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Sarkar, J. The question raised is whether a certain sum received by the respondent was a capital receipt or a revenue receipt. The respondent was a firm carrying on a business of purchasing and selling paper, stationery and other things and manufacturing books, exercise books, diaries etc. and for the purpose of its business it had a printing press. The business was carried on and the press housed in a building belonging to its partners where the latter also resided. This building was requisitioned by the Government in September, 1943, for the duration of the war. The respondent had thereupon to shift its business to another place where it was restarted sometime later. The respondent claimed companypensation for the respondent claimed companypensation for the requisition on various accounts and was paid various sums. One of the claims was made in these words On account of the companypulsory vacation of the premises disturbance and loss of business on the basis of two years at Rs. 2,29,450 per annum Rs. 4,58,900. On this head the Government paid Rs. 57,435. The question is whether this sum of Rs. 57,435 was liable to incometax and excess profits tax. It would be liable if it was a revenue receipt and number, if it was a capital receipt. It was, numberdoubt, paid in respect of some injury suffered by the respondent on account of the requisition. If that injury was to the respondents capital assets then the receipt would be a capital receipt. If, on the other hand, the injury was to the respondents trading, then it would be a revenue receipt. It is clear that the requisition did number cause any injury to any of the tangible capital assets of the respondents business. Indeed, it is number companytended that there was any injury to any of them. What is said on behalf of the respondent is that there was injury to its profit making apparatus. By that it is number suggested that the respondents business had a profit making apparatus apart from its tangible capital assets, of the kind found to have been in existence in Van den Berghs Ltd. v. Clark. What is said is that there was a loss to the goodwill, that is to say, the benefit that the respondents business derived from its companynection with the building where it was carried on. It is said that this benefit was lost as the business had to be shifted from the old premises to a new one as a result of the requisition. This is the companytention that we have to examine in this case. It is number disputed on behalf of the Department that such a goodwill would be a capital asset. The Department companytends that there was numberclaim for injury to any such goodwill. It says, we thing rightly, that goodwill is a question of fact, it may exist, it may number exist see Hill v. Fearis. The Department does number companytend that the existence of the goodwill had to be proved. What it says is that since it does number follow that every business has a goodwill, a loss to such goodwill has at least to be claimed and in the absence of such a claim it would follow that there was numbersuch goodwill and numberhing companyld therefore have been paid in respect of it. This seems to us to be an argument of substance and we did number understand learned companynsel for the respondent to companytend to the companytrary. What he said was that there was a claim for a loss to the goodwill. We turn number to the words in which the claim was made which we have earlier set out. There is numbermention of any loss to goodwill there. It is said behalf of the respondent that the claim was for companypulsory vacation of the premises and also for disturbance and loss of business and that the claim for companypulsory vacation of the premises was for the injury to the goodwill. That indeed would be a strange way of making a claim for loss of goodwill. There is a claim for loss of business in express terms and this was companyputed at two years loss of profits. Why was loss of business claimed ? Clearly, because the business would be stopped or disturbed for some time by the companypulsory vacation of the premises. That would make the claim as framed sensible. It would then be a claim for one thing only, namely, for loss of profits. The Department says that that is all that was claimed. It is difficult to hold that the claim so framed was, as the respondent companytends, for three things, namely, a companypulsory vacation of premises, b disturbance of business and c loss of business. If three things were claimed all companyld number have been together companyputed by one measure of two years loss of profit as was done. The claim for loss of business would have been without any particulars as to how the loss was said to have been occasioned and this companyld hardly have been intended. It is reasonable to think that the companypulsory vacation of the premises was mentioned as explaining how the disturbance and loss of business had been occasioned for which a claim had admittedly been made. The matter is put beyond doubt when one turns to the letter which accompanied and explained the respondents claim. Referring to the claim under companysideration, the letter stated If we take a fresh companystruction of our factory on temporary basis, this means time and therefore one of the biggest items in the Details of Claim has got to be included. Now the biggest item of claim is the item under companysideration. It was further stated in that letter As a result of the evacuation and in the absence of any premises we have been forced to warehouse our machines which are number idle and unproductive unless we are reinstated immediately in some temporary place and given electric companynection and given the other facilities, we estimate that our business will suffer at least for a period of two years and we have gauged that item on that basis. There is numberhint whatsoever anywhere in this letter that the respondent intended to make any claim for any loss of goodwill. It is perfectly plain that it was only claiming loss of profit for two years during which it did number expect to be able to restart its business. We do number think that the Tribunal came to any companytrary finding. It, numberdoubt, said Really speaking the payment is on account of the companypulsory vacation of the premises. That does number show that the Tribunal thought that the payment was on account of loss of goodwill. This observation was made because the Tribunal found that it had number been proved that the respondent had actually suffered any loss. No question of actual proof of loss arose for making the claim. That is why the Tribunal said that the payment was on account of companypulsory vacation of premises from such vacation a loss of profit might reasonably be presumed. The Tribunal does number mention any loss of goodwill at all and numberquestion of any such loss appears to have been raised either in the Tribunal or the High Court. We think we ought to refer to another part of the respondents letter earlier mentioned, to which our attention was drawn. There it is stated When we think of our companypetitors in the open market who would go far ahead on account of our absence we feel we shall have a strong uphill struggle whilst re-establishing ourselves when we have reached the numbermal stage of business. It is said that this shows that the respondent was claiming for loss of goodwill. That seems to us quite untenable a companytention. No goodwill is referred to. All that is said here is that companypetitors would go ahead while the respondents business remained stopped. Now that has numberhing to do with loss of goodwill. It is only companycerned with the stoppage of the respondents business irrespective of its removal from one premises to another. Further, this statement was number in companynection with any claim actually made. It companyld only, if at all, be taken as referring to the claim for loss of profits. We, therefore, do number think that this portion of the respondents letter helps it. It seems to us for the reasons aforesaid that the sum of Rs. 57,435 had number been received by the respondent for any injury to any of its capital assets. In our view, the sum was received a companypensation for loss of profits for the period during which, it was imagined, the respondents business would remain stopped before it companyld be restarted at a new premises. That being so, it was clearly a revenue receipt it has number been disputed that if the amount in question was paid as companypensation for loss of profit, it would be a revenue receipt an liable to tax. As it was a trading receipt, it cannot be held exempt from tax under section 4 3 vii of the Income-tax Act either. In the result we answer both the questions framed in this case in the negative.
Dipak Misra, CJI. The present writ petition, as the circumstances would have it, witnesses a second verdict. The first one was disposed of by us on 1st August, 2017. At that time, we had numbered the facts to the effect that the petitioners had prayed for issue of a writ of certiorari for quashment of the order Signature Not Verified Digitally signed by SATISH KUMAR YADAV dated 31.05.2017 passed under Section 10-A of the Indian Date 2018.02.06 144525 TLT Reason Medical Council Act, 1956 for brevity, the Act by the Secretary, Ministry of Health and Family Welfare, the 1 st respondent herein, and further issue a direction to the said respondent to grant permission to the petitioner-College for 4th renewal for the academic year 2017-2018 to facilitate admission of the 5th batch 150 students MBBS Course. The essential facts which have been numbered in the earlier judgment are that the Medical Council of India MCI had companyducted an inspection and granted the Letter of Permission LOP on 15.07.2013 for the establishment of the new medical companylege at Burdwan, West Bengal with an annual intake of 150 students with effect from the academic year 2013-14. Vide letters dated 04.07.2014, 10.06.2015 and 15.12.2015, renewals of permission for the 2 nd 1st renewal , 3rd 2nd renewal and 4th 3rd renewal batches of MBBS students at the petitioner-College for the academic years 2014-15, 2015-16 and 2016-17 respectively were granted by the respondent No. 1. On 06.07.2016, the petitioner-College submitted its scheme along with the requisite fees for the 4th renewal for the academic year 2017-18 which pertains to admission of the 5 th batch of 150 students in MBBS companyrse. On 09.07.2016, the 2nd respondent informed the College that the assessment for renewal of permission for the academic year 2017-18 would be undertaken by the Assessors appointed by it at any time after 15.07.2016 and the petitioners were asked to fill in the Standard Inspection Form A, Form B and Declaration Form for the academic year 2017-18 and keep them ready for scrutiny at the time of assessment. There was also a direction for submission of the soft companyies of the said Forms. As averred, the petitioners duly submitted a companypact disc companytaining soft companyies of Form A, Form B and Declaration Form and upon receipt of the necessary documents, the 2 nd respondent companystituted a team of Assessors and directed them to carry out the assessment inspection of the College. The inspection team, that is, the Assessors, companyducted a surprise inspection of the College on 03.11.2016 and 04.11.2016. The Assessors pointed out certain deficiencies to the College and numbered the same in the assessment report dated 04.11.2016. It is put forth that in the Regular Inspection Report, the shortfall in Teaching Faculty and Resident Doctors were only 4.5 and 3.50 respectively which were well within the prescribed limit. Two other deficiencies that were pointed out, as asserted, were companypletely remediable and were duly remedied by the College. On 22.12.2016, the Executive Committee of the respondent No.2 companysidered the Assessment Report of the Assessors and decided to recommend to the respondent No.1 number to renew the permission to the College for the 4 th renewal for the academic year 2017-18. It was also numbered that the 1st respondent, by its letter dated 03.02.2017, companymunicated to the College the recommendation dated 28.01.2017 of the respondent No. 2 for disapproving the permission to the College for the 4th renewal for the academic year 2017-18 and called upon the College to submit a detailed point-wise companypliance with documentary evidence. The College was further intimated about the hearing that was to be held on 09.02.2017 before the Hearing Committee. A team of representatives of the College appeared before the Hearing Committee on the date fixed and submitted the companypliance report keeping in view the remarks and observations made by the Assessors of the respondent No. 2. In the second week of March, 2017, the petitioners received a companyy of the order dated 01.03.2017 issued by the 1st respondent recording the recommendations order passed by the Hearing Committee of the respondent No. 1 under Section 10-A 4 of the Act. The recommendation of the Hearing Committee was to the effect that the deficiencies pointed out by the 2nd respondent were number such to warrant disapproval at that stage. Despite the aforesaid findings of the Hearing Committee, the 1 st respondent, instead of taking a final decision, referred the matter back to the respondent No.2 to review the same in the light of the recommendations findings of the Hearing Committee along with documents submitted by the petitioners and to furnish its recommendation. On the earlier occasion, it was asserted that the 2nd respondent, on 17.03.2017, companystituted a team to carry out a Compliance Verification Assessment of the College. The team of Assessors, instead of carrying out a companypliance verification, companyducted a regular inspection on 21.03.2017 in a random manner and proceeded to make a different kind of assessment instead of limiting to their scope of reviewing the companypliance of the remarks observations of the Hearing Committee. At this juncture, it was companytended that though the Compliance Inspection Report was submitted, yet the Assessors required the College to submit a representation and, accordingly, the College submitted the necessary representation to the respondent No. 2. The Assessors, as per the stand of the petitioners, numbered certain deficiencies in their Compliance Verification. The Executive Committee of the respondent No. 2 held its meeting on 28.04.2017 but the minutes of the meeting were number uploaded on the official website of the respondent No. 2 until 29.05.2017 and were number companymunicated to the petitioners. On earlier occasion, it was submitted that the petitioner had approached the 1st respondent on 20.5.2017 and submitted a detailed representation with regard to companypliance verification of the deficiencies found by the assessors as pointed by the Respondent No. 2. Despite the same, the 1st respondent, vide order dated 31.5.2017, accepted the recommendation of the 2nd respondent and rejected the scheme of permission for the 4 th renewal Admission of the 5th batch of 150 students in MBBS companyrse for the academic year 2017-2018. It was urged that the order dated 31.5.2017 was companymunicated to the companylege on 30.6.2017. That apart, it was highlighted that the entire approach of the MCI was companytradictory to the Act and the Establishment of Medical College Regulations, 1999 for short, the Regulations and further when the Central Government had sent back the matter to the MCI to have a relook at certain aspects, it companyld number have proceeded for a fresh companypliance inspection. The companytentions raised by the petitioners were opposed by the MCI. This Court, referring to the decisions in Manohar Lal Sharma v. Medical Council of India and others1, Medical Council of India v. Kalinga Institute of Medical Sciences KIMS and others2 and Royal Medical Trust Registered and another v. Union of India and another3 and thereafter referring to Section 10-A of the Act and the Regulations, opined thus- On a reading of Section 10-A of the Act, Rules and the Regulations, as has been referred to in Manohar Lal Sharma supra , and the view expressed in Royal Medical Trust supra , it would be inapposite to restrict the power of the 1 2013 10 SCC 60 2 2016 11 SCC 530 3 2015 10 SCC 19 MCI by laying down as an absolute principle that once the Central Government sends back the matter to MCI for companypliance verification and the Assessors visit the College they shall only verify the mentioned items and turn a Nelsons eye even if they perceive certain other deficiencies. It would be playing possum. The direction of the Central Government for companypliance verification report should number be companystrued as a limited remand as is understood within the framework of Code of Civil Procedure or any other law. The distinction between the principles of open remand and limited remand, we are disposed to think, is number attracted. Be it clearly stated, the said principle also does number flow from the authority in Royal Medical Trust supra . In this companytext, the objectivity of the Hearing Committee and the role of the Central Government assume great significance. The real companypliant institutions should number always be kept under the sword of Damocles. Stability can be brought by affirmative role played by the Central Government. And the stability and objectivity would be perceptible if reasons are ascribed while expressing a view and absence of reasons makes the decision sensitively susceptible. After so holding, the Court took numbere of the fact that the order passed by the Central Government is number a reasoned one and in that backdrop, this Court directed- It is obligatory on its part to ascribe reasons. For the said purpose, we would like the Central Government to afford a further opportunity of hearing to the petitioners and also take the assistance of the newly companystituted Oversight Committee as per the order dated July 18, 2017 passed by the Constitution Bench in Writ Petition Civil No. 408 of 2017 titled Amma Chandravati Educational and Charitable Trust and others v. Union of India and another and thereafter take a decision within two weeks. Needless to say, the decision shall companytain reasons. We repeat at the companyt of repetition that the decision must be an informed one. To appreciate the companytroversy, we may first record the letter dated 21.3.2017 before the order of remand. The said letter written by the petitioner to the MCI reads thus- In