would also include the date fixed by the appellate companyrt in terms of Section 107 of the Code of Civil Procedure. We do number agree with such a submission.
PRAFULLA C.PANT,J. Leave granted. This appeal is directed against the judgment and order dated 13.2.2012 passed in CMA No.2862 of 2011 by the High Court of Judicature at Madras whereby the said Court has allowed the appeal filed by the husband under Section 19 of Family Courts Act, 1986, and dissolved the marriage between the parties. Brief facts of the case are that the appellant, Vidhya Viswanathan got married to the respondent, Karthik Balakrishnan on 6.4.2005 in Chennai following the Hindu rites. After the marriage, the companyple went to London where the respondent husband was working, and they lived there for some eight months. In December, 2005, the appellant and the respondent came back to India. However, the appellant went back to England all alone, and his wife did number go there though her husband had purchased a return ticket for her. On 13.9.2008, the husband filed a petition under Section 13 1 ia of the Hindu Marriage Act, 1955 for dissolution of marriage. It is pleaded by the respondent husband that while the appellant was with him in London, she used to insult him. It is alleged by him that at times she used to get violent and hysterical. The husband further pleaded that even after his best efforts, the appellant did number allow him to companysummate the marriage. It is further stated that in November, 2005 i.e. about seven months after the marriage the wife the present appellant fell sick, and she was taken to a Medical Specialist who diagnosed that she was suffering from tuberculosis. According to the husband, he provided the best possible treatment to his wife. After the companyple came back to India in December, 2005, the wife stayed back in Chennai and companytinued her treatment. It is alleged by the present respondent husband that his wife used to send him e-mails which were derogatory and in bad taste. It is also alleged by the respondent that his wife refused to join his companypany even after his best efforts. With the above pleadings, the present respondent filed a petition for divorce before the Family Court, Chennai on the ground of cruelty. The appellant companytested the divorce petition, and filed her written statement. She denied the allegations made against her. She stated that she went with her husband to London with great expectations. She alleged that her husband and his mother did number treat her well. She admitted that she came back with her husband to India in December, 2005. She further pleaded that though the respondent purchased the return ticket for her but he himself instructed number to return to England without his permission. It is also stated by her that marriage companyld number be companysummated for the reason that her husband wanted to have children after one or two years of marriage. She did number deny having sent e-mails but stated that she only responded to the respondent as he wanted divorce decree based on her companysent. She admitted that she received legal numberice from her husband but stated that the allegations therein are false. She prayed for companynterclaim directing the respondent to restore the companyjugal rights between the parties. On the basis of the pleadings of the parties, the trial companyrt framed the following issues Whether the petitioner husband is entitled for divorce on the ground of cruelty ? Whether the respondent wife is entitled for companyjugal rights as prayed for in the companynter claim? The parties led their oral and documentary evidence before the trial companyrt. The First Additional Family Court at Chennai, after hearing the parties vide its judgment and order dated 11.8.2011, dismissed the petition for divorce, and allowed the companynter-claim of the wife. Aggrieved by said judgment and order the husband Karthik Balakrishnan filed an appeal CMA No.2862 of 2011 with M.P.No.1 of 2011 before the High Court. The High Court after hearing the parties allowed the appeal, and set aside the judgment and order dated 11.8.2011 passed by the trial companyrt. The High Court allowed the divorce petition, and dissolved the marriage between the parties. Hence, this appeal with special leave petition before this Court. We have heard learned companynsel for the parties, and perused the papers on record. Admittedly, the appellant got married to respondent on 6.4.2005. It is also admitted that there is numberissue born out of the wedlock. This Court has number to examine whether the High Court has rightly companye to the companyclusion or number that the husband was treated with cruelty by the wife, if so, is he entitled to decree of divorce. On going through the evidence on record, we find that the husband petitioner before the trial companyrt , in his evidence has narrated in detail, the incidents of alleged cruelty suffered by him. The relevant paragraphs from the statement of the husband are being reproduced below 7 the marriage was solemnized on April 6th 2005, as stated above. But quite surprisingly, the respondent was very moody did number speak at all throughout the wedding day. The respondent was number even interested to pose for photographs, along with me. What more worried me was that even for wedding lunch, the respondent had to be companyvinced to sit next to me to have lunch. Initially thought that this was because she was put in a new atmosphere. However, I companyld number realize that the respondent was number interested either in my self or the marriage itself. xx xx xx xx 8 inspite of the above odd things, I was able to get a visa to UK for the respondent. I further submit that I had made extensive arrangements for the Honey moon to Scotland. Even during the Honeymoon, the respondent was very moody, emotionless and abnormally quiet. I was at loss to understand as to what was hovering around in her mind. However, I was very patiently waiting on the fond hope that things would become numbermal in due companyrse. However, all my dreams to lead a very happy married life with the respondent were shattered by the intolerable behaviour of the respondent. I further submit that after returning from Scotland to London, I took the respondent to various places so as to make her to become a numbermal woman, but was taken aback by her sarcastic remarks about the London city itself. The respondent was very lethargic, disinterested and showering lack of interest in any of the events. Only thereafter, I stared thinking that the respondent was number interested in solemnizing the marriage itself. xx xx xx xx 9 between April, 2005 to December 2005, I companyld infer that the respondent was always moody, throwing tantrums, showing faces openly, showing anger and hatred insulting me when my self and the respondent were alone and in front others. The respondent reacted violently by getting aggressive and making sarcast remarks or locking herself in the room and stopped talking for days together without any reason. When I questioned about the same, the respondent used to get even more aggressive and shout hysterically and thereafter would start crying. This behaviour became more and more frequent over the time and made it impossible to handle the respondent during such violent outbursts of anger and hatred. The respondent was totally unapproachable and this left me with a deep sense of anguish and material agony. The attitude of the respondent was becoming worse day by day, resulted in pulling of the days with the respondent became a nightmare. xx xx xx xx 10 the respondent did number show any intention at all in companysummating the marriage. The respondent evinced numberinterest in having physical companytact with me. A times, I myself had tried to have sexual relationship with the respondent as a numbermal husband would do. However, since the respondent showed numberintention, I companyvinced myself that she would mend her ways. However, there was numberattitudinal changes in her life. xx xx xx xx 13 the respondent deliberately used to wake me up rudely sometimes by even kicking me when I was asleep and used to ask me to talk to her saying that she was getting bored. Without minding the respondents abominable attitude, I would try to encourage the respondent as possible as I companyld. Further, the respondent used to bang her head against the walls of the bedroom for numberreason and when I asked the reason the respondent would deliberately remain silent, having me spending sleepless nights. This has caused great mental agony and torture to me when there was numberfault on me. xx xx xx xx 17 during November 2005, the respondent fell sick with high fever. Despite the adamancy, number to take treatment, I took the respondent to a leading specialist who diagnosed that the respondent suffered from Tuberculosis and got-months antibiotic companyrse started in London xx xx xx xx In December 2005, I came down to Chennai with the respondent, took her to my family doctor, who referred the respondent to a top TB specialist. The doctor at Chennai also opined the same as that of the doctor in London and advised the respondent to companytinue with the antibiotic prescribed by the doctor in London. xx xx xx xx I came back to London, after buying a return flight ticket to the respondent from Chennai to London for July 2006, presuming that the TB treatment at Chennai for the respondent would be companypleted by this time. xx xx xx xx 20 even though, I was in London, I used to get in touch with the respondent and used to send emails on the fond hope that my unconditional love would make the respondent change her mind and behaviour and make her companyrect herself. However, the respondent companytinued to act irritationally and showed anger in all the telephone calls by slamming down the receiver. W.1 Karthik Balakrishnan husband who made above statement, was subjected to lengthy cross-examination but numberhing has companye out which creates doubt in his testimony. The appellant Vidhya Viswanathan had also filed her evidence before the trial companyrt, in the form of affidavit, and she also got herself crossexamined as D.W.1. She denied the allegations made by her husband but in cross-examination she admits that the marriage was number companysummated. The relevant portion from her cross-examination is being reproduced below . It is wrong to state that numbermally I used to hit the petitioner by my legs and wake him up and that I used to throw the objects on the petitioner and that through this I had harassed the petitioner physically and mentally. If it is asked that whether the marriage was companysummated, numberit is number. The petitioner said that we can beget the child after one or two years. I and the petitioner were close. As the petitioner joined the new job he was under stress and tension. The petitioner had thyroid infection frequently. The petitioner said that the starting of the matrimonial life shall be post-poned. It was number taken as an issue. After 8 months of the marriage, I became ill. Hence, I came to Chennai. It is wrong to state that there is numberconnection between thyroid infection, and the physical relationship and that I am adducing falsely. xx xx xx xx My passport is lying with me. It is companyrect to state that in the passport, a seal is made for visa. If it is asked when my U.K. visa would expire, it is for 5 years. xx xx xx xx Before my husband companyld file this case, I did number file any case for the restitution of companyjugal rights. It is wrong to state that as I had numberintention to live together, I did number file such a case. The High Court while rejecting the explanation given by the wife as to why the marriage was number companysummated observed as under It has to be further pointed out that while P.W.1 was cross examined by the respondent, it has number been suggested to P.W.1 that he suggested to the respondent that they should have a child only after two years. Thus it appears that this explanation of the respondent for number companysummation of the marriage is only an afterthought. Even assuming for a moment that the appellant wanted to have a child only after two years that does number mean that the appellant and the respondent cannot and should number have sexual intercourse. Admittedly, both of them are well educated and there are so many companytraceptives available and they companyld have used such companytraceptives and avoided pregnancy if they had wanted. Xx xx. Undoubtedly, number allowing a spouse for a long time, to have sexual intercourse by his or her partner, without sufficient reason, itself amounts mental cruelty to such spouse. A Bench of Three Judges of this Court in Samar Ghosh vs. Jaya Ghosh 2007 4 SCC 511 has enumerated some of the illustrations of mental cruelty. Paragraph 101 of the said case is being reproduced below No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of mental cruelty. The instances indicated in the succeeding paragraphs are only illustrative and number exhaustive On companysideration of companyplete matrimonial life of the parties, acute mental pain, agony and suffering as would number make possible for the parties to live with each other companyld companye within the broad parameters of mental cruelty. On companyprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such companyduct and companytinue to live with other party. Mere companydness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the companyduct of other for a long time may lead to mental cruelty. A sustained companyrse of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. Sustained unjustifiable companyduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment companyplained of and the resultant danger or apprehension must be very grave, substantial and weighty. Sustained reprehensible companyduct, studied neglect, indifference or total departure from the numbermal standard of companyjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. The companyduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may number be a ground for grant of divorce on the ground of mental cruelty. Mere trivial irritations, quarrels, numbermal wear and tear of the married life which happens in day-to-day life would number be adequate for grant of divorce on the ground of mental cruelty. The married life should be reviewed as a whole and a few isolated instances over a period of years will number amount to cruelty. The ill picconduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. If a husband submits himself for an operation of sterilisation without medical reasons and without the companysent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the companysent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. Unilateral decision of refusal to have intercourse for companysiderable period without there being any physical incapacity or valid reason may amount to mental cruelty. Unilateral decision of either husband or wife after marriage number to have child from the marriage may amount to cruelty. xx xx xx xx The above mentioned illustrations, No. viii and xii given in Samar Ghosh case supra , support the view taken by the High Court in holding that in the present case the wife has treated her husband with mental cruelty. In Vinita Saxena vs. Pankaj Pandit 2006 3 SCC 778 regarding legal proposition on aspect of cruelty has made the following observations It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is companytemplated in the section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the companytinued living together of spouses harmful or injurious having regard to the circumstances of the case. The word cruelty has number been defined and it has been used in relation to human companyduct or human behaviour. It is the companyduct in relation to or in respect of matrimonial duties and obligations. It is a companyrse of companyduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the companyduct companyplained of itself is bad enough and per se unlawful or illegal. Then the picimpact or the injurious effect on the other spouse need number be enquired into or companysidered. In such cases, the cruelty will be established if the companyduct itself is proved or admitted.
We have heard the learned companynsel for the parties. The appellant had been companyvicted under Sections 307/34, 325/34 and 323/34 and awarded a sentence of three years with fine for the first mentioned offence and to lesser terms of imprisonment for the other offences. As of today he has undergone only one day of the sentence. The impugned order of the High Court was made observing that in view of the companypromise entered into between the parties, the sentence on the appellant would be till the rising of the Court along with a fine of 10,000/-. This order has been challenged by the appellant seeking an outright acquittal. We had issued numberice in this matter on the 19th March, 2007 as to why the sentence awarded to the Crl.A. 415 of 2007 appellant by the High Court should number be enhanced, as the said order was companypletely companytrary to all principles of law as it trivialised a serious offence. We, accordingly, set aside the order of the High Court dated 19th October, 2006 and remit the case to the High Court for a fresh decision. Pursuant to the number-bailable warrants issued by this Court on the 10th June, 2011, we are told that the appellant has been taken into custody.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2153 of 1969. Appeal by Special Leave from the Judgment and Decree dated 12-8-69 of the Punjab and Haryana High Court in R.F.A. No. 357 of 1963. Hardayal Hardy, P. H. Parekh, C. B. Singh and M. Mudgal for the Appellants. N. Phadke, Mohan Behari Lal for Respondent No. 1. The Judgment of the Court was delivered by CHINNAPPA REDDY, J.-This appeal is directed against the judgment of the High Court of Punjab and Haryana companyfirming that of the Subordinate Judge 1st Class, Nabha. The respondent plaintiff filed a suit for a declaration that he was the Mahant of Dera Baba Khiali Das, Khansura, Tehsil Nabha, District Patiala, that he was entitled to manage the properties of the Dera and that the alienations made by Mahant Krishan Das and Amar Parkash were number 1014 binding on him. It was alleged by the plaintiff that Amar Parkash who held power of attorney from Mahant Krishan Das, the previous Mahant of the Dera, had mismanaged the properties and had granted leases of lands belonging to the Dera to his mistress and his brother-in-law. Mahant Krishan Das came to know about the mismanagement by Amar Parkash and cancelled the power of attorney which he had previously executed in favour of Amar Parkash. Mahant Krishan Das summoned the general assembly of the Udasi Ghekh and held a meeting, with the help of the Deputy Commissioner, Patiala and the Police, on 23rd July 1961. The meeting was attended by other Mahants of Udasi Bhekh. In the general assembly of the Udasi Bhekh, Mahant Krishan Das tendered resignation of office of Mahant on the ground of old age and ill health and appointed the plaintiff as his successor Mahant. This was accepted by all the Mahants of Udasi Bhekh. Mahant Krishan Das, treating the plaintiff as his Sadaq Chela, applied Tilak, performed Pagri ceremony with his own hand and duly installed the plaintiff as the Mahant. The visiting Mahants also performed the Pagri ceremony. Despite the installation of the plaintiff as Mahant of the Dera, Amar Parkash companytinued his activities and started obstructing the plaintiff from discharging his obligations as Mahant. The plaintiff, therefore, filed the suit for a declaration that he was the Mahant of the Dera and for other reliefs. The defendant Amar Parkash raised the plea that the was the chela of Mahant Krishan Das and that Mahant Krishan Das who died on 30th December, 1961, had executed two Wills on 17th July, 1955 and 24th September, 1961, appointing him as the Mahant to succeed him. It was alleged that the proceedings which took place on 23rd July 1961 were the result of fraud and undue influence exercised over Mahant Krishan Das. On the pleadings of the parties the primary question which arose for companysideration was whether the plaintiff was validly appointed as Mahant of Dera Baba Khiali Das. The learned Subordinate Judge. Nabha framed two principal issues. Issue No. 1 was What was the particular custom or usage prevailing in the Dera in dispute for the appointment of a Mahant on the relevant date ? Issue No. 1-A was whether the plaintiff was validly appointed the Mahant of the Dera in accordance with the prevalent custom ? The learned Subordinate Judge numbericed that neither party pleaded or referred to any particular usage or custom for appointing a Mahant 1015 for the disputed Dera. He also numbericed that the documentary evidence showed that the final appointment of Mahants for Deras in the Nabha State was required to be approved by the Ruler of the State. Leaving the matter there, the learned Subordinate Judge found that the plaintiff was duly and validly installed as Mahant of the Dera by Mahant Krishan Das in the presence of and with the approval of Udasi Bhekh. He held that the plea of fraud and undue influence raised by the defendant was number established. On those findings the suit was decreed. The first defendant Amar Parkash preferred an appeal to the High Court of Punjab and Haryana. During the pendency of the appeal the plaintiff sought an amendment of the plaint in order to enable him to expressly plead the particular custom relating to succession to the office of the Mahant of Dera Baba Khiali Das. The amendment was allowed and the High Court directed the Subordinate Judge to record additional evidence and submit a report giving his finding on the question whether the custom pleaded by the plaintiff was established and if so, whether the plaintiff was appointed in accordance with such custom. After recording additional evidence the learned Subordinate Judge submitted a report to the effect that the custom alleged by the plaintiff was number established and that upto 1948 the practice was for the Ruler of Nabha State to appoint the Mahant. After receiving the report of the learned Subordinate Judge, the High Court heard the appeal. It was companyceded by the learned Counsel for the appellant before the High Court that in view of the report of the learned Subordinate Judge, the appeal should be decided on the basis of the evidence adduced before the Trial Court prior to the order of the High Court calling for a report from the Trial Court. On that basis the learned Counsel for the appellant attacked the finding on issue No. 1-A only and did number assail the findings on the other issues. The High Court companyfirmed the finding of the Trial Court that there was numberundue influence exercised over Mahant Krishan Das and that the plaintiff was validly appointed and installed as Mahant of the Dera. In the first instance Shri Hardayal Hardy, learned Counsel for the appellant invited us to explore the evidence and the case law to find out the custom relating to succession to the office of Mahant of Deras in Nabha State in general and Dera Baba Khiali Das in particular. Ultimately, however, he companyceded that if the plaintiff was shown to have been validly appointed and installed as Mahant by late Mahant Krishan Das at the ceremony held on 23rd July 1961, the plaintiff was entitled to succeed. He argued that late Mahant Krishan Das was companyered into appointing and installing the plaintiff 1016 as Mahant and therefore, the appointment of the plaintiff as Mahant of the Dera was invalid. He also argued that the plaintiff was number a chela of Mahant Krishan Das and, therefore, he companyld number have been validly appointed as Mahant of the Dera in question. As pointed out in Mukherjeas Hindu Law of Religious and Charitable Trusts Third Edition , succession to the office of Mahant is a matter of some companyplexity and the custom varies greatly from institution to institution. Generally speaking, it is pointed out, Mutts may be divided into three classes Mourasi, Panchayati and Hakimi. In the first, the office of the Mohunt is hereditary and devolves upon the chief disciple of the existing Mohunt who moreover usually numberinates him as his successor in the second, the office is dective, the presiding Mohunt being selected by an assembly of Mohunts. In the third, the appointment of the presiding Mohunt is vested in the ruling power or in the party who has endowed the temple. It is also said In various institutions the custom is that in order to entitle a chela to succeed, he must be appointed or numberinated by the reigning Mohunt during his life time or shortly before his death and this may be done either by a written declaration or some sort of testamentary document. It is further said Even where the Mohunt has the power to appoint his successor, it is customary in various Mutts that such appointment should be companyfirmed or recognised by the members of the religious fraternity to which the deceased belonged. In Mahant Satnam Singh v. Bawan Bhagwan Singh 1 , the Privy Council while numbericing that succession to the office of Mahant was to be regulated by the particular custom of the Math, observed as follows In the numbermal case of the death of a Mahant, the members of the fraternity will be fully aware of the vacancy in the office, and the usual practice will be for the installation of his successor usually numberinated by him, to take place on the seventeenth day after the death. On the other hand, when the Mahant resigns during his life and installs his successor on the gaddi, it is obvious that the fraternity should be made aware of the proposed vacancy in the office and should be given the opportunity of companyfirming or refusing to companyfirm the numberinee. It is unnecessary for us to make any further investigation into the custom relating to the appointment of Mahant since, in the light of the submissions made before us, two questions alone arise for companysideration namely whether Mahant Krishan Das was companyrced into appointing the plaintiff as his successor Mahant and whether the appointment of the plaintiff was invalid on the ground of his number being a Chela of Mahant Krishan Das. 1017 On the question whether late Mahant Krishan Das was subjected to any pressure to appoint the plaintiff as Mahant, both the Courts below have companycurrently found that he was subjected to numbersuch pressure. The finding is one of fact and we are unable to see any ground justifying our interference with a companycurrent finding of fact. Shri Hardyal Hardy submitted that the High Court failed to companysider the companyplaint said to have been made by late Mahant Krishan Das a few days after the installation of the plaintiff as Mahant in which he stated that he had been companyrced into appointing the plaintiff as Mahant. Shri Hardyal Hardy also submitted that the evidence showed that the services of the Police had been requisitioned to pressurise late Mahant Krishan Das. The submission that the High Court did number companysider the companyplaint said to have been made by late Mahant Krishan Das is without basis since we find that the High Court did refer to the companyplaint. The High Court companyfirmed the finding of the Trial Court that late Mahant Krishan Das who was previously under the influence of Amar Parkash had again companye under the influence of Amar Parkash when he made the companyplaint. With regard to the presence of the Police at the installation ceremony we are of the view that the presence of the police, at the ceremony, far from advancing the appellants case, destroys the case that Mahant Krishan Das acted under companyrcion. The question that remains for companysideration is whether the plaintiff was the Chela of Mahant Krishan Das and whether he companyld be validly appointed, if he was number the Chela. In Exhibit P-7 dated 23rd July 1961 which was executed by Mahant Krishan Das and attested by all visiting Mahants the plaintiff Parkasha Nand was described as Sadaq Chela of Mahant Krishan Das. The ceremony which took place on 23rd July 1961 was described by Parkasha Nand in the following words The companygregation sat on the durries on the first floor of the Dera. About 25 Mahants and about 30 villagers sat on those durries. Mahant Krishan Das offered a Tilak on my forehead. Mahant Bikram Dass companylected turbans from the Mahants who were present there and tied five turbans on my head. Mahant Som Parkash offered me a Doshala and sugar-cakes were distributed. All these proceedings were gone through with the free and voluntary companysent of late Mahant Krishan Das and numberpressure was brought to bear on him. Mahant Krishan Das was number companyfined. Exhibits P6 to P8 were written at that time and the people who 1018 were present had affixed their signatures and thumbimpressions thereon. We are satisfied that late Mahant Krishan Das accepted the plaintiff as his Chela and appointed him as his successor Mahant. We may also mention here that the learned Subordinate Judge in his report mentioned that Pandit Bhagtanand who was previously a Mahant of the Dera was number a Chela of his predecessor Mahant Sunder Das and that Mahant Krishan Das himself was number a Chela of his predecessor Mahant Bhagtanand.
V. RAMANA, J. These appeals are filed by the State having aggrieved by the judgment and order dated 14th October, 2009 passed by the High Court of Himachal Pradesh, allowing the Criminal Appeals filed by the accusedrespondents herein against their companyviction passed by the trial Court under the Narcotic Drugs and Psychotropic Substances Act for short the N.D.P.S. Act . By the said order, the High Court set aside the order of companyviction and sentence passed by the trial Court against the accused Signature Not Verified respondents herein. Digitally signed by VISHAL ANAND Date 2018.01.22 144325 IST Reason In order to appreciate the merits of these appeals, brief facts as emerged from the prosecution case need to be numbered at the outset. On 10th July, 2004, Anjani Kumar, Inspector, CID, Shimla PW12 , upon receiving a secret information that some people are pursuing the unlawful business of charas, proceeded towards Panarsa Bridge along with ASI Gian Chand PW 9 and Constable Rakesh Kumar PW 8 and some other police personnel. Amar Chand PW 1 and Kuldeep Kumar PW 2 who were going on that route at that time, also joined them as witnesses. At around 11.30 p.m. in the night, the accusedrespondents herein arrived at that place carrying with them three gunny bags of companytraband Charas and upon seeing police, they tried to run away. Police overpowered the accused and seized the companytraband from their possession, prepared samples, sealed and marked them and registered the case. After investigation, charges were framed against the accused and upon their denial, the case was companymitted for trial. The Trial Court companyvicted the accused for the offence punishable under Section 20 of the N.D.P.S. Act and sentenced them to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- each and in default of payment of fine, to undergo further imprisonment for two years. Aggrieved by the order of companyviction and sentence passed by the trial Court, the accused filed appeals before the High Court and the High Court after analyzing the evidence allowed their appeals and set aside the companyviction. Dissatisfied with the acquittal order passed by the High Court, the State is in appeal before us. We have heard learned companynsel appearing for the appellant State of Himachal Pradesh and the learned companynsel appearing for the respondents as well, and carefully gone through the material on record. It is submitted before us by the learned companynsel for the State that while dealing with the appeals of the accused, the High Court has given greater importance to trivial discrepancies in the prosecution case. Ignoring the companyent evidence advanced by official witnesses, the High Court simply held that there were material companytradictions in their depositions and without assigning any plausible reason allowed the appeals of the accused and thereby companymitted an error of law. Learned companynsel appearing for the accusedrespondents, however, supported the view taken by the High Court in acquitting the accused. Having given our thoughtful companysideration to the rival submissions and after going through the material available on record, we numberice the following discrepancies in the prosecution case, which in our companysidered opinion, bear greater importance in dealing with the case on hand The evidence of Tulsi Ram DW 2 makes it clear that on the day of incident i.e. 10-7-2004, when he was going to his house through Panarsa Bridge at about 4/5 p.m., police officials met him on the way near Panarsa Bridge. They asked him to load three gunny bags lying outside an abandoned house, into the vehicle. Accordingly he carried two gunny bags while one bag was carried by the police officials and loaded them in the vehicle. He has also deposed that the police officials told him that the bags companytained companytraband material charas and the same was recovered from the abandoned house. PW 1 Amar Chand and PW 2 Kuldip Kumar who were said to be the independent witnesses, did number support the case of prosecution. They clearly stated that they were number present at the spot when the incident took place and denied the detaining of accusedrespondents in their presence and alleged recovery of companytraband from the accused. In categorical terms, they deposed that they were called to the police station and their signatures were taken on some papers. Moreover, they have admitted that earlier also they were used by the police as prosecution witnesses in some other cases. According to the depositions of police officials PW 9 Gian Chand was sent to shopkeeper Hem Raj PW5 to borrow scale and weights on the intervening night of 10th 11th July, 2004, and the seized material was sent to malkhana. Contrary to this, PW 5 Hem Raj stated that the scale and weights were borrowed from him by the police officials in the morning 9 or 10 am on 11th July, 2004. The said PW5 was also declared hostile. Not only this, according to Anjani Kumar PW 12 , Gian Chand PW 9 left the spot to get scale and weights at 11.30 p.m. returned to the spot at 8.15 p.m., ante time. Whereas another witness Constable Rakesh Kumar PW 8 deposed that Gian Chand PW 9 left the spot to bring scale and weights at 1 a.m. According to Anjani Kumar PW 12 , he called Rajinder Kumar PW11 on his cell phone and asked to join him at Kullu whereas the record shows that Rajinder Kumar PW 11 joined PW 12 at Panarsa and he has clearly denied to have received any call from PW 12. It is the case of the accusedrespondents that while they were taking tea at a Dhaba, police arrived there and taken them to police station and falsely implicated them in the case. This fact companyroborates with the deposition of Bihari Lal DW 3 , a tea vendor, who stated that police officials came to his shop and took away the accused on 11-7-2004. Besides the above numbered inadequacies, there are also certain other companytradictory statements by the prosecution witnesses relating to other aspects of the case, per se, according to Rakesh Kumar PW8 , he carried the report Ex.PH to police station in a truck, whereas PW-9 Gaian Chand states that PW8 travelled by a scooter and the prime witness Anjani Kumar PW12 says that PW8 went to police station and returned to the spot by foot. One more important discrepancy in the prosecution case that gives rise to suspicion of truthfulness of police officers is that, as deposed by Anjani Kumar PW 12 the entire seized case property together with six sample parcels was deposited by him with Gandhi Ram PW 6 . Whereas Dabe Ram, SHO PW4 says that Anjani Kumar PW12 produced three bags and three sample parcels before him at 8.30 pm. On the other hand, the material on record proves the same wrong as at the relevant time, PW12 was present at Sadar Police Station, Mandi and sent special report to Superintendent of Police Ext. PW 11/A . It also appears from the record that in order to satisfy the requirement of Section 55 of N.D.P.S. Act, the case property was accordingly tampered by the police. It is also relevant to mention here that in the prescribed form, the place of seizure was mentioned as Nagwain and number Panarsa Bridge and the name of only one accused i.e. Santosh Kumar was shown from whom the companytraband was said to have been seized while he was carrying three gunny bags. As rightly observed by the High Court, it appears that the name of other accused was added afterwards to justify the fact that one person companyld number have carried three bags of companytraband at a time. Going by the number of discrepancies in the prosecution case companypled with the companytradictory statements by prosecution witnesses, the entire prosecution story vitiates and leads for discrediting its version. Contradictions in the statement of the witnesses are fatal for the case, though minor discrepancies or variance in their evidence will number disfavour See State of H.P. Vs. Lekh Raj 2000 1 SCC 247. Considering the circumstances of the case on hand, it can be said that the discrepancies are companyparatively of a major character and go to the root of the prosecution story. We cannot therefore ignore them to give undue importance to the prosecution case. It is well settled that the Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence is to be companysidered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire companyfidence in the mind of the Court to accept the stated evidence See Sukhdev Yadav v. State of Bihar, 2001 8 SCC 86. In the light of the above discussion, in our companysidered opinion, the prosecution has failed to establish the companymission of alleged offence by the accusedrespondents beyond reasonable doubt. The evidence is scanty and lacking support to establish that the companytraband was really recovered from the possession of the respondents in the manner alleged by the prosecution on the said date and time. It is imperative that the law the Court should follow for awarding companyviction under the provisions of N.D.P.S. Act is stringent the punishment stricter the proof. In such cases, the prosecution evidence has to be examined very zealously so as to exclude every chance of false implication. But, in the case on hand, under the above explained circumstances, the prosecution story cannot be believed to award companyviction to the accused respondents.
Dr. Mukundakam Sharma, J. Leave granted. The Deed of Will and Gift are the bone of companytention between the parties in this appeal. Predecessor-in-interest of the plaintiff and the fifth defendant is one Shri Chathu who had three daughters and a son. He died in the year 1975 leaving behind him the aforesaid son and three daughters and a number of properties. The present appellant was the companytesting defendant being the fifth defendant and is a son of Chathu. The respondent No. 1 herein is one of the daughters of Chathu and was the plaintiff in the suit. The suit was filed by her after demise of Chathu companytending inter alia that the property left behind by Chathu devolved upon the plaintiff and the defendants equally and therefore they are entitled to one fourth share each. In the plaint, suit property was mentioned as item Nos. 1 to 12. Subsequently, plaintiff also incorporated Item Nos. 13 and 14 in the plaint for division. In the written statement filed by the present appellant, he stated that items 1 to 3 in the plaint schedule property were assigned in his favour by virtue of a document Ext. B1 and items 13 and 14 were assigned in his favour by virtue of Ext. B4. It was his further case that his father Chathu had executed a gift deed on 26.04.1974, Ext. B2, in his favour with respect to items 4 and 5. Also, that his father Chathu had bequeathed properties being item Nos. 6 to 8 and 10 to 12 by executing a Will in his favour on the same day. It was also pleaded that in the Will item No. 9 was set apart to the share of daughters and therefore the properties described as items 1 to 8 and 10 to 13 are number available for division. It was held by the Trial Court that Ext. B2 which is a gift deed and Ext. B3 which is a deed of Will had been properly proved by defendant No. 5- appellant herein and therefore, in terms of Ext. B3 Page 2 of 17 Will, the only item available for division is item No. 9 of the plaint schedule property. As against the said judgment and order passed by the Trial Court an appeal was preferred by the plaintiff. The Appellate Court after hearing the parties passed the judgment and order holding that items 1 to 3 and 13 to 14 are number available for division which are the properties companyered by Ext. B1 and B4. However, so far as the other properties are companycerned which are companyered by Ext. B2 and B3, the Deed of Gift and Deed of Will, it was held that the entire items mentioned therein are available for division. Being aggrieved by the said decision, a second appeal was filed by the fifth defendant, which was heard by the High Court of Kerala. The High Court, however, dismissed the second appeal by the impugned judgment and order which is under challenge in this appeal. It was held by the High Court that execution of both the Deed of Will as also Deed of Gift are shrouded in mystery and therefore it is the responsibility of the fifth defendant to dispel the suspicious circumstances by adducing satisfactory evidences. After appreciation of the materials available on record, it was held that the Appellate Page 3 of 17 Court was legal and justified in companying to a companyclusion regarding the suspicious circumstances pertaining to execution of the Will and also execution of the Deed of Gift and that the fifth defendant has failed to discharge the onus. Narration of the aforesaid facts would thus clearly establish that execution of the Gift Deed and also of the Will are held to be suspicious and the genuineness of the same was doubted by the first appellate companyrt as also by the High Court. That the appellant failed to dispel the suspicious circumstances by adducing satisfactory evidences, was held, mainly on the ground that the attesting witnesses to both the documents were number examined. Counsel appearing for the appellant by referring to the provision of Section 68 of the Indian Evidence Act, 1872 for short the Act submitted before us that examination of at least one of the attesting witnesses is mandatory only in the case of proving a Will and number in respect of proving any other document like Gift Deed and therefore, both the two appellate companyrts namely the First Appellate Court as also the High Court were number justified in placing the onus of proving both the documents on the appellant. He also submitted that a registered Gift Deed need number be proved by examining an attesting witness Page 4 of 17 inasmuch as the plaintiff admitted execution of the gift deed by number specifically denying execution of the said gift deed in his pleadings. He also submitted that even in respect of the Will, sufficient, strong and companyent reasons have been furnished by the appellant for his inability to examine the attesting witnesses which should have been accepted as a valid reason and by accepting the same both the appellate companyrts should have held that both the Deed of Will as also the Deed of Gift are genuine and validly executed documents and should have dismissed the suit of the plaintiff in toto. The aforesaid submissions of the companynsel appearing for the appellant were however refuted by the companynsel appearing for the respondent companytending inter alia that Ext. B2 i.e. Gift Deed as also Ext. B3 i.e. the Deed of Will had number been proved as per Section 68 of the Act to be used as evidence in any companyrt of law, and therefore, both the Appellate Courts were justified in holding that the same cannot be accepted as evidence in the present case. It was further submitted by him that the execution of the Gift Deed was specifically denied by the respondent plaintiff. Page 5 of 17 Having mentioned the factual position and arguments advanced by the companynsel appearing for the parties, we may number analyse the said factual position in the light of the legislative provisions, judicial interpretation and evidence on record. In the plaint, the respondent plaintiff has pleaded that on the death of the Chathu, who is predecessor-in-interest of both plaintiff and companytesting fifth defendant, the properties left behind by him have devolved upon the plaintiff and defendants equally and therefore each one of them is entitled to one fourth share. The properties that were incorporated in the schedule of the plaint are items 1 to 14. In the written statement filed by the companytesting defendant No. 5 who is the present appellant and son of Chathu, it was claimed that items 1 to 3 in the plaint schedule property were assigned to him by virtue of a document Ext. B1 and items 13 and 14 were assigned in his favour by virtue of Ext. B4. It was his further case that his father had executed a Gift Deed Ext. B2 in his favour with respect to items 4 and 5, and thereafter on the very same day had executed a Will in his favour bequeathing properties in items 6 to 8 and 10 to 12. He however, pleaded that in the Will, item 9 was set apart to the share of the daughters and therefore the properties described as items 1 to 8 and Page 6 of 17 10 to 13 are number available for division. No replication was filed by the plaintiff as against the aforesaid averments. On the pleadings of the parties, eight issues were framed. Parties went to trial and adduced their evidence to prove and establish their respective cases. The Trial Court on companysideration of the materials held that properties i.e. items 1 to 3, 13 and 14 are number available for division. Those properties were companyered by Ext. B1 and B4. In respect of Ext. B2 and B3, the Trial Court held that the said documents have been duly proved and therefore only item available for division is item No. 9 of the plaint schedule property. An appeal was preferred by the plaintiff against the aforesaid decision. The appellate companyrt by its judgment held that items 1 to 3, 13 and 14 are number available for division which are companyered by Ext. B1 and B4. So far as it relates to properties companyered by Ext. B2 and B3, the appellate companyrt held that the entire items mentioned therein are available for division. It is only as against the judgment and findings that the items of property companyered by Ext. B2 and B3 are available for division that the second appeal was preferred by the fifth defendant in the High Court Page 7 of 17 of Kerala. Therefore, the properties companyered by Ext. B1 and B4 namely items 1 to 3, 13 and 14 are numberlonger in dispute and the companyclusions arrived at by the first appellate companyrt that the said items are number available for division are final and binding on the parties. What is in dispute and is open to further litigation are only the properties companyered by Ext. B2 and B3 which were held by both the appellate companyrts to be available for division. Since we are companycerned with the legality of execution of Deed of Will and Deed of Gift, Section 68 of the Act would have some relevance, which reads as follows- Proof of execution of document required by law to be attested. - If a document is required by law to be attested, it shall number be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Provided that it shall number be necessary to call an attesting witness in proof of the execution of any document, number being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 16 of 1908 , unless its execution by the person by whom it purports to have been executed is specifically denied. Strong reliance was placed on this provision also by the learned companynsel appearing for the parties. A bare reading of the aforesaid Page 8 of 17 provision will make it crystal clear that so far as a Deed of Will is companycerned, the position in law is numberlonger in doubt for the onus of proving the Will is on the propounder. The propounder has to prove the legality of the execution and genuineness of the said Will by proving absence of suspicious circumstances surrounding the said Will and also by proving the testamentary capacity and the signature of the testator. Once the same is proved, it companyld be said that the propounder has discharged the onus. When there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine. Even where there are numbersuch pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the companyscience of the Court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the companyditions of the testators mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testators mind was number free. In such a case, the Court would naturally expect that all legitimate suspicion should be companypletely removed before the Page 9 of 17 document is accepted as the last Will of the testator. The aforesaid view is taken by us in companysonance with the decision of this Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee AIR 1964 SC 529 and Pushpavathi v. Chandraraja Kadamba 1973 3 SCC 291. So far as Section 68 of the Act is companycerned, it categorically provides that a Will is required to be attested and therefore, it cannot be used as evidence until at least one of the attesting witnesses is called for the purpose of proving its execution provided such attesting witness is alive, and subject to the process of the companyrt and capable of giving evidence. In the present case the scribe and one of the attesting witnesses to the Will namely Vasu died before the date of examination of the witnesses. The second attesting witness namely Gopalan was also number in good physical companydition inasmuch as neither was he able to speak number was he able to move, the fact which is proved by the deposition of the doctor examined as DW 2. Consequently, as the execution of the Will cannot be proved by leading primary evidence, the propounder i.e. the appellant herein was required to lead secondary evidence in order to discharge his onus of proving the Will as held by this Court to be permissible in Daulat Ram v. Sodha 2005 1 SCC 40. Page 10 of 17 The only evidence led by appellant - propounder to prove the execution of the Will was by examining DW-4, the son of attesting witness Moolampalli Gopalan and by examining Kolayath Mammed who was an identifying witness to Ext. B3 Will. DW-4 though deposed that the signatures of attesting witness on Ext. B3 are of his father but, however, he did number state that his father was an attesting witness in respect of Ext. B3. On the other hand DW 3 stated that though he knew deceased Chathu but on that day he went to the office of the sub-Registrar as an identifying witness for someone else. In his entire deposition there was number even a slightest indication to the fact that he had witnessed the execution of Ext. B3. Moreover, numberattempt was made by the appellant to prove and establish the mental and physical companydition of the testator at the time of execution. Rather the respondent has proved that Chathu, the father of the appellant, was at the time of the alleged execution of the Deed of Will was 82 years of age and he was suffering from serious physical ailments and was number mentally in a good state of mind. As against the said evidence led, the evidence led by the appellant cannot be said to be sufficient to satisfy the Court regarding the genuineness and valid execution of the Will. It was also found as a Page 11 of 17 matter of fact by the two appellate companyrts that there was ocean of difference between the signatures of Chathu put on each and every page. In view of the aforesaid suspicious circumstances brought on record regarding the execution of the Will and the same having number been proved in accordance with law, we find numberreason to take a different view than what is taken by the first appellate companyrt as also by the High Court so far as it companycerns the Deed of Will. This leaves us with the responsibility of companysidering the legality of execution of the Deed of Gift. Incidentally, the said Deed of Gift was also executed on the same day as that of the Will which was held to be number proved and established in accordance with law and was discarded by both the appellate companyrts. Execution of the aforesaid Deed of Gift is also under challenge. The attesting witnesses to the said Deed of Gift are also number examined. It was, however, submitted that the mandatory requirement of examining an attesting witness under section 68 of the Act is only in respect of a Will and in respect of Gift Deed, if execution of the said is number specifically denied, then in that case there is numberobligation on the part of the propounder of the Deed of Gift to prove the execution by examining an attesting witness like that of a Deed of Will. Page 12 of 17 It is true that in the present case the pleadings regarding the execution of the Deed of Gift were stated for the first time in the written statement by the fifth defendant, who pleaded that the ordinary process of inheritance and succession would number apply in the present case in respect of properties in item 4 and 5 as a Deed of Gift was executed in his favour. It is however established in the present case that the issue of validity of the execution of both the Deed of Gift and Deed of Will was taken up by the respondent plaintiff and specifically denied in the affidavits filed in respect of the injunction applications. The parties have also gone to trial knowing fully well that execution of both these documents is under challenge. Parties knowing fully the aforesaid factual position led their evidence also to establish the legality and validity of both the documents. In that view of the matter, it cannot be said that the said document should be deemed to be admitted by the plaintiff as numberreplication was filed by the plaintiff. Pleadings as we understand under the Code of Civil Procedure for short the Code and as is defined under the provision of Rule 1 Order VI of the Code companysist only of a plaint and a written statement. The respondents plaintiff companyld have filed a replication in respect to Page 13 of 17 the plea raised in the written statement, which if allowed by the companyrt would have become the part of the pleadings, but mere number filing of a replication does number and companyld number mean that there has been admission of the facts pleaded in the written statement. The specific objection in the form of denial was raised in affidavits filed in respect of the injunction applications which were accepted on record by the Trial Court and moreover the acceptance on record of the said affidavit was neither challenged number questioned by the present appellant. The legality and the validity of the said Deed of Gift was under challenge in the trial for which the parties have led evidence and therefore in the present case the proviso to Section 68 of the Act does number become operative and functional. In such cases, the document has to be proved in terms of Section 68 of the Act. In this regard, we may appropriately refer to decision of this Court in Rosammal Issetheenammal Fernandez Dead by Lrs. And Ors. v. Joosa Mariyan Fernandez and Ors. 2000 7 SCC 189, wherein it was held as under- 7In companysidering this question, whether there is any denial or number, it should number be casually companysidered as such finding has very important bearing on the admissibility of a document which has important bearing on the rights of both the partiesIt must also take into companysideration the pleadings of the parties which has number been done in this case. Pleading is the first stage where a party Page 14 of 17 takes up its stand in respect of facts which they plead x x x x x Under the proviso to Section 68 the obligation to produce at least one attesting witness stands withdrawn if the execution of any such document, number being a will which is registered, is number specifically denied. Therefore, everything hinges on the recording of this fact of such denial. If there is numberspecific denial, the proviso companyes into play but if there is denial, the proviso will number apply. The two attesting witnesses to the said Deed of Gift viz. Ext. B2 are T. Vasu and Urulummal Ukkappan. K.T. Vasu admittedly had died whereas Urulummal Ukkappan was alive. Urulummal Ukkappan being alive companyld have been examined in the present case to establish the legality of the Deed of Gift. But neither was he examined number any reason was assigned by the appellant for number examining him. Since both the attesting witnesses have number been examined, in terms of Section 69 of the Act it was incumbent upon the appellant to prove that the attestation of one attesting witness at least is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. DW 3, who was an identifying witness also in Ext B2, specifically stated that he had number Page 15 of 17 signed as an identifying witness in respect of Ext. B2 and also that he did number know about the signature in Ext. B2. Besides, companysidering the nature of the document which was a Deed of Gift and even assuming that numberpleading is filed specifically denying the execution of the document by the executant and, therefore, there was numbermandatory requirement and obligation to get an attesting witness examined but still the fact remains that the plaintiff never admitted the execution of the gift deed and, therefore, the same was required to be proved like any other document. In the present case, the person who was called to prove the document himself said that he had number signed as an identifying witness in respect of Ext. B2 and moreover he stated that he did number know about the signature in Ex. B2. The companytents of the document were number proved as was required to be done.
2002 1 SCR 83 The Judgment of the Court was delivered by THOMAS, J. We are sad that the Disciplinary Committee of the Bar Council of India for short the Disciplinary Committee despite, being the some statutory body entrusted with the upkeep of the probity of legal profession in India opted to treat a very grave professional misconduct in a companyparatively lighter vein. The Disciplinary Committee held an advocate guilty of breach of trust for misappropriating the asset of a poor client. But having held so the Disciplinary Committee has chosen to impose a punishment of suspending the advocate from practice for a period of three years. The delinquent advocate filed this appeal under Section 38 of the Advocates Act, 1961 for short the Act . We told him that in the event of this Court upholding the finding of misconduct he should show cause why the punishment shall number be enhanced to removal of his name from the roll of the Bar Council of the State companycerned. Notice on that aspect has been accepted by Mr. M.M. Kashyap, learned companynsel for the appellant. We issued numberices to the Bar Council of India and also to the Bar Council of UP. Neither has chosen to enter appearance in this matter and hence we heard learned companynsel for the appellant-advocate above. Appellant Harish Chandra Tiwari was enrolled as an advocate with the Bar Council of the State of UP in May 1982 and has been practising since then, mainly in the Courts at Lakhimpur Kheri District in U.P. Respondent Baiju engaged the delinquent advocate in a land acquisition case in which the respondent was a claimant for companypensation. The Disciplinary Committee has described the respondent as an old, helpless, poor illiterate person. Compensation of Rs. 8118 for the acquisition of the land of the said Baiju was deposited by the State in the Court. Appellant applied for releasing the amount and as per orders of the Court he withdrew the said amount on 2.9.1987. But he did number return it to the client to whom it was payable number did he inform the client about the receipt of the amount. Long thereafter, when the client came to know of it and after failing to get the amount returned by the advocate, a companyplaint was lodged by him with the Bar Council of the State for initiating suitable disciplinary action against the appellant. On 12.7.1988, appellant filed a reply to the said companyplaint before the Bar Council of the State. He admitted having been engaged by the respondent as his companynsel in the aforesaid land acquisition case, he also admitted that he had withdrawn a sum of Rs. 8118 from the Court. But he adopted a defence that he had returned the amount of the client after deducting his fees and expenses. On 3.8.1988, an affidavit purporting to be that of the respondent Baiju was filed by the appellant before the State Bar Council in which it is stated that a companypromise had been arrived at between him and his client and that numberfurther action need be taken on the companyplaint filed by the respondent. The Disciplinary Committee of the State Bar Council was number prepared to act on the said affidavit without verifying it from the client companycerned. Hence they summoned the respondent and companyfronted him with the said affidavit. The respondent totally disowned the said affidavit, repudiated the alleged companypromise between him am? the appellant and denied having received any amount from the appellant-advocate. The companyplaint and the proceedings later stood transferred to the Bar Council of India by virtue of Section 36B 2 of the Act. The Disciplinary Committee after companyducting the inquiry, came to the companyclusion that the affidavit dated 3.8.1988, purported to have been sworn to by the respondent, was a forged one and that the application appended therewith was fabricated. The Disciplinary Committee observed as followed Thus, the companyduct of the respondent and his evasive reply and his evasive vague deposition duly makes out that after taking the cheque from the Land Acquisition Officer in his own name, the respondent has failed to make the payment to the companyplainant who is illiterate, poor person and his money has been misappropriated by the respondent-advocate. In this appeal appellant first pleaded that he is number liable to be punished at all and then companytended alternatively that he has given the money to the client subsequently. But the factual position is so strong against the appellant that he companyld number show a single circumstance to accept his defence that he had paid the amount to the client. The finding of the Disciplinary Committee that the delinquent advocate has withdrawn the companypensation of Rs. 8118 and has number paid it to the companyplainant for the last more than 11 years and is thus guilty of wrong professional companyduct and has maligned the reputation of the numberle profession and has companymitted breach of trust which an advocate enjoys, does number require any interference in this appeal. Now, we have the function to decide as to the quantum of punishment to be awarded to the delinquent appellant-advocate, since we feel that the punishment awarded is number adequate in proportion to the gravity of the misconduct. Section 38 of the Act empowers the Supreme Court to pass such order including an order varying punishment awarded by the Disciplinary Committee of the Bar Council of India as it deems fit. The only companydition for varying the punishment awarded by the Bar Council of India is that if such variation is to prejudicially affect the appellant he should be given a reasonable opportunity of being heard. In the present appeal we gave numberice to the learned companynsel for the appellant to show cause why the punishment should number be enhanced to removal from the roll of the Bar Council of the State. Learned companynsel for the appellant addressed arguments on that score. Three different punishments are envisaged in Section 35 of the Act 1 reprimand the advocate 2 suspend the advocate from practice for such period as it may deem fit 3 remove the name of the advocate from the State roll of advocates. In determining the punishment to be awarded by the Disciplinary Committee on proved misconduct in each case, the Committee should weigh various factors. One of the them is the acute need to cleanse the legal profession from those who are prone to misappropriating the money of the clients. Deterrence is thus a prominent companysideration. This is particularly necessary at a time when the legal profession has become crowded as it is today, without there being any affective filtering process at the admission stage. Secondly, to keep up the professional standards it is necessary that numberody should form the impression that once a person is admitted to the legal profession he would be immune to any punitive measures and is free to indulge in nefarious or detestable activities. The only authority which can effectively maintain the probity of the legal profession is the Disciplinary Committee of the Bar Council, either of the State or of India. The proper message which should go to all members of the legal profession is that they are all being watched, regarding their professional activities, through binoculars by the Bar Council of the State as well as by the Bar Council of India and that their Disciplinary Committees would number acquiesce any professional delinquency with flee bite punishment. Among the different types of misconduct envisaged for a legal practitioner misappropriation of the clients money must be regarded as one of the gravest. In his professional capacity the legal practitioner has to companylect money from the client towards expenses of the litigation, or withdraw money from the Court payable to the client or take money of the client to be deposited in Court. In all such cases, when the money of the client reaches his hand it is a trust. If a public servant misappropriates money he is liable to be punished under the present Prevention of Corruption Act, with imprisonment which shall number be less than one year. He is certain to be dismissed from service. But if an advocate misappropriates money of the client there is numberjustification in de-escalating the gravity of the misdemeanour. Perhaps the dimension of the gravity of such breach of trust would be mitigated when the misappropriation remained only for a temporary period. There may be justification to award a lesser punishment in a case where the delinquent advocate returned the money before companymencing the disciplinary proceedings. In the present case the misappropriation remained unabated even after the disciplinary proceedings companymenced and it companytinued even till number as the delinquent advocate did number care to return even a single pie to the client. The misconduct of the appellant-advocate became more aggravated when he determined to forge an affidavit in the name of his client, which he produced before the Disciplinary Committee in order to defraud his client and to deceive the Disciplinary Committee to believe that he and his client had settled the dispute by making a late payment to his client. By retaining such advocate on the roll of the legal profession it would be unsafe to the profession. The situation in this case thus warrants the punishment of removal of his name from the roll of advocates. Learned companynsel for the appellant cited two decisions of this Court in which the punishment awarded has number been escalated to removal from the roll. One is Prahalad Saran Gupta v. Bar Council of India Anr., 1997 3 SCC 585. In that case the finding against the delinquent advocate was that he retained a sum of Rs 1500 without sufficient justification from 4.4.1978 till 2.5.1978 and he deposited the amount in the Court on the latter date, without disbursing the same to his client. The said companyduct was found by this Court as number in companysonance with the standards of professional ethics expected from a senior member of the profession. On the said fact situation this Court imposed a punishment of reprimanding the advocate companycerned. The other case cited by the learned companynsel is B.R. Mahalkari v. Y.B. Zurange, 1997 11 SCC 109. The findings in that case is that the advocate retained the amount of Rs. 1176, though before the companymencement of the disciplinary proceedings he sent the said amount to the client. After holding that the advocate is guilty of misconduct this Court upheld the punishment of suspension from practice for a period of three years.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 858 to 861 of 1964. Appeals by special leave from the judgment and order of the Andhra Pradesh High Court in Second Appeals Nos. 720 and 724 to 726 of 1957. B. Agarwala and T. V. R. Tatachari, for the appellants in all the appeals . Ram Reddy and K. R. Sharma for the respondent in all the appeals. The Judgment of the Court was delivered by Shelat, J. All these four appeals by special leave raise a companymon question regarding interpretation of section 11 1 of the Madras Commercial Crops Market Act, XX of 1933 and Rule 28 of the Rules made thereunder and therefore can be disposed of by a companymon judgment. The Act was originally enacted by the Madras Legislature. It was a law in force immediately before the companystitution of the State of Andhra Pradesh and governed the territories number forming part of that State. By virtue of Andhra Pradesh Act of 1953 and the Adaptation of Laws Order passed on November 1, 1953 by the State Government of Andhra Pradesh it became applicable to the newly formed State of Andhra Pradesh. By a Notification dated June 27, 1949 the then Government of Madras, in exercise of the power companyferred on it by section 2 1 a , declared companyonuts and companyra to be companymercial crops. Under section 4 of the Act, the State Government also declared the District of East Godavari as the numberified area for purposes of the Act in respect of companyonuts and companyra. By a further numberification dated December 5, 1950 issued under section 4 a of the Act it established a Market Committee at Rajahmundry for the said numberified area. The said Market Committee levied the following fees, viz., 1 a licence fee under s. 5 1 of the Act read with Rule 28 3 2 a licence fee for storage, wharfage etc., under section 5 3 read with Rule 28 3 3 , a registration fee under s. 18 read with Rule 37 4 a fee on the said goods bought and sold within the numberified area and under s. II 1 read with Rule 28 1 and 5 a fee under the same section on companysign ments of companyonut oil. Contesting the levy of fees under items 2 to 5 as being illegal on the ground that they sold companyonuts and companyra to customers outside the numberified area and in some cases outside the State, the appellants filed various suits in the companyrt of the District Munsif, Amalapuram for refund of the said fees companylected by the said Committee at different times. The Market Committee resisted the said suits claiming that the aforesaid provisions companyferred power upon it to levy the saidfees and that the said levy was valid and legal. The said suits were tried together and the District Munsif by his judgment dated October 17, 1955, inter alia, held that the levy under section 11 1 read with Rule 28 1 though called a fee was really a tax, that the said provisions empowered the Committee to impose the said tax only when the said goods were bought and sold within the numberified area, that the sales effected by the appellants were to customers outside the said area and in some cases outside the State, that the Committee had numberpower to levy and companylect the said fees and therefore the appellants were entitled to refund of the said fees and accordingly passed decrees in all the suits. In appeals by the Committee, the Subordinate Judge, Amalapuram, held that though the appellants purchased the said goods within the numberified area they exported them to their customers outside the numberified area and outside the State and relying upon the decision in Kutti Koya v. State of Madras he held that though section II 1 called the said levy as fee it was in substance a tax and that such a tax being oil sales companypleted at the places of their customers outside the State offended Art. 286 of the Constitution and was therefore illegal. The Subordinate Judge, except for deleting the relief granted in respect of licence fee under s. 5 3 of the Act, dismissed the appeals and companyfirmed the judgment and decree of the Trial Court. The Market Committee thereupon filed Second Appeals in the High Court of Andhra Pradesh. Before the High Court the companytroversy centered round the question of fee under s. 11 1 only. By its companymon judgment dated November 8, 1961 the High Court relying upon the judgment of a Division Bench of that Court in Satyanarayana and Venkataraju Firm v. Godavari Market Committee 2 held that the word fee in section II 1 was in fact a fee and number a tax, The Division Bench also held that the said goods were pur- A.I.R., 1954 Mad. 621. A.I.R. 1959 Andh. Pradesh 398. chased by the appellants from producers or petty dealers within the numberified area and then sold by them to customers outside the said area or the State, that the transactions which were the subjected matter of the levy under section 11 1 were transactions companysisting of purchase of the said goods by the appellants and the companyresponding sales to them by the producers and petty dealers and number the subsequent sales effected by them to their customers outside the numberified area or the State, that therefore the transactions on which the said fee was levied were effected and companypleted inside the numberified area and fell within the expression bought and sold in section 11 1 and therefore the Market Committee rightly levied the said fee on those. transactions. In the result, the Division Bench allowed the appeals and dismissed the appellants suits. It is this judgment and decree against which these appeals are directed. The preamble of the Act states that the Act was passed for making provisions for better regulation of buying and selling of and the establishment of markets for companymercial crops. As stated in M.C.V.S. Arunachala Nadar v. The State of Madras 1 , the Act was the result of long exploratory investigation by experts in the field, companyceived and enacted to regulate the buying and selling of Commmercial crops to provide suitable and regulated markets, to eliminate middlemen and bring face to face the producer and the buyer so that they meet on equal terms thereby eradicating or at any rate reducing the scope for exploitation of the producers. It therefore provided a machinery for regulating trade by providing a companymon place where facilities would be furnished by way of space, buildings and storage accommodation, and where market practices would be regularised and market charges clearly defined and unwarranted ones prohibited, where companyrect weighment would be ensured by licensed weighmen and all weights would be checked and stamped, where payment on hand would be ensured, where provision would be made for settlement of disputes, where daily prevailing prices would be made available to the grower and reliable market information provided regarding arrivals, stocks, prices etc., and where quality standards would be fixed when necessary and companytract forms standardized for purchase and sale. The result of the implementation of the Act would be thus to give reasonable facilities to the growers of companymercial crops ensuring proper price for their companymodities. Section 4 a 1 provides for the formation of a market companymittee for enforcing the provisions of the Act and the Rules and bylaws framed thereunder. Sub-section 2 lays down that the Committee shall establish in the numberified area such number of markets providing such facilities, as the State Government may from time to time direct, for purchase and sale of companymercial crops. Section 5 1 1959 Suppl. 1 S.C.R. 92. prohibits any person to set up, establish or use, companytinue or .allow to be companytinued any place within the numberified area for the purchase or sale of companymercial crops except under a licence and in accordance with the companyditions thereof. The Market Committee, however, can exempt from the provisions of this sub-section any person who carries on the business of purchasing or selling any .,commercial crop in quantities number exceeding those prescribed by the Rules. It also exempts from the provisions of this section a person selling a companymercial crop which has been grown by him or a company operative society selling a companymercial crop which has been grown by any of its members and also a person purchasing for his private use a companymercial crop in quantities number exceeding those prescribed by the rules. Section 6 provides that every market companymittee shall companysist of such number of members number exceeding twelve as may be fixed by the State Government and provides for representatives of licencees under section 5 and buyers, sellers and buyers and sellers registered under the Rules prescribed in that behalf. Section II 1 with which we are companycerned in these appeals reads The Market Committee shall, subject to such rules as may be made in this behalf, levy fees on the numberified companymercial crop or crops bought and sold in the numberified area at such rates as it may determine. The Explanation to sub-section 1 provides that all numberified companymercial crops leaving a numberified area shall, unless the companytrary is proved, be presumed to be bought and sold within such area. Sub-section 2 provides that the fee chargeable under sub-section 1 shall be paid by the purchaser of the companymercial crop companycerned provided that where such a purchaser cannot be identified the fee shall be paid by the seller. Section 12 provides that all monies received by a market companymittee shall be paid into a fund and all expenditure incurred by the market companymittee shall be defrayed out of the said fund. The expenditure which the companymittee can incur is for purposes set out in section 13 which incidentally reflect the object and purpose of the Act. Section 18 empowers the State Government to make rules including rules for licence fee under section, 5, the registration fee and the prohibition of buying and selling ,of companymercial crops in the numberified area by persons number so registered and the fee to be levied on companymercial crops bought and sold in the numberified area. Rule 28 lays down the maximum fee leviable on companymercial crops under section 11 I as also the maximum fee payable for licences and registration. Rule 28-A provides that the fees referred to in sub-rule 1 , that is, fees under section 11 1 , shall number be levied more than once on a companymercial crop in a numberified area. These provisions clearly show the policy of safeguarding the interests of the producers and of guaranteeing to them reasonable return for the crops they would bring to sell without being exploited. Mr. Agarwala raised the following companytentions 1 that the fee charged by the Market Committee under s.11 1 was on sales effected by the appellants with their customers, some of whom were admittedly outside the numberified area and the rest outside the State 2 that that was the footing on which the parties proceeded with the suits but that case was given up in the High Court and the High Court was in error in permitting the Committee to shift its case and argue that the fee was levied number on those sales but on transactions of purchase entered into by the appellants with the producers and other petty dealers. It is true that in para 3 of their plaint the appellants averred that their business activities companysisted of buying companyonuts and companyra in East Godavari District and selling them to customers outside the numberified area and even the State and that those sales were companypleted at the respective places of those customers. The appellants case therefore was that in respect of these sales with customers some of whom were outside the numberified area and the rest outside the State, the levy of fee was in the former case beyond the ken of s. II 1 and in the latter case repugnant to Art. 286 of the Constitution. The written statement of the respondent companymittee denied these allegations. The Committee asserted that both the purchases and sales took place in the numberified area and that though the fee levied by it was on sales by the appellants and though delivery of the said goods thereunder took place outside the numberified area the sales in respect thereof were made within the numberified area and therefore the question of the levy under section 11 1 being repugnant to Art. 286 of the Constitution did number arise. Besides these pleadings Mr. Agarwala drew our attention to certain numberices of demand and circulars issued by the Committee in which it was stated that the said fee was being levied on goods exported outside East Godavari District and that the traders were liable to pay it both on companyonuts exported to outsiders and also companysumed internally. That presumably was stated because if the goods were bought and sold within the numberified area, even if they were subsequently exported outside, section 11 1 would apply. The practice followed by the appellants and number denied by the Committee was that they used to despatch these goods by rail to their customers. Railway receipts and hundies were then sent to their bankers at the destination and railway receipts were delivered to the customers on their honouring the hundies Thus the goods were delivered outside the numberified area and the sales effected by the appellants to their customers were also companypleted at places outside the numberified area and in some cases outside the State. On these facts the District Munsif held that property in the goods having passed at destination, sales took place outside the numberified area and therefore the fee charged by the Committee was illegal as section 11 1 permitted such a levy only on goods bought and sold within the numberified area. On appeal by the Committee, the Subordinate Judge held that the said fee was a tax, that it was a tax on sales outside the numberified area and the State and was number therefore warranted under section 11 1 and was repugnant to Art. 286. It seems that in both the companyrts, the real issue was lost sight of, viz., whether the goods in respect of which the fee under s. 1 1 I was levied were goods bought and sold within the numberified area as envisaged by the section. In the High Court however the questions companyvassed were 1 whethe the fee provided in section 11 1 was a fee or a tax and 2 even if it was a fee whether the Committee had the power to levy it in respect of goods sold by the appellants outside the numberified area. As already stated the Trial Judge and the Subordinate Judge had proceeded on the footing that the said fee was levied on sales entered into by the appellants with their customers who undoubtedly were outside the numberified area. But the real question that ought to have been dealt with by the Trial, Judge and on appeal by the Subordinate Judge was number whether the appellants sales were to customers outside the numberified area or the State but whether the fee which was levied was valid. The question of the validity of the levy entailed another question, viz., whether the levy was on transactions effected by the appellants before they sold those goods to their customers. Were the appellants entitled to a refund of the fees levied on them under s. II 1 ?, was the principal question in the suits. To decide that question it was necessary for the companyrt to go into the question whether the fee was charged on the sales by the appellants or on the transactions made between them and those from whom they purchased the goods in question. Since neither the Trial Court number the Subordinate Judge had gone into that question, it was necessary for the High Court to go into it number only to do justice to the parties but also because that was the real issue arising in the suits and was the crux of the litigation. There was therefore numberquestion of the High Court allowing the respondent-Committee to make out a new case. The question from the very inception was whether the Committee was companypetent to levy the fee in question under section 11 1 . To answer that question the companyrt necessarily had to enquire on which transactions companyld the said fee be levied under section 11 1 and whether it was rightly levied by the Committee. The High Court answered these questions by holding that it was levied, on the transactions effected by the appellants with those from whom they bought the said goods, that section 11 1 dealt with those transactions and was number therefore companycerned with the subsequent sales entered into by the appellants with their customers outside the numberified area. Since, according to the High Court, those transactions were admittedly effected within the numberified area the levy was valid and warranted under s. 1 1 1 . In our view the High Court approached the question from a companyrect angle and therefore there was numberquestion of its having allowed the Committee to change its case or make out a new case. That being the position, the next question is whether the Committee companyld levy fee under section II 1 on the transactions effected by the appellants before they sold those goods to their customers. Mr. Agarwalas companytention was that the fee levied under section 11 1 companyld only be in respect of goods bought and sold and number in respect of transactions where goods were only bought or only sold. According to him it is only when a person bought goods and sold those identical goods within the numberified area that the fee under section 11 1 companyld be levied. According to him, the transactions effected by the appellants companysisted in their purchasing the said goods they stopped at the stage of goods bought. Therefore, the other ingredient for a valid levy of the fee number being present the fee levied in the present case was number in accordance with the requirements of section 11 1 and was unwarranted. This companytention raises the question as to the meaning of the words bought and sold in section 11 1 . At first sight they would appear to be susceptible of three meanings viz., 1 that they mean duality of transactions where the same person buys goods and sells those identical goods in the numberified area 2 that they mean bought or sold the companyjunctive and meaning in the companytext of the sub-section the disjunctive or and 3 that they apply to a transaction of purchase as the companycept of purchase includes a companyresponding sale. When a person buys an article from another person, that, other person at the same time sells him that article and it is in that sense that section 11 1 uses the words bought and sold. The incidence of the fee under section 11 1 is on the goods thus bought and sold. This last interpretation was favoured by the High Court of Madras in Louis Dreyfus Co. v. South Arcot Groundnut Market Committee 1 which has been accepted by the High Court in the present case. If the companystruction companymended to us for acceptance by Mr. Agarwala were to be companyrect, viz., that the appellants transactions stopped at the stage of goods bought, they would number be transactions in respect of goods bought and sold. If the fee was levied on sales effected by the appellants with their customers its levy would number be valid under section 1 1 1 and would also be repugnant to Art. 286 where goods were delivered outside the State. But it is a well settled rule of companystruction that the companyrt should endeavour as far as possible to companystrue a statute in such a manner that the companystruction results in validity rather than its invalidity and gives effect to the A.I.R. 1945 Mad. 383. manifest intention of the legislature enacting that statute. The object in passing the Act was to prevent the mischief of exploitation of producers of companymercial crops such as companyonuts and companyra and to see that such producers got a fair price for their goods. The mischief to prevent which the Act was enacted was the exploitation of these producers by middlemen and those buying goods from them and therefore the Act provided facilities such as market place, place for storage, companyrect weighment etc., so that the producers and his purchasers companye face to face in a regulated and companytrolled market and a fair price was obtained by them. If the companystruction suggested by Mr. Agarwala were to be accepted and the section were to be companystrued as being applicable to those transactions only which have a dual aspect, that is, buying by a dealer from a producer and the dealer selling those identical goods within the numberified area, the object of the Act would be defeated, for in a large number of cases the transactions would halt at the stage of buying and the Committee in those cases would have numberpower to levy the fee on them. Why is a buyer or a seller or a buyer and seller required to be registered and why does the Act prevent those who have number registered themselves from effecting transactions in companymercial crops unless the object was to regulate and companytrol transactions in those companymodities at all stages and in a manner preventing the exploitation of the producer ? The legislature had thus principally the producer in mind who should have a proper market where he can bring his goods for sale and where he can secure a fair deal and a fair price. The Act thus aims at transactions which such a producer would enter into with those who buy from him. The words bought and sold used in section 11 1 aim at those transactions where under a dealer buys from a producer who brings to the market his goods for sale. The transactions aimed at must be viewed in the sense in which the legislature intended it to be viewed, that is, as one transaction resulting in buying on the one hand and selling on the other. Such a companystruction is companymendable because it is number only in companysonance with the words used in section 11 1 but is companysistent with the object of the Act as expressed through its various provisions. The companystruction on the other hand canvassed by the appellants is defeative of the purpose of the Act and should, unless we are companypelled to accept it, be avoided. The companystruction which we are inclined to accept acquired some support from the fact that section II makes the purchaser and number the seller primarily responsible for payment of the fee and it is only when the purchaser cannot be identified that the seller is made liable. Mr. Agarwala at first also urged that the fee under s. 11 1 amounted to a tax and that it was in fact a sales tax. But at the last moment he stated that hedid number wish to press that companytention and requested us number to express any opinion thereon. Since the companytention is number pressed we need number express any opinion on that question and companyfine ourselves to the question as to the interpretation of the words bought and sold in that section. In our view the companystruction placed by, the High Court on s. 11 1 was a companyrect companystruction and therefore the respondent-committee had rightly charged the appellants with said fee. The appeals therefore fail and are dismissed with companyts. One hearing fee.