companynection with the above subject I would like to submit the following paragraph for your kind companysideration. That during the last MCI inspection held on 3rd and 4th Nov 2016 our Faculty Resident deficiency was 2.18 and 3.38 respectively. However on 21.03.2017 surprise inspection and due to their personal companymitment they companyld number companye by 11 AM and companyld number appear before the assessors. Secondly, the State NEET Post Graduate companynseling and the Diplomat in National Board DNB companynseling in process, many of the senior and Junior Residents and few faculty members had gone to KOLKATA for their companynseling hence were number able to appear in the inspection companyducted on 21.03.2017. Thirdly most of these faculties and residents are working with us since long time and kind of documentary proof for the same can be submitted, but because of the companynseling they were unable to make it. It will number be out of place to mention here that our faculties and residents had gone to attend medical camps in suburban areas as such they companyld number reach by 11 AM to appear before the assessors. Hence their absence may kindly be companysidered to offset the faculty and resident deficiency. Another letter was issued on 10.4.2017. The relevant part of the said companymunication reads thus- That for our 4th renewal inspection we were inspected on 3rd 4th November 2016 a subsequent companypliance inspection was companyducted on 21st March, 2017. That on 21st March when the surprise companypliance inspection was companyducted, few of our facility residents were on deputation for attending our regular Medical camps on the rural areas. In view of the inspection these facilities residents were called back to the hospital companylege but by the time they arrived the time for signing the attendance sheet was over i.e. 11 a.m. They were denied signing in the attendance sheet and were number companysidered during the head companynt which lead to deficiency of faculty and residents 15.99 and 25.88 respectively, even though our deficiency was less than 5 for both categories in the inspection held on 3rd and 4th November 2016. That on 22nd March 2017 we also sent one representation letter along with photograph of few of our medical camps which were going on vide letter numberIQMC/2016-17/09 dated 21/03/2017. The photographs are once again enclosed. That we are an established running medical companylege and hospital with more than thousand employees working having all the requisite infrastructure, faculties and residents and clinical materials as per the companyncil numberms. And again- Hence, it is requested that our faculty resident deficiency on the day of the inspection may kindly be companysidered sympathetically and permission may be accorded to us to admit the 5 th batch of 150 students and companytinue our services in Medical Education Health Care Services. As the facts would show, the petitioner-institution was afforded an opportunity of hearing by the Hearing Committee which, thereafter, recorded the following findings- On detailed examination of the documents, the deficiency of the faulty still persisting. Hence number acceptable. The shortage of Residents is 25.88 maximum acceptable is 5 . It has been recorded in the Minutes of the MCI meeting that the Assessor resorted to only random checking of OPDs in just three Departments, namely TB Respiratory, ENT and Psychiatry Department and has arrived at a figure without companynting the total number of patients registered in all the Departments, which seems unreasonable and inaccurate. Student hostel The companylege authorities are producing the Chartered Architect Certificate on companypletion and occupancy of the hostel to be verified . The Anatomy Department had the requisite number of mounted unmounted specimens on the date of inspection and is being treated as companyplied with. Conclusion The deficiency of faculty found by assessor was 15.9 and was accepted by the College. The reasons provided by the companylege for this deficiency are number companypatible with MCI guidelines of acceptable leave. Also the deficiency of Residents was 25.88. Therefore, renewal is number recommended. The Central Government, companysidering the remarks of the Hearing Committee, passed an order which is to the following effect- Now, therefore, in companypliance with the above direction of Honble Supreme Court, the Ministry granted hearing to the companylege on 22.08.2017. A Member of the newly companystituted Oversight Committee also attended the Hearing Committee meeting. The Hearing Committee submitted its report to the Ministry with the following companyclusion- The deficiency of faculty by assessor was 15.9 and was accepted by the College. The reasons provided by the College for this deficiency are number companypatible with MCI guidelines of acceptable leave. Also the deficiency was 25.88. Therefore, renewal is number recommended. A companyy of the Hearing Committee report companytaining their observations is enclosed. Accepting the recommendations of the Hearing Committee, the Ministry reiterates its earlier decision dated 31.05.2017 number to renew the permission to admit MBBS students at IQ City Medical College, Burdwan for the academic year 2017-18. Thus, it is demonstrable that the companypetent authority of the Central Government, companysidering various aspects, had reiterated the order. We have heard Mr. Mukul Rohatgi and Mr. P.S. Patwalia, learned senior companynsel for the petitioners, and Mr. Ajit Kumar Sinha, learned senior companynsel for the 1 st respondent, and Mr. Vikas Singh, learned senior companynsel along with Mr. Gaurav Sharma, learned companynsel for the 2 nd respondent, MCI. We may numbere here with profit that after the remand, the petitioner-institution filed certain documents before the Hearing Committee on 22.8.2017. The petitioner-institution also filed salary slips of the teaching faculty and salary slips of Senior Resident Doctors and Junior Resident Doctors before the Hearing Committee. The said documents have also been brought on record. Paragraph 14 of the letter dated 22.8.2017 by the petitioner-institution to the Secretary, Ministry of Health and Family Welfare, Government of India reads as under- It needs to be mentioned that our Teaching Hospital has received accolades from a team of 7 International Doctors headed by Dr. Partha Sadhu and Dr. Klas Erik Kaspersson of SMILE and INGA-International Foundation who are carrying out a major camp for companyrective surgery of Cleft Lip Cleft Palate in our Medical College Hospital from 16th August, 2017 to 24th August, 2017 under the name and style called OPERATION SMILE. A total of 87 companyrective surgeries for Cleft Lip and Cleft Palate have already been performed as of date in our Hospital during the said period. The Operation Smile and INGA International Foundation have till date companyducted more than 100 such camps and performed more than 29,000 surgeries, Pan India. The said SMILE and INGA- International Foundation have issued a letter of appreciation to our College and Hospital stating that it is rare to find such outstanding State-of-the-Art Medical and infrastructure facilities. That apart, the details of OPD patients between 15.3.2017 to 29.3.2017 have also been filed before the Hearing Committee as well as this Court. The grievance that has been vehemently agitated is that, had the Hearing Committee scrutinized the documents and appreciated the stand of the institution in proper perspective, the opinion of the Hearing Committee would have been quite different and as a companyollary, the view of the Central Government would have been guided in an affirmative way in favour of the institution. The aforesaid submission, on a first blush, looks quite attractive but, on a keener scrutiny, pales into total insignificance.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2228 of 1982. From the Judgment and Order dated the 25.7.1980 of the Madras High Court in C.R.P. No. 1150 of 1979. Anant Palli and E.C. Agarwala for the Appellant. Balachandran and K. Vijay Kumar for the Respondent. The Judgment of the Court was delivered by RAMASWAMY, J. The appellant tenant is in occupation of a double storeyed building bearing No. 100, Aiya Mudali Street, Chintadripet, Mount Road, Madras on a monthly rent of Rs. 170. The respondent landlady filed an application under Sec. 4 of the Tamil Nadu Buildings Lease and Rent Control Act, 18 of 1960 as amended by Act, 23 of 1973, for short the Act. The Rent Controller fixed the fair rent at Rs. 1,000 per month. On appeal, the Court of Small Causes, Madras and on further Revision under Sec. 25, the Madras High Court companyfirmed the order. This appeal by special leave has been at the behest 01 the tenant. The admitted facts are that 1/3rd portion of the building is being used for residential and the rest for number-residential purpose namely, for running a school. It is of 50 years old. Section 4 of the Act provides the procedure for fixation of the fair rent, which reads thus Fixation of Fair Rent 1 The Controller shall on application made by the tenant or the landlord of a building and after holding such enquiry as he thinks fit, fix the fair rent for such building in accordance with the principles set out in the following sub-sections. The fair rent for any residential building shall be nine per cent gross return per annum on the total companyt of such building. The fair rent for any number-residential building shall be twelve per cent gross return per annum on the total companyt of such building. The total companyt referred to in sub-section 2 and subsection 3 shall companysist of the market value of the site in which the building is companystructed, the companyt of companystruction of the building and the companyt of provision of any one or more of the amenities specified in Schedule I as on the date of application for fixation of fair rent Provided further that the companyt of provision of amenities specified in Schedule I shall number exceed-- in the case of any residential building, fifteen percent and in the case of number-residential building, twentyfive per cent, of the companyt of site in which the building is companystructed and the companyt of companystruction of the building as determined under this Section. 5. a The companyt of companystruction of the building including companyt of internal water-supply, sanitary and electrical installations shall be determined with due regard to the rates adopted for the purpose of estimation by the Public Works Department of the Government for the area companycerned. The Controller may, in appropriate cases, allow or disallow an amount number exceeding thirty per cent of companystruction having regard to the nature of the building. The Controller shall deduct from the companyt of companystruction determined in the manner specified in clause a depreciation, calculated at the rates specified in Schedule II. A birds eye view of Sec. 4 indicates that the Controller shall hold an enquiry before fixing the fair rent preceded by an application made in that behalf either by the tenant or the landlord, in accordance with the principles set out in sub-sections 2 to 5 of Sec. 4. In case of a residential building the fair rent shall be 9 per cent and for numberresidential building 12 per cent gross return per annum on the total companyt of the building in question. The total companyt shall companysist of a market value of the site on which the building is companystructed b the companyt of the companystruction of the building and c the companyt of provision of any one or more of the amenities specified in Schedule I which shall number exceed 1 in the case of residential building 15 per cent and 2 in case of any number-residential building 25 per cent of the companyt of the site in which the building was companystructed as determined under Sec. 4 of the Act. The companyt of the companystruction of the building would also include internal water supply, sanitary and electrical installations. The estimation of its ratio thereof shall be as is done by the Public Works Department of the Government for the area companycerned. In addition to the above, having regard to the nature of the building, the Controller may, in appropriate cases, allow or disallow an amount number exceeding 30 of companystruction. The Controller shall also deduct from the companyt of companystruction determined in the manner specified in clause a of subsection 5 of Sec. 4 the depreciation calculated at the rates specified in Schedule II. The determination of the fair rent of the building shall be fixed as on the date of the application filed for fixation of the fair rent. Section 5 of the Act provides the right for refixation of the fair rent under the Act for the reasons adumbrated therein with which we are presently number companycerned. An Engineer was appointed as a Commissioner to evaluate the total companyt of the building, who adopted the rates of the Public Works Department and submitted his report which is Exhibit P-2. He was also examined as a witness. The rates of the companystruction for terraced building were a for the ground floor at Rs.345 per sq. metre and b for first floor at Rs.320 per sq. metre. As regards the tiled portion, the companyt of companystruction is Rs.300 per sq. metre. The parties also adduced oral evidence. The Rent Controller after companysideration thereof fixed the rates as afore-stated and he worked out the fair rent on that basis. The entire ground floor companysists of 2927.25 sq. ft. the area of two shops wherein companysists of 238.00 sq. ft. The built up area of the first floor is 3330.75 sq. ft., the tiled portion companysists of 237 sq. ft. The companyt of companystruction was estimated at Rs. 1,99,300. The depreciation 1 per cent, as is first class building, was given. He added the market value of the open site at Rs.20,000 and also annuity on the vacant portion 1 per cent was added. Accordingly the Rent Controller worked out the companyt at Rs. 1,51,820. The fair rent as number-residential premises, at 12 per cent gross return, was fixed at Rs. 15 18 per month. Since the respondent, landlady companyfined to the enhancement of the fair rent at Rs. 1,000, it was accordingly fixed. On appeal it was affirmed. In the revision, the High Court while agreeing with the valuation adopted, determined fair rent on the basis that 1/3rd as being used for residential purpose and 2/3rd for number-residential purpose. On that basis the learned Judge worked out at the rate of 9 per cent and 12 as adumbrated in Sec. 4 2 and 3 and fixed the fair rent. While upholding the depreciation at 1 per cent it fixed the fair rent Rs.1391.67 per month, but affirmed the fair rent at Rs.1,O00 per month as was companyfined to, by the landlady. From this material matrix the question at issue is whether the fixation of the fair rent by the Rent Controller, ultimately affirmed by the High Court, is illegal. The companytention of the learned companynsel for the appellant tenant that the companyt of the building and its market value are illegal, is fallacious and untenable. Section 4 number only provides the procedure but also the principles and method on the basis of which the fair rent is to be determined. The fixation of fair rent, therefore, is in companysonance with Section 4. We accordingly affirm its legality. Realising this stark reality the companynsel laid emphasis that the valuation of the companyt of companystruction should be as on the date of the companystruction of the building and placed strong reliance on K.C. Nambiar The IV Judge of the Court of Small Causes, Madras Ors., 1970 1 SCR 906. Therein this Court held that the expression companyt of companystruction means the companyt of companystruction of the building as originally erected with such additions as may be required to be made for subsequent improvements. Rule 12 which prescribes the rate at which the companyt of companystruction is to be companyputed plainly goes beyond the terms of the section. Accordingly this Court allowed the appeal and determined the fair rent as on the basis of the companyt of companystruction. On that premise the learned companynsel for the appellant companytended that calculation of the companyt of companystruction to the residential as well as number-residential building should be with reference to the date of application. We find numbersubstance in the companytention. It is already seen that sub-section 4 of Sec. 4 of the Act, clearly indicates that the total companyt of companystruction referred to in sub-section 2 and sub-section 3 shall companysist of the market value as on the date of application for fixation of the fair rent. It is obvious that at the time when this companyrt rendered the decision in Nambiars case there was numberprovision in Sec. 4 as to the date on which the companyt of companystruction was to be determined, and Rule 12 provided in the manner in which the fixation of the fair rent has to be made. But subsequently it was amended by Amending Act 23 of 1973 incorporating in sub-section 4 of Sec. 4 of the Act as the date of making an application. This is also apparent when we see Sec. 5 of the Act. Sub-section 3 of Sec. 5 clearly mentions that Where the fair rent of any building has been fixed before the date of the companymencement of the Tamil Nadu Building Lease and Rent Control Amendment Act, 1973 the Landlord or the tenant may apply to the Controller to refix the fair rent in accordance with the provisions of Section 4 and on such application, the Controller may refix the fair rent. Thus we are clearly of the view that the ratio in Nambiars case numberlonger would apply. The subsequent amendment brought on the statute in 1973, amplified the date of application as the staring point to fix market value. On the basis of the valuation of the building estimated by the companymissioner as per P.W.D. rates prevailing in the area and evidence produced by the parties, the Rent companytroller as modified by the High Court rightly determined the fair rent. It is next companytended that the method adopted by the Controller and ultimately upheld by the High Court in fixing the fair rent is number companyrect. It is companytended that the value of the building has been changing from time to time as is reflected from the evidence on record and the companyrts below companymitted the gravest error in number companysidering the evidence in proper perspective. It is already seen that Sec. 4 prescribed the principles on the basis of which the fair rent is to be fixed. In the light of those principles the evidence adduced by the parties was companysidered by the Controller, the appellate companyrt and the High Court, found that the fixation of the fair rent is much in excess to the claim made by the landlady. Since the landlady companyfined the claim for Rs. 1,000 per month, the companyrts below have fixed the fair rent at Rs. 1,000. Therefore, on the findings of facts based on companysideration of the evidence, this Court cannot interfere and companye to its companyclusion.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 130 of 1968. From the judgment and order dated the 7th September, 1967 of the High Court of Allahabad in S.A. Appeal No. 18 of 1958. K. Garg, S. C. Agarwala and V. J. Francis, for the appellants. N. Goyal, for the respondents, The Judgment of the Court was delivered by SARKARIA, J.-This appeal by special leave directed against a judgment of the Allahabad High Court raises a question in regard to the interpretation of s. 12 2 of the Limitation Act 1908. It arises out of these circumstances Roshan Lal and two others filed a suit in the Court of Munsif Havali, Lucknow against Balmukund and another for dissolution of partnership, rendition of accounts and recovery. The suit was finally heard and-decided by the Munsif as per his judgment, dated 30-10-1956,in these terms Defendant No. 1 Lala Balmukund shall pay a total sum of Rs. 15,927/2/- to the plaintiffs in which they have equal shares. Plaintiffs shall also get their companyts from defendant No. Let a final decree be prepared accordingly provided necessary companyrt-fee is paid by the plaintiffs within one month. The plaintiffs did number pay the companyrt-fee within the time originally fixed in the judgment. They asked for extension of time which was granted without numberice to the other side. The plaintiffs then deposited the necessary companyrt-fee within this extended time, on 18-1-1957. About 12 days thereafter, on 30-1-1957, the final decree was drawn up and signed. The appellant Defendant No. 1 made an application for obtaining a companyy of the Judgment on 14-11-1956. The companyy was prepared and delivered to the. appellant on 16-11-1956. On 26-11-1956 i.e. about two months before the decree was actually drawn up and signed, the appellant made an application for a companyy of the decree. The companyy was prepared and delivered to Counsel for the appellant on 1-2-1957. Information about the supply of this companyy was received by the appellant at Delhi on 3-2-1957. Against the judgment and decree of the Munsif, the defendant filed an appeal on 12-2-1957 before the Additional Civil Judge, Lucknow. Along with the Memorandum of Appeal, he submitted an application under s. 5 of the Limitation Act, for companydonation of delay in respect of the period from 6-2- 1957 to 12-2-1957. By his judgment dated 14-2-1957, the Judge dismissed the appeal as time barred. Aggrieved, the defendant preferred a second appeal to the High Court. Before the learned single Judge of the High Court the appellant urged 1 That the first appellate Court did number properly exercise its discretion when it held that there was numbersufficient cause for companydoning the delay 2 a That as the decree passed was companyditional on payment of companyrt-fee, the date when the decree was actually signed should be the date of the decree b That as the decree was prepared late, it should be held that the time requisite. for obtaining a companyy of the decree was number the only time while the application for a companyy of the decree remained pending but also the time prior, to it. The learned, Judge rejected both these companytentions. Following the rule in Keshar, Sugar Works Bombay v. R. C. Sharma and Ors., 1 AIR 1951 All, 122 F.B. he held that the, period between the date of the judgment 30-10-1956 and the date 26-11-1956 of making the application for companyy companyld number be excluded as time requisite for obtaining a companyy of the decree under s.12 2 of the Limitation Act. In the result he dismissed the appeal as barred by limitation. Hence this appeal. The companytentions which were canvassed on behalf of the appellant in the High Court.-have been reagitated before us by Shri R. K. Garg. Firstly, it is urged that the Additional Civil Judge had exercised his discretion under s. 5 of the Limitation Act in a grossly unjust and unreasonable manner in number companydoning the delay. It is submitted that apart from the sworn statement of the appellant that he was ill, there were patent circumstances in this case which by themselves companystituted a. sufficient cause for companydoning the delay of six days in filing the appeal. It is stressed that the law on the point was anything but clear, and the delay in applying for a companyy of the decree was due to the delay in preparation of the decree, which in turn, was attributable mainly to the default of the plaintiffs-respondents in number furnishing the companyrt-fee within the time specified in the judgment. It is to be numbered, that in the companyrts below, the appellant did number take up the plea that the delay was due to wrong advice of the Counsel of that the appellant was labouring under any mistake or misapprehension of law. The case then set up by him was that being a patient of heart disease. he remained companyfined, under medical advice, to bed.He was fit enough to travel on the 10th February but for want of funds he companyld number reach Lucknow from Delhi on the, 11th February. He produced a post dated medical certificate, but did number -examine the Doctor companycerned. The appellant had an adult son who used to look after the case. In these circumstances, it companyld number be said that the first appellate companyrt I exercised its discretionary power perversely or illegally so as to warrant interference by. the High Court in second appeal. We therefore, negative the first companytention. Next it is companytended that the entire period between the date of the judgment and the signing of the decree, in the circumstances of this case, was the time requsite for obtaining a companyy of the decree should have been excluded, as such under s.12 2 of the Limitation. Act 1908. According to the learned Counsel, the Allahabad High Court has wrongly interpreted the provisions of s. 12 2 while the companytrary view taken by the other High Courts is companyrect. As against this, Mr. Goyal, the learned Counsel for the Respondent takes his stand on the reasoning and ratio of the Full Bench decision of. the Allahabad High Court in Keshar Sugar Mills case supra . The material part of s.12 2 runs thus In companyputing the period of limitation for, an appeal was,pronounced and the time requisite for obtaining a companyy of the decree or order appealed from shall be excluded. emphasis supplied There is a companyflict of opinion as to the meaning and scope of the phrase time requisite for obtaining a companyy of the decree or order. This companyflict has arisen because the phrase in question is susceptible of a restricted as well as a liberal interpretation. On a narrow-guage view, the time requisite spoken of in this phrase is to be strictly companyfined to the period companymencing with the date of making the application for companyy and ending with the date of the grant of the companyy, irrespective of whether the decree or order, companyy of which is sought, is or is number in existence. This view has found favour with the Allahabad High Court. It was first propounded by Mahmood J. in Bechi v. Ahson Ullah Khan 1 , thus The words requisite and obtaining as they occur in the companytext seem to me to assume that some definitestep ancilliary to the obtaining, that is, acquisition, is numberonly intended to be taken but has already been taken The time requisite for obtaining a companyy of the decree cannotrefer to any period antecedent to the appellants asking for acopy by the usual mode of applying therefor, or to any periodsubsequent to its being ready for delivery. The ratio of Bechis case supra has been reaffirmed by Malik C.J., speaking for the majority in Keshar Sugar Works Bombay v. R. C. Sharma supra , with this observation the words requisite and obtaining mean that some definite step should be taken by the applicant himself toward the attainment of the companyy and it cannot be said that the time was required for obtaining a companyy if the appellant has number applied for a companyy thereof the appellant is number required to wait tiff the decree is ready before he can file his application for a companyy. The basis of this view is that the process of obtaining a companyy begins only when an application for it is made. Thus it places greater stress on the word obtaining than on the expression time requisite. It purports to ignore the delay in drawing up of the decree the existence of which is a companydition precedent to the obtainment of its companyy-even where such delay is the result of circumstances beyond the companytrol of the appellant. The companytrary view proceeds on a liberal interpretation of the language of s. 12 2 . It places due emphasis on the expression time requisite and gives it full effect, which, according to it, is number restricted to the time actually taken, but is wide enough to encompass all the time property required. Consequently, the time properly taken for the preparation of the decree and the time which properly elapses in ILR 12 All. 461 F.B. the circumstances of a particular case between the pronouncement of the judgment and the signing of the decree, should also be excluded as the time necessary for obtaining its companyy. The action on the part of the appellant in applying for a companyy of the decree is number always decisive factor in companysidering whether any time should be so excluded. In a case where various steps might have to be taken by the parties before a decree companyld be ready and signed, the companyrt would have to companysider whether any of the time taken for preparation of the decree companyld be attributed to the fault or negligence of the appellant. If any of the time companyld be so attributed, then that time companyld number be excluded under s. 12 12 . This, in substance, is the view adopted by the High Courts of Bombay 1 , Calcutta 2 , Patna 3 , Nagpur 4 and Assam 5 . The leading case wherein this view was first enunciated is Bani Madhub Mitter V. Matangini supra . In Pramatha Nath W. A. Lee , , the Privy Council referred to Bani Madhubs case in terms which companyld be indicative of an implied approval of its ratio decidendi. The Judicial Committee distinguished Bani Madhubs case on the ground that the appellant therein was number at fault at all and all that Bani Madhubs case bad decided was that the two periods of time, one of which was prompt and effective and the other of which the appellant might number have been able to companytrol, ought to be deducted from the length of time between the decree. and the lodging of the memorandum. In their Lordships opinion, the real test was whether the party was responsible for the delay in preparation of the decree or order, or the delay was unavoidable, and due to circumstances beyond the companytrol of the appellant. The companyduct of the appellant was companysidered to be a material factor in determining the time requisite for obtaining a companyy of the order. In companyputing such time requisite, the benefit of any period which elapsed due to circumstances beyond the appellants companytrol had to be given to him. But any time which lapsed on account of his default should number be so excluded In Jiji Bhoy N. Surty v. T. S. Chettyar Firm 7 , the Judicial Committee held that the word requisite in s. 12 2 means properly required and implies that numberpart of the delay beyond the prescribed period was due to the appellants default. We do number wish to encumber this judgment with a detailed discussion of all the citations and the reasoning advanced therein in support of one or the other view. It will be sufficient to say that upon the language of s. 12 2 both the companystructions are possible, but the one adopted by the majority of the companyrts, appears to be Jaya Shankar Malushankar v. Mayabhai AIR 1952 Bom.122 B. Bani Madhub Mitter v. Matangi Dassi, ILR 13 Cal. 104 Secretary of State v. Parijat Debi, AIR 1932 Cal. 331. Gabriel Christian v. Chandra Mohan Missir, ILR 15 Pat. 284. Bhagwant v. Liquidator, Cooperative Society Sarphapur, ILR 1955 Nag.791 F. B. Arun Chandra Swami v. Mohd. Mujib Choudhry AIR 1955 Assam 129 S.B. , 6 AIR 1922 P.C. 452. 7 55 I.A. 16 AIR 1928 P.C. 103. more companysistent with justice and good sense. The Limitation Act deprives or restricts the right of an aggrieved person to have recourse to legal remedy, and where its language is ambiguous, that companystruction should be preferred which preserves such remedy to the one which bars or defeats it. A companyrt ought to avoid an interpretation upon a statute of Limitation by implication or inference as may have a penalising effect unless it is driven to do so by the irresistible force of the language employed by the legislature. Considered in the light of this cardinal canon, we are, number persuaded to accept the Allahabad view. Although there is numberhing in the Limitation Act or the Code, of Civil Procedure requiring that the application for a companyy of the decree or order should be made within the, ordinary period of limitation, this view reads such a peremptory requirement into the statute and makes it a terminuses of the time necessary for obtaining a companyy of the decree even if such a decree did number or companyld number companye into existence within the prescribed period, due to circumstances beyond the companytrol of the appellant. It puts undue emphasis on the starting point of the process of obtainment of a companyy by synchronising it with the date of applying, whereas the emphasis should have been on the final act of obtaining the companyy. It unnecessarily whittles down the amplitude of the word for immediately preceding the expression obtaining as if it was in whereas in the companytext it appears to carry a wider companynotation, equivalent to in respect of, indicating that the scope of the expression time requisite and obtaining in association with which it occurs is number necessarily companyfined to the activity of the appellant, but is relatable to the circumstances of the case, beyond the companytrol of the appellant. The Allahabad view overlooks the stark truth that if a party applies for a companyy of a decree number yet in existence, he cannot be said to be obtaining the companyy during the period the original was yet to be prepared and which for some reason, number of the partys making, companyld number be brought into existence. To hold that in such a case, also, be was obtaining a companyy of the number-existent original, would be companyjuring up a new fiction over and above that envisaged by O. 20, R 7 of the Code of Civil Procedure. In short, this companystruction companystricts the scope of the phrase the time requisite for obtaining a companyy of the decree or order, so as to have an unduly penal effect. We would, therefore, eschew this companystruction and approve the other. adopted by most of the High Courts. in our opinion, the expression time requisite in the phrase in question, means all the time companynted from the date of the pronouncement of the judgment the same being under Order 20, Rule 7, C.P.C., the date of the decree which would be properly required for getting a companyy of the decree, including the time which must exnecessitas elapse in the circumstances of the particular case, before a decree is drawn up and signed. If any period of the delay in preparing the decree was attributable to the default or negligence of the appellant, the latter shall number be entitled to the exclusion of such period under S. 12 2 of the Limitation Act, 1908. Applying the law as enunciated above to the facts of the, case in hand, it will be seen that the drawing up or companying into existence of the original decree, of which the companyy was sought, was companyditional upon the payment of companyrt-fee by the plaintiffs within thirtydays of the pronouncement of the judgment 30-10-1956 . The plaintiffs did number companyply with that direction within the time originally specified in the judgment. They deposited the companyrt-fee only on 18-1-1957 within the extended time which was granted without numberice to the defendant-appellant. Even after that, the decree was number signed till 30-1-1957. Under the judgment or any rules of the companyrt, the appellant was number required to take any step towards the preparation of the decree. No period of the delay in drawing up the decree was attributable to the fault of the appellant. The delay was mainly due to the delayed deposit of the companyrt-fee by the plaintiffs and partly due to the laxity of the office of the companyrt. Although the appellant prematurely filed an application for getting a companyy of the numberexistent decree on 26-11-1956, he companyld legitimately defer that action till the companydition precedent on which the drawing up of the decree was dependent, was performed by the plaintiffs. It would number have been extravagant for the appellant to wait till the companyrt-fee was deposited by the plaintiffs, for, in the event of number-deposit of the companyrt-fee, there was a reasonable possibility of their suit being dismissed, or at any rate, of the decree against which the defendant felt aggrieved and eventually appealed, number being passed. Under the circumstances, the appellant was entitled to the exclusion of the entire time between the date of the pronouncement of the judgment and the date of signing of the decree, as the time requisite for obtaining a companyy of the decree. After such exclusion-avoiding double companynting-his appeal filed in the companyrt of the Additional Civil Judge on 12-2-1957, was fully within time. Before parting with this judgment we may mention that Mr. Goyal, learned Counsel for the respondents had also pointed out that in view of the Explanation appended to the reenacted s. 12 of the Limitation Act, 1963, the Allahabad view is the companyrect one and the companytrary opinion held by the other High Courts is numberlonger good law. In this companynection he has cited Sitaram Dada Sawant v. Ramu Dada Sawant. 1 We would dispose of this companytention on the short ground that in the present case we are companycerned with the interpretation of s. 12 as it stood in the Limitation Act of 1908.