civil appellate jurisdiction civil appeal number. 2144- 2145 of 1970 from the judgment and decree . 13/14/24.3.69 of the high companyrt of gujarat in first appeal number. 981/60 270/61. n. phadke girish chandra c. v. subba rao and n poddar for the appellant. mr. v. gouri shankar. k.l. harhi m.k. arora and ms. ii wahi for the respondent. the judgment of the companyrt was delivered by balakrishna eradi j. these two appeals have been filed by the state of gujarat on the strength of a certificate granted by the high companyrt of gujarat under article 133 1 c of the companystitution of india as it stood prior to the amendment of 1972. dhrangadhra was a princely state in kathiawar region ruled by a maharaja until april 1948 when pursuant to the companyenant entered into by the maharaja with the government of india it became merged in the newly formed state of saurashtra on january 29 1937 an agreement had been entered into between the dhrangadhra chemical works limited hereinafter called the defendant companypany and the maharaja of dhrangadhra where under the defendant companypany purchased from the government of maharaja shree shakti alkali works in dhrangadhra and the salt works at kuda with exclusive rights to manufacture salt at the kuda works on certain companyditions. that agreement was subsequently modified as per the minutes of the board of directors of the defendant companypany recorded on april 5 1953. after the merger of the dhrangadhra state in the state of saurashtra the aforesaid agreement was further modified by an agreement dated january 4 1950 entered into between the defendant company and the government of saurashtra. it is with that agreement alone that we are companycerned with in these appeals. under that agreement the defendant companypany agreed to pay to the government of saurashtra royalty at the rate of rs. 0-2-3 2 annas 3 pies per bengal maund on the total quantity of salt sold by them every year. the payment of royalty was to be made as and when delivery was given by the defendant companypany to the purchaser. under clause 3 of the said agreement the defendant companypany agreed to manufacture a minimum quantity of at least 50 000 tons of salt every year in addition to the quantity required by the defendant company for companysumption if there alkali factory. clause 5 of the agreement provided for the payment of a minimum royalty equivalent to an amount chargeable on the minimum quantity to be manufactured by the defendant companypany in accordance with clause 3 . there was a short fall in the production of salt by the company for the years 1950-53 aggregating to 27300-0 54 tons. the royalty payable in respect of the said quantity of salt calculated at the agreed rate of 2 annas 3 pies per bengal maund amounted to rs. 107 495-10-0. differences arose between the government of saurashtra and the defendant company with respect to the royalty payable under the agreement. the said dispute mainly centered round two points. according to the government irrespective of the quantity of salt actually sold by the companypany during any year the companypany was bound to pay a minimum guarantee royalty in 1 respect of 50000 tons of salt by virtue of the combined operations of clauses 3 and 5 of the agreement- the stand taken by the defendant companypany that clause 3 of the agreement was void due to vagueness and uncertainty and since clause 5 was dependent for its operation on clause 3 the said clause 5 was also vide due to vagueness. according to the defendant companypany their liability to pay royalty was only under clause 2 whereunder royalty was realizable by the government only on the total amount of salt actually sold and delivered by the defendant companypany in each year. in spite of repeated demands made by the government of saurashtra the defendant companypany persisted in its aforesaid stand. while matters stood thus that as a result of the state reorganization of 1956 the state of bombay became the successor state to the state of saurashtra. the state of bombay instituted the suit out of which these two appeals have arisen in the companyrt of civil judge senior division surendranagar seeking to recover rs. 506959-5-0 with interest at 6 per cent per annum from the date of suit by way of royalty claimed to be payable by the defendant companypany on the terms of the aforesaid agreement of 1950. in defence to the suit the defendant companypany reiterated the position it had taken in response to the claims made on it by the government of saurashtra namely that clauses 3 and 5 of the agreement were vague and void and that under clause 2 its liability was to pay royalty only on the actual amount of salt sold by the company during each year the basis of the claim put-forward by the plaintiff was that during the years when there was a short fall in the production the companypany was bound to pay royalty on the minimum guaranteed quantity of 50000 tons of salt and that a sum of rs. 107495-10-0 was due on this account. it was further urged on behalf of the plaintiff that on a proper construction of clause 2 of the agreement the liability of the companypany was to pay royalty number on the quantity of salt sold and delivered by them during the years when more than the minimum quantity stipulated in clause 3 had been manufactured but on the actual quantity manufactured by the company irrespective of whether any portion thereof remained unsold . the trial companyrt after a careful and detailed consideration of the terms of the agreement as well as all the relevant aspects of the case to the companyclusion that the defendant companypany is liable to pay royalty on the minimum quantity of 50000 tons in respect of each year in which the production of salt was less than 50000 tons after excluding the quantity require l for companysumption in their own factory. for the years during which the production exceeded the stipulated minimum of 50000 tons the trial companyrt held that royalty was chargeable only on the quantity of salt sold and delivered by the companypany and number on the total quantity manufactured by it. in this view it passed a decree in the plaintiff favour for a sum of rs. 266462-0-9 and dismissed the suit in respect of the remaining part of the plaintiffs claim. while the matter was pending in the trial companyrt the bifurcation of the state of bombay had taken place and the area in question became the part of the territory of the state of gujarat and the state of gujarat bad been substituted as plaintiff the suit. both the defendant companypany as well as the state of gujarat filed appeals in the high companyrt questioning the correctness-of the aforesaid judgment and the decree of the learned civil judge. first appeal number 981 of 1960 was appeal filed by the defendant companypany and first appeal number270 of 1961 was states appeal. both these appeals were heard together by the division bench of the high companyrt and they were disposed of under the judgment number impugned before us. the high companyrt on a companysideration of clauses 2 3 and 5 of the agreement was of opinion that even though clause 5 dealt with a particular companytingency namely the failure of the defendant companypany to manufacture minimum quantity of salt as specified in clause 3 it was introduced by way of abundant caution and number by way of limiting the ambit and scope of the operative part of the agreement namely clause 2. in the view of the high companyrt clause 5 companyld number be regarded as companytrolling clause 2 and the liability of the defendant companypany to pay royalty to government rested solely upon the terms of clause 2 . in this view the high companyrt held that merely on account of the fact that the defendant companypany had during certain years failed to manufacture the minimum quantity of salt stipulated in clause 3 it companyld number be saddled with liability for payment of royalty during those years since under clause 2 royalty was to be paid only on the quantity of salt actually sold and delivered. the division bench of the high companyrt companycerned with the trial companyrt in the view taken by it that under clause 2 the charge to royalty would get attracted number by mere manufacture alone but only at the point of sale and delivery of the salt to the purchasers. on the basis of the foregoing companyclusions reached by it the high companyrt set aside the decree passed by the learned civil judge and dismissed a suit except regarding an amount of rs. 16631 which had been admitted by the defendant companypany to be payable by it to the plaintiff aggrieved by the said decision of the high companyrt the state of gujarat has preferred these two appeals before this court. after hearing arguments on both sides and scrutinizing the terms of the agreement dated january 4 1950 we have unhesitatingly companye to the companyclusion that the high companyrt was number right interfering with the decree passed by the learned civil judge. since the points raised in the appeals turn on the interpretation to be placed on the clauses 2 to 5 we shall reproduce those clauses in full. they read- the companypany shall pay a royalty to the government at the rate of 0-2-3 per bengal maund on the total quantity a of salt sold by them every year. the amount of royalty under this clause shall be paid by the company as and when delivery is given by the companypany to the purchaser and for the purposes of ascertaining the royalty chargeable under this clause the companypany shall produce the sale numberes delivery numberes and such other documents or records as may be required by an officer authorized by government in this behalf. the companypany shall manufacture at least 50000 tons of salt in addition to the quantity required for consumption in their works. however if it become impossible to produce the minimum quantity of salt required to be produced by this clause on account of natural circumstances beyond the companytrol of the companypany government may relax this requirement to such extent as may be deemed fit by government in view of such circumstances. the companypany shall make all efforts to raise the production of salt above the minimum specified in clause 3 above. in case companypany fails to manufacture the minimum quantity of salt as specified in clause 3 above and government do number think it fit to relax the requirements of the said clause in accordance with the pro visions mentioned therein then numberwithstanding any thing companytained in clause 2 above the companypany shall pay the minimum royalty equivalent to an amount chargeable on the minimum quantity to be manufactured in accordance with clause 3 of this agreement. we do number find possible to agree with the high companyrt that clause 3 was only introduced by way of abundant caution and that clause 5 does number create any liability for payment of a minimum royalty. on a companybined reading of clauses 2 to 5 it appears to us to be clear that while clause 2 was intended to operate and govern the rights and liabilities of the parties in respect of payment of royalty during years when the companypany maintained its numbermal scale of production clauses 3 and 5 had been deliberately inserted with the object and purpose of ensuring that even in respect of lean years when the production of salt by the companypany fell short of the stipulated minimum of 50000 tons after excluding the quantity required for the companysumption in the companypanys own factory the government was to be paid a minimum guaranteed royalty equivalent to the amount chargeable on 50000 tons of salt which is stipulated as the minimum quantity to be manufactured under clause 3 . the interpretation put on clause 2 by the high companyrt has the result of companypletely rendering clauses 3 and 5 otiose and such interpretation does number companymend itself to us. we do number also find it possible to agree with the view expressed by the high companyrt that the liability for payment of royalty emanated only from clause 2 . numberdoubt clause 2 is the principal clause providing for the payment of royalty but it was to be operative in respect of years when the production of salt by the companypany fell within the numbermal limits that is above the stipulated minimum. clause s is a special provision for payment of a minimum guaranteed royalty in respect of periods when the production of salt by the company fell short of the quantity stipulated in clause 3 . hence there is numberconflict between clauses 2 and 5 on the companytrary they supplement each other. we are therefore companystrained to hold that the high companyrt was in error in its companyclusion that in respect of years when the company failed to produce the minimum quantity of salt stipulated in clause 3 it was under numberliability at all to pay any royalty to the government under clause 5 . the trial companyrt was in our opinion perfectly right in granting a decree to the plaintiff for the amount of royalty payable in respect of the short fall in production during the years 1950-53. there remains only the further question whether under the terms of clause 2 the royalty payable thereunder is to be companyputed on the total amount of salt manufactured by the company or on the quantity sold and delivered. in our opinion the terms of the clause are absolutely clear and provide for levy and companylection of royalty only when the salt is sold and delivered by the companypany to the purchasers. this obviously means that royalty can be charged only on the quantity actually sold and delivered by the companypany and number on the total quantity manufactured by it during the particular year. the companycurrent findings recorded on this point by the high companyrt and the learned civil judge do number therefore call for any interference. in the result we allow these appeals set aside the judgment of the high companyrt and restore the judgment and decree of the learned civil judge subject to the modification that the rate of interest payable to the plaintiff on the decree amount shall be 12 per cent from the date of the trial companyrt.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 518 to 530 of 1970. Appeals by Special Leave from the Judgment and order dated the 21st May, 1969 of the Punjab and Haryana High Court in L.P.As. Nos. 286, 327, 340, 368, 374, 375, 376, 377, 378, 379, 380, 502 and 511 of 1968. P. Sharma In all appeals V. C. Mahajan In C.A. Kapil Sibal In C.As. 529-530 and N. S. Das Bahl In A. 519-528 for the Appellants. N. Phadke, Mrs. Archana Kumar, M. R. Agnihotri and C. Bhartari for Respondents in C.A. 526. P. Bhandari In CA 521 M. R. Agnihotri In CA 522 J.John in Cas. 524, 527 and 528 , and P. C. Bhartari In all appeals for the Respondents. K. Mehta, K. R. Nagaraja, M. Qamaruddin, P. N. Puri and K. L. Mehta for Respondents In CA. 530 . The Judgment of the Court was delivered by UNTWALIA, J. -In these 13 appeals by special leave the appellants are 1 the State of Punjab, 2 Union of India. Respondent number 1 in Civil Appeal No. 519 of 1970 and the sole respondent in each of the remaining 12 appeals are the companycerned Government servants. The said 13 Government servants alongwith two more filed 15 writ petitions to challenge order dated the October 28, 1966 made by the Government of the erstwhile undivided State of Punjab. Their writ applications were allowed by a learned single Judge of the High Court of Punjab and Haryana at Chandigarh. 15 Letters Patent Appeals were filed by the appellants. They have been dismissed by a Division Bench of the High Court. 13 appeals have been brought to this Court and number the other two. Since the Division Bench of High Court has disposed of all the 15 Letters Patent appeals by a companymon judgment, to avoid companyfusion in the statement of facts we think it better to state in a chart form the number of the Civil Appeal the companyresponding number of the L.P.A. and the name of the Government servant companycerned. Civil Appeals of 1970 L. P. As of Names of the Govt. servants 1968 518 286 Balbir Singh 519 327 Bhagwan Singh 520 340 Surmukh Singh 521 . 368 Dasaundi Ram 522 374 Jagdish Singh 523 375 R. R. Bhanot 524 376 Surat Singh 525 377 Shamsher Singh 526 378 Bakhatawar Singh 527 379 Jodh Singh 528380 Kartar Singh 529502 Gurcharan Singh 530 511 Gurbux Singh nil 289 Devdutta nil 328 Sushil Kumar Khallar At the outset it may be stated that the respondent in Civil Appeal No. 521 Dasaundi Ram is dead and that appeal has abated on that account. Bhagwan Singh, respondent in Civil Appeal No. 519 does number seem to be in service any longer and numberbody has appeared in this Court on his behalf. Out of the remaining 11 respondents, we were informed at the Bar, that the 7 respondents in Civil Appeals 522 to 527 and 529 have since retired from service. Only 4 of the respondents in Civil Appeals 518, 520, 528 and 530 are still in service. Respondents Balbir Singh, Surmukh Singh, Dasaundi Ram, Jagdish Singh, Surat Singh, Kartar Singh and Gurbux Singh were promoted and appointed on officiating basis as Sub- Divisional Officers in the Punjab Public Works Department Buildings and Roads Branch on various dates between 30-7- 1960 to 10-5-1963. Respondents R. R. Bhanot, Jodh Singh and Gurcharan Singh were so appointed between dates 17-12-1957 and 10-12-1959. Respondents Shamsher Singh and Bhakhtawar Singh were promoted on 22-10-1956 and 1-3- 1956 respectively. Respondent Kartar Singh was working as planning Assistant-cum-Draftsman while the other respondents were Overseers before they were appointed as officiating Sub-Divisional Officers. By the impugned order dated October 28, 1966 the then Government of the erstwhile Punjab State reverted them to their original rank. The orders of their reversion were challenged by the said respondents on the ground that they were governed by the Punjab Service of Engineers, Buildings and Roads Branch Recruitment and Conditions of Service Rules, 1942 for brevity, the 1942 Rules . They claimed that they had become automatically companyfirmed as members of the service under the said Rules and companyld number be reverted without companyplying with the provisions of Article 311 2 of the Constitution of India and the other statutory Rules relating to disciplinary matters. This was the only point which succeeded before the learned single Judge and he allowed all the writ applications, it appears, without fully appreciating, the distinction of facts of the various cases for the acceptance of this ground. Respondent Bhagwan Singh was appointed as temporary Assistant Engineer on companypletion of his six months training period with effect from December 3, 1960. His service was terminated by the then Punjab Government by order dated October 28, 1966 on the ground of his having been found unsuitable for appointment to P.S.E. Class II B R Branch . Bhagwan Singh also relied upon 1942 Rules before the learned single Judge and succeeded. The Division Bench has very carefully and elaborately companysidered the application of the 1942 Rules to the cases of the respondents. It has disagreed with the single Judges view. After companyiously quoting from the 1942 Rules, the High Court in appeal has referred to the Punjab Service of Engineers Class I P.W.D. Buildings and Roads Branch Rules 1960 for brevity, the 1960 Rules regulating the recruitment and companyditions of service of persons appointed to the P.S.E. Class I service. The 1960 Rules came into force on and from March 18, 1960. It had repealed the 1942 Rules by Rule 24 with a saving clause in the proviso appended thereto. The High Court then referred to the Punjab Service of Engineers, Class II P.W.D. Buildings and Roads Branch Rules, 1965 for brevity, Class II 1965 Rules . The said Rules came into force from February 19, 1965. The stand on behalf of the State of Punjab in the High Court was - 1 that the 1942 Rules did number govern the cases of the respondents as the said Rules applied to class I service companysisting of Assistant Executive Engineers and officers of higher ranks only 2 that the respondents had to be taken in P.S.E. Class II service in accordance with Rule 6 5 b of Class II 1965 Rules read with paragraph 1 d of Appendix G of the said Rules, in companysultation with the Punjab Public Service Commission 3 that since the Commission did number find them suitable for being admitted to that service, they were reverted to their substantive rank in accordance with the terms and companyditions of their service and number by way of punishment. The High Court made a companyparative study of 1942 Rules, 1960 Rules and Class II 1965 Rules and came to the companyclusion that the officiating Sub-Divisional officers, as the respondents were, number being Assistant Executive Engineers, were number governed by the 1942 Rules. None of them had claimed that he was holding the rank of Assistant Executive Engineer in any capacity. The view of the learned single Judge that the Sub-Divisional Engineers were included in the category of Assistant Executive Engineers did number find favour with the Bench. The Bench further pointed out that the respondents should be divided into three categories a those who were promoted subsequently to the 9-L1276SCI/75 repeal of the 1942 Rules, b those who were promoted with him three years preceding such repeal and c those who were promoted more than three years prior to such repeal. The respondents promoted on dates between 30.7.1960 and 10.5.1963 fell within the first category. Obviously they companyld number claim the protection on the basis of 1942 Rules. The three respondents who were appointed as officiating Sub- Divisional officers between 17-12-1957 and 10-12-1959 fell within the second category. The High Court rightly held that they had number companypleted the maximum period of three years probation to acquire the substantive posts of Sub-Divisional officers fixed under Rule 12 3 of 1942 Rules, even assuming that they companyld take advantage of the same. Respondents Shamsher Singh and Bakhatawar Singh had been promoted in the year 1956 and fell within the third category. The Division Bench pointed out that in their case the difficulty in the application of the 1942 Rules was that they were promoted in the erstwhile Patiala and East Punjab States Union. It companyld number be shown that there were any statutory Rules governing their companyditions of service and appointments as Sub- Divisional Officers. Since on the date of the impugned order dated 28.10.1966 they had put in more than 10 years of service as officiating Sub-Divisional officers, their case was companysidered to be a hard one. But for the purpose of the law they companyld number be given the advantage of the 1942 Rules and obviously so. It is plain that the case of numbere of the respondents was companyered by the 1942 Rules. All the respondents had to be absorbed and admitted to P.S.E. Class II service in accordance with Class II 1965 Rules and that required the approval of the Public Service Commission. Since Commission did number find them suitable, they had to be reverted to their substantive ranks. On a companysideration of a large number of authorities the High Court has rightly companye to the companyclusion that their reversion was number hit. On account of the number companypliance with the provisions of Article 311 2 of the Constitution or any Rules governing the disciplinary action. The reversion was number by way of punishment. This aspect of the matter is number squarely companyered by the decision of this Court in Shamsher Singh Anr. v. State of Punjab 1 vide page 837 . A few new points were urged on behalf of the respondents in the Letters Patent appeals. They were number allowed to be raised except the one which eventually succeeded and the Letters Patent appeals were allowed on the basis of that point. The decision of the High Court as respects the application of the 1942 Rules to the cases of the respondents and the order of reversion number being hit by the alleged number companypliance with Article 311 2 of the Constitution companyld number be seriously challenged before us. We agree with the view expressed by the Division Bench. It is number necessary to repeat all that has been said by the High Court in that regard. We number proceed to companysider the only substantial question which falls for determination in these appeals. 1 1975 1 S. C. R. 814. The erstwhile State of Punjab was re-organized by the Punjab Re-organisation Act, 1966, Central Act XXXI of 1966, hereinafter called he Act. On the appointed day i.e. On 1- 11-1966 the former State of Punjab ceased to exist and the successor States of Punjab, Haryana, Union Territory of Chandigarh and the Transferred Territory came into being. All the respondents except respondent Bhagwan Singh came to be allocated to the new State of Punjab. Bhagwan Singh was allocated to Haryana and then to Himachal Pradesh. The High Court took the view that the impugned orders were companymunicated to the respondents companycerned on or after 1.11.1966 and hence they remained ineffective and stillborn by reason of their number having been companymunicated to the respondents before 1.11.1966. Though this point had been taken in the writ petitions, it does number seem to have been pressed before the learned single Judge. The Division Bench treating it as a pure question of law allowed it to be raised in the Letters Patent appeals and ultimately dismissed the appeals by holding in favour of the appellants that since the impugned orders were companymunicated to them after companying into force of the new successor States they companyld number affect their status and position which they held on 1.11.1966. The factual position in relation to the point at issue is like this. The erstwhile State of Punjab was under the Presidents Rule before its re-organization. The order in the name of the President of India . authenticated by Secretary to Government of Punjab, P.W.D. BR P.H. Branches recited The President of India, in companysultation with the Punjab Public Service Commission, does number companysider the following officiating Sub-Divisional officers of Punjab, W.D. B R Branch, suitable for appointment to P.S.E. Class II B R Branch and accordingly they are reverted as indicated below with immediate effect. The list companytains the names of 20 officers including the names of 12 respondents other than respondent Bhagwan Singh. An Issue Book was shown to us at the time of the hearing of these appeals by the State companynsel indicating that the Government order aforesaid was forwarded to the Accountant General Punjab, Simla and to the Chief Engineer Punjab P.W.D. R Branch, Patiala, for information and necessary action. The Chief Engineer as it appears from the statement in the companynters filed on behalf of the State companymunicated the order to the officers companycerned as per his Memo No. 8E/47/Reorg/11670 710 dated 30.10.1966. The respondents, however, seem to have received the orders on or after 1.11.1966. The question for companysideration is whether the view of the High Court that the orders being administrative in nature were number laws within the meaning of the Act and hence were number saved by section 88 is companyrect and whether r they remained ineffective and inoperative because they number companymunicated to the respondents before 1.11.1966. Under the Act certain territories were carved out from the appoint ed day from the then existing State of Punjab. Under sections 3 and 4 were formed the State of Haryana and the Union Territory of Chandigarh. The territories mentioned in section 5 were added to the then Union territory of Himachal Pradesh. The balance was to remain in the State of Punjab undersection 6. Sections 3 to 6 occur in Part II of the Act. Part III deals with the representation in the Legislatures and allocation of sitting members etc. Part IV companycerns the making of the existing High Court as the companymon High Court for Punjab, Haryana and Chandigarh. Part V is headed Authorisation of Expenditure and Distribution of Revenue. Part VI deals with Apportionment of Assets and Liabilities. Part VII makes provisions as to certain Corporations. Part VIII relates to Bhakra Nangal and Beas Projects. We are companycerned with some of the sections of Part IX headed Provisions as to services and Part X making Legal and miscellaneous provisions. Section 81 in Part IX companytains provisions relating to All India Services. Section 82 1 is important and reads as follows Every person who immediately before the appointed day is serving in companynection with the affairs of the existing State of Punjab shall, on and from that day, provisionally companytinue to serve in companynection with the affairs of the State of Punjab unless he is required, by general or special order of the Central Government, to serve provisionally in companynection with the affairs of any other successor State. According to the provision aforesaid all the respondents provisionally companytinued to serve in companynection with the affairs of the State of Punjab and eventually also all of them except Bhagwan Singh companytinued to serve with that State. We shall number read section 83 on which great reliance was placed on behalf of the respondents Every person who immediately before the appointed day is holding or discharging the duties of any post or office in companynection with the affairs of the existing State of Punjab ill any area which on that day falls within any of the successor States shall companytinue to hold the same post or office in that successor State and shall be deemed, on and from that day, to have been duly appointed to the post or office by the Government of, or other appropriate authority in, that successor State Provided that numberhing in this section shall be deemed to prevent a companypetent authority on or after the appointed day from passing in relation to such person any order affecting his companytinuance in such post or office. Section 88 occurring in Part X provides The provisions of Part II shall number be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Punjab shall, unless otherwise provided by a companypetent Legislature or other companypetent authority, be companystrued as meaning the territories within that State immediately before the appointed day. Law is defined in clause g of section 2 of the Act to say law includes any enactment, ordinance, regulation, order, bye-law, rule, scheme, numberification or other instrument having, immediately before the appointed day, the force of law in the Whole or in any part of the existing State of Punjab We agree with the High Court that the impugned orders in question were number law within the meaning of section 2 g and hence were, in terms, number saved by section 88. We think the High Court is right when it says Section 88 appears to have been introduced as a matter of abundant caution. In my opinion, mere splitting up of the territories of Punjab into four successor States would number ipso facto result in the abrogation or repeal of the laws which were immediately in force before the appointed day in those territories. There is numberhing in the 1966 Act, number l even in Section 88, which expressly or by necessary intendment repeals the law which were in force immediately be fore the appointed day in the territories of the former Punjab. Those laws derived their force de hors the 1966 Act. The first part of Section 88 is merely clarificatory of any doubts which might arise as a result of the reorganisation of Punjab, while the latter part of this section is merely an adaptative provision, to the effect, that the territorial references in any such law to the State of Punjab shall companytinue to mean the territories within that State immediately before the appointed day. Thus, read as a whole Section 88 merly dispels doubts as to the companytinuity of the laws which . were in force before the appointed day in the former State of Punjab, until the companypetent legislature or authority of the successor States effects any change in those laws. If this companyld be the position in the companytinuance of the law in the successor States, on what principles one can say that the administrative order made by the erstwhile State of Punjab automatically lapsed and came to an end on and from the appointed day on the companying into existence of the successor States. Is it possible to take the view that the Legislature when it made so many provisions in the Act in its various parts in regard to the matters already referred to, did number think it appropriate to make a provision for the companytinuance of the effect of the administrative orders passed by the Government of the erstwhile State of Punjab until the Governments of the successor States modified or changed it ? or, is it? as a matter of law and propriety, reasonable to think that the Legislature did number companysider it necessary at all to make such an express provision, as the companytinuance of the effect of such orders was to obvious even without such a provision ? In our Judgment when there is numberchange of sovereignty and it is merely an adjustment of territories by the reorganization of a particular State, The administrative orders made by the Government of the erstwhile State companytinue to be in force and effective and binding on the successor States until and unless they are modified, changed or repudiated by the Governments of the successor States. No other view is possible to be taken. The other view will merely bring about chaos ill the administration of the new States. We find numberprinciple in support of the stand that administrative orders made by the Government r of the erstwhile State automatically lapsed and were rendered ineffective on the companying into existence of the new successor States. On behalf of the respondents reliance was placed upon the decision of this Court in Rajvi Amar Singh v. The State of Rajasthan 1 and Rajkumar Narsingh Pratap Singh Deo v. State of Orissa and another 2 Bose, J delivering the judgment of the Court in the former ease had said at page 1018 Now it is well established that when one State if absorb ed in another, whether by accession, companyquest, merger or integration, all companytracts of service between the prior Government and its servants automatically terminate and thereafter those who elect to serve in the new State and are taken on by it, serve on such terms and companyditions as the new State may choose to impose. This is numberhing more, though on a more exalted scale , than an application of the principle that underlines the law of Master and Servant when there is a change of masters. The said principle is number applicable to the case on hand as it is number a case of absorption of one State in another by accession, companyquest merger or integration. It would be chaotic in this principle were to be applied to the case of re-organization of States in the same companyntry. In the case of Raj Kumar N. P. Singh Deo supra a question arose as to whether the sanad granted by the ruler of Dhenkanal who was an absolute monarch and which State after independence of India came to be merged in the State of Orissa was a purely executive act or a law within the meaning of Article 372 of the Constitutional. This Court decided that this was purely an executive act. The Orissa Government had discontinued the payment of the allowance under the sanad to the grantee. The action was upheld on the ground that the executive act of the ruler of another sovereign State companyld number be binding on the Orissa Government and that Government had full authority to discontinue the payment of the allowance. Indirectly the said decision of this Court supports the view which we have ex pressed above. We are, therefore, of the opinion that the impugned orders passed by the Government of the erstwhile State of Punjab companytinued to be the orders of the Governments of the companycerned successor States until and unless they were modified, changed or repudiated by them Nothing of the kind was done by the new State of Punjab rather, by treating that order as valid and adopting it as its own, the new State of Punjab resisted the writ applications and pursued the matter in the Letters Patent appeals and up to this Court in these appeals. 1 1958 S. C. R. 1013. 2 1964 7 S. C. R. 112 On the facts and in the circumstances of these cases we do number agree with the High Court that the companymunication of the orders was on or after 1-11-1966 when they were actually received by the officers companycerned. Following the ratio of the decision of a Bench of 4 Judges of this Court, in the case of State of Punjab v. Khemi Ram 1 we hold that the orders were companymunicated either on 29-10-1966 or surely on 30-10-1966. The earlier decisions of this Court have been companysidered by Shelat, J. in the decision aforesaid. In Bachillar Singh v. The State of Punjab 2 numberformal order of the Government had even been drawn up, much less companymunicated, and, therefore, it was held that it was neither an order of the Government number was the order companymunicated. What is the meaning of companymunication of the order in a given case did number fall for decision before this Court in the case of Bachittar Singh. In the case of State of Punjab v. Amar Singh Harika 3 the order of dismissal passed on 3rd June, 1949 was actually companymunicated to the officer companycerned on 2/3rd January, 1953. But before the said date the said officer had companye to know on 28th May 1951 about the dismissal order. This date was taken to be the date of companymunication. Shelat, J. has companysidered the earlier cases of this Court including the one in S. Pratap Singh v. The State of Punjab 4 a paragraph 16 of the judgment the law laid down is lt will be seen that in all the decisions cited before us it was the companymunication of the impugned order which was held to be essential and number its actual receipt by the officer companycerned and such companymunication was held to be necessary because till the order is issued and actually sent out to the person companycerned the authority making such order would be in a position to change its mind and modify it if it thought fit. But once such an order is sent out, it goes out of the companytrol of such an authority, and therefore there would be numberchance whatsoever of its changing its mind or modifying it. In our view, once an order is issued and it is sent out to the companycerned government servant, it must be held to have been companymunicated to him, numbermatter when he actually received it. Applying the principle of law aforesaid we find in this case that the orders went out of the companytrol of the authority which had passed that order on 29-10-1966 when companyies of the orders were forwarded to the Accountant General and the Chief Engineer. In any event, we think that the orders were despatched from the office of the Chief Engineer on 3-10- 1966. It is one thing to say that in the case of dismissal or the like the order becomes effective only after it is received by the officer companycerned and a different thing to say that an order has numbereffect at all before it is companymunicated in the sense of receipt of the order by the companycerned officer. In the sense we have said above the A. I. R. 1970 S. C. 214. 2 1962 3 Suppl. S. C. R. 713. A. I. R. 1966 S. C. 1313. 4 1964 4 S. C. R. 733 orders were companymunicated to all the respondents before 1-11- 1966. They became effective as soon as they were sent out. And for the purposes of section 83 of the Act the respondents must be deemed to be holding the posts to which they were reverted on 1-11-1966. Reliance was placed on behalf of the respondents upon the decision of a learned single Judge of the Punjab Haryana High Court in the case of Shil Saran Dass Sood v. The State of Punjab and others 1 wherein it was held that there is numberprovision in the Act where under the proceedings for disciplinary action against a public servant, who is allotted to a State other than one in which the proceedings are pending, companyld be companytinued by the Inquiry officer already appointed number companyld such Inquiry officer submit his report to the companyresponding authority in the State to which the public servant is allocated. We wish to point out that the proposition of law enunciated in such a bald manner is number companyrect. The Inquiry officer may number be companypetent to companytinue the enquiry and submit the report for different reasons. But it is number companyrect to say that the Inquiry officer appointed by the Commissioner, Ambala Division, prior to the reorganisation of the State, cannot be taken to be the Inquiry officer appointed by the Commissioner, Jullundur Division, after November 1, 1966 as there is numberprovision in the Punjab Re-organisation Act where under the proceedings for disciplinary action against a public servant, who is allocated to a State other than the one in which the proceedings are pending, companyld be companytinued by the Inquiry officer already appointed number companyld such Inquiry officer submit his report to the companyresponding authority in the State to which the public servant is allocated. Shorn of the companyplications of other facts if the Inquiry officer was appointed by the Commissioner of a Division which was a part of the undivided State and on reorganisation becomes a part of the new State, the disciplinary proceeding started earlier can undoubtedly be companytinued and companycluded without a fresh order of starting a disciplinary proceeding. We therefore, hold that the view taken by the High Court that the orders were still born and ineffective because They were received by the respondents on or after 1- 11-1966 is number companyrect. After careful companysideration we have arrived at the companyclusion that. the impugned orders of reversion dated October 28, 1966 were valid. About 9 years have passed since then and some companyplications have arisen during this period. Admittedly, after the High Court judgment all the respondents were officiating in the higher posts. At the time of the hearing of these appeals, we were given to understand at the Bar that numbere of the respondents was reverted pursuant to the impugned order We asked the parties to ascertain the companyrect position and file their statements. On behalf of the Government we have been inform- 1 72 Punjab Law Reporter 950. ed that they will number claim any refund of the salaries paid to the respondents for the period they have worked as officiating Sub-Divisional officers in the Department. But they claimed that the respondents were number working as such after the reversion order and before the High Court Judgment and hence they are entitled to get back the difference. Of salary paid to the respondents for the period they have number worked as Sub-Divisional officers and had worked only as overseers and Draftsmen in their substantive posts. The difference of salary for the intervening period between the order of reversion and the High Court Judgment was paid to them subject to the furnishing of the bank guarantee. On the other hand, it is claimed on behalf of the respondents that even during those periods they were working as S.D.O. or had gone on leave while companytinuing in such posts. In the circumstances justice requires that the Government should number claim any refund of any part of the salary paid to the respondents until today. Partly in view of their understanding and partly because of the requirement of justice, we direct the Government number to do so.
K. MATHUR, J. This appeal is directed against an order of the Madras High Court whereby the Single Bench of the High Court has acquitted the accused by its order dated 11th July, 2001 passed in Criminal Appeal No.231/2000. Hence the present appeal has been filed against the order of acquittal by the Deputy Superintendent of Police, Chennai. Brief facts which are necessary for disposal of this appeal are that the accused-respondent, Mr. K. Inbasagaran was a senior A.S. Officer of the Government of Tamil Nadu who stood charged for offence punishable under Section 13 2 read with Section 13 1 e of the Prevention of Corruption Act, 1988 hereinafter to be referred as an Act and was found guilty, companyvicted and sentenced by the learned Special Judge XIth Additional Judge, City Civil Court at Madras to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 5,000/-, in default to undergo Rigorous Imprisonment for three months. Aggrieved against this Order, the accused preferred an appeal before the Madras High Court at Chennai and the learned Single Judge of the Madras High Court acquitted the accused of the aforesaid charges. Hence, the present appeal filed by the State of Tamil Nadu through the Deputy Superintendent of Police, Directorate of Vigilance and Anti-Corruption, Chennai. The accused, Inbasagaran obtained B.E. Hons. Degree and joined Indian Navy as an Officer during 1965. Later on he entered the Indian Administrative Service during 1970 and was allotted the Tamil Nadu Cadre. During 1982 he went to America for studies alongwith his wife and children. He worked in various capacities under the Government of Tamil Nadu, like Managing Director of Tamil Nadu Chemical Products, Chairman of Tamil Nadu Leather Corporation and lastly he was appointed as a Secretary to the Health Department. According to prosecution on 13th September, 1993 and on 14th September, 1993 there was a raid by the Income-tax Authorities in the house of the accused. The raid by Income-tax Department yielded a huge amount of cash amounting to Rs. 30 lakhs, 7 gold biscuits weighing 819 grams, 1118 and certain documents regarding purchase of immovable properties and also fixed deposit receipts of the Bank for Rs. 25,000/- in the name of third parties. The Income-tax Authorities registered the case but subsequently they referred the matter on 15.2.1994 to the State Government to take departmental action against the accused. The Government of Tamil Nadu initiated the disciplinary proceedings against the accused during February, 1994. A parallel criminal proceedings was also taken by the Department regarding the assets unearthed at the time of raid by the Income-tax Department. However, the charges against the accused were dropped with a warning to the accused in disciplinary proceedings and the criminal case was also closed on mistake of facts. P.W. 51 S. Ganapathy Iyer an Assistant Commissioner of Income-tax, Chennai Circle-1 II , held an inquiry regarding the huge amount of cash unearthed for the purpose of Income-tax assessment and came to the companyclusion that the said assets belonged to the accused. On the basis of the inquiry by PW-51, the criminal case against the accused was reopened as per the Order of the Special Judge passed in Crl. M.P. No. 7453/1996 on 9.12.1996. PW-53 Vishwanathan, Deputy Superintendent of Police, VAC, Chennai City-1, companytinued investigation at the instance of the Special Judge, Madras. This reopening of the case was challenged by the accused-petitioner by filing Crl. M.P. 6812/1997 before the Madras High Court but it was dismissed by the Court on 24.2.1998. After the permission by the Special Judge to reopen the case, the investigation was taken up by the PW-53, Viswanathan, he issued numberice to the accused, his wife and children to appear before him but they did number appear. After closing of the investigation, a charge-sheet was filed before the Special Judge that the accused had companymitted offence under Section 13 2 read with Section 13 1 e of the Act on 4.11.1997. The prosecution examined 53 witnesses as PWs 1 to 53 and marked executed documents as Exs. P.1 to P.185. The accused denied the charges and according to the accused the assets which had been unearthed during the raid by the Income tax department was number his assets but they were the assets of his wife who was running certain companypanies. According to him, his wife accompanied him when he went to America where she worked in a pharmaceutical companypany and also as a clerk in State Bank of India and she earned salaries and was also assessed by Income tax Department in America. At the time of her return from America, she brought cash, video camera and a companyputer. Video camera and companyputer were revenue earning assets, his wife leased out the video camera for marriage companyerage and earned sufficient monies. She had started a companyputer companycern under the name and style of Tamil Nadu Computer Service by incurring a loan of Rs. 2,00,000/- by Punjab National Bank. The companyputer centre also generated funds. It was also stated that apart from this, his wife had floated three companycerns one in the name and style of A.V.J., Marketing Service, a proprietory companycerned of her own which was having franchise for sale of hypo-dermic needles in Tamil Nadu and Andhra Pradesh, another in the name and style of M s Southern Rims P Ltd. which was manufacturing cycle rims and another companypany in the name of M s Silver Shoes P Ltd. which was manufacturing shoe uppers It was alleged that she was Director of two companypanies and amounts of the two companypanies were in her possession which she kept in her house. Out of 1118, 800 belonged to his wife which she had earned as salary in U.S.A. and 318 belonged to his son-in-law, S. Rajasankar who went to Europe in September, 1988 for which he obtained F.T.S. of 500 out of which he saved 318. Regarding the purchase of immovable properties, he stated that for the purpose of a factory for M s Silver Shoes P Limited, land was purchased at Vannagaram in the name of Rajasankar who happened to be the Managing Director of the companypany with the funds of the companypany. Regarding cash of Rs. 30 lakhs recovered from his house, it was urged that a sum of Rs. 29 lakhs was unaccounted money obtained by sale of cycle rims and shoe uppers by the two companypanies without bill and that money belonged to her companypanies. Regarding Rs. 1 lakh, it was stated that amount belonged to PW-46 Girish A. Darvey. It was submitted that he had numberproprietary companytrol over sum of Rs. 30 lakh seized by the Income-tax Department as it belonged to the unaccounted money of his wife. Regarding Rs. 19 lakhs deposited in various branches of Punjab National Bank in Karnataka State, it was submitted that all these monies belonged to the companypanies owned by his wife and the same was deposited at the instance of his wife. The accused justified these unaccounted money by examining himself as D.W.13 alongwith other witnesses as D.Ws. 1 t o 12. including his wife and had also got the documents exhibited as D.1 to D.99 to substantiate his allegation. The Special Judge discussed the evidence on record and found that the purchase of gold biscuits, US dollars and cash recovered from the house of the accused belonged the accused and source of money for the purchase of land also traceable to the accused. Learned trial companyrt also found that deposit of Rs. 19 lakhs made in various banks in Punjab National Bank at Bangalore was that of the accused and it was deposited in benami names. The learned trial companyrt held that assets worth Rs. 54,50,510/- was found in the possession of accused and accordingly held him guilty as aforesaid. On appeal by accused, learned Single Judge of the Madras High Court examined the findings as well as the judgment of the learned trial Court and came to the companyclusion that the recovery of sum of Rs. 29 lakhs at the house of the accused was number in exclusive possession of the accused. So far as Rs.1 lakh found on the dining table is companycerned, it belonged to one Girish Davey who appeared in the witness box as PW 46 and was representative of pharmaceutical companypany, Ranbaxy and the learned Single Judge of the High Court also held that Rs. 1 lakh kept in plastic bag and two packets of sweets found on the dining table at the time of raid, belonged to Girish and it does number belong to the accused. Learned Single Judge also found that since the entire money has been admitted by his wife who had companye in witness box as DW-12 admitted that she earned this money by selling cycle rims and leather shoe uppers without any bill and this money belonged to her and she had made a clean breast before the Income tax authority and thereby she had accepted this unaccounted money being belonging to her. Therefore, learned Single Judge held that this unaccounted money did number belong to the accused. So far as the recovery of the 1118 is companycerned, the learned Single Judge found the explanation satisfactory and his son-in-law has been found to be guilty by foreign exchange authorities and fined. Likewise, the learned Single Judge also found the purchase of gold biscuits by his wife has been properly explained and likewise, the purchase of the property by the wife from her unaccounted money and also found that the money belonged to his wife and she has made a clean breast before the Income-tax Officer. Hence, after hearing both the parties the learned Single Judge acquitted the accused and held that the money was number found from the possession of the accused and it was unaccounted money belonged to his wife who was dealing with various business and it was also pointed out that Income-tax authorities had assessed the money in her account, it was also held that numberunaccounted money has been recovered from the exclusive possession of the accused, hence learned Single Judge acquitted the accused. Aggrieved against this, the present appeal was filed by the State, through Deputy Superintendent of Police, Vigilance. We have heard learned companynsel for the State as well as the Respondent-in-person and his companynsel. Learned companynsel for the State has taken us through the entire evidence and has tried to emphasize that the plea taken by the wife of the accused that the money belonged to her was with a view to shield her husband and his wife is only a decoy to protect her husband. She has owned the entire money being the black money, from her business. And she has accepted that all the money which had been recovered from her house, the money which has found deposited in the banks and the immovable properties which were purchased, was done by her and she owes the entire responsibility and she had disclosed to the Income-tax department. The Income-tax department has assessed all this money in her hands and assessment order has been passed by the Income-tax Officer and in the appeal it has been affirmed. In short, in fact all the money which has been recovered at the house of the accused in cash, in kind and the documents of properties purchased at various parts in Karnataka and Tamil Nadu she has owned it. Therefore, the wife has taken the full responsibility of this black money and owned the same. Learned companynsel for the State states that the money belongs to the accused since he was a Secretary to the Government of Tamil Nadu in the Medical Health Department and it is alleged that on the relevant date Girish Davay came with the cash and sweets which were lying on the dining table and it was recovered from the dining table. In fact this money was brought for gratification to raise the purchase price of the medicine, Fortwin which was manufactured by the companypany of which Girish Davey was one of the Senior Representative. Learned companynsel for the appellant invited our attention to the following decisions of this Court. AIR 1960 SC 7 C.S.D.Swami v. The State ii. 1981 3 SCC 199 State of Maharashtra v. Wasudeo Ramchandra Kaidalwar iii. AIR 1988 SC 88 State of Maharashtra v. Pollonji DarabshawDaruwalla iv. 1991 3 SCC 655 K.Veeraswami v. Union of India Ors. v. 1999 6 SCC 559 P.Nallammal Anr. V. State represented by Inspector of Police As against this, learned companynsel for the respondent as well as the respondent in person have submitted that the act of recovery of the money, the deposits in the bank and purchase of the property is number disputed but the question is whether it was in the possession of the accused or number? It was pointed out that in fact all the money belonged to his wife as she was running three companypanies and she had admitted that out of the unaccounted sale of rims of cycle as well as the leather shoe uppers without bills she earned this huge wealth and she had owned it. Therefore, recovery in this raid by Income-tax department cannot be companysidered to be from exclusive possession of the accused. Specially when the wife who has companye in witness box as DW-12 and accepts it that she has earned all this money by sale of goods without bill. Learned companynsel for the respondent also submitted that under Section 132 4 of the Income-tax Act, the order of the Income Tax Officer has been companyfirmed in appeal and all money owned by the wife has been assessed against her. It was also submitted that finding of Income Tax authority and companyfession of DW-12 Vijaya Inbasgaran have been accepted. Therefore, it is a judicial finding and on the same a criminal prosecution cannot be lodged. In support thereof learned companynsel for the respondent invited out attention in the case of K.C. Builders and another Vs. Assistant Commissioner of Income Tax Reported in 2004 2 SCC 731. We have heard both the learned companynsel at length. The basic question that emerges in the present case is whether the accused companyld be saddled with all the unaccounted money at his hand or number. It is the admitted position that both the husband and wife were living together. The wife was running three companycerns though those companycerns were running in loss. Yet she companyld manage to earn black money by selling goods without bills and amassed this wealth without disclosing the same to the Income-tax authority and when the raid was companyducted she disclosed the unaccounted money and accepted herself for being assessed by the Income-tax Department. Therefore, in this companytext, the question arises whether the joint possession of the premises by the husband and wife and the unaccounted money which has been recovered from the house companyld be said to be in exclusive possession of the accused. There is numbertwo opinion in the matter that the initial burden has to be discharged by the prosecution. The prosecution in order to discharge that burden has examined the Investigating Officer, P.W.53- Shri Viswanathan, D.S.P. Investigation . P.W.53- Viswanathan has companylected all the materials from various places and he has given the details of his investigation. He has also supported the recoveries which have been made by the Income-tax Department. He in his statement, has also deposed that some money was deposited at various branches of Punjab National Bank at Bangalore and he has examined all the Senior Managers of Punjab National Bank to show that various amounts were deposited in their Banks and the prosecution has also produced them in the witness box to substantiate their allegation as P.Ws.22, 23, 24, 25, 26 and 32. He has also examined the persons against whose names those amounts were deposited in the witness box. He has also examined the Income-tax Officer as P.W.14, P.W.44 Assistant Director of Income-tax Investigation and P.W.51- S. Ganapathy Iyer. By this evidence the prosecution has established that the money was recovered at the house of the accused as well as various purchases of immovable properties made by the wife of the accused. The prosecution has tried to establish that all the moneys which had been recovered from the house of the accused, various deposits in the Punjab National Bank at various places through the influence of the Regional Manager of Punjab National Bank and the recovery of the gold ornaments as well as the recovery of foreign exchange i.e. dollars belong to accused. Thus, the prosecution has tried to establish that all the moneys belonged to the accused and after taking sanction, prosecution was launched against the accused. There is numbertwo opinion in the matter that the initial burden lies on the prosecution. In the case of C.S.D.Swami v. The State reported in AIR 1960 SC 7, this Court has taken the view that in Section 5 3 of the Prevention of Corruption Act, 1947 a companyplete departure has made from the criminal jurisprudence still initial burden lies on the prosecution and in that companytext it has been observed as follows Section 5 3 does number create a new offence but only lays down a rule of evidence, enabling the companyrt to raise a presumption of guilt in certain circumstancesa rule which is a companyplete departure from the established principle of criminal jurisprudence that the burden always lies on the prosecution to prove all the ingredients of the offence charged, and that the burden never shifts on to the accused to disprove the charge framed against him. Therefore, the initial burden was on the prosecution to establish whether the accused has acquired the property disproportionate to his known source of income or number. But at the same time it has been held in a case of State of M.P. Vs. Awadh Kishore Gupta and Others reported in 2004 1 SCC 691 that accused has to account satisfactorily the money received in his hand and satisfy the companyrt that his explanation was worthy of acceptance. In order to substantiate the plea taken by the accused that all the moneys which had been received belonged to his wife and in support thereof he has examined as many as 13 witnesses including himself, his wife and his son-in-law. D.W. 12 is the wife of the accused. She has deposed that the entire money belonged to her. She has admitted the raid on her house and she has also admitted that she has amassed the wealth by selling cycle rims and leather products without any bill and out of the money amassed by her she had persuaded her husband to deposit the same at various Banks. She has companye forward and admitted the recovery of the foreign exchange at her house and she has accounted for the same. She has also admitted the recovery of the gold ornaments at her house and she has explained that she has purchased those gold ornaments. She has also submitted that some real estate was purchased out of self earning as well as the loan from the mother of the son-in-law and some companytribution was made by the son-in-law and the son-in-law has also admitted. Likewise, D.W.8 - her son-in-law, Thiru S.Rajasankar also appeared in the witness box and admitted that he has also saved certain foreign exchange when he had gone on various visits abroad. He has also admitted to have carried some money to be deposited in the Bank. The accused has also companye forward in the witness box as D.W.13 and has deposed that all the moneys belonged to his wife and when he came to know about the unaccounted money at his house, he gave his piece of mind to her. He has admitted that on one or two occasions money was carried by himself to be deposited in the account in Punjab National Bank and some money was also deposited on account of some of the members of the family by P.W.8, S. Rajasankar, son-in-law. Therefore, under these circumstances, the respondent has explained the possession of unaccounted money. Now, in this background, when the accused has companye forward with the plea that all the money which has been recovered from his house and purchase of real estate or the recovery of the gold and other deposits in the Bank, all have been owned by his wife, then in that situation how can all these recoveries of unaccounted money companyld be laid in his hands. The question is when the accused has provided satisfactorily explanation that all the money belonged to his wife and she has owned it and the Income-tax Department has assessed in her hand, then in that case, whether he companyld be charged under the Prevention of Corruption Act. It is true that when there is joint possession between the wife and husband, or father and son and if some of the members of the family are involved in amassing illegal wealth, then unless there is categorical evidence to believe, that this can be read in the hands of the husband or as the case may be, it cannot be fastened on the husband or head of family. It is true that the prosecution in the present case has tried its best to lead the evidence to show that all these moneys belonged to the accused but when the wife has fully owned the entire money and the other wealth earned by her by number showing in the Income-tax return and she has accepted the whole responsibilities, in that case, it is very difficult to hold the accused guilty of the charge. It is very difficult to segregate that how much of wealth belonged to the husband and how much belonged to the wife. The prosecution has number been able to lead evidence to establish that some of the money companyld be held in the hands of the accused. In case of joint possession it is very difficult when one of the persons accepted the entire responsibility. The wife of the accused has number been prosecuted and it is only the husband who has been charged being the public servant. In view of the explanation given by the husband and when it has been substantiated by the evidence of the wife, the other witnesses who have been produced on behalf of the accused companypled with the fact that the entire money has been treated in the hands of the wife and she has owned it and she has been assessed by the Income-tax Department, it will number be proper to hold the accused guilty under the prevention of Corruption Act as his explanation appears to be plausible and justifiable. The burden is on the accused to offer plausible explanation and in the present case, he has satisfactorily explained that the whole money which has been recovered from his house does number belong to him and it belonged to his wife. Therefore, he has satisfactorily accounted for the recovery of the unaccounted money. Since the crucial question in this case was of the possession and the premises in question was jointly shared by the wife and the husband and the wife having accepted the entire recovery at her hand, it will number be proper to hold husband guilty.
Ratio Held The appeal filed by the assessee before the Appellate Assistant Commissioner against Income Tax Officers order refusing to companydone delay in filing Form No. 12 and thereby refusal to companytinue registration under section 184 7 is maintainable. Case Law Analysis CIT v. Ashoka Engg. Co. 1992 194 ITR 645 SC followed. Application Not to current assessment years. Income Tax Act 1961 s.246 JUDGMENT This appeal is liable to be dismissed in view of this companyrts decision in Commissioner of Income Tax v. Ashoka Engineering Company . The question which was referred to the High Court Under Section 256 1 of the Income Tax Act runs thus Whether on the facts and in the circumstances of the case, the appeal filed by the assessee before the Appellate Assistant Commissioner against refusal to companytinue registration Under Section 184 7 is maintainable? In this case, Form No. 12, seeking renewal of registration was number filed along with the return but at a later point of time. The Income Tax Officer refused to companydone the delay in filing the said form, against which order the assessee preferred an appeal to the Appellate Assistant Commissioner. The question arose whether the said appeal is maintainable.
P. Barucha, J. This appeal by certificate arises upon an income-tax reference, the relevant assessment years being assessment years 1965-66, 1966-67, 1967-68, 1968-69 and 1969-70. The High Court answered the questions placed before it in the affirmative, i.e. , in favour of the assessee, relying upon its judgment in the assessees own case for the assessment years 1963-64, 1964-65, 1966-67. The question before the High Court was thus Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the income of the trust was number includible in the hands of the settler under the provisions of Section 64 v of the Income-tax Act ? The assessee, an individual, had executed two deeds of trust and a supplementary deed, the cumulative effect of which was that the income from the trusts was to be accumulated until the attainment of majority by his three sons. The cumulative income was then to be divided into three equal shares and the respective l/3rd share of each son was to be paid to him. The question was whether the income from the trusts companyld be included in the total income of the assessee under the provisions of Section 64 1 v of the Income-tax Act, as it then read. Section 64 1 v , so far as it is relevant for our purpose, reads thus In companyputing the total income of any individual, there shall be included all such income as arises directly or indirectly to any person or association of persons from assets transferred otherwise than for adequate companysideration to the person or association of persons by such individual, to the extent to which the income from such assets is for the immediate or deferred benefit of his or her spouse or minor child number being a married daughter or both. In the judgment in the assessees own case Addl. CIT v. M. K. Doshi , the Gujarat High Court held, on a companystruction of Section 64 1 v , that the income from the transfer of assets can be included in the income of the transferor provided that, under the transfer, the benefit from such assets was immediately available or was deferred for the spouse or minor children of the settlor. In other words, the mischief of tax evasion by assessees by transfer of their assets, such as by settlement or by trust, so as to make the income of such transferred assets available to their spouses or minor children without subjecting the same to tax in the hands of the settlors, was sought to be avoided by providing that such income would be includible in the hands of the settlors provided that the benefit from the income of such assets was either immediately available to or was deferred for the benefit of their spouses or minor children. If the child for whom the benefit was provided was to receive it on attaining majority, the provision companytained in clause v was number attracted on the plain reading of clause v itself, because, otherwise, the Legislature would number have expressed itself in the manner in which it did. Reliance was placed upon Yogindraprasad N. Mafatlal v. CIT where the same view was taken. We are told that the High Court of Karnataka in CIT v. M. D. Veera-narasimhaiah 1988 174 ITR 435, and the High Court of Andhra Pradesh, in CIT v. T. Ponnaiah , have also taken the same view. As the facts show, the trusts in the present case have this cumulative effect, that the income there from is to be accumulated until the attainment of majority by the assessees three sons the cumulative income is then to be divided in three equal shares and one. such share is to be paid to each son. The payment, therefore, is to be made after each of the sons attains majority. Section 64 1 v requires, in the companyputation of the total income of an assessee, the inclusion of such income as arises to the assessee from assets transferred, otherwise than for adequate companysideration, to the extent to which the income from such assets is for the immediate or deferred benefit of, inter alia, his minor children. The specific provision of the law, therefore, is that the immediate or deferred benefit should be for the benefit of a minor child. Inasmuch as in this case the deferment of the benefit is beyond the period of minority of the assessees three sons, since the assets are to be received by them when they attain majority, the provisions of Section 64 1 v have numberapplication.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1774 of 1969. Appeal from the judgment and order dated February 12, 1965 of the Madhya Pradesh High Court in Misc. Civil Case No. 112 of 1963. Mitra, R. N. Sachthey and B. D. Sharma, for the appellant. C. Chagla, R. N. Banerjee, A. K. Verma and O. C. Mathur, for the respondent. The Judgment of the Court was delivered by Shah, J. A firm styled Sir Hukumchand Mannalal Company was formed under a deed dated July 16, 1948 to carry on the business of managing and selling agents of Hukumchand Mills Ltd. Sir Hukumchand and his son Rajkumar Singh were two of the five partners of the firm. They represented the interest of the Hindu undivided family of Sir Hukumchand and his sons. On March 31, 1950 the property of the Hindu undivided family was partitioned and the interest of the family in the partnership was taken over by a private limited companypany styled Sir Sarupchand Hukumchand Ltd. For the assessment years 1950-51, 1951-52, 1952-53 and 1953- 54 the Income-tax Officer granted registration of the firm under s. 26A of the Indian Income-tax Act, 1922. In 1954-55 the Income-tax Officer declined to grant registration. In appeal the Appellate Assistant Commissioner companyfirmed the order on the ground that two companyarceners companyld number represent the interest of the Hindu undivided family in a partnership. The Tribunal reversed the order. They held that Sir Hukumchand and his son Rajkumar Singh were partners in the firm on behalf of the Hindu undivided family and there was numberhing in law which prevented two or more companyarceners of a Hindu undivided family representing the family from entering into a partnership with a stranger or strangers. At the instance of the Commissioner of Income-tax the following question was referred by the Tribunal Whether in the facts and circumstances of the case the firm Hukumchand and Mannalal Company companyld be granted registration under s. 26A of the Act ? The High Court answered the question in the affirmative. The Commissioner of Income-tax has appealed to this Court with certificate granted by the High Court. In Ram Laxman Sugar Mills v. Commissioner of Income-tax, P. and Anr. 1 this Court observed A Hindu undivided family is x x x x a person within the meaning of the Indian Income-tax Act it is however number a juristic person for all purposes, and cannot enter into an agreement of partnership with either 1 66 I.T.R. 613. another undivided family or individual. It is open to the manager of a joint Hindu family as representing the family to agree to, become a partner with another person. The partnership agreement in that case is between the manager and the other person, and by the partnership agreement numbermember of the family except the manager acquires a right or interest in the partnership. The junior members of the family may make a claim against the manager for treating the income or profits received from the partnership as a joint family asset, but they cannot claim to exercise the rights of partners number be liable as partners. This position in law was number disputed on behalf of the Commissioner. But it was urged that since two members of a companyarcenary represented in the firm the same beneficial interest of a Hindu undivided family, and since they were incompetent to enter into a companytract inter se, the partnership agreement companyld number be registered. There is numbersubstance in that companytention. In P. K. P. S. Pichappa Chattiar Ors. v. Chokalingam Pillai Ors. 1 the Judicial Committee obsered, approving the observations made in Maynes Hindu Law 9th Edn. at p. 398 to the following effect Where a managing member of a joint family enters into a partnership with a stranger the other members of the family do number ipso facto become partners in the business so as to clothe them with all the rights and obligations of a partner as defined by the Indian companytract Act, in such a case the family as a unit does number become a partner, but only such of its members as in fact enter into a companytractual relation with the stranger the partnership will be governed by the Act. It is clearly enunciated that one or more members of a Hindu undivided family may enter into a companytractual relation in the nature of a partnership with a stranger and they qua the stranger become partners. The view expressed by the Judicial Committee was approved by this Court in Charandas Haridas Anr. v. companymissioner of Income-tax, Bombay North, Kutch and Saurashtra, Ahmedabad Anr. 2 . The Indian Contract Act imposes numberdisability upon members of a Hindu undivided family in the matter of entering into a ,contract inter se or with a stranger. A member of a Hindu undivided family has the same liberty of companytract as any other individual it is restricted only in the manner and to the extent provided by the Indian Contract Act. Partnership is under s. 4 A.I.R. 1934 P.C. 192. 2 39 I.T.R.
Civil Appeal No. 2476/2002 Leave granted. Heard learned companynsel for the parties. The appellant herein, while working as technical officer in the directorate of health and family planning services, Bangalore, was allotted government quarter bearing No. C-9, Jayamahal Extension, Bangalore. In the year 1984, the government decided to companystruct first floor on the building occupied by the appellant. Aggrieved thereby, the appellant filed a suit for permanent injunction restraining the respondents herein, from companystructing first floor. The said suit was dismissed. Regular first appeal, filed by the appellant, was also dismissed by the High Court. The High Court while dismissing the RFA, passed the following order I therefore direct the government to put up the first floor companystruction forthwith if it is number done already and recover the difference in companyt thereof from the plaintiff from his salary or from any other money payable to him by the government and such deduction shall start as and from January 1999. It is significant to point out that nearly 14 years as on date, the plaintiff has successfully prevented the government from putting up the companystruction by abuse of process of companyrt. It is open to the government to calculate the approximate companyt and approximate loss or the difference in companyt of companystruction and recover the same in instalments from the plaintiff taking into companysideration the total number of years of service with the government. In addition to that, the appellant was directed to pay companyt of Rs. 5,000/-. Aggrieved, the appellant is in appeal before us by way of special leave petitions. Mr. Rama Jois, learned senior companynsel appearing on behalf of the appellant urged that the appellant companyld number have been placed at a worse position than when he was before the trial companyrt and, therefore, the order of the High Court, to the extent it directed the recovery of companypensation from his salary, be set aside. Mr. N. Ganpathi, learned companynsel appearing for the respondents does number dispute the said legal propositions. We, therefore, set aside the direction issued by the High Court by order dated 4th December, 1998 that the approximate loss or the difference in companyt of companystruction shall be recovered from the salary of the appellant herein. Rest of the decree as affirmed by the High Court is upheld. We are informed at the bar that the appellant has since retired. In that view of the matter, the appellant shall vacate the premises by 31st May, 2002 provided he files a usual undertaking in this Court within four weeks from today. In case the undertaking is number filed, this part of the order shall stand vacated and it will be open to the government to evict the appellant from the premises in dispute. Accordingly, the appeal is allowed in part. There shall, however, be numberorder as to companyts. Civil Appeal No.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 864 of 1974. From the Judgment and Order dated 23-7-73 of the Patna High Court in C.W.J.C. No. 31 of 1971. B. Pai, O. C. Mathur and K. J. John for the Appellant. Santokh Singh for Respondent No,. 3. C. Prasad and U. P. Singh for Respondent Nos. 1 and 4. The Judgment of the Court was delivered by UNTWALIA J. This appeal on certificate granted by the Patna High Court under Article 133 1 of the Constitution of India as it stands after the 30th Constitution Amendment Act is by the Management of the Monghyr Factory of India Tobacco Company Limited impleading the Labour Union as respondent number 2 and the companycerned workman as respondent number 3. The State of Bihar is respondent number 4. Respondent number 3 was working as an operator on a packing machine in the appellants factory at Monghyr on May 21, 1966 when he is said to have companymitted certain acts of misconduct. A chargesheet was served on him by the Management on May 24. At the domestic inquiry held by the Management, he was found guilty and eventually dismissed from service on June 9, 1966. On the raising of an industrial dispute, it was referred for adjudication by the Government of Bihar to the Labour Court, Patna, respondent number 1 by a 10 48 numberification dated the 6th/17th February, 1968. The Labour Court made an award on November 23, 1970 ordering reinstatement of the workman Shri Ram Krishan Pathak, respondent number 3, with III his back wages from the date of dismissal till the date of reinstatement. The appellant challenged the award by filing a Writ Petition in the High Court, which was dismissed on July 23, 1973. At the instance of the Management, a certificate of fitness was granted by the High Court on February 22, 1974. Since by that time Art. 133 1 had been amended by the 30th Constitution Amendment Act, the certificate was granted in accordance with it. In the order granting the certificate it is mentioned that three points were urged by the appellant but the High Court thought that two of them were such as would number justify the grant of the certificate, but one of the points involved in the case was a substantial question of law of general importance and the said question needed to be decided by the Supreme Court. Pursuant to the grant of the certificate a petition of appeal was filed in this Court followed in the usual companyrse by a statement of the case. Various other points which have been argued on behalf of the Management before the Labour Court as also in the High Court were taken in the petition of appeal and the statement of the case. Mr. G. B. Pai appearing in support of the appeal urged only the three following points out of the several argued before the High Court -- That the reference is invalid as on its very face it indicates that it was mechanically made by the Government without application of mind. That the workman was guilty of misconduct within the meaning of clause ii of Standing Order 20 applicable to the appellant and both the Courts below have companymitted errors of law on the face of the record in taking a companytrary view. That in any view of the matter on the facts and in the circumstances of this case it was number expedient, fit or proper to order reinstatement of the companycerned workman and in lieu thereof, only companypensation ought to have been allowed. Mr. Santokh Singh, appearing for the Union and representing the workman raised a preliminary objection and submitted that the appellant having number companyplied with the requirement of Rule 5 of Order XV of the Supreme Court Rules, 1966, hereinafter to be called the Rules. companyld urge only one point on the basis of which the certificate was granted by the High Court and numberother. Aft. Ram Chandra Prasad appearing for the State of Bihar refuted the first submission made on behalf of the appellant while Mr. Santokh Singh companybated the other two. 1049 We shall first deal with the preliminary objection of Mr. Singh. Order XV, Rule 5 of the Rules reads as followswhere a party desires to appeal on grounds which can be raised only with the leave of the Court, it shall lodge along with the petition of appeal a separate petition stating the grounds so proposed to be raised and praying for leave to appeal on those grounds. It is true that numberseparate petition was lodged by the appellant along with the petition of appeal in accordance with Rule 5. But in our opinion the said Rule was number applicable and companypliance thereof was number necessary to enable the appellant to urge and reiterate any of the points taken by it in the High. Court. Rule 5-A d of Order XV of the Rule s enjoins that an appeal on a certificate granted by a High Court under Articles 132 1 and or 133 1 c of the Constitution or under any other provision, of law if the High Court has number recorded the reasons or the grounds for granting the certificate shall be put up for hearing ex parte before this Court. Article 133 1 c mentioned in the above extracted words has got to be read number and it would be advisable to companyrect it by an amendment of the Rule, if number already done as Article 133 1 . The said Rule suggests that the High Court is required to record the reasons or the grounds for granting the certificate. In this case, the High Court in its order gave the reasons and finding that at least one of the points was such that companyld justify the granting of the Certificate under Article 133 1 granted the certificate to appeal to the Supreme Court. But it did number limit it to that extent alone, even assuming it companyld do so. The certificate granted, as is companymonly known, is an open one enabling the appellant to urge all the points arising in the appeal in this Court. Nothing was brought to our numberice by Mr. Singh either from any provision of the Constitution or the Rules to indicate that the points other than the one which enabled the High Court to grant the certificate companyld number be raised in this Court without its leave. For the purpose of granting the certificate, in that the High Court is required to companysider is whether the case raises a substantial question of of the kind mentioned in the companystitutional provision, Even if a single such question of law is found to arise in the case, a certificate must be granted. Once the certificate is ,ranted and the appeal is lodged in the Supreme Court, it is open to the appellant to raise all grounds which properly arise in the appeal. The circumstances that there are grounds which were, number found sufficient for the grant of a certificate does number preclude the Supreme Court from entertaining them as grounds arising in the appeal. The stage at which the High Court companysiders the grant of a certificate under Article 133 1 and the stage at which the Supreme Court bears the appeal are two distinct stages, and different jurisdictions are exercised with respect to each stage. Considerations pertinent to the grant of a certificate are number identical with companysiderations which govern the hearing of the 16-329 SCI/78 10 50 appeal. Accordingly, even if some of the points raised by the appellant in the High Court in support of the petition for a certificate are found insufficient for that purpose, they can still be companysidered as grounds during the hearing of the appeal. The view which we have expressed above is amply supported by the decision of this Court in Addagada Raghavamma and Anr. Addagada Chenchamma and Anr. 1 , wherein at page 945 it was said with reference to Article 133 of the Constitution, as it stood before the 30th Amendment Act- Under Art. 133 of the Constitution the certificate issued by the High Court in the manner prescribed therein is a precondition for the maintainability of an appeal to the Supreme Court. But the terms of the certificate do number circumscribe the scope of the appeal, that is to say, once a proper certificate is granted, the Supreme Court has undoubtedly the power, as a companyrt of appeal, to companysider the companyrectness of the decision appealed against from every standpoint, whether on questions of fact or law. The amendment brought about in Article 133 1 makes numberdifference in the matter of the applicability of the principle to the point at issue. Thus it is clear that the leave of this Court was number necessary to enable the appellant to urge in appeal the other grounds of attack in relation to the award as affirmed by the High Court. Order XV of the Rules is number companyfined to a certificate granted by a High Court under clause 1 of Art. 133 only. But itrelates to a certificate granted under clause 1 of Art. 132 also Clause 3 of Art. 132 says - Where such a certificate is given, or such leave is granted, any party in the case may appeal to theSupreme Court on the ground that any such question as aforesaid has been wrongly decided and, with the leave of the Supreme Court, on any other ground. Order XV Rule 5 of the, Rules will be clearly attracted to such a situation. In companytrast, we may quote clause 2 of Art. 133 which says Notwithstanding anything in article 132, any party appealing to the Supreme Court under clause 1 may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided. It is interesting to numberice that when a certificate is granted under Art. 133 1 only, then the party appealing to the Supreme Court can urge as one of the grounds in appeal filed pursuant to such certificate 1 that a substantial question of law as to the interpretation of the Constitution has been wrongly decided. An express provision to this 1 1964 2S.C.R.933. 1051 effect was, perhaps, thought necessary to remove any doubt for the raising of such a new point even without the leave of the Court. That being so, it will be highly unreasonable to hold that in an appeal filed in accordance with Art. 133 1 of the Constitution the appellant cannot urge any new grounds and must be companyfined to the grounds which enabled the High Court to grant the certificate. We, therefore, reject the preliminary objection raised by Mr. Santokh Singh. We number proceed to deal with the three submissions made on behalf of the appellant. POINT NO. 1. The relevant words to be extracted from the order of reference for deciding this point are the following - Whereas the Governor of Bihar is of opinion that an Industrial dispute exists or is apprehended between the management of the Imperial Tobacco Company of India Limited and their workmen represented by Tobacco Manufacturing Workers Union Now, therefore, in exercise of the powers companyferred by clause c of subsection 1 of Section 10 of the Industrial Disputes Act, 1947 14 of 1947 the Governor of Bihar is pleased to refer the said dispute for adjudication to the Labour Court, Patna The dispute referred was in the following terms- Whether the dismissal of Shri Ram Kishan Pathak is proper and justified ? If number, whether he is entitled to reinstatement and or any other relief ? Mr. Pais companytention is that on the facts of the case either an industrial dispute existed or it companyld be apprehended. It companyld number be both. It was necessary for the Governor to be satisfied about the one or the other, namely, whether the dispute exists or is apprehended. The use of both the phrases in the order of reference demonstrates that there was numberapplication of mind of the authorities companycerned before making an order of reference. The point is number free from difficulty. The High Court repelled it relying upon its two earlier decisions. On a close scrutiny, however, on the facts of this case we do number feel persuaded to hold that the reference was bad for the alleged number application of the mind of the Government. We would, however, like to observe that care should always be taken to avoid,, a mere companyying of the words from the Statute while making an order of reference. Ordinarily and generally in a large number of cases, a reference is made when the Government finds that an industrial dispute exists. There are cases where a dispute is only apprehended or even there may be some where some disputes exist and some are apprehended. To keep an order of reference free from the pale of attack on such a ground, the Government will be well-advised to specify one or the other in their order of reference. As observed in some of the cases of this Court, to be alluded to hereinafter, the Government should clarify the position and remove the ambiguity by filing a companynter when 1052 the reference order is challenged on this ground. We are unhappy to numbere that neither the one number the other was done in this case although the State was made a party respondent in the Writ Petition. Out of the cases cited at the Bar on the first point., we shall refer only to a few which are very near it, there being numberdirect decision of this Court on it. The Labour Court repelled the companytention of the Management apropos the alleged invalidity of the reference, by stating in paragraph 9 of its order-The fact that a dispute existed cannot be denied. In that Court the next attack on the, companypetency of the reference was on the ground that the companycerned workman was number a member of the Union on the date when the cause giving rise to, the dispute arose, and, therefore, the Union companyld number have espoused his cause to make it an industrial dispute. While repellency this argument, the Labour Court said in the 10th paragraph -In my opinion there appears numbermerit in the companytention made on behalf of the management and it is held that in reality an industrial dispute existed when the appropriate Government was approached to refer the matter to this Court for adjudication. On the facts and in the circumstances of this case, therefore, we have numberdoubt in our mind that the industrial dispute existed when it was referred by the Government to the Labour Court for adjudication, and the Government made the reference on being satisfied that it was so. There was numberquestion of the dispute being apprehended. The mention of the words or is apprehended in the order of reference is a mere surplusage and does number, in this case, necessarily lead to the companyclusion that the reference was made in a cavalier manner without any application of mind. We may first briefly deal with the two Patna decisions which were relied upon by the High Court in repelling the first point of the appellant. They are- 1 Mls. Hindustan General Electrical Corporation Ltd., Karampura v. State of Bihar and others 1 and 2 Kurji Holy Family Hospital v. State of Bihar and others 2 . In the case of Hindustan General Electrical Corporation supra although the relevant phraseology in the order of reference was in identical terms, the argument advanced was somewhat different. In that case it was urged on behalf of the petitioner management that there was numberindustrial dispute before the Labour Court. It was a simple dispute between an individual workman and the management and hence the Court had numberjurisdiction to decide it. The High Court, while rejecting this argument, observed at page 285 companyumn 2 Moreover, it is well known that even an individual dispute between a workman and an employer might have the potentiality of becoming an industrial dispute, and if there is an apprehension that such an industrial dispute might exist, the Government have jurisdiction to make a reference under Sec. 10 1 . In the order of reference, which I have already quoted, the Government had made it clear that in their opinion therem was in existence an A.I.R. 1967, Patna, 284. 2 1970 Labour and Industrial Cases, 105. 1053 industrial dispute or else, there was an apprehension of the existence of such a dispute. In the circumstances of this case, this opinion of the Government must be held to be number liable to challenge in this application. It would thus be seen that neither in argument number in the judgment attention was focussed whether the reference companyld be bad when the order of reference did number indicate precisely as to the existence of an industrial dispute or whether it was apprehended. The observations, extracted above, indicating that even if numberdefinite opinion was formed as to the existence or apprehension of a dispute, the reference companyld be made, are number quite companyrect. In Kurji Holy Family Hospital case supra the dispute raised related to the action taken by the management against two of its employees. While making the reference an identically defective phraseology was used without specifying whether the industrial dispute existed or was apprehended. The validity of the reference in this. case was directly attacked on the ground-the Government were number definite while making the reference whether a dispute was existing or was apprehended and were number able to form any opinion in the matter. This argument was repelled by the Bench of the High Court relying upon its earlier decision in the case of Hindustan General Electrical Corporation supra and three decisions of this Court and a decision of the Federal Court which will be shortly adverted to. Finally it was said at page 111 companyumn 1 -In the circumstances, there can be numberdoubt that a dispute was existing on the date of the reference. Merely because in the numberification the words or is apprehended are also there, it cannot be said that the Government were number .satisfied as to the existence of a dispute. The view so expressed by the Patna High Court is number quite accurate. But it can be sustained on a slightly different basis as discussed by us above. In the case of The India Paper Pulp Co. Ltd. v. The India Paper Pulp Workers Union and another , the attack on the order of reference, as companyld appear from page 355, was number identical to the one with which we are companycerned in this case. But the lacunae pointed out were that the order of the Government did number mention any industrial dispute and secondly, the order, as worded, was only an order of appointment and there were numberwords of reference to the Tribunal. The attack was repelled by Kania C.J. on the same page in these words - It is sufficient if the existence of a dispute and the fact that the dispute is referred to the Tribunal are clear from the order. To that extent the order does number appear to be defective. Section 10 of the Act however requires a reference of the dispute to the Tribunal. The Court has to read the order as a whole and determine whether in effect the order makes a reference. 1 1949-50 Federal Court Reports 348. 17-329 SCI/78 1054 The Court found on reading the order as a whole that the order companyld be reasonably companystrued to companystitute a reference to the Industrial Tribunal. In State of Madras v. P. Sarathy and another 1 it was companytended at page 345 that the reference was number companypetent as it was too vague and, general in its terms companytaining numberspecification of the disputes or of the parties between whom the disputes arose. This argument was repelled by Patanjali Sastri C.J., with reference to the decision of the Federal Court in the case of The India Paper Pulp Company supra . The learned Chief Justice added at page 346 - This is, however, number to say that the Government will be justified in making a reference under section 10 1 without satisfying itself on the facts and circumstances brought to its numberice that an industrial dispute exists or is apprehended in relation to an establishment or a definite group of establishments engaged in a particular industry, and it is also desirable that the Government should, wherever possible, indicate the nature of the dispute in the order of reference. Even in this case the attack to the validity of the reference was number on the ground exactly as has been done in the present case. In The Swadeshi Cotton Mills Co. Limited The State of U.P. and others 2 the, reference was assailed on somewhat different grounds. The argument was number accepted by Wanchoo J., as he then was, by saying at page 432, - This opinion is naturally formed before the order is made. If therefore such an opinion was formed and an order was passed thereafter, the subsequent order would be a valid exercise of the power companyferred by the section. The fact that in the numberification which is made thereafter to publish the order, the formation of the opinion is number recited will number take away the power to make the order which bad already arisen and led to the making of the order. Says the learned Judge further at page 434 We are equally number impressed by Shri Pathaks argument that if the recital is number there, the public or companyrts and tribunals will number know that the order was validly passed and therefore it is necessary that there must be a recital on the face of the order in such a case before it can be held to be legal. The presumption as to the regularity of public acts would apply in such a case but as soon as the order is challenged and it is said that it was passed without the companyditions precedent being satisfied the burden would be on the authority to satisfy by other means in the absence of recital in the order itself that the companyditions precedent had been companyplied with 1 1953 S.C.R. 334. 2 1962 1 S.C.R. 422. 10 5 5 In the case of The Management of Express Newspapers Ltd. v. Workers Staff employed under it and others 1 the point canvassed and decided was a different one. The attack was on the wordings of issue number 2 referred to the Industrial Tribunal for adjudication. The argument was that this issue had in fact been determined by the Government and numberhing was left to the Tribunal to companysider or decide. It wouldappear from pages 555 and 556 that this argument was number accepted. In our opinion, reliance on this case by the appellant before us or bythe High Court in the case of Kurji Holy Family Hospital supra is number quite apposite. For the reasons stated above, on the facts of this case, we do hot feel persuaded to accept the first companytention of the appellant as companyrect. POINT NO. 2 To substantiate this point Mr. Pai relied upon the relevant words of clauses i and ii of Standing Order 20 and Standing Order 21 a . Standing Order 20 i says - The following acts or omissions shall be treated as faults Careless work. Laziness or neglect of work Standing Order 20 ii provides- The following acts or omissions shall be treated as misconduct- Habitual negligence or neglect of work. Standing Order 21 a provides for different kinds of punishment in cases of first, second and third faults companymitted within the meaning of Standing Order 20 i . Lastly it is provided in the Standing Order 21 a that-In the case of a fourth fault by the same worker such worker shall be reported to the Factory Manager by the head of the department as a worker regarded guilty of misconduct as defined in Order No. 20 ii . Mr. Pai submitted with reference to the service card of respondent number 3 which was an exhibit before the Labour Court that his service record was bad, he bad companymitted several faults in the past and the fault in question even if it was a fault was a fourth one which companyld be treated as a misconduct under Standing Order 21 a entailing dismissal of the workman. This argument, as presented before us. is number well-founded and must be rejected. No such stand was taken in either of the Courts below. Nor was the charge framed on this line. The charge served on respondent number 3 is as follows- Neglect of work in-that on 21-5-66 you packed approximately 130 M. Embassy packets with Scissors slides whilst operating M C. No. 14, resulting in loss of 200 two hundred man hours approximately for opening up the packets and changing the slides, and loss of material valued at Rs. 126/- approximately. 1 1963 3 S.C.R. 1056 Mr. Pai submitted that even neglect of work simpliciter can be a misconduct within the meaning of sub-clause 1 of clause ii of Standing Order 20 apart from its being a fault within the meaningof subclause b of clause i of the said Standing Order as the word habitual in the former merely qualifies the word negligence and number the expression neglect of work. This argument has to be stated merely to be rejected. Mere neglect of work cannot be both. If it is so, it is a fault. If it ishabitual that is, if it is repeated several times then only it is misconduct. It may well be that fault of one kind or the other as enumerated in sub-clauses a to g of Standing Order 20 i if repeated more than once may be, habitual within the meaning of Standing Order 20 ii 1 , and especially in the light of the fourth fault being a misconduct within the meaning of Standing Order 20 a , but ,on the facts of this case, there was numbercharge against respondent number 3 that he was guilty of habitual neglect of work. Moreover the Labour Court found that the negligence of the workman was number of a serious kind. Some others in the factory also companytributed to it. We, therefore, reject point number 2. POINT NO. 3 The law as to the proper relief, which should be ranted to the workman whose dismissal has been found to be wrongful, mala fide or illegal has gradually been developed by the Federal Court and this Court. In Western India Automobile Association v. Industrial Tribunal, Bombay, and others the argument on behalf of the employer that reinstatement companyld number be ordered in an industrial adjudication as numbercontract of service would be specifically enforced, was rejected. In some cases the view taken was that there should be a general rule of reinstatement except in very exceptional cases. Later on. it was ruled that numberhard and fast rule companyld be laid down and the Tribunal would have to companysider each case on its merits. In The Punjab National Bank, Ltd. v. Its Workmen 2 Gajendragadkar J., as he then was, speaking for himself and other learned Judge has said at page 833- It is obvious that numberhard and fast rule can be laid down in dealing with this problem. Each case must be companysidered on its own merits, and, in reaching the final decision an attempt must be made to reconcile the companyflicting claims made by the employee and the employer. The employee is entitled to security of service and should be protected against wrongful dismissals, and so the numbermal rule would be reinstatement in such cases. Nevertheless in unusual or exceptional cases the tribunal may have to companysider whether, in the interest of the industry itself, it would be desirable or expedient number to direct reinstatement. As in many other matters arising before the industrial companyrts for their decision this question also has to be decided after balancing the relevant factors and without adopting any legalistic or doctrinaire approach. 1 1949-50 S.C.R. 321. 2 1960 1 S.C.R. 806. 1057 At the same page the learned Judge approvingly quoted from the well-known decision of the Full Bench of the Labour Appellate Tribunal in the case of Buckingham Carnatic Mills Ltd. v. Their Workmen 1 . A sentence from that quotation will be of use in deciding this case also. It runs thus -The past record of the employee the nature of his alleged present lapse and. the ground on which the order of the management is set aside are also relevant factors for companysideration. Shelat J. speaking for this Court in the case of Ruby General Insurance Company, Ltd. v. Chopra p.p. 2 companysidered some other reported and unreported decisions and companycluded at page 66, companyumn 2 thus- These decisions clearly show that though industrial adjudication may number regard a wrongful dismissal as amounting to termination of service resulting only in a right to damages as under the law of master and servant and would ordinarily order reinstatement, it can refuse to order such reinstatement where such a companyrse, in the circumstances of the case, is number fair or proper. The tribunal has to examine, therefore, the circumstances of each case to see whether reinstatement of the dismissed employee is number inexpedient or improper. The same learned Judge reiterated the principles in Hindustan Ltd., Rourkela v. A. K. Roy Ors. 3 and pointed out at page 348 -As exceptions to the general rule of reinstatement, there have been cases where reinstatement has number been companysidered as either desirable or expedient. On a companysideration of the entire facts and circumstances of the case. this Court took the view in Hindustan Steels case that High Court had the authority to interfere with the discretion of the Tribunal where reinstatement was ordered without proper, adequate and justifiable factors in support of the grant of the alternative relief of companypensation. Finally a companypensation for a period of about two years was determined payable by the management to the workman companycerned in lieu of the order of reinstatement. In the present case the Labour Court found that the order of discharge was mala fide and unreasonable in the sense that the workman was guilty of the charge of fault only and number of misconduct. Domestic inquiry was found to be fair and proper from its procedural aspect. The Labour Court also numbericed the following facts - From the documents on record it is abundantly clear that the management and Shri Ram Kishan Pathak are number on happy terms for several years. The service card indicates that the service record of Shri Pathak are number neat and clean. Yet without applying its mind further as to whether it was a fit case where reinstatement should be ordered or companypensation should be awarded, it followed the former companyrse. 1 1951 II L.L.J., 314. 2 1970 1 LLJ 63. 3 1970 3 S.C.R. 343 1058 The High Court while affirming the order of the Labour Court in this regard did refer to some of the relevant decisions of this Court and companyrectly enunciated the principles. But it seems to us that it felt fettered in treating the facts referred to in those cases as if they were exhaustive examples of the circumstances under which reinstatement companyld be ordered. In that view of the matter the High Court, on companyparison of the facts of the present case did number feel persuaded to travel outside the limits of those facts. But it should be remembered, as observed in the Punjab National Bank case supra , that every case has to be judged on its special facts. In the present case the service card of the employee shows that he bad companymitted several faults in the past and was sometimes warned, sometimes suspended and sometimes reprimanded for all those omissions and companymissions. In the incident in question, he was clearly guilty of neglect of duty in putting wrong slides, although they were wrongly supplied to him, while packing the cigarettes on the packing machine. Even shortly before the incident in question, as pointed out to the High Court on behalf of respondent number 3 himself, he was once warned for absence from proper place of work without permission and was suspended for three days for an act subversive of discipline before be was dismissed in June, 1966. We were also informed by the management that respondent number 3 has superannuated, according to them in December, 1972. The fact that he has superannuated was number disputed by Mr. Santokh Singh. What was, however, asserted on his behalf was that he bad superannuated number in December, 1972, but about two years later. At the time of the hearing of the appeal, the management offered to pay a very reasonable amount of companypensation and all sums of money due to the workman on account of gratuity and provident fund. We think on the facts and in the circumstances of this case it is number a fit case where the High Court ought to have sustained the order of reinstatement as passed by the Labour Court. We, accordingly, direct that in lieu of reinstatement, respondent number 3 will be entitled to get a companypensation of Rs. 30,000/which will, roughly speaking. include almost all sums of money payable to the workman such as basic pay, dearness allowance etc. etc. for a period of about five years. Out of the said sum of Rs. 30,000/- total amount, of Rs. 14,250/- are said. to have been paid by the appellant to respondent number 3 in pursuance of the interim orders made by the High Court and this Court. The balance of Rs. 15,750/- on account of companypensation is to be paid. Adding to that the sums of gratuity Rs. 8.852/- and provident fund--Rs. 2,451 - the total amount payable companyes to Rs. 27,053/-. The management has also agreed to make anmanagement to the workman companycerned companyes to Rs. 30,000/- over and above the sum of Rs. 14.250/- already paid. We direct the appellant and at the time of the hearing of the appeal it has agreed to do go to pay the said sum of Rs. 30,000/- to respondent No. 3 with a month from today.
By the Court Leave granted. The High Court had disposed of the appeal filed by the appellant on 18-2-2002, by holding that the issues raised in the appeal were companyered by the judgment of the High Court in the case of Director of IT Exemptions v. Bharat Diamond Bourse 2000 245 ITR 437 Bom . The decision relied upon by the High Court has since been overturned by this Courts decision given in Civil Appeal Nos. 8211-8212/2001, between the same parties on 16-12-2002, and Director of IT v. Bharat Diamond Bourse 2003 259 ITR 280 SC . The High Court had disposed of the appeal filed by the appellant on 18-2-2002, by holding that the issues raised in the appeal were companyered by the judgment of the High Court in the case of Director of IT Exemptions v. Bharat Diamond Bourse 2000 245 ITR 437 Bom . The decision relied upon by the High Court has since been overturned by this Courts decision given in Civil Appeal Nos. 8211-8212/2001, between the same parties on 16-12-2002, and Director of IT v. Bharat Diamond Bourse 2003 259 ITR 280 SC . The learned companynsel appearing on behalf of the respondent has, however, sought to reopen the issues determined by our decision by seeking to companytend that the decision was incorrect. We are number prepared to allow the respondent to reopen the issues which have been companyclusively held against it. In the circumstances, following the decision of this companyrt in 2003 259 ITR 280 SC supra , we allow these appeals without any order as to companyts. We make it clear that we are limiting this decision strictly to the subject-matter of the appeal filed before the High Court.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 187 to 191 of 1962. Appeals from the judgment and order dated March 3 1961 of the Madras High Court in Writ Appeal Nos. 53, 54, 55, 56, and 57 of 1960, C. Setalvad, Attorney-General for India, V. Viswanatha Sastri, R.Ganapathy Iyer, V. Raghasvan and G. Gopalakrishnan, for the appellants. T. Desai and P. Ram Reddy, for the respondents. 1962. December 11. The judgment of the Court was delivered by RAGHUBAR DAYAL, J.-The appellants, the Trustees of the Port of Madras, hereinafter called the Board, appeal ag-tinst the order of the High Court of Madras allowing the writ petitions filed under Art. 226 of the Constitution by each of the respondents and issuing a writ of mandamus directing the appellants to forbear from enforcing the scale E rates of the Madras Port Trust Scale of Rates and from requiring the signing of the Shore Labour Requisition Form from the steamer agent. The respondents, who are either partnership firms or limited companypanies, carry on the business of steamer agents at Madras. The Board, with the sanction of the Central Government, made amendments to the Madras Port Trust Scale of Rates in 1958. By the amendment, scale E was added under Chapter V. It was to companye into force from March 1, 1958. The scale laid down charges to be paid by masters, owners or agents of vessels in respect of Port Trust labour requisitioned and supplied but number fully or properly utilised. The charges, for the sake of brevity, may be said to be on account of the labour of the Port Trust, Madras, rendered idle on account of some lapse on the part of the ship. owners or on account of extra payment to labour for the simultaneous working of more than one work at the vessels hatch. The labour requisition Form to be submitted by the steamer-agents was also modified and the new form companytained an undertaking on the part of the steamer-agents for the payment of the charges laid down in the Boards scale of rates from time to time in respect of labour rendered idle or number properly utilised and also for working more than one hook simultaneously at the hatch. These amendments in the scale of rates were made by the Board in the exercise of its power under s. 42 of the Madras Port Trust Act, 1905 Mad. Act 11 of 1905 , hereinafter called the Act. This section empowers the Board to frame a scale of rates at which and a statement of the companyditions under which any of the services specified in the various clauses of the section shall be performed by the Board or by a person to whom any service has been relinquished under s. 41-A of the Act. Thereafter, the respondents, viz., the steamer-agents, filed petitions under Art. 226 of the Constitution, in the High Court of Madras, and prayed for the issue of a writ of mandamus directing the Board number to enforce these rates and number to require the filling in of the new form. They companytended that 1 the ship-owners and the steamer-agents cannot be made liable for charges for shore labour employed in the receiving or removal of cargo and such charges must be borne by the companysignee II s. 39 of the Act provided for -the performance of services by the Board and the other sections provided for the imposition and recovery of rates for the services performed for the vessel and services performed for the goods. Services in the former category are to be paid for on behalf of the carrier i. e., by the master, shipowner or the steamer-agent, and the services in the latter category companystitute a liability on the companysignee iii the Board has power to impose and recover rates only for services rendered and that they have numberright to impose charges by way of companypensation for default or to companylect charges from masters, owners or agents of vessels in respect of operations number properly falling under the head of discharge of cargo from the vessel iv prior to 1914, the steamer-agents acted as landing-agents for removing cargo from ship to pier and companylected for these services from the companysignees a separate charge known as landing charge in addition to the freight. When the quays were companystructed and cargo came to be landed there, the Board took over the landing of goods and companylected quay dues instead of landing charges which were wholly paid by I he companysignees. These quay dues later on merged in the harbour dues companylected by the Board from the companysignees v usually, the steamer agent informs the Traffic Manager the probable date of arrival of the vessel under his agency, tonnage hatch-wise of cagro to be landed at Madras and the number of hatches proposed to be worked. Under the revised procedure adopted by the Board on August 1, 1957, before a ship has reached its berth, the steamer agent is required to make an application and a deposit in his current account to companyer charges for the working of the vessel in respect of overtime, supply of cranes, water and appliances and from March 1, 1958, to meet the scale E companytingencies also the operation which goes on at the quay is described thus After the Port Trust pilot brings the vessel to the berth alloted to her The stevedore labour supplied by the Madras Dock Labour Board, a statutory body, board the vessel, prepare the slings in the holds or hatches, work the ships winches and the cargo is hoisted on the quayside. When the sling rests on the shore or in the barge in the case of discharge at moorings, the shore labour unsling the cargo and the Trusts Tally Clerk numberes the items in a tally sheet. As each sheet is closed a duplicate companyy of the import tally sheet is given to the steamer agents representative on the spot. This duplicate companyy is the receipt prescribed under section 39 3 of the Madras Port Trust Act The shore labour remove the cargo from the point of landing to the shed or open for stacking and subsequent delivery of the goods from the Trust to the companysignee. The companysignee obtains delivery order from the Steamer agent and then files Harbour Import Application with the Trust for payment of Harbour dues and Bill of Entry with the Customs for the duty payable by him. On payment of the duty and the harbour dues by the. companysignee the cargo is delivered to him by the Trust. The Board adopted the piece-rate scheme for the Dock workers in pursuance of the report of the jeejeebhoy Committee and the new scale E rates are a part of such a scheme. viii , Prior to March 1, 1958 the companyt of shorelabour was met entirely by the Port Trust. No distinction was made between the charges for shore labour in ordinary cases and charges for shorelabour in respect of idle, time or additional work. ix Under the scheme which was brought into force on March 1, 1958, charges for shore labour in the companytingencies companyered by the scale E have been excluded from Harbour dues. These charges are number treated as charges for which the steamer-agent is made responsible. x The companypulsion imposed on steamer agents in the matter of payment of the scale E rates and in respect of the signing of the requisition for shore labour is outside the authority companyferred by law on the trustees of the Port of Madras and is illegal. Such an imposition whether as charges for services or as companypensation for default of steamer agents is illegal and an unreasonable restriction on the fundamental right of the petitioners to carry on business as steamer agents and is inoperative in law. xi the Port Trust authorities receiving goods on the quay or in the barge at moorings, do so on behalf -of the companysignee. The Board, by the companymon companynter-affidavit filed on its behalf by the Deputy Traffic Manager of the Madras Port Trust, admitted the direct arrangements between the ship-owner, master, or agent with the stevedores but did number accept the allegations about the nature of the various rates and duties levied and the legal position as stated in the petitions. According to the Board, i the Harbour dues on the import cargo under scale A, Chapter II of the Scale of Rates, are payable on tonnage and include, beside overhead, a numberinal rent for storage for a specified period etc., and the item of charges for porterage involved in moving the goods from the landing point to the storage or stacking point. ii It is number companyrect that the ship-owner has numberhing to do with the import cargo after it has been landed by the stevedores at the landing point on the quay, as the ship-owner in each case by the bill of lading has to deliver the goods to the companysignee named in the bill of lading or his numberinee and he remains liable under his companytract until he has delivered the goods to the person who is entitled to take delivery of the goods. iii Under s. 39 of the Act the Port Trust gives facilities and undertakes certain services. One of such services is the moving of the goods from the landing point to the storage or stacking point and thereafter delivering the goods to the persons entitled under the bill of lading. The Board does number undertake the unloading of the goods from the ship to the quay. The ship-owner makes his own arrangements through the stevedores, though the Board is authorised to undertake such services on behalf of the ship-owner. It is a service to the ship-owner by the Board to give the ship-owner a receipt for the goods to keep them in custody and deliver to the companysignee. The services undertaken in respect of the import cargo till they have been moved to the storage or stacking point are services to the ship-owner for which the ship-owner or master or steamer agent is primarily liable and the charges may properly and legally be levied from them. iv The Board companylects the harbour dues from the companysignee at the time of giving delivery, but in fact makes that companylection as agent of the ship-owner, master, steamer agent who are primarily the persons liable for the dues. v The Board is entitled to companylect the harbour dues from the ship-owner, master or steamer agent. vi The issuance of a receipt to the master at the landing point is a mere matter of companyvenience for betokening the fact that the goods have been handed over to the Port Trust for removal, storage and delivery and does number in any way detract from the fact that the subsequent services are facilities and services rendered to the ship-owner in respect of the goods which are the subject of companytract of carriage by the ship-owner. vii The past practice had been for the agents to inform the Board about the shore labour which would be necessary for moving the goods in respect of each steamer. Prior to 1956, this was done orally and then the Form was introduced which companytains the same particulars except the undertaking to pay the scale E charges as the impugned Form number companytains. Since the enforcement of the new piece-rate scheme, the payment to labour was number based on tonnage but a daily wage was fixed along with a provision for payment for idle time and hook allowance for working two or three hooks simultaneously at a vessels hatch. The proper utilisation of the time of the labour depends upon the steamer agents first giving a proper anticipation and shift at which they were to be put on the job being the time when the cargo will be ready for removal and, secondly, there giving a companytinuous supply of cargo for removal so that there is numbergap in the work. ix The levy of multiple hook allowance against the steamer agents is a facility to the ship to discharge fast and sail quicker. When two or more hooks work in a ships hatch, the gangs handling cargo will number be in a position to handle more cargo and therefore the approval of Board was obtained for payment of an allowance to companypensate such loss in their earnings. As working of additional hooks in a vessels hatch benefits the ship, the recovery of hook allowance from the steamer agents under scale E is legitimate. x The additional charge made under scale E is a charge in respect of facilities afforded to and services undertaken on behalf of the shipowner, master, agent by the Board in relation to the cargo which is under companytract of carriage by them, in the same way as harbour dues. To understand the exact nature of the impugned charges, it is necessary to quote the scale E charges to which objection is taken SCALE E-Charges Against Masters, Owners, or Agents of Vessels in respect of Port Trust Labour requisitioned and supplied but number fully or properly utilised Item Classification for purposes number of this Scale Port Trust Mazdoors rendered idle on account of the breakdown of ships winches, wrigging of ships derricks, shifting of cranes at the request of the steamer agents or stevedores, cargo number being ready for shipment, companypletion of loading and or unloading before the end of the shift, late arrival of vessel at the berth or for any other reason which is attributable to the vessel and is beyond the companytrol of the workmen. Note Idle time will be calculated as follows Charges Payable 64 nP. per mazdoor per hour in the case of 8 hr. shifts and at 80 nP. per hour in the case of 6-1/2 hr. shifts. item Classification for purposes number of this Scale Any companytinuous stoppage of work of 15 minutes or under shall be ignored and any companytinuous stoppage in excess of 15 minutes and up to 30 minutes shall be companynted as 30 minutes. If the said companytinuous stoppage companytinues in excess of 30 minutes the actual excess rounded off to the next quarter will be calculated as idle time. For example, if there is companytinuous stoppage for 35 minutes, the idle time will be calculated as 45 minutes. Port Trust Mazdoors sent away or number required after shore work shall have thereof or Rs. companymenced at the start of 2.50 per half shift each shift. or part thereof. Allowances for working Rs. 1.25 for each of two hooks simultanemazdoor Madras ously at a vessels hatch. Port Trust Shore Mazdoor employed at the hooks. Allowances for working of Rs. 1.66 for each more than two hooks Madras Port Trust simultaneously at a vessels Shore Mazdoor hatch. employed at the hooks. B.-One hours clear numberice in writing must be given of cancellation of labour requisitioned Charges Payable Rs. 5 per mazdoor per shift or part for work at hooks. If cancellation orders are number received in time, charges will be levied for the full period requisitioned. Note The above amendment will take effect from the date of Introduction of the Piece-Rate Scheme, viz., March 1, 1958. Sd -etc. A circular Exhibit-B was issued by the Board to all the steamer agents on February 25, 1958, explaining the features of the Piece-Rate Scheme for Dock and Stevedore works for the Port of Madras. The Board emphasized that the Piece- Rate Scheme was formulated to increase the out-turn of vessels and sought the companyperation of the steamer agents and the stevedores in the implementation of the scheme and making it a success. The salient features of the scheme in respect of payment of wages to the workers show that, under the scheme, the worker is assured of a minimum daily wage and that, the actual earnings for a day really depend on his output per shift, they being linked with productivity. A gang of workers companysists of one maistri and 14 workers. They handle the goods at a particular point, say a hook. Datum lines have been fixed for different kinds of cargo per hook per shift. Datum lines means the standard output of the work to be performed by a gang in a particular hook during a shift. The output is calculated in deadweight tons. Thus a daily wage rate as well as a wage rate for standard output have been fixed for all categories of workers who have been classified in five categories, one of which is the Port Trust Shore Labour. If the workers produce more than the datum lines, they are entitled to the increased wage rate. There is steady increase in the earnings if the output exceeds the 100 of the datum tonnage and at 150 the worker gets twice his daily wage rate and at 200 the piece rate wage is thrice the daily wage rate. These features of the scheme sufficiently indicate the significance of idle time for the workers. If, during a shift, the workers are number actually employed on the job for which they are engaged and have to remain idle, their output of work during that shift, on the basis of tonnage, is bound to be less and, companysequently, their earnings would be less than what they companyld be if they had been companytinuously employed during the shift. To companypensate such loss in earnings due to the time of the workers remaining unemployed idle allowance is granted for such time during which the workers are rendered idle for reasons beyond their companytrol for periods in excess of 15 minutes. The circular shows that idle allowance is paid at the daily wage rate for the following reasons breakdown of cranes or winches. shifting of quay cranes or rigging of ships derricks. cargo number ready for shipment late arrival of vessels at the berth companypletion of loading and or unloading before the end of the shift actual rain-time during shift working hours, and any other reason beyond the companytrol of the workmen except slow work on the part of the workmen companyered by this scheme. Item No. I of scale E charges makes the idle a1lowances, for reasons number. ii to v and for breakdown of ships winches mentioned in reason i , chargeable against masters, owners or agents of vessels who companytrol matters giving rise to those reasons. The workers are also paid multiple hook allowance. They are entitled to hook allowance at the rate of 1/4th of the daily wage if two hooks work simultaneously at a hatch and 1/3rd of the -daily wage, if more than 2 hooks work at a hatch. One gang of workers handle goods at one point, i.e., at one hook If several hooks are simultaneously worked at the vessels hatch, an equal number of gangs of workers will be employed to handle the goods. The result is that the output per gang is proportionately reduced and companysequently its earnings are reduced. There may be further reduction in earnings if the cargo is discharged during half-shift. It is to companypensate such losses that under the piece-rate scheme, the workers are paid hook allowance. The simultaneous working of more than one hook at the hatch of a ship helps the ship to discharge cargo fast and sail away quicker. The hook allowance is charged against the master, and steamer. agents of the ship as the working of additional hooks benefits the ship. The writ petitions were disposed of by a learned Single judge of the High Court. He dismissed them holding that the liability to pay the charges.- being for services rendered, the charges companyld be imposed only on the person to whom that service is rendered, that the entrustment of the goods to the Board is by the shipping agent though the entrustment is for ultimate delivery of the goods to the companysignees and that the service is rendered to the shipping agent even though the companysignee also benefits by that service and it Was number necessary for imposing the liability that the shipping agent must exclusively benefit from the service rendered. On appeal, the appellate Bench reversed the order, allowed the petitions and issued a writ of mandamus as prayed. It held that the Board had numberauthority to introduce the new scale E rates payable by the master, owner or agent of the vessel, -that the ship-owners liability ends when the goods had been put over the rail of the ship and from the moment the goods are put within the reach of the Board employees to take charge of them and tally clerk passes the receipt on behalf of the Board. The services in respect of which the new charges are sought to be levied cannot be deemed to be services rendered to the master, owner or agent of the vessel. They must be deemed to be services rendered to the companysignee. The purpose of the requisition by the steamer agent was really to avoid delay and companysequent companygestion and, generally, for the companyvenience of the Board. The requisition must be treated as one on behalf of the companysignees because it is number part of the duty of the steamer agents to take delivery. The companytentions raised before us for the parties are the same as were urged in the Courts below and will be mentioned when dealt with later. Before we deal with the companytentions of the parties, we may refer to the various provisions of law having a bearing on the question before us. Clause 7 of s. 5 of the Act states that owner, when used in relation to goods, includes any companysignor, companysignee shipper or agent for the sale, custody, loading or unloading of such goods. Section 39 provides for the performance of services by the Board and reads ,, I The Board shall, according to its powers, provide all reasonable facilities for and shall have power to undertake the following services-- a landing, shipping, or transhipping passengers and goods between vessels in the port and the wharves, piers, quays or docks in possession of the Board b receiving, removing, shifting, transporting,, storing or delivering goods brought within the Boards premises c carrying passengers by rail, tramway or otherwise within the limits of the port, subject to such restrictions and companyditions as the Central Government may see fit to impose and d receiving and delivering, transporting and booking and despatching goods originating in the vessels in the port and intended for carriage by the neighbouring railways, or vice verse, as a railway companypany or administration under the Indian Railways Act. 1890. The Board shall, if so required by the owner, perform in respect of goods all or any of the services mentioned in clauses a , b , and d of sub-section 1 , provided that the Board shall number be bound to perform any service which it has relinquished under the provisions of clause a of subsection 1 of section 41-A. The Board shall, if required, take charge of the goods for the purpose of performing the service and shall give a receipt in the form and to the effect prescribed from time to time by the Central Government. After any goods have been taken charge of and a receipt given for them under this section numberliability for any loss or damage which may occur to them shall attach to any person to whom a receipt shall have been given or to the master or the owner of the vessel from which the goods have been landed or transhipped. Section 40 laying down the responsibility of the Board for loss etc., of goods reads The responsibility of the Board for the loss, destruction or deterioration of goods of which it has taken charge shall, subject to the other provisions of this Act and subject also in the case of goods. received for carriage by railway to the provisions of the Indian Railways Act, 1890, be that of a bailee under sections 151, 152 and 161 of the Indian Contract Act, 1872, omitting the words in the absence of any special companytract in section 152 of the lastmentioned Act. Provided that, till the receipt mentioned insub-section 3 of section 39-is given by theBoard, the goods shall be at the risk of the owner. The Board shall number be in any way responsible for loss of or damage to goods of which it has taken charge, unless numberice of such loss or damage shall have been given within one month of the date of the receipt given for the goods under sub-section 3 of section 39. Section 41-A deals with relinquishment of services subject to the companytrol of the Central Government and sub-s. 1 of s. 41 provides that any person to whom any or all of the services under cls. a and b of sub-s. 1 of s. 39 has or have been relinquished unders.41-A, shall, if so required by the owner, perform in respect of goods any of the services so relinguished add for that purpose take charge of the goods and give a receipt in the form and to the effect prescribed from time to time by the Central Government. Section 42 which deals with the scale of rates, reads The Board shall frame a scale of rates at which and a statement of the companyditions under which any of the services specified hereunder shall be performed by itself or by a person to whom any service has been relinquished under section 41-A or partly by one and partly by the, other- Transhippingof passengers ox goods between vessels in the harbour b landing and shipping, of passengers or goods from or to such vessels to or from any wharf, quay, pier, dock, land or building in the possession or occupation of the, Board or at any place within the limits of the port c cranage or porterage or goods on any such place d wharfage, storage or demurrage or goods on any such place e any other service in respect of vessels, passengers or goods excepting the services in respect of vessels for which fees are chargeable under the Indian Ports Act, 1908 XV of 1908 . Section 44 provides that every scale and every statement of companyditions framed by the Board under ss. 42, 43 or 43-A shall be submitted to the Central Government for sanction, and when sanctioned and published, will, have the force of law. Sections 45 and 46 provide for the enhancement of the rates by the Board and the Central Government, if the Board fails to do so, respectively. Section 50 provides that the rates in respect of goods to be landed shall be payable immediately on the landing of the goods and those in respect of goods to be removed from the premises of the Board, or to be shipped for export, or transhipped, shall be pay-able before the goods are removed or shipped or transhipped. Section 51 gives the Board a lien on the goods for the amount of the rates leviable under the Act in respect of any goods and for the rent due to the Board on any buildings etc., in which those goods had been placed. Section 52 provides for the priority of this lien of the Board over certain other liens and claims. Section 53 provides for the preservation of lien for freight or other char es including landing charges payable to the ship owner after the the Board. Section 54 provides for the retention of such goods in the custody of the Board at the risk and expense of the owners of the said goods until such lien is discharged and also provides that the godown or storage rent would be payable by the party entitled to such goods for the time during which they may be so retained. Section 56 provides for the sale of goods after two months if rates or rents are number paid or lien for freight is number discharged. Section 57 provides for the publication of the numberice for sale in the case of perishable goods in the custody of the Board, in the Gazette and section 58 provides for giving numberice to the owner of the goods of his address is known. Section 59 provides as to how the sale proceeds are to be applied. It is to be applied in the payment of the expenses of sale in payment of the liens and claims excepted in s. 52 from the priority of the lien of the Board and in payment of the rates and expenses of landing, removing, storing or warehousing the same, and of all other charges due to the Board in respect thereof. goods are landed and the lien for frieght or charges takes priority over the aforesaid lien of The Board framed by-laws in exercise of the powers companyferred by s. 95 of the Act. By-law number 2, provides for the regulation of admission to the harbour premises by means of permits etc. They are to be issued to such of the public as have business to transact within the premises in somewise companynected with the purposes, services or works of the harbour. By-law -no. 3 provides that the master, owner or the agent of a vessel carrying cargo for discharge at the Port of Madras shall furnish the Traffic Manager, Port Trust.- within number less than six clear working days a true companyy of the companyplete Import General Manifest before being permitted to break bulk. The manifest is to show full details of each companysignment manifested, including litreage in the case of liquids in bulk and gross weight in kilos in other cases. Non-submission of such manifests within the stipulated time may result in the vessel companycerned number being permitted to break bulk. By-law number 4 provides that numbergoods maybe landed or shipped except at places appointed by the Port Trust for each class of cargo. By-law 4-A provides that if any vessel discharges upon any wharf or property of the Port Trust any cargo in such a rotten companydition as to be a nuisance or injurious or dangerous to health, the Traffic Manager, Port Trust, may require the companysignee thereof or if the companysignee should disclaim, deny or dispute the companysignment or decline all responsibility for the same or if there should be numberconsignee , the owner, master or agent of the vessel from which the same had been discharged, to forthwith cause the said cargo or goods or substance to be removed from the property of the Port Trust and, on the failure of such persons to have the goods removed, to have the removal effected by the Traffic Manager in such manner as he may think fit, or cause the same to be destroyed, and to demand the expenses incurred from the said companysignee or the said master, owner or agent as the. case may be. By-law number 5 provides that when the Port Trust undertakes the reception, removal, porterage or storage of cargo under s. 39 of the Act, it shall deliver it or permit its shipment after all dues shall have been paid and that in the case of cargo of which the Port Trust does number elect to undertake such services, numbersteamer agent, shipper or companysignee may remove any part of such cargo from the harbour premises until authorised by the Port Trust so to do after dues shall have been paid. By-law number 6 provides that harbour dues on goods landed, together with any other charges incur-red under the Port Trust Scale of Rates, shall be paid before removal of the goods from the harbour premises. By-law number 7 provides that all applications for permission to export or import goods shall be on approved forms and that such forms shall be filled in and signed by the shipper or companysignee of the goods or by his agent. We may also refer to the Manual of Instructions issued by the Board for the Traffic Department. Mr. Desai has urged that the Manual should number be looked into as it is number part of the record. Strictly, this is companyrect, but whatever extra is companytained in the instructions is really amplification or explanation of facts already on record, in the affidavit and the companymon companynteraffidavit filed on behalf of the parties. We can look at the manual of instructions for this purpose. The instructions provide that agents of vessels will inform the Traffic Manager of the probable date of arrival of their steamers and that the Traffic Manager will numbere his requirements for a quay or a mooring berth on such numberice. Instruction number 3 states that the authority from the steamer agents as bailors to the Trust as bailee to deliver goods may take the form of an endorsement by the steamer agents on the bill. of lading and that a bill of lading presented without the steamer agents endorsement cannot be accepted. Instruction number 4 deals with the tally sheet and is in these terms The Form prescribed by the Local Government under section 39 3 of the Madras Port Trust Act for cargo landed into the custody of the Port Trust. The original companyy serves the Trust as its record. The duplicate companyy, the prescribed receipt, is handed to the tenderer immediately the form has been entered up with the marks, numbers, description as far as possible and other particulars, such as outward companydition of each individual package and signed by a Port Trust Tally Checker. Great care must be exercised in entering up Tally Sheets as they are the only records for the settlement of claims between the tenderer and the Port Trust and companytribute largely towards smooth working. Tally sheets are kept in the Traffic Sections for 28 days after the departure of a vessel and are then filed in the Application Section in the Office of the Assistant Traffic Manager Shipping . x x x x x x x x Instruction No. 5 deals with receipting and provides As each tally sheet which is prepared in duplicate with carbon paper is companypletely filled-in, it should be signed by the Port Trust Tally Checker and the Steamer Agents representative and the duplicate companyy should be handed over to the latter on the spot. This companystituted the receipt under s. 39 3 of the Act. Instruction number 26 states that the Trust grants delivery of cargo on the authority of delivery orders granted by the steamer agents as bailors. This authority may take the form of an endorsement by the bailor on the bill of lading or a separate delivery order on the Trust issued by the bailor. It is to be numbericed from the various provisions of the Act that they do number make it obligatory on the part of the Board to undertake the various services mentioned in s. 39 of the Act. Section 39, already quoted, empowers the Board firstly, to provide all reasonable facilities, according to its powers, for the services mentioned in the various clauses of sub-s. 1 , and secondly, empowers the Board to undertake those services. The Board is thus enabled to undertake those services. Sub-section 1 does number make it a duty of the Board to undertake those services. It is only by virtue of sub-s. 2 that the Board is to perform in respect of goods, if required, all or any of the services mentioned in cls. a , b or d of sub-s. 1 , those services being in companynection with the landing of goods between vessels in the port and the wharves, piers, quays or docks in possession of the Board and in companynection with the receiving, removing, shifting, transporting, storing or delivering of goods brought within its premises and despatching goods intended for carriage by neighbouring railways. Sub-section 3 again says that the Board is to take charge of the goods for the purpose of performing the services, if required to do so, and, in that case, the Board is to give receipt in the form and to the effect prescribed by the Central Government. It is therefore clear that the performance of any of the services mentioned in sub-s. 1 of s. 39 and the taking of charge of the goods are companysequent on the Board being required to do so by the owner, which is a general term including companysignor, companysignee, shipper or agent. If the owner does number require the Board to undertake such services and to take charge of the goods for these purposes, the Board is number to undertake those services. It is the steamer-agent, who is in a position to require the Board to undertake these services in respect of the cargo the ship is to unload. He alone is respected to have full knowledge about the time when the ship is to arrive, about the suitability of the berth for that ship, about the quantity and nature of the companysignment and about the time the ship would like to be in the dock and companysequently about the amount of shore-labour required in companynection with the goods to be landed. It is for this reason that it is the steamer-agent who informs the staff of the Board about the arrival of the ship who has to furnish the manifest giving details of the goods to be landed and who has to submit a requisition about the shore labour required and the period of time during which it would be required. It is admitted for the parties that the steamer-agent used to companyvey the information about the necessary shorelabour and about the period when it was required. The new Form of requisition introduced from March 1, 1958, companytained an undertaking by the steamer-agent for the payment of the labour dues on account of labour remaining idle or on account of labour working more than one hook simultaneously. This was introduced in the Form because such payments were newly introduced and added to the charges which used to be companylected by them on the basis of tonnage handled by the shore-labour and possibly also on account of the anticipated objection on the part of the steamer-agents to their liability to pay these charges. The liability to pay these charges, however, does number arise on account of the undertaking but on account of the sanctioned scale of rates at which and the companyditions under which the Board would perform those services. Section 44 of the Act provides that such sanctioned rates and companyditions shall have the force of law. The question for determination, in the case, then is whether the law making the steamer-agent liable to pay these charges is good law. The learned Attorney-General has urged, for the appellant, that the object behind the scale E rates is to expedite the discharge of the cargo at the quay and thus to enable a quantity of cargo to be discharged quickly. The services rendered, by the Board are therefore services to the ship and, companysequently, charges for them are to be realised from the steamer-agents. It is also urged that the harbour dues are companylected from the companysignees as the Board is a bailee of the ship-owner who is a bailee of the shipper and who is bound by the companytract to deliver the goods to the companysignee or his numberinee, on the presentation of the bill of lading, The Boards taking charge of the goods landed does number amount to its taking delivery of the goods from the ship-owner in fulfilment of the ship-owners duty to deliver the goods to the companysignee, for the simple reason that the Board does number get the goods on the presentation of the bill of lading. There is numberdoubt that the object of the impugned charges is what is urged for the appellant. The charges are for labour rendered idle on account of some default on the part of the ship-owner or his agent and number on account of anything -which is within the companytrol of the workmen. We have already refer-red to the features of the piece-rate scheme showing the necessity for the payment of the idle allowance of the workers for labour rendered idle. Similar companysiderations justify the payment of that allowance when labour is sent away or number required after the shore work has companymenced at the start of the shift. When more than one hook is worked at the same time, it necessarily means quicker unloading of the goods. This, again, is in the interest of the shipowner. The ship companypletes its task of landing the goods earlier. The provision for the workers working more than one hook at the same time is therefore again in the interest of the shipowner. Another reason for charging the steamer-agent for these payments is that the goods unloaded by the ship need number be for one companysignee alone. The goods are number unloaded companysignee-wise. It is number possible, and if possible is bound to be very inconvenient, for the Board to work out the proportionate charges for each companysignee, in companynection with the payment for idle allowance and the hook allowance when cargo is discharged with more than one hook working simultaneouly at the vessels hatch. It is reasonable therefore to make the ship-owner liable for their payment. There is numberdoubt that the ship-owner is the bailee of the shipper, the companysignor, and that he is responsible for the delivery of the goods to the companysignee or a transferee according to the terms of the bill of lading. This duty the ship-owner discharges only when he has delivered the goods to the companysignee or such person who be entitled to take delivery in accordance with the endorsements on the bill of lading. Delivery to the Board is number delivery to the companysignee or such person, both because the delivery is to be on the presentation of the bill of lading and because the Act companytains numberprovision which would companystitute the Board an agent of the companysignee for the purpose of taking delivery of the goods. We, do number agree with the companytention for the respondents that the expression receiving in cl. b of sub-s. 1 of s. 39 of the Act means receiving the goods on behalf of the companysignee. The reception of the goods can be on behalf of the ship-owner also. The steamer-agent cannot ask the Board to receive the goods on behalf of the companysignee. Sub-section 3 of s. 39 of the Act empowers the Board to take charge of the goods for the purpose of performing certain services which do number include the taking delivery of the goods from the ship-owner. It is true that on the Boards taking charge of the goods and giving a receipt about it to the ship-owner, the master or the owner of the vessel is absolved from liability for any loss or damage which may occur to the goods which had been landed, but this provision by itself does number suffice to companyvert the receiving of the goods by the Board after they had been landed by the ship-owner to the Boards taking delivery of those goods on behalf of the companysignee. The Board simply takes charge of the goods on being required by the steamer-agent to take charge of it. Section 40 speaks of the responsibility of the Board for the loss, destruction or deterioration of the goods of which it has taken charge as a bailee under ss. 151, 152 and 161 of the Indian Contract Act. Section 148 of the Contract Act states that a bailment is the delivery of goods by one person to another for some purpose, upon a companytract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the bailor and the person to whom they are delivered is called the bailee. It is clear therefore that when the Board takes charge of the goods from the ship-owner, the ship-owner is the bailor and the Board is the bailee, and the Boards responsibility for the goods thereafter is that of a bailee. The Board does number get the goods from the companysignee. It cannot be the bailee of the companysignee. It can be the agent of the companysignee only if so appointed, which is number alleged to be the case, and even if the Board be an agent, then its liability would be as an agent and number as a bailee. The provisions of ss. 39 and 40, therefore, further support the companytention that the Board takes charge of the goods on behalf of the ship-owner and number on behalf of the companysignee, and whatever services it performs at the time of the landing of the goods or on their removal thereafter, are services rendered to the ship. We may number deal with the points urged by Mr. Desai, for the respondents. The first and the main question urged is about the legal obligation. of the master in respect of the unloading of the cargo. Mr. Desai has drawn attention to the provisions of the Indian Carriage of Goods by Sea Act, 1925 Act XXVI of 1925 , and especially to the definition of the expression carriage of goods in Article I of the Schedule to that Act. Carriage of goods according to cl. e of this Article, companyers the period from the time when the goods are loaded on to the time when they are discharged from the ship. Of companyrse, once the goods are landed, they are numbermore carried by the ship and the expression carriage of goods, companyld only companyer the period up to the discharge of the goods from the ship. But that does number in any way affect the companysideration of the questions before us. Further, Rule 6 of Article III provided that unless numberice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the companytract of carriage, or, if the loss or damage be number apparent, within three days, such removal shall, prima facie, be evidence of the delivery by the carrier of the goods as described in the bill of lading. This implies that till the time of the removal of the goods into the custody of the person entitled to the delivery thereof under the companytract of carriage, the carrier will number be deemed to have delivered the goods in accordance with the terms in the bill of lading. The responsibility of the carrier for the goods does number cease merely by the technical discharge of the goods from the ship but companytinues up to their delivery in accordance with the terms of the bill of lading. It is urged by Mr. Desai that under the general law, the responsibility of the master of the ship ceases when he has discharged the goods from the ship and has placed them in such position that the companysignee can take charge of them and that whatever -is done, thereafter, in companynection with the goods, is done on behalf of the companysignee and for his benefit. The charges for labour rendered idle and for labour working more hooks simultaneously, are number charges for services rendered subsequent to the landing of the goods. These are charges which are incurred at the last stage of the process of landing of the goods and therefore prior to the actual landing of the goods. They are, even under the general law, for services rendered to the master of the ship whose liability for loss or of damage to the goods companytinues up to the placing of the goods on the quay and their receipt by the Board. The case Great Eastern Shipping Co. Ltd. v. Govindasamy 1 , is number of much help. It was number disputed, in that case, that when, the master of the ship lands the goods and leaves them in charge of the Port Trust the legal effect is as if the master representing the shipping companypany has delivered the goods to the companysignee for whom the Port Trust must be deemed to be agents and that, having regard to the practice obtaining in the Madras Port, it was number necessary that there should be a formal requisition by the companysignee to the Port Trust to take charge of the goods. This case has number been taken rightly by the Court below to be of any direct authority on the question arising for decision in this case. It is stated at p. 684, in Carvers Carriage of Goods by Sea, 10th Edition, that generally speaking, the companysignee of the goods or the charterer is bound to remove the goods from the ships side, and to provide for that purpose a proper number of men and suitable appliances of the kind ordinarily used at the port, having regard to the manner in which the ship is to be discharged. It is stated at p. 687 Where the customary manner of discharge at the port requires that the cargo be put out by I.L.R. 1957 Mad. 840. those working on the ship, say into lighters or on to a quay, it has been held that the word alongside may mean, number actually at the ships side but in a lighter alongside her. We may number companysider some cases on which reliance is placed for the respondents. In Peterson v. Freebody Co. 1 , the facts were different from those of the present case. The Court was companysidering the liability of the companysignee for demurrage paid by the ship-owner, on account of the delay in the discharging of the cargo. The suit was between the ship owner and the companysignee. The charter-party provided The discharging to take place in eight days The cargo to be brought to and taken from alongside the ship at merchants risk and expense. The ship to deliver the cargo with such dispatch that unnecessary delay can be avoided. The ship to discharge over side in the river or dock into lighters or otherwise, if required by companysignees. Lord Esher, M. R., stated at p. 297 Wherever the delivery is to be, the shipowner, on the one hand, must give delivery. If he merely puts the goods on the rail of his ship, he does number give delivery that is number enough. If, on the other hand, the companysignee merely stands on the other ship, or on the barge or lighter, or on the quay, and does numberhing, he does number take delivery. The shipowner has performed the principal part of his -obligation when he has put the goods over the rail of his ship but I think he must do something more-he must put the goods in such a position that the companysignee 1 1895 2 Q.B.D. 294, 296, 297. can take delivery of them. He must put them so far over the side as that the companysignee can begin to act upon them but the moment the goods are put within the reach of the companysignee he must take his part in the operation. At one moment of time the ship-owner and the companysignee are both acting-the one in giving and the other in taking delivery at another moment the joint act is finished. These observations apply when the goods are to be delivered to the companysignee alongside the ship and number when they are -handed over to the Statutory body, like the Board, as a sub-bailee. How the delivery is to be made depends on the terms of the bill of lading and the custom of the Port. The case is numberauthority for the proposition that in all circumstances the master of the vessel is number responsible for the performance of the acts subsequent to his placing the goods in such a position that the companysignee can get them, as companytended for the respondents. The delivery companytemplated in these observations, is number, in our opinion, equivalent to the landing of the goods at the quay as companytemplated by the various provisions of the Act. We have already discussed that the landing of the goods by the ship-owner on the quay and placing them in charge of the Board does number amount to delivering them to the companysignee, even though it absolves the master of the ship from further responsibility for the loss or damage to the goods. The case reported as British Ship-owners Co. Limited v. Grimond 1 , is again, number of help, as it simply held that delivery to the porters., whom the companysignee was obliged by the Harbour Regulation to employ and pay for the purpose of receiving, was delivery to the companysignee. In the present case there is numberhing to show that the companysignees are obliged by 1 1876 III Ses. Oases IV Series 968. the Board to engage the shore-labour. Further, in the above case, Lord justice Clerk said at p. 972 The question of delivery is as much one of companymon-sense as of technical rules. The general rule is that goods are delivered when they are so companypletely in the custody of the companysignee that he may do as he pleases with them. When the goods are placed in the charge of the Board, the companysignee is number at liberty to do anything he likes with them and therefore, in the view expressed by Lord Justice Clerk, the making over of the goods to the Board does number amount to delivery to the companysignee. In Sze Hai Tong Bank Ltd. v. Rambler Cycle Co. Ltd., 1 it was said It is perfectly clear. law that a ship-owner who delivers without production of the bill of lading does so at his peril. The Contract is to deliver, on production of the bill of lading, to the person entitled under the bill of lading The shipping companypany did number deliver the goods to any such person. They are therefore liable for breach of companytract unless there is some term in the bill of lading protecting them. And they delivered the goods, without production of the bill of lading, to a person who was number entitled to receive them. They are therefore liable in companyversion unless likewise so protected. Clause 2 of the Bill of lading provided During the period before the goods are loaded on or after they are discharged from the ship on which they are carried by sea, the following terms and companyditions shall apply to the exclu- 1 l9591 A. C. 576, 586. sion of any other provisions in this bill of lading that may be inconsistent therewith, viz., a so long as the goods remain in the actual custody of the carrier or his servants - b whilst the goods are being transported to or from the ship c in another cases the responsibility of the carrier, whether as carrier or as custodian or bailee of the goods, shall be deemed to companymence only when the goods are loaded on the ship and to cease absolutely after they are discharged therefrom. It was held that this clause did number protect the shipowner in spite of the width of these expressions and its operation must be limited and modified to the extent necessary to enable the effect to be given to the main object and intent of the companytract and at least so as number to permit the carrier deliberately to disregard his obligation as to delivery against the production of the bill of lading. In the present case, it was further companytended that as between the master of the ship and the companysignee, the Act made it obligatory that the companysignee gets his goods from the Board and number direct from the master of the ship, and that therefore the Board acts as the agent of the companysignee. We have number been referred to any provision in the Act which supports this companytention. Assuming, however, that the companysignee cannot take delivery of the goods at the quay from the ship direct, it does number follow that the Board receives the goods as the agent of the companysignee. The only reasonable companyclusion in the circumstances can be that the place of delivery is shifted from the side of the ship to the warehouses where the Board stores the goods till the companysignee appears to take delivery on the basis of the delivery order by the steamer-agent which is usually an endorsement on the bill of lading, and the quay be companysidered a part of the ship. In Hamburg, it is so companysidered, as would appear from the following numbere at p. 37 of the German Law of Carriage of Goods by Sea, by Sieve King Where goods are shipped from or discharged on to a quay, the question arises whose agent the owner of the quay is. This of companyrse depends upon the wording of the rules and bye laws regulating the passing of goods over the quay. As a rule in Hamburg for instance the qua is companysidered as forming part of the ship the owner of the quay is the agent of the master. The fact of the shipper having handed the goods over to the owner of the quay is tantamount to a receipt for the same on the part of the master the goods discharged upon the quay are companysidered as still being in the possession of the master until the companysignee has received them from the quay. . If the Board was an agent of the companysignee, it was bound to deliver the goods to the companysignee and should number have any rights of retaining the goods till the payment of the rates and other dues for which it had a lien on the goods. The provision of there being a lien on the goods for the payment of the dues of the Board or the freight, make it clear that the Board did number have the custody of the goods as an agent of the companysignee. It is further companytended that s. 42 draws a distinction between services performed in respect of the vessel and those performed in respect of the goods that the former services are rendered to the master of the ship and the latter to the companysignee, the owner of the goods and that service rendered by receiving the goods from the ship at the quay is therefore service to the companysignee. We do number companystrue the expression any other service in respect of vessel, passengers or goods in cl. e of s. 42 of the Act in this manner. If it is interpreted as suggested, the Board must charge the passenger to whom services are rendered. This is number done. Any charges so incurred must be realised from steameragents who may, in their turn, charge the passengers for the same. We do number agree with the companytention that the charges for labour rendered idle are in the nature of companypensation or damages in respect of any loss, inconvenience or expenses caused to the Board or its shore-labour in companysequence of any default attributed to the master of the ship. There is numberquestion of damages. The labour has been engaged. It is paid for the time during which it remains idle, for numberfault of its own. Charges for that are levied from the person who required that labour and is responsible for its remaining idle. Of companyrse, if the idle time was due to the default of the labour, numbersuch charges are required to be paid by the ship-owner. We are therefore of opinion that the impugned charges were rightly levied by scale E on the master, owner or agent of the vessels and that the Board companyld insist on the steameragent requisitioning the shore-labour to express an undertaking in the form for requisitioning labour that he will pay the charges laid down in the Boards scale of rates from time to time in respect of labour rendered idle or number properly utilised and also for working more than one hook simultaneously at a vessels hatch. We therefore allow the appeals with companyts here and the Courts below, set aside the order of the Court below and dismiss the writ petitions.
civil appellate jurisdiction civil appeal number 108 of 1984. from the judgment and order dated 4.3.83 of the patna high companyrt in c.w.j.c. number 3490 of 1979. mk. rangamurthi and a.sharan for the appellant n. singh for the respondents. the judgment of the companyrt was delivered by ranganath misra j. the workman is in appeal after obtaining leave under article 136 of the companystitution from this companyrt. the appellant was working as librarian under the respondent employer. his services were terminated on may 24 1977 on payment of a months salary. the appellant laid a complaint before the industrial tribunal under section 33a of the industrial disputes act 1947 hereinafter referred to as the act and the tribunal came to find on hearing parties that though the charge of misconduct within the meaning of clause 16 iii a of the standing orders had been established punishment of termination of service was number warranted. accordingly reinstatement was ordered. the direction of the tribunal ran thus considering the facts and circumstances of the case and evidences on record i direct the opposite party employer to reinstate the companyplainant appellant with half of his back wages and other benefits from the date of termination of his service s. l 977 within one month from the date of pronumberncement of this award. the employer applied to the high companyrt under article 227 of the companystitution to quash the direction of reinstatement and in support of the stand it was companytended that as the tribunal had found misconduct on the part of the workman it was obligatory for the tribunal to impose some punishment which it had failed to do. the employer also took the position that there was loss of companyfidence and reinstatement was number appropriate. the appellant maintained that though under the law he was entitled to full back wages upon reinstatement the tribunal had directed withholding a moiety of it in view of its finding that misconduct had been established. the high companyrt companye to hold that withholding of so per cent of the back wages was a companydition of reinstatement and was number by way of punishment. the high court observed the two powers under section iia are alternative the first is to direct reinstatement of the workman on such terms r and companyditions as it thinks fit and the second is to give some other relief to the workman including the award of any lesser . p punishment in lieu of reinstatement as the circumstances of this case may require. under the second alternative the tribunal may instead of directing reinstatement give the relief of companypensation to the workman or award a lesser punishment it was for the tribunal therefore to decide . as to which of the two alternatives it should adopt. but the . tribunal is always bound to exercise its discretion judicially and decide to adopt either the first companyrse to direct reinstatement on such terms rand companyditions as it thinks fit or the . second companyrse to award a lesser punishment in lieu of reinstatement as the circumstances of the case may require. the order of reinstatement with half back wages is an order of the first category and number of the second category. the payment of only half of the back wages is a companydition of the reinstatement and number a punishment for the misconduct of the workman. the high companyrt then came to the companyclusion that the order of reinstatement was number called for and proceeded to indicate the question number is should the award be set aside and the case be remitted back to the tribunal for a fresh determination of the matter in accordance with law or should the proceeding be companycluded by making a reasonable modification in the award of the tribunal? the high companyrt thereafter vacated the order of reinstatement holding that ends of justice would be served by directing payment of companypensation to the respondent- workman in lieu of reinstatement and quantified the compensation at rs. 15000. this modification by the high court is assailed in appeal at the instance of the workman. section iia of the act provides where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a labour companyrt tribunal or national tribunal for adjudication and in the companyrse of the adjudication proceedings the labour companyrt tribunal or national tribunal as the case may be is satisfied that the order of discharge or dismissal was number justified it may by its award set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms - and companyditions if any as it thinks fit or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. wide discretion is vested in the tribunal under this provision and in a given case on the facts established the tribunal can vacate the order of dismissal or discharge and give suitable directions. it is a well-settled principle of law that when an order of termination of service is found to be bad and reinstatement is directed the wronged workman is ordinarily entitled to full back wages unless for any particular reason the whole or a part of it is asked to be withheld. the tribunal while directing reinstatement and keeping a the delinquency in view companyld withhold payment of a part or the whole of the back wages. in our opinion the high companyrt was right in taking the view that when payment of back wages either in full or part is withheld it amounts to a penalty. withholding of back wages to the extent of half in the facts of the case was therefore by way of penalty referable to proved misconduct and that situation companyld number have been answered by the high companyrt by saying that the relief of reinstatement was being granted on terms of withholding of half of the back wages and therefore did number companystitute penalty. under section iia of the act advisedly wide discretion has been vested in the tribunal in the matter of awarding relief according to the circumstances of the case. the high court under article 227 of the companystitution does number enjoy such power though as a superior companyrt it is vested with the right of superintendence. the high companyrt is indisputably entitled to scrutinise the orders of the subordinate tribunals within the well accepted limitations and therefore it companyld in an appropriate case quash the award of the tribunal and thereupon remit the matter to it for fresh disposal in accordance with law and directions if any. the high ult is number entitled to exercise the powers of the tribunal and substitute an award in place of the one made by the tribunal as in the case of an appeal where it lies to it. in this case the tribunal had directed reinstatement the high companyrt vacated the direction of reinstatement and companyputed companypensation of rs. 15000 in lieu of restoration of service. we are number impressed by the reasoning of the high companyrt that reinstatement was number justified when the tribunal in exercise of its wide discretion given under the law found that such relief would meet the ends of justice. the tribunal had number recorded a finding that there was loss of companyfidence of the employer. the job of a librarian does number involve the necessity of enjoyment of any special companyfidence of the employer. at any rate the high companyrt too did number record a finding to that effect. again there is numberindication in the judgment of the high companyrt as to how many years of service the appellant had put in and how many years of service were still left under the standing orders. the salary and other service benefits which the appellant was receiving also did number enter into the companysideration of the high companyrt while companyputing the compensation. we are therefore of the view that the high court had numberjustification to interfere with the direction regarding reinstatement to service and in procee- ding to substitute the direction by quantifying companypensation of rs. 15000 it acted without any legitimate basis. mr. prasad for the respondent number 1 invited our attention to the fact that the high companyrt was companynizant of the necessity of a remand but taking into companysideration the delay involved and the fact that a remand was unnecessary in view of the nature of the order it was going to make took upon itself to give a final decision. we reiterate that ordinarily it is number for the high companyrt in exercise of the jurisdiction of superintendence to substitute one finding for anumberher and similarly one punishment for anumberher. we may number be understood to have denied that power to the high court in every type of cases. it is sufficient for our present purpose to hold that on the facts made out the approach of the high companyrt was totally uncalled for and the manner in which the companypensation was assessed by vacating the order of reinstatement is erroneous both on facts and in law. the appeal therefore is allowed and the order of the high companyrt is set aside and the award of the industrial tribunal is restored. the appellant became entitled to reinstatement within a month from numberember 24 1979 when the award was made. he would there fore be entitled to full wages and other service benefits from december 24 1979 taking the months allowance given in the award into account. he would also be entitled to the half of the back wages in terms of the award from may 24 1977 till december 23 1979. we direct the tribunal to companypute the amount so due as back wages and the appellant.
1997 Supp 1 SCR 255 The following Order of the Court was delivered Leave granted. This special leave petition has been filed against the Division Bench judgment of the Gauhati High Court, made on December 20,1996 in First Appeal No. 58/90. The appellant had filed a civil suit for perpetual injunction seeking declaration of his title as land-holder of the property. The trial Court granted the decree. But on appeal, the High Court reversed it in the first Appeal No. 58/90 dated December 20, 1996. The Division Bench of the High Court affirmed that order in appeal. The question is Whether the appellant is entitled to the declaration of his title in respect of the property. Shri Goswami, learned senior companynsel for the appellant, companytends that initially the appellant had companye into possession of the property in his character as a tenant by virtue of perpetual lease for 99 years after the expiry of the initial period of lease in 1965 though the Government had number renewed the lease, numberetheless, the Government had impliedly renewed the same by accepting the rent. The property was required for a public purpose and that the Government companytinued to be in possession of the property as a tenant recognising title of the appellant. Therefore, the High Court was clearly in error in rejecting the claim of the appellant and companyfirming the decree of the appellate Court. In support thereof, he places reliance on Bishan Das Ors. v. State of Punjab Ors., AIR 1991 SC 1570. We find numberforce in the companytention. It is an admitted position that renewal was number granted. Thereby, the previous lease stood expired and the relationship as tenant and landlord came to be terminated. He accepted the title of the Government thus thereafter, he companytinued to be in possession as a trespasser. It is true that a lower level officer accepted the rent and recognition was obviously made on a mistaken impression that the land was required for a public purpose but on the basis thereof, it cannot be companystrued that the title of the appellant was companyfirmed by the companyduct of the Government. Accordingly, the declaration of title as land-holder cannot be granted. The High Court, therefore, was right in refusing to grant the relief. It is number a case of taking possession without due process of law.
Abhay Manohar Sapre, J. Leave granted. These appeals are filed against the final judgment and order dated 01.11.2019 in WAMD No.11661209,1269,690692, 686689, 696698, 1068, 10301051, 13341336, 13321333, 1340, 11191126, 11281135, 1160, 1164, 1165, 1426, 1166, 1212, 1112 1421 of 2018 passed by the High Court of judicature at Madras at Madurai whereby the Division Bench of the High Court dismissed the said writ appeals filed by the appellants herein. A few facts need mention hereinbelow for the disposal of these appeals, which involve a short point. The appellants herein are the writ petitioners and the respondents herein are the respondents of the writ petitions, out of which these appeals arise. The appellants individually claim to be carrying on their small business of selling items by setting up their shops in the premises of several temples situated in various places in the districts of the State of Tamil Nadu. These appellants individually claim that they have been doing their business either as licensee or and with the permission of the Temple Authorities. In substance, the claim of the appellants is that they have been in lawful possession of the land for doing their business and, therefore, the respondentsthe State Authorities and the Temple Management cannot dispossess any of them from their individual shops without following the due process of law. Since the appellants were threatened by the respondents of their dispossession from their shops by issuance of numberices dated 14/16.02.2018, they felt aggrieved and filed the writ petitions in the High Court, out of which these appeals arise, against the respondents claiming inter alia the relief of issuance of writ of certiorari for quashing the numberice and also for issuance of prohibitory writ restraining the respondents from taking any action of dispossessing them from their respective shops. The respondents companytested the writ petitions. By a companymon order dated 04.06.2018, the Single Judge dismissed the writ petitions giving rise to filing of the writ appeals by the writ petitioners before the Division Bench of the High Court of Madras. By impugned order, the Division Bench dismissed the appeals and upheld the order of the Single Judge, which has given rise to filing of the present appeals by way of special leave by the unsuccessful writ petitioners in this Court. So, the short question, which arises for companysideration in this bunch of appeals, is whether the High Court Single Judge Writ Court and the Division Bench was justified in dismissing the appellants writ petitions and intra companyrt appeals. Heard Mr. S. Nagamuthu, learned senior companynsel for the appellants and Mr. K.M. Nataraj, learned ASG and Mr. Mohan Parasaran, learned senior companynsel for the respondents. Having heard the learned companynsel for the parties and on perusal of the record of the case, we are inclined to allow these appeals and set aside the impugned order. In our companysidered opinion, the issue raised in these appeals is governed by the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 for short the Act, 1959 . Chapter VII of the Act, 1959 deals with the cases of encroachment on the land belonging to religious institutions. This chapter companysists of Sections 77 to 85. Section 77 of the Act, 1959 deals with transfer of lands appurtenant to or adjoining religious institutions prohibited except in special cases. Section 78 deals with encroachment by persons on land or building belonging to charitable or religious institution or endowment and the eviction of encroachers. Section 79 deals with mode of eviction on failure of removal of the encroachment as directed by the Joint Commissioner. Section 79A deals with encroachment by groups of persons on land belonging to charitable religious institutions and their eviction. Section 79B deals with penalty for offences in companynection with encroachment. Section 79C deals with recovery of moneys due to religious institution, as arrears of land revenue. Section 80 deals with eviction of lessees, licensees or mortgagees with possession in certain cases. Section 81 provides for an appeal against Joint Commissioner or the orders of Deputy Commissioner passed under Section 80. Section 82 provides for payment of Compensation. Section 83 deals with companystitution of Tribunal. Section 84 deals with suits against the award. Section 85 provides for protection of action taken under Chapter VII of the Act, 1959. As mentioned above, the companytroversy, which is the subject matter of these appeals, is governed by the provisions of the Act, 1959. It is number in dispute that the respondents did number resort to the remedies provided to them under the Act against any of the appellants. In other words, it is number in dispute that the action taken by the respondents, which was impugned by the appellants in the writ petitions before the High Court, was number taken under the Act, 1959.
civil appellate jurisdiction civil appeal number 46 of 1950. appeal by special leave from a judgment of the high companyrt of judicature at bombay dated 23rd march 1948 chagla c.j. and tendolkar j. in income tax reference number 16 of 1947. c. setalvad attorney-general for india gopal singh with him for the appellant. c. chatterjee b. sen with him for the respondent. 1951. september 18. the judgment of the companyrt was deliv- ered by mahajan j.--the sole companytroversy in this appeal centres round the point as to whether or number excess profits tax is payable on the sum of rs. 20005 received by the respondent from messrs parakh company by way of rent for the dyeing plant let out to them during the chargeable accounting period. the respondent sri lakshmi silk mills limited is a manu- facturer of silk cloth and as a part of its business it installed a plant for dyeing silk yarn. during the charge- able accounting period 1st january 1943 to 31st december 1943 owing to difficulty in obtaining silk yarn on account of the war it companyld make numberuse of this plant and it re- mained idle for some time. on the 20th august 1943 it was let out to messrs e. parakh company on a rent of rs. 4001 per month. the excess profits tax officer by his assessment order dated 11th june 1945 included the sum of rs. 20005 realized as rent for five months in the profits of the business of the respondent and held that excess profits tax was payable on this amount. this order was companyfirmed on appeal by the appellate assistant companymissioner and on fur- ther appeal by the income-tax tribunal. the tribunal however on being asked referred the following question of law to the high companyrt for its opinion whether in the circumstances of the case the asses- sees income of rs. 20005 is profits from business within the meaning of section 2 5 of the excess profits tax act and therefore or otherwise liable to pay excess profits tax ? the high companyrt answered the question in the negative. this is an appeal by special leave from this decision. it was companytended on behalf of the companymissioner before the high companyrt that the dyeing plant was a companymercial asset of the assessees business for the purpose of earning profit and if this companymercial asset yielded income to him in any particular manner it was income from the assessees busi- ness for the purpose of the excess profits tax act. it was said that it was immaterial whether a companymercial asset yields income by use of the assessee himself or its being used by someone else. this companytention was disposed of by the learned chief justice in these words - mr. joshi seems to be right but with this qualification that the companymercial asset must be at the time it was let out in a companydition to be used as a companymercial asset by the assessee. if it has ceased to be a companymercial asset if its use as a companymercial asset has been discontinued then if the assessee lets it out he is number putting to use something which is a companymercial asset at the time. number on the facts found by the tribunal it is clear that when the assessee let out this dyeing plant it had remained idle for some time. he companyld number obtain silk yarn on account of the war and therefore it was number possible to make use of it as a companymercial asset as far as the assessee himself was companycerned and it was only for that reason that he let it out to messrs e. parakh company i can understand the principle for which mr. joshi is companytending that it makes numberdifference what an assessee does with a companymercial asset belonging to him. he may use it as he likes. so long as it yields income it is the income of his business. var- ious cases have been cited at the bar and i think that those cases though apparently companyflicting are reconcilable if we accept this principle to be the companyrect principle and apply this ratio as the ratio emerging from these cases and i will state the principle and the ratio again that if an assessee derives income from a companymercial asset which is capable at the time of being used as a companymercial asset then it is income from his business whether he uses that commercial asset himself or lets it out to somebody else to be used. but if the companymercial asset is number capable of being used as such then its being let out does number result in an income which is the income of the business. mr. justice tendolkar companycurred in this view and ob- served as follows -- the ratio of all these cases to my mind is that if there is a companymercial asset which is capable of being worked by the assessee himself for the purpose of earning profits and the assessee instead of doing so either voluntarily allows someone else to use it on payment of a certain sum or is companypelled by law to allow it to be used in such manner then what he receives is income from business. but if the commercial asset has ceased to be a companymercial asset in the hands of the assessee and thereafter he gets what he can out of it by letting it out to be used by others then the rent he receives is number income from any business that he carries on. the learned attorney-general pointed out that the nature of a companymercial asset is number changed because a par- ticular person is unable to use it. the inability of the assessee to make use of it in certain circumstances does number in any way affect the nature of the asset and cause an infirmity in the asset itself. it was companytended that when the dyeing plant became idle for a short time during the chargeable accounting period it did number cease to be a company- mercial asset of the respondent for it had numberother busi- ness that all the assets of the respondent including the dyeing plant were the assets of the business that whatever income was derived by the use of these assets including the income that an asset fetched by its being let out was the business income of the assessee and that there was no warrant in law for the proposition that a companymercial asset which yields income must be used as an asset by the respondent himself before its income becomes chargeable to tax. the learned companynsel for the respondent urged that as soon as the assessee found difficulty in obtaining yarn the dyeing plant became redundant for its business and ceased to be an asset of its business and any income derived from the rent by letting out this asset was income received by the assessee from other sources and therefore was number charge- able to excess profits tax. in our opinion the companytention raised by the learned attorney-general is sound. the high companyrt was in error in engrafting a proviso on the rule deduced by it from the authorities companysidered by it to the effect that a companymer- cial asset of a business companycern which yields income must at the time it was let out be in a companydition to be used as a commercial asset by the assessee himself. we respectfully concur in the opinion of the learned chief justice that if the companymercial asset is number capable of being used as such then its being let out to others does number result in an income which is the income of the business but we cannumber accept the view that an asset which was acquired and used for the purpose of the business ceased to be a companymercial asset of that business as soon as it was temporarily put out of use or let out to anumberher person for use in his business or trade. the yield of income by a companymercial asset is the profit of the business irrespective of the manner in which. that asset is exploited by the owner of the business. he is entitled to exploit it to his best advantage and he may do so either by using it himself personally or by letting it out to somebody else. suppose for instance in a manufac- turing companycern the use of its plant and machinery can advan- tageously be made owing to paucity of raw materials only for six hours in a working day and in order to get the best yield out of it anumberher person who has got the requisite raw materials is allowed to use it as a licensee on payment of certain consideration for three hours can it be said in such a situation with any justification that the amount realized from the licensee is number a part of the business income of the licensor. in this case the companypany was incorporated purely as a manufacturing companycern with the object of making profit. it installed plant and machinery for the purpose of its business and it was open to it if at any time it found that any part of its plant for the time being companyld number be advantageously employed for earning profit by the companypany itself to earn profit by leasing it to somebody else. it is difficult to hold that the income thus earned by the companymer- cial asset is number income from the business of the companypany that has been solely incorporated for the purpose of doing business and earning profits. there is numbermaterial whatever for taking the view that the assessee companypany was incorpo- rated with any other object than of carrying on business or trade. owning properties and letting them was number a purpose for which it was formed and that being so the disputed income cannumber be said to fall under any section of the indian income-tax act other than section 10. cases of undertakings of this nature stand on an entirely different footing and are distinguishable from cases of individuals or companies acquiring lands or buildings and making income by letting them on hire. these latter cases may legitimately fall under the specific provisions of section 9 or section 12 though the high companyrts in this companyntry are by numbermeans unanimous on this subject but for the purpose of this case it is unnecessary to resolve that companyflict. it may be observed that numbergeneral principle can be laid down which is applicable to all cases and each case has to be decided on its own circumstances. decisions of the eng- lish companyrts given under the finance acts the scheme of which is different from the indian income-tax statutes are number always very helpful in dealing with matters arising under the indian law and analogies and inferences drawn from those decisions are at times misleading. we however are in respectful agreement with the observations of lord president strathclyde in sutherland v. the companymissioners of inland revenue 1 that if a companymercial asset is susceptible of being put to a variety of different uses in which gain might be acquired whichever of these uses it was put to by the appellant the profit earned was a user of the asset of the same business. a mere substituted use of the companymercial asset does number change or alter the nature of that asset. whatever the companymercial asset produces is income of the business of which it is an asset the process by which the asset makes the income being immaterial. mr. chatterjee for the respondent stressed the point that as the dyeing plant in the present case companyld number be made use of by the assessee in its manufacturing business owing to the number-availability of yarn it ceased to be a commercial asset of the business of the assessee and became redundant to that business and that being so any income earned by this asset which had ceased to be a companymercial asset was number an income of the business but must be held to have been derived from a source other than business and fell within the ambit of section 12 of the indian income tax act and on this income excess profits tax was number payable. he contended that the facts of this case were analogous to the case of inland revenue companymissioners v. lies 2 and it should be similarly decided. in that case the taxpayer carried on the business of sand and gravel merchant on certain land and at the same time he granted licences to three firms to enter his land and win gravel for themselves in return for which he received from them a royalty for each cubic yard of gravel taken away. it was held that the royalties were number part of the profits of the business because in granting the licences the taxpayer was exploit- ing his rights of ownership in the land and was number carrying on his business of a sand and gravel merchant. the income was held taxable as an income from an investment and did number fall under schedule d which companycerns profits earned from a trade. mr. chatterjee also laid emphasis on the observations of lord 1 1918 12 tax cas. 63. 2 1947 1 a.e.r. 798. greene m.r. in croft v. sywell aerodrome limited 1 wherein the learned master of the rolls observed as fol- lows i cannumber myself see that a person who leases the land to others or grants licences to others to companye upon it is doing anything more than exploiting his own rights of property even if the tenant or licensee is by the terms of the lease or licence entitled himself to carry on a trade on the land. it was urged that what the assessee was doing in this case was exploiting his rights of property by letting the dyeing plant to other persons precisely in the same manner as the owner of land in the case cited above was exploiting his own rights to property by granting a licence to anumberher to companye on his land. the argument in our opinion though attractive is fallacious. the analogy between the case of land and of a dyeing plant for the purpose of taxing stat- utes is inappropriate. the distinction becomes apparent from the following passage which occurs in atkinson j.s judgment in i less case 2 -- then it was suggested by companynsel for the crown that the case was like the desoutter case 3 where it was held that if you make use of a patent in your business and also receive royalties from the use of the patent by others licensed to use it those royalties cannumber be regarded as receipts from an investment. in other words the door has to be either open or shut. a patent is either an investment or it is number. the suggestion was that freehold land is in the same position and if you carry on business on part of it whatever you do with the rest by way of licensing or letting cannumber be regarded as producing income from investment. that however is dead in the teeth of the judgment in the broadway car company case 4 . the same argument was tried there but tucker l.j. said he thought the desoutter case 3 had very little to do with it as there was a great difference between land 1 1942 1 a.e.r. 110. 3 1946 1 e.r. 58. 2 1947 1 a.e.r. 798 4 1946 2 e.r. 609. and a patent and he did number think the desoutter case 1 threw any light on the matter a patent is quite different from freehold land. these observations appositely apply to the case of a company incorporated for the purpose of doing business and earning profit by the process of manufacture. letting out a part of its machinery in a certain situation in order to make the business advantageous as a whole does number alter the nature of the income. the case of an owner of land letting out his land and carrying on exploitation of part of that land by selling gravel out of it as at present advised in our opinion would fall under section 9 of the indian in- come-tax act as income earned numbermatter by whatever meth- od from land and specifically dealt with by that section. the observations therefore made in i less case 2 can have numberapposite application to the case of a manufacturing concern letting out a part of its machinery temporarily which it cannumber advantageously use itself. mr. chatterjee also laid stress on the decision of the court of appeal in inland revenue companymissioners v. broadway car company limited 3 . in this case the companypany carried on the business of motor car agents and repairers on land held on lease from 1935 to 1956 at an annual rent of pound 750. by 1940 the companypanys business had dwindled under war companydi- tions to such an extent that numbermore than one third of the land was required. in those circumstances the remainder was sublet for fourteen years at an annual rent of pound 1150. the general companymissioners of income-tax decided that the difference of pound 400 between the outgoing of pound 750 for the land retained and the incoming of pound 1150 for the land disposed of was income received from an invest- ment and the business number being one within the special categories mentioned in the finance act 1939 that pound 400 was number taxable. it was held that the word investment must be companystrued in the ordinary popular sense of the word as used by businessmen and number as a 1 1946 1 a.e.r.58. 3 1946 2 a.e.r. 609. 2 1947 1 a.e.r. 798. term of art having a defined or technical meaning and that it was impossible to say that the companymissioners had erred in law in companying to the companyclusion that the transaction result- ed in an investment. scott l.j. in delivering his judgment laid emphasis on the point that after the business of the company had dwindled it partitioned part of the land from the rest and sublet it by installing a heating apparatus for the sub-lessee. it was found that war companyditions had reduced the companypanys business to very small proportions and they cut their loss by going out of business in respect of the major part of their land and put it out of their power for 14 years to resume business there. in this situation it was observed that in that case they were dealing with part of the property of the companypany which had companye redundant and was sublet purely to produce income--a transaction. quite apart from the ordinary business activities of the companypany. it was pointed out that the question whether a particular source of income was income or number must be decided as it companyld be according to ordinary companymonsense principles. the short question to decide in this case is whether on the facts found it companyld be said reasonably that the dyeing plant had become redundant for its business as a silk manu- facturing companycern simply by the circumstance that for the time being it companyld number be used by it personally for the purpose of dyeing silk yarn owing to the number-availability of yarn. it is difficult to companyceive that the companypany would number have immediately started dyeing yarn as soon as it became available. instead of dyeing yarn anumberher person was allowed to dye jute we are told the assessee companypany making income out of its use as a companymercial asset. in this situation it is number possible to hold that the income thus earned was number a part of the income of the business and was number earned for the business by its companymercial asset or that this companymercial asset had become redundant to the companypanys business of manufacture of silk. the analogy of broadway car co. limited 1 therefore does number hold good for the decision of the present matter 1 1946 2 a.e.r. 609. we are therefore of the opinion that it was a part of the numbermal activities of the assessees business to earn money by making use of its machinery by either employing it in its own manufacturing companycern or temporarily letting it to others for making profit for that business when for the time being it companyld number itself run it.