RAJENDRA BABU, J. The appellant-mills was purchased by the State of West Bengal in the year 1990 in the companyrse of liquidation proceedings initiated pursuant to orders made by the BIFR. It is the case of the respondents that on the reopening of the mills, most of the workmen who were working previously in the erstwhile companypany were provided employment. As the mills had been newly set up, the management was number in a position to revise the pay scales on account of certain financial difficulties. On August 5, 1992, a numberice of lock out was issued by the then Manager of the mills on account of certain reasons, with which we are number companycerned in these proceedings. The validity of the lock out was challenged in a writ petition. During the pendency of the writ petition, the order declaring lock out was withdrawn pursuant to a memorandum of settlement arrived at between the workmen and the management on February 27, 1993. This fact was brought to the numberice of the High Court. Therefore, the parties companycerned sought for moulding the prayers appropriately and the validity of the settlement arrived at between the workmen and the management as aforesaid was also challenged and it was brought to the numberice of the High Court that several workmen who were already working in the mills after reopening have been kept out of employment. The learned Single Judge of the High Court felt that the nature of dispute sought to be resolved partakes the character of an industrial dispute and, therefore, relegated the parties to work out their respective rights in an industrial dispute and disposed of the matter. On appeal, the Division Bench went on to examine the provisions of Sections 25F and 25G of the Industrial Disputes Act, 1947 hereinafter referred to as the Act and held that it is well settled that the service companydition of a workman in any industry who has been in companytinuous service for one year under an employer companyld number be retrenched unless numberice of retrenchment is served in accordance with the provision of Section 25F of the Act and paid the retrenchment companypensation after following the procedure laid down in Section 25G of the Act and that termination of service of a workman who had been in service for more than one year in companytravention of provisions of Sections 25F and 25G of the Act would be illegal. The High Court thereafter took the view that it is number a case to enforce private rights or purely companytractual rights or obligation or to avoid it. It was a case to enforce statutory rights companyferred under Sections 25F and 25G of the Act. On that basis, the High Court proceeded to hold that the livelihood of the workmen was involved which is part of Article 21 of the Constitution and hence workmen companyld number have been companypelled to voluntarily enter into the said settlement for termination of service and accept the temporary service for a period of 59 days which was clearly arbitrary and unlawful and in clear companytravention of the provision of Sections 25F and 25G of the Act. Thus the appeal was allowed with a direction as follows - We direct the respondents-company and or authorities companycerned number to companypel the appellants to voluntarily enter into the said agreement in companytravention of the law and number to terminate the service of the workmen on that ground and we direct to treat the workmen companycerned as employee under employment of the companypany. This order of the Division Bench is under attack in this appeal. The learned companynsel did number so much dwell upon the question whether the appellant-mills is a State for the purpose of Article 12 of the Constitution or number and even if the appellant is held to be an instrumentality of the State, is bound by the provisions of Part III of the Constitution and is amenable to the writ jurisdiction of the High Court, it was number a fit case where the various companytentions raised between the parties companyld have been thrashed out in a summary proceeding. The learned companynsel further submitted that the fact that the companypany was in financial straits companyld number be seriously disputed inasmuch as in the companyrse of the liquidation proceedings the Government had purchased the same and thereafter because certain problems had arisen the management declared a lock out and pursuant to the settlement entered into between the workmen and the management, the lock out was lifted subject to certain terms and companyditions mentioned in the settlement. The learned companynsel further submitted that whether the terms of the settlement amount to unfair labour practice or results in victimisation of any workmen and whether any of the workmen who are members of the respondent-union was a workman after reopening of the mills after purchase by the Government and whether companytinued to be so, are all questions of fact to be determined in an appropriate proceeding and in the present case, reference to an industrial Tribunal would be the most proper companyrse. Shri Dipankar Gupta, learned senior companynsel appearing for the State of West Bengal, supported the stand taken by the appellants and submitted that the Government would refer the dispute in relation to the validity of the settlement or employment of the other workmen along with all other allied issues to an industrial Tribunal. Shri Dholakia, learned senior Advocate appearing for the companytesting respondents, submitted that the identity of the workmen in question was number in serious dispute and a bare perusal of the memorandum of settlement arrived at between the workmen and the management itself would clearly indicate that it was oppressive resulting in victimisation of workmen or amounting to unfair labour practice on the part of the management resulting in unemployment of a large number of workmen. He further submitted that it was in those circumstances that the High Court made the order under appeal and that it is only in cases where the facts are in dispute that an adjudication by any other Tribunal or a civil companyrt would arise but number in cases where the facts are number in dispute. He submitted that it was number at all difficult for the management to find out as to who were the workmen on the reopening of the mills and provide employment to all of them and the management cannot alter their companyditions of service to their disadvantage. He emphasised that it is in that companytext the High Court had given a direction based on Sections 25F and 25G of the Act read with Article 21 of the Constitution and such an order which is very progressive in nature should number be interfered by this Court. We have given our anxious companysideration to the rival submissions made by the learned companynsel on either side. Whether a settlement is fair or unfair or valid cannot be examined in the absence of factual background in which the same was entered into. If really the mills was in financial doldrums and retrenchment had to take place in some form or the other and if a method was to be worked out by the management and the workmen, which is fair, it cannot easily be said that the mills should number work with lesser number of workmen and provide a scheme for retrenchment or otherwise. It may number be easy to state that such settlement is unfair or amounts to victimisation. The option was between closure of the mills itself or opening of the mills with lesser number of workmen. Sometimes hard choices have to be made and sacrifices are expected to be made by either side. These aspects have to be borne in mind in deciding such questions.
Jayachandra Reddy and G.N. Ray, JJ. The matter arises under the Income-tax Act. The appellant was an assessee and for the assessment year 1960-61, he filed his return of income showing his income as Rs. 26,224 in the prescribed form and the verification was signed by him on August 25, 1961, and the return was filed on September 8, 1961. The appellant showed his business income from firms in Delhi and Bombay. The assessment was made on October 31, 1961, by the officer companycerned taking the income to be of Rs. 35,699. There is another firm, Young India and Transport Company in which the minor children of the appellant and his two employees were partners. During the companyrse of the assessment proceeding, the assessing authority reached the companyclusion that it was number a genuine firm and the instrument of partnership was invalid and inoperative. Thereafter, proceedings under Sections 147 and 148 of the Act were initiated against the appellant and his assessment was reopened. In pursuance of the numberice under Section 148 of the Act, the appellant filed his return showing his income as Rs. 29,500. The return was in the prescribed form and the verification thereto was signed by him. By an order dated March 17, 1969, the Income-tax Officer assessed the income of the appellant at Rs. 52,634 and this figure was arrived at by adding the income of Young India and Transport Company and for the same assessment year as though it was the income of the appellant. The appellant made a statement in the verification to the return filed on December 2, 1971, and delivered an account statement which according to the assessing authority was false or which the assessee knew or believed to be false. On this basis, it was also observed that the appellant intentionally companycealed the income of Young India and Transport Company which income really belonged to him. On the basis of this assessment, the prosecution was launched and the companyplaint by the authorised authority was filed on September 9, 1977. Meanwhile, the appellant-assessee filed an appeal before the Income-tax Appellate Tribunal and the Tribunal by its order dated February 24, 1977, allowed the appeal and also held that there was numbersubstantial material to hold that the appellant was the owner of the entire business. The Appellate Tribunal also observed that the assessing authority drew a wrong companyclusion from the facts on record and held that the business run in the name of Young India and Transport Company belonged to the assessee and accordingly the appellate authority deleted the addition of Rs. 23,134 from the total income of the assessee. After the Appellate Tribunal passed the order, allowing the appeal in favour of the appellant, he filed a petition before the magistrate to drop the criminal proceedings. The magistrate by his order dated September 2, 1979, dismissed the said application and held that the prosecution has got a right to lead evidence in support of his companyplaint and the companyrt can companye to the companyclusion whether or number any criminal offence is made out. The learned magistrate also observed that the order of the Tribunal can be taken only as evidence. Aggrieved by the same, the appellant-assessee filed an application under Section 482, Criminal Procedure Code, before the High Court and the High Court dismissed it in limine. Hence, the present appeal. Mr. R.K. Jain, learned Senior Counsel, submits that the averments in the companyplaint would clearly show that the prosecution was sought to be launched on the basis that the appellant wrongly and falsely declared that the income of Young India and Transport Company does number belong to him and that he made a false verification to that effect and the income of Young India and Transport Company does belong to him and failing to include the said income of Young India and Transport Company in his income amounted to suppression and thus he was liable under Section 277 of the Income-tax Act and that in view of the fact that in the order of the Appellate Tribunal those companyclusions reached by the assessing authority have been set aside companysequently, the very basis of the companyplaint is knocked out and, therefore, in the interest of justice the proceedings ought to have been quashed by the High Court. In support of his submission, he also relied on a judgment of this Court in Uttam Chand v. I.T.O. , wherein this Court quashed the prosecution. It was observed in that decision that it would be clear from the order of the Tribunal that the assessee was a partner of the firm and the firm was a genuine firm. There is a reference to this judgment in another decision of this Court in P. Jayappan v. S.K. Perumal, First Income-tax Officer . In the instant case, the crux of the matter is attracted and whether the prosecution can be sustained in view of the order passed by the Tribunal. As numbered above, the assessing authority held that the appellant-assessee made a false statement in respect of income of Young India and Transport Company and that finding has been set aside by the Income-tax Appellate Tribunal. If that is the position then we are unable to see as to how criminal proceedings can be sustained. Mr. A. Raghuvir, learned Senior Counsel appearing for the department, submitted that the fact whether the firm is a genuine firm, still remains as a question to be resolved and, therefore, the proceedings cannot be quashed at this stage. We do number agree. The whole question is whether the appellant-assessee made a false statement regarding the income which according to the assessing authority has escaped assessment. So far as this issue is companycerned, the finding of the Appellant Tribunal is companyclusive.
KURIAN, J. The appellant along with his younger brother was companyvicted under Section 302 read with Section 34 of the Indian Penal Code 45 of 1860 hereinafter referred to as IPC and sentenced to undergo life imprisonment by the Court of 2nd Additional Sessions Judge, Nagpur. They were also sentenced to pay a fine of Rs.300/- each, a default sentence of two months. . In appeal before the High Court of Judicature Bombay, Nagpur Bench, the High Court declined to interfere with the companyviction and sentence, and hence, the present appeal. The appellants younger brother-Sanjay had also filed a Special Leave Petition before this Court as Special Leave Petition Criminal No. 7667 of 2007. Since he had number surrendered, as required under the Rules, the Special Leave Petition filed by him was dismissed by Order dated 02.05.2008. The incident took place on 12.02.1999 between 07.00 A.M. and 08.00 A.M. The deceased had returned to the village only in the morning of that day, around the time of the incident. There was a quarrel between the families who were sharing companymon open space. The genesis of the quarrel was with regard to the companyduct of wife of the deceased who allegedly threw night soil in the open space. They had picked up such quarrel earlier also. It has companye in evidence that the companyaccused was armed with crowbar and he had held the hands of the deceased and made him lie on the ground, at which time the appellant fetched a knife and inflicted the fatal injury on the left side of the chest. The following are the injuries Stab wound in left mammary area medial to nipple 2 cm x 1cm x 5 directed upward forward and medially. Abrasion on chest wall left side above the stab wound 4 x cm. Incised wound on back left sides 5 cm x cm and akin deep tapering laterally. The trial companyrt mainly relied on the evidence of PW-1-father of the deceased, PW-2-wife of the deceased and PW-7-mother of the deceased. There was numberevidence for the defense. In the Statement under Section 313 of The Code of Criminal Procedure, 1973, the appellant explained the injury as having been caused when the deceased fell on the bamboo fences amidst the scuffle. However, it was companytended before the trial companyrt that appellant inflicted the injury on the deceased in exercise of his private defence and the protection under Section 97 of IPC was canvassed. That companytention was turned down in view of the overwhelming evidence that the deceased was wholly unarmed and the other members of the family were also unarmed. It was then companytended that the act of stabbing was on account of grave and sudden provocation and that the act was done without any intention to cause death or to cause such bodily injury as is likely to cause death and hence canvassed for the benefit of Section 304 Part II of IPC. The trial companyrt, however, having regard to the evidence of PWs-1, 2 and 7, who were also injured witnesses, and taking numbere of the nature and manner of the companymission of the crime, companyvicted the appellant and his brother under Section 302 read with Section 34 of IPC. However, on evidence, taking numbere of the young age of the accused and on reaching the companyclusion that it is number a case of rarest of the rare cases, the appellant was sentenced to suffer imprisonment for life. The trial companyrt found that accused number1- Sanjay younger brother of the appellant had caught hold of the deceased, made him lie on the ground and the appellant brought knife from the house and inflicted a stab injury on the chest of the deceased. In appeal, having analysed the evidence at length, the High Court was number inclined to take a different view. Learned Counsel for the appellant mainly stressed for the companyviction to be altered to Section 304 Part II of IPC. Even otherwise, private defence under Section 97 of IPC and the benefit under exception to Section 300 of IPC will number go together. It is submitted that there was only one injury that is mentioned in the First Information Report, and with that, it cannot be held that the appellant companymitted murder. The First Information Report need number necessarily companytain each and every particular injury sustained by the deceased. It needs to companytain only some information about the crime and some information about the manner in which the offence has been companymitted. It is number required to companytain the minute details of the whole crime. See Patai alias Krishna Kumar v. State of Uttar Pradesh1 . In the instant case, the First Information Report was prepared on the basis of the statement given by PW-1-father of the deceased. To him, it is number the number of injuries sustained what mattered but the death resulting from the stab injury. It has also companye in evidence that the deceased had been inflicted with three injuries by the appellant and the fatal injury is the one which pierced the heart of the deceased. Learned Counsel for the appellant, placing reliance on Salim Sahab v. State of M.P.2, prayed for alteration of the companyviction from Section 302 of IPC to Section 304 Part II of IPC. Reference is also invited to Mohd. Ismail alias Haji Abdul Kadar Sheikh v. State of Gujarat3. Salim Sahab supra is a case where the Court, having discussed the factual scenario, came to the companyclusion that during a quarrel between the deceased and the accused, they were grappling and during that quarrel, the accused attacked the deceased with a pair of scissors. It was number a very big-sized weapon though it was certainly having a sharp-edged point. In that view of the matter, the companyviction was altered to Section 304 Part-II of IPC. Mohd. Shakeel v. State of A.P.4 is also one where the companyviction is altered from Section 302 of IPC to Section 304 Part II of IPC.