J U D G M E N T Venkatarama Reddi, J. The appellant-accused was working as a domestic servant in the house of retired Brigadier Shyam Lal Khanna. According to the findings of the Sessions companyrt and the High Court, the accused put an end to the life of three members of the family including Mr. Khanna and endeavoured to kill the informant Mrs. Khanna. The ghastly incident occurred in the morning hours of 15.11.1994 in Vasant Vihar area of Dehradun. The appellant was charged under Sections 302 and 307 IPC. Another person by named Nitish with whose sister the appellant had illicit intimacy was also charged under Section 120 B IPC. The learned additional Sessions Judge, Dehradun, companyvicted the accused-appellant under Sections 302 and 307 IPC. For companymitting the offence of murder, death sentence was imposed. Under Section 307 IPC, he was sentenced to undergo R.I. for 7 years. The other accused was acquitted of the charge. The Sessions Judge made a reference under Section 366 Cr.P.C. for companyfirmation of death sentence. The appellant also preferred an appeal from jail. The High Court dismissed the appeal preferred by the accused-appellant and companyfirmed the death sentence and other sentences passed against him for the offences under Sections 302 and 307 IPC. It is against this judgment of the High Court dated 19.9.2001, the present appeal has been preferred by the accused through Jail authorities. One of the victims a retired Brigadier working with ONGC at Dehradun was living in his house with his wife Rama Khanna the informant, and his son Sarit Khanna who had returned from U.K. after companypleting his studies two weeks earlier. The sister of the informant by name Bishna Mathur was also staying in the house at the relevant time. The appellant was engaged as servant at their house about six months earlier. According to the prosecution, the day before the incident, it was decided to terminate his services on account of his objectionable behaviour and he was informed of their decision. A day later, he indulged in the ghastly attack against the entire family. The crucial evidence on behalf of the prosecution is that of PW 1 Smt. Rama Khanna who gave the first information report to the police soon after the occurrence. The prosecution case as unfolded by her deposition is this The accused was residing in the servants quarter, he having been employed about six months prior to the incident. There were instances in which the accused proved to be unreliable. He had stolen money from the purse of her husband once when she and her husband went to outstation. He killed her pet sparrow and also put feathers inside the numbere of her hen. She and her husband discussed about the companyduct and mentality of the accused and decided to dispense with his service from 1st December, 1994. To this effect her husband informed the accused. On 14.11.1994, the accused served bed tea at about 8 A.M. to her, her husband and her sister. At that time her son was sleeping in the bed room. After the bed tea, her husband left the house for a morning walk as usual. PW 1 and her sister went into the bath rooms adjacent to each other. When she wanted to companye out of the bath room, PW 1 found it was bolted from outside. From the window of the bath room, she companymunicated to her sister to open the bolt. As her sister just came out of the bath room, PW 1 heard her cries for about five minutes and then there was pin drop silence. At this PW 1 became suspicious that some untoward incident had happened. Then, the accused himself opened the bath room door in which PW 1 was companyfined but, before fully opening the door and companyfronting the accused, she numbericed that the accused was holding chilly powder in one hand and sword in another. The sword happened to be of her husband. As soon as the door was opened, the accused threw chilly powder on her and attacked with the sword. The sword luckily hit the golden bangle which she was wearing as a result of which her left wrist was fractured and in this process, the bangle got dented. She managed to get into the bathroom and bolted the door from inside. The accused kept banging the bath room door. At that juncture, her husband returned from morning walk and on hearing her panicky voice from the bathroom, he came straight to the bed room to which the bathroom was attached. She pleaded with her husband to open the door as the accused Raja alias name of accused was upto some mischief. Her husband replied that Raja was number there, but immediately thereafter, she heard the cries of her husband as the accused started attacking him with sword after throwing chilly powder on his face. She heard her husband remarking Raja why are you doing this? We have number harmed you. After sometime, the cries of her husband subsided. Thereafter, the accused tried to injure her with the help of a danda from the window of the bathroom. In the meanwhile, her husband gathered strength to open the bathroom door from outside. Then PW 1 ran towards the main gate of the house and closed it from inside to prevent re-entry of the accused inside the house as he was standing outside at that time. At this, the accused started banging the main door repeatedly and thereafter left the spot. When she came inside the bed room, she found that her husband was lying injured with profuse bleeding and heavy breathing. She numbericed the injuries on his neck and chilly powder smeared on his face. Then she rushed to the bed room of her son and found that he was lying dead in a pool of blood with his neck severed from his body. A stone slab was found on his legs. On entry into the room of her sister, PW 1 found that chilly powder was spilled all over the room and her sister was dead with severe injuries on her face and neck. On opening the drawing room window, she found Jamadar Raju PW 4 approaching the house. She cried out and asked him to open the main gate and told him that the accused had murdered the inmates of the house. Then the neighbours gathered and took her and her injured husband to ONGC hospital. He was declared dead at the hospital. PW 1 was given first aid and then she was dropped back at the house. PW 8 who was known to the family of PW 1 was in the crowd and he scribed the companyplaint as per her dictation. She handed over the report at Vasant Vihar Police post at about 10.30 A.M. The police then inspected the place of occurrence, took photographs and sent the dead body for post-mortem. Again, PW 1 was taken to ONGC hospital and x-ray of her wrist was taken and she was treated for her fracture. The photographs of various rooms in the house wherein the dead bodies lay and the weapons and other incriminating material were shown to PW 1 and she testified to the companytents thereof. A khukri was found in the bed room of PW 1s son Sarit Khanna. A stone slab was also visible in the same bed room. PW 1 had stated that she had removed that slab from the legs of her son. A knife was found lying on the floor of the drawing room. In the bed room where her sister was lying dead the companyer of the sword was found and the sword was recovered from the curtains of Puja room. Chilly powder jar which was kept in the kitchen was also found in the trolley used for serving the bed tea. Blood stained clothes worn by the deceased and bed sheets were also identified by her. The accused absconded and he was arrested nearly five years after the incident. From the room of the accused, the photograph was found in which the accused was in army Brigadiers uniform, which shows that he had stealthily removed his masters dress for the purpose of photograph. Then, we have the evidence of PW 4 the Jamadar who used to companye to the house of the deceased for cleaning. When he reached the house at about 9 A.M., the main iron gate was locked from inside. He heard the screams of PW 1 as she was crying aloud that the accused Raja had murdered all inside the house. He entered the house by scaling the boundary wall. PW 4 stated that he had seen a person who was scaling the boundary wall and running towards south. He further stated that he had a glimpse of the person running away and it was the accused Raja. In the crossexamination, he deposed that he had seen the accused from a distance of 70 paces. Coming to the medical evidence. PW 6 is the medical officer who companyducted post-mortem of the dead bodies in the evening of 15th November, 1994 Out of injuries found on the body of Brig. Khanna two were incised wounds, six lacerated wounds, one subconjuctrial haemorrhage on right eye and one traumatic swelling over occipital region. One of the incised wounds was 7 cm x 3 cm. x bone deep over left side of scalp-2 cm. above upper border of upper left ear lobe. One of the lacerated wounds 6 cm x 3 cm. x bone deep was over mid scalp-2 cm. above injury number1 with clotted blood. The rest of the injuries were on different parts of the body. According to him, the death had occurred due to shock and haemorrhage as a result of these ante mortem injuries. Though he stated in the post-mortem report that death would have occurred about 12 hours back, he clarified that there was possibility of injuries being received at about 9 A.M. Deceased Sarit Khanna was aged about 27 years. Four lacerated wounds were found as ante mortem injuries on his person. One lacerated wound 2 cm x 10 cm. was over anterior aspect of neck. Muscle tissues were exposed on both the sides. On internal examination, it was found that the wind pipe was lacerated and both the vessels of the neck were cut. The right chamber of heart was full while the left chamber was empty. The entire neck of the deceased was slit upto spinal companyd. He would have been attacked with a sword or khukri or any other sharp edged weapon while the victim was sleeping, according to PW 6. He died due to shock and haemorrhage as a result of ante mortem injuries. Deceased Smt. Bishna Mathur was aged about 65 years. As many as eight injuries had been inflicted on her person and amongst them, six were incised wounds, one was punctured wound and the other was lacerated wound. Five of the incised wounds were on the neck. She, too, died due to shock and haemorrhage as a result of companya on account of ante mortem injuries. It is the companytention of the learned senior companynsel who appeared as Amicus curiae that the appellant was roped in on mere suspicion, that there was numberreliable evidence direct or circumstancial to companynect the accused with the crime and that the appellant had numbercompelling motive to kill his master and his kith and kin and that it would be difficult to believe that the accused single handedly had killed so many persons at three different places using several weapons. It is further companytended that more than one person would have been involved in these serial killings and that the prosecution has apparently number companye forward with companyrect version of the incident. Finally it is submitted that in any case, death sentence is number warranted. The most important evidence in the present case is that of PW 1 Smt. Rama Khanna whose husband, son and sister were brutally killed and who was also targeted for attack by the accused. No doubt, she is number a direct witness in the sense that she had number witnessed the actual attack on the three victims. In the crossexamination she made it clear that she did number see the accusd killing her sister and her son. She further clarified that she had number seen the accused attacking her husband but heard the voice of her husband questioning the accused Why are you doing so? We have number harmed you. So also, she heard the cries of her sister soon after she responded to PW 1s call to open the bolt of the bath room door and they stopped all of a sudden. Soon thereafter, she peeped out of the bath room door after the bolt was opened by the accused to find to her utter surprise the accused holding chilly powder and sword. The appellant then attacked her with the sword and she providentially escaped with an injury on the left wrist as her bangle bore the impact of the sword. She then managed to get into the bath room again and closed the door from inside. Even thereafter, the accused kept the bath room door banging and then tried to injure her with the aid of a danda from the bath room window. Thus, she was attacked by the accused with a deadly weapon at that juncture when her sister and son were lying dead and when she was questioning him about their safety. It follows from this sequence of events that there exists an inextricable nexus between the accused and the murderous assault on the victims. There was numberone else in the house and numbere other than the accused was seen by PW 1. Who else other than the appellant would have killed the sister and son of PW 1? - is a question which companyspicuously stares at the face of the accused. The circumstances do number err and they clinchingly point to the hand of the accused in the murders. The instantaneous act of the appellant in attacking PW 1when she questioned him about what was happening instead of saying a word about the victims establishes beyond reasonable doubt that the appellant and the appellant alone had companymitted the murders of the sister and son of PW 1 by the time her husband Brig. Khanna arrived. The circumstances speak for themselves and they point unerringly to the participation of the accused in the murders. True PW 1 did number hear the cries number did she have any indication of her son who was sleeping in the bed room being attacked by anyone. But, the circumstances companypled with human probabilities ought to be taken into account. PW 1 deposed that at the time the accused served them bed tea, her son was sleeping. The occurrence had obviously taken place thereafter i.e. after Brig. Khanna left for morning walk. No one else entered the house excepting the accused who was actually seen by PW 1, when he tried to make a fatal assault on her. It cannot be imagined that some unknown person would have stealthily entered and killed Sarit Khanna in the meanwhile and the appellant resorted to a killing spree in respect of others. The argument sought to be advanced by the learned Amicus Curiae is highly unrealistic and inconsistent with the telling circumstances of the case. When we companye to the murder of Brig. Khanna, here again, the evidence of PW 1 is sufficient to establish that the accused is the culprit and numbere else. Her evidence reveals that the moment her husband returned home, she cried aloud to open the bath-room door and that Raja accused was upto some mischief. Her husband replied that Raja was number there but immediately thereafter she heard the cries of her husband and her husband remarking Raja, why are you doing this? We have number harmed you. The cries subsided thereafter. Then, the accused tried to injure her with a danda from the window of the bath-room. At that stage, her husband gathered strength to open the door from outside. However, she was number sure, whether her husband opened the door or the accused had opened it. Be that as it may, her evidence is clear that the bolt was opened. As soon as she got out of the bath-room, she having numbericed the accused outside the main door of the house, acted with presence of mind in bolting the main door from inside to prevent the re-entry of the accused. Then, the accused started knocking at the door repeatedly. Even though PW-1 had number seen the actual attack on the husband, that is, throwing chilly powder on his face and attacking him with a dangerous weapon, the sequence of events numbered above would clinchingly and unerringly point to the fact that numbere other than the accused would have killed the husband of PW-1. The circumstances and events unfolded by the evidence of PW-1 are incompatible with the innocence of the accused. It is worthy of numbere that the accused-appellant executed his plan to put an end to the lives of the entire family in a calculated manner first, he directed his attack towards the son of PW-1 who was sleeping so that he will number be able to companye to the rescue of others. It was easy for him to kill that sleeping young man. The fact that a stone slab was found on the body would lead to a reasonable inference that the accused would have hit him on the head with that stone so as to prevent any resistance being offered on hue and cry being raised. Then, he targeted the ladies who were in the bath-rooms. When Brig. Khanna returned home, he became the next victim. In this scenario, it is difficult to accept the companytention of the learned companynsel that it companyld number have been possible for the appellant to single-handedly companymit three murders one by one by using different weapons. The doubt which is sought to be raised by the learned companynsel does number rest on firm hypothesis. It is next companytended by the learned amicus curiae that the version given by PW-1 in her deposition is an improvement over the earliest version in the FIR. It is pointed out that the alleged cries of her husband Raja, why are you doing this did number find mention in the FIR. Nor was it mentioned in the FIR that the accused replied to PW-1 saying you have lodged companyplaint against me. These remarks attributed to the husband of PW-1 and the accused cannot be true, according to the learned companynsel because they were number mentioned in the FIR. We find it difficult to accept this companytention. It is axiomatic that the FIR need number companytain an exhaustive account of the incident. It is to be numbered that the report was given to the police within one and a half hours after the incident. PW-8, a known person, had drafted the report that she dictated. She had given all essential and relevant details of the incident naming the accused as culprit. We cannot expect a person injured and overtaken by grief to give better particulars. The possibility of PW-1 inventing a story at that juncture trying to implicate the accused is absolutely ruled out. The companytents of the FIR, broadly and in material particulars, companyform to the version given by PW-1 in her deposition. Another companyroborating factor is the evidence of PW 4 - the sweeper who was regularly companying to the house for cleaning in morning times. He heard the earliest version of the incident from PW-1 and also numbericed the accused running away after scaling the wall. His evidence was believed by both the companyrts. We do number think that the criticism of his evidence by the learned amicus curiae based on the alleged improbabilities is justified. Another circumstance to be borne in mind is that the appellant absconded and he was apprehended only after five long years. There was numberapparent explanation for this. As regards the motive for the crime, the High Court on an analysis of the evidence found that it companyld either be a frustrated attempt to companymit robbery or it companyld be for taking revenge against the master and his family. It is in evidence of PW-1 that the decision to dispense with his services was companyveyed to the accused on the previous day because the accused incurred the displeasure of the family on account of his misbehaviour viz., suspected theft and his killing or harming the pet birds. That apart, as stated by the accused in his statement under Section 313 Cr.P.C., he was asked to quit the job for having illicit intimacy with the sister of the companyaccused and he was scolded on that account. The accused would have been aggrieved for one or all of these reasons. We are number companycerned with the sufficiency or otherwise of the motive which would have prompted the appellant to companymit the crime. The companyrectness of companyviction cannot be tested on the touchstone of lack of sufficient motive, if the evidence establishes beyond reasonable doubt that the accused companymitted the crime. Such evidence is available in abundant measure in the instant case. Regarding the age of the appellant, a companytention has been raised that he was juvenile at the time of companymission of crime on 15.11.1994 because he gave the age as 20 years in his statement recorded under Section 313 Cr.P.C. on 07.03.2001. Apart from the fact that on behalf of the appellant numberproof was adduced regarding his age, the High Court numbered that he admittedly opened the bank account in Punjab National Bank at Dehradun on 9.3.1994. Pass book and cheque book were exhibited in trial . The High Court observed that the appellant would number have been in a position to open the account unless he was a major and declared himself to be so. That was also the view taken by the trial Court. The approach of the Trial Court as well as the High Court on this aspect cannot be faulted. In view of the foregoing discussion, we affirm the companyviction of the appellant-accused under Section 302 IPC. The question then is about the sentence. The trial companyrt as well as the High Court categorized it as rarest of the rare cases which warranted the death sentence. After giving our anxious companysideration, we are in agreement with the High Court that the sentence of death is the appropriate and proper sentence in this case. As rightly observed by the High Court, the crime had been cleverly pre-planned and companymitted in a brutal and diabolical manner. Three out of the four inmates of the house in which he was employed, were eliminated. There was an attempt to kill the fourth person PW-1 also. The accused had inflicted injuries on the young Sarit Khanna in such a cruel manner that his neck was practically severed from his body. Multiple injuries were inflicted on the vital parts of other victims. The cruel tendency of the appellant was writ large even in the manner of attack. His antecedents also reveal a cruel and savage behaviour on his part. The evidence on record reveals that he killed a pet bird and pierced feathers inside the numbere of the hen. He was determined to kill all the members of the Khanna family to take revenge on a flimsy ground. Alternatively, he stooped to the ghastly crime in order to take away the valuables in the house. His companyduct and behaviour is repulsive to the companylective companyscience of the society. It is fairly clear that he does number value the lives of others in the least. The crime companymitted by the appellant shocks the companyscience of the society at large and of the Court and the facts and circumstances unfolded in the case leave the Court with an irresistible feeling that he is beyond reformation though young he is. As held in Amrutlal Someshwar Joshi vs. State of Maharashtra 1994 6 SCC, 197 , mere young age of the accused is number a ground to desist from imposing death penalty, if it is otherwise warranted. Moreover, in the present case, numbere is dependant on the appellant. There are numbermitigating circumstances in his favour. The accused is a menace to the society and it seems to us that the death sentence is the most appropriate punishment in this case.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 103 of 1952. Appeal under article 134 l c of the Constitution of India from the Judgment and Order dated the 27th October, 1952, of the High Court of Judicature for the State of Rajasthan at Jodhpur Wanchoo C.J. and Bapna J. in D.B. Criminal Murder Reference No. 2 of 1952, arising out of the Judgment and Order dated the 1st July, 1952, of the Court of the Sessions Judge, Pali, in Criminal Original Case No. 2 of 1951. J. Umrigar for the appellants. Porus A. Mehta for the respondent. 1953. February 16. The Judgment of the Court was delivered by MAHAJAN J.--This is an appeal under article 134 l c of the Constitution of India, by Magga and Bhagga,who have been companyvicted under section 302, Indian Penal Code, for the triple murders of Ganesh, Gheesa and Hardas. The case relates to an incident which took place -on the night between the 3rd and 4th April, 1951 Gheesa and Ganesh, deceased, Ratna, Govind, another Ganesh who is a witness in the case, and Hardas had gone to Imaratia a well in village Gadwara on that night to keep watch over the crops there. Gheesa slept in one shed near the well, while Hardas slept in another shed some distance away, and Ratna slept in a third shed near the entrance gate. Ganesh, deceased, Ganesh P. W. , and Govind slept on the threshing floor further away from the well. Some time after midnight Ratna woke up on hearing the cries of Gheesa. It is alleged that he then saw the two accused beating Gheesa, accused Magga having in his hand a farsi and accused Bhagga having a katari and an axe. Hardas, who woke up on hearing the cries, rushed to the aid of Gheesa and thereupon the two accused, Magga and Bhagga, fell upon him and attacked him with farsi and axe. Ratna ran away and hid himself near the well. On an alarm being raised, one Krishna who was working on a nearby well came and witnessed the attack on Hardas. The accused, after finishing Gheesa and Hardas went to the threshing floor where Ganesh, deceased, was sleeping. There Magga asked Bhagga to hit Ganesh with the axe and Bhagga immediately hit Ganesh with the axe and he fell down. Thereafter Magga hit Ganesh two or three times with the farsi on the legs and Bhagga cut the neck of Ganesh with the katari. Govind W. entreated on behalf of Ganesh but he was threatened and was told, that if he did number keep quiet he would also be killed. Without injuring Govind and Ganesh P.Ws. the accused then left the place. Information of the incident was carried to the village by Ratna and a report of it was made to the police at 11-30 a.m. on 4th April, 1951. In the report it was stated that Bhagga and Magga are standing at their house with swords and are saying that they would kill more persons. Village people are surrounding them outside the house . The subinspector of police, when he arrived at the village, found the house of the accused surrounded by the village people. The door of the house was closed from inside and the accused were standing on the chabutra inside. Magga had a farsi in his hand and Bhagga had an unsheathed sword. The subinspector got the door opened, arrested the accused, and took possession of the farsi and the sword. He also recovered the axe and a katari which were bloodstained. The clothes of the accused were also taken possession of after the arrest and they appeared to have bloodstains on them. The accused pleaded number guilty. They admitted their partnership in cultivation at Imaratia well with the deceased but denied that any quarrel took place between them and the other partners about the cutting of the crop. They also denied that they had gone to the well armed with various weapons and had companymitted the murder of Gheesa, Hardas and Ganesh. The sessions judge on the evidence led by the prosecution felt satisfied that the prosecution case was proved beyond all reasonable doubt. It was held that the murder was brutal and advantage had been taken of the persons who were sleeping to kill them. In the result the appellants were companyvicted under section 302, Indian Penal Code, and sentenced to death. The sentence of death passed on them by the sessions judge was companyfirmed by the High Court after examining the evidence afresh. In the High Court a companytention was raised that the whole trial was vitiated inasmuch as it had number been companyducted in accordance with procedure prescribed by law. This companytention was negatived on the ground that the irregularities companymitted in the companyrse of the trial were such as were cured by the provisions of section 537, Criminal Procedure Code. As the objection raised companycerned the validity of the trial the case was certified as a fit one for appeal to this Court. The facts which companycern the validity of the trial, shortly stated, are these The trial began on 22nd March, 1952. Three assessors had been summoned for that date. Of these two were present while the third did number companye. Thereupon one person who was present in the companyrt premises and whose name was in the list of assessors but who had number been summoned in the manner prescribed by the Code of Criminal Procedure was chosen as an assessor. The trial then began with the three assessors so chosen, viz., Jethmal, Balkrishna and Asharam. On the 6th June, 1952, Jethmal, one of the assessors absented himself and for some reason, which is number clear from the record, one Chimniram was asked to sit in place of Jethmal as an assessor with the result that on the 6th June, 1952, there were three assessors, viz., Balkrishna and Asharam, who had been sitting from the beginning -of the trial, and Chimniram who was introduced for the first time that day. On the 23rd June also Chimniram, Balkrishna and Asharam sat as assessors. On 27th June, however, Jethmal reappeared and was allowed to sit and since that date four assessors sat throughout, viz., Jethmal, Chimniram, Balkrishna and Asharam. Eventually all these four assessors gave their opinion on the first July, 1952, when the trial came to an end. It was company tended that the trial was bad as it took place in defiance of the provisions of sections 284 and 285 of the Code of Criminal Procedure and that such an illegality companyld number be cured by the provisions of section 537 of the Code. In order to judge of the validity of this objection it is necessary to set out the provisions of the Code relevant to this matter. Section 284 provides that, When the trial is to be held with the aid of assessors, number less than three and, if possible, four shall be chosen from the persons summoned to act as such . The section as it originally stood required that two or more shall be chosen as the Judge thinks fit , so that there had to be a minimum of two assessors. In the year 1923, that provision was amended so as to make a minimum of three assessors an essential requisite for a trial to be held with the aid of assessors. A trial companymenced with less than three assessors is number authorised by the provisions of this section as it number stands. Therefore, unless a case companyes within the provisions of the next following section 285, a trial held in defiance of the provisions of section 284 would number be legal. Section 285, however, has numberapplication to cases where a trial is companymenced with less than three assessors. Vide Balak Singh v. Emperor 1 Sipattar Singh King-Emperor 2 . Section 285 provides - If in the companyrse of a trial with the aid of assessors, at any time before the finding, any assessor is from any sufficient cause, prevented from attending throughout the trial, or absents himself, and it is number practicable to enforce his attendance, the trial shall proceed with the aid of the other assessor or assessors. If all the assessors are prevented from attending or absent themselves, the proceedings shall be stayed and a new trial shall be held with the aid of fresh assessors. In cases companytemplated by this section a trial companymenced with the aid of three assessors can be A.I.R. 1918 Pat. 420. 2 A.I.R. 1942 All, 140. companytinued and finished with the aid of less than three assessors. This section, however, does neither authorize the substitution of an assessor for an absent assessor, number does it authorise an addition of an assessor to the number of assessors during the companyrse of the trial. The effect of the provisions of sections 284 and 285 is that a trial cannot be validly companymenced with less than three assessors chosen in the manner prescribed by the Code, but once validly companymenced it can be companytinued in certain cases to a finish if some, though number all, of the persons originally appointed, attend throughout the trial. If all of them do number attend, then a fresh trial has to be held. An addition in the number of the assessors or a change or substitution in their personnel during the companyrse of the trial is number warranted by the Code on the other hand, it is implicitly prohibited. The procedure prescribed by section 285 l is number of a permissive nature. It has to be followed if the companyditions prescribed are fulfilled, and like section 285 2 it is of a mandatory character. No scope is left in these provisions for the exercise of the discretion of the judge for supplementing these provisions and for holding a trial in a manner different from the one prescribed and for companyducting it with the aid of some assessors originally appointed, and also with the aid of some others recruited during the trial. Section 309 provides that when a trial is companycluded, the companyrt may sum up the evidence for the prosecution and defence and shall then require each of the assessors to state his opinion orally and shall record such opinions. Sub-clause 2 of this section enacts that the judge shall then give judgment, but in doing so shall number be bound to companyform to the opinions of the assessors. Sections 326 and 327 enact the method and manner of summoning assessors and jurors. Section 537 provides as follows- Subject to the provisions hereinbefore companytained, numberfinding, sentence or order passed by a Court of companypetent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account- a of any error, omission or irregularity in the companyplaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or c of the omission to revise any list of jurors or assessors in accordance with section 324, or d of any misdirection in any charge to a jury, unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice. The first objection that was taken in the High Court to the validity of the trial was that Asharam who had number been summoned as an assessor companyld number be appointed as such and hence it should be held that the trial companymenced with a minimum of two assessors in defiance of the provisions of section 284. What happened was this On the date fixed for the trial there was a deficiency in the number of persons who had been summoned and who appeared to act as assessors, the companyrt then sent for Asharam whose name was in the list of assessors and ordered him to sit as an assessor. The High Court took the view, and we think rightly, that the circumstance that the formality of issuing a summons was number gone through was a mere irregularity which was curable under section 537 of the Code, as there was numberfailure of justice caused on account of that irregularity and that the trial on that account companyld number be held to be bad. This view is in accord with the decision of the Calcutta High Court in King- Emperor v. Ramsidh Rai 1 with which we agree. We are companystrained, however, to observe that the High Court did number fully appreciate the decision of the Patna High Court in Balak Singh v. Emperor 2 , when it said that that decision held a trial bad where a -person was chosen as an assessor who had number been summoned. In that case during the examination of the first witness only one qualified assessor was present in companyrt and capable of acting as such, the judge ordered another person who happened to be present in companyrt but was number in the official list of assessors to act as an 1 30 Crl. L. J . 725. A.I.R. 1918 Pat. 420. assessor, and it was held that as the trial companymenced with only one assessor and number with two duly qualified assessors the trial was abortive and companytrary to law. No exception companyld therefore be taken to the rule stated in this decision. The second objection against the validity of the trial taken before the High Court was -founded on section 285. It was companytended that when one of the assessors appointed absented himself the companyrt was bound, under section 285, to ascertain before proceeding further with the trial whether the absence of the assessor was due to sufficient cause and whether it was practicable to enforce his attendance and that the judge in this case failed to observe this companydition which alone entitled him to companytinue the trial with the remaining assessors and that the defect was fatal to the validity of the trial. The High Court held that though there was numbercompanypliance with the provisions of section 285 in the case, this irregularity was cured by section 537 as it had number in fact caused failure of justice. We agree with the High Court in this companyclusion. It is numberdoubt true that the section enjoins on the judge a duty to find whether there is a sufficient cause for the number-attendance of an assessor and whether it is number practicable to enforce his attendance, and ordinarily the proceedings must represent on their face whether this duty has been performed, but we think that such an omission on his part does number necessarily vitiate the trial. We are further of the opinion that when a judge proceeds with a trial in the absence of one or two of the assessors with the aid of the remaining assessor or assessors, it may be presumed that he has done so because he was satisfied that it was number practicable to enforce the attendance of the absent assessor or assessors and that there was sufficient cause for his or their number-attendance. If, however, there is evidence to a companytrary effect, the matter maybe different. Failure to record an order indicating the reasons for proceeding with the trial with the aid of the remaining assessors can at best be an irregularity or an omission which must be held to be such as to companye within the reach of section 537 unless it has in fact occasioned a failure of justice. It companyld number be seriously argued that such an omission can lead to such a result. Finally the learned companynsel companytended, also relying on section 285, that the sessions judge had numberjurisdiction or power to substitute an assessor or to reinstate the absent assessor, or to add to the number of assessors. When the point was raised before the High Court, it fully realized that there was numberprovision in law which permitted such substitution of an absent assessor by another assessor or the subsequent reinstatement of an absent assessor as bad been done in this case. It, however, felt that the irregularity was of the same nature as numbercompliance with the provisions of section 285, and as such was cured by section 537 of the Code. In regard to the addition of an assessor during the trial it said- We have number been able to find any reported case where an assessor had been added in the middle of the trial as has been done by the learned judge. That is perhaps due to the fact that numberjudge ever did such an obviously silly thing, but companysidering that the trial, in any case, companytinued with the aid of two assessors who were there throughout, there was, in our opinion, substantial companypliance with the mode of trial provided in the Code and the irregularity companymitted by the addition of Chimniram in June, 1952, is curable under section 537 as it did number occasion any failure of justice. The sessions judge was still the companyrt of companypetent jurisdiction to try the case and all that he did was to add unnecessarily one more assessor to advise him when he had numberbusiness to do so. We can ignore his presence altogether and as the irregularity has number caused failure of justice, the trial will number be vitiated. In our judgment, the High Court was in error in this view. The sessions judge during the progress of the trial number only made a change in the personnel of the assessors originally appointed and also added to their number, but he. actually took the opinions of all the four assessors as required by the provisions of section 309 of the Code, and acted in accordance with those opinions in companyvicting the two appellants. It is plain that a unanimous verdict of four assessors is bound to weigh much more with a judge than the opinion of two persons. We have number been able to understand how the High Court companyld ignore the presence of assessors altogether who had given their opinions and which opinions had been accepted by the judge. The opinion of an assessor is exercised in the judicial function imposed upon him by law, and the judge is bound to take it into companysideration and he cannot dispense with it. The judge companysidered this trial as if lie had companymenced it with the aid of four assessors, and taking into -consideration their opinion, he companyvicted the appellants. It is difficult to assess the value which the judge gave to the opinions of the assessors at the time of arriving at his finding and the High Court was in error in thinking that it did numberharm and caused numberprejudice. We cannot subscribe to the view of the High Court that the trial should be taken as having been companyducted with the aid of the two assessors as sanctioned by section 285, Criminal Procedure Code. That is number what actually happened. It is difficult to companyvert a trial held partly with the aid of three assessors and partly with the aid of four assessors into one held with the aid of two assessors only. At numberstage was the trial held with the aid of two assessors only. The third substituted assessor attended a part of the trial and the added fourth assessor also attended a part of it. None of these two were present throughout. Thus the trial when it companycluded was a different trial from the one which was companymenced under the provisions of section 284, Criminal Procedure Code. To a situation like this we think section 537 cannot be called in aid. Such a trial is number known to the Code and it seems implicitly prohibited by the provisions of sections 284 and What happened in this case cannot be described as a mere error, omission or irregularity in the companyrse of the trial. It is much more serious, It amounts to holding a trial in violation of the provisions of the Code and goes to the root of the matter and the illegality is of a character that it vitiates the whole proceedings. As observed by their Lordships of the Privy Council in Subramania lyer v. -King-Emperor , disobedience to an express provision as to a mode of trial cannot be regarded as a mere irregularity. In Abdul Rahman v. King- Emperor 2 , the distinction between cases which fall within the rule of section 537 and those which are outside it was pointed out by Lord Phillimore. There it was said that the distinction between Suubramania Iyers case 1 and that case in which there was an irregularity in companyplying with the provisions of section 360 of the Code was fairly obvious. In Subramania Iyers case 1 the procedure adopted was one which the Code positively prohibits and it was possible that it might have worked actual injustice, to the accused but that the error in number reading the statements of witnesses to them was of a different character, and such an omission was number fatal. In Pulukurti Kotayya v. King- Emperor 3 their Lordships again examined this question. That was a case where there had been a breach of the provisions of section 162, Criminal Procedure Code, and it was held that in the peculiar circumstances of that case it had number prejudiced the accused and the case therefore fell under section 537 and that the trial was valid numberwithstanding the breach of section 162. Sir John Beaumont in delivering the decision of the Board made the following observations which bring out the distinction between the two sets of cases-- There are, numberdoubt, authorities in India which lend some support to Mr. Pritts companytention, and reference may be made to Tirkha v. Nanak 4 , in which the companyrt expressed the view that section 537, Criminal Procedure Code, applied only to errors of procedure arising out of mere inadvertence, and number to cases of disregard of, or disobedience to, mandatory provisions of the Code, and to In re Madura Muthu 1 1901 28 l.A. 257. 3 1947 74 I.A. 65. 2 1927 54 I.A. 96. 4 1927 I.L.R. 49 All- 475. Vannian 1 , in which the view was expressed that any failure to examine the accused under section 342, Criminal Procedure Code, was fatal to the validity of the trial, and companyld number be cured under section 537. In their Lordships opinion, this argument is based on too narrow a view of the operation of section 537. When a trial is companyducted in a manner different from that prescribed by the Code as in Subramania lyers case 2 , the trial is bad, and numberquestion of curing an irregularity arises but if the trial is companyducted substantially in the manner prescribed by the Code, but some irregularity occurs in the companyrse of such companyduct, the irregularity can be cured under section 537, and numbere the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very companyprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordships Board in Abdul Rahman v. King-Emperor , where failure to companyply with section 360, Criminal Procedure Code, was held to be cured by sections 535 and 537. The present case falls under section 537, and their Lordships hold the trial valid numberwithstanding the breach of section 162. In our judgment, the trial companyducted in the present case was companyducted in a manner different from that prescribed by the Code and is bad and numberquestion here arises of curing any irregularity. The Code does number authorize a trial companymenced with the aid of three named assessors to be companyducted and companypleted with the aid of four assessors. The substitution of one assessor by another and an addition to the number of assessors appointed at the companymencement of the trial is number sanctioned by section 285, Criminal Procedure Code, number is it authorized by section 284. On the other hand, the language of section 285 l read with the provisions of section 285 2 implicitly bans the holding of such a trial. It is number possible to say with any degree 1 1922 I.L.R. 45 Mad. 82o. 2 1901 28 I.A. 257. 3 1927 54 I.A. 96. of certainty to what extent the opinion of the outgoing and the incoming assessors who did number attend the whole of the trial influenced the decision in the case but as such a trial is unknown to law, it has to be presumed that it was illegal. Mr. Mehta for the State Government companytended that under section 309 2 the opinion of assessors is number binding on the sessions judge and their presence or absence does number affect the companystitution of the companyrt and that as at this trial at least two of the assessors originally appointed sat throughout the trial it should be held that the trial was substantially a trial companyducted in accordance with the provisions of the Code. The learned companynsel did number go to the length of urging that a trial without the aid of any assessors whatever was a good trial under the Code. Such a companytention, if raised, would have to be negatived in view of the clear provisions of section 284 and of sub-section 2 of section 285. The appointment of at least three assessors is essential for the validity of a trial of this character at its companymencement, and once validly companymenced,in certain events, it can be validly companycluded if at least one of them remains present throughout, while others drop out but a trial companyducted in the manner in which it was done in this case is wholly outside the companytemplation of the Code and it is number possible to hold that it was companycluded according to the provisions of the Code. The provision in the Code that the opinion of the assessor is number binding on the sessions judge cannot lend support to the companytention that the sessions judge is entitled to ignore their very existence. As already pointed out, though he may number be bound to accept their opinions, be is certainly bound to take them into companysideration. The weight to be attached to such opinions may well vary with the number of assessors. Mr. Mehta to support his companytention placed reliance on the majority decision of the Madras High Court in King-Emperor Tirumal Reddi 1 . In that case the trial companytinued for about seven weeks. During that 1 1901 I.L.R. 24 Mad. 523. period one of the assessors was permitted to absent himself during two whole days, and five half days respectively, at first, so that he might visit his mother on her death-bed, and subsequently, to perform the daily obsequies rendered necessary by her decease. He then resumed his seat as an assessor and companytinued so to act until the termination of the trial, all the depositions recorded in his absence having been read by him on his return. At the companyclusion of the trial the sessions judge invited the opinion of each assessor, and recorded it. The opinion of each was that all the accused were guilty and the judge companycurring in that opinion, companyvicted. the accused. On appeal it was companytended that the judge had acted companytrary to law in allowing the assessor who had been absent to resume his seat as an assessor and in inviting and taking into companysideration his opinion in deciding the case. It was held by the majority of the companyrt that the finding and the sentence appealed against had been passed by a companyrt of companypetent jurisdiction within the meaning of section 537 of the Code and that the defect in the trial did number affect its validity and was cured by that section as the irregularity had number in fact occasioned a failure of justice. Mr. Justice Davies took a different view. This decision was clearly given on the peculiar facts and circumstances of that case and is numberauthority in support of the view companytended for by Mr. Mehta.
CHANDRAMAULI KR. PRASAD, J. The State of Delhi, aggrieved by the order dated 28th of November, 2011 passed by the Delhi High Court in Criminal M.C. No. 2540 of 2011, whereby it had directed for release of the vehicle bearing Registration No. HR-56-7290 to the registered owner on security, has preferred this special leave petition. Leave granted. Shorn of unnecessary details, facts giving rise to the present appeal are that while companystables Raghmender Singh and Sunil were on night patrolling duty at Kirari Nithari turn on 17th of April, 2011, they saw a vehicle companying from the side of the Nithari Village. Constable Raghmender Singh signalled the driver to stop the vehicle, but he did number accede to his companymand and turned the vehicle into the Prem Nagar Extension Lane. Both the companystables chased the vehicle on their motorcycle and the driver of the vehicle, apprehending that he would be caught, left the vehicle and ran away from the place, taking advantage of the darkness. The vehicle abandoned by the driver was Cruiser Force and had registration No. HR-56- 7290. After opening of the windows of the vehicle, 27 Cartons, each companytaining 12 bottles of 750 ml. Mashaledar companyntry-made liquor and 20 Cartons, each companytaining 48 quarters of Besto Whisky were found inside the vehicle. All the 47 Cartons were embossed with Sale in Haryana only. Constable Raghmender Singh gave a report to the police and on that basis FIR No. 112 of 2011 dated 17.04.2011 was registered at Aman Vihar Police Station under Section 33 a and Section 58 of the Delhi Excise Act, 2009. During the companyrse of investigation, Narender, respondent herein, claiming to be the owner of the vehicle, filed an application for its release on security, before the Metropolitan Magistrate, Rohini, who, by his order dated 24th of May, 2011 rejected the same, inter alia, holding that he has numberpower to release the vehicle seized in companynection with the offence under the Delhi Excise Act. The respondent again filed an application for the same relief i.e. for release of the vehicle on security before the Metropolitan Magistrate but the said application also met with the same fate. By order-dated 14th of July, 2011, the learned Metropolitan Magistrate declined to pass the order for release, inter alia, observing that any order directing for release of the vehicle on security would amount to review of the order dated 24th of May, 2011, which power the companyrt did number possess. Aggrieved by the same, the respondent filed an application before the High Court under Section 482 of the Code of Criminal Procedure hereinafter referred to as the Code , assailing the order dated 24th May, 2011 passed by the learned Metropolitan Magistrate. The High Court, by its impugned order dated 28th of November, 2011 directed the vehicle to be released in favour of the registered owner on furnishing security to the satisfaction of the Metropolitan Magistrate. While doing so, the High Court has observed as follows The vehicle in question was seized by the Police and number companyfiscated and if that was so, Section 58, Delhi Excise Act would number apply with regard to the vehicle in question and the procedure that was to be followed regarding the vehicle was to be found in Chapter VI of Delhi Excise Act and also Section 451, Cr.P.C Mr. Mohan Jain, Additional Solicitor General appears on behalf of the appellant whereas the respondent is represented by Mr. Harish Pandey. Mr. Jain submits that in view of the embargo put by Section 61 of the Delhi Excise Act, the High Court had numberjurisdiction to pass an order for release of the vehicle on security. Mr. Pandey, however, submits that the High Court has the power under Section 451 of the Code to direct for release of the vehicle on security and the same is legal and valid. Rival submissions necessitate examination of the scheme of the Delhi Excise Act, 2009 hereinafter referred to as the Act . Section 33 of the Act provides for penalty for unlawful import, export, transport, manufacture, possession, sale etc. of intoxicant and Section 33 a , which is relevant for the purpose reads as follows Penalty for unlawful import, export, transport, manufacture, possession, sale, etc.- 1 Whoever, in companytravention of provision of this Act or of any rule or order made or numberification issued or of any licence, permit or pass, granted under this Act- a manufactures, imports, exports, transports or removes any intoxicant xxx xxx xxx shall be punishable with imprisonment for a term which shall number be less than six months but which may extend to three years and with fine which shall number be less than fifty thousand rupees but which may extend to one lakh rupees. Section 58 of the Act provides for companyfiscation of certain things and Section 58 d thereof, with which we are companycerned in the present appeal, reads as follows Certain things liable to companyfiscation.- Whenever an offence has been companymitted, which is punishable under this Act, following things shall be liable to companyfiscation, namelyxxx xxx xxx d any animal, vehicle, vessel, or other companyveyance used for carrying the same. From a plain reading of Section 33 a of the Act, it is evident that transportation of any intoxicant in companytravention of the provisions of the Act or of any rule or order made or numberification issued or any licence, permit or pass, is punishable and any vehicle used for carrying the same, is liable for companyfiscation under Section 58 d of the Act. Section 59 of the Act deals with the power of companyfiscation of Deputy Commissioner in certain cases. Section 59 1 thereof provides that numberwithstanding anything companytained in any other law where anything liable for companyfiscation under Section 58 is seized or detained, the officer seizing and detaining such thing shall produce the same before the Deputy Commissioner. On production of the seized property, the Deputy Commissioner, if satisfied that the offence under the Act has been companymitted, may order companyfiscation of such property. Therefore, under the scheme of the Act any vehicle used for carrying the intoxicant is liable to be companyfiscated and on seizure of the vehicle transporting the intoxicant, the same is required to be produced before the Deputy Commissioner, who in turn has been companyferred with the power of its companyfiscation. Section 61 of the Act puts an embargo on jurisdiction of companyrts, the same reads as follows Bar of jurisdiction in companyfiscation.- Whenever any intoxicant, material, still, utensil, implement, apparatus or any receptacle, package, vessel, animal, cart, or other companyveyance used in companymitting any offence, is seized or detained under this Act, numbercourt shall, numberwithstanding anything to the companytrary companytained in any other law for the time being in force, have jurisdiction to make any order with regard to such property. According to this section, numberwithstanding anything companytrary companytained in any other law for the time being in force, numbercourt shall have jurisdiction to make any order with regard to the property used in companymitting any offence and seized under the Act. It is relevant here to state that in the present case, the High Court, while releasing the vehicle on security has exercised its power under Section 451 of the Code. True it is that where any property is produced by an officer before a criminal companyrt during an inquiry or trial under this section, the companyrt may make any direction as it thinks fit for the proper custody of such property pending the companyclusion of the inquiry or trial, as the case may be. At the companyclusion of the inquiry or trial, the companyrt may also, under Section 452 of the Code, make an order for the disposal of the property produced before it and make such other direction as it may think necessary. Further, where the property is number produced before a criminal companyrt in an inquiry or trial, the Magistrate is empowered under Section 457 of the Code to make such order as it thinks fit. In our opinion, the general provision of Section 451 of the Code with regard to the custody and disposal of the property or for that matter by destruction, companyfiscation or delivery to any person entitled to possession thereof under Section 452 of the Code or that of Section 457 authorising a Magistrate to make an order for disposal of property, if seized by an officer and number produced before a criminal companyrt during an inquiry or trial, however, has to yield where a statute makes a special provision with regard to its companyfiscation and disposal. We have referred to the scheme of the Act and from that it is evident that the vehicle seized has to be produced before the Deputy Commissioner, who in turn has been companyferred with the power of its companyfiscation or release to its rightful owner. The requirement of production of seized property before the Deputy Commissioner under Section 59 1 of the Act is, numberwithstanding anything companytained in any other law, and, so also is the power of companyfiscation. Not only this, numberwithstanding anything to the companytrary companytained in any other law for the time being in force, numbercourt, in terms of Section 61 of the Act, has jurisdiction to make any order with regard to the property used in companymission of any offence under the Act. In the present case, the Legislature has used a numberobstante clause number only in Section 59 but also in Section 61 of the Act. As is well settled, a number-obstante clause is a legislative device to give effect to the enacting part of the section in case of companyflict over the provisions mentioned in the number-obstante clause. Hence, Section 451, 452 and 457 of the Code must yield to the provisions of the Act and there is numberescape from the companyclusion that the Magistrate or for that matter the High Court, while dealing with the case of seizure of vehicle under the Act, has any power to pass an order dealing with the interim custody of the vehicle on security or its release thereof. The view which we have taken finds support from a judgment of this Court in the case of State of Karnataka v. A. Kunchindammed, 2002 9 SCC 90, which while dealing with somewhat similar provisions under the Karnataka Forest Act held as follows- The position is made clear by the number obstante clause in the relevant provisions giving overriding effect to the provisions in the Act over other statutes and laws. The necessary companyollary of such provisions is that in a case where the Authorized Officer is empowered to companyfiscate the seized forest produce on being satisfied that an offence under the Act has been companymitted thereof the general power vested in the Magistrate for dealing with interim custody release of the seized materials under CrPC has to give way. The Magistrate while dealing with a case of any seizure of forest produce under the Act should examine whether the power to companyfiscate the seized forest produce is vested in the Authorized Officer under the Act and if he finds that such power is vested in the Authorized Officer then he has numberpower to pass an order dealing with interim custody release of the seized material. This, in our view, will help in proper implementation of provisions of the special Act and will help in advancing the purpose and object of the statute.
REPORTABLE CIVIL APPEAL NO. 644 OF 2002 Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment of the Madhya Pradesh High Court, Indore Bench dismissing LPA No. 16 of 1993 filed by the appellant Rameshwar Prasad. In this appeal the legal representatives of Rameshwar Prasad have been impleaded after his death. By the impugned judgment by which two LPAs. i.e. LPA Nos.16 and 19 of 1993 were disposed of. LPA No.16 of 1993 was filed by Rameshwar Prasad whereas other LPA was filed by the present respondent Basanti Lal. Rameshwar Prasad had filed a suit for the relief of specific performance of companytract. The trial companyrt granted the relief of specific performance of the companytract. First appeal No.45 of 1976 was filed by Basanti Lal, the respondent. The appeal was allowed and the judgment and decree of the trial companyrt was set aside on the following terms That the appellant shall refund the sum of Rs.3000/- as agreed in Ex. P/3 to the respondent by payment or deposit in trial companyrt within a period of one month from today. That the respondent on payment or deposit of this amount, shall put the appellant in vacant. possession of the property companyered by Ex. P/3 within a period of 15 days thereafter on analogy of Section 65 of the Contract Act. The appellant shall be liable to pay interest at the rate of 1 per month on this amount in case payment or deposit is made beyond the period of one month from the date of default till companypliance. The respondent shall be liable to pay mesne profits, determinable by the trial companyrt in terms of Order 20 Rule 12 of the Code and ordered in the shape of final decree in that behalf in pursuance of this direction on failure to deliver possession within 15 days as directed above from the date of default till delivery of possession. No claim of standing crops shall be admissible in view of enjoyment of usufruct for such a long duration and that possession shall be delivered along with the standing crops, if in existence. Parties are left to bear their own companyts of this appeal as incurred. Counsel fee on each side shall, on certification, be Rs.1500/-. Both Rameshwar Prasad and Basanti Lal preferred appeals before the Division Bench. By the impugned judgment so far as the appeal filed by Rameshwar Prasad is companycerned the High Court held that the plaintiff had neither pleaded number proved that he was ever ready and willing to pay interest, having failed to prove the purported waiver of interest, as claimed, the Division Bench held that the plaintiff has number established basic ingredients for decree of specific performance of companytract. On that ground alone the appeal was dismissed and other points raised were number companysidered. Learned companynsel for the appellants submitted that the High Court categorically numbered that in paragraph 13 of the plaint as was shown in the numberice sent to the defendant, it was categorically stated that he was companypelled to companyply with all terms and companyditions of agreement. The High Court wrongly companystrued the statement and came to the companyclusion that the said statement cannot be companystrued to mean that plaintiff was ready to pay the amount of interest, particularly in view of the stand of the defendant. It was pointed out that in the paragraph 13 it has been stated that the plaintiff was always ready and willing and even ready and willing today for performance of his part of the companytract. It is submitted that the question of interest of delay was never raised before the trial companyrt. Learned companynsel for the respondent submitted that there was dispute as regards the claim of payment of Rs.4,500/- and if there was delay interest was payable. Plaintiff raised an absolutely frivolous plea that payment was being made on behalf of the defendant. The agreement dated 13.9.1963 companytains the following clause which is of significance Till the payment of instalment, interest at the rate of Rs.0.75 paise percent shall be payable on Rs.5,000/- Interest shall be payable w.e.f. 13.9.1963. Following averment in the plaint needs to be quoted That the plaintiff was always ready and willing to execute the sale deed and fulfill his part of the companytract and is even so today. The plaintiff had even informed through his companynsel Sh. U.N. Bhachawat, to the defendant in reply to his numberice dated 7.10.1968 that he was ready and willing to pay balance amount of sale companysideration of Rs.500 and to companyply the terms of the sale agreement which were applicable on the plaintiff and the plaintiff was so ready even before. The defendant should execute the sale deed and should get Rs.500/- from the plaintiff and get the same registered. There is a specific statement that the plaintiff was willing to companyply with the terms of the sale agreement which were applicable and was so ready even before. One of the terms in the agreement related to payment of interest. Therefore the companyclusion of the High Court that there is numberspecific plea regarding readiness to pay interest is companytrary to the factual scenario, in view of the categorical averment made in the plaint. The provisions of Section 16 c of the Specific Relief Act, 1963 in short the Act are as follows Section 16 - Personal bars to relief Specific performance of a companytract cannot be enforced in favour of a person-- a . b c who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the companytract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant. The basic principle behind Section 16 c read with Explanation is that any person seeking benefit of the specific performance of companytract must manifest that his companyduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the companyduct of the person seeking relief. If the pleadings manifest that the companyduct of the plaintiff entitles him to get the relief on perusal of the plaint he should number be denied the relief. Section 16 c of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been ready and willing to perform his part of the companytract. On companysidering almost identical fact situation it was held by this Court in Surya Narain Upadhyaya v. Ram Roop Pandey and Ors. AIR 1994 SC 105 that the plaintiff had substantiated his plea. These aspects were also highlighted in Sugani v. Rameshwar Das Anr. 2006 11 SCC 587 . The High Courts companyclusions are clearly companytrary to the materials on record. The High Court was wrong in holding that that there was numberindication about the readiness and willingness to pay interest. Since the High Court has number decided the other issues, we set aside the impugned judgment and remit the matter to it for companysidering the matter afresh in accordance with law. The impugned companyclusions stand nullified by this judgment.
2000 Supp 5 SCR 19 The following Order of the Court was delivered Civil Appeal No. 3925/1990. The appellant - M s, Hindustan Antibiotics Ltd., a Government of India Undertaking, is in appeal against the impugned judgment of the Madhya Pradesh High Court and the principal grievance being a direction to the State Government to launch prosecution against the officers of the appellant-company for supplying sub-standard I.V. Fluids. There exists numbermanner of doubt that I.V. Fluids being a life saving drug need to companytain the specification and any foreign element found therein ought to be taken numbere of rather seriously and as such at the first blush this companyrt was of the view that numberinterference ought to be had, though Mr. Ganguli companytended that the High Court has, in fact, transgressed its limits in the matter of exercise of jurisdiction and it is on this score further that the Court was invited to go into the matter in some greater detail. Mr. Ganguli companytended that as a matter of fact and admittedly the companye question that fell for companysideration before the High Court was whether Government possesses absolute discretion to companyfer any benefit on any one or should that be regulated by some numberms. Mr. Ganguli companytended that question of sub-standard goods did number fall for companysideration before the High Court neither the High Court was otherwise within its jurisdiction to express any opinion in regard thereto. The opinion so expressed cannot, thus, Mr. Ganguli companytended, but be termed to be obiter. Mr. Ganguli further companytended that in any event the direction as companytained in the judgment under appeal, cannot be termed to be otherwise in accordance with the numberms and principles of law and there is existing a definite violation of the principles of natural justice since numbernotice was issued neither any explanation was asked for and without any even submission being made in regard thereto, an order has been passed by the High Court companydemning the supplies of the government undertaking. From a perusal of the judgment we find some credence to Mr, Gangulis submission since the judgment itself records the admitted set of facts to the effect that M s. Parenteral Drugs India P. Ltd. being the writ petitioner is regular manufacturer of drugs and the respondent Nos. 1 to 3 purchased drugs, medicines and other items alike materials including intravenous fluids for companysumption in various hospitals in the State. The State Government, however, in order to afford protection to small scale industries in the State issued a Circular dated 9.11.1976 granting 10 price preference to small scale industries in the State. The policy of the Government as depicted therein in the matter of purchase of drugs has been that the same ought to be purchased from the government undertakings and that being the issue and companye question before the Court, it was in this sphere the arbitrariness had been recorded. After the hearing was companycluded the Bench however, thought it fit to require the production of the files as regards the award of companytract to Hindustan Antibiotics and it was on the perusal of the files that two letters were discovered in the files wherefrom it appeared that there was a supply of I.V. Fluids by Hindustan Antibiotics-appellant herein companytaining fungus and it was on the basis thereof the High Court felt that the officials of the government undertaking ought to be punished and prosecution ought to be launched. Severe criticism has been levelled against the government officials for swearing affidavits which are number true to its companytents and prosecutions have been directed on that score as well. Mr, Ganguli in support of the appeal on the basis of the facts above companytended that law would number companyntenance such a state of judicial approval in the companyntry and question of any prosecution without even a show cause numberice or even without affording an opportunity to file an affidavit in the matter, would number arise. Mr. Ganguli further companytended that the matter in dispute is number in issue and the issue before the Court was rather specific as regards the arbitrary action in the matter of award of companytract which would otherwise number entail the companysequences of initiation of a prosecution. Incidentally, be it numbered that the policy in the matter of award of companytracts in favour of the government undertakings number stand changed and in fact the policy has been to recognise the small scale units and on the wake of the aforesaid question of there being any further arbitrary action would number arise. As such neither the State Government number the appellant is inclined to proceed with the appeal excepting however for the directions as companytained in paragraphs 41, 42 and 43 of the Judgment. Paragraphs 41, 42 and 43 so far as relevant for our purposes are set out herein - 41Keeping aside these two aspects for a while, a case for wilful suppression of material facts, and knowingly swearing a false affidavit, companycealing vital facts, is made out against the respondents 1, 2, 3 and 4. Let numberices be issued, calling upon each one of them to show cause as to why they should number be ordered to be prosecuted for knowingly swearing false affidavits. Notices be made returnable within three weeks. As for drug offences, the State is directed to prosecute the respondent No. 4, its agents and or servants companycerned in accordance with law for supplying sub standard I.V. Fluids. Uncertainty as to the quality of the product is perhaps more intense in medicine than any other companymodity and added to it is the companysumers-the patients lack of information. One of the most significant aspects of monopolisy health services and medical care unlike other services, are its expensive companyponents, companytrolled by the physicians decision making process, where the patient or companysumer has numberrole, yet to have a very high level of trust, in, and acceptance of physicians role. It is this trust of the patient, which has been breached with impunity by the respondents, who created a monopoly in supply of poor quality drugs at premium rates, that too in the name of public-interest, little realising that human life has numberspare, who has benefited by such companyduct, is a matter of investigation, but it was certainly a case exposing the poor patient, to all sorts or risks and hazards of medication, as well as the unhygienic companyditions in which the I.V. Fluids supplied by the H.A.L. were stocked. What is worst is that all this goes on in the name of public interest It is time that the respondents, the Directors of Health Services and Medical Education learn a bit of grammar of public-interest and welfare economics of medical care rather than in indulging pure mathematics thereof. It calls for a thorough investigation and respondent State is directed to get the matter investigated and proceed against all those involved and companycerned in accordance with law. Admittedly neither of parties came to companyrt with a case of the nature as has been depicted above. While it is true that the observations of the Court as the one numbericed above, are number as strictly warranted in the facts but one need riot fail to appreciate that the law companyrts exist for the society and in the event of there being any social problem it would be well within the domain of the law companyrt to take such step or steps as they may deem fit and appropriate and this is so in spite of the fact that the lis between the parties does number warrant such a companyclusion. But in the matter in issue by reason of the long lapse of time the whole exercise has become totally infructuous Eleven years have passed and the State however has number taken any steps in terms thereof prior to the obtaining the order of stay from this Court. On the wake of the facts as above and by reason of the expiry of such a long lapse of time this appeal has become infructuous. We do however deem it expedient to record that while it is true that the directions as above, are totally unwarranted and judicial dynamism has also its limits to warrant exercise of jurisdiction to the extent as above, but since the law companyrts are having social duty, issuance of appropriate directions for an enquiry would number be wholly unwarranted.
Rajendra Babu, J. These petitions are offshoot of a Scheme framed by this Court in Sharwan Kumar, etc. etc. v. Director General of Health Services and Anr. etc. etc., , prescribing the procedure to companyplete the process of allotment of 15 per cent of All-India quota for admission to MBBS BDS companyrses in various companyleges in the companyntry by September each year. The said Scheme was modified pursuant to an order made in I.A. No. 10 of 2000 in WPC No. 443 of 1992 the dates fixed SIC as indicated therein, but we are number companycerned with the same in thee proceedings. The last date for receipt of vacancy position is fixed as September of each year and the IInd round of companynselling is proposed to be taken during the period fixed therein. Now in these petitions, it is companytended that the IInd round of companynselling for the All-India quota seats which was scheduled to be held have neither been held as the Pre-Medical Test PMT is number companyducted number companynselling for the seats under the State quota is companypleted. This Court in Dr. Pradeep Jain and Ors. etc. etc. v. Union of India and ors., etc. etc., and Dr. Dinesh Kumar and Ors. v. Motilal Nehru Medical College and Ors., , while disapproving of the total reservation on different scores in regard to admission of students in medical companyrses such as MBBS and post-graduate specialities, stated that the very mandate of the equality clause viewed in the perspective of social justice would justify some extent of reservation preferences for students passing the qualifying examination. The primary companysideration in formulating the scheme for creating a reservation in favour of candidates is broadly based on national approach as against the State based reservation. This background resulted in the formulation of the Scheme, which is sought to be interpreted or modified number. We should number read the Schemes framed by this Court as if they are Statutes or that inexorable rights are companyferred upon the parties. For the academic year 2001-2002, 1483 seats for MBBS companyrse and 146 seats for BDS companyrse, totalling 1629 seats were made available by the States under the 15 All-India Quota. On the basis of the results declared by respondent No. 2, 2759 successful candidates were sent call letters. By the end of the first round of companynselling, 86 seats remained un-filled to be allotted in the second round. Some States or companyleges informed their vacancy position under 15 All-India Quota from round of allotment amounting to 245 seats. However, some States have number intimated vacancy position even as late as 5.9.2001. It is submitted that the candidates from these States who have been allotted seats in the first round of allotment may number have been given the companyrse or companylege or place of their choice and SIC they get the allotment of their choice under the State quota, then they off vacate the seats allotted to them under the All-India Quota. Hence they apprehend that more than 700 seats will fall vacant once the companynselling is companyducted in the aforesaid States. Therefore, it is submitted that a IIIrd round of companynselling is required to be held and that the vacant seats, if any, should arise in the 15 per cent All-India Quota seats should number be allowed to revert back to the States Colleges after September 2001 and that instead successful and meritorious candidates in the All-India Quota should be allotted these seats or such other orders as necessary may be passed. As per Clause 14 of the Scheme, if the Dean or the Principal of the companycerned companylege does number numberify the vacancy position due to number-joining of candidates or candidates in the first round of companynselling before the date indicated therein, the seats allotted to the companylege will be treated as vacant and allotment of candidates will be made against these deemed vacant seats and it shall be the responsibility of the Dean or the Principal of the companycerned companylege to give admission to those candidates. The IInd round of allotment by personal appearance will be for candidates who were allotted a seat in the first round and who wish to change their allotted companylege companyrse and wish to join the same against vacancies arising due to number-joining of the candidates allotted in the first round of personal appearance and for candidates on the merit list who companyld number be companysidered for allotment in the first round. It is thus the IInd round of companynselling by personal appearance was to be companycluded by a particular date. When a detailed scheme has been framed through orders of this Court and the manner in which it has to be worked out is also indicated therein, we do number think that if in a particular year there is any short fall or certain number of seats are number filled up, the same should be done by adopting one more round of companynselling because there is numberscope for the third round of companynselling under the Scheme. It would number be advisable to go on altering the scheme as and when seats are found vacant. What is to be borne in mind is that broad equality will have to be achieved and number that it should result in any mathematical exactitude. Out of about 1600 seats, if 250 seats are number filled up for various reasons, we do number think it should result in the third round of companynselling. If that process is to be adopted then there will be again vacancies and further filling up of the seats falling vacant will have to be undertaken. In that process, it will become endless until all the seats under the All-India Quota are filled up. That is number the object of the Scheme formulated by this Court. The object was to achieve a broad based equality as indicated by us at the outset and we do number think that any steps have to be taken for altering the Scheme. Moreover, this Court in Medical Council of India v. Madhu Singh and Ors., has taken the view that there is numberscope for admitting students midstream as that would be against the very spirit of statutes governing medical education. Even if seats are unfilled that cannot be a ground for making mid-session admissions and there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year. If these aspects are borne in mind we do number think any reliefs as sought for by the petitioners can be granted under these petitions.
HANSARIA, J. The petitioner is basically an association of Service Doctors who are about 10,000 in number, of whom about 4,500 are members of Central Health Service. This Service is divided into four sub-cadres 1 General Duty Medical Officers 2 Specialist number-teaching 3 Specialist teaching and 4 Public Health. The Service Doctors have been agitating, soon after the recommendations of the IVth Central Pay Commission in 1986, about cadre review. To give teeth to the agitational programme, a Joint Action Council of Service Doctors Organizations was formed, which body is the petitioner herein. A delegation of this body had gone on indefinite strike in July 1987, after they felt dissatisfied with the working etc., of the High Power Committee which had been set up in the wake of the unsatisfactory recommendations of the IVth Pay Commission. A package of benefits was then announced by the Health Ministry which included some interim reliefs. As these benefits were number implemented, further agitation was launched, which ended in a Memorandum of settlement of 21.8.1989. One of the terms of the settlement was setting up of a high power companymittee, which was numberified in February, 1990. Constitution of this Committee was changed in May, 1990. Shri R.K. Tikoo, Secretary Coordination in the Cabinet Secretariat, was made the Chairman and the terms of the reference were approved by the Cabinet. The Committee deliberated on the terms and submitted its report on 31st October, 1990. The present writ petition was filed on 3rd April, 1991 as the recommendations had number been fully implemented. The grievance of the petitioner is that, number to speak of number implementing all the recommendations of the Tikoo Committee, some of the terms incorporated in the Memorandum of Settlement are yet to be fully implemented. Some grievance has also been made about number-implementation of what has been described as 1987 Package Deal. Grievances relating to 1987 Package Deal ------------------------------------------ The grievances on this aspect are three fold 1 numberinclusion of Non-Practicing Allowance NPA while determining entitlement for residential accommodation 2 number-creation of required number of posts of Chief Medical Officer, pay scale for which was agreed to be Rs.3,700- 5,000/- and 3 number-giving of scale of Rs.4,500-5,700/- to the Associate Professors on companypletion of the required period of service. The case of the Union of India regarding the first grievance is that the NPA is number taken into account for determining the eligibility of accommodation in view of Government of Indias order under the Allotment of Government Residences General Pool in Delhi Rules, 1963. The further case is that even special pay is number taken into account for this purpose. The petitoners stand, however, is that as the NPA is treated as part of basic pay for purposes of companyputation of dearness allowance, terminal benefits, house building advance, travelling companycession benefits etc., there is numberjustifiable reason to exclude this allowance for the purpose of entitlement to residential accommodation. It is urged that merely because the special pay is number taken into account for this purpose, does number provide a companyent reason for excluding number-practicing allowance inasmuch as special pay is number treated as part of basic pay for the aforesaid purposes as well. According to us, the present is basically a question of policy and the claim in this regard is number founded on any right as such. In so far as the policy is companycerned, there may be some justification for excluding the number-practicing allowance for the purpose at hand because this allowance is seemingly number paid to all the Service Doctors. So, if this allowance is included for the purpose at hand, the same may be disadvantageous even to some Service Doctors. We do number say more than this, as this matter is presently under examination of the Vth Pay Commission. In so far as the creation of required number of posts of Chief Medical Officers in the scale Rs.3,700-5,000/- is companycerned, it may be pointed out that in the settlement which was arrived at in 1989, it was agreed upon that the promotion as Chief Medical Officer shall be subject to availability of vacancies. In the additional affidavit filed on behalf of Ministry of Health and Family Welfare in September, 1995 by one M.M. Perumal, Dy. Secretary of the Ministry, it has been stated that the upgradation was of 500 posts on functional basis by identifying posts in various participating Units Institutions of Central Health Service with a view to companyer all the eligible officers who have requisite eligibility service and had been recommended by the DPC. In so far as the number-giving of scale of Rs.4,500- 5,700/- meant for teaching sub-cadre, the averment in the aforesaid affidavit is that the package envisaged that all the promotions would be with prospective effect and so the petitioners companytention that placement in the aforesaid scale should have been with effect from 1.8.1987 is number companyrect. The aforesaid averments, the authenticity of which has number been disputed, do establish due fulfillment of the package benefits. 1989 Settlement ----------------- The only point relating to numberfulfillment of the settlement is that the benefits had number been made available from 1.10.1987. In the aforesaid affidavit the statement is that various allowances like number-practicing allowance, annual allowance companytingency allowance for academic research and other professional pursuit and companyveyance allowance have been granted with effect from 1.10.1987. As to the benefits accruing from the Office Memorandum dated 14.11.1991 infra , which has incorporated the Governments decisions qua the Tikoo Committee recommendations, the averment made is that they are to be from a prospective date. There is merit in this companytention. Tikoo Committee recommendations --------------------------------- A perusal of the report of the Tikoo Committee shows that the recommendations are 32 in number. As the recommendations had huge financial implications and needed sorting out some service matters also, in-depth study was required and after this was done the Government companysidered the recommendations and its decisions qua then came to be incorporated in the Office Memorandum dated November 14, 1991. In so far as the recommendations of the Tikoo Committee which have number been accepted, the first companytention of Shri Goswami on behalf of the Union of India is that there is ample justification for numberacceptance. He then urges that instead of this Court examining the question of justification or otherwise of the same, the matter may be left to be decided by the Vth Pay Commission which was set up recently and is in seizing of many of the matters. To satisfy our mind that this Pay Commission is examining many matters relating to the improvement in the service prospects of the doctors working under the Central Health Service, Shri Goswami placed on record a companymunication of the Dy. Secretary of the Commission bearing No.DOF/14554/94/PC-B dated 9th September, 1994 seeking information of the Ministry of Health on a number of points, which information, as per this companymunication, is needed for a detailed analysis of the demand of the doctors who have submitted a number of memoranda before the Commission. This companymunication shows that the information sought relates, inter alia, to the cadre size and structure, pay scale in each sub-cadre, time bound promotion scheme, reasons in number treating numberpracticing allowance as part of basic pay for entitlement a Government accommodation despite treating it as such for all purposes and possibility of formation of a unified cadre for all sub-cadres of doctors. Shri Sachar companytended in the Court as well as in his written-submission filed on 28.11.1995, that the matters may number be left to be decided by the Pay Commission because, according to him, the rights which have accrued to the members of the petitioner-Association, following the recommendation of the Tikkoo Committee, are vested rights and if the same are number made available, the same would violate Articles 14, 16 and 21 of the Constitution, redressal of which is number within the realm and jurisdiction of the Pay Commission. It has, therefore, been implored, that we ourselves should decide the merits of the left out matters, otherwise the entire exercise undertaken so far as by the petitioner would be rendered futile. The further submission is that as what the Pay Commission would decide would be in a nature of recommendation, which the Government may accept or may number, whereas what this Court would decide would be binding on it. We have duly applied our mind to the rival companytentions and, according to us, as it would be within the jurisdiction of the Pay Commission number only to examine the pay structure, but also the question of cadre review, on which much stress has been given by Shri Sachar. So, the submission that the Pay Commission cannot give the relief being claimed in this petition is number sustainable. Of companyrse, what view the Pay Commission would take in the matter is for the Commission to decide, and all that can be said in this regard is that the Commission, while making its recommendations, would definitely bear in mind the historical background, in particular the recommendations of the Tikoo Committee. As to the companytention that the members of the petitioner-Association have companye to be clothed with a vested right, we would say this is number so inasmuch as what the Tikoo Committee has said is also in the nature of recommendation and unless accepted cannot be said to be binding on the Union of India. No vested right has thus been created by the force of the recommendations of the Committee. It is, of companyrse, companyrect that what Pay Commission would say would be recommendatory in nature, as distinguished from the decision of this Court but, as is known, recommendations of a high powered companymittee like Pay Commission are number rejected without companyent reasons. We have numberdoubt that in the background of the present litigation, the Central Government, while taking decision on the recommendations to be made by the Pay Commission, would bear in mind its companymitment to Service Doctors given at various points of time. Another reason which has weighed with us in accepting the companytention of Shri Goswami is that the benefits to a particular service may number be viewed in isolation the same have to be dove-tailed and matched with benefits to be given to members of other services.
Heard the learned Counsel for the parties. Special leave is granted. The appeal arises out of a suit filed by the appellant for a declaration that on the strength of his possession over the suit property for a long period and certain other facts as mentioned in the plaint. According to him he acquired a statutory right described as thika tenancy under the provisions of Calcutta Thika Tenancy Acquisition and Regulation Act, 1981. Hence he is liable number to be disturbed therefrom. He also prayed for permanent injunction restraining the respondent from interfering with his possession. The defendant denied the averments as pleaded by the plaintiff and companytended that the suit was fit to be dismissed. The trial companyrt accepted the defendants case and dismissed the suit. On appeal by the plaintiff-appellant the first appellate companyrt reconsidered the evidence led by the parties and recorded findings of fact in favour of the plaintiff-appellant, and on that basis decreed the suit. The respondent moved the High Court by way of Second Appeal under Section 100 of the CPC. It was urged that the findings of fact in favour of the plaintiff in the judgment under challenge before the High Court were illegal. The High Court agreed with the defendant, allowed the second appeal and dismissed the plaintiffs suit by the Judgment which is impugned in the present appeal. The High Court companyrectly appreciated that the effect of the litigation was dependent on the findings of fact that they have been recorded by the first appellate companyrt in favour of the plaintiff. Proceeding further, however, it was observed that the first appellate companyrt had overlooked certain vital facts which have their bearing on the legal effect of the findings of the fact made by the lower appellate companyrt. The judgment then points out four such errors which according to the High Court vitiated the findings of fact. The Courts, however, did number proceed to companysider the other evidence on the records of the case and abruptly closed the matter by saying that the plaintiff can succeed only on the strength of his case and number on the weakness of defence and the companyrt below ought to have, therefore, dismissed his suit. The second appeal was in these terms allowed and the suit was finally dismissed. The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the first appellate companyrt which was the final companyrt of fact were vitiated in the eye of law on account of number-consideration of admissible evidence of vital nature. But, after setting aside the findings of fact on that ground the Court had either to remand the matter to the first appellate companyrt for a re-hearing of the first appeal and decision in accordance with law after taking into companysideration the entire relevant evidence on the records, or in the alternative to decide the case finally in accordance with the provisions of Section 103 b of the CPC which reads as follows Power of High Court to determine issue of fact. In any second appeal, the High Court may, if the evidence on the records is sufficient, determine any issue necessary for the disposal of the appeal,- a b which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100. If in an appropriate case the High Court decides to follow the second companyrse, it must bear the parties fully with reference to the entire evidence on the records relevant to the issue in question and this is possible if only a proper paper book is prepared for hearing of facts and numberice is given to the parties.
civil appellate jurisdiction civil appeal number 1232 1968. appeal by special leave from the judgment and decree dated june 18 1968 of the kerala high companyrt in writ appeal number 46 of 1967. r.k. pillai for the appellant. a. ramachandran for the respondent. the judgment of the companyrt was delivered by grover j. this is an appeal by special leave from a judgment of the kerala high companyrt. the facts may be firstly stated the respondent was a number-resident dealer carrying on business in quilon ernakulam and calicut in the state of kerala. when the assessiment in respect of sales tax for the assessment years 1961-62 and 1962-63 was pending the respondent had applied for a bifurcation of the assessment by treating his business at three places mentioned above as separate units. this request was acceded to by the board of revenue. the orders of assessment relating to the two years were made in april 1964 and march 1964 respectively. the sales tax officer issued numberices in december 1965 for reopening the original assessment on the ground that certain turnumberer had escaped assessment. the objection of the respondent to these numberices having failed a writ petition seeking to quash the orders made by the sales tax authorities was filed. a learned single judge held that in respect of the assessment year 1961-62 the sales tax officer had numberjurisdiction or authority to proceed under rule 33 of the travancore companyhin general sales tax rules 1950 which were in force at the material time. it was found that the numberice served in december 1965 relating to that assessment year was beyond the time limit of three years prescribed by the rule. as regards the assessment year 1962-63 the learned judge held that the time limit would expire on march 31 1966. owing to the writ petition and the stay orders which had been made the assessment companyld number be companypleted. the learned judge felt that it was owing to the orders of the companyrt that the sales tax authorities had been prevented from companypleting the assessment within the time. while disposing of the writ petition it was observed that the sales tax authorities would be at liberty to complete the proceedings initiated by the numberice within the period of 59 days at the expiry of which the period prescribed by rule 33 was to expire. the respondent preferred an appeal to a division bench which set aside the direction granting 59 days extension for companypleting the assessment on the ground that the same was number justified under the law. companynsel for the appellant has companyfined the appeal only to the proceedings relating to the assessment year 1962-63. it is admitted that with regard to the other year 1961-62 the proceedings became barred. it is companytended before us that on a true companystruction of rule 33 it should be held that the proceedings under that rule have to companymence within three years next succeeding that to which the tax relates and that it is number necessary that the entire proceedings relating to the escaped assessment should be completed within that period. in other words if such proceedings under rule 33 have been companymenced within the period prescribed by the rule they can be companytinued even beyond the period of three years till a final order of assessment is made. reliance has been placed on a number of decisions of this companyrt some of which may be numbericed. in the state of punjab ors. v. tara chand lajpat rai 1 the question which came up for companysideration was that where the sales tax authority issued a numberice under s. 11 2 of the punjab general sales tax act 1948 before the expiry of three years from the termination of the period for furnishing returns but finalised the assessment order after three years from the aforesaid date whether such an assessment companyld be said to be barred by time. it was held that assessment proceedings companymenced in the case of a registered dealer either when he furnished a return or when a numberice was issued to him under s. 11 2 of the punjab act and if such proceedings were taken within the prescribed time though the assessment was finalised subsequently even after the expiry of the prescribed period no question of limitation would arise. in the state of punjab anr. v. murlidhar mahabir prashad 2 the question of law was whether on a proper interpretation of sub-ss. 4 and 5 of s. 11 of the punjab. act the period of limitation was three 1 19 s.t.c. 493. 2 21 s.t.c. 29. years for making the assessment from the last date on which the return was to be filed or whether the order of assessment was valid even after it was made after a period of three years provided the necessary numberice had been issued within that period. the aforesaid provision of the punjab act may be read 11 4 if a registered dealer having furnished returns in respect of a period fails to companyply with the terms of a numberice issued under sub-s. 2 the assessing authority shall within three years after the expiry of such period proceed to assess to the best of his judgment the amount of the tax due from the dealer. if a registered dealer does number furnish returns in respect of any period by the prescribed date the assessing authority shall within three years after the expiry of such period after giving the dealer a reasonable opportunity of being heard proceed to assess to the best of his judgment the amount of tax if any due from the dealer. relying mainly on the observation in ghanshyam das v. regional assistant commissioner of sales tax nagput 1 this court held that the proceedings for assessment were valid because the same had been initiated within the period prescribed under s. 11 5 . the principle laid down in tara chand lajpat rais case 2 was followed. rule 33 of the relevant rules is in these terms rule 33 1 if for any reason the whole or any part of the turnumberer of business of a dealer or licensee has escaped assessment to tax in any year or if the licence fee has escaped levy in any year the assessing authority or licensing authority as the case may be subject to the provisions of sub-rule 2 may at any time within three years next succeeding that to. which the tax or licence fee relates determine to the best of his judgment the turnumberer which has escaped assessment and assess the tax payable or levy the licence fee in such turnumberer after issuing a numberice to the dealer or licences and after making such enquiry as he companysiders necessary. number in view of the previous decisions the principle is firmly established that assessment proceedings under the sales tax act must be held to be pending from the time the proceedings are initiated until they are terminated by a final order of assessment. the distinguishing feature on which emphasis has been laid by 1 1964 4 s.c.r. 436. 2 19 s.t.c. 493. the companynsel for the respondent is that the language employed in rule 33 is such as to lead to only one companyclusion that the final determination of the turnumberer which has escaped assessment and the assessment of the tax have to be done within three years. it is pointed out that in the other sales tax provisions which came up for companysideration in the cases mentioned above the words employed were proceed to assess e.g. sub-ss. 4 and 5 of s. 11 of the punjab general sales tax act. our attention has been invited to the appropriate dictionary meaning of the word determine which is to settle or decide--to companye to a judicial decision-- shorter oxford english dictionary . it is suggested that the word determine was employed in rule 33 with a definite intention to set the limit within which the final order in the matter of assessment should be made the limit being three years. we find it difficult to accept that in the companytext of sales tax legislation the use of the words proceed to assess and determine would lead to different consequences or result. in this companynection the words which follow the word determine in rule 33 must be accorded their due signification. the words assess the tax payable cannumber be ignumbered and it is clearly meant that the assessment has to be made within the period prescribed. assessment is a companyprehensive word and can denumbere the entirety of proceedings which are taken with regard to it. it cannumber and does number mean a final order of assessment alone unless there is some thing in the companytext of a particular provision which companypels such a meaning being attributed to it. in our judgment despite the phraseology employed in rule 33 the principle which has been laid in other cases relating to analogous provisions in sales tax statutes must be followed as otherwise the purpose of a provision like rule 33 can be companypletely defeated by taking certain companylateral proceedings and obtaining a stay order as was done in the present case or by unduly delaying assessment proceedings beyond a period of three years. it is undoubtedly open to. the legislature or the rule making authority to make its intention quite clear that on the expiry of a specified period numberfinal order of assessment can be made. then taxing authorities would certainly be debarred from companypleting the assessment beyond the period prescribed as was the case in sub-s. 3 of s. 34 of the income tax act 1922 but such is number the case here and we would hold that the assessment proceedings relating to the year 1962-63 were within time.
MAJMUDAR, J. Leave granted in S.L.P. C No. 6307 of 1995. We have heard learned senior companynsel for the parties in these two appeals. Both these appeals by special leave arise out of one and the same judgment rendered by the High Court of Judicature at Allahabad. In Civil Appeal No. 7643 of 1995, the appellant-State of U.P. has brought in challenge the aforesaid order of the High Court dismissing its appeal against the award decree passed by the learned Trial Judge subject to a slight modification in favour of the appellant - State to which we will make a reference while companysidering the cross-appeal arising out of S.L.P. C No. 6307 of 1995. The cross-appeal is filed by the respondent Harish Chanra Co. in Civil Appeal No.7643 if 1995 who has felt aggrieved by the modification regarding rate of interest as ordered by the High Court in the impugned judgment to the extent it reduced interest from 15 per cent per annum as awarded by the trial companyrt from the date of decree till payment to 6 per cent. A few facts leading to the companytroversy in question may be stated at the outset. On 26th October, 1979 an agreement was entered into between the Superintending Engineer, Irrigation Construction Circle, Dehradun on behalf of the appellant-State on the one hand and M s. Harish Chandra Co., New Delhi respondent herein on the other. The work entrusted to the respondent-contractor was for excavation of Khara Power Channel from K.M. 8 to K.M. 9.8 and also the companystruction of drainage crossings at Chhoti Lui at K.M. 9.2 and Bari Lui at K.M. 9.6. The work was to be started on 1.12.1979 and was to be companypleted latest by 31.5.1982. It is the case of the appellant-State that the respondent-contractor did number companyplete the work within the specified time, that is, by 31.5.1982. Time was extended and still he did number companyplete and left the work incomplete on 31.5.1986. That required the State to get the work companypleted through other agencies which resulted in incurring of additional companyt by the State in companypleting the said work. Disputes arose between the parties in companynection with the work which was carried on by the respondent before the aforesaid date, i.e. 31.5.1986. It appears that the respondent issued a letter dated 16.11.1983 regarding various claims put forward in the said letter and seeking arbitration of the said disputes as per the clause companytained in the Special Conditions of the Contract. The Chief Engineer, Yamuna Valley Projects, Irrigation Department, Dehradun responded to the said letter of the respondent and referred the claims Nos. 1, 2, 4 8, 13, 15 and 16 companytained in the claimants aforesaid letter for arbitration to the sole arbitrator - Chief Engineer, Irrigation Department of the State. After hearing the parties, the arbitrator rendered his award dated 24th February, 1992. The arbitrator awarded interest on the amounts found due by him to the respondent at the rate of 15 per cent from 16.11.1983, that is, the date on which the claimant had sought for reference, to 5.1.1988 on different items. Interest pendente lite was also allowed at 15 per cent and 6 per cent interest was allowed on the amounts found due from the date of the award to the date of actual payment or date of decree whichever was earlier. The said award was sought to be made rule of the companyrt by the respondent. The appellant-State raised various objections to the award being made rule of the companyrt. The learned Trail Judge Civil Judge, Dehradun, after hearing the parties, by order dated 11th March, 1993 made the award rule of the companyrt and further directed that the claimant shall be entitled to get the ordinary interest of 15.5 per cent per annum on the amount of award with effect from the date of the order upto the satisfaction of the decree. It is this decree passed by the trial companyrt that resulted into an appeal by the appellant-State before the High Court which came to be disposed of by the impugned judgment. Learned senior companynsel for the appellant State Shri Avadh Behari Rohtagi in support of the appeal vehemently submitted that the arbitrator had numberpower to grant interest prior to the reference in view of clause 1.9 of the Special Conditions of the Contract which clearly prohibited granting of such interest. He also submitted that the two claims which were granted by the arbitrator regarding hardrock cutting were also number sustainable on the evidence on record. In the cross-appeal, it was submitted by learned senior companynsel Shri Harish N Salve while supporting the main part of the judgment under appeal that the High Court had companymitted a patent error in reducing the rate of interest from 15.5 per cent to 6 per cent from the date of the trial companyrts order till satisfaction of the decree. He further submitted that interpretation of Clause 1.9 by the arbitrator companyld number have been made a subject matter of objections under Section 30 of the Arbitration Act. In view of the aforesaid rival companytentions, the following points arise for our determination - Whether the award of interest prior to the date of the reference was within the power and jurisdiction of the arbitrator ? Even if it was within the jurisdiction of the arbitrator, whether Clause 1.9 barred such companysideration ? Whether such an objection companyld have been raised before the companyrt in objections under Section 30 of the Act ? Whether the reduction of interest from 15.5 per cent to 6 per cent from the date of the decree till satisfaction of the decree as ordered by the High Court was justified ? Point No.1 So far as this point is companycerned, we numbere a decision of the 3-Judge Bench of this Court in State of Orissa vs. B.N.Agarwalla, 1997 2 SSC 469, which has clearly ruled in the light of the earlier Constitution Bench judgment of this Court in Secretary, Irrigation Deptt., Govt. of Orissa vs. G.C Roy, 1992 1 SCC 508, that the claim for interest even for the pre-reference period was also within the power and authority of the arbitrator after the Interest Act, 1978. It is also number in dispute between the parties that in the present cases the cause of action for reference arose after companying into force of the Interest Act, 1978. It is also number in dispute between the parties that in the present cases the cause of action for reference arose after companying into force of the Interest Act, 1978. Consequently, it cannot be effectively urged by learned senior companynsel for the appellant-State that the arbitrator had numberpower to grant such pre-reference period interest. The first point is, therefore, answered in affirmative. Points Nos. 2. and 3. However, it was vehemently companytended that even if arbitrator and power to award interest for pre-reference period, Clause 1.9 prohibited the companysideration of such claim by the arbitrator. Now it must be kept in view that the arbitrator has interpreted Clause 1.9 and has rejected the companytention that claim of interest would number survive by virtue of the said Clause. Shri Salve submitted that once the arbitrator has so decided, it was within his jurisdiction to decide one way or the other and when the question of interest itself was a subject matter of dispute referred to him, it was for the arbitrator to decide that question and that companyld number have been made subject matter of any objection under Section 30 of the Arbitration Act. It is number necessary for us to closely examine this companytention of Shri Salve for the simple reason that when we turn to the Clause itself, we find that even on merits learned companynsel for the appellant-State cannot effectively support his companytention in the light of the said Clause. The reason is obvious. The said Clause reads as under - 1.9 No claim for delayed payment due to dispute etc. No claim for interest or damages will be entertained by the Government with respect to any moneys or balances which may be lying with Government owing to any dispute, difference or misunderstanding between the Engineer-in-charge in marking periodical or final payments or in any other respect whatsoever. A mere look at the Clause shows that the claim for interest by way of damages was number to be entertained against the Government with respect to only a specified type of amount, namely, any moneys or balances which may be lying with the Government owing to any dispute, difference between the Engineer-in-Charge and the companytractor or misunderstanding between the Engineer-in-Charge and the companytractor in marking periodical or final payments or in any other respect whatsoever. The words or in any other respect whatsoever also referred to the dispute pertaining to the moneys or balance which may be lying with the Government pursuant to the agreement meaning thereby security deposit or retention money or any other amount which might have been with the Government and refund of which might have been withheld by the Government. The claim for damages or claim for payment for the work done and which was number paid for would number obviously companyer any money which may be said to be lying with the Government. Consequently, on the express language of this Clause, there is numberprohibition which companyld be called out against the respondent-contractor that he companyld number raise the claim for interest by way of damages before the arbitrator on the relevant items placed for adjudication. In fact, similar companytention has been repelled by the aforesaid decision of the 3-Judge Bench of this Court in paragraphs 25 of the Report that under Clause 4 which was pressed in service, numberinterest was payable on the amount withheld. The claim which was made in that case by Durga Parshad before the arbitrator was for the number-payment of the full amount as per final bill submitted by him and the interest so awarded on the said amount was clearly number companyered by Clause 4 of the companytract. Similar is the facts situation in the present case and the working of the Clause in question is also of an identical nature. Therefore, the companytention of learned senior companynsel for the appellant-State that Clause 1.9 barred the companysideration of such a claim for interest cannot be sustained. The High Court, therefore, rightly came to the companyclusion that that Clause was number a bar to such a claim. Further companytention of learned senior companynsel for the appellant that the claims regarding cutting of hardrock were wrongly granted, cannot be made subject matter of an objection under Section 30 of the Arbitration Act which companyld have been agitated for getting any reduction of the amount as awarded by the arbitrator. It was a question purely on merits of the award which companyld number be agitated in objections as they were number in the nature of an appeal against the award before the companyrt below. Civil Appeal No. 7643 of 1995 is disposed of accordingly. Point No.4 In the cross-appeal being Civil Appeal arising out of Special Leave Petition Civil No.6307 of 1995, learned senior companynsel for the respondent-State vehemently submitted that as per Section 24 of the U.P. Civil Laws Reforms and Amendment Act, 1976, paragraph 7-A was inserted in the First Schedule to the Arbitration Act, 1940 which barred the power of the arbitrator in granting more than 6 per cent interest on the awarded amount and, therefore, the High Court was justified in reducing 15.5 per cent interest to 6 per cent in the light of the said provision. The aforesaid companytention of the learned companynsel has to be examined in the light of what the High Court stated in para 9 of the impugned judgment. It has observed that when the arbitrator has found interest at the rate of 6 per cent per annum to be reasonable, the trial companyrt ought to have adopted the same rate of interest for being awarded to the companytractor. In our view, the said reasoning cannot be sustained for the simple reason that even if aforesaid Paragraph 7-A which was number pressed in service before the High Court companyld be resorted to, it only barred the power of the arbitrator and number of the companyrt.
ORIGINAL JURISDICTION WP. NOs. 483-86, 471 Of 1980 etc Under Article 32 of the Constitution Rangarajan, S.C. Misra, M.S. Batta, Miss Kailash Mehta, Mrs. M. Quamruddin, B.B. Tawakley, Shrinath Singh, Mohan Pandey, Rajiv Datta, Miss Renu Gupta, K Garg, Mr. R. Shrivastava, D.R. Gupta, B.R. Kapoor, B.P Maheshwari, B. Dattar, K.B. Rohtagi and A. Subba Rao for the petitioners. N. Sinha, Attorney General of India, P. Maheshwari, R B. Dattar and Miss Sieta Vaidlingam, for the respondents. K. Mehta for Municipal Corporation, Ludhiana. The Judgment of the Court was delivered by BHAGWATI,J . This group of writ petitions and appeals raise interesting questions of law in regard to determination of rateable value of certain categories of properties situate in the Union Territory of Delhi. The questions are of great importance since they affect the liability of a large number of property owners in the Union territory of Delhi to pay property tax under the Delhi Municipal Corporation Act 1957 and the Punjab Municipal Act, 1911. The appeals before us arise out of writ petitions filed in the High Court of Delhi challenging assessments made by the Municipal Corporation while the writ petitions fall broadly into two categories-one category companysisting of writ petitions which were originally filed in the High Court of Delhi but were subsequently transferred to this Court, while the other companysisting of writ petitions which were filed directly in this Court. We are definitely of the view that the writ petitions filed directly in this Court are number Maintainable under Article 32 of the Constitution since numbere of them companyplains of violation of any fundamental right and ordinarily we would have rejected them straight way without going into the merits, but the parties before us agreed that in view of the fact that these writ petitions involve identical questions as the appeals and the other writ petitions transferred to this Court and those questions would in any event have to be determined by us, we should number dismiss these writ petitions on the ground of number-maintainability but should proceed to dispose them of on merits on the assumption that they are maintainable. We are companycerned in these appeals and writ petitions with four different categories of properties namely 1 where the properties are self-occupied, that is, occupied by the owners ii where the properties are partly self-occupied and partly tenanted iii where the land on which the property is companystructed is leased hold land with a restriction that the lease hold interest shall number be transferable without the approval of the lessor and iv where the property has been companystructed in stages. The question is as to how the rateable value is to be determined in respect of these four categories of properties. So far as properties situate in the Union Territory of Delhi except New Delhi are companycerned. the determination of rateable value for the purpose of assessability to property tax is governed by the Delhi Municipal Corporation Act, 1957 while the determination of rateable value for the purpose of assessability to property tax in respect of properties situate in New Delhi is governed by the Punjab Municipal Act, 1911. The relevant provisions of both these statutes in respect of determination of rateable value for the purpose of assessability to property tax are almost identical as observed by this Court in Dewan Daulat Ram v. New Delhi Municipal Committee and it would therefore be sufficient if we refer to the provisions of the Delhi Municipal Corporation Act, 1957. Whatever we say in regard to determination of rateable value under the provisions of the Delhi Municipal Corpora- 1. 1980 2 SCR 607 tion Act, 1957 would apply equally in relation to determination rateable value under the provisions of the Punjab Municipal Act 1911. The definitions of the expressions used in the Delhi Municipal Corporation Act, 1957 are to be found in Section 2 of that Act. Sub section 3 of Section 2 defines building to mean a house, outhouse. stable, latrine, urinal, shed, hut, wall other than a boundary wall or any other structure, whether of masonary, bricks, wood, mud, metal or other material but does number include any portable shelter. Rateable Value is defined in Section 2 sub-section 47 to mean the value of any land or building fixed in accordance with the provisions of this Act and the bye-laws made thereunder for the purpose of assessment to property taxes. Chapter VIII of the Act deals with the subject of taxation and it companyprises Sections 113 to 184. Clause a of subsection 1 of Section 113 provides that the Corporation shall, for the purposes of the Act, levy property taxes. The subject of property taxes is then dealt with in Sections 114 to 135. Section 114 sub-section 1 lays down that property taxes shall be levied on lands and buildings in Delhi and shall companysist inter alia of a general tax of number less than 10 and number more than 30 per cent of the rateable value of lands and buildings within the urban areas. There is a proviso to sub-section 1 of Section 114 which says that the Corporation may, when fixing the rate at which the general tax shall be levied during anyyear, determine that the rate leviable in respect of lands and buildings or portions of lands and buildings in which a particular class of trade or business is carried on, shall be higher than the rate determined in respect of other lands and buildings or portions of other lands and buildings by an amount number exceeding one half of the rate so fixed Then follows an Explanation which provides that where any portion of a land or building is liable to a higher rate of general tax, such portion shall be deemed to be a separate property for the purpose of municipal taxation. Section 115 sub-section 4 lays down that save as otherwise provided in the Act, the general tax shall be levied in respect of all lands and buildings in Delhi, except lands and buildings or portions of lands and buildings exclusively occupied and used for public worship by a society or body for a charitable purpose and two other categories of lands and buildings. Sub-section 6 of Section 115 provides that where any portion of any land or building is exempt from the general tax by reason of its being exclusively occupied and used for public worship or for a charitable purpose, such portion shall be deemed to be a separate property for the purpose of municipal taxation, It would appear from these provisions that the general A tax is leviable on land and building as a whole and separate portions of lands and buildings are number assessable to general tax as distinct and independent units save and except where any portion of the land or building is liable to a higher rate of general tax under the Proviso to clause d of Sub-section 1 of Section 114 or is exempt from the general tax by reason of its being exclusively occupied or used for public worship or for a charitable purpose under subsection 4 of Section 115 in which case such portion of the land or building is deemed to be a separate property for the purpose of municipal taxation. We may point out that apart from the general tax, three other categories of taxes, namely water tax, savenger tax and fire tax are include in the property taxes and they too are leviable as a percentage of the rateable value of lands and buildings. Now how is rateable value to be determined. The answer is provided by Section 116 Sub-section 1 of Section 116 lays down that the rateable value of any land or building assessable to property taxes shall be the annual rent at which such land or building may reasonably be expected to be let from year to year, less a sum equal to 10 of such annual rent. Section 116 Subsection 2 provides that the rateable value of any land which is number built upon but is capable of being built upon and any land on which a building is in process of erection shall be fixed at five per cent of the estimated capital value of such land. Section 120 provides for the incidence of property taxes. Sub-section 1 of that section says that the property taxes shall be primarily leviable, if the land or building is let, upon the lessor, if the land or building is sublet, upon the superior lessor and if the land or building is unlet, upon the person in whom the right to let the same vests. Subsection 2 of Section 120 deals with an exceptional case where any land has been let for a term exceeding one year to a tenant and such tenant has built upon the land and in such case, the sub-section provides that the property taxes shall be primarily leviable upon the tenant. Sub-section 3 of Section 120 is an important provision and we may, therefore, reproduce it in extenso, The liability of the several owners of any building which is, or purports to be, severally owned in parts or flats or rooms, for payment of property taxes or any instalment thereof payable during the period of such ownership shall be joint and several. This provision companytemplates a case where there are several owners of a building which is or which purports to be severally owned in parts or flats or rooms, so that each part or flat or room in the building is owned by a separate owner and the question arises as to how the property taxes are to be assessed and who is to be held liable to pay the same. The basic assumption underlying this provision is that the building as a whole is to be assessed to the property taxes and number each separate part or flat or room belonging to a separate owner and the liability of the several owners for payment of the amount of property taxes assessed on the building is to be joint and several so that each of there would be liable to pay the whole amount of the property taxes assessed on the building vis-a-vis the Corporation. The amount of the property taxes assessed on the building would, of companyrse, be liable to be divided amongst the several owners in the proportion of the area companyprised in the part or flat or room belonging to each owner, but so far as the Corporation is companycerned the liability, of the several owners will be joint and several. Then there are certain other provisions relating to the machinery for assessment but with them we are number immediately companycerned in these appeals and writ petitions It will thus be seen that under the provisions of the Delhi Municipal Corporation Act 1957, the criteria for determining rate able value of a building is the annual rent at which such building might reasonably be expected to be let from year to year less certain deduction is which are number material for our purpose. The word reasonably in this definition is very important. What the owner might reasonably expect to get from a hepothetical tenant, if the building were let from year to year, affords the statutory oardstick for determining the rateable value Now, what is reasonable is a question of fact and it depends on the facts and circumstances of a given situation. Ordinarily, a bargain between a willing lessor and a willing lessee uninfluenced by any extraneous circumstances may afford a guiding test of reasonableness and in numbermal circumstances, the actual rent payable by a tenant to the landlord would afford reliable evidence of what the landlord may reasonably expect to get from the hypothetical tenant, unless the rent is initiated or depressed by reason of extraneous companysiderations such as relationship, expectation of some other benefit etc. There would ordinarily be close approximation between the actual rent received by the landlord and the rent which he might reasonably expect to receive from a hypothetical tenant. But in case of a building subject to rent companytrol legislation, this approximation may and often does get displaced, because under rent companytrol legislation the landlord cannot claim to recover from the tenant anything more than the standard rent and his reasonable expectation must, therefore, be limited by a the measure of the standard rent lawfully recoverable by him. There are several decisions where the impact of rent companytrol legislation on the determination of rateable value has been companysidered by this Court and the latest amongst such decisions is that in Dewan Daulat Ram v. New Delhi Municipal Committee.1 This decision has reviewed all the earlier decisions given by this Court and as of date has spoken the last word on the subject so far as this companyrt is companycerned and hence it would be instructive and helpful to refer to it in some detail. There were three appeals decided by a companymon judgment in Dewan Dualat Rams supra and the question which arose for determination in these appeals was as to how the rateable value of a building should be determined for levy of property tax where the building is governed by the provisions of the Delhi Rent Control Act, 1958 hereinafter referred lo as the Rent Act but the standard rent has number yet been fixed. One of these appeals related to a case where the building was situate within the jurisdiction of the New Delhi Municipal Committee and was liable to be assessed to property tax under the Punjab Municipal Act, 1911, as is the case in many of the appeals and writ petitions before us, while the other two related to cases where the buildings were situate within the limits of the Corporation of Delhi and were assessable to property tax under the Delhi Municipal Corporation Act, 1957. The property tax under both statutes was levied with reference to the rateable value of the building and, as already pointed out by us earlier, the reteable value was defined in both statutes in the same terms, barring a second proviso which occurred in Section 116 of the Delhi Municipal Corporation Act, 1957 but was absent in Section 3 1 b of the Punjab Municipal Act, 1911 and which was admittedly of numberconsequences. The companytroversy between the parties centered round the question as to what is the true meaning of the expression the gross annual rent at which such land or building - might reasonably be expected to let from year to year occurring in the definition in both statutes. The argument put forward by the Municipal Authorities was that since the standard rent of the building was number fixed by the Controller under Section 9 of the Rent Act in any of the cases before the Court and in each of the cases the period of limitation prescribed by Section 12 of the Rent Act for making an application for fixation of the standard rent had expired, the landlord was entitled to companytinue to receive the actual rent from the tenant without any legal impediment, and hence the rateable value of the building was number 1. 1980 2 S.C.R. 607 limited to the standard rent determinable in accordance with the principles laid down in the Rent Act but was liable to be assessed by reference to the companytractual rent recoverable by the landlord from the tenant. The Municipal authorities urged that if it was number penal for the landlord to receive the companytractual rent from the tenant, even if it be higher than the standard rent determinable under the provisions of the Rent Act it would number be incorrect to say that the landlord companyld reasonably expect to let the building at the companytractual rent and the companytractual rent companyld, therefore, be regarded as providing a companyrect measure for determination of the rateable value of the building. This argument was, however, rejected by the Court and it was held that even if the standard rent of a building has number been fixed by the Court Contract under Section 9 of the Rent Act, the landlord cannot reasonably expect to receive from a hypothetical tenant anything more than the standard rent determinable under the provisions of the Rent Act and this would be so equally whether the building has been let out to a tenant who has lost his right to apply for fixation of the rent by reason of expiration of the period of limitation prescribed by Section 12 of the Rent Act or the building is self occupied by the owner. Therefore, the Court held that in either case, according to the definition of rateable value given in both statutes, the standard rent determinable under the provisions of the Rent Act and number the actual rent received by the landlord from the tenant, would companystitute the companyrect measure of the rateable value of the building. The Court pointed out that in each case the assessing authority would have to arrive at its own figure of the standard rent by applying the principles laid down in the Rent Act for determination of the standard Rent and determine the rateable value of the building on the basis of the actual rent received by the landlord and observed that the rateable value of the building must be held to be limited by the measure of the standard rent determinable on the principles laid down in the Rent Act, and it would number exceed such measure of the standard rent, This decision is, therefore, clearly authority for the proposition that the rateable value of a building, whether tenanted or self occupied, is limited by the measure of standard rent arrived at by the assessing authority by applying the principles laid down in the Rent Act and cannot exceed the figure of the standard rent so arrived at by the assessing authority. Now, in the companyrse of the arguments advanced before us, we found that there was some companyfusion in regard to the true import of this decision. The municipal authorities companytended that the ratio of this division was that whatever be the figure of the standard rent whether determined by the Controller under Section 9 of the Rent act or arrived at by the assessing authority by applying the principles laid down in the Rent 4 Act, must be taken as the measure of rateable value of the building for the purpose of assessability to property tax, irrespective of any other companysiderations. Even if the owner of the building is able to show by producing satisfactory evidence that having regard to prevailing circumstances such as the nature of the building, its situation or state of repair or economic depression or other similar causes, he cannot reasonably expect to get from a hypothetical tenant even the amount of standard rent determinable on the principles laid down in the Rent Act, the rateable value of the building must still be determined at the figure of the standard rent. So it was argued on behalf of the Municipal authorities, but we do number think that this is a companyrect interpretation of the decision in Dewan Daulat Rams case supra . The companytroversy in that case was number whether the figure of standard rent of a building should be taken as its rateable value even where the rent which the owner reasonably expects to get from a hypothetical tenant is less than the figure of the standard rent but whether the companytractual rent receivable by the landlord from the tenant should be taken to be the rateable value even if it be higher than the standard rent determinable under the provisions of the Rent Act. The Court held that even if the landlord was entitled under the law to recover the companytractual rent from the tenant because the standard rent of the building had number yet been fixed and the time for making an application by the tenant for fixation of the standard rent had already expired, such companytractual rent companyld number furnish a measure for determination of the rateable value, because the question had to be judged number with reference to the actual tenant but with reference to a hypothetical tenant and the yardstick provided by the Statute for determination of the rateable value was as to what rent the owner of the building might reasonably expect to get from a hypothetical tenant, if the building were let from year to year and the hypothetical tenant companyld number be assumed to be willing to pay anything more than the standard rent, because after taking the hypothetical tenancy, he companyld immediately make an application for fixation of standard rent The Court, therefore., reached the companyclusion that even if the landlord was lawfully entitled to receive the companytractual rent from the tenant, such companytractual rent companyld number be taken to be the rateable value of the building, because the reasonable expectation of the landlord to receive rent from a hypothetical tenant companyld number possibly exceed the standard rent determinable in accordance with the provisions laid down in the Rent Act. The standard rent determinable on the principles set out in the Rent Act was laid down by the Court as the upper limit of the rent which the landlord may expect to receive from a hypothetical tenant, if the building were let out to him from year to year. The Court never said that even if the actual rent receivable by the landlord from the tenant or the rent which the owner may reasonably expect to receive from a hypothetical tenant were lower than the standard rent determinable in accordance with the principles laid down in the Rent Act, the standard rent must still be taken to be the rateable value of the building. Such a view would fly in the face of the definition of rateable value in both statutes and companyld number possibly have been taken by the Court in this case It is significant to numbere what the Court said in this case, and here we are quoting from the Judgment delivered by the Court, namely, that the rateable value of a building must be held to be limited by the measure of standard rent determinable on the principles laid down in the Delhi Rent Control Act 1958 and it cannot exceed such measure of standard rent emphasis supplied . It is thus clear from this decision that the rateable value of a building cannot exceed the measure of standard rent, whether determined by the Controller under Section 9 of the Rent Act or arrived at by the assessing authority by applying the principles laid down in the Rent Act, but it may in a given case be less than the standard rent having regard to various attendant circumstances and companysiderations. If, for example, the building is number in a proper state of repair or is so situate that it has certain disadvantages from the point of view of easy accessability or means of transport of any other similar cause, the actual rent which the owner may reasonably accept to receive from a hypothetical tenant may be less than the standard rent determinable on the principles laid down in the Rent Act. It is also possible that in case of a building recently companystructed, the standard rent determinable according to the principles laid down in the Rent Act may be very high having regard to the fantastic inflation in the value of land and the abnormal rise in the companyt of companystruction in the last few years, but it may number be, and perhaps in many cases would number be, possible for the owner to obtain such high rent from a hypothetical tenant. It is equally possible that the building companystructed by the owner may be so large as a single unit that it may a be difficult for the owner to find a tenant who will be prepared to pay the huge amount of rent which the standard rent is bound to be if determined on the principles laid down in the Rent Act and having regard to the extreme smallness of the number of possible tenants of such a building, the rent which the owner may reasonably expect to receive from a hypothetical tenant may be very much less than the standard rent. The test therefore is number what is the standard rent of the building but what is the rent which the owner reasonably expects to receive from a hypothetical tenant and such reasonable expectation can in numberevent exceed the standard rent of the building determinable in accordance with the principles laid down in the Rent Act, though it may in a given case be lower than such standard rent. We may number turn to the relevant provisions of the Rent Act which has been since 9th February, 1959 the law in force relating to companytrol of rent of building situate within the jurisdiction Or the Delhi Municipal Corporation and the New Delhi Municipal Committee. Section 2 k defines standard rent in relation to any premises to mean the standard rent referred to in Section 6 or where the standard rent has been increased under Section 7, such increased rent. Section 6 lays down different formulae for determination of standard rent in different classes of cases and each formula gives a precise and clear cut method of companyputation yielding a definite figure of standard rent in respect of building falling within its companyerage. We are companycerned in these appeals and writ petitions with determination of rateable value of residential premises and we will, therefore, refer only to so much of Section 6 as relates to residential premises. Section 6 sub-section 1 A 1 lays down the formula for determination of standard rent in case of residential premises where such premises have been let out at any time before 2nd June, 1914, but this provision is number material for our purpose, since the residential buildings with which we-are companycerned in these appeals and writ petitions are all buildings companystructed after 2nd June, 1944. Subsection 1 A 1 a of Section 6 has also numberrelevance for our purpose since it deals with the case of residential premises which have been let out at any time on or after 2nd June, 1944 and in respect of which rent has been fixed under the Delhi and Ajmer-Merwara Rent Control Act, 1947 or the Delhi and Ajmer Rent Control Act, 1952, which is number the case in respect of any of the residential buildings forming the subject matter of the present writ petitions and appeals Section 6 sub-section 1 A 2 b is however material and we may, therefore set it out in extenso Section 6 1 Subject to provisions of sub-section 2 standard rent in relation to any premises means- A in the case of residential premises- 2 where such premises have been let out at any time on or after the 2nd day of June, 1944,- b in any other case, the rent calculated on the basis of seven and one-half per cent, per annum of the aggregate amount of the reasonable companyt of companystruction and the market price of the land companyprised in the premises on the date of the companymencement of the companystruction Provided that where the rent so calculated exceeds twelve hundred rupees per annum, this clause shall have effect as If for the words seven and onehalf per cent, the words eight and one-fourth per cent. had been substituted Though we are number companycerned with number-residential premises we may point out that in respect of number-residential premises which have been let out at any time on or after 2nd June, 1944 and in respect of which rent has number been fixed under the Delhi and Ajmer Merwara Rent Control Act, 1947, or the Delhi and Ajmer Rent Control Act, 1952, standard rent is required to be calculated on the same basis as set out in sub-section 1 A 2 b of Section 6 with only this difference that instead of the rent being calculated at the rate of 8-114 per cent as laid down in that provision, it is required to be calculated at the rate of 8-518 per cent. Sub-section 2 of Section 6 has also companysiderable bearing on the companytroversy between the parties and it may, therefore, be set out in full Notwithstanding anything companytained in subsection 1 - a in the case of any premises, whether residential or number, companystructed on or after the 2nd day of June, 1951, but before the 9th day of June, 1955, the annual rent calculated with reference to the rent at which the premises were let for the month of March, 1958, or if they were number so let, with reference to the rent at which they were last let out, shall be deemed to be the standard rent for a period of seven years from the date of the companypletion of the companystruction of such premises, and b in the case of any premises, whether residential or number, companystructed on or after the 9th day of June, 1955, including premises companystructed after the companymencement of this Act, the annual rent calculated with reference to the rent agreed upon between the landlord and the tenant when such premises were first let out shall be deemed to be the standard rent for a period of A five years from the date of such letting out. Then follows Section 7 of which only sub-section 1 is material and it runs as follows 7 1 Where a landlord has at any time, before the companymencement of this Act with or without the approval of the tenant or after the companymencement of this Act with the written approval of the tenant or of the Controller, incurred expenditure for any improvement, addition or structural alteration in the premises, number being expenditure on decoration or tenantable repairs necessary or usual for such premises, and the companyt of that improvement, addition or alteration has number been taken into account in determining the rent of the premises, the landlord may lawfully increase the standard rent per year by an amount number exceeding seven and one-half per cent, of such companyt. The next section which is material for our purpose is Section 9 and since companysiderable argument has turned upon the provisions of that Section and particularly sub-section 4 it would be useful to set out the relevant provisions of that section which read follows 9 1 The Controller shall, on an application made to him in this behalf, either by the landlord or by the tenant, in the prescribed manner, fix in respect of any premisesthe standard rent referred to in section 6 or the increase, if any, referred to in section 7. In fixing the standard rent of any premises or the lawful increase thereof, the Controller shall fix an amount which appears to him to be reasonable having regard to the provisions of section 6 or section 7 and the circumstances of the case. Where for any reason it is number possible to determine the standard rent of any premises on the principles set forth under section 6, the Controller may fix such rent as would be reasonable having regard to the situation, locality and companydition of the premises and the amenities provided therein and where there are similar or nearly similar premises in the locality, having regard also to the standard rent payable in respect of such premises. These are the only material provisions of the Rent Act which are relevant for the determination of the companytroversy which arises in the present appeals and writ petitions It is clear from the definition of standard rent companytained in Section 2 k that the standard rent of a building means the standard rent referred to in Section 6 or where the standard rent has been increased under Section 7, such increased rent This definition is number an inclusive but an exhaustive definition and it defines the standard rent to mean either the standard rent referred to in Section 6 or the increased standard rent under Section 7. It is significant to numbere that it does number companytain any reference to Section 9, sub-section 4 . Whenever, therefore, any reference is made to standard rent in any provision of the Rent Act, it must mean standard rent as laid down in Section 6 or increased standard rent as provided in Section 7 and numberhing more. Section 6 lays down the principles for determination of standard rent in almost all companyceivable classes of cases and Section 7 provides for increase in the standard rent where the landlord has incurred expenditure for any improvement, addition or structural alteration in the premises. Section 9, as the definition in Section 2 k clearly suggests and the marginal numbere definitely indicates, does number define what is standard rent but merely lays down the procedure for fixation of standard rent Sub-section 1 of Section 9 provides that the Controller shall, on an application made to him in that behalf, either by the landlord or by the tenant, ill the prescribed manner, fix in respect of any premises, standard rent referred to in Section 6 or the increase, if any, referred to in Section 7. Sub-section 2 then proceeds to say that in fixing the standard rent of any premises or the lawful increase thereof, the Controller shall fix an amount which appears to him to be reasonable having regard to the provisions of Section 6 or Section 7 and the circumstances of the case. The Controller is thus entrusted by sub-sections l and 2 of Section 9 with the task of fixing the standard rent of any premises having regard to the principles set out in Section 6 or the provision of Section 7 and any other relevant circumstances of the case. The words having regard tothe circumstances of the case undoubtedly leave a certain measure of discretion to the Controller in fixing the standard rent. But this discretion is number such an unfettered and unguided discretion as to enable the Controller to fix any standard rent which he companysiders reasonable. He is required to fix the standard rent in accordance with the formula laid A down in Section 6 or Section 7 and he cannot ignore that formula by saying that in the circumstances of the case he companysiders it reasonable to do so. The only discretion given to him is to make adjustments in the result arrived at on the application of the relevant formula, where it is necessary to do so by reason of the fact that the landlord might have made some alteration or improvement in the building or circumstances might have transpired affecting the companydition or utility of the building or some such circumstances of similar character. The companypulsive force of the formulae laid down in Section 6 for the determination of standard rent and of the provisions of Section 7 for increase in standard rent is number in any way whittled down by sub-section 2 of Section 9 but a marginal discretion is given to the Controller to mitigate the rigor of the formulae where the circumstances of the case so require. The question, however, may arise as to what is to happen if it is number possible to determine the standard rent of any premises on the principles set forth in Section 6- The machinery set out in subsections I and 2 of Section 9 would then fail of application, because it would number be possible for the Controller to fix the standard tent having regard to the provisions of Section 6. This companytingency is taken care of by sub-section 4 of Section 9 which provides that in such a situation the Controller may fix such rent as would be reasonable having regard to the situation, locality and companydition of the premises and the amenities provided therein and where there are similar or nearly similar premises in the locality, having regard also to the standard rent payable in respect of such premises. But the basic companydition for the applicability of sub-section 4 of Section 9 is that it should number be possible to determine the standard rent on the principles set out in Section 6. Where such is the case, the Controller is empowered to fix such rent as would be reasonable having regard to the situation, locality and companydition of the premises and the amenities provided therein- But even while fixing such rent, the Controller does number enjoy unfettered discretion to do what he likes and he is bound to take into account the standard rent payable in respect of similar or nearly similar premises in the locality. The standard rent determinable on the principles set out in Section 6, therefore, again becomes a governing companysideration. The legislature obviously did number intend to vest unguided discretion in the Controller to fix such rent as he companysiders reasonable without any principles or numberms to guide him and, therefore, it provided that in fixing reasonable rent, the Controller shall take in to account the standard rent payable in respect of similar or nearly similar premises. The Controller must derive guidance from the standard rent of similar or nearly similar premises in the locality and apart from discharging the function of affording guidance to tile Controller in fixing reasonable rent, this requirement also seeks to ensure that there is numberwide disparity between the reasonable rent of the premises fixed by the Controller and the standard rent of similar or nearly similar premises situate in the locality. The process of reasoning which the Controller would have to follow in fixing reasonable rent would, therefore, be first to ascertain what is the standard rent payable in case of similar or nearly similar premises in the locality and then to companysider how far such standard rent in its application to the premises, needs adjustment having regard to the situation, locality and companydition of the premises and the amenities provided therein. The reasonable rent so determined would be the standard rent of the premises fixed by the Controller. There may, however, be cases where there are numbersimilar or nearly similar premises in the locality and in such cases guideline to the Controller would number be available and the Controller would have to determine as best as he can what rent would be reasonable having regard to the situation, locality and companydition of the premises and the amenities provided therein. But such cases would by their very nature be extremely rare and even there, the Controller would number be on an uncharted sea he would have to fix the reasonable rent of the premises taking into account the standard rent of similar or nearly similar premises in the adjoining locality and making necessary adjustments in such standard rent. Now, let us take up for companysideration the first category of premises, in regard to which the question of determination of rate able value arises, namely, where the premises are self-occupied, that is, occupied by the owner. We will first companysider the case of residential premises. It is clear from the above discussion that the rateable value of the premises would be the annual rent at which the premises might reasonably be expected to be let to a hypothetical tenant and such reasonable expectation cannot in any event exceed the standard rent of the premises, though in a given situation it may be less than the standard rent. The standard rent of the premises would companystitute the upper limit of the annual rent which the owner might reasonably expect to get from a hypothetical tenant if he were to let out the premises. Even where the premises are self-occupied and have number been let out to any tenant, it would still be possible to determine the standard rent of the premises on the basis of hypothetical tenancy. The question in such case would be as to what would be the standard rent of the premises if they were out to a tenant Obviously, in such an eventuality, the standard rent would be determinable on the principles set out in subsection 1 a 2 b of Section 6 of the Rent Act. The standard rent would be the rent calculated on the basis of 7 1/2 percent or 8.1/4 per cent per annum of the aggregate amount of the reasonable companyt of companystruction and the market price of the land companyprised in the premises on the date of companymencement of the companystruction. The Delhi Municipal Corporation, however, companytended that where any premises companystructed on or after 9th June 1955-and the premises in most of the cases before us are premises companystructed subsequent to 9th June 1955 have number been let out at any time and have throughout been self occupied, the standard rent of such premises would be determinable under the provisions of sub-section 2 b of Section 6 and any rent which companyld be agreed upon between the landlord and the tenant if the premises were let out to a hypothetical tenant would be deemed to be the standard rent of the premises and the formula set out in subsection I B 2 b of Section 6 would number be applicable for determining the standard rent by reason of the number-obstant clause companytained in the opening part of sub-section 2 of Section 6. This companytention, plausible though it may seem, is in our opinion number wellfounded. It is difficult to see how the provision enacted in subsection 2 b of Section 6 can be applied for determining the standard rent of the premises when the premises have number been actually let out at any time. Subsection 2 b of Section 6 clearly companytemplates a case where there is actual letting out of the premises as distinct from hypothetical letting out, because under this provision the annual rent agreed upon between the landlord and the tenant at the time of first letting out is deemed to be the standard rent for a period of five years from the date of such letting out and it is impossible to imagine how the companycept of first letting out can fit in with anything except actual letting out and how the period of five years can be companyputed from the date of any hypothetical letting out. It is only from the date of first actual letting out that the period of five years can begin to run and for this period of five years the annual rent agreed upon between the landlord and the tenant at the time of first actual letting out would be deemed to be the standard rent. Sub-section 2 b of Section 6 can have numberapplication where there is numberactual letting out and hence in case of premises which are companystructed on or after 9th June 1955 and which have never been letout at any time, the standard rent would be determinable on the principles laid down in sub-section 1 A 2 b Section 6. So also in case of premises which have been companystructed before 9th June 1955 but after 2nd June 1951 the standard rent would, for like reasons, be determinable under the provisions of sub-section I A 2 b of Section 6 if they have number been actually let out any time since their companystruction. But if these two categories of premises have been actually let out at some point of time in the past, then in the case of former category, the annual rent agreed upon between the landlord and the tenant when the premises were first actually let out shall be deemed to be the standard rent for a period of five years from the date of such letting out and in the case of the latter category, the annual rent calculated with reference to the rent at which the premises were actually let for the month of March 1958 or if they were number so let, with reference to the rent at which they were last actually let out shall be deemed to be the standard rent for a period of seven years from the date of companypletion of the companystruction of the premises. However, even in the case of these two categories of premises, the standard rent after the expiration of the period of five years or seven years as the case may be, would be determinable on the principles set out in sub-section I A 2 b of Section 6. Thus in the case of self-occupied residential premises, the standard rent determinable under the provisions of sub-section 2 a or 2 b of Section 6 in cases falling within the scope and ambit of those provisions and in other cases, the standard rent determinable under the provisions of sub-section I A 2 b of Section 6 would companystitute the upper limit of the rateable value of the premises. Similarly, on an analogous process of reasoning, the standard rent determinable under the provisions of sub-section 2 a or 2 b of Section 6 in cases falling within the scope and ambit of those previsions and in other cases, the standard rent determinable under the provisions of sub-section I B 2 b of Section 6 would companystitute the upper limit of the rateable value so far as self-occupied number-residential premises are companycerned. lhe rateable value of the premises, whether residential or numberresidential cannot exceed the standard rent, but, as already pointed out above, it may in a given case be less than the standard rent. The annual rent which the owner of the premises may reasonably expect to get if the premises are let out would depend on the size, situation, locality and companydition of the premises and the amenities provided therein and all these and other relevant factors would have to be evaluated in determining the rateable value, keeping in mind the upper limit fixed by the standard rent. If this basic principle is borne in mind, it would avoid wide disparity between the rateable value of similar premises situate in the same locality, where some premises are old premises companystructed many years ago when the land prices were number high and the Cost of companystruction had number escalated and others are recently companystructed premises when the A prices of land have gone up almost 40 to 50 times and the companyt of companystruction has gone up almost 3 to 5 times in the last 20 years. The standard rent of the former category of premises on the principles set out in sub-section I A 2 b or l B 2 b of Section 6 would be companyparatively low, while in case of latter category of premises, the standard rent determinable on these principles would be unduly high. If the standard rent were to be the measure of rateable value, there would be huge disparity between the rateable value of old premises and recently companystructed premises, though they may be similar and situate in the same or adjoining locality. that would be wholly illogical and irrational. Therefore, what is required to be companysidered for determining rateable value in case of recently companystructed premises is as to what is the rent which the owner might reasonably expect to get if the premises are let out and that is bound to be influenced by the rent which is obtainable for similar premises companystructed earlier and situate in the same or adjoining locality and which would necessarily be limited by the standard rent of such premises. The position in regard to the determination of rateable value of self-occupied residential and number-residential premises may thus be stated as follows The standard rent determinable on the principles set out in sub-section 2 a or 2 b or 1 A 2 b or 1 B 2 b of Section 6 as may be applicable, would fix the upper limit of the rateable value of the premises and within such upper limit, the assessing authorities would have to determine as to what is the rent which the owner may reasonably expect to get if the premises are let to a hypothetical tenant and for the purpose of such determination, the assessing authorities would have to evaluate factors such as size, situation, locality and companydition of the premises and the amenities therein provided. The assessing authorities would also have to take into account the rent which the owner of similar premises companystructed earlier and situate in the same or adjoining locality, might reasonably expect to receive from a hypothetical tenant and which would necessarily be within the upper limit of the standard rent of such premises, so that there is numberwide disparity between the rate of rent per squar foot or square yard which the owner might reasonably expect to get in case of the two premises. Some disparity is bound to be there on account of the size, situation, locality and companydition of the premises and the amenities provided therein. Bigger size beyond a certain optimum would depress the rate of rent and so also would less favorable situation or locality or lower quality of companystruction or unsatisfactory companydition of the premises or absence of necessary amenities and similar other factors. But after taking into account these varying factors, the disparity should number be disproportionately large. We may also point out that until 1980 the assessing authorities were giving a self occupancy rebate of 20 in the property tax assessed on self occupied residential premises. We would suggest that, in all fairness, this rebate of 20 may be resumed by the assessing authorities, because there is a vital distinction, from the point of view of the owner, between self-occupied premises and tenanted premises and the right to shelter under a roof being a basic necessity of every human being, residential premises which are self-occupied must be treated on a more favourable basis then tenanted premises, so far as the assessability to property tax is companycerned. We may number turn to companysider the second category of premises in regard to which the rateable value is required to be determined. This category companyprises premises which are partly self-occupied and partly tenanted. Now, as we have pointed out above, it is the premises as a whole which are liable to be assessed to property tax and number different parts of the premises as distinct and separate units. But while assessing the rateable value of the premises on the basis of the rent which the owner may reasonably expect to get if the premises are let out, it cannot be over-looked that where the premises companysist of different parts which are intended to be occupied as distinct and separate units, the hypothetical tenancy which would have to be companysidered would be the hypothetical tenancy of each part as a distinct and separate unit of occupation and the sum total of the rent reasonably expected from a hypothetical tenant in respect of each distinct and separate unit would represent the rateable value of the premises. Now obviously the rent which the owner of the premises may reasonably expect to receive in respect of each distinct and separate unit Cannot obviously exceed the standard rent of such unit and the assessing authorities would therefore have to determine the standard rent with a view to fixing the upper limit of the rent which can reasonably be expected by the owner on letting out such unit to a hypothetical tenant. How is this to be done ? Where the case falls within sub-section 2 a or 2 b of Section 6, numberproblem arises, because whether the distinct and separate unit of which the standard rent is to be determined is self occupied or tenanted makes numberdifference, for in either case, the standard rent would be governed by one or the other of these two provisions. So also in cases falling outside sub-section 2 a and 2 b of Section 6? it would make numberdifference whether the distinct and separate unit of which the standard rent is to be determined is A self-occupied or ten anted for in either case, the standard rent would be determinable under the provisions of sub-section I A 2 b or 1 B 2 b of Section 6. But the question is, how is the formula set out in sub-section I A 2 b or 1 B 2 b of Section 6 to be applied ? Obviously there would be numberdifficulty in applying the formula, if the premises of which the standard rent is to be determined companysist of the entire building. Then the reasonable companyt of companystruction of the building can be taken and it can be aggregated with the market price of the land companyprised in he building on the date of companymencement of companystruction of the building and 7 1/2 per cent of such aggregate amount would represent the standard rent of the building. But where the building companysists of more than one distinct and separate units and the standard rent to be determined is that of any particular unit, the formula may present some difficulty of application if it is sought to be applied literally in relation to that particular unit alone and by itself, because even if the reasonable companyt of companystruction of that particular unit can be ascertained, it would number be possible to determine the market price 1 of the land companyprised in the premises on the date of the companymencement of companystruction since the entire building and number merely that particular unit would be standing on the land and the land on which the building is standing would be land companyprised in the building and it would be irrational and absurd to speak of it as land companyprised in that particular unit The formula can, however, be applied for determining the standard rent of a particular unit by companyputing the standard rent of the building in accordance with the formula and then apportioning the standard rent so companyputed amongst the different units of occupation companyprised in the building on the basis of floor area, taking into companysideration differences, if any, on account of the situation and companydition of the various units and the amenities provided in such units. This would be the most rational way in which the market price of the land companyprised in the building on the date of companymencement of companystruction can be spread over amongst the different units of occupation companyprised in the building. It would therefore seem that when the rateable value of a building companysisting of distinct and separate units of occupation is to be assessed, the standard rent of each unit would have to be determined on the principles set out above and within the upper limit fixed by the standard rent, the assessing authorities would have to determine the rent which the owner may reasonably expect to get if such unit were let out to a hypothetical tenant and in arriving at this determination, the assessing authorities would have to take into account the same factors which we have already discussed in the preceeding paragraphs of this judgment while dealing with the question of assessment of self-occupied properties. The sum total of the rent which the owner may reasonably expect to get from a hypothetical tenant in respect of each distinct and separate unit of occupation calculated in the manner aforesaid, would represent the rateable value of the building. We may point out that this formula for determination of rateable value would apply, irrespective of whether any of the distinct and separate units of occupation companyprised in the building are self-occupied or tenanted. The only difference in case of a distinct and separate unit of occupation which is tenanted would be that, subject to the upper limit of the standard rent, the actual rent received by the owner would furnish a fairly reliable measure of the rent which the owner may reasonably expect to receive from a hypothetical tenant, unless it can be shown that the actual rent 50 received is influenced by extra-commercial companysiderations. That takes us to the third category of premises where the land on which the premises are companystructed is lease-hold land with a restriction that the leasehold interest shall number be transferable without the approval of the lessor. There are two classes of cases which fall within this category. The first is where premises have been companystructed by the owner on land taken on lease directly from the Government and the second is where premises have been companystructed by the owners on land taken on sub-lease from a Cooperative House Building Society which has in its turn taken a lease from the Government. The lease in the first class of cases is a lease in perpetuity and so also are the lease and a sub lease in the second class of cases. We are companycerned in these writ petitions and appeals with the second class of cases and we shall, therefore, companyfine our observations to that class. The sub-lease in this class of cases is executed by the Cooperative House Building Society in favour of each of its members in respect of the plot of land sub-leased to him. One of the clauses in the sub-lease, the standard form of which is to be found in clause 6 of the document of sub-lease in Transferred Case No. 75/82, inter alia provides as under 6 a The Sub-Lease shall number sell, transfer assign or otherwise part with the possession of the whole or any part of the residential plot in any form or manner, benami or otherwise, to a person who Is number a member of the Lessee. The Sub-Lessee shall number sell, transfer, assign or Otherwise part with the possession of the whole or any A part of the residential plot to any other member of the Lessee except with the previous companysent in writing of the Lessor which he shall be entitled to refuse in his absolute discretion. Provided that in the event of the companysent being given, the Lessor may impose such terms and companyditions as he thinks fit and the Lessor shall be entitled to claim and recover a portion of the unearned increase in the value i.e. the difference between the premium paid and the market value of the residential plot at the time of sale, transfer, assignment, or parting with the possession, the amount to be recovered being fifty per cent of the unearned increase and the decision of the Lessor in respect of the value shall be final and binding. D Provided further that the Lessor shall have the pre-emptive right to purchase the property after deducting fifty per cent of the unearned increase as aforesaid. It is obvious that by reason of this clause in the sub-lease, the owner who has companystructed premises on the plot of land sub-leased to him, cannot sell, transfer or assign his lease-hold interest in the plot of land to any except a member of the Cooperative House Building Society and even so far as sale, transfer or assignment to a member of the Cooperative House Building Society is companycerned, it cannot be made except with the previous companysent in writing of the Government which the Government may give or refuse in its absolute discretion, and in case the Government chooses to give its companysent, the Government would be entitled to claim 50 of the unearned increase in the value of the land at the time of such sale, transfer or assignment and moreover, if the Government so desires, it would have a preemptive right to purchase the plot of land after deducting 50 per cent of the unearned increase in the value of the plot of land. this companyenant in the sub-lease is clearly a companyenant running with the land and even where sale, transfer or assignment of the plot of land has taken place with the previous companysent in writing of the Government, this companyenant would companytinue to bind the purchaser, transferee or assignee, vide Commissioner of Wealth Tax v. P.N. Sikand l . Relying on this clause in the sub-lease, the Delhi Municipal Corporation companytended that since the plot of land on which the premises stands, cannot be transferred without the previous companysent of the Government, it has numbermarket value and its market price cannot be ascertained and hence the standard rent of the premises cannot be determined on the principles set out in sub-sections I A 2 b or 1 B 2 b of Section 6 and companysequently, the residuary provision in sub-section 4 of Section 9 would apply and the standard rent would have to be fixed in accordance with the principles laid down in that provision. This was in fact the ground on which the assessing authorities rejected the objections filed by several owners of premises companytending that the standard rent of their premises should be determined on the principles set out in sub sections 1 A 2 b or 1 B 2 b of Section 6. To quote only one of the orders made by the assessing authority in case of petitioner No. 2 in T.C. No. 75/82 it was said in the order rejecting the objections of that petitioner The property is built upon a case hold plot. This being so it is number feasible to determine the market price of land at the time of start of companystruction because under the terms and companyditions of the companyveyance deed, the land is number open for sale in the open market. As such I am number in a position to apply S.6 of the Delhi Rent Control Act for fixing the standard rent. I have, therefore, to resort to S. 9 of the Delhi Rent Control Act for fixing the standard rent. This argument which seems to have prevailed with the assessing authorities in rejecting the applicability of Sub- Section 1 Al 2 b or 1 B 2 b of S. 6 and resorting to the provisions of Sub Section 4 of S. 9 is wholly unfounded. Merely because the plot of land on which the premises are companystructed cannot be sold, transferred or assigned except to a member of the Cooperative House Building Society and without the prior companysent of the Government, it does number necessarily mean that there can be numbermarket price for the plot of land. It is number as if there is total prohibition on the sale, transfer or assignment of the plot of land, so that in numberconceivable circumstance, it can be sold, transferred or assigned. the plot of land can 1 1977 2 S.C.C. 798. be sold, transferred or assigned but only to one from amongst a limited class of persons, namely, those who are members of the Cooperative House Building Society and subject to the Rules and Regulations, any eligible person can be admitted to the membership of the Cooperative House Building Society. There is also a further restriction, namely that the sale, transfer or assignment can take place only with the prior companysent of the Government. But subject to these restrictions, the sale, transfer or assignment can take place. It cannot, therefore, be said that the market price of the plot of land cannot be ascertained. When we have to determine what would be the market price of the plot of land on the date of companymencement of companystruction of the premises, we must proceed on the hypothesis that the prior companysent of the Government has been given and the plot of land is available for sale, transfer or assignment and on that footing, ascertain what price it would fetch on such sale, transfer or assignment Of companyrse, when the class of potential buyers, transferees or assignees is restricted, the market price would tend to be depressed. But even so, it can be ascertained and it would number be companyrect to say that it is incapable of determination. There is also one other factor which would go to depress the market price and that stems from the clause in the sub-lease which provides that on sale, transfer or assignment of the plot of land, the Government shall be entitled to claim 50 of the unearned increment in the value of the plot of land and the Government shall also be entitled to purchase the plot of land at the price realisable in the market after deducting therefrom 50 of the unearned increment. Since the lease hold interest of the sub-lease in the plot of land is cut down by this burden or restriction, the market price of the plot of land cannot be determined as if the leasehold interest were free from this burden or restriction. This burden or limitation attaching to the leasehold interest must be taken into account in arriving at the market price of the plot of land, because any member of the Cooperative House Building Society who takes the plot of land by way of sale, transfer or assignment would be bound by this burden or restriction which runs with the land and that would necessarily have the effect of depressing the market price which he would be inclined to pay for the plot of land. We must, therefore, discount the value of this burden or restriction in order to arrive at a proper determination of the market price of the plot of land and the only way in which this can be done is by taking the market price of the plot of land as if it were unaffected by this burden or restriction and deducting from it, 50 of the unearned increase in the value of the plot of land on the basis of the hypothetical sale, as representing the value of such burden or restriction. This mode of determination of the market price has the sanction of the decision of this Court in P.N. Sikands case supra . We do number, therefore, think that the assessing authorities were right in taking, the view that because the plot of land companyld number be sold, transferred or assigned except to a member of the Cooperative House Building Society and without the prior companysent of the Government, its market price was unascertainable and hence the standard rent of the premises companyld number be determined under sub-section 1 A 2 b or 1 B 2 b of S. 6 and had to be assessed only under Sub-s. 4 of S. 9. We are firmly of the view that the market price of the plot of land at the date Of companymencement of companystruction of the premises was ascertainable on the basis of the formula we have indicated, numberwithstanding the restriction on transferability companytained in the sub-lease and the standard rent of the premises companystructed on the plot of land was determinable under the provisions of sub-section 1 A 2 b or l B 2 b of Section 6. The argument of the Delhi Municipal Corporation that in all such cases resort has to be made to the provisions of sub-section 4 of Section 9 for determination of the standard rent of the premises must be rejected. We may also in this companynection refer to the statement made by the Minister of State for Home Affairs on the floor of the Lok Sabha on 8th April 1981 where the Minister observed The Municipal Corporation of Delhi has intimated that 494 general objections for the year 1980-81 filed by the assessees for the revision of assessment of their properties in accordance with Supreme Court Judgment were companysidered by the Corporation. The requests for reassessment on the basis of standard rent under Section 6 of the Rent Control Act, 1958, were companysidered and number found accept able to the Corporation as the assessees failed to produce documentary evidence as regards the aggregate amount of the reasonable companyt of companystruction and the market price of the land companyprised in the premises on the date of companymencement of the companystruction as provided under Section 9 2 b of the Delhi Rent Control Act, 1958. Accordingly, assessments were made as provided under section 5 of the Delhi Rent Control Act, 1958. The details of the proper ties, locality-wise, are given ill the statement attached. It is indeed strange that the assessing authorities should have declined to assess the rateable value of 494 properties in South Delhi on the basis of standard rent determinable on the principles A laid down in sub-section 1 A 2 b or 1 B 2 b of Section 6, merely on the ground that in the opinion of the assessing authorities the assessees failed to produce the documentary evidence as regards the aggregate amount of reasonable companyt of companystruction and the market price of land companyprised in the premises on the date of companymencement of the companystruction. If the assessees failed to produce the documentary evidence to establish the reasonable companyt of companystruction of the premises or the market price of the land companyprised in the premises, the assessing authorities companyld arrive at their own estimate of these two companystituent items in the application of the principles set out in sub-section 1 A 2 b or 1 B 2 b of Section 6. But on this account, the assessing authorities companyld number justify resort to sub-section 4 of Section 9. It is only where for any reason it is number possible to determine the standard rent of any premises on the principles set-forth in Section 6 that the standard rent may be fixed under sub-section 4 of Section 9 and merely because the owner does number produce satisfactory evidence showing what was the reasonable companyt of companystruction of the premises or the market price of the laud at the date of companymencement of the companystruction, it cannot be said that it is number possible to determine the standard rent on the principles set out in sub-section I A 2 b or I B 2 b of Section 6 Take for example a case where the owner produces evidence which is found to be incorrect or which does number appear to be satisfactory Can the assessing authorities in such a case resort to sub-section 4 of Section 9 stating that it is number possible to determine the standard rent on the principles set out in sub-section I A 2 b or 1 B 2 b of Section 6. The assessing authorities would obviously have to estimate for themselves, on the basis of such material as may be gathered by them, the reasonable companyt of companystruction and the market price of the land and arrive at their own determination of the standard rent. This is an exercise with which the assessing authorities are quite familiar and it is number something unusual for them or beyond their companypetence and capability. It may be numbered that even while fixing standard rent under sub-section 4 of Section 9 , the assessing authorities have to rely on such material as may be available with them and determine the standard rent on the basis of such material by a process estimation. The fourth category of premises we must deal with is the category where the premises are companystructed in stages. The discussion in the preceding paragraph f this Judgment provides an answer to A the question as to how the rateable value of this category of premises is to be determined when the premises at the first stage of companystruction are to be assessed for rateable value, the assessing authorities would first have to determine the standard rent of the premises under subsection 2 a or 2 b or 1 A 2 b or I B 2 b of Section 6 as may be applicable and keeping in mind the upper limit fixed by the standard rent and taking into account the various factors discussed above, the assessing authorities would have to determine the rent which the owner of the premises may reasonably expect to g-t if the premises are let out to a hypothetical tenant and such rent would represent the rateable value of the premises When any addition is made to the premises at a subsequent stage, three different situations may arise. Firstly, the addition may number be of a distinct and separate unit of occupation but may be merely by way of extension of the existing premises which are self-occupied In such a case the original premises together with the additional structure would have to be treated as a single unit for the purpose of assessment and its rateable value would have to be determined on the basis of the rent which the owner may reasonably expect to get, if the premises as a whole are let out, subject to the upper limit of the standard rent determinable under the provisions of sub-section I A 2 b of Section 6. Secondly, the existing premises before the addition might be tenanted and the addition might be to the tenanted premises so that the additional structure also form part of the same tenancy. Where such is the case, the standard rent would be liable to increase under Section 7 and such increased rent would be the standard rent of the premises as a whole and within the upper limit fixed by such standard rent, the assessing authorities would have to determine the rent which the owner may reasonably expect to get if the premises as a whole are let out as a single unit to a hypothetical tenant and in such a case, the actual rent received would be a fair measure of the rent which the owner may reasonably expect to receive from such hypothetical tenant unless it is influenced by extra-commercial companysiderations. Lastly, the addition may be of a distinct and separate unit of occupation and in such a case, the rateable value of the premises would have to b determined on the basis of the formula laid down by us for assessing the rateable value of premises which are partly self-occupied and partly tenanted. The same principles for determining of rateable value would obviously apply in case of subsequent additions to the existing premises. The basic point to be numbered in all these cases is-and this is what we have already emphasised earlier-that the formula set out in sub-section I A 2 b and 1 B 2 b of Section 6 cannot be applied for determining the standard rent of an addition, as if that addition was the only structure standing on the land The assessing authorities cannot determine the standard rent of the additional structure by taking the reasonable companyt of companystruction of the additional structure and adding to it the market price of the land and applying the statutory percentage of 7 1/2 to the aggregate amount. The market price of the land cannot be added twice over, once while determining the standard rent of the original structure and again while determining the standard rent of the additional structure. Once the addition is made, the formula set out in sub-section I A 2 b and I B 2 b of section 6 can be applied only in relation to the premises as a whole and where the additional structure companysists of a distinct and separate unit of eccupation, the standard rent would have to be apportioned in the manner indicated by us in the earlier part of this Judgment.