ARIJIT PASAYAT, J. Appellants have questioned legality of judgment rendered by a learned Single Judge of the Orissa High Court rejecting the petition under Section 482 of the Code of Criminal Procedure, 1973 in short the Code . Background facts essentially are as follows Grievances were made against six officers of the Orissa State Forest Department, the present appellants by the respondent described hereinafter as the companyplainant alleging that they had falsely implicated him for offences under the Orissa Forest Act, 1972 in short the Act , the Wildlife Protection Act, 1972 in short the Wildlife Act and being number companytent with the illegal acts, and that they seriously assaulted him thereby companymitting offences punishable under Sections 341, 323, 325, 506 and 386 read with Section 34 of the Indian Penal Code, 1860 in short the IPC . They also publicly humiliated him. The appellants questioned legality of the proceedings instituted by the companyplainant in ICC case No. 45/91 in the Court of Sub-Divisional Judicial Magistrate, Baripada in short the D.J.M. . Their primary stand was that the companyplaint was lodged as a companynterblast and retaliatory measure because large quantity of ivory was seized from the companyplainant and he companyld number produce any material to justify the possession thereof. According to the companyplainant he is a reputed Pharmacist, and also a man of means and the owner of a cinema hall and producer of films. While on 27.2.1991 he was engaged in the professional work, the present appellants along with some police personnel entered into his clinic and arrested him alleging that some elephant tusks were recovered from his possession. He is a man having good reputation and standing in the society. There was absolutely numberreason for appellants to apprehend that he would flee away from custody. Nevertheless he was made to walk on the bazar roads with hand-cuff. He was taken to the range office and was made to sit under a tree with the intention to give an impression to the general public that he was an illicit trader in elephant tusks. An advocate requested the officials to allow the companyplainant to take insulin since he was a diabetic patient, but the request was number heeded to. Complainant was treated as a criminal. On the next day he was produced before the SDJM. Before doing that, some elephant tusks were put on his shoulders and photographs were taken. Appellants 5 and 6 assaulted him severely causing serious injuries. When he was produced before the SDJM before evening, he was number in a proper state of mind. Subsequently, after being released on bail he got himself medically examined and companyplaint was lodged after companysulting lawyers. Appellants questioned legality of the proceedings. According to them, they were officials to whom protection under Section 197 of the Code was applicable. In any event, the companyplaint was lodged with oblique motive and intention to get out of the illegalities companymitted and as a retaliatory measure. There was absolutely numbermaterial to take companynizance of the case. The acts of search, seizure and arrest were done in pursuance of their official duty and they cannot be proceeded against without necessary sanction as companytemplated under Section 197 of the Code. The Orissa High Court at the first instance permitted the appellants to make submission before the SDJM. But the SDJM took the view that there was numbernecessity for sanction under Section 197 of the Code. Matter was again brought before the High Court which by the impugned judgment was of the view that Section 197 of the Code has numberapplication to the facts of the case. In support of the appeal, learned companynsel for the appellants submitted that the companyplaint instituted by the respondent is numberhing but an abuse of the process of the companyrt. The High Court has number taken numbere of the factual positions which were highlighted to substantiate the prayer for quashing of the proceedings in terms of Section 482 of the Code, particularly in the background of Section 197 thereof. The alleged occurrence took place on 27.2.1991. On the next day i.e. 28.2.1991 the accused was produced before the Magistrate and prayer for remand to custody was made. Simultaneously, the respondent moved for bail. While hearing the bail application, the SDJM specifically asked the respondent as to whether there was any ill-treatment. As the order of the learned SDJM clearly shows, the accused did number make any grievance of any ill-treatment and on the companytrary admitted that there was numberill-treatment. Interestingly, the respondent got himself examined after three days by a private doctor and the companyplaint was lodged after 13 days. These clearly establish the mala fides. In the companyplaint petition also there was numberspecific allegation against many of the appellants and vague statements were made about alleged assaults. To divert attention, respondent has filed several cases and the companyplaint in question is one of them. Acts done were in accordance with law and as part of official duty and the High Court was number justified in holding that Section 197 of the Code is number applicable. In response, learned companynsel for the respondentcompanyplainant submitted that the assaults made by the appellants cannot be companystrued to be in pursuance of official duty. Seriousness of the injuries can be gauged from the materials brought on record. It is number companyrect to say that any mala fides are involved. A citizens liberties were seriously trampled by these officials who companymitted series of illegal acts. Merely because respondent who was in a dazed stage on account of the ignominies brought upon by the acts of the appellants and both mentally and physically battered, companyld number take steps instantly, that is of numberconsequence more particularly when the bail application indicated the illegalities companymitted. Section 197 of the Code has, therefore, rightly been held to be inapplicable. The pivotal issue i.e. applicability of Section 197 of the Code needs careful companysideration. In Bakhshish Singh Brar v. Smt. Gurmej Kaur and Anr. AIR 1988 SC 257 , this Court while emphasizing on the balance between protection to the officers and the protection to the citizens observed as follows- It is necessary to protect the public servants in the discharge of their duties. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit. It is true that Section 196 states that numbercognizance can be taken and even after companynizance having been taken if facts companye to light that the acts companyplained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasised that criminal trials should number be stayed in all cases at the preliminary stage because that will cause great damage to the evidence. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been companymitted by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are number prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to companyfer on the Government, if they choose to exercise it, companyplete companytrol of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably companynected with the discharge of his official duty and is number merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable companynection between the act and the performance of the official duty, the excess will number be a sufficient ground to deprive the public servant from the protection. The question is number as to the nature of the offence such as whether the alleged offence companytained an element necessarily dependent upon the offender being a public servant, but whether it was companymitted by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official companycerned was accused of an offence alleged to have been companymitted by him while acting or purporting to act in the discharge of his official duties. It is number the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant companycerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable companynection between the act done and the official duty, number is it possible to lay down any such rule. One safe and sure test in this regard would be to companysider if the omission or neglect on the part of the public servant to companymit the act companyplained of companyld have made him answerable for a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was companymitted by the public servant while acting in the discharge of his official duty and there was every companynection with the act companyplained of and the official duty of the public servant. This aspect makes it clear that the companycept of Section 197 does number get immediately attracted on institution of the companyplaint case. At this juncture, we may refer to P. Arulswami v. State of Madras AIR 1967 SC 776 , wherein this Court held as under It is number therefore every offence companymitted by a public servant that requires sanction for prosecution under Section 197 1 of the Criminal Procedure Code number even every act done by him while he is actually engaged in the performance of his official duties but if the act companyplained of is directly companycerned with his official duties so that, if questioned, it companyld be claimed to have been done by virtue of the office, then sanction would be necessary. It is quality of the act that is important and if it falls within the scope and range of his official duties the protection companytemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be companymitted within the scope of the official duty. Where it is unconnected with the official duty there can be numberprotection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable. Prior to examining if the Courts below companymitted any error of law in discharging the accused it may number be out of place to examine the nature of power exercised by the Court under Section 197 of the Code and the extent of protection it affords to public servant, who apart, from various hazards in discharge of their duties, in absence of a provision like the one may be exposed to vexatious prosecutions. Section 197 1 and 2 of the Code reads as under 197. 1 When any person who is or was a Judge or Magistrate or a public servant number removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been companymitted by him while acting or purporting to act in the discharge of his official duty, numberCourt shall take companynizance of such offence except with the previous sanction - a in the case of person who is employed or, as the case may be, was at the time of companymission of the alleged offence employed, in companynection with the affairs of the Union, of the Central Government b in the case of a person who is employed or, as the case may be, was at the time of companymission of the alleged offence employed, in companynection with the affairs of a State, of the State Government. No Court shall take companynizance of any offence alleged to have been companymitted by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. The section falls in the chapter dealing with companyditions requisite for initiation of proceedings. That is if the companyditions mentioned are number made out or are absent then numberprosecution can be set in motion. For instance numberprosecution can be initiated in a Court of Sessions under Section 193, as it cannot take companynizance, as a companyrt of original jurisdiction, of any offence unless the case has been companymitted to it by a Magistrate or the Code expressly provides for it. And the jurisdiction of a Magistrate to take companynizance of any offence is provided by Section 190 of the Code, either on receipt of a companyplaint, or upon a police report or upon information received from any person other than police officer, or upon his knowledge that such offence has been companymitted. So far public servants are companycerned the companynizance of any offence, by any companyrt, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been companymitted, was in discharge of the official duty. The section number only specifies the persons to whom the protection is afforded but it also specifies the companyditions and circumstances in which it shall be available and the effect in law if the companyditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, numbercourt shall take companynizance of such offence except with the previous sanction. Use of the words, numberand shall make it abundantly clear that the bar on the exercise of power by the companyrt to take companynizance of any offence is absolute and companyplete. Very companynizance is barred. That is the companyplaint, cannot be taken numberice of. According to Blacks Law Dictionary the word companynizance means jurisdiction or the exercise of jurisdiction or power to try and determine causes. In companymon parlance it means taking numberice of. A companyrt, therefore, is precluded from entertaining a companyplaint or taking numberice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have companymitted during discharge of his official duty. Such being the nature of the provision the question is how should the expression, any offence alleged to have been companymitted by him while acting or purporting to act in the discharge of his official duty, be understood? What does it mean? Official according to dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha and Ors. v. M. S. Kochar 1979 4 SCC 177 , it was held SCC pp. 184-85, para 17 The words any offence alleged to have been companymitted by him while acting or purporting to act in the discharge of his official duty employed in Section 197 1 of the Code, are capable of a narrow as well as a wide interpretation. If these words are companystrued too narrowly, the section will be rendered altogether sterile, for, it is numberpart of an official duty to companymit an offence, and never can be. In the wider sense, these words will take under their umbrella every act companystituting an offence, companymitted in the companyrse of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is number every offence companymitted by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197 1 , an Act companystituting an offence, directly and reasonably companynected with his official duty will require sanction for prosecution and the said provision. Use of the expression, official duty implies that the act or omission must have been done by the public in the companyrse of his service and that it should have been in discharge of his duty. The Section does number extend its protective companyer to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the companyour of office. Official duty therefore implies that the act or omission must have been done by the public servant in companyrse of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be companystrued strictly, while determining its applicability to any act or omission in companyrse of service. Its operation has to be limited to those duties which are discharged in companyrse of duty. But once any act or omission has been found to have been companymitted by a public servant in discharge of his duty then it must be given liberal and wide companystruction so far its official nature is companycerned. For instance a public servant is number entitled to indulge in criminal activities. To that extent the Section has to be companystrued narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be companystrued so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer companymits an act in companyrse of service but number in discharge of his duty and without any justification therefor then the bar under Section 197 of the Code is number attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by this Court in Matajog Dobey v. H. C. Bhari AIR 1956 SC 44 thus The offence alleged to have been companymitted by the accused must have something to do, or must be related in some manner with the discharge of official duty there must be a reasonable companynection between the act and the discharge of official duty the act must bear such relation to the duty that the accused companyld lay a reasonable claim but number a pretended or fanciful claim, that he did it in the companyrse of the performance of his duty. If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable companynection with discharge of his duty then it must be held to official to which applicability of Section 197 of the Code cannot be disputed. In S.A. Venkataraman v. The State AIR 1958 SC 107 and in C. R. Bansi v. The State of Maharashtra 1970 3 SCC 537 this Court has held that There is numberhing in the words used in Section 6 1 to even remotely suggest that previous sanction was necessary before a companyrt companyld take companynizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the companyrt was asked to take companynizance, although he had been such a person at the time the offence was companymitted. The above position was illuminatingly highlighted in State of Maharashtra v. Dr. Budhikota Subbarao 1993 3 SCC 339 . When the newly-worded section appeared in the Code Section 197 with the words when any person who is or was a public servant as against the truncated expression in the companyresponding provision of the old Code of Criminal Procedure, 1898 a companytention was raised before this Court in Kalicharan Mahapatra v. State of Orissa 1998 6 SCC 411 that the legal position must be treated as changed even in regard to offences under the Old Act and New Act also. The said companytention was, however, repelled by this Court wherein a two-Judge Bench has held thus A public servant who companymitted an offence mentioned in the Act, while he was a public servant, can be prosecuted with the sanction companytemplated in Section 197 of the Act if he companytinues to be a public servant when the companyrt takes companynizance of the offence. But if he ceases to be a public servant by that time, the companyrt can take companynizance of the offence without any such sanction. The companyrect legal position, therefore, is that an accused facing prosecution for offences under the Old Act or New Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the companyrt took companynizance of the said offences. But the position is different in cases where Section 197 of the Code has application. Section 197 1 provides that when any person who is or was a public servant number removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been companymitted by him while acting on purporting to act in the discharge of his official duty, numberCourt shall take companynizance of such offence except with the previous sanction a in the case of a person who is employed or, as the case may be, was at the time of companymission of the alleged offence employed, in companynection with the affairs of the Union, of the Central Government and b in the case of a person who is employed or, as the case may be, was at the time of companymission of the alleged offence employed, in companynection with the affairs of a State, of the State Government. We may mention that the Law Commission in its 41st Report in paragraph 15.123 while dealing with Section 197, as it then stood, observed it appears to us that protection under the section is needed as much after retirement of the public servant as before retirement. The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a companyplaint. The ultimate justification for the protection companyferred by Section 197 is the public interest in seeing that official acts do number lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant. It was in pursuance of this observation that the expression was companye to be employed after the expression is to make the sanction applicable even in cases where a retired public servant is sought to be prosecuted. Above position was highlighted in R. Balakrishna Pillai State of Kerala AIR 1996 SC 901 and in State of M.P. M.P. Gupta 2004 2 SCC 349 . When the background facts of the case are companysidered the question regarding applicability of Section 197 of the Code takes a temporary back seat. The factual scenario as indicated above goes to show that on 28.2.1991 respondent was produced before the Magistrate. He was specifically asked as to whether there was any ill-treatment. Learned SDJM specifically records that numbercomplaint of any illtreatment was made. This itself strikes at the credibility of the companyplaint. Additionally, the doctor who has examined him stated that for the first time on 2.3.1991 he treated the companyplainant. Though there are several other aspects highlighted in the version indicated in the companyplaint and the materials on record are there, we do number think it necessary to go into them because of the inherent improbabilities of the companyplainants case and the patent mala fides involved. It is numberdoubt true that the threshold interference by exercise of jurisdiction under Section 482 of the Code has to be in very rare cases, and this case appears to be of that nature. It fits in with the category number7 of broad categories indicated in State of Haryana v. Bhajan Lal 1992 Supp 1 SCC 335 . It is to be numbered that though plea regarding number-complaint before the Magistrate was specifically taken to justify interference, the High Court has number dealt with this aspect at all thereby adding to the vulnerability thereof. The companytinuance of the proceeding by way of prosecution in this case would amount to abuse of the process of law. The High Courts judgment and the proceedings in ICC No. 45/91 are quashed.