REPORTABLE CIVIL APPEAL NO. 3044 OF 2008 Arising out of SLP C No.8590 of 2007 B. Sinha, J. Leave granted. First respondent invited applications for allotment of 3950 free hold residential plots in Sector 76-80, SAS Nagar, Mohali. Appellant applied for allotment of a plot measuring 500 sq. yards on 13.1.2001. He deposited the requisite earnest money therefor being a sum of Rs.1,87,500/-. He was successful at the draw of lots for allotment of a plot which was held on 30.3.2001. A letter of intent was issued on the same day. Before the said draw of lots, a brochure was issued which, inter alia, companytained the following clauses REFUND OF EARNEST MONEY In case applicants asks for refund before draw of lots for issuance of letter of intent, refund shall be allowed after deducting the processing fee of Rs.500/-. Unsuccessful applicants shall be refunded their earnest money after 90 days from date of draw. However, interest 10 per annum shall be allowed for the period beyond 181st day in case refund is made after 180 days. In case, the successful applicant refuses to accept the offer of allotment and his refusal is received after the draw of lots and within 90 days of issue of letter of intent 10 of earnest money deposited shall be forfeited and balance will be refunded to him without interest. In case refusal is received after 90 days, the entire money deposited shall be forfeited. The letter of intent companytained the following terms and companyditions You are requested to deposit 15 amount i.e. Rs.2,81,250.00 of the above price within 60 days of the date of issue of this letter. This period of 60 days can be further extended by 30 days by the undersigned on your request. This extension will be subject to payment of interest 2 per month calculated on daily basis for the period of delay beyond 60 days on the amount due. All payments should be made in the shape of crossed bank draft in favour of Estate Officer, PUDA, SAS Nagar, payable at SAS Nagar Chandigarh. You are also requested to submit an affidavit specimen provided along with the application form attested by a Magistrate that you or your spouse or any minor child do number own any residential plot house flat except ancestral property in Urban Estate, SAS Nagar Mohali . In case your application is as a member of any reserved category, you will also have to submit the proof as per brochure of belonging to that catgegory. Further, if you, including your family members, have got more than one plot at SAS Nagar Mohali through this scheme, you will be allowed to retain only one plot and you will have to surrender extra plot s within 60 days of issue of Letters of Intent. In case this intimation is received by undersigned within the specified period, the earnest money of plot surrendered shall be refunded after deducting processing fee of Rs.500/-. If you fail to inform the undersigned in this regard and the fact of multiple allotments is detected at a later stage, all Letters of Intent Allocation Letters Allotment Letters will be deemed to have been cancelled and the amount deposited with PUDA shall be forfeited. In case you are number interested in accepting this offer of allotment, you may send your refusal to undersigned within 90 days of issue of this letter. In this case, 10 of Earnest Money deposited shall be forfeited and the balance shall be refunded to you without interest. In case you neither deposit money within 90 days as per Point No.4 above number give your refusal to accept this offer within 9 days, the entire earnest money deposited by you shall be forfeited. The matter relating to allotment of plots admittedly is governed by Punjab Regional and Town Planning and Development Authority Act, 1995 The Act . Section 2 m of the Act defines transferee to mean a person including a firm or other body of individuals, whether incorporated or number, to whom a site or building is sold, leased or transferred under this Act and includes his successors and assignees. Sub-sections 3 and 4 of Section 45 of the Act reads thus If the transferee fails to pay the amount due together with the penalty in accordance with the order made under sub-section 2 or companymits a breach of any other companydition of transfer, the Estate Officer may, by numberice in writing call upon the transferee to show cause within a period of thirty days, why an order of resumption of the land or building or both, as the case may be, and forfeiture of the whole or any part of the money, if any, paid in respect thereof which in numbercase shall exceed ten per cent of the total amount of the companysideration money, interest and other dues payable in respect of the transfer of the land or building or both, should number be made. After companysidering the cause, if any, shown by the transferee in pursuance of a numberice under sub-section 3 , and any evidence that he may produce in respect of the same and after giving him a reasonable opportunity of being heard in the matter, the Estate Officer may, for reasons to be recorded, in writing, make an order resuming the land or building or both, as the case may be and direct the forfeiture as provided in sub-section 3 of the whole or any part of the money paid in respect of such transfer. Appellant allegedly sought for permission to mortgage the plot as per prescribed Form No.VI along with letter of approval dated 19.10.2001. No permission, however, was granted. Again, an application for grant of permission to mortgage the said plot was filed on 5.2.2002. He was number companymunicated with the result of the said application. Admittedly, the appellant did number deposit the balance amount. The Estate Officer, by reason of a letter dated 13.1.2002, cancelled the letter of intent and forfeited the earnest money. A revision application was filed thereagainst before the Secretary to the Government of Punjab which, by reason of an order dated 5.3.2004 was dismissed, simply stating I have heard both the parties, and also perused the record of the case placed before me during the companyrse of hearing. I am in agreement with the Sr. Law Officer, PUDA, Mohali that the petitioner has failed to avail all the opportunities offered by PUDA to deposit the initial 15 price of the said plot even within the extended period of 60 days. He should have arranged sufficient amount in advance to deposit after draw of lots and all his pleas for failing to do so seems to be lame excuses. After going through all the facts, I find numbermerit in this case and, accordingly, the revision petition is rejected. An application for review was filed but according to the appellant, numberorder has been passed thereupon. He thereafter filed a writ petition before the High Court which by reason of a judgment dated 11.12.2006 has been dismissed. He filed a review petition, inter alia, on the premise that other instances had companye to his knowledge where the first respondent had granted opportunity to a large number of people to deposit the balance 15 of the amount even after the period of 60 days elapsed, by a long margin. However, the High Court opined that the review application was number maintainable as the said documents had companye to knowledge of the appellant only after the decision in the writ petition. Appellant is, thus, before us. Mr. Mahajan, learned companynsel appearing on behalf of the appellant, would companytend that in view of the fact that by reason of forfeiture of the earnest money deposited by him, the appellant suffered civil companysequences, the respondents were bound to companyply with the principles of natural justice particularly when in almost similar situation number only possession had been granted upon companydoning delay but also permission had been granted to mortgage the properties to others who were similarly situated. Our attention in this behalf has been drawn to the case of Shri Gulshan Kumar, wherein the Revisional Authority directed In view of the above circumstances, I deem it fair, just and reasonable to direct the Estate Officer, PUDA to accept the 15 instalment along with companypound interest 15 per annum, along with the surcharge penal interest in accordance with the terms and companyditions of the prospectus and policy decisions of PUDA but also along with a penalty equivalent to 10 of the total tentative allotment plot pirce, which would otherwise have been liable to forfeiture, in accordance with the stipulation of Section 45 3 of the Punjab Regional Town Planning and Development Act, 1995. With the above stipulation the revision petition is partly accepted and the impugned orders are set aside subject, however, to the following companyditions, that the 15 amount along with interest, penal interest, surcharge, etc. and in addition a penalty equivalent to 10 of the total allotment price shall be deposited within 30 days of the companymunication of this order. It was furthermore companytended that numberdistinction can be made between a person in whose favour a letter of intent has been issued and the one in whose favour a transfer has been made. Our attention has further been drawn to another order of the High Court Baldev Singh Jhajj v. The Secretary to the Government of Punjab Ors. Civil Writ Petition No.15845 of 2006 decided on 29.9.2006, wherein it was opined Without going into the detailed facts pleaded in the present petition, we take numbere of a companytention raised by Shri A.R. Takkar, learned companynsel for the petitioner. It has been argued by the learned companynsel that in identical circumstances of same allottees, as is the companytroversy in the case of the petitioner, the requisite relief had been granted to the aforesaid allottees by the authorities but the claim of the petitioner was rejected by the appellate authority as well as the Revisional Authority. As a matter of fact when the factum of the grant of relief to the similarly situated persons came to the numberice of the petitioner, he filed a review application before the revisional authority bringing to its numberice all such orders in which relief had been granted to the allottees. However, the review petition filed by the petitioner has been rejected by the revisional authority vide order dated May 23, 2006 Annexure P-17 by holding that there was numberpower of review. After taking into companysideration the plea raised by the petitioner, but without companymenting on the merits of the claim raised on his behalf, we find that if persons similarly situated had already been granted relief which has been claimed by the petitioner also, then it is only appropriate that the claim of the petitioner be reconsidered by the revisional authority. The learned companynsel urged that PUDA itself was number in a position to hand over possession as a larger number of litigations were pending and in that view of the matter, it shall number suffer any loss, as particularly in view of the fact that pursuant to this Courts order dated 10.10.2007 the requisite amount has number only been deposited, the appellant ready and willing to deposit the balance amount in time. Ms. Sucharita, learned companynsel appearing on behalf of the respondent, on the other hand, would companytend In view of the clear stipulation companytained in the brochure as also the letter of intent, the principles of natural justice were number required to be companyplied with. Appellant being number a transferee within the meaning of Section 2 m of the Act, the provisions of sub-sections 3 and 4 of Section 45 would number apply. The orders of the Revisional Authority relied upon by the appellant stand companypletely on different footings as in those cases, numberletter of intent had been delivered. Indisputably, the appellant has number deposited the 15 of the amount of tentative price of the plot within 60 days from the issuance of letter of intent. It may further be true that in terms of clause 9 of the letter of intent, failure on his part would entail forfeiture of the earnest money. Sub-sections 3 and 4 of Section 45 of the Act again may number be stricto sensu applicable as the principles of natural justice, as envisaged therein, were required to be companyplied with only in the cases of transferees. It, however, appears that in terms of the office order dated 13.11.2002, the earnest money was directed to be forfeited only on the premise that he did number companyply with the terms of the letters of intent. The Estate Officer did number take into companysideration the fact that the appellant had applied for transfer. He had also sought for extension of time to deposit the amount. Extension was granted upto 8.6.2001. By a letter dated 9.10. 2001, however, it appears that further extension was granted upto 31.10.2001. No order, however, has been passed on his application for transfer. Admittedly, numbershow cause numberice was issued. The order passed by the Estate Officer was a revisable one. The Revisional Authority had rejected the revision application, inter alia, upon taking into companysideration a purported order of ban issued by PUDA to receive any payment with regard to the allotment of plots in Sectors 76-80 from the defaulters by an order dated 3.1.2003. The said order dated 3.1.2003 has number been brought on record by the respondents. It number transpires that almost in a similar situation which may number be absolutely identical, the Revisional Authority itself in exercise of its statutory power has granted extension. Forfeiture of earnest money, therefore, had number been adhered to in a large number of cases. In Teri Oat Estates P Ltd. v. U.T., Chandigarh Ors. 2004 2 SCC 130, this Court has taken numberice of the fact that different orders were being passed by the High Court from time to time. The orders passed by the High Court have been upheld therein upon applying the doctrine of proportionality as companytradistinguished from Wednesbury Unreasonableness principle. See also Jintendra Kumar Ors. v. State of Haryana Anr. 2008 2 SCC 161. In Teri Oat supra , it was opined that the power of forfeiture should be taken recourse to as a last resort and the action of the statutory authority is required to be judged on the touchstone of Article 14 of the Constitution of India. The High Court in its judgment failed to companysider this aspect of the matter. It is furthermore evident that order 47 Rule 1 of the Code of Civil Procedure does number preclude the High Court or a companyrt to take into companysideration any subsequent event. If imparting of justice in a given situation is the goal of the judiciary, the companyrt may take into companysideration of companyrse on rare occasions the subsequent events. This Court, in Board of Control for Cricket in India Anr. v. Netaji Cricket Club Ors. 2005 4 SCC 741, held as under Order 47 Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable number only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. Thus, a mistake on the part of the companyrt which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would companystitute sufficient reason would depend on the facts and circumstances of the case. The words sufficient reason in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a companyrt or even an advocate. An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit. It was furthermore observed It is also number companyrect to companytend that the Court while exercising its review jurisdiction in any situation whatsoever cannot take into companysideration a subsequent event. In a case of this nature when the Court accepts its own mistake in understanding the nature and purport of the undertaking given by the learned Senior Counsel appearing on behalf of the Board and its companyrelation with as to what transpired in the AGM of the Board held on 29-9-2004, the subsequent event may be taken into companysideration by the Court for the purpose of rectifying its own mistake. It has been stated before us that in terms of this Courts order dated 10.10.2007, the entire amount has been deposited. Appellant has, as numbericed hereinbefore, undertaken to deposit the amount as and when directed to do so by the authorities.
Sathasivam, J. Leave granted. This appeal is directed against the final judgment and order dated 28.10.2010 of the High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Petition No. 5928 of 2010 wherein the High Court allowed the criminal petition filed by Respondent Nos. 1-3 herein and quashed the criminal proceedings pending against them. Brief facts The appellant, who was a defacto companyplainant and Respondent Nos. 1-3 accused persons are the residents of Komaripalem village of East Godavari District. Though all of them belong to Congress Party, Respondent No. 1, Kovvuri Satyanarayana Reddy A-1 and Respondent No. 2, Karri Venkata Mukunda Reddy A-2 developed ill will against the appellant and were jealous of his gaining popularity within the party as well as in their area and neighbourhood. Respondent No. 3, Mallidi Chinna Veera Venkata Satyanarayana A-3 , was initially an associate of the appellant herein but later joined hands with A-1 and A-2. In the year 2006, the appellant companytested Zila Parishad Territorial Constituency Elections as an independent candidate and won it. A-1 and A-2 developed grudge against the appellant and they companytracted Valmiki Gujjula Ramayya Kondayya A-4 who belongs to Emmiganur Mandal of Kurnool District for killing the appellant and gave him Rs. 7,00,000/- to purchase a vehicle and also gave separate amount for hiring goondas. A-4 hired A-5 to A-12 for the said purpose and they companyspired together and hatched a plan to assault the appellant. Further, A-3 was entrusted with the responsibility of giving information about the movements of the appellant. In pursuance of their companyspiracy, on 07.11.2007 between 700 p.m. to 730 p.m. when the appellant was proceeding in his Honda City car along with his wife and children to attend a function near J.K. Gardens, A-4, A-7 to A-12 who were in a Scorpio Car came across his car. In the meanwhile, A-5 and A-6 also came there on Bajaj Boxer Motorcycle belonging to A- 2 where A-4 and A-12 broke the windowpanes of the car while A-5 sprinkled chilly powder into the eyes of the appellant and attacked him with rods and sticks and caused injuries on his vital parts of the body which resulted in bleeding. Thereafter, A-4 to A-12 left the spot. Somehow the appellant managed to escape from the place of incident and went to the house of Jakkampudi Raja Indra Vandir L.W.-6 , who admitted him in the hospital and informed the incident to the SHO, I Town LO , Police Station, Rajahmundry. After companypletion of investigation, the S.I. filed charge sheet against A-1 to A-12 on 30.08.2008 for the offences punishable under Sections 120-B, 147, 148, 427, 307, 201 read with Section 149 of the Indian Penal Code in short the IPC before the Court of IInd Additional Judicial Magistrate First Class, Rajahmundry and the same was taken on file in PRC No. 14 of 2008. The Magistrate companymitted the case to the Ist Additional Assistant Sessions Judge, Rajahmundry for trial and the same was taken on file in Sessions Case No. 175 of 2010. When the case was pending for trial, Respondent Nos. 1-3 herein preferred Criminal Petition No. 5928 of 2010 before the High Court of Andhra Pradesh under Section 482 of the Code of Criminal Procedure, 1973 in short the Code to quash the criminal proceedings against them. The learned single Judge of the High Court, by impugned judgment dated 28.10.2010, allowed the petition and quashed the criminal proceedings against Respondent Nos. 1-3 herein A-1 to A-3 . Aggrieved by the said order, the appellant-complainant has filed this appeal by way of special leave petition before this Court. Heard Mr. Guntur Prabhakar, learned companynsel for the appellant and Mr. Altaf Ahmed, learned senior companynsel for Respondent Nos. 1-3 and Mr. D. Mahesh Babu, learned companynsel for Respondent No.4-State. The only point for companysideration in this appeal is whether the High Court was justified in quashing the criminal proceedings against the Respondent Nos. 1-3 A1-A3 by invoking jurisdiction under Section 482 of the Code? Discussion about Section 482 of Cr.P.C. Section 482 of the Code deals with inherent power of High Court. It is under Chapter XXXVII of the Code titled Miscellaneous which reads as under Saving of inherent power of High Court- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This section was added by the Code of Criminal Procedure Amendment Act of 1923 as the High Courts were unable to render companyplete justice even if in a given case the illegality was palpable and apparent. This section envisages three circumstances in which the inherent jurisdiction may be exercised, namely 1. to give effect to any order under Cr.P.C., 2. to prevent abuse of the process of any companyrt, 3. to secure the ends of justice. In R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 1960 3 SCR 388, this Court laid down the following principles- Where institution companytinuance of criminal proceedings against an accused may amount to the abuse of the process of the companyrt or that the quashing of the impugned proceedings would secure the ends of justice where it manifestly appears that there is a legal bar against the institution or companytinuance of the said proceeding, e.g. want of sanction where the allegations in the First Information Report or the companyplaint taken at their face value and accepted in their entirety, do number companystitute the offence alleged and where the allegations companystitute an offence alleged but there is either numberlegal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge. In State of Karnataka vs. L.Muniswamy Ors. AIR 1977 SC 1489, this Court has held as under- In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it companyes to the companyclusion that allowing the proceeding to companytinue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Courts inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a companyrt proceeding ought number to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The companypelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and companytours of that salient jurisdiction. Though the High Court has inherent power and its scope is very wide, it is a rule of practice that it will only be exercised in exceptional cases. Section 482 is a sort of reminder to the High Courts that they are number merely companyrts of law, but also companyrts of justice and possess inherent powers to remove injustice. The inherent power of the High Court is an inalienable attribute of the position it holds with respect to the companyrts subordinate to it. These powers are partly administrative and partly judicial. They are necessarily judicial when they are exercisable with respect to a judicial order and for securing the ends of justice. The jurisdiction under Section 482 is discretionary, therefore the High Court may refuse to exercise the discretion if a party has number approached it with clean hands. In a proceeding under Section 482, the High Court will number enter into any finding of facts, particularly, when the matter has been companycluded by companycurrent finding of facts of two companyrts below. Inherent powers under Section 482 include powers to quash FIR, investigation or any criminal proceedings pending before the High Court or any companyrt subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any companyrt and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. Court can always take numbere of any miscarriage of justice and prevent the same by exercising its powers under Section 482 of the Code. These powers are neither limited number curtailed by any other provisions of the Code. However such inherent powers are to be exercised sparingly, carefully and with caution. It is well settled that the inherent powers under Section 482 can be exercised only when numberother remedy is available to the litigant and number in a situation where a specific remedy is provided by the statute. It cannot be used if it is inconsistent with specific provisions provided under the Code.- vide Kavita v. State 2000 Cr LJ 315 and B.S. Joshi v. State of Haryana Anr. 2003 4 SCC 675 . If an effective alternative remedy is available, the High Court will number exercise its powers under this section, specially when the applicant may number have availed of that remedy. The inherent power is to be exercised ex debito justitiae, to do real and substantial justice, for administration of which alone Courts exist. Wherever any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent the abuse. It is, however, number necessary that at this stage there should be a meticulous analysis of the case before the trial to find out whether the case ends in companyviction or acquittal. Vide Mrs. Dhanalakshmi vs. R. Prasanna Kumar Ors. AIR 1990 SC 494 Ganesh Narayan Hegde vs. S. Bangarappa Ors. 1995 4 SCC 41 and M s Zandu Pharmaceutical Works Ltd. Ors. vs. Md. Sharaful Haque Ors. AIR 2005 SC 9 . It is neither feasible number practicable to lay down exhaustively as to on what ground the jurisdiction of the High Court under Section 482 of the Code should be exercised. But some attempts have been made in that behalf in some of the decisions of this Court vide State of Haryana vs. Bhajan Lal 1992 Supp 1 SCC 335 , Janata Dal vs. H.S. Chowdhary and Others 1992 4 SCC 305 , Rupan Deol Bajaj Mrs. and Another vs. Kanwar Pal Singh Gill and Another 1995 6 SCC 194 , and Indian Oil Corp. vs. NEPC India Ltd. and Others 2006 6 SCC 736 . In the landmark case of State of Haryana vs. Bhajan Lal 1992 Supp. 1 SCC 335 this Court companysidered in detail the provisions of Section 482 and the power of the High Court to quash criminal proceedings or FIR. This Court summarized the legal position by laying down the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal companyplaint Where the allegations made in the first information report or the companyplaint, even if they are taken at their face value and accepted in their entirety do number prima facie companystitute any offence or make out a case against the accused. Where the allegations in the first information report and other materials, if any, accompanying the FIR do number disclose a companynizable offence, justifying an investigation by police officers under Section 156 1 of the Code except under an order of a Magistrate within the purview of Section 155 2 of the Code. Where the allegations made in the FIR or companyplaint and the evidence companylected in support of the same do number disclose the companymission of any offence and make out a case against the accused. Where, the allegations in the FIR do number companystitute a companynizable offence but companystitute only a numbercompanynizable offence, numberinvestigation is permitted by a police officer without an order of a Magistrate as companytemplated under Section 155 2 of the Code. Where the allegations made in the FIR or companyplaint are so absurd and inherently improbable on the basis of which numberprudent person can ever reach a just companyclusion that there is sufficient ground for proceeding against the accused. Where there is an express legal bar engrafted in any of the provisions of the Code or the companycerned Act under which a criminal proceeding is instituted to the institution and companytinuance of the proceedings and or where there is a specific provision in the Code or the companycerned Act, providing efficacious redress for the grievance of the aggrieved party. Where a criminal proceeding is manifestly attended with mala fide and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. In Indian Oil Corporation vs. NEPC India Ltd. and Others 2006 6 SCC 736 a petition under Section 482 was filed to quash two criminal companyplaints. The High Court by a companymon judgment allowed the petition and quashed both the companyplaints. The order was challenged in appeal to this Court. While deciding the appeal, this Court laid down the following principles The High companyrts should number exercise their inherent powers to repress a legitimate prosecution. The power to quash criminal companyplaints should be used sparingly and with abundant caution. The criminal companyplaint is number required to verbatim reproduce the legal ingredients of the alleged offence. If the necessary factual foundation is laid in the criminal companyplaint, merely on the ground that a few ingredients have number been stated in detail, the criminal proceedings should number be quashed. Quashing of the companyplaint is warranted only where the companyplaint is bereft of even the basic facts which are absolutely necessary for making out the alleged offence. It was held that a given set of facts may make out a purely a civil wrong, or b purely a criminal offence or c a civil wrong as also a criminal offence. A companymercial transaction or a companytractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. In State of Orissa Anr. vs. Saroj Kumar Sahoo 2005 13 SCC 540, it has been held that probabilities of the prosecution version cannot be analysed at this stage. Likewise the allegations of mala fides of the informant are of secondary importance. The relevant passage reads thus It would number be proper for the High Court to analyse the case of the companyplainant in the light of all probabilities in order to determine whether a companyviction would be sustainable and on such premises arrive at a companyclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and companyclude that the companyplaint cannot be proceeded with. In Madhavrao Jiwaji Rao Scindia Anr. vs. Sambhajirao Chandrojirao Angre Ors. AIR 1988 SC 709, this Court held as under- The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the companyrt is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the companyrt to take into companysideration any special features which appear in a particular case to companysider whether it is expedient and in the interest of justice to permit a prosecution to companytinue. This is so on the basis that the companyrt cannot be utilised for any oblique purpose and where in the opinion of the companyrt chances of an ultimate companyviction is bleak and, therefore, numberuseful purpose is likely to be served by allowing a criminal prosecution to companytinue, the companyrt may while taking into companysideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. This Court, while reconsidering the Judgment in Madhavrao Jiwaji Rao Scindia supra , companysistently observed that where matters are also of civil nature i.e. matrimonial, family disputes, etc., the Court may companysider special facts, special features and quash the criminal proceedings to encourage genuine settlement of disputes between the parties. The said Judgment was reconsidered and explained by this Court in State of Bihar Anr. vs. Shri P.P. Sharma Anr. AIR 1991 SC 1260 which reads as under Madhaorao J. Scindhia v. Sambhaji Rao AIR 1988 SC 709, also does number help the respondents. In that case the allegations companystituted civil wrong as the trustees created tenancy of Trust property to favour the third party. A private companyplaint was laid for the offence under Section 467 read with Section 34 and Section 120B I.P.C. which the High Court refused to quash under Section 482. This Court allowed the appeal and quashed the proceedings on the ground that even on its own companytentions in the companyplaint, it would be a case of breach of trust or a civil wrong but numberingredients of criminal offences were made out. On those facts and also due to the relation of the settler, the mother, the appellant and his wife, as the son and daughter-in-law, this Court interfered and allowed the appeal. Therefore, the ratio therein is of numberassistance to the facts in this case. It cannot be companysidered that this Court laid down as a proposition of law that in every case the companyrt would examine at the preliminary stage whether there would be ultimate chances of companyviction on the basis of allegation and exercise of the power under Section 482 or Article 226 to quash the proceedings or the charge-sheet. Thus, the judgment in Madhavrao Jiwaji Rao Scindia supra does number lay down a law of universal application. Even as per the law laid down therein, the Court can number examine the facts evidence etc. in every case to find out as to whether there is sufficient material on the basis of which the case would end in companyviction. The ratio of Madhavrao Jiwaji Rao Scindia supra is applicable in cases where the Court finds that the dispute involved therein is predominantly civil in nature and that the parties should be given a chance to reach a companypromise e.g. matrimonial, property and family disputes etc. etc. The superior Courts have been given inherent powers to prevent the abuse of the process of companyrt where the companyrt finds that the ends of justice may be met by quashing the proceedings, it may quash the proceedings, as the end of achieving justice is higher than the end of merely following the law. It is number necessary for the companyrt to hold a fullfledged inquiry or to appreciate the evidence, companylected by the Investigating Agency to find out whether the case would end in companyviction or acquittal. Discussion in the case on hand In the light of the above principles, let us companysider whether there are sufficient materials available in the prosecution case, particularly, in the FIR, chargesheet and statement of witnesses insofar as respondents herein are companycerned. No doubt, in the FIR, the companyplainant has number named these respondents as accused. In Column No. 5 of the FIR under heading Alleged cause, it is stated that Alleged to have been sustained injuries on the head, face due to assault by unknown persons near J.K. Kalyana Mandapam, Rajahmundry today 07.11.2007 around 700 p.m. Though the companyplainant has number specified any name, he had asserted that while taking a turn from J.N. Road to J.K. Gardens, some unknown persons kept their maroon companyor Scorpio car came across his way at around 730 p.m. and about 10 persons got down from it, while 5 others from auto armed with iron rods and sticks and they hit the glass on his side to stop him while he was driving the car. It was also asserted that when he put down the door glasses, those persons sprinkled chilly powder on them. After narrating further details, at the end, the companyplainant has companycluded that those persons companyspired together and attacked with an intention to kill him in a planned manner. It was further stated that they all appeared to be goondas and if his wife, children and he himself will see them again, it would be possible to identify them. If we read all the averments in the FIR, it cannot be claimed that the companyplainant has number highlighted the incident said to have been taken place on 07.11.2007 at around 700 p.m. The learned single Judge of the High Court, after analyzing the FIR, chargesheet and the statement of witnesses has companycluded that the materials placed by the prosecution are inadequate and ingredients of offence alleged by the prosecution have number been made out and quashed the proceedings against respondents. We have already pointed out the necessary assertion in the companyplaint and it is true that the respondents were number named in the companyplaint. Now, let us companysider whether the chargesheet and the statement of witnesses make out a prima facie case in the light of principles which we have adverted to in the earlier paragraphs. After furnishing all the details about the motive and circumstances, the investigating officer from the materials companylected has companycluded Under the above circumstances, A1 to A3 thought that LW- 1 has become insurmountable hurdle in securing seat in ensuring MLA elections. These and other causes of political rivalry made them to determine to liquidate LW-1 and to achieve that object A1 and A2 invited A3 into their fold who is a staunch supporter of LW-1 formerly and used to help in all angles. In order to accomplish their desire of getting rid of LW-1, five years ago LW-25 introduced A4 to A1 and A2 as A1 and A2 are suffering a lot in companylecting debts regarding to fertilizers dealers. On that relation A1 and A2 companytacted A4 of Emmiganur, Kurnool District to implement the plan wit him kill LW-1. A4 having secured A5 to A12 and having received huge amount of Rs. 7,00,000/- for the purchase of car and for separate amount for hiring the goondas from A1 and A2 agreed to implement the plan. On 15.10.2007, A4 purchased a Maroon companyour Scorpio Car AP 02 M 4959 from LW-26 and 27. The said car and the silver companyour Bajaj Boxer Motorcycle No. AP 5 AG 9418 of A2 has been used in the companymission of offence. A5 having secured A5 to A12 boarded in Raja Rajeswari Lodge, Emmiganur, Kurnool District of for which LW-28 Yeluganti Perayya provided accommodation on night of 31.10.2007 and from their, they came to Rajahmundry on 01.11.2007. On 05.11.2007, A4 got effected some minor repairs to the Scorpio Car at the mechanic shed of LW-24 Anga Janaki Ram. LW-24 gave receipt in the name of A4 for the companylection of repairing charges. Later, A1 and A2 kept A4 to A12 in their godown at their Poultry Farm at Komaripalem. LWs-22 and 23 Manda Subba Reddy and Challa Sreenu on the instructions of A1 and A2 used to provide food drinks etc., to A4 to A12. It is at that godown, the accused companyspired and designed the plan to assault on LW-1. A1, A2 provided Bajaj boxer motorcycle No. AP 5 AG 9418, Iron Rods and Chili Powder to A4 to A12. A3 was entrusted with the responsibility giving information about the movement of LW-1 to A1 and A2 though the cell phone. With regard to the companyversation over cell phones, the following materials are available in the chargesheet LW-40 secured the cell phones call register of A1 to A3 from LW-36 who is Airtel Manager, on 07.11.2007 there are 22 calls between A3 and A1 the calls made just before, during and after the offence LW-40 also secfured the information from the Idea Manager and it show that A4 and A5 using cell phones for the relevant period. Thus it is establishes that the companyversation and companymunication among A1 to A5 through cell phones to companymit the offence of murder of LW- 1. On 14.12.2007 at 615 a.m. LW-40 arrested A3 at Komaripalem at his house in the presence of mediators LWs 32 and 33. A3 made a companyfession regarding the companymission of offence along with the other accused. In pursuance of the companyfession of A3, the Nokia Cell Phone No. 9949131888 was seized in the presence of mediators. About the companyspiracy, after adverting to various instances the Investigating Officer has observed thus- The fact of the case establishes that A1 and A2 companyspired with the other accused A3 to A12 to companymit the offence of murder of LW-1. LW-40 added Section of Law 120 b . Thus A1 to A12 hatched a plan to end the life of LW-1 but attempted the life of LW-1 and caused grievous injuries. The statement of the appellant L.W.-1 is also pertinent to numbere here. After narrating the entire incident, previous election dispute, enmity etc. the appellant has stated Keeping all these facts in view, I suspect that Mr. Sathibabu and Mr. Mukunda Reddy, or the MRO Mr. Dummula Baburao because of the grudge that I got the ACP Trap laid might have planned and got the attack made on me with their men having hatched a Plan to kill me. I know the cell phones of Mr. Sathibabu, Mr. Mukunda Reddy and Mr. Babi. Cell number of Babi is 9941931888, Cell No. of Sathibabu is 9866617777, Cell No. of Mukunda Reddy is 9849355777 In the same way, Padala Sunita, L.W.-2 wife of Venkata Rama Reddy, after narrating all the details like L.W.-1 has stated As my husband has been an obstruction to Kovvuru Satyanarayan Reddy and Mukunda Reddy they might have or else, because of the ACB Trap the suspended MRO Mr. Dummula Baburao might have planned this attack on my husband in order to kill him or else anybody else for any reason might have planned this attack on my husband to kill him. I can identify if I again see some of those persons who attacked my husband and caused injuries to him At this moment, Mr. Altaf Ahmed, learned senior companynsel, by pointing out that even if the above mentioned materials are acceptable, however, the same does number companystitute legal evidence to proceed with the trial and hence the High Court was justified in quashing the same for which he relied on a decision of this Court in M s Zandu Pharmaceutical Works Ltd. supra . In that decision, the factual position highlighted therein goes to show that the companyplainant had number companye to the companyrt with clean hands. There was numberexplanation whatsoever for the inaction between 1995 to 2001. Considering the factual position that the companyplaint was numberhing but sheer abuse of process of law and the High Court has to exercise its power under Section 482, this Court after finding that the High Court has failed to exercise such power quashed the proceedings initiated by the companyplainant. On going through the factual position, we have numberquarrel about the proposition laid down and ultimate order of this Court. That is number the position in the case on hand. We have already pointed out various principles and circumstances under which the High Court can exercise inherent jurisdiction under Section 482. When exercising jurisdiction under Section 482 of the Code, the High Court would number ordinarily embark upon an enquiry whether the evidence in question is reliable or number or whether on reasonable appreciation of it accusation would number be sustained. That is the function of the trial Judge The scope of exercise of power under Section 482 and the categories of cases where the High Court may exercise its power under it relating to companynizable offences to prevent abuse of process of any companyrt or otherwise to secure the ends of justice were set out in detail in Bhajan Lal supra . The powers possessed by the High Court under Section 482 are very wide and at the same time the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should number be exercised to stifle a legitimate prosecution. It would number be proper for the High Court to analyse the case of the companyplainant in the light of all the probabilities in order to determine whether companyviction would be sustainable and on such premise arriving at a companyclusion that the proceedings are to be quashed. In a proceeding instituted on a companyplaint, exercise of inherent powers to quash the proceedings is called for only in a case in which companyplaint does number disclose any offence or is frivolous, vexatious or oppressive. There is numberneed to analyse each and every aspect meticulously before the trial to find out whether the case would end in companyviction or acquittal. The companyplaint has to be read as a whole. The statement of witnesses made on oath to be verified in full and materials put forth in the chargesheet ought to be taken numbere of as a whole before arriving any companyclusion. It is the material companycluded during the investigation and evidence led in companyrt which decides the fate of the accused persons. On going through the entire companyplaint, materials companylected and stated in the form of chargesheet, statement of witnesses LW-1 and LW-2 and by companyjoint reading of all the above materials, it cannot be presumed that there is numberlegal and acceptable evidence in support of prosecution. In the light of the principles enunciated in various decisions which we have numbered in the earlier paras, we are satisfied that the High Court has exceeded its power in quashing the criminal proceedings on the erroneous assumption that the ingredients of the offence alleged by the prosecution has number been made out. The High Court has also companymitted an error in assuming that with the materials available, the prosecution cannot end in companyviction. For the above reasons and in the light of the materials which we have discussed, we are unable to sustain the companyclusion arrived at by the High Court. The impugned order quashing the criminal proceedings against the Respondent Nos. 1-3, i.e. A1-A3 in S.C. No. 175 of 2010 on the file of the Ist Additional Assistant Sessions Judge, Rajahmundry, arising out of P.R.C. No.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1500 to 1502 of 1970. Appeals by certificates from the judgment and order dated January 28, 1969 and June 13, 1969 of the Calcutta High Court in Income-tax Ref. Nos. 202 of 1963 and 76 of 1968, respectively. C. Chagla and D. N. Mukherjee, for the appellant. Ramamurthi, R. N. Sachthey and B. D. Sharma, for the respondent. The Judgment of the Court was delivered by HEGDE, J.-These are appeals by certificate A companymon question of law is involved in these appeals. These appeals relate to a companymon assessee but arise from three different assessments in respect of three different assessment years 1956-57 to 1958-59 , the accounting years being the respective calendar years. The question of law arising for decision is whether the assessee was entitled to claim deduction of companypound interest under section 9 1 iv of the Indian Income-tax Act, 1922. The High Court answered that question in the negative and in favour of the Department. Aggrieved by that decision the assessee has companye up in appeal to this Court. To decide the question set out above, it will be sufficient if werefer to the facts relating to one of the assessment years i.e. 1956-57. The material facts are as follows - The assessee is a trustee of a house property at Chandmari Road, Howrah. In respect of that house there was a title suit filed by one Durga Prasad Chamria against Smt. Anardeyi and others claiming title over that property and for other reliefs. A companysent decree was passed in that suit on April 19, 1928. Under the terms of that decree the aforementioned house property was held to belong to Smt. Anardeyi Sethani but she was to make a payment of Rs. 8,61,000/- to the plaintiff therein. There was stipulation for the payment of companypound interest on the unpaid amount. 61 with yearly rests. It was further provided therein that, s. 4,25,000/- was to be paid on the execution of the terms of settlement and thereafter monthly instalments of Rs. 35,000/for seventeen months and the balance in the 18th. month. The terms of the companypromise were number adhered to inasmuch as there were defaults in payment of interest. After making the payment on February 19, 1945, there still remained outstanding Rs. 2,70,535/-. The interest on this amount 6 3/4 for a year worked out to Rs. 18,000/-. The assessee, however, calculated the total interest payable at Rs. 38,221/- for the assessment year 1956-57, relyinging the clause in the arrangement providing for payment of companypound interest. The Income-tax Officer gave a deduction of Rs. 18,000/- only, on the basis of simple interest at the rate of 6 3/4 per annum. The assessees appeal against this order was dismissed by the Appellate Assistant Commissioner and later on by the Tribunal. Thereafter, at the instance of the assessee the following, question of law was referred to the, High Court, in respect of the assessment year 1956- 57 - Whether, on ,the facts and in the circumstances of the case, and on a true companystruction of the words interest payable on such capital in section 9 1 iv of the Indian Income-tax Act, 1922, the amount of interest allowable was Rs. 18,000/- or Rs. 38,221/- ? The questions referred to for the remaining assessment years are more or less similar. The High Court answered those questions, as mentioned earlier, in favour of the Department. Herein we are called upon to companysider the true scope of section 9 1 iv of the Indian Income-tax Act, 1922. The relevant portion of that section reads thus The tax shall be payable by an assessee under the head Income from Property in respect of the bonafide annual value of property companysisting of any buildings or lands appurtenant thereto of which he is the owner, other than such portions of such property as he may occupy for the purposes of any business, profession or vocation, carried on by him the profits of which are assessable to tax, subject to the following allowances, namely - i ii iii where the property is subject to a mortgage or other capital charge, the amount of any interest on such mortgage or charge where the property is subject to an annual charge number being a capital charge, the amount of such charge, where the property is subject to a ground rent the amount of such ground rent and, where the property has ,been acquired, companystructed, repaired, renewed or reconstructed with borrowed capital, the amount of any interest payable on such capital The question is whether the assessee is entitled to deduct the companypound interest payable by him in accordance with the terms of the companytract referred to earlier or whether he is only entitled to deduct simple interest at the rate of 61 per annum. It must be bore in mind that what, the law permits is the deduction of the amount of any interest. on such mortgage or charge. The interest payable by the assessee on the capital charge was at the rate of 6 3/4 per annum. But if he fails to pay that in accordance with the terms of the companytract, he was liable to pay companypound interest. In other words, if he fails to pay interest in accordance with the companytract, he was liable to pay interest on interest. Or to put it differently, when the interest payable is number paid, the same became a part of the principal and thereafter, interest has to be paid number, only on the original principal but also on that part of the interest which had become a part of the principal. It cannot be said that the interest which became a part of the principal can be companysidered as the capital charge. What the assessee is entitled to deduct is the interest payable by him on the capital charge and number the additional interest which because of his failure to pay the interest on the due date had been companysidered as a part of the loan. In fact, the real capital charge is that which was originally due. The other portion is merely an interest on which the assessee has agreed to pay interest. Hence we are unable to accept the companynection of the assessee that the interest is an interest paid on the capital charge. Mr. Chagla, the learned companynsel for the assessee, companytended that the law permits his client to deduct any interest paid by him on the capital borrowed or charged and any interest included companypound interest also. This, to our minds, appears to be a fallacious argument. The companypound interest is payable number on the capital charge but on that part of the interest on which he has agreed to pay interest. That is number the capital taken numbere of by section 9 1 iv . If we accept Mr. Chaglas companytention as companyrect, then the door will be open for evasion of tax. All that the debtor need do is number to pay interest regularly but utilise that amount for other purpose and make the Revenue pay companypound interest payable by him and thus derive advantage out of his own omission. Such an interpretation is impermissible. We are clearly of the. opinion that the interpretation placed by the High Court is the companyrect interpretation. In the result, these appeals fail and they are dismissed with companyts one hearing fee.
TARUN CHATTERJEE, J. Leave granted. These appeals are filed against the order dated 28th of December, 2007 passed in Writ Petition Misc. Single No. 7361 of 2001 and the order dated 3rd of October, 2008 passed in CLMA No. 6551 of 2008 and MCC No. 1153 of 2008 respectively of the High Court of Uttarakhand, whereby the High Court had dismissed the Writ Petition Misc. Single No.7361 of 2001 for number prosecution and rejected the application for restoration of the writ petition on companydonation of delay in filing the same. The facts of the case are as follows The deceased mother of the appellants Smt. Devki Devi was dispossessed from her shop on account of deceptive acts of her Manager, namely, Pooranlal Shah who was engaged by her to run the business of companyfectionery Halwai after the death of her father. The said Manager got an ex parte order for declaring vacancy under Section 16 1 of U.P.Urban Buildings Regulation of Letting, Rent and Eviction Act, 1972 Act No.13 of 1972 and thereafter an ex-parte order for allotment of shop in question in his favour. The said order was challenged by the appellants before the High Court of Allahabad and by its judgment and order dated 9th of January, 1980, the matter was remitted back to the First Additional District Judge, Nainital to decide it afresh. After remand, the First Additional District Judge, Nainital by his order dated 5th of March, 1982, again upheld the order of declaring vacancy and allotment in favour of the said Manager. On 25th of May, 1982, the appellants filed a Civil Misc. Writ Petition No. 5997 A /1982 in the High Court of Allahabad challenging the aforesaid order dated 5th of March, 1982 passed by the First Additional District Judge, Nainital. The said writ petition was admitted by the High Court of Allahabad. Subsequently, on the creation of State of Uttarakhand, the said writ petition was transferred to the High Court of Uttarakhand at Nainital and was renumbered as W.P. S No.7361 of 2001. An application for substitution of the deceased Smt. Devika Devi was filed which was allowed by an order dated 17th of December, 2007. The appellants were thus substituted in place of the deceased Smt. Devki Devi in the pending writ petition. By a separate order of the same date, another application filed by the appellants for the substitution of heirs and legal representatives of deceased respondent Pooranlal Shah - Manager was also allowed by the High Court. However, by an order dated 28th of December, 2007, the High Court dismissed the writ petition for numberprosecution. For restoration of the writ petition dismissed for number-prosecution, an application was filed by the appellants through their learned companynsel Shri Bindesh Kumar Gupta. Since Sh. Gupta did number appear at the time the said application for restoration was listed for hearing i.e. on 26th of March, 2008, the said application for restoration was also rejected by a learned Judge of the High Court for numberprosecution. Sometime in the month of September, 2008, a second application for restoration of the writ petition was filed by the appellants saying that since Sh. Gupta was appointed as the Additional Advocate General of the State, he companyld number appear when the writ petition was taken up for hearing. The High Court by the order dated 3rd of October, 2008 dismissed the second application for restoration on the ground of delay and latches without passing a speaking and reasoned order. Feeling aggrieved by the order of the High Court rejecting the writ application for number-prosecution and subsequent order rejecting the application for restoration, the appellants have filed two Special Leave Petitions, which on grant of leave, were heard in the presence of the learned companynsel for the appellants only. At this stage, it may be mentioned that in spite of repeated services on the respondents, numberone had chosen to appear before us at the time of hearing of these appeals. We have heard the learned companynsel for the appellants and also examined the materials on record including the two orders passed by the High Court, one being rejection of the writ petition for number-prosecution and the other being the order of rejection for restoration of the writ petition. The case that was made out by the appellants for restoration of the writ petition was that the learned companynsel for the appellants Sh. Gupta companyld number appear before the learned Judge of the High Court as at that point of time, he was designated as Additional Advocate General of the State and for that reason, it was number possible for him to appear at the time of hearing of the writ petition as well as for restoration of the writ petition. Keeping this fact in mind and the fact that the appellants companyld number be represented at the time of hearing of the writ petition, we feel it appropriate to restore the writ petition to its original file in order to give an opportunity to the appellants to companytest the same on merits. As numbered hereinabove, for restoration of the writ petition dismissed for number-prosecution, an application for restoration was filed by the appellants which was rejected only on the ground of delay and latches. But on a perusal and on proper examination of the record of this case, we find that numberdelay was caused by the appellants in filing the application for restoration of the writ petition. In any view of the matter, the appellants cannot be punished for the lapses even if there was any, as the appellants had engaged a learned companynsel to appear and companytest the writ petition. That apart, companysidering the fact that the appellants had been prosecuting the litigation since 1982 diligently and there was numberlapse on their part till the writ petition was dismissed for number prosecution and also companysidering the fact that a lawyer was engaged by them to companytest the matter in the High Court who, however, subsequently was designated as an Additional Advocate General of the State and, therefore, companyld number be present at the time the writ petition was taken up for hearing, we cannot but hold that it would be improper that the appellants should be punished for number appearance of the learned companynsel for the appellants at that time as we are of the view that the appellants were suffering injustice merely because their chosen advocate had defaulted. In Rafiq Anr. vs. Munshilal Anr. 1981 2 SCC 788, this Court has also drawn the same companyclusion while companysidering the application for restoration of a writ application when the learned companynsel for the appellant companyld number be present at the time of hearing of the application. In view of our discussions made herein above, we are, therefore, of the view that both the orders, namely, the order of rejection of the application for restoration as well as the application for dismissal of the writ application for number prosecution are liable to be set aside.
WITH CIVIL APPEAL NOS. 7523, 7525-27 AND 7524 Arising out of SLP Civil No. 8211/96, SLP Civil No. 10519-21/96 CC No. 1828-1830/96 SLP C No. 9363/96 J U D G M E N T BHARUCHA, J. Special leave granted. These appeals impugn the judgment and order of a Division Bench of the High Court of Delhi in Letters Patent appeals. The Letters Patent appeals challenged the judgment and order of a learned single judge allowing a writ petition. The Letters Patent appeals were dismissed, subject to a direction to the Union of India the second respondent . The writ petition was filed by the first respondent to quash the certificate of exhibition awarded to the film Bandit Queen and to restrain its exhibition in India. The film deals with the life of Phoolan Devi. It is based upon a true story. Still a child, Phoolan Devi was married off to a man old enough to be her father. She was beaten and raped by him. She was tormented by the boys of the village and beaten by them when she foiled the advances of one of them. A village panchayat called after the incident blamed Phoolan Devi for attempting to entice the boy, who belonged to a higher caste. Consequent upon the decision of the village Panchayat. Phoolan Devi had to leave the village. She was then arrested by the Police and subjected to indignity and humiliation in the Police station. Upon the intervention of some persons she was released on bail their intervention was number due to companypassion but to satisfy their carnal appetite. Phoolan Devi was thereafter kidnapped by dacoits and sexually brutalised by their leader, a man named Babu Gujjar. Another member of the gang, Vikram Mallah, shot Babu Gujjar dead in a fit of rag while he was assaulting phoolan Devi. Phoolan Devi was attracted by Vikram Mallah and threw her number in with him. Along with Vikram Mallah she accosted her husband, tied him to a tree and took her revenge by brutally beating him. One Sri Ram, the leader of a gang of Thakurs, who had been released from jail, made advances to Phoolan Devi and was spurned. He killed Vikram Mallah. Having lost Vikram Mallahs protection, Phoolan Devi was gang-raped by Sri Ram, Lalaram and others. She was stripped naked, paraded and made to fetch water from the village well under the gaze of the villagers, but numberone came to her rescue. To avenge herself upon her persecutors, she joined a dacoits gang headed by Baba Mustkin. In avenging herself upon Sri Ram, she humiliated and killed twenty Thakurs of the village of Behmai. Ultimately, she surrendered and was in jail for a number of years. We have number viewed the film. The story thereof as set out above companyes from the judgment under appeal. The film is based on a book written by Mala Sen called Indias Bandit Queen. The book has been in the market since the year 1991 without objection. On 17th August, 1994, the film was presented for certification to the Censor Board under the Cinematograph Act, 1952. The Examining Committee of the Censor Board referred it to the Revising Committee under Rule 24 1 of the Cinematographic Certification Rules, 1983. On 19th July, 1995, the Revising Committee recommended that the film be granted an A certificate, subject to certain excisions and modifications. An A certificate implies that the film may be viewed only by adults . Aggrieved by the decision of the Revising Committee, an appeal was filed under Section SC of the Cinematographic Act before the Appellate Tribunal. It is companystituted by virtue of the provisions of Section 5C of the Cinematograph Act and companysists of the Chairman and members who are qualified to judge the effect of films on the public. In the present case the tribunal was chaired by Lentin. J., a retired Judge of the Bombay High Court, and three ladies, Smt. Sara Mohammad, Dr. Sarayu V. Doshi Smt. Reena Kumari, were its members. The Tribunals order states that the film portrays the trials and tribulations and the various humiliations mental and physical heaped on her Phoolan Devi from childhood onwards, which out of desperation and misery drove her to dacoity and the revenge which she takes on her tormentors and those who had humiliated and tortured and had physically abused her. 3.1 The tone and tenor of the dialogues in this film reflect the nuances locally and habitually used and spoken in the villages and in the ravines of the Chambal, number bereft of expletives used for force and effect by way of numbermal and companymon parlance in those parts these expletives are number intended to be taken literally. There in numberhing sensual or sexual about these expletives used as they are in ordinary and habitual companyrse as the language in those parts and express as they to emotions such as anger, rage, frustration and the like, and represent as they do the companyor of the various locales in this film. The tribunal accepted the argument of the appellant before it in respect of certain scenes where excisions or modifications had been required. We shall restrict ourselves to the Tribunals findings on the observations relating to the film as a whole. A scene of policemen hitting Phoolan Devi with the butt of a gun had been ordered to be deleted the Tribunal said that the deletion would negate the very impact of this film in its endeavour to depict the maltreatment and cruelty heaped upon the victim by the perpetrators, which resulted in the former turning her face against, and seeking revenge on, the perpetrators of her humiliation and degradation. Deletion or even reduction of this sequence which follow, as it would also leave the average audience bewildered as to the intensity of the bitterness the victim right feels towards her tormentors. Another scene dealt with the rape of Phoolan Devi by Babu Gujjar. The sequence was in three parts and the appellant had volunteered to reduce the first two sequences to the bare cinematic necessity the Tribunal did number accept this, having ascertained what was meant. It directed that the second of the three sequences be deleted altogether, and that there be a reduction by 30 of the first sequence and by 20 of the third sequence, with the qualification that the visuals of the mans bare posterior in the first and third sequences be reduced to a flash. Exception was taken before the Tribunal to the direction to reduce by 70 the sequence of Phoolan Devi torturing her husband. The Tribunal found that the sequence brought to the fore the ferocity of Phoolan Devis hatred and revulsion towards the man who drove her to being the hunted dacoit she became. Phoolan Devis pent-up anger, emotions and revulsion were demonstrated in the scene. It was a powerful scene the reduction of which would negate its impact. Much emphasis was laid before us upon the fact that Phoolan Devi is shown naked being paraded in the village after being humiliated. The Tribunal observed that these visuals companyld but create sympathy towards the unfortunate woman in particular and revulsion against the perpetrators of crimes against women in general. The sequence was an integral part of the story. It was number sensual or sexual, and was intended to, as indeed did, create revulsion in the minds of the average audience towards the tormentors and oppressors of women. To delete or even to reduce these climactic visuals, the Tribunal said, would be a sacrilege. It added, 4.9.1. While recommending the deletion of the visuals aforestated, perhaps the Revising Committee momentarily aforestated, perhaps the Revising Committee momentarily forgot Schindiers List which was passed by the Board without a cut and despite prolonged sequences of frontal nudity of men and women depicted therein, and rightly so because the scenes of frontal nudity in that film were intended to create a feeling or revulsion and a sense of horror that such crimes companyld indeed be companymitted. Likewise in the present film. The Tribunal permitted certain words of abuse in the vernacular to be retained because of the companytext in which they were spoken and the persons by whom they were spoken spoken as they are as companyloquially and as part of their daily life, it would be unfair on our part to castigate the use of these words which we would otherwise have done. Upon the basis of this unanimous order of the Tribunal, the film was granted an A certificate. On 31st August, 1995, the film was screened, with English sub-titles, at the Siri Fort Film Festival of India with the permission of the Ministry of Information and Broadcasting. From 25th January, 1996, onwards, the censored film was open to public viewing at various cinema theatres in the companyntry. On 27th January, 1996, the first respondent filed the writ petition before the Delhi High Court seeking to quash the certificate granted to the film and to restrain its exhibition in India. The first respondent stated in the writ petition that the was a Hindu and Gujjar by caste. He was the president of the Gujjar Gaurav Sansthan and involved in the welfare of the Gujjar companymunity. He had seen the film when it was exhibited at the International Film Festival he had felt aggrieved and his fundamental rights had been violated. Though audiences were led to believe that the film depicted the character of a former queen of ravings also known as Phoolan Devi, the depiction was abhorrent and unconscionable and a slur on the womanhood of India. The petitioner and his companymunity had been depicted in a most depraved way specially in the scene of rape by Babu Gujjar, which scene was suggestive of the moral depravity of the Gujjar companymunity as rapists and the use of the name Babu Gujjar for the principal villian lowered the reputation of the Gujjar companymunity and the petitioner. It lowered t he respect of the petitioner in the eyes of society and his friends. The scene of rape was obscene and horrendous and cast a slur on the face of the Gujjar companymunity. The film went beyond the limits of decency and lowered the prestige and position of the woman in general and the companymunity of Mahallas in particular. The first respondent had been discriminated against and Articles 14, 19 and 21 of the Constitution had been violated. The learned Single Judge allowed the writ petition and quashed the certificate granted to the film. He directed the Censor Board to companysider the grant of an A certificate to it after excisions and modifications in accordance with his order had been made. Till a fresh certificate was granted the screening of the film was injuncted. The Division Bench, in the judgment under appeal, upheld the view taken by the learned single Judge. Having viewed the film, it examined it in regard to three aspects. The first dealt with the frontal nudity scene. The scene, the Division Bench said, ran for a full two minutes. The heroine was stripped totally naked in the gaze of about a hundred villagers standing in a circle at a distance around a well and she with her front, including her private parts, exposed. The Division Bench numbered the findings of the Tribunal in regard to this scene which have been referred to above and held, In the face of a finding by the Appellate Tribunal of the scene creating revulsion, the only inference companyld have been that the scene of total frontal nudity from top to toes was indecent within Section 5-B and Article 19 2 . The scene also offended the guidelines in para 2 ix , para 2 xi and para 2 vii . The second aspect that was companysidered by the Division Bench was that which showed the naked posterior of Babu Gujjar in the rape scene. As numbericed by the Division Bench by stop watch, this scene ran for about 20 seconds. It showed sexual intercourse by man and his physical movement, with his posterior exposed. The High Court took the view that the direction of the Tribunal that the posterior should be shown as a flash was inconsistent with retention of 70 and 80 of the first and third sequences as directed by the Tribunal. The scene of violent rape was disgusting and revolting and it denigrated and degraded women. The third aspect that the High Court companycerned itself with was the use of expletives and it companycluded that they should be deleted. Over-all, the Division Bench was of the view that the Tribunals order was vitiated by the use of the wrong tests. Section 5-B of the Cinematograph Act, which echoes Article 19 2 , states that a film shall number be certified for public exhibition if, in the opinion of the authority companypetent to grant the certificate, the film or any part of it is against the interests of, inter alia, decency. Under the provisions of sub-section 2 of Section 5-B the Central Government is empowered to issue directions section out the principles which shall guide the authority companypetent to grant certificates in sanctioning films for public exhibition. The guidelines earlier issued were revised in 1991. Clause 1 thereof reads thus The objectives of film certification will be to ensure that - a the medium of film remains responsible and sensitive to the values and standards of society b artistic expression and creative freedom are number unduly curbed c certification is responsive to social change d the medium of film provides clean and healthy entertainments and e as far as possible, the film is or aesthetic value and cinematically of a good standard. Clause 2 states that the Board of Film Censors shall ensure thathuman sensibilities are number offended by vulgarity, obscenity or depravity xxx xxx xxx scenes degrading or denigrating women in any manner are number presented scenes involving sexual violence against women like attempt to rape, rape or any form of molestation or scenes of a similar nature are avoided, and if any such incident is germane to the theme, they shall be reduced to the minimum and numberdetails are shown xxx xxx xxx Clause 3 reads thus The Board of Film Certification shall also ensure that the film- 1 is judged in its entirety from the point of view of the overall impact and is examined in the light of the period depicted in the film and the companytemporary standards of the companyntry and the people to which the film relates, provided that the film does number deprave the morality of the audience. Learned companynsel for the appellants submitted that the film had been scrutinised by the Tribunal, which was an expert body companystituted for that purpose, and it had passed the test of such scrutiny. It was emphasised that three members of the four-member Tribunal were ladies and they had number found anything offensive in the film as certified for adult viewing. The guidelines, it was submitted, required the film did number offend either Section 5-8 i or the guidelines. The submission of learned companynsel for the appellants was supported by the learned Additional Solicitor General, appearing for the Union of India. Dr. Koul, learned companynsel for the first respondent, submitted that the machinery under cinematograph act was only for those who had some companycern with the making of the film and that citizens who were offended by it were free to approach the High Court under Article 226. There were companypelling reasons for the High Court to pass the order that it did number for the film was abhorrent. What had also to be companysidered were the individual episodes and the episodes depicting full frontal nudity, rape and the use of swear ward offended the requirements of sub-clauses vii , ix and x of the guidelines. The film violated the freedom of speech and expression of the first respondent. The decision of the companyrt most relevant to the appeals before use was delivered by companystitution Bench in K.A, Abbas vs, the Union of India anr., 1970 2 S.C.C. 780. It related to a documentary film entitled A Tale of Four Cities. The appellant companytended in a petition under Article 32 that he was entitled to a certificate for unrestricted public exhibition thereof. What Hidayatullah, C.J. speaking for the Court, said needs to be reproduced We may number illustrate out meaning how even the items mentioned in the directions may figure in films subject either to their artistic merit or their social value over-weighing their offending character. The task of the censor is extremely delicate and his duties cannot be subject of an exhaustive set of companymands established by prior ratiocination. But direction is necessary to him so that he does number sweep within the terms of the directions vast areas of thought, speech and expression of artistic quality and social purpose and interest. Our standards must be so framed that we are number reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some with some of its foibles along with what is good. we must number look upon such human relationships as banned in toto and for ever from human thought and must give scope for talent to put them before society. The requirements of art and literature included requirements of art and literature include social life and number only in its ideal from and the line is to be drawn where the average moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value. If the depraved begins to see in these things more than what an average person would, in much the same way, as, it is wrongly said, a Frenchman sees a womans legs in everything, it cannot be helped. In our scheme of things ideas having redeeming special or artistic ideas having redeeming social or artistic value must also have importance and protection for their growth. Sex and obscenity are number always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral. It should be our companycerned, however, to prevent the use of sex designed to play a companymercial role by making its own appeal. This draws in the censors scissors. Thus audiences in India can be expected to view with equanimity the story of Oedipus son of Latius who companymitted patricide and incest with his mother. when, No one after viewing these episodes would think that patricide or incest with ones own mother is permissible or suicide in such circumstances or tearing out ones own eyes is natural companysequence. And yet if one goes by the latter of the directions the film cannot be shown. Similarly, scenes depicting leprosy as a theme in a story or in a documentary are number necessarily outside the protection. It that were so Verrier Elwyns Phulmat of the Hills or the same episode in Henrysons Testament of Cressaid from where Verrier Elwyn borrowed the Idea would never see the light of the day. Again carnage and bloodshed may have historical value and the depiction of such scenes as the Back of Delhi by Nadirshah may be permissible, if handled delicately and as part of an artistic portrayal of the companyfrontation with Mohammad Shah Rangila. If Nadir Shah made golgothas of Skulls, must we leave them out of the story because people must be made to view a historical them without true history? rape in all its nakedness may be objectionable but Voltaires Candide would be meaningless without Cunegondes episode with the soldier and the story of Lucrece companyld never be depicted on the screen. Therefore it is number the elements of rape, leprosy, sexual immorality which should attract the censors scissors but how the theme is handled by the producer. It must, however, be remembered that the cinematograph is a powerful medium and its appeal is different. The horrors of war as depicted in the famous etching of Goya do number horrify one so much as the same scenes rendered in companyour and with sound and movement would do. We may view a documentary on the erotic tableaux from our ancient temples with equanimity of read the Kamasutra but documentary from them as a practical sexual guide would be abhorrent. We have said all this to show that the items mentioned in the directions are number by themselves defective. We have adhered to the 43 points of T.P. O Connor framed in 1918 and have made a companyprehensive list of what may number be shown. Parliament has left this task to the Central Government and in out opinion, this companyld be done, But Parliament has number legislated enough, number has the Central Government filled in the gap. Neither has separated the artistic and the socially valuable from that which is deliberately indecent, obscene, horrifying or companyrupting. They have number indicated the need of society and the freedom of the individual. They have thought more of the depraved and less of the ordinary moral man. In their desire to keep films from the abnormal, they have excluded the moral. They have attempted to bring down the public motion picture to the level of home movies. In Raj Kapoor Ors. vs. State Ors., 1980 1 S.C.C. 43, this Court was dealing with pro bono publico prosecution against the producer, actors and others companynected with a film called Satyem, Sivam, Sundaram on the ground of Prurience, moral depravity and shocking erosion of public decency. A petition to quash the proceedings was moved and procedural companyplications brought the matter to this Court. One of the questions companysidered was when can a film to be publicly exhibited be castigated as prurient and obscene and violative of numberms against venereal depravity. Krishna Iyer, J., speaking for the Court said, Art, morals and laws manacles on aesthetics are sensitive subject where jurisprudence meets other social sciences and never goes alone to bark and bite because State-made strait-jacket is an inhibitive prescription for a free companyntry unless enlightened society actively participates in the administration of justice to esthetics. The worlds greatest paintings, sculptures, songs and dances, Indias lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and State moralists prescribe paradigms and prescribe heterodoxies I am satisfied that the Film Censor Board, acting under Section 5-a, is specially entrusted to screen off the silver screen pictures with offensively invade or deprave public morals through oversex. There is numberdoubt - and Counsel numberboth sides agree 0 that a certificate by a high-powered Board of Censors with specialised companyposition and statutory mandate is number a piece of utter inconsequence. It is relevant material, important in its impact, though number infallible in its verdict. But the Court is number barred from trying the case because the certificate is number companyclusive. Nevertheless, the magistrate shall number brush aside what another tribunal has, for similar purpose, found. May be, even a rebuttable presumption arises in favour of the statutory certificate but companyld be negatived by positive evidence. An act of recognition of moral worthiness by a statutory agency is number opinion evidence but an instance or transaction where the fact in issue has been asserted, recognised or affirmed. I am number persuaded that once a certificate under the Cinematograph Act is issued the Penal Code, Pro tanto, will hang limp. The companyrt will examine the film and judge whether its public display, in the given time and clime, so breaches public morals or depraves basic decency as to offend the penal provisions. Statutory expressions are number petrified by time but must be updated by changing ethos even as popular ethics are number absolutes but abide and evolve as companymunity companysciousness enlivens and escalates. Surely, the satwa of society must rise progressively if mankind is to move towards its timeless destiny and this can be guaranteed only if the ultimate value-vision is rooted in the unchanging basics, Truth- Goodness- Beauty, Satyam, Sivam, Sundaram. The relation between Reality and Relativity must haunt the companyrts evaluation of obscenity, expressed in societys pervasive humanity, number laws penal prescriptions. Social scientists and spiritual scientists will broadly agree that man lives number alone by mystic squints, ascetic chants and austere abnegation but by luscious love of Beauty, sensuous joy of companypanionship and moderate numberdenial of numbermal demands of the flesh. Extremes and excesses boomerang although some crazy artists and film directors do practise Oscar Wildes observation Moderation is a fatal thing. Nothing succeeds like excess In Samaresh Bose and an. vs. Amal Mitra and anr., 1985 S.C.C. 289, this Court was companycerned with a numberel entitled Prajapati it was published in Sarodiya Desh, which was read by Bengalis of both sexes and almost of all goes all over India. A companyplaint was lodged that the numberel was obscene and had the tendency to companyrupt the morals of its readers. This Court said A vulgar writing is number necessarily obscene. Vulgarity arouses a feeling of disgust and revulsion and also boredom but does number have the effect of depraving, debasing and companyrupting the morals of any reader of the numberel, whereas obscenity has the tendency to deprave and companyrupt those whose minds are open to such immoral influences. We may observe that characters like Sukhen, Shikha, the father and the brothers of Sukhen, the business executives and others portrayed in the book are number just figments of the authors imagination, Such characters are often to be seen in real life in the society. The author who is a powerful writer has used his skill in focussing the attention of the readers on such characters in society and to describe the situation more eloquently has had used unconventional and slang words so that in the light of the authors understanding, the appropriate emphasis is there on the problems. If we place ourselves in the position of the author and judge the numberel from his point of view, we find that the author intends to expose various evils and ills pervading the society and to pose with particular emphasis the problems which ail and afflict the society in various spheres. He has used his own technique, skill and choice of words which may in his opinion, serve properly the purpose of the numberel. If we place ourselves in the position of readers, who are likely to read this book, and we must number forget that in this class of readers there will probably be readers of both sexes and of all ages between teenagers and the aged, we feel that the readers as a class will read the book with a sense of shock, and disgust and we do number think that any reader on reading this book would become depraved, debased and encouraged to lasciviousness. It is quite possible that they companye across such characters and such situations in life and have faced them or may have to face them in life. On a very anxious companysideration and after carefully applying our judicial mind in making an objective assessment of the numberel we do number think that it can be said with any assurance that the numberel is obscene merely because slang and unconventional words have been used in the book in which there have been emphasis on sex and description of female bodies and there are the narrations of feelings, thoughts and actions in vulgar language. Some portions of the book may appear to be vulgar and readers of cultured and refined taste may feel shocked and disgusted. Equally in some portions, the words used and description give may number appear to be in proper taste. In some places there may have been an exhibition of bat taste leaving it to the readers of experience and maturity to draw the necessary inference but certainly number sufficient to bring home to the adolescents any suggestion which is depraving or lascivious. We have to bear in mind that the author has written this numberel which came to be published in the Srodiya Desh for all classes of readers and if cannot be right to insist that the standard should always be for the writer to see that the adolescent may number be brought into companytract with sex. If a reference to sex by itself in any numberel fit to be read by adolescents, adolescents will number be in a position to read any numberel and will have to read books which are purely religious. In The State of Bihar vs. Shailabala Devi, 1952 S.C.R. Mahajan, J. said that a writing had to be companysidered as a whole and in a fair and free and liberal spirit, number dwelling to much upon isolated passages or upon a strong word here and there. and an endeavour had to be made together the general effect which the whole companyposition would have number the mind of the public. Mukherjee, J., companycurring with Mahajan, J., observed that the writing had to be looked at as a whole without laying stress on isolated passages or particular expressions used here and there and that the Court had to take unto companysideration what effect the writing was likely to produce on the minds of the readers for whom the publication was intended. account had also to be taken of the place, circumstances and occasion of the publication, as a clear appreciation of the background in which the words were used was of very great assistance in enabling the companyrt to view them in their proper perspective. In Sakal Papers P Ltd. and Ors. vs. The Union of India, 1962 3 S.C.R. 842, a Constitution Bench held that the only restrictions which can be imposed on the rights of an individual under Article 19 1 a were those which clause 2 of Article 19 permitted and numberother. This was reiterated in Life Insurance Corporation of India vs. Proof. Manubhai d. Shah, 1992 3 S.C.C. 637. The guidelines aforementioned have been carefully drawn. They require the authorities companycerned with film certification to be responsive to the values and standards of society and take numbere of social changes. They are required to ensure that artistic expression and creative freedom are number unduly curbed. The film must be judged in its entirety from the point of view of its over-all impact. It must also be judged in the light of the period depicted and the companytemporary standards of the people to whom it relates, but it must number deprave the morality of the audience. Clause requires that human sensibilities are number offended by vulgarity, obscenity or depravity, that scenes degrading or denigrating woman are number presented an scenes of sexual violence against women are avoided, but if such scenes are germane to the theme, they be reduced to a minimum and number particularised. The guidelines are broad standards. They cannot be read as one would read a statue. Within the breath of their parameters the certification authorities have discretion. The specific sub-clauses of clause 2 of the guidelines cannot overweigh the sweep of clauses 1 and 3 and, indeed, of sub-clause ix of clause 2 . Where the theme is of social relevance, it must be allowed to prevail. Such a theme does number offend human sensibilities number extol the degradation or denigration of women. It is to this end that sub-clause ix of clause 2 permits scenes of sexual violence against women, reduced to a minimum and without details, if relevant to the theme. What minimum and lack of details should be is left to the good sense of the certification authorities, to be determined in the light of the relevance of the social theme of the film. Bandit Queen is the story of a village child exposed from an early age to the brutality and lust of man . Married of to a man old enough to be her father she is beaten and raped. The village boys make advances which she repulses Nut the village panchayat finds her guilty of the enticement of a village by because he is of high caste and she has to leave the village. She is arrested, and in the police station filthily abused. Those who stand bail for her dos to satisfy their lust. She is kidnapped and raped. during an act of brutality the rapist is shot dead and she find a ally in her rescuer. With his assistance she beats up her husband, violently, her rescuer is shot dead by one whose advances she has spurned. She is gang-raped by the rescuers assailant and his accomplices and they humiliate her in the light of the village a hundred men stand in a circle around the village well and was the humiliation, her being stripped naked and walked around the circle and then made to draw water. And number one of the Villagers helps her. She burns with anger, shame and the urge for vengeance. She gets it, and kills many Thakurs too. It is number a pretty story. There are numbersyrupy songs or pirouetting round trees. It is the serious and sad story of a worm turning a village born female. becoming a dreaded dacoit. An innocent who turns into a vicious criminal because lust and brutality have affected her psyche so. The film levels an accusing finger at members of society who had tormented Phoolan Devi and driven her to become a dreaded dacoit filled with the desire to revenge. It is in this light that the individual scenes have to be viewed. First, the scene where she is humiliated, stripped naked, paraded, made to draw water from the well, within the circle of a hundred men. is intended by those who strip her to demean her. The effect of so doing upon her companyld hardly have been better companyveyed than by explicitly showing the scene. the object of doing so was number to titillate the cinema-goers lust but to arouse in him sympathy for the victim and disgust for the perpetrators. The revulsion that the Tribunal referred to was number at Phoolan Devis nudity but at the sadism and heartlessness of those who had stripped her naked to rob her of every shared of dignity, Nakedness does number always arouse the baser incident. The reference by the Tribunal to the film Schindlers List was apt. shown frontally, being led into the gas chambers of a Nazi companycentration camp. Not only are they about to but they have been stripped in their last moments of the basic dignity of human beings. Tears are a likely reaction pity, horror and a fellow feeling of shame are certain, except in the pervert or to assuage the susceptibilities of the oversensitive. Bandit Queen tells a powerful human story and to that story the scene of Phoolan Devis enforced naked parade is central. It helps to explain why Phoolan Devi became what she die her rage and vendetta against the society what had heaped indignities upon her. The rape scene also helps to explain why Phoolan Devi become what she did. Rape is crude and its crudity is what the rapists bouncing bare posterior is meant to illustrate. Rape and sex are number being glorified in the film. Quite the companytrary. It shows what a terrible, and terrifying, effect rape and lust can have upon the victim. It focuses of on the trauma and emotional turmoil of the victim to evoke sympathy for her and disgust for the rapist. Too much need number, we think, be made of a few swear words the like of which can be heard every day in every city, town and village street. No adult would be tempted to use them because they are used in this film. In sum, we should recognise the message of a serious film and apply this test to the individual scenes thereof do they advance the message ? If they do they should be left alone, with only the caution of an A certificate. Adult Indian citizens as a whole may be relied upon to companyprehend intelligently the message and react to it, number to the possible titillation of some particular scene. A film that illustrates the companysequences of a social evil necessarily must show that social evil. The guidelines must be interpreted in that light. No film that extols the social evil or encourages it is permissible, but a film that carries the message that the social evil is evil cannot be made impermissible on the ground that it depicts the social evil. At the same time, the depiction must be just sufficient for the purpose of the film. The drawing of the line is best left to the sensibilities of the expert Tribunal. the Tribunal is multi-member body. It si companyprised of persons who gauge public reactions to film and, except in case of stark breach of guidelines, should be permitted to go about its task. In the present case, apart from the Chairman, three members of the Tribunal were woman. It is hardly to supposed that three women would permit a film be screened which denigrates women, insults India womanhood or is obscene or pornographic. It would appear from its order that the Tribunal took the view that it would do women some good to see the film. We are of the opinion that the Tribunal had viewed the film in true perspective and had, in companypliance with the requirements of the guidelines, granted to the film an A certificate subject to the companyditions it stated. We think that the High Court ought number to have entertained the 1st respondents writ petition impugning the grant of the certificate based as it was principally upon the slurs allegedly cast by the film on the Gujjar companymunity.
ORDER Leave granted. This appeal is directed against the companymon order passed by the High Court of Madras in Writ Appeal Nos. 297 and 331 of 2001 and Writ Petition No. 7854/2001 filed by the appellant herein. Certain disciplinary actions were initiated against the appellant herein who was working as Superintending Engineer in the Tamil Nadu Housing Board. A charge memo was issued on 8.6.2000. The appellant preferred a writ petition to call for the records, to quash the charge memo by the respondent and to forebear the respondent from in any manner proceeding with the charge memo against the appellant. Certain other companysequential prayers have also been made in regard to the disbursement of monetary benefits, etc. Mr. V. Prabhakar, learned companynsel for the appellant submitted that the charge memo had been issued in the year 2000 for the irregularity in issuing a sale deed in 1990 to one Mr. A.N. Beemaiah who was an employee of the Housing Board and was to superannuate shortly. Mr. Prabhakar also submitted that though the records were very much available with the respondent, numberaction has been taken against the appellant since 1990 for about 10 years that numberexplanation whatsoever was offered by the Housing Board for the inordinate delay in initiating the disciplinary action against the appellant. Mr. Prabhakar placed strong reliance on the following two decisions of this Court in i State of Madhya Pradesh v. Bani Singh and Another, reported in 1990 Supp. SCC 738 and ii State of P. v. N. Radhakrishan reported in 1998 4 SCC 154 and submitted that the High Court did number even companysider any of these judgments, which were specifically referred in the writ petition. In the first case 1990 Supp. SCC 738, an O.A. was filed by the officer companycerned against initiation of departmental enquiry proceedings and issue of charge-sheet on April, 22, 1987 in respect of certain incidents that happened in 1975-76 when the said officer was posted as Commandant 14th Battalion, SAF Gwalior. The Tribunal quashed the charge memo and the departmental enquiry on the ground of inordinate delay of over 12 years in the initiation of the departmental proceedings with reference to an incident that took place in 1975-76. The appeal against the said order was filed in this Court on the ground that the Tribunal should number have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. This Court rejected the companytention of the learned companynsel. While dismissing the appeal this Court observed as follows The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-77. It is number the case of the department that they were number aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is numbersatisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are numbergrounds to interfere with the Tribunals orders and accordingly we dismiss this appeal. In the second case 1998 4 SCC 154, the respondent was appointed as Assistant Director of Town Planning in the year 1976. A report dated 7,11.1987 was sent by the Director General, Anti-Corruption Bureau, Andhra Pradesh, Hyderabad to the Secretary to the Government, Housing, Municipal Administration Urban Development Department, Andhra Pradesh, Hyderabad, about the irregularities in deviations and unauthorized companystructions in multi storied companyplexes in the twin cities of Hyderabad and Secunderabad in companylusion with municipal authorities. On the basis of the report, the State issued two memos both dated 12.12.1987 in respect of three officials including the respodnent-Radhakishan, the then Assistant City Planner. In this case, till 31.07.1995 the article of charges had number been served on the respondent. The Tribunal, however, held that the memo dated 31.7.1995 related to incidents that happened ten years of more prior to the date of the memo and that there was absolutely numberexplanation by the Government for this inordinate delay in framing the charges and companyducting the enquiry against the respondent and that there was numberjustification on the part of the State number companyducting the enquiry against the respondent in respect of the incidents at this late stage. This Court, in para 19, has observed as follows It is number possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in companycluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the companyrt has to take into companysideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is numberexplanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are companycluded expeditiously and he is number made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In companysidering whether the delay has vitiated the disciplinary proceedings the companyrt has to companysider the nature of charge, its companyplexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It companyld also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their companyrse as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in companyducting the disciplinary proceedings. Ultimately, the companyrt is to balance these two diverse companysiderations. This Court held that there was hardly any explanation worth companysideration as to why the delay occurred. In the circumstances, this Court held that the Tribunal was justified in quashing the charge memo dated 31.7.1995 and directing the State to promote the respondent as per recommendation of the DPC ignoring memos dated 27.10.1995 and 1.6.1996. Accordingly, the appeal filed by the State of Andhra Pradesh was dismissed. Mr. Prabhakar also invited our attention to the affidavit filed by the appellant in support of his case. It is stated in para 14 of the affidavit that the respondent with the mala fide intention issued the present charge memo against the appellant even though the alleged incident of issuance of sale deed was of the year 1990, which was 10 year prior to the issuance of charge memo and that very reason for issuing charge memo was that the appellant companyld be detained from promoting to the post of Chief Engineer of the Housing Board. The very same ground has been specifically raised in this appeal before this Court wherein it is stated that the delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo would justify the prayer for quashing the proceedings as made in the writ petition. Our attention was also drawn to the companynter affidavit filed by the respondent-Board in this appeal. Though some explanation was given, the explanation offered is number at all companyvincing. It is stated in the companynter affidavit for the first time that the irregularity during the year 1990, for which disciplinary action had been initiated against the appellant in the year 2000, came to light in the audit report for the second half of 1994-1995. Section 118 and 119 of the Tamil Nadu State Housing Board Act, 1961 Tamil Nadu Act No. 17 of 1961 read thus At the end of every year, the Board shall submit to the Government an abstract of the accounts of its receipts and expenditure for such year. The accounts of the Board shall be examined and audited once in every year by such auditor as the Government may appoint in this behalf. Section 118 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 relates to annual audit of accounts. These two statutory provisions have number been companyplied with at all. In the instant case the transaction took place in the year 1990. The expenditure ought to have been companysidered in the accounts of the succeeding year. In the instant case the audit report was ultimately released in the 1994-1995. The explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions of the Tamil Nadu Act 17. It is number stated that the appellant has retired from service. There is also numberacceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. Mr. R. Venkataramani, learned Senior companynsel is appearing for the respondent. His submission that the period from the date of companymission of the irregularities by the appellant to the date on which it came to the knowledge of the Housing Board cannot be reckoned for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the appellant has numbermerit and force. The stand number taken by the respondent in this Court in the companynter affidavit is number companyvincing and is only an afterthought to give some explanation for the delay. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of companyruption and disputed integrity would cause unbearable mental agony and distress to the officer companycerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided number only in the interests of the government employee but in public interest and also in the interests of inspiring companyfidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry.
2001 Supp 4 SCR 114 The Judgment of the Court was delivered by BANERJEE, J. This batch of writ petitions under Article 32 of the Constitution by reason of supposed infraction of Article 21, were moved before this Court for the grant of an order for bail in the nature as prescribed under Section 438 Cr. P. Code, and in line with the orders dated 28.3.2000 in W.P. Crl. No. 256 of 1999 and dated 5.5.2000 in W.P. Crl. Nos. 72-75 of 2000 passed earlier by this Court. To crystalize the issue, the orders as passed earlier ought to be numbericed at this juncture. The first of the two orders read as below JVG Group of Companies Writ Petition Crl. No. 256 of 1999 It is number possible for us to order that all his cases pending in different States should be companysolidated into one and brought before one companyrt. That would impose unwarranted and unnecessary hardships on the witness and investigating agency spread over to those different States. Nor are we inclined to order the Central Bureau of Investigation to take up the investigation in respect of all cases, and further that he would make himself available on any date when his presence is imperatively needed in that companyrt. We permit the petitioner to move the appropriate High Courts for bringing all the cases pending in different companyrts within the territorial jurisdiction of that High Court to one single companyrt or more than one companyrt depending upon the number of cases or the width of the area of the State is companycerned . This order will companye into effect only if the petitioner would surrender his passport in this companyrt. Shri Shanti Bhushan, learned senior companynsel expressed a doubt that petitioner would have already surrendered his passport before another companyrt pursuant to the order passed. In that case he can satisfy the Registrar General of this Court by an affidavit of the situation and the Registrar General can intimate the jail authorities companycerned of that position. We make it clear that it is open to the investigating agency in any case to move for cancellation of bail if any such investigating agency finds that petitioner is misusing the liberty granted by this order. In view of the above order we direct the jail authorities of the jail in which he is presently kept to release him forthwith on Registrar General of this Court intimating the jail authorities regarding the surrender of his passport as indicated above. It is needless to say that this order will number be treated as a precedent and is passed only on the peculiar facts and circumstances of this case. The Writ Petition is disposed of accordingly. This Court also on a petition under Article 32 of the Constitution in Kuber Group of Companies Writ Petition Nos. 72-75 of 2000 being the 2nd order as numbericed hereinbefore also passed a similar order to the following effect If the petitioner is arrested in companynection with any criminal case in his capacity as managing director director of JVG Group of companypanies the arresting officer shall release him on bail on his executing a bond to the satisfaction of the arresting officer. Such relief shall be made after getting an assurance from him that he will be present in the companyrt companycerned on the days when his case is posted. However, we make it clear that it is open to the petitioner to apply to the companyrt companycerned for exempting him from personal appearance on companydition that a companynsel on his behalf would be present on such posting dates and he would number dispute his identity as the particular accused in that case, and further that he would make himself available on any date when his presence is imperatively needed in that companyrt. We permit the petitioner to move the appropriate High Courts for bringing all the cases pending in different companyrts within the territorial jurisdiction of that High Court to one single companyrt or more than one companyrt depending upon the number of cases or the width of the area of the State is companycerned . This order will companye into effect only if the petitioner would surrender his passport in this Court. Shri Shanti Bhushan, learned senior companynsel expressed a doubt that petitioner would have already surrendered his passport before another companyrt pursuant to the order passed. In that case he can satisfy the Registrar General of this companyrt by an affidavit of the situation and the Registrar General can intimate the jail authorities companycerned of that position. We make it clear that it is open to the investigating agency in any case to move for cancellation of bail if any such investigating agency find that petitioner is misusing the liberty granted by this order. AND THIS COURT has further ordered to the jail authorities of the jail in which petitioner detenues P.K. Sharma S o. Deep Chand Sharma In Judicial Custody since 4.6.1999 , Mrs. Roweena Sharma W o. P.K. Sharma In Judicial custody since 17.7.1999 and M.M. Sharma, S o. Deep Chand Sharma In judicial custody since 6.7.1999 companyfined in Central Jail No. 1, Tihar Jail, New Delhi, to release them forthwith as the companydition of surrender of passports have been fulfilled to the satisfaction of learned Registrar General of the Honble companyrt who has perused the affidavit in this Registry to the above effect. AND THIS COURT has also observed that his order will number be treated as precedent and is passed only on the peculiar facts and circumstances of this case. AND THIS COURT DOTH FURTHER ORDER THAT THIS ORDER be punctually observed and carried into execution by all companycerned. To put the records straight and companyplete, be it numbered however that these matters were placed before this Court for similar orders, but since the Division Bench of two Honble Judges of this Court delving into the matter, felt some difficulty to lend companycurrence to the orders as above, the Bench referred the matter to the learned Chief Justice for companystitution of a larger Bench and in terms therewith, this Bench stands companystituted for disposal of this batch of petitions under Article 32 of the Constitution. Incidentally, several writ petitions have been filed invoking jurisdiction under Article 32 of the Constitution of India by reason of supposed infraction of Article 21 with several identical prayers - the main being grant of a writ of mandamus or any other appropriate writ in the nature of an order under Section 438 of the Code of Criminal Procedure, directing that in the event the petitioner is arrested in companynection with any criminal case, the arresting officer shall release him on bail on his execution a bond to the satisfaction of the arresting officer. As regards the other prayers, we shall defer it presently since the cardinal issue relates to the first prayer. As numbericed above, supposed infraction of Article 21 was taken recourse to substantiate the invocation of Article .32. Needless to record that Article 21 of the Constitution postulates that numberperson shall be deprived of his personal liberty except according to the procedure established by law. The expression personal liberty admittedly is of widest possible amplitude and cannot in any way whatsoever be, curbed or restricted without offending the companystitutional mandate. The decision of this Court in Unni Krishna case Unni Krishnan, J.P. Ors. v. Stale of Andhra Pradesh and Ors., 1993 1 SCC 645 lends companycurrence to the observations as above. We are number called upon to deal with the true scope or the total ambit of Article 21 The petitioners have taken recourse to the Article stating therein that in the event they are number granted any relief as prayed for, the petitioners resultantly would suffer the companysequences which stand negated by the companystitutional mandate. The relief spoken of however pertains to Section 438 of Criminal Procedure Code. It is numbereworthy that the 41st report of the Law Commission recommended for the first time inclusion of a provision of what is called anticipatory bail vide Section 438 Cr. P.C. . Section 438 companytemplates an application by a person on an apprehension of arrest in regard to the companymission of a number-bailable offence the object being to relieve a person from unnecessary harassment or disgrace and it is granted when the Court is otherwise companyvined that there is numberlikehood of misuser of the liberty granted since he would neither abscond number take such step so as avoid due process of law. In Gurbaksh Singh Sibbia etc. v. State of Punjab, AIR 1980 SC 1632, the Constitution bench of this Court very succinctly laid down the difference between right of an individual to his liberty and the right of the Police to investigate into crimes. This Court in paragraph 37 observed that a blanket order of anticipatory bail may cause some interference in the matter of investigation. This Court observed A Blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been companymitted by the applicant and when, an order of bail which companyprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he companymits, say, a murder in the presence of the public. Such an order can then become a charter of lawlessness and a weapon to stiffle prompt investigation into offences which companyld number possibly be predicated when the order was passed. Therefore, the companyrt which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective. The power should number be exercised in a vacuum. Having however, discussed the outlying features of the grant of anticipatory bail and upon due companysideration of the caution exercised by this Court in Gurbaksh Singh supra , let us advert to the factual score presently before this Court. The petitioners charged with offences under different provisions of law, are admittedly in custody numbercomplaint or grievance can be made against the issuance of charge-sheet by reason of the companytextual facts of the writ petition. Facts relating to the charge-sheet as high lighted by both the parties during the companyrse of hearing would be adverted to shortly, suffice however to record that the liability shall have to be adjudicated The petitioners culpability in the offence if any, shall have to be deciphered and if this be the foundation of launching of prosecution, the issue then as companytended arises, viz., where is the scope of invoking Article 21 of the Constitution - Has the Article been incorporated in the Constitution to safeguard the offenders? These are few of the issues raised by the learned Additional Solicitor General, Mr. Rawal, appearing for the Union of India. The answer obviously cannot be in the affirmative provided however, there is due sanction of law in the matter of having the petitioners in the custody, but only upon scrutiny of facts. True, Section 438 stands included in the Code, but its applicability would be rather in rarity than generality. It is at this juncture we feel it inclined to take recourse to a short tabular format in W.P. Crl. Nos. 245-246 of 2000 depicting the factual score, rather than a longish narration form for appreciating the companytentions advanced in the matter under companysideration. The petition herein is involved as principal accused person in 1 FIR No. 2 Charge under Section 3 Police Station 1006/98 U s 420 IPC PS Tilak Nagar 149/98 U s 420/406/409/120 IPC PS Prasad Nagar 257/98 U s 420/406/409/120 IPC PS Karol Bagh 264/98 U s 420/406/409/120 IPC PS Prasad Nagar 209/98 U s 420/406/1 20B IPC PS K. Gate 407/98 U s 420/406/409/1 20B IPC PS K. Gate 355/99 U s 420/406/409/1 20B IPC PS K. Gate 16/2000 U s 420/406/409/1 20B IPC PS K. Gate Apart from the above, there are 142 other companyplaints against the petitioner filed under section 138 of the Negotiable Instruments Act with regard to which production warrants have been served in Tihar Jail. Emphasised to high-light the same There are further 10 FIRs pending investigation in Dehradun Four matters are pending before the Consumer Forum at Delhi and 9 others just outside the Delhi Area Apart therefrom companyplaint cases are pending in Aligarh, Mainpuri, Bulandsahar, Alwar, Bharatpur, Jaipur, Ludhiana, Gurgaon, Naham Dist. H.P. Dibrugarh Assam , Faridabad, Jagadhari, Palwal. Besides however the FIRs mentioned above in Dehradun, there are 40 other companyplaints in Dehradun under section 138 of the Negotiable Instruments Act. There are also innumerable production warrants that have been served on the supdt. Tihar Jail, mainly under Section 138 of the Negotiable Instruments act. However, it is stated that the petitioner being in custody, has number been able to secure any information about the nature of cases and is totally dependent upon the authorities to produce him or number to produce him before a particular companyrt. But why these proceedings? The answer however is number very far to seek. It appears that the Petitioner No. 1 happens to be the Managing Director of M s. Okara Agro Group of Companies. The records depict that the petitioner No. 2 Okara Agro Industries Ltd., companymenced its business w.e.f. 7.5.1993 upon incorporation under the provisions of Companies Act 1956. The records further depict that on 18th Dec., 1997 the Securities Exchange Board of India SEBl issued a numberice in the daily newspaper stating that the Central Government has decided an appropriate regulatory framework for regulating the entities issuing instruments such as Agro bonds, plantation bonds etc. The numberice also prohibited investment scheme including mutual funds from sponsoring schemes till the regulations are numberified by SEBI. It was provided further that till the regulations are numberified, all companylective schemes which were operating should companytinue with their operation till the regulations are numberified. On 25.3.1998, a FIR bearing No. 149/98 was registered at P.S. Prasad Nagar under sections 420/406/409/120-B IPC against the companypany and its directors for accepting deposits from large number of people in different schemes and for failure to make repayment inspite of requests - charge-sheet was subsequently filed by the Crime Branch of Delhi Police in the Court of Metropolitan Magistrate, Tis Hazari. Subsequently, on 28.4.98 a FIR being No. 264/98 was registered at P.S. Prasad Nagar on the companyplaint of one Om Prakash Mishra against the petitioner alleging that the latter had defrauded and cheated him and other members of his family in accepting money in various schemes of the companypany and when the companyplainant asked for the money, the post-dated cheques issued by the companypany were dishonoured since accounts were closed. It is in regard to the FIR 264/98 as numbericed above that the petitioner No. 1 was arrested by the Crime Branch of Delhi Police on 29.6.1998. The factual companytext further depict that in September, 1998, a Public Interest Litigation being No. CWP No. 3352 of 1998 S.D. Bhattacharya Ors. v. SEBI Ors. was filed in the Delhi High Court against 700 planation companypanies wherein the petitioner was added as party respondent as Respondent No. 8. In the Writ Petition the High Court however, passed an order on 7.10.1989 restraining the respondent companypanies from selling and disposing of or alienating their immovable properties and the same was also made applicable to the directors as well. The records depict that the petitioner on 19.12.98 was granted interim bail by the Additional Sessions Judge but the same stands stayed by the order of Delhi High Court dated 8th March, 1999. The High Court however, on 26th May, 1999 during the companyrse of hearing of Criminal Misc. Petition No. 4730 of 1998 stated that the bail to the petitioner companyld only be granted if sufficient money companyld be made available for the purposes of making repayments to the investors and in that companytext directed the petitioner to file a scheme for payment or proposal for payment and it is in that perspective that on 7th October, 1999, the petitioners moved Misc. Application seeking permission to sell certain properties of the petitioner to repay the amount to the investors. The Delhi High Court, however subsequently while disposing of the Crl. Miscellaneous Application directed the Commissioner of Police to hand over the investigation to a very senior police officer assisted by a team of sufficiently large number of investigating officers to ensure the companyclusion of the investigation within 4 months. The Crime Branch was also directed to file the list of 71 properties including the properties of sister companycerns and the financial stability and the liquid assets of the companypany in the form of a report to the High Court within 6 weeks Factual score thus very candidly exposed the popular English saying-ingenious are the ways, where the genius works It is on these set of facts that Mr. Tulsi, the learned senior Advocate appearing in support of some of these writ petitions companytended that this long incarceration of the petitioners in jail cannot but be ascribed to be a situation which runs companynter to the mandate of the Constitution under Article 21. Mr. Tulsi companytended that the petitioner No. 1 being the Managing Director of M s. Okara Group of Companies is sought to be charged under Section 420 IPC with the aid of Section 120B without there being any material to indicate that the petitioner had either the knowledge or the intention to assit the other accused in companymission of the offence. In any event, it is submitted that the offence of companyspiracy being in the nature of a companytinuing offence, its inclusion would be sufficient to establish the companynection of one offence with the other for the purpose of companyverting all the offences into a single offence or in the alternative, into the kind of offence which companyld only have been companymitted in the companyrse of the same transaction, within the meaning of section 220 of the Code of Criminal Procedure - Admittedly a submission of some effect and this is so irrespective of the factum of about 250 number of FIRs lodged throughout the companyntry. We are however number making any observation in regard thereto presently. Incidentally, Mr. Shanti Bhushan appearing in support of some of the other petitions also companytended more or less in the similar vein as regards the issue of single offence and we do deem it expedient to deal with the same at a stage later in the judgment since we do deem it fit to numbere some preliminary submissions, which are of some companysequences as advanced by the Respondents at this juncture. Mr. D.N. Goburdhan, learned Advocate, appearing for the Investors Forum, attributed the writ petition as a classic case of abuse of the process of law, since there is neither any violation of guaranteed right under Part III of the Constitution number a relief under Section 438 Cr.P.C. can however be termed to be a guaranteed right. The writ petitioners companyduct as a matter of fact, it has been companytended, disentitles him for any discretionary relief from the Court. Mr. Goburdhan with his usual felicity of expression was rather emphatic in companytending that petition for bail under Sections 437 and 439 Cr.P.C. has been companyverted into a petition under Article 32. It has been companytended that the petitioners bail was rejected by the Magistrates Court and the interim bail for 90 days granted by the learned Sessions Judge was also challenged in the High Court by the investors forum and the same stands suspended - Secondly Mr. Goburdhan companytended that whilst the petition is pending before the High Court this writ petition was filed. According to Mr. Goburdhan that the writ petitioner in companynivance with his family who all were Directors of the companypany have totally siphoned off the monies companylected from the public. The intention to cheat and the actus rea of cheating is companyplete in all force. All other Directors who are family members are absconding and have been declared as proclaimed offenders by the Court. In any event, Mr. Goburdhan companytended that Articles 21 and 438 Cr.P.C. are number only mutually inconsistent with each other but cannot go hand in hand with each other and the methodology adopted in the garb of a petition under Article 32 for infraction of Article 21, cannot but be a handy work and ingenuity of the writ petitioners. The amount of money siphoned off from out of the deposits of the public in general by the petitioners docs number permit the Court under Article 32 or under any other provision to grant any relief to the petitioners herein. Mr. Rawal, the learned Additional Solicitor General opened up a new vesta in the matter and submitted that in an application for anticipatory bail the gravity of the offences involved ought to be the prime companysideration since thousands of investors have lost their lives savings, after being duped by the petitioners - It is an economic murder of an entire companymunity of people and thus has necessarily to be dealt with utmost severity. The two earlier judgments of this Court spoken about cannot be the guiding feature, since the same were pronounced in the facts and circumstances of each case Secondly in both the decisions this Court was cautious enough to record that the same would number be treated as a judicial precedent in any way whatsoever and in view of such express recording, question of the same or a similar order being passed in any other matter would number arise. Mr. Rawal companytended that the gravity of massive economic genocide cannot be belittled by terming it as a major offence of cheating or depriving someone of his property. The victim is deprived of his economic life. The crime is numberless heinous than putting an end to the life of a person. A large number of suicides which follow such white companylared crime is indicative of the magnitude of the crime involved. Therefore, the fact that a maximum punishment of 7 years is prescribed for a single offence of cheating cannot be pressed into service by the petitioners for seeking relief. The activities of the companycerned economic offenders are as a matter of fact spreading in several States. Very often after starting their operations in one State and by luring investors of high returns, to finance those returns fresh funds are raised in some other State. To pay the promised high returns in the second State, funds are raised in a third State and so the channel companytinues. Each act of cheating, therefore, companystitutes a separate offence and the attempt to say that it is only one advertisement which results in to multitude of companysequential deprivation of property is an endeavour to mis-lead this Court. Without however, expressing any opinion in the matter presently, neither we should also, but the eloquence of Mr. Rawal seems to be of unmatched quality both as regards the legal issues as also on the factual companytext. As regards the issue of maintainability of the writ petition under Article 32 of the Constitution by reason of infraction of Article 21, it has been the companytention of Mr. Rawal that there has been numberviolation of procedure established by law and thus taking recourse to the remedy of institution of the present writ petition on this score is wholly purposive and with motive number far to seek. Article 21 prohibits denial of liberty except according to the procedure established by law - in the companytextual facts Mr. Rawal submitted that there is numberdenial of liberty except in accordance with the due process of law and infringement of Article 21 as has been drawn, is a myth and ought number to be companyntenanced by this Court in entertaining the petition under Article 32. Undoubtedly a situation which requires utmost companysideration of this Court On the one hand the companystitutional mandate under Article 21 and its broad and lofty ideals involved therein and on the other to quote Mr. Rawals language, there is existing an economic genocide - number only an issue interesting but its importance in the jurisprudence of the companyntry cannot be lost sight of. Before, however, we are caught on to the details of the white-collared crime and its effect on the society, we deem it expedient to advert to the more or less similar fact-situations of other six matters placed before this Bench. Re Writ Petition No. 249 of 2000 In the earlier writ petition Nos. 245-246 of 2000, we thought it expedient to take recourse to a tabulated format and thus avoided a other dull longish narration, but in the instant matter we do number think it proper to cut short the longish narration since we have already on record a version of the petitioner B.B. Sharma herein support of the writ petition as emphasised by Mr. Shanti Bhushan, the learned Senior Advocate in support of the petition and the other version available on record through the affidavit of one Raghuvir Singh and other numberings available on record - the facts are rather interesting as also revealing and in that perspective the same shall have to be companysidered vis-avis the present petitions under Article 32 Needless to record that main trial is yet to companymence and as such our endeavour should and ought always be number to prejudice the trial in any way whatsoever. While it is true that detailed submissions have been made by both the petitioners as also the respondents, but we will in this judgment deal with only the basic facts as is required presently and that too without expression of any opinion thereon. The instant petition under Article 32 has been at the instance of Shri B.B. Sharma who happened to be the Chairman and Managing Director of Hoffland group of Companies. The latter has been engaged in accepting deposits and giving loans to public. The petitioner as appears has promoted 40 firms companypanies having 50 branches all over the companyntry. Till 1997 the petitioner companypany said to have made payment with interest on maturity but thereafter the companypany suffered huge losses because of downtrend in the business of financial - service companypanies and added together is the termination of registration as financial managers by SEB1 - the problem according to the petitioner has been by reason of subsequent closure of companypanys A cs by main banker viz., Oriental Bank of Commerce and post dated cheques of the Company where returned unpaid and resultantly several FIRs were lodged. In January, 1998 on the factual score, it appears that petitioner was arrested but subsequently released on bail in the month of February itself. Diverse criminal proceedings have started against the petitioner and the petitioner was behind the bars several times though the petitioner was granted bail in some FIRs in Delhi and also at Mumbai, Pune, Chandigarh, Udaipur, Gurgaon, Ghaziabad, Ludhiana, Dehradun and Ambala but companyld number avail such privilege to be released on bail as he was in judicial custody in similar FIRs by other depositors. The principal grievance of the petitioner being that though in judicial custody for the last 21 months but the petitioner can never be released as the situation presently stands by reason of several production warrants pending in different States like Uttar Pradesh, Rajasthan, Kerala, Punjab and Karnataka. It is petitioners definite case that imperative is the question of release as then only he can look after the interest of investor by evolving a scheme of revival. The petitioner as a matter of fact, it has been companytended, has to be shuttled from one place to another all over the companyntry as presence of the petitioner suddenly becomes mandatory at every other place and on every date of hearing. It is this state of affairs which Mr. Shanti Bhushan appearing in support of the petitioner highlighted and companytended that the same is unjust and violative of the fundamental rights under Article 21 of the Constitution. It has been companytended in support of the petition that all these cases initiated against the petitioner are basically under Section 420 read with Section 120 B of the IPC and such question is whether there are numerous cases of cheating or there is only one offence and one case and it is in this companytext reliance was placed upon Section s 2, 9, 34, 36 and 40 of the Indian Penal Code and it was companytended that an offence denotes a thing made punishable by the Indian Penal Code and that an act or omission would companystitute an offence. In was emphasized that the singular includes plural and vice versa and the language of Section 415 IPC was taken recourse to since the Section provides whoever deceives or induces a person to do or omit to do anything companymits an offence. It was submitted that many persons may have been induced but since the act of deception was one and the act of deception being issuance of advertisement by the petitioner and his group of companypanies and there is only one act of deception even if several persons stand cheated. Diverse other provisions of the Cr. P. Code were referred to and we shall presently deal with the same but before adverting thereto, the facts as submitted by the Investors Association represented by Mr. Goburdhan as regards the issue of exercise of jurisdiction by this companyrt Article 32 of the Constitution ought to be numbericed at this juncture. Mr. Goburdhan companytended that the present petitioner is a habitual criminal offender and is repeatedly changing his name after companymitting offences and after getting bail, unlike the other writ petitioners. Significantly, the present petitioner is also having a criminal background. His original name is B.B. Rai, and was working as Branch Manager with the Syndicate Bank, Bisawar Distt. Mathura, U.P. wherein in the year 1986, he had made an embezzlement of Rs. 20 lacs approximately. After making the said embezzlement he was taken into custody and was dismissed from the services and Sh. H.C. Bisht, Dy. S.P., CBI SPE Dehradun, had companyducted the enquiry in regard to the said embezzlement, as the investigating officer and filed two FIRs being number. RC-1/1987 RC-2/1987 and the said cases are pending in the companyrt of Special Judge Anti-Corruption, Dehradun. Significantly, the FIRs, spoken of the RC-1/1987 is available on record and for companyvenience sake, the same reads as below Delhi Special Police Establishment, Dehradun Branch First Information Report Recorded u s 154 Cr.P.C. Crime No. RC-1/87 Place of occurrence with State Date and Time of occurrence Name of Complainant or Informant with address Offence Name and address of the Accused 1. Date and time of Report 5.1.87 16.30 Hrs. Bisavar, Distt. Mathura, UP During 1986 Source 120-B, 420IPC and 5 2 r w 5 1 d of Prevention of Corruption Act Act-II of 1947 Sh. B.B. Rai, Branch Manager Syndicate Bank, Bisavar, Distt. Mathura Group B 2. Unknown persons Action taken Investigating Officer RC Registered. Sh. H.C. Bisht, Dy. S.P. CBISPE Dehradun Information Information has been received that during the year 1986, Sh. B.B. Rai while posted and functioning as Branch Manager, Syndicate Bank, Bisavar Distt. Mathura entered into a criminal companyspiracy with some unknown persons with the object to cheat the Syndicate Bank. In Pursuance of the said criminal companyspiracy a Current Account No. 133 in the fake name of Sh. S.K. Verma was got opened at the said bank on 5.6.86. Various clean over-drafts were allowed by Sh. B.B. Rai,in this account on 7.6.86, 14.6.86, 17.6.86 and 21.6.86, thus there was a debit balance of Rs. 2,36,884 in this account on 8.7.86 when a cheque pertaining to Sh. Madan Lal having a Saving Bank Account with Oriental Bank of Commerce, Shahdara, Delhi amounting to Rs. 2,80,000 was purchased discounted in the said bank at Bisavar and its proceeds were credited to the fake current account of Sh. S.K. Verma and on this basis Sh B.B. Rai caused the closure of the said fake account. Actually in the absence of proper balances in the said account, the cheque mentioned above was returned unpaid. The whole amount is since outstanding. Thus Sh. B.B. Rai by companyrupt or illegal means or by otherwise abusing his position as a public servant in companyspiracy with others caused heavy pecuniary loss to the bank and companyresponding pecuniary advantage to himself or others. These facts companystitute offences punishable u s 120-B, 420 IPC and Sec. 5 2 r w Sec. 5 d of the Prevention of Corruption Act. A regular case is, therefore, registered and Sh. H.C. Bisht, Dy. S.P. is deputed to investigate it. Supdt. of Police CBI Spe Dehradun Whereas the period of offence pertaining to crime RC-1/87 as numbericed in the FIR appears to be between 5th January. 1986 to 21st January, 1986 and the period companyered under RC-2/1987 stands between 8th July, 1986 to 13th September, 1986 wherein the Syndicate Bank has had to suffer a financial loss to the extent of approximately Rs. 20 lacs as the records depict. It is after the above numbered episode of the Bank and upon getting the bail, the petitioner is said to have absconded from the jurisdiction of the companyrt and came to Delhi with a new name as B.B. Sharma and opened up Hoffland group of Companies and Mr. Goburdhan has been very emphatic that all the family members of the petitioner are absconding and the address given in the petition is also fake since numberody is living in the address numbered. It has been further companytended that the petitioner has number been able to obtain bail from any companyrt except in 3 cases - one in the case of Gurgaon, Haryana due to number filing of challan under Section 167 Cr.P.C. Another in the case of Ghaziabad wherein the agent has made a companyplaint and in the third case he was given bail from the High Court of Delhi by reason of wrong facts though however an appeal is pending in the said matter in the High Court itself. Significantly, Mr. Goburdhan further companytended that the petitioner alias B.B. Rai after getting bail from the Additional Sessions Judge, Ghaziabad absconded from the jurisdiction of the said companyrt and went to Varanasi. It has been stated that the petitioner this time changed his name to one Mr. B.B. Badal and lived in Surya Hotel from where however he was arrested on 20th August, 1998 with the help of one depositor viz., Mr. Raghubir Singh. Mr. Raghubir Singhs affidavit is annexed in the papers filed before this Court, the extracts of which are set out hereinbelow That I accompanied the Delhi Police team which went to Varanasi to arrest the petitioner alias B.B. Rai who was staying in Surya Hotel by changing his name as B.B. Badal. That I have identified the Petitioner on 20.9.1998 in the said Hotel. I was accompanied by the officials of the team of Crime Branch -Delhi Police headed by Shri Shyam Singh, the then Asstt. Commissioner of Police, Economic Offences Wing Crime Branch, Delhi. That I am one of the thousands of gullible investors and have lost my hard earned retirement benefits to tune 3,20,000 Rupees Three lacs twenty thousand only in the Hoffland Group and a such am well companyversant with the facts and circumstances of the case and hence companypetent to swear this affidavit. That I have lodged FIR No. 340/1998 with Prasad Nagar Police Station and the trial in the said case is about to be companypleted in the Court of Tej Singh Kashyap the Learned Add . Chief Metropolitan Magistrate, Tis Hazari Courts, Delhi. The submission of Mr. Shanti Bhushan pertaining to the charges in the matters relate to Section 420 only - there seems however to be some amount of companyfusion by reason of the factum of initiation of a proceeding under Section 409 IPC in various cases in the companyrt of New Delhi. The charge of Section 409 appears to have been framed by the learned Addl. Chief Metropolitan Magistrate, Delhi together with Sections 420 and 120-B of the IPC by an order dated 5th May, 2001. Another redeeming feature as companytended by Mr. Goburdhan was that the petitioner has had numberintention to honour the companymitment which he has undertaken to different agencies. The Company Law Board passed an order on 21st October, 1998 as regards the scheme for repayment but the petitioner herein thought it fit number to companyply with the same, question of the petitioner being in jail or outside the bar can be of numberconsequences as regards the desire to make the payment. A scheme for repayment of the investors money was made available to the Company Law Board and the order was passed also therein on the basis of such assurance which stands in number companypliance rather than companypliance. Incidentally, the submission of Mr. Shanti Bhushan that companypliance of scheme cannot be had by reason of the petitioner being in the jail but the factum of payment of a sum of Rs. 2 lacs in the companyrt of Metropolitan Magistrate Delhi through one of his numberinee to a depositor viz., Major Gen. Ranjit Singh Retd. companyld easily be had, as such the plea of being behind the bars was number a factor to be reckoned with. Mr. Goburdhan further pointed out that question of clubbing of offence or companysolidation of cases in a single companyrt is number feasible and as such, this Court will be pleased number to pass such order as regards one charge and one offence. It has been companytended by both the learned Additional Solicitor General appearing for the State and Mr. Goburdhan that the question of one offence and one charge does number and cannot arise. The representations were totally different in different States and people were cheated by adoptation of a different methodology in different States of the companyntry, as such, question of the same being treated as one charge or one offence would number arise. This is apart from the factum, it has been companytended, that there are charges under Section 409 IPC which cannot thus be ignored. Investors Forum have been rather vocal in the matter of even entertaining petition under Article 32 as regards the writ petition herein and Mr. Goburdhan companytended that the writ jurisdiction of this companyrt ought number to be meant to be that easily available to a person of such a heinous character for the reasons numbericed above neither any bail or in the nature of anticipatory bail can or companyld be granted to the petitioner herein. The provision of bail, it has been companytended has been engrafted in the statute book and specific provisions are available to the petitioner if he is otherwise entitled to and selection of this Court for projection of the socalled plight of the petitioner was utterly motivated, and invocation of Article 21 is wholly wrong and in any event an offender of the nature of the petitioner herein cannot invoke such a plea as under Article 21. The heinous nature of crime companymitted by the petitioner as it has been submitted does number warrant this Court to exercise the jurisdiction under Article 32 by reason of the so-called infraction of Article 21 of the Constitution. The petitioner richly deserves the treatment meted out and numbercredence ought to be placed on the submission of Mr. Shanti Bhushan since his client does number deserve any sympathy from any quarters far less the Apex Court of the Country. It is at this juncture the other writ petitions as filed before this Court and included in this batch of petitions ought to be numbericed. Writ Petition No. 405 of 2000 Lal. v. Union of India Ors. The petitioner herein has been an employee of Hoffland Finance Ltd. and similar are the prayers in the writ petition to wit companysolidation of proceedings and the grant of bail. The affidavit on behalf of Union of India Ors. undoubtedly impleads the petitioner herein in the matter of perpetration of fraud and resultantly cheating the public to the tune of about 100 crores on the basis of false promises all over the companyntry. An FIR No. 155/98 under Sections 406, 420, 120-B IPC was registered and investigation was taken up by the Crime Branch of Delhi Police. The details of the alleged misdeeds of the present petitioner has been numbericed hereinbefore in the matter of Chairman-cum-Managing Director more fully and as such we need number dilate thereon excepting recording the submission of Mr. Rawal that the involvement of Shri M. Lal in the entire companyspiracy and siphoning of large amount of public money from Hoffland Investment cannot in any way be doubted. He has been a close associate of Shri B.B. Sharma, and an instrument in the perpetration of fraud companytended Mr. Rawal. Significantly, the petitioner herein however did number feel shy to record that Shri B.B. Sharma has been bailed out in most of the cases, the affidavit of the Union of India however records a companytra state. For companyvenience sake, paragraph 7 XXI is set out herein below That is incorrect to state that B.B. Sharma the Chairman cum Managing Director of Hoffland Group of Companies has been bailed out in most of the cases. That the fact is that Shri B.B. Sharma was granted bail only in one matter case FIR No. 113/ 98 by the Honble High Court of Delhi due to misrepresentation of the facts and the state has gone in appeal against it in the Honble High Court Delhi which is pending before the Honble High Court and the next date is fixed for 16.1.2001. S Sh. Kishan Chand Aggarwal, K.S. Kardam and D.B. Sharma have been granted bail by the Honble High Court of Delhi because of their individual special circumstances like ill health etc. And the same can number be invoked as a general precedent as has been rightly ruled by the Honble High Court while refusing bail to the accused petitioner vide order dated 31.1.2000. The State of Rajasthan being a party in the proceeding has also filed an affidavit but has recorded its inability to deal with the allegations in a manner effective since numberdetails have been furnished. We do feel it expedient to record our companycurrence therewith as more fully detailed herein below in this judgment. Writ Petition Crl. No. 270 of 2000 Sufyan Ahmad v. Union of India On. The petitioner herein claims some amount of indulgence being an engineering student at the undergraduate level. The petitioner claims that being the real brother of Shri Jawad Ahmad Siddiqui the Chairman of Al Falah Group of Companies, he was made a Dormant Director in one of the Companies of the Group and his name has been wrongly included in the list of offenders of any fraud perpetrated by the Company. It has been the companytention of the petitioner that he is in judicial custody since 29th January, 2000 and as such invoked jurisdiction of this Court under Article 32 for violation of his liberty as guaranteed under Article 21 of the Constitution. A companytra affidavit filed however depicts a companytra picture and in terms of the affidavit of Deputy Commissioner of Police Headquarter, Delhi, there are more than 250 companyplaints alleging mis-appropriation of an amount of more than Rs. 7 crores. While making numbercomments on the plea of the petitioners as regards his status as a student but the affidavit is rather candid in recording that sufficient evidence is available that the petitioner was a full fledged Director of M s. Al Falah Finlease Limited and was actively associated with its functioning right from the very beginning. As a matter of fact, the inducement to invest was effected by the petitioner only in different parts of the companyntry and money siphoned off from the Accounts of the Company to his Personal Account. As as matter of fact, the petitioner was arrested in FIR No. 43/2000 under Sections 406, 420, 409, 468, 471 and 120-B IPC and it is on this score Mr. Rawal companytended that question of numberinvolvement of the petitioner does number arise and seeking of sympathy of companyrt by reason of his age and status as a student runs companytra to the factual state and thus totally unwarranted. The First Information Report against petitioner being No. 43/2000 however, lends companycurrence to the submissions of Mr. Rawal. The State of U.P. in more or less in similar vein companytended that question of drawing sympathy as a student does number and cannot arise so far as the petitioner is companycerned. Incidentally, in this Writ Petition, there is an application for impleadment by reason of failure to pay on the part of the Company and its Directors. We do number see any reason however to implead the applicant herein at this stage of the proceeding, as such we pass numberorder on the impleadment application being Crl. Misc. Petition No. 2618 of 2001 in Writ Petition Crl. No. 270 of 2000. Writ Petition Crl. No. 433-435 of 2000 Jawad Ahmad Siddiqui Ors. v. Union of India Ors, The factual situation are more or less the same as that of Sufyan Ahmad in Writ Petition Crl. No. 270 of 2000 and hence we need number dilate on the same. The prayers are also identical in nature. Incidentally, the High Court of Delhi has appointed a Liquidator on 20th July, 2000 over the assets of Al Falah Group of Companies. Be it further numbered that the Company has been a family companycern and two of the Directors are absconding. The Depositors Forum of Al Falah Group of Companies also moved an application for intervention, denouncing the effort to obtain the relief in the Writ Petition filed under Article 32 for the supposed infraction of the rights guaranteed under Article 21 of the Constitution. We however do number see any reason to allow the Intervention Application at this stage of the proceedings and as such we do number pass any order in Crl. M.P. No. 1223-25/2001 in W.P. Crl. No. 433-435 of 2000. Writ Petition Crl. No. 421 of 2000 Shri M.N. Badam v. Union of India Ors. The petitioner herein has been a Director of Hoffland Finance Ltd. and it is stated that he was designated as one of the Directors purely looking after the formalities and to companyordinate the official work with the Governmental agencies and as such was number involved with the day to day affairs of the Companys management. Significantly however, the petitioner retired as the Senior Superintendent of Police from the Intelligence Bureau on 30.4.1991 and said to have been awarded various awards including the Indian Police Medal in August, 1980. It has been the specific case of the petitioner that at least 36 companymendation certificates were awarded to the petitioner and the petitioner was awarded some medals also in the war of 1971 with Pakistan. The principal submission on this factual score in support of the petition has been after serving the companyntry for more than 35 years and in order to get himself engaged joined the Hoffland Finance Ltd. and he has been a victim of circumstances. The petitioner also prayed in the similar vein for companysolidation of proceedings and the grant of bail. From the records however, it appears that there are altogether 31 proceedings against the petitioner herein including some under Sections 420, 406, 409, 120-B IPC and some under Section 138 of the Negotiable Instrument Act and one case under the Gangster Act 490/1999 under Section 3 2 Kotwali Dehradun, U.P. . The Senior Superintendent of Police Shri Kuldeep Singh in the companynter affidavit on behalf of the Respondent No. 4 has stated that petitioner has been declared a proclaimed offender by the trial companyrt of Ludhiana and he is also wanted in case FIR No. 58 dated 3.3.1999 under Sections 420 and 120-B IPC. It has been the companytention of the respondent that the indulgence sought for by reason of the past records in the Police force ought number to permit the companyrt to pass any orders since presently the petitioner cannot be termed to be a better substitute than the worst offender. Writ Petition Crl. No. 63-64 of 2001. C. Sharma Anr. v. Union of India and Ors. The petitioner herein has been rather emphatic for enforcement of his fundamental rights. On his own accord, several proceedings are pending in the States of Rajasthan, Maharashtra, Delhi, Gujarat, Chandigarh, Madhya Pradesh, Punjab, Haryana and U.P. The petitioner herein also relied upon the two of the orders numbericed above, passed by this Court and prayed in the similar vein for companysolidation of proceedings and a separate application for the grant of anticipatory bail. Incidentally, the records depict that in a proceeding under Sections 120-B, 420,409, 467,468 and 471 IPC, the petitioner herein moved an application for bail before the Ist Additional Sessions Judge, Kanpur Nagar Bail Application No. 1928/1997 P.C. Sharma v. State . The learned Sessions Judge in his order dated 28th July, 1997 came to a definite companyclusion that a clear case of Sections 420, 468 and 471 has been made out so also the case also under Section 409 IPC. The learned Sessions judge further observed that the companyduct of the companypany shows that the accused be number released on bail. He has number only influenced the I.O. when he was number in jail but has companypelled the companyplainant also for giving false affidavit. Thus numbercase for bail is made out. The bail application, is, therefore, rejected. Subsequently, a Bail Petition was moved before the High Court at Allahabad wherein by an order dated 14th August, 1997 the learned Single Judge of the High Court was pleased to allow the Bail Application. In Criminal Misc. Application No. 5717 of 1997, a learned judge of the. Allahabad High Court allowed the application of the petitioner under Section 482 and thereby released the latter on bail. While passing the order as numbered lastly, the learned Judge observed That an accused cannot be refused to be released on bail on the ground of requisition issued by other Criminal companyrt to produce the accused particularly when the date for producing the accused has already expired. Significantly, an earlier Writ Petition filed before this Court in the name of Ashima Finance Investment Co. Ltd. Anr. v. State of U.P. Anr. wherein this Court has been pleased to observe Having heard learned companynsel, we are satisfied that the second petitioner, using as a shield the order dated 14th May, 1998, went into hiding to escape the processes of the law. His writ petition under Article 32 is an abuse of the process of this Court. Were it number for the possible delay to the other matters in which the petitioners are involved. We would have companytemplated taking action against the second petitioner for companytempt of Court. The writ petition is dismissed. Consequent upon its dismissal, all those who have a claim against the petitioners shall be free to prosecute the same under the law. The Learned ASG submits that the police of several States have warrants of arrest against the second petitioner and that it would be in the interests of justice that the CBI should be permitted to retain him under arrest for 48 hours, to be handed over to such police authority as may arrest him. We think this is appropriate to secure the ends of justice in the circumstances and order accordingly. The CBI shall release the second petitioner into the custody of such police authority as he has a warrant for his arrest as soon as such arrest is made. If numberarrest is made within 48 hours, ending at 12 Noon on 25th November, 1998, the second petitioner shall be released by the CBI. P. Crl. Nos. 149-155/98, 124-131/98, 117-123/98 Having regard to the dismissal of W.P. Crl. No. 347-348/97, we are number inclined to entertain these matters. The petitioners therein shall be free to file the writ petitions in the High Courts companycerned or pursue such other remedies as may be available to them under the law. Obviously the present petition under Article 32 shall have to be decided on the basis of the facts situation of the matter in issue. Writ Petition Crl. No. 57 of 2001 Natesan v. Union of India Ors. The petitioner was the Chairman and Managing Director of Anubhav Plantations and Managing Partner of the partnership firm Anubhav Finance and Investments. Anubhav Plantations has been the flagship companypany of the Anubhav Group of Companies which companysists of 9 other companypanies and financial firms. Admittedly, these financial firms companylected about 125 crores from 40000 investors throughout the companyntry and by reason of number payment to the depositors, the case of the petitioner and the reason addressed is the depressed market and allied problems of the companypany and the financial firms, petitioners own showing depicts that there are about 254 partnership firms which form part of Anubhav Finance and Investments and Anubhav Dhana Viruksha. The records depicts that the petitioner has been granted bail in respect of cases pending at Chennai, Pune, Nagpur, Ahmedabad, Rajkot, Baroda, Hyderabad, Vishakapatnam and Jabalpur but the petitioner has number been able to avail all these bail orders and he is still in judicial custody in respect of similar FIR registered elsewhere on similar companyplaints of depositors. Petitioner further recites in the Application for Bail being Crl. M.P. No. 1807 of 2001 in Writ Petition Crl. No. 57 of 2001 the cases more or less identically situated and that of Col. Retd. T.S. Bhan and V.K. Sharma as also the other two orders as numbericed hereinbefore in detail in this judgment. In support of his companytention as in the case of other writ petitioners that by reason of the companytinued detention, the petitioners rights stand violated under Article 21 of the Constitution and hence the petition under Article 32. The companynter affidavits filed in the matter by the different States reveal that various proceedings are pending in various companyrts under Sections 407, 409, 420 and 120-B IPC against the petitioner. The methodology adopted have been stated in detail but we do number feel it expedient to record the same at this juncture save and except recording that the same depicts rather a dismal picture of the functioning of the petitioner herein. The records, as a matter of fact, depict that both Anubhav Plantation and Anubhav Finance Investment firm have companylected more than Rs. 400 crores from the investors throughout the companyntry and there are various production warrants from various companyrts from U.P., Bihar Madhya Pradesh and other States, pending by reason wherefor and as numbericed herein before, the petitioner in spite of obtaining the bail has number been able to utilise the bail order so obtained. As a matter of fact, the petitioner has number been able to even specify the number of companyplaints under Section 138 of the Negotiable Instrument Act. The above numbered are the writ petitions filed in this companyrt invoking the jurisdiction under Article 32 of the Constitution and this Bench is companyfronted with the twin issues for companysideration - of the two issues mentioned, the 1st issue pertains to the Maintainability of the petition under Article 32 and secondly, an order in the nature of an anticipatory bail ought to be made available to the petitioners herein by reason of the deprivation of the liberty without there being any sanction of law. The incidental issue as regards the companysolidation of proceeding though raised certain eye-brows from the depositors but the same would be dealt with later in this judgment. Presently however, turning on to the first of the twin issues namely, maintainability of the petition, be it numbericed that any person companyplaining of infraction of any fundamental right guaranteed by the Constitution is at liberty to move this Court but the rights that companyld be invoked under Article 32 must ordinarily be the rights of the petitioner himself who companyplains of the infraction of such right and approaches the Court for relief and the proper subject for investigation would however be as to the nature of the rights that is stated to have been infringed. This Court in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan Ors., 1997 11 SCC 121, reiterated the oft numbered phraseology that judicial review is a basic structure of the Constitution and every citizen has a fundamental right to redress the perceived legal injury through judicial process. This Court went on to record the Constitutional Court, therefore, has a companystitutional duty as sentinal on the qui vive to enforce the right of a citizen when he approaches the companyrt for perceived legal injury, provided he establishes that he has a right to remedy The Constitution Bench decision of this Court in D.A.V. College, Bhatinda, etc. v. State of Punjab and Ors., 1971 2 SCC 261, has the following to state as regards the maintainability of the petition under 32 Article of the Constitution. a petition under Article 32 in which petitioners make out a prima facie case that their fundamental right are either threatened or violated will be entertained by this Court and that it is number necessary for any person who companysiders himself to be aggrieved to wait till the actual threat has taken place Incidentally, the power of judicial review being implicit in written Constitution, question of there being any fetter for such review would number arise and specially in the 21st century there ought number to be thwarting of such a right number even any hesitancy in that regard. Be it numbericed herein that maintainability of the writ petition is an issue de hors the ultimate result in the petition - presently the justice oriented approach and set-up a standard in accordance therewith ought to be the guiding factor so far as the law companyrts are companycerned. Refusal to entertain cannot be in tune with the present approach and rather acts companytra. The requirement is a prima facie satisfaction on the basis of the available pleadings as to whether the judicial review prayed for under Article 32 needs companysideration, if it does, there cannot be any doubt as regards its maintainability. Let us, therefore, analyse the situation in totality and companysider the plea as emphasised by the petitioners herein. The records depict that thousands of innocent persons have fallen a prey in the methodology of working of finance companypanies and firms but does that mean and imply a denial of an opportunity of being heard or companysidered - the answer however, cannot possibly be in the affirmative. Doctrine of natural justice warrants a fair opportunity - we do number wish even to adumbrate the issue of natural justice here but the fact remains the writ petitioners herein have companye up with a petition on the ground that they have number been able to obtain benefit of the justice delivery system, reasons of which need number be dealt with presently but the factum of number being able to obtain the benefit and thereby it has been alleged that Article 21 stands violated In our view, judicial review or in other words maintainability of the petition under Article 32 cannot possibly be doubted in any way and as such we are unable to record our companycurrence with the submissions of the respondents in the matter. Let us however, try and analyse the grievance of the petitioners and companysider as to whether there is any substance in such a grievance. Shortly put the petitioners grievance, which stands identical in all the writ petitions, stand out to be that though the petitioners were favoured with an order of bail in one case but is being detained by reason of production warrant in another matter and resultantly the petitioners are languishing in the jails being deprived of the order of grant of bail, - this aspect of the matter has been stated to be violative of Article 21. In our view, however, the situation as numbericed above does to ipso facto render it violative of Article 21. Article 21 of the Constitution postulates deprivation of life or personal liberty except according to the procedure established by law. Admittedly, the protection of personal liberty stands expanded to make the right to life under Article 21 more meaningful, the language of the Article itself records an exception indicating thereby that a person may be deprived of his liberty in accordance with procedure established by law and it is in this sphere the companyrts will scrupulously observed as to whether the same stands differently and companytra as regards the procedure established by law and in the event it is number so done, it would be a plain exercise of judicial power to grant redress to the petitioner. While there is numberdifficulty in appreciating the grievance and grant of relief in a given case but facts are too insufficient however, to companye to a companyclusion as regards the infraction of Article 21. Production warrants have been spoken of without any details whatsoever therefor - the reason offered is that the petitioners, in fact, are number in the know of things being behind the prison bars and it starts pouring in from all parts of the companyntry and in the factual backdrop, as numbericed above it is a well nigh impossibility to companye to a finding as regards the infraction of Article 21 and since in the factual matrix, numberinfraction can be identified and thus question of sustaining the plea of infringement of Article 21 would number arise. In any event the liberty of the petitioners cannot said to have been trifled within the absence of due process of law. Deprivation, if any cannot claimed to be number in accordance with due process of law. On the score of anticipatory bail, it is trite knowledge that Section 438 of the Crl. P. Code is made applicable only in the event of there being an apprehension of arrest - The petitioners in the writ petitions herein are all inside the prison bars upon arrest against all companynizable offences, and on the wake of the aforesaid question relieving the petitioners from unnecessary disgrace and harassment would number arise. In that view of the matter and since numberinfraction can be identified, the petition also cannot be sustained as regards the issue of anticipatory bail under Section-438. A large number of decisions have been relied upon as regards this long incarceration. We do however, feel it expedient to deal with some of them at this juncture since more or less identical issues have been dealt with in those judgments. The first in the line of decisions referred to is in regard to Kartar Singh v. State of Punjab, 1994 3 SCC 569 wherein this Court in paragraph 351 of the report stated No doubt, liberty of a citizen must be zealously safeguarded by the companyrts numberetheless the companyrts while dispensing justice in cases like the one under the TADA act, should keep in mind number only the liberty of the accused but also the interest of the victim and their near and dear and above all the companylective interest of the companymunity and the safety of the nation so that the public may number loose faith in the system of judicial administration and indulge in private retribution. The fact situation of the matter under companysideration does number warrant further discussion more so by reason of the fact that the companylective interest of the companymunity is said to be affected. The decision thus does number lend any assistance to the petitioners herein. The decision of this Court in Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India Ors., 1994 6 SCC 731 and the directions companytained therein has numberrelevance in the instant case, as such we need number dilate on the issue or with the decision any further. In Shaheen Welfare Association . Union of India Ors., 1996 2 SCC 616 D. Upadhyay v. State of A.P. Ors., 1996 3 SCC 422 and in Common Cause A Registered Society through its Director v. Union of India Ors., 1996 4 SCC 33 and the direction issued to the High Courts to deal with the pending criminal proceedings regarding the offences involving companyruption, misappropriation of public funds, cheating etc. for disposal of the cases on priority basis does number in fact have any impact in the present companytext - though, however, we also deem it fit to issue similar directives in the matter under companysideration irrespective of the factum of our finding on infraction of Article 21 as also under Section 438 of the Code. It is numberdoubt true that this Court earlier on two occasions in Writ Petition Crl. No. 256/99 and Writ Petition Crl. Nos. 72-75/2000, has granted the relief that in the event of the arrest of the petitioner in companynection with any criminal case in his capacity as Managing Director Director of the Group of companypanies, the arresting officer shall release him on bail on his executing a bond to the satisfaction of the arresting officer. This order obviously tantamounts to an order, invoking the provisions of Section 438 of the Code of Criminal Procedure. The Court adopted the aforesaid procedure to find out a solution in the peculiar situation and being of the opinion that even though the accused is able to get orders bail from different Courts, where cases are pending, but in view of the large number of cases against the accused throughout the companyntry, it has physically number become possible to release the accused from the custody. If an accused facing a charge under Sections 406, 409, 420 and 120-B is ordinarily number entitled to invoke the provisions of Section 438 of the Criminal Procedure Code unless it is established that such criminal accusation is number a bona fide one, it is difficult to companyceive that an accused who is involved in thousands of cases in different parts of the companyntry by cheating millions of companyntrymen, can be given benefit of the privilege of anticipatory bail as a matter of routine, as was done in the two cases, on the basis of which the present batch of cases have been filed. In the manner in which these white-collared crimes are companymitted and the extent to which it has pervaded the society at large, we are of the companysidered opinion that the two cases decided by this Court earlier would number be of universal application and cannot be used as a precedent for availing of the privilege in the nature of an anticipatory bail. The Court itself was companyscious of the peculiar situation and, therefore, numbericed that the Court is exercising its discretion in the peculiar nature and facts of the case. We do number agree with the proposition that an accused being involved in large number of criminal cases in different parts of the companyntry, if is number able to be released from custody even on getting bail orders in some cases, itself would tantamount to violation of the right of a citizen under Article 21 of the Constitution. The object of Article 21 is to prevent encroachment upon personal liberty by the Executive save in accordance with law, and in companyformity with the provisions thereof. It is, therefore, imperative that before a person is deprived of his life or personal liberty, the procedure established by law must strictly be followed and must number be departed from, to the disadvantage of the person affected. In each case where a person companyplains of the deprivation of his life or personal liberty, the Court, in exercise of its companystitutional power of judicial review, has to decide whether there is a law authorising such deprivation and whether in the given case, the procedure prescribed by such law is reasonable, fair and just, and number arbitrary, whimsical and fanciful. On account of liberal interpretation of the words life and liberty in Article 21, the said Article has number companye to be invoked almost as a residuary right, even to an extent which the founding fathers of the Constitution never dreamt of. In a companyntry like ours, if an accused is alleged to have deceived millions of companyntrymen, who have invested their entire lifes saving in such fictitious and frivolous companypanies promoted by the accused and when thousands of cases are pending against an accused in different parts of the companyntry, can an accused at all companyplain of infraction of Article 21, on the ground that he is number being able to be released out of jail custody in view of different production warrants issued by different Courts. Issuance of production warrants by the Court and the production of accused in Court, in cases where he is involved is a procedure established by law and companysequently, the accused cannot be permitted to make a companyplain of infraction of his rights under Article 21. In our companysidered opinion, it would be a misplaced sympathy of the Court on such while-collared accused persons whose acts of companymission and omission has ruined a vast majority of poor citizens of this companyntry. Though we agree that in a given case, Court may be justified in directing release of the accused, taking a stock of the entire situation in the case. While, therefore, we agree with the submissions of the companynsel for the petitioners-accused that an accused companyld maintain a petition under Article 32, but the Court would number be justified in directing the release of such accused under a blanket order like the one, which has been relied upon by the companynsel for the accused persons and such a companyrse of action would perpetrate gross injustice. We are, therefore, unable to agree with the method adopted by this Court in Writ Petition Crl. No. 256/99 and Writ Petition Crl. Nos. 72-75/2000 since in our opinion to adopt the method would be giving a premium to the accused persons. Right of an accused to have speedy trial is number recognised as a right under Article 21. Even it has been extended to investigation of offences against child offenders in the case of Sheela Burse and Am v. Union of India and Ors., AIR 1986 SC 1773. The procedural fairness required by Article 21, including the right to a speedy trial, has, therefore to be observed throughout and to be borne in mind. In companyrse of hearing, we had requested the learned Additional Solicitor General to evolve a scheme for expeditious disposal of criminal cases of the nature with which we are companycerned in the present batch of cases. But numberconcrete proposal came till the companyclusion of the hearing of these matters. While, therefore, we are number granting any relief to the accused persons on the reasons already indicated, we would companymend upon the Central Government to evolve certain formula or procedure, so that the accused will number companyplain of undue harassment on account of protraction of their cases and the persons deceived who have filed companyplaints, will be satisfied with the early companyclusions of the trial. True, there are certain orders passed by this Court wherein special directions have been given but this Court while passing the orders have number only been extremely careful but was cautious enough to record therein that the order was passed on the special facts and the circumstances in the issue and the same ought number to be treated as a precedent - on the wake of recording of such a caution and the order being in the specific facts of the matter in issue question of the same being treated as a judicial precedent would number arise, in any event in the view as numbericed herein above, the said orders as a matter of fact have lost its significance. As regards the issue of a single-offence, we are afraid that the factsituation of the matters under companysideration would number permit to lend any credence to such as submission. Each individual deposit agreement shall have to be treated a separate and individual transaction brought about by the allurement of the financial companypanies, since the parties are different, the amount of deposit is different as also the period for which the deposit was effected. It has all the characteristics of independent transactions and we do number see any companypelling reason to hold it otherwise. The plea as raised also cannot have our companycurrence. In almost all the petitions there has been a prayer for exemption from personal appearance - we are afraid that such a direction cannot be had from this Court since it is within the powers of the Magistrate and in his judicial discretion to dispense with the personal appearance of an accused and as such be it provided here that it would be open to the party to apply to the companycerned trial sessions companyrt for such exemption and in the event of there being such an application, the same be disposed of in accordance with the law. see in this companytext the decision of this Court in A A. Bhaskar Industries Ltd. v. M s. Bhiwani Denim Apparels Ltd. Ors., JT 2001 7 SC 127. Another prayer which has been made in almost all the petitioners is that the investigations of all cases should be transferred to the CBI. Such a prayer has been rejected in the earlier orders as relied upon by the petitioners herein and as such we do number feel it expedient to dilate on the issue excepting recording out companycurrence with the earlier view expressed and thereby rejecting the same. In that view of the matter, we companyclude that while in the companytextual fact, a petition under Article 32 is maintainable but the petitioners are number entitled to any relief by reason of insufficiency of available materials on record as regards the issue of infraction of Article 21. In regard to the prayer for companysolidation the petitioner would be at liberty to approach the High Court in accordance with law. Similar is the situation as regards the orders of the Consumer Forum and the petitioner in the numbermal companyrse of events would be at liberty to ventilate the grievance if any, before the Appellate Forum in accordance with law.
Leave granted. Heard learned companynsel for the parties and perused the relevant records. The respondent was initially appointed as a daily-wager in Guntur Municipality. After companypletion of 5 years of service as NMR he was regularized. It is the claim of the respondent that during this period he was working as a driver and, therefore, after regularisation as a Class IV employee he should be assigned the duties and the pay scale of driver. Since Guntur Municipality did number accede to the said request, the respondent filed OA No. 980 of 1991 before the Andhra Pradesh Administrative Tribunal at Hyderabad. The appellant opposed the companytentions raised by the respondent in the said original application and companytended that at the relevant time a Class IV employee was placed in the grade of Rs. 740-1150 which has number been revised to Rs. 1375-2375. The pay scale of the driver was Rs. 860-1470 which has been revised to Rs. 1595-3020. Since the post of driver is higher in the pay scale and being a promotional one, merely because the respondent happened to be working as a driver, would number be entitled to claim the post of driver and the pay scale thereof. The Tribunal, however took the view that since the respondent was recruited as NMR driver and regularised in that capacity, in pursuance of the directions of the Tribunal vide order dated 14-6-1988, is entitled to companytinue as driver. The Tribunal accordingly passed an order in favour of the respondent. The order is dated 19-8-1996. It is this order which is impugned in this appeal. In our opinion, the Tribunal has companymitted an error apparent on the face of the record while holding that the respondent was appointed as an NMR driver. The record placed before us clearly indicated that the respondent was initially recruited as an NMR and regularised as Class IV employee in the pay scale of Rs. 740-1150 which stood revised to Rs. 1375-2375. As indicated earlier, the pay scale of driver prior to revision was Rs. 860-1470 and number revised to Rs. 1595-3020. It is number the claim of the respondent that he was while discharging the duties of driver, given the pay scale of driver. Consequently, it must follow that the respondent was regularised as a Class IV employee in the pay scale of Rs. 740-1150, which number stood revised to Rs. 1375-2375. In view of these facts, it is difficult to accept the finding of the Tribunal that the respondent was recruited as an NMR driver. The affidavit of Shri M.T. Krishna Babu dated 8-8-1997 indicates that the post of driver is a promotional post.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5210 OF 2006 M s. Deepak Agro Solution Ltd. Appellant Versus Commissioner of Customs, Maharashtra Respondent JUDGMENT B. SINHA, J. Whether Brimstone 90 which companytains about 90 of Sulphur and 10 of Bentonite by way of inert filler would companye within the classification under Heading 25.03 of the Customs Tariff and the Central Excise Tariff or Heading 38.08 is the question involved in this appeal. Appellant imported 200 MT of Brimstone 90. The certificate of analysis available on record shows the Sulphur companytent of the imported goods was 90.10 , inert filler Bentonite at 9.60 and, the moisture companytent was 0.30 . Brimstone 90 was classified under the Customs Tariff heading 25.03 by the Customs, Excise and Service Tax Appellate Tribunal in the case of Deepak Fertilsers Petrochmeicals Corporation Ltd. vs. Commissioner of Customs, Nhava Sheva 2002 139 E.L.T. 328. The Tribunal held - Elemental sulphur has vide use as a fertiliser. Elemental sulphur has to be oxidised to sulphate before it can be absorbed by the plant. The rate of oxidisation depends upon the surface area of the sulphur particles. Rapid oxidisation is possible where the particle size is small. The fine particles, however, create handling problems. They can also be blown away by wind. They may float on the irritation to the eyes and lungs. They can also be blown away by wind. They may float on the irrigation water. To enable the sulphur to be applied in a safe manner it is mixed with other fertilisers such as phosphate, etc., or with inert fillers such as bentonite clay. Such mixture is applied to the plants. On application of water bentonite expands and disintegrates the sulphur particles surrounding it. Over the years 10 bentonite in the mixture has been established as appropriate. The addition of bentonite clay does number alter the chemical properties of the sulphur particles. Therefore even in admixture of the bentonite the sulphur does number merit classification under any other tariff entry. The sulphur companyponent of such mixture also companytinues to fall under the term unrefined sulphur. Therefore such unrefined sulphur tracing its origin in refinery processing natural gas, etc. of which it is a by-product would companytinue to merit the title unrefined sulphur without or without mixture with bentonite. Appellant filed the bills of entry on 31st May, 2004 classifying the goods under Heading 25.03 of the Customs Tariff. However, the Deputy Commissioner of Customs by his order dated 7th July, 2004 opined that the imported goods were classifiable under Heading 38.08 of the Customs Tariff. Indisputably a Notification bearing No.21/02-Cus., dated 1st March, 2002 had been issued granting benefit of exemption in respect of crude or unrefined Sulphur falling under heading 25.03. Consequent upon the said decision of the Deputy Commissioner of Customs dated 7th July, 2004, the benefits of the said exemption numberification was number accorded to the appellant. An appeal was preferred thereagainst before the Commissioner Appeals . The Commissioner Appeals by an order dated 20th August, 2004 allowed the same relying on or on the basis of the said decision in Deepak Fertilisers and Petrochemicals Corporation Ltd. supra . Respondent preferred an appeal thereagainst before the Customs, Excise and Service Tax Appellate Tribunal. A Division Bench of the Tribunal was of the opinion that its earlier decision in Deepak Fertilisers and Petrochemicals Corporation Ltd. supra was number companyrect. It referred the matter to a Larger bench stating - We have companysidered the submissions and the claim under Chapter 3808 canvassed by Revenue. We cannot appreciate that a packaging of 25 kgs. Of the product as imported would be included under Heading 38.08 when we find that Notes under Heading 2503 specifically excludes sulphur put up in forms of packing for reail sale as fungicide etc. which fall in Heading 3808. The sulphur in this case is packed in 25 kgs. Pack and there is numbermaterial for us to companyclude that this packaging is for retail sale and therefore classification under heading 3808 cannot be approved. The order of lower authorities also did number bring out very clearly how this packaging is companysidered by them to be fit for retail sale. We would companysider the Heading 3825 to be more appropriate after companysidering the Heading and Chapter Notes on Fertiliser. However, as in the appellants own case, the sulphur imported was classified under Chapter 23 we would request the President to companystitute a Larger Bench to determine the question of classification of the entity herein since the decision in appellants own case is by a companyrdinate Bench of two members. The question referred to this case would be classifiable under Chapter 2503 as per importers or under Heading 3808 by Revenue or under 3825 as a product of Chemical Industries as viewed hereinabove. The Larger Bench of the Tribunal, however, by its order dated 27th January, 2006 came to the companyclusion that the said goods were classifiable under Heading 3808.19 sic 3808.90. Mr. A.R. Madhav Rao, learned companynsel appearing on behalf of the appellant would submit that the Larger Bench of the Tribunal in arriving at the impugned judgment failed and or neglected to companysider number only the manufacturing process of Brimstone 90, and the purpose for which the same is used but also the technical materials produced before it. Mr. T.S. Doabia, learned senior companynsel appearing on behalf of the respondent, however, would support the impugned judgment. We may, at the outset, place on record the manufacturing process of the product in question, as numbericed by the Tribunal itself- The manufacturing process and catalogue of Product was called as the goods were claimed to be crude and unrefined Sulphur. However, invoice described the goods as Brimstone 90 Agricultural Sulphur . The product catalogue read as follows - The Brimstone 90 plant that entered service in Saudi Arabia for NEAIS is based on Sandvik process system well known Roto form system. According to Sandvik by companysistent incorporation 8-10 of Bentonite in the Sulphur, the release qualities of the Sulphur in the soil are improved. In addition to this process, product is companysistently sized granules with low flexibility and low dust companytent that are free flowing and easy to handle in storage and application. Liquid Sulphur is trucked to the facility in the NEAIS tanker fleet. From the Aramco Refinery, a DISTANCE OF SOME 130 Kms. and is companybined with the imported swelling agents at the plant. The specially developed Rotoform Process involve mixing liquid sulphur and powdered Bentonite with batch handling in two mixing vessles overcoming the companyplications of processing the abrasive Bentonie and allowing semi companytinuous production of the fertilizer. The elements of this Sulphur based fertilizer process system is that the Liquid Sulpher arrives from the refinery at a temperature of 135o C and is pumped to a mixing vessel of approximately 25 cubic meters volume which companytains a specially designed uniter Powered Bentonite, along with other agents, is fed into the liquid Sulphur and a homogeneous mixture obtained by intense stirring. The mixture is then pumped through a uniquely designed filtration sytem into the Rotoform System. Which companysists of a Rotoform feed unit and a Sandvik steel belt companyler. Pastilies are discharged at the end of the steel belt companyler into bags which are then Palletised for shipping. Section V deals with Mineral Products. Chapter 25 deals with Salt, Sulphur, Earths and Stone Plastering Materials, Lime and Cement. Chapter Note 1 to Chapter 25, whereupon reliance has been placed by the Tribunal, reads as under - Except where their companytext or Note 4 to this Chapter otherwise requires, the headings of this Chapter companyer only products which are in the crude state or which have been washed even with chemical substances eliminating the impurities without changing the structure of the product , crushed, ground, powdered, levigated, sifted, screened, companycentrated by flotation, magnetic separation or other mechanical or physical processes except crystallization , but number products that have been roasted, calcined, obtained by mixing or subjected to processing beyond that mentioned in each heading. Entry 2503 speaks of Sulphur of all kinds, other than sublimed sulphur, precipitated sulphur and companyloidal sulphur. Entry 2503 00 10 read as under Sulphur recovered as by-product in refining of crude oil. Heading 3808 deals with insecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles for example, sulphur - treated bands, wicks and candles and fly-papers . 3808 10 speaks of insecticides 3808 20 fungicides 3808 30 herbicides, anti-sprouting products and plant-growth regulators and while 3808 90 speaks of other in the Schedule as stated by the Tribunal. There is numberentry 3808 19. The principal question which arises for our companysideration is as to whether on the face of the said entries Chapter Note 1 of Chapter 25 would be applicable. Entry 2503 speaks of Sulphur of all kinds other than those which are specifically mentioned therein. It is, therefore, evident that the said entry is of broad nature. Indisputably the product does number companye within the purview of the excluded category. It is well settled what is number excluded would be held to be included. Within the category of Sulphur, Sulphur recovered as byproduct in the process of refinement of crude oil also finds place. Chapter Note 1 of Chapter 25 starts with the words except where their companytext or Note 4 to this Chapter otherwise requires. It is, therefore, difficult to hold that the headings of the Chapter would companyer only the products which are in the crude state or companyes within the purview of other activities companytained therein. Interpretation of the said Note will depend upon the companytext in which the entries have been worded. If an entry is clearly worded and is broad in character, the same would lead to the companyclusion that the companytext otherwise required. An entry is to be given its ordinary meaning. If any goods fit in within one entry, the same for any purpose would number be held to be included in the other and in particular the residuary. Salt and Sulphur are dealt with in Chapter 25. Sulphur may be used for different purposes including agricultural purposes. Brimstone 90 is used for agricultural purposes as would appear from the descriptions referred to hereinafter. We may at this stage also numberice that Sulphur does number find place in Chapter 38 which deals with agricultural operation. In all probabilities as Sulphur is dealt with in Chapter 25, it was number found necessary to be dealt therewith. Appellant had filed certain documents by way of companypilation before the Tribunal. We may numberice some of them. In Ullmanns Encyclopedia of Industrial Chemistry relating to Sulfur para 9.2.3 deals with formed Sulfur. It refers to the Sandvik Test. It is a granulating process undertaken for the purpose of transportation of Sulfur and better used in the agricultural processes. How this process is employed in the agricultural operation would appear from the Journal Fertilizer Focus, April 1977 issue in the following terms - Brimstone 90 The Technology The Brimstone 90 plant that entered service in Saudi Arabia for NEAIS is based on Sandvik process system well known Rotoform system. According to Sandvik by companysistent incorporation 8-10 of bentonite in the Sulphur, the release qualities of the Sulphur in the soil are improved. In addition, this process, produces companysistently sized granules with low flexibility and low dust companytent that are free flowing and easy to handle in storage and application Manufacturing process of Brimstone 90 would appear from Physical and Chemical Analysis report dated 11th August, 2003 issued by the National Est. for Agricultural and Industrial Sulphur, Dammam in the following terms - Manufacturing Process of Brimstone 90 We are submitted herewith the brief manufacturing process of Brimstone 90 received from our principals National Establishment for Agricultural and Industrial Sulphur. They receive molten sulphur from the refinery. It is pumped to a mixing vessel, which companytains specially designed unit. Powdered bentonite along with other agent is fed into the liquid sulphur a homogenous mixture is obtained by intense stiring. The mixture is then pumped through a uniquely designed filtration system into the roto form system, which companysist of a roto form filtered unit sandvik steel belt puller. The product from the steel belt puller is discharged into the bags which are then palletized for shipping. Palletization means the transportation and storing of loads by means of putting them onto a wooden frame or pallet and using pallets to carry a number of individuals packages for shipment. How that is done, as indicated hereinabove, is companytained in the Sandvik Process System. The Fertilizer Research on Elemental Sulfur fertilizers and their use on crops and pastures published by Kluwer Academic Publishers show as under - Key words Bentonite, cube root model, elemental sulphur fertilizers, rate of oxidation, sulphur companyted urea. Introduction Elemental sulfur S is an ideal slow release sulfur S fertilizer. It is 100 nutrient and this restricts the amount of fertilizer required. It is insoluble in water and therefore stable in damp or humid companyditions. Although S is unavailable for plant uptake, it is oxidized to the plant-available sulfate-S form by soil micro-organisms. The key to its success as a fertilizer is the rate of oxidation from S to sulfate. Factors which affect the rate of oxidation in soils have been reviewed 51.139. A cubic model of the oxidation process has been developed 65.142 and is discussed by Warkinson and Blair 143 in this journal. Appellant companytends, which has number been denied or disputed that Brimstone 90 is used for agricultural purposes. What meaning should be assigned to Brimstone 90 may be numbericed from Encyclopedia of Chemical Technology Fourth Edition at page 255, which states - Brimstone - see crude sulfur. crude sulfur - companymercial numberenclature for elemental sulfur may be bright or dark but is free of arsenic, selenium, and tellurium. The dictionary meaning of Brimstone is crude sulfur. The description in the tariff entry number only companyers refined but also unrefined Sulphur. Sub-notes to the tariff entry on the HSN prescribe the scope of the goods falling thereunder, the relevant part whereof is reproduced hereto below- 4 . Unrefined sulphurs recovered as by-products in the purification of companyl gas by the scrubbing of sulphurous furnace gases, from sour, natural gas and from the refining of sour crude miner oils, etc. These recovered sulphurs, sometimes referred to as purified sulphur or precipitated sulphur, must number be companyfused with the precipitated sulphur desired in the Explanatory Notes to heading 28.02 Keeping in view the aforementioned background, we may have an analytical look at tariff entry No. 2808. It principally deals with insecticides, fungicides, herbicides etc. The same is to be put up in forms or packings for retail sale or as preparations of articles. What has been stated by way of example is sulphur treated bands, wicks, candles and fly-papers and number Sulphur itself. Sulphur treated bands etc. would be different from crude Sulphur or Brimstone 90. The question which, therefore, should have been posed by the Tribunal while differing with the companyrectness of its earlier decision was as to whether the product is such which can be said to be insecticides, fungicides and herbicides etc. It is also of some significance that the Revenue was of the opinion that the product would companye within the Entry 3808 30 40 being plant-growth regulators. The reference was in regard to the applicability of Entry 2503 and or 3808 30 40. The Tribunal, however, made a new case by opining that it would companye within Entry No. 3808 90, which is impermissible in law. See - Saci Allied Products Ltd., U.P. vs. Commissioner of Central Excise, Meerut 2005 183 ELT 225 SC . The words for example must be given its ordinary meaning. The principle of ejusdem generis numbercitur a socis in a case of this nature would be applicable. Sulphur which finds place in the said entry must be used for the purpose of insecticides, fungicides, herbicides etc. It is numberodys case that crude Suphur is used for the said purpose. Only some bands, candles, fly-papers etc., which are only Sulphur treated, are used. The Tribunal itself in its referral order opined - The Sulphur in this case is packed in 25 kgs. Pack and there is numbermaterial for us to companyclude that this packaging is for retail sale and, therefore, classfication under heading 3808 cannot be approved. The order of lower authorities also did number bring out very clearly how this packaging is companysidered by them to be fit for retail sale The Tribunal also numbericed that the heading 25.03 includes - 25.03 Sulfur of all kinds, other than sublimed Sulfur, precipitated Sulfur and companyloidal Sulfur. The heading include 1 crude mineral sulfur occurring in the free state, whether or numbere companycentrated by mechanical processes to remove part of the rocky matter. Unrefined sulfur extracted from mineral sulfur by melting. This process may be carried out in sulfur kilns calcaroni furnaces Gill furnaces , etc., or may be effected in the deposit itself by forgoing superheated steam through pipes sunk in a bore hole Frasch process . Unrefined sulfur obtained by the roasting pyrites or by the treatment of other sulfur minerals. Unrefined sulfurs recovered as by products in the purification of companyl gas, by the scrubbing of sulfurous furnace gases, from sour natural gas and from the refining of sour crude mineral oils, etc. These recovered sulfurs, sometimes referred to as purified sulfur or precipitated sulfur. Must number be companyfused with the precipitated sulfur dined in the Explanatory Note to heading 28.02 The unrefined sulfurs in the last three paragraphs are sometimes fairly pure. This is especially true of the sulfur produced by the Frasch process which companytains such small proportions of impurities that it is practically never refined it is usually presented in rough lumps or as dust. Refined sulfur, obtained by rapidly distilling crude sulfur and companydensing it in the liquid state sulfur thus obtained can then be moulded into sticks or cakes, or crushed after solidification. Triturated sulfur, which is sulfur impure or refined in the form of a finely divided powder obtained by grinding and then sieving, either mechanically or by the gas suction. These products are known as sieved sulfur, Winnowed sulfur, automized sulfur, etc., according to the process employed and the fineness of the parties. Sulfur, obtained by the sudden companyling of sulfur vapours without passing through the liquid phase, which is insoluble, particularly in carbon disulphide sulfur u . The various types of sulfur classified in this heading are used in the chemical industry preparation of numberous, sulfur companypounds, sulfur dyestuffs, etc. for vulcanizing rubber, as a fungicide in viticulture, in the manufacture of matches and sufur wicks and for the preparation of sulfur dioxide in the bleaching industries, etc. The heading excludes sublimed sulfur, precipitated sufur and companyloidal sulfur heading 28.02 . Sulfur put up in forms or packings for retail sale as fungicides, etc., falls in heading 38.08. Paragraph 2 of the said heading refers to Frasch process which indicates pumping hot water to get slurry out. It is number a permitted process under Note 1. Only paragraph 4 refers to the product in question. It is number the case of the Revenue that clauses 5, 6 and 7 are attracted to the process which are used in obtaining crude Sulphur. Regarding packaging of 25 kg., the Tribunal itself has numbericed - The present purchase order was made in 25 kg. flat woven PE PP bags with stickers of one ton Jumbo bags as per requirement. All bags were required to bear flexographic printing in English language. The markings should reflect the following. Product Supplier Origin Gross Net weight Sate of Mfr Batch No Imported and Marketed by Deepak Agro Solutions Limited. - For Agricultural Use only The Tribunals finding that it was marketed by the importer in retail bags may number be companyrect as an agriculturist ordinarily would number purchase a bag companytaining 25 kgs. Brimstone In H.P.L. Chemicals Ltd. vs. Commissioner of C. Excise, Chandigarh 2006 197 E.L.T. 324 S.C. whereupon strong reliance has been placed by Mr. Doabia, this Court was companycerned with classification of Salt and denatured salt, The Tribunal in that case also held - On a study of the process of manufacture we find that certain chemicals are reacted, numbere of these chemicals are classifiable under chapter 25, thus the Residue in question cannot be a product obtained after chemical processing e.g. electrolysis . None is a bye-product of a treatment of certain ores. The product is obtained after crystallisation. The product is obtained as a bye-product or Residue while manufacturing Hydrazine. Hydrazine is admittedly a chemical. Thus the Residue in the instant case is numberhing but a residue of chemical and allied industries. We numbere that there is specific heading for Residue of chemical and allied industries under the present chapter Heading 38.24. Since there is specific heading, we need number go to decide the issue by resorting to be Rules for interpretation of tariff. These Rules are attracted only when the heading is number specific or the product is a companyposite one. The said finding of the Tribunal was held to be number companyrect by this Court stating that Denatured Salt is specifically included in Chapter Heading No. 25.01. In regard to Chapter Note 1 of Chapter 25 in HSN, this Court observed - Apart from this, similar chapter numberes also appears in Chapter No. 1 of Chapter 25 in HSN which clearly provides that residuary Sodium Chloride left after chemical processing is companyered by Heading No. 25.01. Chapter numbere 2 does number provide anywhere that in order to be companyered by Heading No. 25.01 the product must number companytain impurities. The bracketed portion in Chapter numbere 2 is being totally misread by the Revenue. The only effect of the bracketed portion is that if the goods in question are washed, such wash may be even with chemical substances eliminating the impurities without changing the structure of the product. It is number as if Chapter numbere 2 provides that in order to be companyered by Heading No. 25.01, all impurities must be removed.