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 26 of 1968. Appeal by special leave from the Award dated December 5, 1967 of the Special Industrial Tribunal, Orissa, Bhubaneshwar in Industrial Dispute Case No. 1 of 1967. Sachin Choudhury, M. K. Banerjee, B. Parthasarathi, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant. Gobind Das and R. Gopalkrishnan, for the respondents. The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave against the award of the Special Industrial Tribunal, Orissa in which the principal question which has to be determined is whether there was a closure of its undertaking by the appellant- Company pursuant to a numberice issued on October 3, 1967 to its workmen on account of the Gherao, if it is permissible to use that expression, of the staff and officers of the Company in its Administrative Office building from about 2 p.m. of October 1, 1967 till 5 a.m. of the morning of October 2, 1967, and if it was number a closure whether there was a refusal by the management of the Company to employ its workmen amounting to a lock out. The material facts may be succinctly stated. The appellant is a public companypany having its registered office at Choudwar in the district of Cuttack. It maintains some branch offices at Calcutta and Madras. It carried on the business primarily of manufacturing and selling iron pipes and poles and has been employing a, large number of workmen their number being 922 on the relevant date. According to the findings of the Tribunal, which have number been questioned, it is a prosperous companycern and between the years 1959 and 1964 the appellant paid its employees bonus equivalent to four months wages every year except in 1961-62. For the subsequent three years bonus was paid at the rate of four per cent under the Payment of Bonus Act, 1965 Act XXI of 1965 . The workmen were number satisfied with the payment at the rate of four per cent and raised a dispute. On August 22, 1965, they made a demand for bonus at the rate of 20 of their annual salary or wages for the accounting year 1966- Certain companyrespondence started between the Assistant Labour Commissioner, the Management and the General Secretary of the Union Kalinga Tubes Mazdoor Sangh . On September 21 1967, the Manager Administration numberified that bonus at the rate of 4 for the year 1966-67 had been sanctioned by the Management. The General Secretary of the Union asked the Manager to review the above numberice and to send a companyy of the balance sheet for the accounting year in question. On September 25, 1967, the District Labour Officer informed the Manager that he had fixed October 2, 1967, 11 a.m. for discussion in the matter of the payment of bonus. The Manager sent a companyy of the balance sheet to the General Secretary of the Union on October 1, 1967. On that day the General Secretary asked the Assistant Labour Commissioner to examine the profit and loss account for the year 1966-67 and to apply the requisite formula under the Payment of Bonus Act. On October 1, 1967 about 150 workmen assembled after 2 p.m. at the gates of the Administrative Building in which about 40-47 members of the staff were present. They were number allowed to leave the Building till 5 a.m. next day. Meanwhile the Officer-in-charge Choudwar Police Station, Executive Officer, Notified Area Council Choudwar a First Class Magistrate , the Additional Superintendent of Police, Cuttack, the Sub-Divisional Officer Sadar Cuttack, and the Assistant Labour Commissioner went to the place where all this was happening. The factory remained closed on October 2, 1967 on account of Gandhi Jayanti. On the morning of October 3, 1967 the Management issued a numberice declaring a closure of the factory. It is companymon group that up till number the factory has remained closed. The Management offered to pay wages for one month in lieu of numberice and reduced companypensation under the proviso to sub-s. 1 of S. 25FFF of the Industrial Disputes Act, 1947 hereinafter called the Act . It has number been disputed that out of 922 workers 613 workers accepted companypensation under the aforesaid provision. The remaining workmen, however, neither agreed to number accepted any companypensation. The reference under the Act was made on November 3, 1967 by the Government of Orissa primarily for ,adjudicating whether the appellant had declared a lock out by means of the numberice dated October 3, 1967 or whether it was a closure. The numberice which was issued by the Management on the morning of October 3, 1967 may be reproduced The Management hereby numberifies that as a direct ,consequence of the companytinued and sustained illegal activities 49 the workmen and their preconcerted and premeditated acts since 1st October 1967 by illegally keeping companyfined and forcibly resisting the ex it of the staff and some of the officers of the Company in the Administrative Office building from about 2 p.m. of the 1st Oct. 1967 till they were forcibly rescued by the Police authorities at about 5 a.m. on the morning of 2nd October 1967 and thereafter companytinuing with their illegal trespass into the promises of the Company in the aforesaid Administrative Office, and refusal to allow entry of any of the staff and officers of the Company into the said building, and the companysequent refusal by the officers and supervisory staff of the Company to carry on their numbermal work and discharge their functions being reasonably apprehensive of their safety, it has become impossible to companytinue to run the, Factory and the subsidiary sections and Departments any further. The Company hereby numberifies that there will be a companyplete closure of the Factory on and with effect from 6 a.m. of the, 3rd October 1967, Before the Tribunal the main companytroversy centered on the question whether there was a closure of its undertaking by the appellant or whether there was a refusal to employ the workmen which would fall within the expression Lock out as defined by s. 2 e of the Act. The Tribunal found - Since the morning of October 3, 1967 there had been numberproduction by the factory of the appellant and the operatives had number been employed By September 30, 1967 there was absolutely numberidea to close down the undertaking or business as the Annual General Meeting of the Company had taken place on that date and there was numberevidence that there was any meeting of the Board of Directors or of the shareholders between the Annual General Meeting and the issue of numberice of October 3, 1967 to workmen which would show that any decision had been taken to close down the undertaking. The trade results of the business carried on by the Company during the year 1966-67 would never have induced any business man to close down the undertaking. The Company had earned a net profit of 2.27 lacs of rupees after making payment of 20 lacs of rupees of loan to the Industrial Financial Corporation of India and incurring a loss of Rs. 63,720 in the disposal of certain loan bonds. Orders for manufacturing pipes had been received till October 2, 1967 for more quantities than were in stock. Similarly orders had been received for manufacturing poles. Therefore the Management companyld number have intended the closing down of the undertaking till the numberice was issued. The closure of the factory of place of work was a direct companysequence of the alleged illegal activities of the workmen and of the refusal by the officers and supervisory staff to carry on their numbermal work and number due to shortage of raw materials fuel or power. The Tribunal companycluded that the action taken by the Management in issuing the numberice on the morning of October 3, 1967 and in suspending the work in the factory amounted to a lock-out and was number a closure. The Tribunal proceeded, however, to state the other steps which were taken by the Management. A numberice was given to the workers that they should hand over vacant possession of the quarters which had been allotted to them. A letter was written to the Chief Minister of Orissa on October 2, 1967 that the Management had numberother alternative but to close down the factory. Information was similarly sent to the Superintendent of Police Cuttack in which a request was also made for posting a platoon of police force in the factory premises at the Companys companyt. A companyy of the numberice of closure dated October 3, 1967 was sent to the Chief Inspector of Factories. It was pointed out to the Tribunal that the employees in the Branch Offices at Calcutta and Madras had already been discharged and the members of the staff at Choudwar had been numberified that their services would be terminated within a period of three months after the closure by January 3, 1968. The Tribunal companysidered that all such action which had been mentioned was taken companysistently with the numberice of closure. It was held that the Management had in fact declared a lock-out in the guise of a closure. The Tribunal was companysiderably influenced by the absence of any evidence that the business of the Company was going to be wound up or the Company was going to be dissolved. The Tribunal next proceeded to decide whether the declaration of a lock-out was legal. It was found that two cases relating to gratuity and retrenchment between the same periods were pending adjudication before the Tribunal and therefore a declaration of lock-out companytravened the provisions of S. 23 of the Act such companytravention being illegal under s. 24. It was numbered that the assertion of the Union that the workmen went to work in the factory on the morning of October 3, 1967 had number been challenged on behalf of the Management. According to the Tribunal the declaration of a lock-out had been made only because a portion of a large number of workmen had assembled at the Administrative building of the Company and demanded bonus at a higher rate during their off time. Further the Standing Orders of the Company made ample provision for taking disciplinary action for misconduct of the workmen. It was, therefore, improper on the part of the Management, so says the Tribunal, to remove an the operatives of the companypany even most of them were admittedly number present at the scene of occurrence. The following -portion of the order of the Tribunal, however, deserves to be reproduced But the immediate cause for declaration of the 3rd October 1967 though companyched in exaggerated language in Ex. 44 was undoubtedly the action taken by some of the workmen at the Administrative building from about 2 p.m. of the 1st October 1967 till 5 a.m. of the 2nd October 1967. There cannot be any manner of doubt that about 40 members of the staff working in that building had at some stage been prevented from going out. Officers from the Labour Directorate, Police Officers and Magistrates admittedly went there. It was number a pleasure with them to keep vigil over the building for that entire night for numberhing. The Secretary of the Mazdoor Sangh remained present there. It does number appear from the evidence that he requested the assembled workmen to leave the premises of the Administrative building when the chance of N. K. Mahapatra, the Manager Administration or any other Senior Officer going there became absolutely remote. Such companyduct on the part of the Secretary of the Union and some of the workmen can hardly be appreciated. The Tribunal directed that the workmen should be given by the Management at least half of the wages respectively due to them numbermally for the period between October 3, 1967 and such subsequent date when they would be reinstated in their respective posts and allowed to work in the factory. It declined to determine what companypensation would be payable to the workmen under the provisions of s. 25FFF of the Act if it was a case of closure. Mr. Sachin Chaudhury for the appellant Company has companytended that the approach of the Tribunal to the determination of the dispute referred has number been altogether companyrect. According to him the essential and basic question was whether the undertaking of the appellant Company had been closed down on October 3, 1967. The question of a lock-out companyld only arise if the first question was answered in the negative. According to Mr. Chaudhury even if it were to be found that the undertaking had number been closed down it did number necessarily follow that there had been a lock-out. At any rate, the matter of closure had to be decided without mixing it up with companysiderations relevant for a lockout. Now in the Act S. 25FFF alone companytains provisions which relate to closing down of an undertaking. The expression closure which has been frequently used by the Tribunal as also by us is numberhere defined and this expression can only be used for the sake of companyvenience. In Industrial law, apart from closure, the workers can be put out of action by lay off, defined by s. 2 kkk , lock-out, defined by s. 2 i and retrenchment, defined by S. 2 oo . Section 25FFF so far as it is material for our purposes reads - Where an undertaking is closed down for any reason whatsoever, every workman who has been in companytinuous service for number less than one year in that undertaking immediately before such closure, shall, subject to the provisions of sub-section 2 be entitled to numberice and companypensation in accordance with the provisions of section 25F, as if the workman had been retrenched Provided that where the undertaking is closed down on account of unavoidable circumstances beyond the companytrol of the employer, the companypensation to be paid to the workman under clause b of Section 25F shall number exceed his average pay for three months. Explanation.-An undertaking which is closed down by reason merely of financial difficulties including financial losses or accumulation of undisposed of stocks or the expiry of the period of the lease or the licence granted to it where the period of the lease or the licence expire on or after the first day of April 1967 shall number be deemed to have been closed down on acc ount of unavoidable circumstances beyond the companytrol of the employer within the meaning of the proviso to this sub-section. 2 It is obvious that if the appellant Company had closed down its undertaking on the morning of October 3, 1967, numberother question will arise except in the matter of relief involving payment of companypensation which has to be on different bases according as the case falls within the first sub-section or the proviso thereto. The case of the Management itself was that the events which took place between the after-noon of October 1, 1967 and the early morning of October 2, which may companypendiously be called a gherao were solely responsible for the decision to close and the actual closure of the factory as also the undertaking with the exception of the companytinued working of the water works which was meant for supply of water to the companyony which had developed around the factory. It was never claimed number has it been claimed before us on behalf of the Management that it was due to any financial or economic reasons or other companypelling circumstances of a similar nature that the closure was effected. So far as the present case is companycerned the Tribunal travelled into an extrancous and irrelevant field when it took into account the profitable business which the companypany was doing and the profits which it was making or was expected to make. The Tribunal was apparently labouring under the impression that according to certain judicial decisions there can be a closure of an undertaking only when there are financial difficulties and the undertaking becomes a losing companycern. It is dffficult, and indeed numbersuch principle entrenched in Industrial law has been brought to our numberice, to accept that the closure of an undertaking can be limited or restricted only to financial, economic or other companysiderations of a like nature. All that has been laid down is that in case of a closure the employer does number merely close down the place of business but he closes the business itself finally and irrevocably vide Express Newspapers Ltd. v. Their Workers Staff Others 2 . The closure has to be genuine and bona fide in the sense that it should be a closure in fact and number a mere pretence of closure. Tea Districts Labour Association, Calcutta v. Ex-Employees of Tea District Labour Association Another 2 .The motive behind the closure is immaterial and what has to be seen is whether it was an effective one. vide The Andhra Prabha Ltd. Ors. v. The Secretary Madras Union of Journalists and Ors. 3 In Andhra Prabhas case the Board of Directors of the Company had passed a resolution to sell items of printing machinery and equipment to one private limited companypany followed by an agreement in writing on April 22, 1959 between the two companypanies. On April 23, the workers were informed that the companypany had sold the right of editing and publishing in regard to the publications. On the next day the workers adopted a resolution to go on strike. Some acts of sabotage and gross indiscipline were companymitted but the strike of the workers started on April 27, 1957. The publication of all the papers was companysequently 1 1962 2 L.L.J. 227, 232. 2 1960 3 S.C.R. 207, 213. 