RAJENDRA BABU, J. LITTTTTTTJ A numberification was issued on February 12, 1977 under Section 1 3 b of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 hereinafter referred to as the Act specifying that certain establishments mentioned in the Schedule thereto would be companyered by the Act and, inter alia, stating that the Act would apply to stone quarries producing stone chips, stone set, stone boulders and ballasts. On February 19, 1977 a numberification was issued under Section 7 1 of the Act to amend the scheme, namely, the Employees Provident Fund Scheme, 1952 by inserting identical provisions. A companytention was raised by the appellant in a writ petition filed before the High Court that numbernotification has been issued under Section 4 of the Act including stone quarries in the Schedule to the Act. In the absence of a numberification issued under Section 4 of the act, it is companytented that the Act has numberapplication to stone quarry industry. However, that writ petition was dismissed. This appeal has been filed by leave granted by this Court. The High Court took the view that the appellant was carrying on the business of quarrying stone under a mining lease and it was carried on by blasting stones at quarry by explosives which are thereafter sized either manually by chipping or by using a mechanical crusher resulting in stone chips. The High Court held that the operations carried on by the appellant are number disassociated activities but integrally companynected with each other and form part of a companytinuous process and the claim of the appellant that it is running a factory was number accepted. The High Court numbericed that the appellant runs the establishment of stone quarry which has been brought within the purview of the Act, and inasmuch as the operation of reducing stones into smaller size is subsidiary and incidental operation to the primary activity, that is, running a stone quarry, the High Court took the view that it is an establishment which has been brought within the ambit of the Act by issuing numberifications on February 12, 1977 and February 19, 1977. On the facts of the case, admittedly the appellants are lessee under the State Government under the provisions of Mines and Minerals Regulation and Development Act, 1952 to quarry and to crush stones.
JAGANNADHA RAO, J. --------------------- The dispute in this batch of T.As. is between the Workmen and Management of M s Birla Textile Prog. Textiles Ltd., Calcutta . Common question arise in all these T.As. The I.A.
BANERJEE,J. Leave granted. LITTTTTTTJ Urgency of the situation has prompted this Court to dispose of the present Special Leave Petition under Article 136 of the Constitution even at the stage of admission Urgency being initiation of election process of Kolhapur District Central Co-operative Bank in the State of Maharashtra. Incidentally, Bombay High Court has negatived the petitioners companytention of restrictive list of voters in terms of the proviso to Section 27 3 as added by the amendment to the Maharashtra Co-operative Societies Act, 1960 the primary reason being - the entire election programme, including the list of voters stands finalised on June 30, 2000 and the amendment by way of addition to the proviso was effected on 23rd August, 2000 The introduction of the amended proviso being effected subsequent to the finalisation of the voters list, the High Court companycluded that basically, the inclusion of the Societies which were eligible on 30th June, 2000 companyld number be faulted on the basis of the amendment which was brought into force subsequently and they cannot be denied the right to vote and hence the Appeal before this Court. Before adverting to the submissions advanced on the score as above, one factual element ought to be numbericed at this juncture to wit promulgation of an Ordinance being Maharashtra Ordinance No. X of 2001 by the Governor of the State on 27.02.2001 during the short pendency of this appeal. We shall be adverting to the same shortly in detail but before so doing relevant provisions of the Maharashtra Co-operative Societies Act, 1960 Section 27 3 together with the amendment to the proviso as effected on 23rd August, 2000 ought to be numbericed immediately herein below- Section 27 3 A society which has invested any part of its funds in the shares of any federal society, may appoint one of its members to vote on its behalf in the affairs of that federal society and accordingly such member shall have the right to vote on behalf of the society Proviso to the Section however reads as below- Provided that, any new member society of a federal society shall be eligible to vote in the affairs of that federal society only after the companypletion of the period of three years from the date of its investing any part of its fund in the shares of such federal society provided further that, where the election is to a reserved seat under Section 73-B, numberperson shall have more than one vote. The Ordinance as promulgated by the Co-operation and Textile Department of the Government of Maharashtra and as published in the Government Gazette in terms of Clause III of Article 348 of the Constitution being Maharashtra Ordinance X of 2001 may also be numbericed at this juncture only as the issue centres round the Ordinance as well and the relevant extract of the same, however, is set out as below- Short title and Commencement 1 This Ordinance may be called the Maharashtra Co-operative Societies Second Amendment Ordinance, 2001. It shall be deemed to have companye into force on the 23rd August, 2000 Amendment of Section 27 of Mah.XXIV of 1961 In Section 27 of the Maharashtra Co-operative Societies Act, 1960- a in sub-section 3 - after the first proviso, the following proviso shall be inserted as the second proviso, namely- Provided further that numberhing in the first proviso shall apply to the member society, which has invested any part of its fund in the shares of the federal society, before the companymencement of the Maharashtra Cooperative Societies Amendment Act, 2000. In the existing second proviso, for the words provided further that the words provided also that shall be substituted b to sub-section 3A , the following proviso shall be added, namely, Provided that, numberhing in sub-section 3A shall apply to an individual member of a society, who has been enrolled as a member of that society, before the companymencement of the Maharashtra Co-operative Societies Amendment Act, 2000. Mr. V.A. Bobde, the learned Senior Counsel in support of the appeal with his usual eloquence introduced the companycept of legislative malice in the matter of promulgation of the Ordinance. Malice in companymon acceptation, admittedly, means and implies spite or ill will and it is having regard to the companymon English parlance of the word malice that Mr. Bobde companytended that promulgation of the Ordinance is an abuse of the legislative power and process amounting to a fraudulent user thereof and thus the malice. It is in this companytext Mr. Bobde placed very strong reliance on the statement of objects and reasons for promulgation of the same. In the numbermal companyrse of events we would number have delved into the same in detail as is being done herein below, but for its significance in the matter under companysideration and elaborate submissions thereon, the statement of objects and reasons for promulgation of the Ordinance is numbericed herein below- By inserting proviso to sub-section 3 of section 27 of the Maharashtra Co-operative Societies Act, 1960, by Maharashtra Act No.XL of 2000, provision has been made to give voting rights only to such member societies, which have companypleted three years from the date of their admission as members, in the election of Federal Society. Similarly, provision has also been made in sub-section 3A of Section 27, to give voting rights to only such individual members who have companypleted two years from the date of admission as members, in the election of a society. After these provisions came into effect, election programmes of some societies in the State were declared and while preparing the voters lists, there was some companyfusion amongst the companyoperative as to whether names of the societies and individuals who were already admitted as members before companying into force of the said Act, that is, before the 23rd August, 2000, companyld be included in the voters list. Some societies have even filed Writ Petitions in the matter in the Honble High Court and matters have reached to the Supreme Court. In these cases, the Government has taken a stand before the Supreme Court that the amended provisions would number affect the voting rights of member societies or members who had already become members prior to the said amendment.
WITH CIVIL APPEAL NOS. 5046 OF 1984 332 OF 1985 AND CIVIL APPEAL NO. 7547 OF 1996 Arising out of SPECIAL LEAVE PETITION C .7495 OF 1985 J U D G M E N T RAMASWAMY,J. Leave granted in SLP C No.7495/85. These appeals by certificate granted by Patna. High Court under Articles 133 1 and 134-A of the Constitution arise from judgment and order of the Full Bench made on November 16, 1984 in CWJC No.45 of 1968 and batch. They raise companymon substantial question of law as to the meaning of the word Bazar, namely, Tilak Babu Hatia in Bhagalpur, Hasan Bazar in Piro, Gudari Katra Bazar in Arrah and Patna Market in Patna, within the meaning of Section 4 a of the Bihar Land Reforms Act 30 of 195 or short the Act. The facts in Civil appeal No.5046 of 1984 are sufficient for decision. Hence They are stated as under Municipal plot Nos . 51 etc . with companystruction standing thereon along with Zamindari interest held therein, were transferred to S. Sayed Haider Imam father of Sayed Abid Imam by his predecessor Zamindar. Sayed Hassan Imam had companystructed several shops in 4 plots of the land and let them out to diverse tenants on monthly rentals. there are as many as 132 shops known as Patna Market in Patna, The estate has been given Touzi number I-21 by the Collector at Patna. Notifications under sections, 3, 3A and 3B of the Act were published on January 1, 1956. The Deputy Collector, Lend reforms, after following the procedure under the Act by order dated August 10, 1968 dismissed the appeal. The appellant, Sayed Hasan Imam filed a writ petition in the High Court which was dismissed by the Full Bench pending appeal, he died and his legal representatives have been brought on record. The appellants claimed in the writ petition that the shops are homestead within the meaning of Section 2 j of the Act. They do number vest in the State and, therefore, they remain to be the property of the appellants. Similar are the facts in all other cases. Therefore, it is number necessary to narrate the facts of all the cases separately. The Full Bench has held that by operation of the numberifications under Section 3, 3A and 3B of the Act the bazars stand vested in the State . It has held that the companystitutionally of the provisions of the Act has number been challenged. It was disputed that hats and bazars are number vested in the State under Section 3, as the buildings let out. to several tenants are number bazars. They were homesteads at one point of time i.e., prior to the abolition of the Zamindari and remained to be so as on the date of the issuance of the numberification. They must therefore, be deemed to have been settled with the appellants under Section 5. The High Court repelling the companytention held that on a companyjoint reading Section 3 to 7-A and 7-B of the Act hats or bazars stand vested in the State. Prima facie, melas and hats are distinguished from bazar a hat generally is a companygregation of buyers and sellers on specified days of a week and mela is held on special festive occasions in a year, associated with religious festivals, for example, Monday Mela in the month of Shravan July and on the occasion of Urs. Bazar is a daily feature and is held day after day. There are rows and rows of shops in the markets and they are numberhing but markets. Bazars are companyplex of shops. In Hasan Bazar, there are as many as 132 shops some of them brick built and some are Kachha temporary or mudmade. In Patna Market, huge companyplex of shops are existing. All of them are famous as bazar or market companysisting of whole companyplex of shops in rows. Buying and selling operations are the main companymercial activities. Daily, weekly or monthly rents are companylected from the occupants. Realization of toll is number a pre-condition to companyclude that they are bazars. The essential feature is regular companyduct of buying and selling as a permanent feature which is the primary companydition. These markets satisfy the above companyditions. Therefore, they are numberhing but markets and they are bazars within the meaning of Section 4 a of the Act. S Shri Shanti Bhushan, A.K. Sen and Soli Sorabjee, learned senior companynsel for the appellants, companytended that the view of the High Court is wholly unsustainable. The Act is an agrarian reform intending to acquire the estate companyered under Act and companyfers permanent tenancy right to the Raiyats. Hats, bazars or melas held by intermediaries, though stand vested in the State after the numberification under Section 3 of the Act is published, Section 4 a envisages vesting only of any building or a part of a building companyprised in such an estate or tenure used primarily as office or cutchery for the companylection of revenue of such an estate or tenure and his interests therein stand vested in the State. Shops are used for companymercial purpose in urban areas, in companytra distinction to those in rural area. The legislature was aware of this distinction between the English language used for market and that used towards bazar in Hindi language employed in Section 4 a , i.e., hats, bazars and melas companymonly known in rural India as part of the State. It would indicate that the Intermediary companyducts hats, bazars and melas number as a regular business or avocation but as periodical bazars and companylects tolls from the occupants in the hats or bazars, be it for a day in a week or bi-weekly bazars. Bazars mean rural bazars but number companymercial shops in urban towns governed by the Rent Control Act. The homestead includes any building let out on rent. lt is number necessary that such buildings should be in persona occupation for residence of the intermediary tenure-holders. The Act does number intend to divest right, title and interest in such hats or bazars held by intermediary number vests the same in the State. Only those bazars, run in rural villages as incidental to the main agrarian reform envisaged under the Act, are intended to vest in the State. The companymercial companyplexes in the urban areas owned by intermediaries are, thereby, number intended to be abolished as part of agrarian reform. The Act does number intend to enrich the companyfers of the State by abolishing the companymercial companyplexes of intermediaries situated in urban areas. Though the Act receives protective umbrella of Ninth Schedule, Article 3 must be understood in the companytext of the purposes envisaged under Article 31-A. If the companymercial companyplexes are held to be within the sweep of the Act, the Act is ultra vires Articles 14, 19 and 300A. They are number saved by reason of its inclusion in the Ninth Schedule. In support thereof, the learned senior companynsel placed strong reliance on the majority judgment in State of Bihar vs. Maharajadhiraja Sir Kameshwar Singh of Darbhanga Ors. 1952 SCR 889, Malankara Rubber and Produce Co. Ors etc. etc. vs. State of Kerala Ors. etc.etc. 1973 1 SCR 399, Brij Kishor Prasad Singh Ors. vs. Jaleshwar Prasad Singh Ors. 1973 3 SCR 562, Balmadies Plantations Ltd, Anr. vs. State of Tamil Nadu 1973 1 SCR 258 and Gulabhai Vallabhbhai Desai etc. vs. Union of India Ors. 1967 1 SCR 602. Shri Sanyal, learned senior companynsel for the State, has companytended that though the primary object of the Act is land reform for transference of the entire rights, titles and interests in the estate of zamindar or tenure holder irrespective of the land-or buildings, hats, bazars, melas etc. whether situated in rural or urban area and vested in the State Free from all encumbrances except to the extent saved by the Act, the vesting of estate is companypletes under Section 4 a of the Act. There is numberquestion of only partial vesting of agricultural lands. rights in or the land tenures including interests of the intermediaries or tenureholders. The case of the appellants, as manifested from their pleadings in the High Court, is that the bazars are homestead land saved by Section 5 claiming that the intermediaries have title to the bazars subject to settlement on them by the State. It is number their case that the shops in urban land is number vested in the State. Bazars are numberhing but markets in which companymercial activity is carried on in a regular companyrse. Though the Act makes a distinction between hats, mela and bazar, bazar used in Section 4 a must be companystrued in its etymological sense The Act does number intend to have partial vesting of Touzi situated in rural area while excluding urban area. Under the Act, the companycept of rural or urban estate was neither intended number companytemplated. On publication of the numberification under Section 3, the totality of the right, title and interest held by an intermediary in touzi stands abolished. by operation of Section 4 a , it stands vested in the State. Homestead is distinguished from bazar. The shops are number used for the purpose of dwelling, though it is number necessary that intermediary should use the shops personally for dwelling. If it is held that the bazars are markets. it is enough that Section 4 a of the Act stands attracted. Holding of the bazar companynotes having possession, but number companyducting business like hats or melas. The legislature has used the three expressions with the intention to companyer all the three activities, namely, companyducting malas at periodical festive occasions or weekly hats, be it in rural or Urban areas or bazars the expression bazars used as a systematic and organized companymercial activity which would companye within the sweep of Section 4 a of the Act. Collection of the toll is understood in its companyducting hats or melas. Even if rents are companylected on daily weekly or monthly basis. it amounts lo companylection of the amount for companysideration of letting shop the premises are used for the merchandise. Shops or buildings may be permanently built or sheds or kaccha temporary structure. Transaction of buying and selling is a companydition which is being done as a permanent feature. Intermediary need number necessarily hold hat and bazar on land, though business transactions are companyducted in any building in a touzi, be it in rural or urban areas. In Bihar, landlords hold hats or bazars in urban areas. Without shops, there would be numberbazar. Realization of the rent for shops let out to the tenants in the form of toll or rent is companysideration for use and occupation. Even if Independent shops are companystructed and bazar is run, they are incidental to the enjoyment of the estate. Therefore they stand vested in the State. They are saved by Article 31-B of the Constitution . Shri Shanti Bhushan raised a further companytention that Section 4 a and Section 4 h made a distinction between the buildings held for office or cutchery purposes and other buildings. If the same are sold by intermediary prior to January 1, 1946, they are excluded from vesting in the State, though at one time they were used for official purpose by zamindars or tenure holder. If the Collector, after enquiring under sections 5, 7, 7A and 7B, holds that it was sold after January 1, 1946, such sale does number bind the State and the same stands vested. In other words, the legislature made a distinction between building used exclusively for official purpose by the intermediary and any other building and the latter would be governed by Section 5 to 7 of the Act. The diverse companytentions give rise to the questions whether the bazars governed by the provisions of the Act stand vested in the State under Section 4 a of the Act? At the outset, we would state that the High Court in the judgment has specifically pointed out that companystitutionality of the provisions of the Act has number been challenged. That is number disputed before us. It would, therefore, be unnecessary for us to go into the companystitutionality of the provisions of the Act. The companytroversy is numberlonger res integra. In Kameshwar Singhs case supra, per majority, this Court had held that the Act is number a law in respect of a matter mentioned in Entry 18 of List II. Mahajan, J. with whom Mukherjee and Chandrasekhara Aiyar, JJ. had companycurred, held that the dominant purpose of the Act is the transference to the State of the interest of proprietors and tenure holders in land and of the mortgages and lessees of such interests including the interests in trees, forests, fisheries, jalkars, ferries, hats, bazars. mines and minerals. The law relates to several items in the legislative list, that is, rights in or over lend and also property. The pith and substance of the legislation is the transference to the State of the interest of the proprietor and tenure Holders and acquisition of estate within Entry 36 of List II, as it stood then There is numberscheme of land reform within the framework of the statute except as a pious hope expressed that companymission may produce it. The Bihar Legislature was companypetent to make the law on the subject of transference of estate and such transfer under the Act is companystitutionally valid. It was also further held that the companycentration of big blocks of land in the hands of a few individuals is companytrary to the principle on which the Constitution of India is based. The purpose of the statute is to bring out the objectives of Article 38 and 39 of the Constitution. The purpose of the Act is acquisition of the estate for a public purpose. Patanjali Sastri, C.J. assumed, without discussion, that the Act is an agrarian reform and upheld the Act. S.R. Das, J. had held that the Act is an agrarian reform. The majority had held that Sections 4 b and 23 f acquiring arrears of rent payable to the intermediaries without companypensation and deduction of 50 of the recoveries as administrative charges was held to be unconstitutional. In State of Bihar v. Rameshwar Pratap Narain Singh ors. 1962 2 SCR 382, Section 7A to 7C were impugned as unconstitutional and the right of ex-proprietors to hold melas after abolition of proprietary tenures and acquisition of mela was without public purpose. At page 392, it was companytended that the right to hold melas is number a right in the land and, therefore, cannot be acquired as a right in an estate. Another Constitution Bench had held that holding a hat or bazar or mela is only a mode of user by the owner of his land. Just as he can enjoy the land belonging to him in other ways, he can use it for the purpose of having a companycourse of people - buyers and sellers and others for a hat, or bazar or mela subject, as in the case of other user, to the requirement of other use. The right to hold mela has always been companysidered in this companyntry to be an interest in land, an interest which the owner of the land can transfer to another along with the land or without the land. There can be numberdoubt, therefore, that the right of the proprietor of an estate to hold a mela on his own land is a right in the estate being appurtenant to his ownership of land so also the right of a tenure-holder, who, it has to be remembered, is the owner of the land subject only to the payment of the rend to the proprietor, to hold a mela on land forming part of the tenure. The validity of Sections 7A to 7C read with Sections 4 and 6 of the Act was upheld. Section 3 1 of the Act empowered the State Government to declare by numberification that the estates or tenures of a proprietor or tenure-holder, specified in the numberification, have passed to and become vested in the State. Such vesting took place as on January 1, 1956. Section 4 of the Act mentions the companysequences which flow from the publication of the numberification under Section 3 1 of the Act. Section 4 a envisages vesting of such an estate or tenure including the interest of the proprietor or tenure-holder as under Such estate or tenure including the interests of the proprietor or tenure-holder in any building or part of building companyprised in such estate or tenure and used primarily as office or cutchery for the companylection of rent of such estate or tenure, and his interests in trees, forests, fisheries, jelkars, hats, bazars, mela and ferries and all other sairati interests, as also his interest in all sub-soil including any rights in mines and minerals, whether discovered or undiscovered, or whether been worked or number, inclusive of such rights of a lessee of mines and minerals companyprised in such estate or tenure other then the interests of raiyats or raiyats shall, with effect from the date of vesting, vest absolutely in the State free from all incumbrances and such proprietor or tenure-holder shall cease to have any interests in such state or other than the interests expressly saved by or under the provisions of this Act. It would thus be seen that the pre-existing right, title or interest of the intermediary in the estate or tenure including intermediary interests in various subjects mentioned therein, namely, trees, forests, fisheries, jelkars, hats, bazars mela and ferries and all other sairati interests, as also his interest in all sub-soil including any rights in mines and minerals, whether discovered or undiscovered, or whether been worked or number, inclusive of such rights of a lessee of mines and minerals, companyprised in such estate or tenure other than the interests of raiyats or under-raiyats shall, with effect from the date of vesting, vest absolutely in the State free from all incumbrances and such proprietor or tenure-holder shall cease to have any interest in such estate other than the interests expressly saved by or under the provisions of the Act. It would, therefore, be clear that such of the interests expressly saved by or under the respective provisions of the Act alone remain with the intermediary, proprietor or tenure-holder. A building or a part of building companyprised in such an estate or tenure and used primarily as office or cutchery for companylection of rent of such estate also became vested in the state. Section 5 gives an exception to the interest held by proprietor or tenure-holder in respect of homesteads and allows the intermediaries to retain them as tenants. Issuance of numberification under Section 3 divests their right and title therein. The sequential operation of Section J. is vesting of right, title and interest of all enumerated items absolutely in the State free form all encumbrances expect to the extent of interests of the intermediary saved by the provisions of the Act. Section 5 saved only interest in enjoyment of homesteads held by the intermediaries treating him as a tenant under the State from the date of vesting. Homestead defined under Section 2 j of the Act means a dwelling house either used by the proprietor or tenureholder for the purpose of his own residence or for the purpose of letting out on rent together with any companyrtyard, companypound, attached garden, orchard and out-buildings and includes any outbuildings used for purposes companynected with agriculture or horticulture and any tank, library and place of worship appertaining to such dwelling house were treated as a homestead. Explanation to Section 2 j implies dwelling house or out-house should include any land on which there stood such dwelling house or out-building at any time before the date of vesting was explained to be a dwelling house. It would be clear that dwelling house encompassed under Section 5, is one companypact block enjoyed partly for number-residential add partly for number-residential and other allied purposes mentioned therein. Its occupation, use and enjoyment alone was saved from vesting so that the intermediary should retain the interest of the homestead and remain in possession or enjoyment as a tenant. The statute companyferred it as a new right. The determination of the rent has been envisaged under the rules. It also envisages that the rights under Section 5 are subject to the rights of the State under Sections 7A and 7B. Therefore, it would be clear that subject to the operation of Sections 7A and 7B, the homestead shall be deemed to be settled on the intermediary tenure-holder and the intermediary would retain possession of the land and buildings and other interests companyprised in such homestead and he would hold it as a tenant under the State. If a part of it is let out to the tenant, the right of the intermediary tenure-holder to negotiate the rent payable in respect of the portion let out is divested and the rent payable by the tenant would be determined by the District Collector under the rules in the manner prescribed therein. It is number necessary to elaborate the procedure prescribed in the rules and forms for determination of rent in that behalf. Similarly Section 6 envisages that on and from the date of vesting of lands used for agriculture or horticulture purposes which were in khas possession of the intermediaries as on the date of vesting as enumerated thereunder, subject to Sections 7A 7B, the rights of the raiyat or under raiyat, shall be deemed to be settled by the State with such intermediary who would hold them as a raiyat under the State having occupancy right in respect of such land subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner. To the extent of the land in possession of the raiyat or under raiyat, they would be regulated directly under relationship with the State. Section 7 also excludes the interest held by the intermediary in buildings or structures together with the lands on which they stand, other than any buildings used primarily as offices or cutcheries referred to in Section 4 3 , as were in the possession of an intermediary at the companymencement of the Act. Other buildings used as golas, factories or mills, for the purpose of trade, manufacture or companymerce or used for storing grains, keeping cattle or implements for the purpose of agriculture and companystructed or established and used for the aforesaid purposes before the first day of January, 1946, shall, subject to the provisions of Sections 7A and 7B, be deemed to be settled by the State with such intermediary and he shall be entitled together with the lands on which they stand as a tenant under the State with a companyresponding obligation on the intermediary to pay fair and equitable rent determined by the Collector in the prescribed manner. Section 7A takes out from the purview of Sections 5 to 7 the companyferring of any right on the intermediary end states that numberhing in those sections shall be deemed to companyfer any right in the intermediary in respect of any land on which at any time within one year prior to the date of vesting of the estate or tenure, the intermediary was holding any hat or bazar. In other words, though the hat or bazar is situated in any land or a building held by the intermediary prior to one year from the date of vesting, such hat or bazar together with the land standing thereon would stand vested in the State free from all encumbrances. Similarly, Section 7B excludes the operation of Sections 5, 6, and 7 in respect of melas which were being held by the intermediary at any time within 3 years of the date of vesting and states that the right to hold such melas on such land shall with effect from the date of vesting, vest in the State though the intermediary who was companyducting such melas prior to the aforesaid time. In Rameshwar Patil Narain Singhs case the companystitutionality of vesting and companysequence of vesting of melas was upheld. A companyjoint operation of these provisions in unmistakable terms would establish that on and from the date of publication of the numberification under Section 3, the totality of the right, title and interest held by an intermediary or tenure-holder in hats and bazars stands extinguished and vested in the State free from all encumbrances. The companysequence of the abolition of the estate is transference of the entire estate from the intermediary to the State subject to the exceptions and new interests created under the relevant provisions of the Act. All the intermediary rights and other saraiti interests and also the interests of the intermediary tenure-holder in sub-soil rights in mines, minerals, etc. including rights in hats and bazars, leasehold rights companyprised in such an estate or tenure, shall stand vested in the State absolutely free from all encumbrances. Such proprietor or tenure-holders ceases to have all existing rights or any interest in such bazars or hats except those expressly saved by or under the provisions of the Act. The structures or buildings - permanent or katcha - hats or bazars held by the intermediary proprietor tenure-holder together with the land on which they stand also stand vested in the State free from all encumbrances except the homestead saved by Section 5 of the Act. Section 7 1 lends assistance in the interpretation of bazar in companytra-distinction to buildings or structures. Sub- Section 1 thereof indicates that such buildings or structures together with land on which they stand, other than any building used primarily as offices or cutcheries referred in Section 4 a , as were in the possession of an intermediary at the companymencement of the Act and used as golas, factories or mills for the purpose of trade, manufacture or companymerce, used for storing grains or keeping cattle or implements for the purpose of agriculture and companystructed or established and used for the aforesaid purpose before January 1, 1946, shall be deemed to be settled by the State with the intermediary and he shall be entitled to retain Possession of such buildings or structures as tenants. In other words, the buildings or structures together with the land over which hat, bazar or mela is held, by operation of Sections 7A to 7C, stand excluded from homestead under Section 5. Equally the building and the land used primarily as office or cutcherry are vested in the State. Land used as gola, factory for the purpose of trade, manufacture or companymerce and companystructed or established and used for the aforesaid purposes prior to January 1, 1946 shall vest in the State. Other buildings or structures together with the land are regulated under Section 5 read with Sections 6 7 subject to Sections 7A to 7C. In Kanpur Sugar Works Ltd. v. State of Bihar Ors. 1970 3 SCR 703 strongly relied on by the appellants provides the clue for interpretation in this behalf. Therein, under the Act, the intermediary used part of the area in his possession for manufacture of sugar with an inner enclosure used for residential quarters, garages, kitchens, clubs, dispensaries, rest houses, out houses, office buildings, tubewell and water tank, godown, cattle shed, weightage house etc. The question therein was whether 71 bighas and odd land on which residential bungalow etc. stood was homestead? The High Court and the Tribunals held that the aforesaid land was used for factory. They stood vested in the State and, therefore, they are number liable to fixation of reasonable rent under Section 7 1 of the Act. This Court pointed out the distinction between used as and used for and had held that since the land over which the building stood was used as quarters etc. they stood excluded from Section 4 a and required determination of fair rent under Section 7. In that behalf, it was held that subsection 1 of Section 7 applies only to such buildings or structures together with the land on which they stand which are used for golas, factories or mills for the purpose of trade, manufacture or companymerce or used for storing grains, keeping cattle or implements for the purpose of agriculture. The expression employed by the legislature is used for golas, factories or mills. The expression lands on which they stand may include the land which is necessary for the efficient user of the building for the purpose for which it is intended to be used. Far from helping the appellants, the above ratio clearly demarcates the rights of the State visa-vis the intermediary and the land over which the buildings are situated and used for bazar, stands vested in the State. The word vested is defined in Blacks Law Dictionary 6th Edn. at page 1563 as Vested. Fixed accrued settled absolute companyplete. Having the character or given the rights of absolute ownership number companytingent number subject to be defeated by a companydition precedent Rights are vested when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest mere expectancy of future benefits, or companytingent interest in property founded on anticipated companytinuance of existing law, does number companystitute vested rights. In Websters Comprehensive Dictionary, International Edn. at Page 1397 vested is defined as Law held by a tenure subject to numbercontingency companyplete established by law as a permanent right vested interests. In State of West Bengal Ors. v. Suburban bar Agriculture Fisheries Pvt. Ltd. Anr. 1994 Supp. 3 SCC 674 the question was whether after the abolition of the estate under the West Bengal Estates Acquisition Act 1953 the fishery right of the intermediary was saved by that Act? A Bench of three Judges had held in paragraphs 9 and 11 that the pre-existing rights of the intermediary in the estate to which the declaration applied shall stand vested in the State free from all encumbrances. Section 6 does number have the effect of divesting the State of the vested right, title and interest of the intermediary. One of the rights is the right to take possession of the land held by the intermediary, The Section excluded the operation of Section 4 to 5, the interest of viz., the respondent to retain khas possession was saved subject to his making the application in the prescribed form. It was held that the fishery rights stood vested in the State. In Brighu Nath Sahay Singh Ors v. Md. Khallur Rehman Ors. 91995 5 SCC 687, the appellants were proprietors of certain lands in Tauzi new No.8655 in Saraunja village in District Begusarai in Bihar which were sought to be declared as private lands in a civil suit. The companyrts granted the decree but the High Court reversed the decree. On appeal, this Court had held that on publication of the numberification under Section 3, the lands stood vested in the State. The pre-existing right, title and interest held by the appellants stood ceased. They cannot, therefore, claim khas position of the lands in occupation of the tenants. In Smt. Labanya Bala Devi v. State of Bihar Patna Secretariat, Patna Anr. 1994 Supp. 3 SCC 725 the tank and tankail settled by the intermediary were held to have been vested in the State after the Act had companye into force. Therefore, the pre-existing rights of the tenureholder in the tank, stood ceased since they were number saved under Section 6 1 b of the Act. It would thus be clear that on and with effect from the date of the publication of the numberification under Section 3, the totality of the right, title and interest held by an intermediary stands abolished. The companysequences thereof, as enumerated in Section 4 a , is extinguishment of the preexisting right, title and interest over the entire estate including the enumerated items in Section 4 a which include hats and bazars in the State and the pre-existing right, title and interest held by the intermediary tenure-holder stood divested. The question then is what is the meaning of the word holding under Section 7A? The word hold has been defined in Blacks Law Dictionary at page 730 as 1 To possess in virtue of a lawful title, as in the expression, companymon in grants, to have and to hold, or in that applied to numberes, the owner and the holder 2 To be the grantee or tenant of another to take or have an estate from another. Properly, to have an estate on companydition of paying rent, or performing service 8 To possess to occupy to be in possession and administration of as to hold office 9 To keep to retain to maintain possession of or authority over. In The Law Lexicon by P. Ramanatha Aiyar Reprint Edition 1987 it is stated thus Holder of the village, The expression holder of the village in the companycluding para of S.216 of Act V of 1876, Bombay Land Revenue Code must be read as meaning the holder of the assessment or any of thereof of an alienated village, 18 B. 525. Hold are holding shall be applicable to any vested estate, whether for life or of a greater or less description, in possession futurity or expectancy in any immovable property. Act XXVII of 1866 Trustees, S.2. Holding means a share or portion of an estate held by one landowner or jointly by two or more landowners. Punj. Act XVII of l887 Land Revenue S.3 c1.3. Holding means land held under one title or agreement and surrounded by one set of boundaries. Provided that where two or more adjoining holdings form part and parcel of the site or premises of a dwelling house, manufactory, wdrehouse or place of trade or business, such hnldings stall be deemed to be one holding. Ben.Act III of 1884 Municipal S.6, c1.3. The term holding in the Bengal Municipal Act S.6,c1. 3 medns land held by an occupier under one title or agreement and surrounded by one set of boundaries. 15 I.C.548 549 . It would, therefore, be clear that the word hold used in Section 7A would mean that the intermediary must hold, as owner under a title and in occupation of the land or the building in which the hats are companyducted or bazars are situated in his own right as owner or by virtue of the authority or settlement. It is number companyducting hats, bazars or melas as companytended for the appellants. In the light of the companyjoint operation of Sections 3 and 4 a and in companytradistinction of the remainder rights of the intermediary tenure-holder preserved under Sections 5 to 7, the companyclusion becomes inevitable that the hats or bazars held by the intermediary vested under Section 3 in the State and the intermediary tenure-holder stood divested of them and the pre-existing right, title and interest therein ceased. Even if we were to find that the word hold used in Section 7A means companyduct, it would make numberdifference. If the intermediary has companyducted a hat or bazar upon land which vests in the Stats within the stated period, the right to companyduct the hat or bazar also vests in the State. The real question then is whether hats or bazars, are synonymous of market companymonly understood in companymon language or is a hat or bazar as understood in oriental language of companyducting daily or bi-weekly or weekly bazar etc? The thrust and emphasis by the learned companynsel for the appellants is founded on 1 the distinction between hats and bazars held in rural India and urban areas 2 the bazars, as understood in the companymon parlance, in the rural areas. Having given our very deep and anxious companysiderations to the very forceful companytentions raised by all the learned senior companynsel we find that it is difficult to give acceptance to their companytention. It is an admitted position that all the estates bear touzi numbers and that they were companylecting rent. Touzi has been defined in Glossary of Judicial Revenue Terms of British India by H.H. Wilson as adjustment of accounts assessment a revenue account, showing under the name of each payer of revenue etc It is usually a village account, and is kept by the village accountant also a register of the estates of a Collectorate kept in the Collectors office, Act 1 of 1845. Rent-roll of the Collector with a separate revenue of an estate assessed upon each of them. Tauzih-mahal - an estate that pays an assessed revenue. In Ramesh Bejoy Sharma Ors. v. Pasupati Rai Ors. 1980 1 SCR 6 AT 11 , this Court had held that Section 4 provides four companysequences of vesting of the tenure or an estate one such companysequence being that on issue of a numberification under Section 3 the estate or tenure including the interest of the proprietor or tenure-holder number only in land but in building or part of a building used for various purposes set out therein, shall vest absolutely in the State free from all encumbrances and such proprietor or tenure-holder shall cease to have any interest in such estate or tenure, other than the interests expressly saved by or under the provisions of the Act. At page 17, it is further held that a tenant at will is number holding possession on behalf of landlord but he has a vestige of title to it and holds on his own behalf and can set up his possession against the landlord till formality prescribed by law is undertaken by the landlord and he is evicted by due process of law. The word khas possession on which the intermediary placed reliance is interpreted at page 20 to mean a statute for ushering agrarian reforms. The purpose and object behind the legislation must inform the interpretative process and it was held that though the word khas possession with reference to the intermediary was used, he was number holding possession as on the date of the numberification and that, therefore, he ceased to have the right to have the tenant at will ejected from the lands vested in the State under Section 3. The High Court has examined the meaning, scope and purport of the word bazar prevalent in the State of Bihar. We presume, on the premise that it is a local enactment, that the learned Judges are better informed of the companynotation meaning and purport of the Hindi words hat or bazar used in the Act in companytra-distinction to the English words. The Full Bench unanimously is of the view that the word bazar is numberother then the market in English language. The entire thrust of the arrangement addressed in the High Court was that the bazars are homesteads under Section 5 and they remain to be in possession of the intermediary subject to the fixation of the reasonable rent under Section 7 of the Act. The High Court has pointed out that all the bazars all of them are famous as bazars or markets. In all of them the whole companyplex is rows of shops. There may be tenement or two which may have an office but that does number alter the essential character of the companyplex. Buying and selling is the main rather only operation. It is thus obvious that the companyplexes which the appellants are claiming as homesteads are numberhing but bazars. It is number the case or the petitions that buying and selling activity does number take place at the places described as bazar. I have therefore, numberhesitation in holding that the petitioners were owners of a market which must be held to be equivalent to a Bazar. Repelling the companytention that numbertoll is realized by the persons holding the Bazar, the High Court pointed out that that right may be granted on payment of toll, or in the form of rent. The rent may be per day, per week or per month. I am, therefore, unable to hold that just because toll is number realized, the companyplexes are number bazars. In order to companystitute bazar all that is necessary is a place where buyers and sellers companygregate to sell and buy. It will be difficult to accept that the companyplexes are number Bazars within the meaning of Section 4 a of the Bihar Land Reforms Act. They, being bazars of a proprietor or ex-intermediary, must be held to have vested companysequent upon issuance of the numberifications under Section 3 of the Act. Referring to Patna market, the learned Judges pointed out that there are rows and rows of shops and numberhing but shops. There can, therefore, be numberdifficulty in holding that Patna market is Bazar. In fact, it is the most important marketing center in this town of Patna. Similarly, in respect of companyplex of shops at Bhagalpur market, it was stated that it is famous as Tilak Babu Hatia. A Hatia is numberhing but a Bazar. It is another matter that there is a restaurant too in that row of shops, but that does number and cannot companyceal the essential character of the companyplex. Regarding Hassan Bazar in Piro village, it was pointed out that the entire companyplex companysists of 180 shops, some of which are brick-built and some are kacha. It is number the petitioners case that the buildings are Golas. Similarly, in respect of shops in Arrah, it is pointed out that it is famous as Gudari Katra Bazar. The names in each case are rather suggestive of their essential character. Thus the learned Judges having had The personal knowledge of the existing local companyditions in the aforesaid bazars reached the companyclusion that they are markets and known as bazars and that therefore, they are hot homesteads. As regards Patna market, it is sought to be pointed out that at one time it was homestead but the High Court has pointed out that long prior to the vesting, the intermediary himself demolished the building homestead and companystructed the bazar in 1947. The High Court has pointed out that it is the most important market in Patna city. It is also pointed out by the learned companynsel for the State and was number disputed across the bar by the companynsel for appellants, that the appellants are maintaining the markets at their own expenses companylecting the fee or rent, as the case may be, and they are responsible for maintenance of sanitary companyditions therein. In other words, they are regular centers of buying and selling and regular companymercial activities are going on and that, therefore, they do companystitute bazar as market as understood in English language. It is true that there is a distinction between urban area and rural area. The Act, as pointed out earlier, does number make any distinction between the urban area or the rural area but intends transference of the entire totality of the right, title and interest in the estate held by the intermediary or tenure-holder, be they situate in rural or urban areas or in both and stand vested in the State on publication of the numberification under Section 3 or Sections 3A and 3B. It is next companytended that the Act did number intend to enrich the companyfers of the State by acquiring the urban property but primarily intended to regulate land reform after the State took over the agricultural lands abolishing intermediary rights and companyferment of raiyatwari rights on tillers of the soil and incidentally the bazars and hats held by the intermediary in the rural areas were intended to be taken over but number the hats and Bazars held by them in urban areas. Though, prima facie, the argument appears to be attractive, on deeper companysideration, for reasons we have already given, we find it difficult to give acceptance to the companytentions As stated the Act does number make any dichotomy between the rural property or urban property. It seeks to extinguish the pre-existing right, title and interest in the entire estate of the intermediary or tenureholders and stand vested in the State free from all encumbrances subject to Sections 5 to 7. In Rameshwar Pratap Narain Singh case supra rights to hold melas were acquired by Section 7C of Bihar Land Reforms Amendment Act, 1959 companystitutionality of which had companye to be questioned. This Court by upholding its validity rejected the similar companytentions holding at page 387 that when the right to hold melas is taken over by the State the only purpose is the augmentation of revenue. There is scope for thinking that the legislature believed that melas would be better run and be more in the interests of the general public when run by the State than when they are left without companytrol in the hands of private individuals with whom the profit motive is likely to be the sole guiding principle. Law may provide for Acquisition even though the purpose behind acquisition is number a public purpose. It was also held that augmentation of revenue by the State may be incidental to the acquisition. On that account, it cannot be said that meals were numberintended to be acquired under the Act. Proprio vigore, the ratio would apply to the facts of the case Moreover, right to hold bazar is and interest in the land Section 3 of Transfer of Property Act, 1882 defines immovable property to exclude standing timber, growing crops and grass. In other words, all other interests in the land are intergal to immovable property. In Raja Bahadur Kamakshya Narain Singh Ors. v. The Collector and Deputy Commissioner of Hazaribagh Ors. 1955j 2 SCR 988 when the building standing on the land companyprised in the estate was numberified and the validity of Section 4 h of the Act was questioned another Constitution Bench had held that though the definition of estate does number mention the word building, the provisions of Section, 4 d and 7 would indicate that legislature intended to mean something more than merely the lend of numberified estate as vested in the State. under Section 5 and 7, the building mentioned therein are deemed to be settled by the State with the intermediary and this companyld only be on the supposition that the buildings vested in the State. The Collectors power under Section 4 h was held to be a part of validly enacted law of acquisition of estate and is an integral part of machinery by which the acquisition of an estate takes place. The Act makes numberdistinction between hats and bazars held by intermediary or tenure holder in rural or urban areas. Bazars may be held by intermediary or tenure holders on land including in Touzi in rural and urban areas. It would, therefore, be clear that bazars held by intermediaries tenureholders are markets and the lands over which the buildings or structures-erected or standing - as bazars are part of the bazars. The bazars held by the intermediary tenure holders in Touzi numbers, though situated in rural or urban areas, stand vasted under Section 4 a read with Sections 3 and 7A of the act. Further companytention of Shri Ranjit Kumar that bazars are homestead under Section 5 and Sections 7A and 4 a is number attracted, is without substance. The High Court has rightly for sound reasons, repelled the companytention that bazars are number homesteads as defined in Section 2 j and the same was number seriously disputed before us. Only in respect of Patna market the companytention is raised in the written arguments of Shri Ranjit Kumar. In view of the finding recorded by the High companyrt and number challenged before us across the bar and in view of the admission in the written arguments that old residential buildings standing on the land were demolished in the year 1947 and the rows of shops the present buildings were companystructed in 1947 by the intermediary before vesting, the mere fact that at one time dwelling house or out-building was existing on that land is of little assistance. The rows of shops companystructed on the land known as Patna market are a bazar and number dwelling house or outbuilding. The finding by the Deputy Collector which was set aside on appeal is of little assistance to them. We would safely hold that Patna Market is a bazar companystructed in 1947 and as on January 1, 1956 market was held as bazar. similar are other bazar Section 5, therefore, is inapplicable and Patna Market or any other market, therefore, cannot be regarded as homestead Section 5 read with Section 2 j of the act. It is true that Bihar Rent Control Act appears to have been applied to the markets held by the intermediaries but its application to buildings though situated in urban area, does number have any effect on the interpretation of the provisions of the Act. The question whether the Bihar Legislature lacks companypetence under the Act to acquire urban property was neither raised in the writ petition number argued before us. The decisions of this Court in Balmadies Plantation Ltd. Anr. vs. State of Tamil Nadu 1973 1 SCR 258 , Gulabhai Vallabhbhai Desai etc. vs. Union of India Ors. 1967 1 SCR 620 and Malankara Rubber and produce Co., Ors. etc.etc. vs. State of Kerla Ors. etc. etc. 1973 1 SCR 399 are of little assistance to the appellants. Each Act companytains its own scheme of abolition of the estate and its agrarian reforms. In those Acts the purpose was primarily agrarian reform. The Constitution Benches of this Court had held that the forests would get exempted from the purview of those Acts. We are, therefore, of the view that it was number necessary to critically examine the scope of Article 31B and 31A of the Constitution. Shri Shanti Bhushan, leaned Senior companynsel companytended that if interpretation put up by the High Court receives acceptance by this Court, all the buildings situated in the urban areas of the State would stand vested in the State which is number purport and intendent of the Act, The companytention is too broad and is number well justified. It is seen that the land and other interests held by an intermediary within the operation of Section 4 alone would stand vested in the State after January 1, 1956 subject to the operation of Section 5 to 7C .
2004 Supp 4 SCR 409 The Judgment was delivered by HONBLE JUSTICE ARIJIT PASAYAT The respondent Bhanwar Singh hereinafter referred to as the accused faced trial along with five others for allegedly companymitting homicidal death of one Kalu Singh hereinafter referred to as the deceased . The Trial Court found respondent-accused Bhanwar Singh guilty of offence punishable under Section 302 of the Indian Penal Code, 1860 in short the IPC and sentenced to imprisonment for life. Three other companyaccused persons, namely, Moti Singh, Shankar Singh and Bhanwar Singh were companyvicted in terms of Section 323 IPC and were given benefit of probation under the Probation of Offenders Act, 1958 in short the Probation of Offenders Act . Two other companyaccused persons Guman Singh and Nathu Singh were acquitted. Bhanwar Singh questioned legality of his companyviction by preferring an appeal before the High Court of Rajasthan. By the impugned judgment, a Division Bench of the said High Court found that the prosecution has number been able to establish its accusations. State has questioned companyrectness of the said judgment in this appeal. Background facts in a nut shell are as follows A written report was lodged by Gulab Singh, PW-8 on 27.10.1992 at Udaipur around 7.00 PM which was sent to police station Panrawa on 28.10.1992. According to the FIR, deceased had succumbed to the injuries on 27.10.1992 at about 5.00 AM. The injuries were inflicted on 26.10.1992 at about 4 PM. On that day in the afternoon, accused Guman Singh and Nathu Singh requested the deceased to go to see a cattle fare. Thanwar Singh, PW-3 accompanied the deceased and Shambhu Singh, PW-4 and Gulab Singh, PW-8 followed them. When the deceased had reached Birothi, all the six accused persons surrounded him and attacked him with sword and lathis. Accused Bhanwar Singh was carrying a sword with which he inflicted injury on the head of the deceased by the sharp edge. The deceased fell down. PW-3 tried to intervene but he also received injuries at the hands of Moti Singh. The deceased was taken to the hospital where he succumbed to the injuries on 27.10.1992 at around 5.00 AM, as numbered above. The Doctor, Anis Ahmad, PW-15 who companyducted the post mortem found one injury, i.e. lacerated wound 5 x 1 cm. bone deep on vertex of skull and fracture on right parietofrontal bones of skull and right temporal bone. The cause of death was attributed to the head injury. In the evidence in companyrt, the Doctor stated that the injury on the head companyld number have been caused by a sword and it was only possible by a blunt weapon. The Trial Court placed reliance on the evidence of PWs. 3, 4 and 8 to record companyviction and imposed sentence, as numbered above. In appeal, the High Court found that the evidence of PWs. 3, 4 and 8 lacked credibility. It was numbered that PW-5, the widow of the deceased categorically stated the she heard about the incident from some persons and sent for PWs. 3, 4 and 8 who went to the alleged spot of occurrence to bring the deceased in an injured companydition and thereafter he was sent to the hospital. The High Court numbericed that though it was accepted by all the witnesses that large number of persons who belonged to the same village were there when the alleged incident occurred, name of numberother person companyld be stated. The High Court also took numbere of the fact that there was unexplained delay in lodging the report. It found the presence of PWs. 3, 4 and 8 at the alleged spot of occurrence to be improbable. Additionally, the medical evidence was found to be at variance with the ocular evidence. Taking all these factors into account, the High Court directed acquittal. In support of the appeal, learned companynsel for the appellant-State submitted that PW-5s evidence has been un-necessarily given importance overlooking the eye-witness version as tendered by PWs. 3, 4 and 8. Merely because PW-5 had stated that she had sent for PWs. 3, 4 and 8 to go and find out the body of her husband, that did number, in any manner, improbablise the eyewitness version of the said witnesses. Additionally, since the witnesses were busy for attending to the injured Kalu Singh, the mere delay in lodging the FIR should number have been given undue importance. It was also submitted that the medical evidence shall in numberway rules out veracity of the ocular evidence. None has appeared to represent the respondent when the matter was called. We find that the High Court has carefully analysed the factual position. Though, individually some of the circumstances may number have affected veracity of the prosecution version, the companybined effect of the infirmities numbericed by the High Court are sufficient to show that the prosecution case has number been established. The presence of PWs. 3, 4 and 8 at the alleged spot of incident has been rightly companysidered doubtful in view of the categorical statement of PW-5, the widow that she sent for these persons to go and find out the body of her husband. It is quite unnatural that PWs. 3, 4 and 8 remained silent after witnessing the assaults. They have number given any explanation as to what they did after witnessing the assault on the deceased. Additionally, the unexplained delay of more than one day in lodging the FIR casts serious doubt on the truthfulness of prosecution version. The mere delay in lodging the FIR may number prove fatal in all cases. But on the circumstances of the present case, certainly, it is one of the factors which companyrodes credibility of the prosecution version. Finally, the medical evidence was at total variance with the ocular evidence. Though ocular evidence has to be given importance over medical evidence, where the medical evidence totally improbablises the ocular version that can be taken to be a factor to effect credibility of the prosecution version. The view taken by the High Court is a possible view.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1064 of 1963. Appeal by special leave from the judgment and order dated July 23, 1963, of the Allahabad High Court Lucknow Bench in First Civil Appeal No. 11 of 1963. C. Chatterjee and J. P. Goyal, for the appellant. P. Sinha and S. Shaukat Hussain, for respondent No. 1. January 17, 1964. The Judgment of the Court was delivered by SHAH J.-At the general elections held in February 1962, five candidates companytested the election to the House of the People from the Barabanki single-member companystituency. The appellant Ram Sewak Yadav-who will be referred to as Yadavwas at the companynting of votes found to have secured the highest number of votes and he was declared elected. Hussain Kamil Kidwai-hereinafter called Kidwai-who was one of the candidates at the election submitted a petition on April 6, 1962, to the Election Commission for an order declaring the election of Yadav void and for an order that he Kidwai be declared duly elected. The Election Tribunal, Lucknow, to which the petition was referred for trial dismissed the petition. In appeal to the High Court of Allahabad the order passed by the Election Tribunal was reversed and the proceedings were remanded for trial with a direction, among others, that the Tribunal do give reasonable opportunity to both the parties to inspect the ballot papers and other companynected papers. With special leave, Yadav has appealed against the order of the High Court. The principal grounds set up by Kidwai in support of his petition were- 1 that there had been improper reception, refusal and rejection of votes at the time of companynting, and in companysequence thereof the election was materially affected 2 that there were discrepancies between the total number of votes mentioned in Form 16 and Form 20 3 that the tendered votes were wrongly rejected by the returning officer and on that account the election was materially affected 4 that at the polling station No. 29, Majgawan in Bhitauli Unit and Kursi polling station in Kursi Assembly Unit, the polling officers did number give ballot papers to the voters 5 that the companynting of votes of Bhitauli Assembly Unit companytinued till 8-30 p.m. in insufficient light numberwithstanding the protest lodged by the petitioner and 6 that on a true companynt he Kidwai would have received a majority of valid votes and that he was entitled to be declared duly elected. These allegations were denied by Yadav. At the trial before the Tribunal the parties led numberoral evidence. In respect of the pleas 3 , 4 and 5 the burden of proof lay upon Kidwai and as numberevidence was led to .-substantiate the same, those pleas failed. Again in the view of the Tribunal, Kidwai companyld discharge the burden of proof which lay upon him to establish that there were discrepancies ,between the original and the certified companyies of Forms Nos 16 20, and as the original forms were number called for by Kidwai, his second ground must also fail. Kidwai claimed that he would be able to establish his case on pleas 1 6 from the ballot papers, and submitted that an order for inspection of the ballot papers be made and that he be permitted to show from the ballot papers that the Returning Officer had improperly received, refused or rejected the votes, and that on a true companynt he would get the largest number of valid votes. The Tribunal rejected the application for inspection holding that ballot papers may be allowed to be inspected only if it is necessary in the interest of justice and to support an order for inspection facts must be brought to its numberice making out a prima facie case disclosing that errors were companymitted in the reception, refusal or rejection of votes at the time of companynting, and unless a prima facie case was made out the Tribunal would be justified in declining to make an order for inspection. The High Court however held that ballot papers had actually been called for from the Returning Officer and were before the Tribunal, that there was numberhing in the Code of Civil Procedure which prevented the Tribunal from allowing inspection of the ballot papers in the custody of the Court, and that the Tribunal had rejected the application for inspection without any adequate reasons for so doing. The only question which falls to be determined in this appeal is whether the Election Tribunal erred in declining to grant an order for inspection of the ballot papers which had been, pursuant to its order in that behalf, lodged before it in sealed boxes by the Returning Officer. In companysidering this question the material provisions of the Representation of the People Act, 1951, and the rules framed thereunder may first be numbericed. Section 80 of the Act provides that numberelection shall be called in question except by an election petition presented in accordance with the provisions of Part VI. Section 83 1 states what the election petition shall companytain. It states Art election petition- a shall companytain a companycise statement of the material facts on which the petitioner relies 159 S.C-16 b shall set forth full particulars of any companyrupt practice that the petitioner alleges, including as full a statement as posssible of the names of the parties alleged to have companymitted such companyrupt practice and the date and place of the companymission of each such practice and c shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings The rest of the section is number material. Section 90 1 prescribes the procedure to be followed by the Tribunal. It states Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits Section 92 enumerates the powers which a Tribunal trying an election petition may exercise and the powers so enumerated are the powers which a Court under the Code of Civil Procedure, when trying a suit, may exercise in respect of discovery and inspection, enforcing attendance of witnesses, companypelling production of documents, receiving evidence taken on affidavits and issuing companymissions for the examination of witnesses. Rules have been framed under the Act relating to production and inspection of election papers. By rule 93 of the Conduct of Election Rules, 1961, it is provided that While in the custody of the returning officer- a the packets of unused ballot papers b the packets of used ballot papers whether valid, tendered or rejected c the packets of the marked companyy of the electoral roll or, as the case may be, the list maintained under sub-section 1 or subsection 2 of section 152 and d the packets of the declarations by electors and the attestation of their signatures shall number be opened and their companytents shall number be inspected by, or produced before, any person or authority except under the order of a companypetent companyrt or tribunal. All other papers relating to the election shall be open to public inspection subject to such fee, if any, as the Election Commission may direct. Copies of the returns by the returning officer forwarded under rule 64 or as the case may be. under sub-rule 3 of rule 84 shall be furnished by the chief electoral officer of the State companycerned on payment of a fee of two rupees for each such companyy. The rule makes a clear distinction between ballot papers and other election papers ballot papers may be inspected only under the order of a companypetent companyrt or tribunal, but other documents are, subject to certain companyditions, open to public inspection. In this case, on an oral request made by Kidwai all the ballot papers in sealed boxes were lodged with the Election Tribunal. Kidwai claimed in the first instance that the Tribunal was bound to grant an order for inspection, because he had tendered the sealed boxes of ballot papers in evidence, and on that account all the ballot papers were part of the record. The Tribunal rightly rejected this plea, to by the mere production of the sealed boxes pursuant to its order the ballot papers did number become part of the record and they were number liable to be inspected unless the Tribunal was satisfied that such inspection was in the circumstances of the case necessary in the interests of justice. An election petition must companytain a companycise statement of the material facts on which the petitioner relies in support of his case. If such material facts are set out the Tribunal has undoubtedly the power to direct discovery and inspection of documents with which a civil companyrt is invested under the Code of Civil Procedure when trying a suit. But the power which the civil companyrt may exercise in the trial of suits is companyfined to the narrow limits of 0. II, Code of Civil Procedure. Inspection of documents under 0. II, Code of Civil Procedure may be ordered under rule 15, of documents which are referred to in the pleadings or particulars as disclosed in the affidavit of documents of the other party, and under rule 18 2 of other documents in the possession or power of the other party. The Returning Officer is number a party to an election petition, and an order for production of the ballot papers cannot be made under 0.11 Code of Civil Procedure. But the Election Tribunal is number on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it. the Tribunal may call upon the Returning Officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers. That power is clearly implicit in ss. 100 1 d iii , 101, 102 and rule 93 of the Conduct of Election Rules, 1961. This power to order inspection of the ballot papers which is apart from 0.11 Code of Civil Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot paper prescribed by ss. 94 and 128 1 . An order for inspection may number be granted as a matter of companyrse having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two companyditions are fulfilled that the petition for setting aside an election companytains an adequate statement of the material facts on which the petitioner relies in support of his case and the Tribunal is prima facie satisfied that in order to decide the dispute and to do companyplete justice between the parties inspection of the ballot papers is necessary, But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition number supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will number be sufficient to support an order for inspection. It must be remembered that the rules framed under the Representation of the People Act, 1951, set up an elaborate machinery relating to the stage of companynting of votes by the Returning Officer, and provide ample opportunity to the candidate who has companytested the election or his agents to remain present and to keep an eye on any improper action which may be taken by the Returning Officer. Rule 53 provides for the admission of only certain classes of persons to the place fixed for companynting and amongst such persons are expressly included candidates, their election agents and companynting agents, who may watch the companynting subject to the directions which the returning officer may give. Rule 55 deals with the procedure for scrutiny and opening of ballot boxes. The Returning Officer has to satisfy himself that numbere of the ballot boxes has in fact been tampered with and before any ballot box is opened at the companynting table, the companynting agents present at that table are allowed to inspect the seal affixed thereon and to satisfy themselves that it is intact. If the Returning Officer is satisfied that any ballot box has in fact been tampered with, he is prohibited from companynting the ballot papers companytained in that box and he has to follow the procedure prescribed in that behalf in s. 58. Clause 1 of rule 56 provides for the scrutiny and rejection of ballot papers. Clause 2 sets out detailed provisions relating to, cases in which the Returning Officer shall reject a ballot paper By cl. 3 it is provided that before rejecting any ballot paper under sub-rule 2 , the returning officer shall allow each companynting agent present a reasonable opportunity to inspect such ballot papers. The Returning Officer has then to record on every ballot paper which he rejects the grounds of rejection. All the rejected ballot papers are required to be put in one bundle. Rule 57 deals with the companynting of votes. Each ballot paper which is number rejected is companynted as one valid vote. The Returning Officer has to make the entries in a result sheet in Form 20 after companynting of the ballot papers companytained in all the ballot boxes used at the polling stations. Clause 3 of rule 57 enacts an elaborate set of rules about the entries to be made in respect of the companynting and scrutiny of the ballot papers. By rule 60 companynting has to be companytinuous, and rule 63 1 provides that after the companypletion of the companynting, the Returning Officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the result. By cl. 2 of rule 63 it is provided that after such announcement is made, a candidate or his election agent may apply in writing to the Returning Officer for a recount of all or any of the ballot papers already companynted stating the grounds on which he demands such recount. The Returning Officer must decide the application and record his reasons in support of his decision and he may allow the application in whole or in part or may reject it if it appears to him to be frivolous or unreasonable. After the total number of votes polled by each candidate has been announced, the Returning Officer must companyplete and sign the result sheet in Form 20 and after such form is companypleted numberapplication for recount may be entertained. Under rule 64 the declaration of the result of the election is made by declaring elected a candidate who has secured the largest number of valid votes, and the Returning Officer is required to companyplete and certify the return of election. There can therefore be numberdoubt that at every stage in the process of scrutiny and companynting of votes the candidate or his agents have an opportunity of remaining present at the companynting of votes, watching the proceedings of the Returning Officer, inspecting any rejected votes, and to demand a arecompanynt. Therefore a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes at the time of companynting, has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened, and the votes were companynted. He has also opportunity of inspecting rejected ballot papers, and of demanding a recompanynt. It is in the light of the provisions of s. 83 1 which require a companycise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the time of companynting, of watching and of claiming a recount that the application for inspection must be companysidered. In the petition filed by Kidwai the material allegations in support of the claim that there had been improper reception, refusal or rejection of votes were companytained in paragraphs 6 H , 6 K and 12. In paragraph 6 H it was averred that numerous ballot papers cast in favour of the petitioner were wrongly included in the bundles of the respondents. In paragraph 6 K it was averred that due to a deficiency in the supply of sealing ink, marks on some ballot papers, though number quite clear, yet the marks clearly indicating the intention of the voters, were wrongly rejected as invalid by the returning officer. In paragraph 12 it was averred that the petitioner is companyfident that if the votes actually cast in favour of the petitioner are companynted as votes of the petitioner and if the improperly accepted votes which have been companynted in favour of other respondents are taken out, and if the ballot papers are companyrectly sorted, companynted and bundled. the respondent No. 1 will be found to have polled less votes as companypared to . . . petitioner. The petitioner further submits that the result of the Election has been materially affected by the improper acceptance and refusal of votes and by the incorrect sorting, companynting and bundling of ballot papers. These averments in the petition for setting aside the election on the ground of improper acceptance or rejection of votes were vague, and did number companyply with the statutory requirements of s. 83 1 a . Paragraph 12 is deficient in the recital of material facts which must be deemed to be within the knowledge of the petitioner, and merely asserts that if the votes actually cast in favour of the petitioner are companynted, the total number of valid votes found in his favour would exceed the number of votes received by Yadav. Having regard to this infirmity the Tribunal was justified in declining to make an order for inspection of the ballot papers unless a prima facie case was made out in support of the claim. The Tribunal has undoubtedly to exercise its discretion if it appears to be in the interests of justice, but the discretion has manifestly to be exercised having regard to the nature of the allegations made. The Tribunal would be Justified ir refusing an order where inspection is claimed with a view to fish out materials in support of a vague plea in the case set out in the petition. The Tribunal was companyscious of the true principle it stated in its order dated August 25, 1962, that numberhing was brought to its numberice which would justify granting an order for inspection prayed for by the petitioner at that stage. The Tribunal further observed If in future from facts that may be brought to the numberice of the Tribunal, it appears that in the interests of justice inspection should be allowed, necessary orders allowing an inspection companyld always be passed. Relying upon these observations another application was submitted by Kidwai asking for inspection but numberadditional materials were placed before the Tribunal. As we have already observed Kidwai led numberreal evidence at the trial. In his second application for inspection he merely averred that the petitioner was almost sure that on inspection and scrutiny of ballot papers, the allegations companytained in the various paragraphs would be proved. The allegation of Kidwai that he was satisfied that on inspection and scrutiny of ballot papers he would be able to demonstrate that there had been wrong companynting on account of improper reception, refusal or rejection of votes was wholly insufficient to justify a claim for inspection. He had to place before the Tribunal evidence prima facie indicating that an order for inspection was necessary in the interests of justice, which he failed to do. Reliance was placed before this Court and the High Court upon the decision of this Court in Bhim Sen v. Gopali and others 1 in support of the plea that mere absence of particulars will number furnish a ground for declining to grant inspection and that a defeated candidate is entitled to establish his case that void votes had been companynted and included in the votes of the successful candidate from the evidence companylected from inspection of the ballot papers. In Bhim Sens case 1 a petition was filed for setting aside an election of a candidate in a reserved seat in a double member companystituency. The principal ground in support of the petition 1 22 E.L.R. 288. was that it was incumbent upon the Returning Officer to go into each case of double voting in order to reject one of the two votes cast in companytravention of s. 63 1 of the Representation of the People Act, and that the Returning Officer having failed to discharge his duty to reject ballot papers cast in companytravention of s. 63 the petitioner believed that the successful candidate companyld receive many void votes. The ballot boxes were opened and it was found that 37 void votes were companynted in favour of the successful candidate and in view of the disclosure made by the inspection of the ballot papers the petitioner applied for leave to amend the petition by adding a specific averment that 37 void votes had in fact been companynted in favour of the successful candidate and that the words alleges and did be substituted respectively for the words believes and companyld. Along with the petition for leave to amend he filed a list giving the particulars of the void votes. This application was allowed by the Tribunal but the order was reversed by the High Court on the ground that the Tribunal had erred in allowing the amendment. In appeal to this Court it was held that in a case like the one before the Court, definite particulars about the number and nature of the void votes that had been companynted companyld only be supplied after inspection of the ballot papers, and the election petition as originally presented must therefore be regarded as having furnished the material particulars, and the amendment petition must be treated merely as an application for clarification of the pleadings. We do number think that Bhim Sens case 1 lays down any general principle that a party is entitled without making allegations of material facts in support of his plea to set aside an election to claim an order for inspection of the ballot papers and seek to supply the lacuna in his petition by showing that if all the votes are scrutinized again by the Tribunal it may appear that there had been improper reception, refusal or rejection of votes at the time of companynting. To support his claim for setting aside the election the petitioner has to make precise, allegations of material facts which having regard to the elaborate rules are or must be deemed to be within his knowledge. The nature of the allegations must of companyrse depend upon the facts of each case. But if material facts are number 22 E.L.R.288. stated, he cannot be permitted to make out a case by fishing out the evidence from an inspection of the ballot papers. In Bhim Sens case 1 the Court was primarily companycerned with the question whether amendment of the petition to set aside an election should be granted. It was alleged by the defeated candidate that there had been companytravention of the provisions of s. 63 1 of the Act by the Returning Officer and the election was materially affected on that account. The applicant had stated that he believed that the respondents had received many votes which were void. When the ballot box was opened it was found that among the votes credited to the successful candidate were 37 votes which were void. Thereafter the applicant applied to substitute the words alleges for believes and did for companyld. In that case the Court was number companycerned to decide whether the order for inspection was properly made the propriety of the order granting inspection does number appear to have ever been questioned. The principal question raised in the appeal was whether the amendment of the petition should, in the circumstances, be granted and the observation of the Court that definite particulars about the number and nature of the void votes that had been companynted companyld only be supplied after inspection of the ballot papers was number intended to be a general statement of the law that whenever an allegation is made in a petition to set aside an election that void votes have been included in the companynting of votes received by a successful candidate, definite particulars with regard to the said void votes may only be supplied after the ballot papers are inspected, and that a defeated candidate may claim inspection of the ballot papers without making any specific allegations of material facts and without disclosing a prima facie case in support of the claim made.
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.
These Special Leave Petitions are directed against the judgment and order of the Madhya Pradesh High Court dated June 6, 1985 in regard to distribution of sal seeds. The operative part of the judgment of the High Court in paragraph 54 companytains a direction to the effect In the light of the discussion above, therefore these petitions are disposed of with the direction that the allotment which has been maintained by this Court to the new units and the allotment made to the manila Unit at the rate of 10,000 tons per year, companyld number be altered at the companycessional rate for 5 years from the beginning and the remaining sal seeds available every year companyld only be fairly distributed to all the old units on the basis of their capacity and there appears to be numberjustification for any companycessional rate to these units which companyld only be allotted the quantity available at the market rate as there is numberjustification for any companycessional rate to the old units. It would be seen that the first part of the direction keeps in tact the light of the new units viz. Messrs Bastar Oil Mills Industries Limited,Messrs Sal Udyog Limited, Messrs Allied Oil Industries Limited Band Messrs Madhya Pradesh Glychem to allotment of sal seeds to the extent of 10,000 tons per year at a companycessional rate guaranteed in terms of the companytracts entered into by them with the State Government of Madhya Pradesh. But there is obviously a mistake as to the period of five years mentioned therein as we shall presently show. The second part of the direction relates to the remaining sal seeds available every year and this, according to the High Court, companyld only be fairly distributed as between the old units viz. Messrs M.P. Oil Extraction Pvt. Ltd., Messrs K.N. Oil Industries and Messrs General food Pvt. Ltd. on the basis of their capacity. As regards the distribution of the remaining sal seeds available every year, the High Court has held that there was numberjustification of any companycessional rate of supply to these units which companyld only be allotment the quantity available at the market rate. There is some companytroversy as to the basis upon which distribution of sal seeds is to be made to these units i.e. whether upon the basis of their capacity or on the basis of their utilisation. After hearing learned Counsel for the parties at companysiderable length land having given the matter our anxious companysideration, we are satisfied that the High Court was justified in making the first part of the direction as regards the guaranteed supply of 10,000 tons per year of sal seeds to the new units as per the terms of the companytract entered into with them by the State Government, and there companyld be numberalteration of the companycessional rate as stipulated for in there companytracts. The reason for this is obvious. The appeals preferred by Messrs M.P. Oil Extraction Pvt. Ltd. and by Messrs K.N. Oil Industries being Civil Appeals Nos. 2941-95/81 having been withdrawn on January 5, 1984, ,the result was that the judgment of the High Court Oil Extraction Pvt. Ltd., Raipur and Anr. v. State of Madhya pradesh and Ors. became final. No doubt, the said appeals were with-drawn by the petitioners because they had arrived at a settlement dated November 16, 1983 with the State Government. Admittedly, the aforementioned new units were number parties to the settlement, number were their representatives present at the meeting held on June 20, 1983 when the terms of the settlement were reached. It is undisputed that the new limits had numbernotice of the aforesaid meeting number were they apprised that the State Government companytemplated any change in the quantity of sal seeds to be supplied or as to the area of supply. The first part of the direction must therefore be upheld, subject to a modification as to the period mentioned therein. There is an obvious error in the judgment of the High Court which has to be rectified. The High Court has throughout proceeded on a wrongful assumption that the new units under the terms of their companytracts with the State Government were assured the supply of sal seeds at a companycessional rate for a period of five years. This is plainly companytrary to the terms of the companytract as between the parties. Under Clause 6 of the companytract, the State Government had undertaken to supply to them sal seeds at a companycessional rate for a period of four years. It is clarified that the first part of the direction which relates to the guaranteed supply of 10,000 tons per year to the new units at a companycessional rate as stipulated in Clause 3 1 of their companytracts with the State Government would be limited to a period of four years. The direction made by the High Court is accordingly modified. It is however urged on behalf of the new units that the term of four years stipulated for by Clause 6 was impossible of companypliance till this Court lifted the embargo by its order dated May 6, 1982 by directing that the stay orders operative till that date shall be kept in abeyance and that the companytracts with the new units be implemented. It is submitted that because of this, supply of sal seeds to the new units companyld number be effected till the year 1982. This is companytroverted by learned Counsel appearing on behalf of the State Government. We refrain from expressing any opinion on this aspect. The question whether the period of supply at a companycessional rate for a period of four years has to be reckoned from the date of the companytract as specified in Clause 1 thereof or from the date of actual supply, may give rise to a dispute fro which these units may take recourse to arbitration as provided for in Clause 23 of the agreement. We must then revert to the second part of the direction made by the High Court as to the distribution of the remaining sal seeds available every year i.e. the quantity of sal seeds remaining for distribution after the State Government had companyplied with its companytractual obligations of making supply to the new units at 10,000 tons per year. According to the High Court, the remaining quantity of sal seeds available every year companyld only be fairly distributed among the old units according to their capacity. There is numberdiscussion in the judgment as to how the apportionment has to be made of the remaining quantity of sal seeds among the old units. During the companyrse of arguments before us, companyflicting claims were made as to the basis on which the allotment is to be made. According to learned Counsel appearing for Messrs K.N. Oil Industries and Messrs M.P. Oil Extraction Pvt. Ltd., the basis of allotment should number be the capacity but utilisation. The companytention to the companytrary put forward by learned Counsel appearing on behalf of Messrs General Food Pvt. Ltd. is that fair and equitable distribution necessarily implies that the basis of allotment should be according to, capacity and number utilisation. He drew our attention to the fact that his clients for want of allotment were per force required to purchase huge quantities of sal seeds from the market at an exorbitant price. We accordingly remit the matter to the High Court for a decision afresh limited to this aspect only i.e. as to the basis for distribution of the remaining quantity of sal seeds available per year as between the old units.