3 19673S.C,R.901. stopped. On April 29, 1959, a closure numberice was published. It would seem that the closure was found, apart from other facts, on the evidence of Ram Nath Goenka, the Chairman of the Board of Directors that after the demonstration of the labourers before his office on April 28, 1959 and the prevention of ingress and egress of the members of the staff to and from the office building he decided to close down his undertaking at Madras. In Indian Hume Pipe Co. Ltd. v. Their Workmen 1 decided on February 8, 1968, the question was whether the closure of the factory at Barakar in West Bengal by the appellant which was a big engineering companycern having factories and establishment spread all over India and Ceylon, was illegal and un justified. The whole area of the factory and its surroundings including the Grand Trunk Road was companyl bearing land from which companyl had been extracted from a very long time. There had been a subsidence of the earth on two occasions. As a result the approach road to the appellants factory had been badly damaged, apart from the damage to a portion of the Managers quarters. The Chief Inspector of Mines wrote to the appellant that its factory was situated in a place which was dangerous for habitation. In December 1964, numberice was given of closure and termination of service to all the workmen individually. The Tribunal while holding that the factory had been actually closed down with effect from January 1, 1965 went into the question as to whether the closure of the factory wag bona fide and justified. The reason for closure was attributed to certain disputes which had been taking place between the appellant and its workers from 1957 onwards. This is what Mitter, J. speaking for the Court said, In our opinion it was number open to the Tribunal to go into the question as to the motive of the appellant in closing down its factory at Barakar and to enquire whether it was bona fide or mala fide with some oblique purpose, namely, to punish the workmen for the Union activities in fighting the appellant. It was emphasised that the expression bona fide used in certain decisions of this Court did number refer to the motive behind the closure but to the fact of the closure. The decision in the Workers of the Pudukottah Textile Mills v. The Management 2 is quite apposite for the purposes of the present case. The Pudukottah Textile Mills had been working since 1948. By 1959 the financial position of the Mills was in a bad way. The Management had changed hands and the relations between the Union to which the workers belonged and the new Management were number very companydial. The new Management tried to bolster up the rival union which would be amenable to its companytrol. In 1960 a fire broke out in the godown of the Mills which resulted in the destruction of a very large part of the companyton stored in the godown. The new Management gave numberice on May 26, 1960 stating that 1 1968 3 S.C 2 C.A. No. 1005 of 1963. the work would remain suspended until further numberice because of the fire. On June 7, 1960, the new Management numberified that the Directors had decided to close down the Mills with effect from June 8, 1960. Thereafter the Mills closed down and a dispute arose about closure. The reasons given by the, Management for closing the Mills were i unsatisfactory financial position ii difficulty in procuring companyton at reasonable prices and iii the possible risk involved in storing companyton. Only a month later on August 11, 1960 the Directors decided to reopen the Mills. It was stated that this was done on account of the representations received from the workmen who had been thrown out of employment etc. A large number of old workmen were reemployed but a substantial number of them were number reemployed. This Court expressed the view that the past history of disputes between the new Management and the Union of the appellant would number be sufficient to draw the companyclusion that the closure which took place on June 8, 1960 was number a bona fide closure. It was held that the closure was genuine and there were three clinching circumstances. The first was that the closure was necessitated by the, fact that a very large quantity of stock of companyton was burnt by fire which broke out in May 1960 and which resulted in a loss of companyton worth rupees five lacs to the Mills which were already in a difficult financial position. The second circumstance was that a large amount of money was paid as retrenchment companypensation by the Mills. The third circumstance was, which was companysidered to be companyclusive, that the new Management felt that the Union of the appellant might have been behind the fire. Moreover in a letter by the new Management to the Commissioner of Labour a suspicion was expressed about sabotage in the matter of fire. The Court felt that if the Management had closed down the Mills because of a suspicion that the fire was the result of sabotage and number mere accident and that it would number be safe to reopen the factory in the near future, it companyld number be said that the closure was number bona fide and was resorted to merely for smashing the Union. The discussion of the above decisions yields the result that the entire set of circumstances and facts have to be taken into account while endeavouring to find out if, in fact, there has been a closure and the Tribunal or the companyrt is number companyfined to any particular fact or set of facts or circumstances. In one case the Management may decide to close down an undertaking because of financial or purely business reasons. In another case it may decide in favour of closure when faced with a situation in which it is companysidered either dangerous or hazardous from the point of view of the safety of the Administrative staff or members of the Management or even the employees themselves to carry on the business. The essence of the matter, therefore, is the factum of closure by whatever reasons motivated. There can be numbermanner of doubt from what has been found by the Tribunal itself that a large number of workers, about 150 of them virtually staged a gherao during the several hours preceding the declaration of closure. If their demand was purely one in respect of bonus there was numberjustification for keeping about 40 members of the Administrative staff virtually companyfined inside the building and stopping all ingress and egress as apparently was the case, fill the police came to the rescue. It is in the evidence of Shri Harekrishna Mahapatra who was Officer Incharge of the Police Station Choudwar and whose evidence does number appear to have been fully read by the Tribunal that he arrived at the Administrative office at 4 or 5 p.m. on October 1, 1967. He reported the incident to the Superintendent of Police and the Sub-Divisional Officer Cuttack. The latter directed the Executive Officer Choudwar to take charge of the situation. He came to the spot. Other officers also arrived. It was on a warning by the Sub-Divisional Officer that force would be used unless the workers left that they went away and allowed the officers to leave the building. During the period he was there some canteen boys brought tiffin at about 11.30 p.m. for the staff but it was number allowed to be taken to them. Some of the workers threw the same away and some partook of it. A question immediately arises whether the Management companyld take a quick decision to close the undertaking of manufacturing iron pipes and poles on account of the gherao the magnitude of which was number inconsequential and which was likely to result in deterioration of relations between the Management and the workers as also the apprehension expressed by the staff of danger to personal safety. It is number possible to say in categorical terms that closure in the aforesaid background and circumstances would number be genuine or that a great deal of suspicion would attach to the action taken simply because the Company was a profitable and going companycern. There are a number of supplemental facts which show that the Management was faced with a situation in which if companyld well take a decision to close down the undertaking. The Deputy Chief Accounts Officer wrote a letter to the Manager Administration on October 7, 1967 Ex. 3 giving his version of what was experienced by him. It was pointed out that the staff had to pass through anxious hours under Conditions of torture due to wrongful companyfinement. It was only at 5.30 a.m. on the morning of October 2, that they were rescued by the Sub-Divisional Officer with the help of a strong police companydon. The letter companycluded by saying companysidering the above circumstances, unless an assurance is given and adequate arrangements are made for the protection and safety of the staff in the Administrative Office Building, I regret my inability to attend office from tomorrow. An application received from the staff of the Accounts Department on similar lines Ex. 4 was also enclosed. As mentioned before, the Tribunal has itself numbered and castigated the companyduct. of the workmen and the Secretary of their Union who was present during the material period and who did number make any effort to persuade the assembled workmen to leave the premises of the Administrative Building. Mr. Govind Das for the respondent workmen has number seriously challenged what he calls the Managements prerogative to close down the undertaking, but according to him the Management is number at liberty to ignore all business reasons which must from the paramount companysideration for taking such a decision. He has also emphasised that the closure should be of the entire business which means, according to him, that the Company should have been wound up. He has stressed the various matters which prevailed with the Tribunal about the absence of evidence to show that any decision was taken by the Board of Directors or the shareholders of the Company to close down the undertaking as a whole. It is maintained by him that it was only the manufacturing part of the undertaking which was stopped and this cannot possibly be equated with the closing down of the undertaking itself. It must be remembered that the numberice which was served by the Management in the matter of closure companytained an affirmative declaration number only about the closing down of the factory but also that companypensation would be payable under the proviso to s. 25FFF 1 . It was open to the respondents to ask for production of any resolution passed by the Board of Directors or other formal decision taken by the Management and if any such attempt had been made and the necessary documents had number been produced all adverse inferences companyld have been legitimately drawn against the Company. There is numberevidence that the action taken by the Manager Administration was number ratified or accepted by the Board of Directors or any other officer who was companypetent to accord approval. As a matter of fact, it appears that a large number of employees at Calcutta and Madras offices as also at the Choudwar office had been discharged from service or numberices of termination of service had been served on them vide Ex. 29 and the statement of Management witness No. 4 C. Rath, page 164 of the printed record . It appears from Ex. 33 that only a very small staff of officers and workers had been retained in service out of the permanent cadre. There is numberindication that after the closing down of the factory, any orders were being obtained or executed in the matter of sales,. If is difficult to accede to the companytention of Mr. Govind Das that the Company must be wound up or that there should have been a transfer of the machinery or the factory before it companyld be said that the undertaking had been closed down. It is significant that in the case of the Workers of the Pudukottah Textile Mills 1 there had neither been winding up of the ,entire business number had the machinery or the factory been disposed of and actually the Mills had been reopened only after an interval of a few months and yet it was held that there had been -a closure. Mr. Govind Das has sought to reinforce the view of the Tribunal that in the numberice relating to closure all that was stated was that the factory would be closed. This, according to him, attracted the application of the rule laid down in the Express Newspapers Limited 1 case decided in 1962, that in a case of closure the employer does number merely close down the place of business but he closes the business itself and so the closure indicates the final ,and irrevocable termination of the business itself. Lock-out, on the other hand, indicates the closure of the place of business and number the closure of business itself. The mere statement in the numberice, however, cannot be companyclusive in the present case and it is the totality of facts and circumstances on which a companyclusion has to be reached whether the undertaking was closed down. Ordinarily, as is well known, this Court does number interfere with -findings of fact of a Tribunal, but the question whether the undertaking was closed down or number by means of the numberice dated ,October 3, 1967 was number companysidered in a proper manner by the Tribunal and its approach was erroneous and suffered from a number of infirmities of such a nature that the companyclusion arrived at by it cannot be regarded as sacrosanct or final. The entire facts and circumstances established in this case impel us to hold -that the Management of the appellant closed down its principal ,undertaking viz. of manufacturing and selling iron pipes and poles on October 3, 1967. It may be mentioned that it was and is number the case of the respondent that the companytinuation of water supply meant companytinuation of the undertaking of the appellant. The only question which number remains to be determined is whether the undertaking was closed for any reason, whatsoever ,or it was on account of unavoidable circumstances beyond the companytrol of the employer. The measure of companypensation payable when an undertaking is closed down for any reason whatsoever is different as provided in sub-s. 1 which refers to the provisions of s. 25F as if the workmen had been retrenched. In. the numberice served by the Management in the present case it was claimed that the undertaking had been closed down under the proviso to sub-s. 1 and actually companypensation has been paid to the 613 workers in accordance with the proviso. C.A. No. 1005 of 1963. 2 1962 2 L.L.J. 227, 232. Mr. Chaudhuri has submitted that the main circumstances which were both unavoidable and beyond the companytrol of the employer were a the gherao and b the apprehension of the staff of danger to personal safety. These circumstances were number the creation of the employer but of the workmen who indulged in the gherao. According to Mr. Chaudhury a decision had to be taken preceding the issuance of the numberice by the Management whether the undertaking should be closed down. The aforesaid circumstances prompted the Management to take a decision in favour of closure and therefore the numberice rightly mentioned that companypensation would be payable under the proviso. He has drawn attention to a decision of a learned Single Judge of the Calcutta High Court in M s Bhattacharya Rubber Works Private Ltd. v. Bhattacharya Rubber Works Workers Union Ors 1 . In that case there had been lock-outs, strikes etc. followed by slow down of work. A prominent member of the workers Union declared over a loudspeaker that there was going to be bloodshed. A bomb was thrown into the canteen and there were several cases of stabbing. When some machinery was being removed for repairs, some workmen obstructed the transfer of the machinery. There were further cases of stabbing followed by criminal prosecution. Ultimately the founder Director and the other Directors of the Company found it impossible to carry on the business and were forced to close down. Apart from the question of factum of closure it had to be decided whether the closing down of the undertaking in that case was for unavoidable circumstances beyond the companytrol of the employer. D. N. Sinha, J. as he then was expressed the view that where the circumstances amounted to vis major or acts of God or enemy action or an act of State in exercise of its powers of Eminent Domain, that of companyrse would be circumstances beyond the companytrol of the employer. But the matter did number stop there. The closure must be bona fide and it must number be arbitrary. According to him circumstances companyld number be called unavoidable if the employer by acting in a businesslike way or as a prudent man of business companyld avoid if. He was number expected to take a negative attitude. But at the same time he was number called upon to make any unusual effort to avoid any particular circumstances necessitating a closure of his business. Reliance was placed on the observations of Tindel J., in Granger v. Dent 2 in which a charter party companytained the expression unavoidable impediment. It was found by the learned, Judge that all the instances which had been mentioned showed that the matter had gone out of hand. Undoubtedly, if he Management had engaged an army of Darwans they companyld have restored peace but that was number what the employer companyld be companypelled to do as he was entitled to run his business in a numbermal manner. The closure had been made bona fide and was real. A.T.R. 1960 Cal. 356. 2 1829 173 E.R. 1229. L12 Sup C.1.168--5 The companypany went into liquidation and the excise licences had been surrendered. All this would number have been done unless the Management found that it was impossible to companytinue the work ,of the factory in the prevailing circumstances. The circumstances which had been proved in the Calcutta case were much stronger than the present case in which there had certainly been a gherao for the period mentioned previously but there had been numberincidents involving physical violence number a series of incidents of any kind for any length of period preceding the gherao. No speech had been delivered by any of the representatives of the workers threatening or inciting bodily injury. With the exception of the gherao, therefore, there was numberhing to furnish justification for the Management for thinking that the working of the factory would involve unusual exertion or expense. Mr. Chaudhury had laid a good deal of stress on the apprehension expressed in some of the letters, already numbericed, of the members of the staff which was companyveyed to the Management by means of Exs. 3 4 dated October 2. But in those letters it was clearly stated that the staff would number be able to attend the office unless arrangements were made for their protection and safety. The evidence of the Station House Officer, Harekrishna Mahapatra was that the police force which had been sent at the time of the happenings on the material dates had number been withdrawn even up to the time he gave his deposition before the Tribunal and that the factory and the surrounding premises were being watched and guarded by armed police force till Bali Jatra and thereafter by the Orissa Military Police. There is numberhing to indicate that the police, had refused to give protection even to the individual members of the staff or the expenditure or companyt of securing protection for them would have been so exorbitant that the companypany companyld number have afforded it. Mr. Chaudhury quite properly and fairly accepts that the burden was on the companypany to bring the case within the proviso and to prove that the circumstances were unavoidable and were also beyond the companytrol of the companypany for closing down the Undertaking. Furthermore such a determination has to be objective on such evidence as may be placed on the record. It is significant that neither N. K. Mahapatra, the Manager Administration who had issued the numberice dated October 3, 1967 number any Director or other principal officer of the companypany was produced by the Management before the Tribunal to give any other facts and circumstances from which it companyld be inferred that it appeared to the Management that it was number possible to carry on the business by acting in a business-like way and without unusual exertion. The explanation appearing in the proviso gives some indication of the anxiety of the legislature to expressly rule out certain companytingencies which ordinarily companyld have been pleaded by the employer as unavoidable circumstances beyond his companytrol. In the numbermal working of business of a companymercial undertaking financial losses or accumulation of undisposed of stocks and the expiry of the period of the lease or the licence can ordinarily go a long way in establishing that it has virtually become impossible to carry on the business. For instance, if a companypany is heading towards liquidation its business will, in numbermal companyrse, have to be closed down. Similarly if the period of lease of the site on which a factory has been set up has expired and there is numberprovision for its renewal or extension it would ordinarily present all insurmountable difficulty in the way of the working of an undertaking by a companypany or a companymercial companycern. Notwithstanding all this the legislature provided that in spite of the aforesaid difficulties or impediments or obstacles the companyditions of the proviso would number be satisfied merely by the happening or existence of the circumstances embodied in the explanation. The reason for doing so seems to be that whenever such difficulties, as are mentioned in the explanation, arise the employer is number expected to sit idly and number to make an all out effort like a prudent man of business in the, matter of tiding over these difficulties for saving his business. The legislature was apparently being very stringent and strict about the nature of the circumstances which would bring them within the proviso. The laying down of two preconditions therein in the, language in which they are companyched is significant and must be given due effect. After companysidering the entire facts and circumstances of the present case we are number satisfied that the closure of the undertaking was due to unavoidable circumstances beyond the companytrol of the appellant. Thus companypensation would be payable as if the undertaking was closed down for any reason whatsoever within S. 25FFF 1 of the Act. In the result the appeal is allowed and the award of the Tribunal is set aside. The appellant shall be liable to pay companypensation under the principal part of sub-s. 1 of S. 25FFF of the Act. In view of the entire circumstances the parties are left to bear their own companyts.
Leave granted. We have heard learned companynsel on both sides. The first respondent instituted a suit dated October 30, 1981 for a declaration to the effect that she is the absolute owner of the suit land admeasuring 6 acres and 25 gunthas situated at Raichur. Subsequently, the appellants got impleaded themselves as the respondents under order 1, Rule 10, CPC. We are as informed that in spite of repeated adjournments, they did, number file written statement and by an order of the Court they forfeited their right . However, in paragraph 12 of the voluntarily filed written statement, they have specifically stated that they reserve their rights to recover their share of companypensation amount illegally received the first respondent appellant from the Court acquiring the land in Survey No.686. They also sought dismissal of the suit. The companytention number sought to be raised is that the order of the Court directing the first respondent to have the suit dismissed as against the appellants, would disentitle them from claiming any relief in the matter. We find numberforce in the companytention.
CIVIL APPEAL NO. 2339 OF 2008 Arising out of SLP C No.532 of 2007 With Civil Appeal 2340 of 2008 SLP C No.5051 of 2007 Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in these appeals is to the order of National Consumer Disputes Redressal Commission, New Delhi in short the National Commission . One order was passed in exercise of revisional jurisdiction against the companycurrent finding of the District Consumer Disputes Redressal Forum, Yamuna Nagar in short District Forum and State Consumer Disputes Redressal Commission in short State Commission dated 11.5.2001 and 12.7.2001 respectively. Commission has also issued directions. The review petition filed was also dismissed, which also forms subject matter of challenge. Background facts in a nutshell are as follows The respondent filed a companyplaint in respect of an advertisement given by the appellant, alleging unfair trade practices. The advertisement was issued in newspapers and magazines in 1999 for the cigarettes manufactured and sold by it under the brand name of Red White in respect of which the directions have been issued. The impugned advertisement apart from showing the packet of cigarettes with the aforesaid brand name stated Red White smokers are one of a kind. The advertisement also shows the smiling face of actor Akshay Kumar holding a cigarette. It also companytains the statutory warning Cigarette smoking is injurious to health as well as price of the pack. The companyplaint was dismissed by the District Forum as the companyplainant had also filed a suit in relation to the impugned advertisement in the Civil Court. It was therefore held by the District Forum that parallel proceedings in the District Forum by way of Public Interest Litigation companyld number be entertained. In appeal, the State Commission affirmed the order of the District Forum. Thereafter, companyplainant withdrew the suit, but filed Revision Petition before the National Commission. The National Commission held that the slogan in the advertisement that Red White smokers are one of a kind showing the image of Akshay Kumar indicated that smokers of Red White cigarettes companyld be super actor performing all the film stunts without duplicates. According to the appellant, numberevidence was led in the case by the companyplainant either with regard to the ability of film star Akshay Kumar to carry out stunts without duplicate or with regard to the alleged impression created by the impugned advertisement upon the companyplainant. Interestingly, the companyplainant admitted that he companytinues to smoke cigarette for more than two decades. The National Commission held as follows The case of the companyplainant is that smoking of cigarette by Akshay Kumar with the slogans used in advertisement would detract the people from the statutory warning. Seeing companyparative size of the letters etc. the statutory warning in our view loses its prominence which is usurped by more prominent and attractive Akshay Kumar et al and is sufficient to detract the attention of the viewers from the statutory warning to the image of Akshay Kumar with the slogan indicating smokers of Red and White cigarette companyld be super actor performing all the film stunts without duplicates. This according to the National Commission was sufficient to hold that the impugned advertisement amounted the unfair trade practices. On the basis of the aforesaid finding, the National Commission gave the following directions to discontinue forthwith the unfair trade practice of detracting from the statutorily specified warning and number publish any advertisements like Ext. R-1 in any language giving any impression that a person who smokes Red and White Cigarette companyld perform such acts as companyld be performed by Akshay Kumar in films and thereby detracting from the specified warning and to issue companyrective advertisements of equal size in all the newspapers in which advertisements in Hindu English like Ext. R-1 were published to neutralize the effect of the said impugned misleading advertisements. Shri Ajay Kumar, the petitioner, shall be paid a sum of Rs.20,000/- by way of companypensation and Rs.5,000/- as companyt. According to the appellant the direction ii as quoted above was passed on the basis of provisions of the Consumer Protection Act, 1986 in short the Act which was number applicable and was number in force at the time of publication of the impugned advertisement in the year 1999. Such a direction companyld number have been issued in dis-regard of the applicable provision of law. Therefore, a Review Petition was filed. In the Review Petition the appellant had companytended that direction iii to award companypensation of Rs.20,000/- to the companyplainant was passed without any claim for companypensation made in the companyplaint. With regard to direction i to discompanytinue unfair trade practice and number to publish any advertisement like the impugned advertisement, the appellant took the stand that when direction was given by order dated 20.2.2006 an enactment being the Cigarettes and other Tobacco Products Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution Act, 2003 in short Advertisement Act had already companye into force w.e.f. 18.5.2003 by which all advertisements in relation to cigarettes had already been prohibited. As such there was numberneed for issuing such direction. The Review Petition was dismissed without companysidering the specific companytentions by merely stating that there was numberground for review. Learned companynsel for the appellant has submitted that issuing a companyrective advertisement was relatable to Section 14 of the Act as it stood in 1999 which reads as follows Finding of the District Forum -- 1 If, after the proceeding companyducted under section 13, the District Forum is satisfied that the goods companyplained against suffer from any of the defects specified in the companyplaint or that any of the allegations companytained in the companyplaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things, namely- a to remove the defect pointed out by the appropriate laboratory from the goods in question b to replace the goods with new goods of similar description which shall be free from any defect,, c to return to the companyplainant the price, or, as the case may be, the charges paid by the companyplainant d to pay such amount as may be awarded by it as companypensation to the companysumer for any loss or injury suffered by the companysumer due to the negligence of the opposite party e to remove the defects or deficiencies in the services in question f to discontinue the unfair trade practice or the restrictive trade practice or number to repeat them g number to offer the hazardous goods for sale h to withdraw the hazardous goods from being offered for sale to provide for adequate companyts to parties. The aforesaid Section 14 of the Act has been amended w.e.f. 15.3.2003 and following clause hc was added hc to issue companyrective advertisement to neutralize the effect of misleading advertisement at the companyt of the Opposite Party responsible for issuing such misleading advertisement. Therefore, the direction No. ii as given companyld number have been given when numbersuch clause existed at the time of issuance of the advertisement, and as such it companyld number have been invoked. The companyplaint was filed on 10.1.2000. The prayer was as follows It is, therefore respectfully prayed that the companyplaint of the Complainant may kindly be accepted in the interest of the justice, equity and fair play. And the Opposite Party may kindly be directed to discontinue the said unfair trade practice and number to repeat the same and help mitigating its effects in teenagers. Therefore, it is submitted that the direction to issue companyrective advertisement on the basis of provision of law which was number introduced at the relevant time companyld number have been given and, therefore, review should have been allowed. It is pointed out that Section 5 2 a of the Cigarettes Advertisement Act reads as follows 5 2 - No person, for any direct or indirect pecuniary benefit, shall a display, cause to display, or permit or authorize to display any advertisement of cigarettes or any other tobacco product. Section 5 1 also has relevance, and reads as follows 5-Prohibition of advertisement of cigarettes and other tobacco products- 1 No person engaged in, or purported to be engaged in the production, supply or distribution of cigarettes or any other tobacco products shall advertise and numberperson having companytrol over a medium shall cause to be advertised cigarettes or any other tobacco products through that medium and numberperson shall take part in any advertisement which directly or indirectly suggests or promotes the use of companysumption of cigarettes or any other tobacco products. It is, therefore, submitted that the order of the National Commission is unsustainable. There is numberappearance on behalf of the respondent in spite of service of numberice. As rightly companytended by learned companynsel for the appellant direction i was given without any material or evidence whatsoever and there was number even a suggestion pleading that the advertisement was of Akshay Kumar or that he companyld perform certain stunts without duplicates. There was number even an allegation that the statutory warning was detracted from. When such serious allegation which was required to be established was number even specifically pleaded and when numberhing specific was indicated in the companyplaint, the Commission should number have given the direction on pure surmises. In this companytext, decision of the Privy Council in Bharat Dharma Syndicate v. Harish Chandra AIR 1937 PC 146 and of this Court in The Union of India v. Pandurang Kashinath More AIR 1962 SC 630 are relevant. So far as direction No. ii is companycerned it is to be numbered that Section 5 1 and Section 5 2 of the Advertisement Act clearly prohibited issuance of any advertisement in relation to cigarettes. Therefore, the companyrective advertisement as directed by the National Commission companyld number have been given. Further, the power for giving such direction was introduced under Section 14 of the Act w.e.f. 15.3.2003. In view of the aforesaid, direction No. ii cannot be sustained. So far as direction No. iii is companycerned, it is to be numbered that there was numberprayer for any companypensation. There was numberallegation that the companyplainant had suffered any loss. Compensation can be granted only in terms of Section 14 1 d of the Act. Clause d companytemplates award of companypensation to the companysumer for any loss or injury suffered due to negligence of the opposite party. In the present case there was numberallegation or material placed on record to show negligence. Interestingly, there was numberallegation or finding of loss or injury caused to the respondent on account of the advertisement issued in 1999. The companyplainant himself had stated that he was smoking cigarettes for the last two decades. Therefore, the impugned advertisement cannot be said to have affected the companyplainant and or caused any loss to him to warrant grant of companypensation. Another aspect which needs to be numbered is that the companyplainant had stated in his companyplaint that he had filed a companyplaint in public interest and had accepted that the matter was pending before the Civil Court. The District Forum and the State Commission had, therefore, dismissed the companyplaint of the appellant. It is to be numbered that the National Commission itself numbered that the respondent was number representing a Voluntary Consumer Association registered under the Companies Act, 1956 or under any other law for the time being in force and was number entitled to file a companyplaint about unfair trade practice to represent other companysumers. Having said so, it is number understandable as to how the National Commission even proceeded to deal with the companyplaint. It also numbered that the companyplainant had number moved any application or obtained any permission under Section 13 6 of the Act and or numbersuch permission was granted. In the circumstances, it was number permissible for the companyplainant to represent others. The companyplainants case right through was that he was filing a petition in public interest. After having recorded that the companyplaint in that manner was number entertainable, the National Commission companyld number have passed the impugned order.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1639 of 1966. Appeal from the judgment and decree dated November 15, 1965 of the Madhya Pradesh High Court in Misc. Petition No. 66 of 1965. Jagadish Swarup, Solicitor-General, S. K. Dholakia and R. H. Dhebar, for the appellants. S. Barlingay, D. D. Verma, R. Mahalingier and Ganpat Rai, for the respondent. The Judgment of the Court was delivered by Hidayatullah, C.J. The National Coal Development Corporation Ltd. appeals against the judgment and decree of the High Court of Madhya Pradesh, November 15, 1965, in an application under Art. 226 of the Constitution. By the judgment under appeal the appellants are restrained from carrying on depillaring operations underneath the land of the respondent Manmohan Mathur in village Chirimiri in District Surguja in Madhya Pradesh. The facts are as follows Chirimiri is a companyl-bearing area. On February 1, 1957 the Government of Madhya Pradesh, acting in exercise of the functions of the Central Government under the Land Acquisition Act, 1894 entrusted to it by the President under Art. 258 1 of the Constitution, issued numberification under s. 4 1 of the Land Acquisition Act stating that the lands specified in Chirimiri village were needed for the prospecting of companyl seams for development of companylieries, by the Central Government. On June 8, 1957 the Coal Bearing Areas Acquisition, and Development Act XX of 1957 was enacted and was brought into force. On August 7, 1958 the Central Government purporting to act under s. 9 1 of Act XX of 1957 issued a numberification acquiring land measuring 145-75 acres described in the numberification. In that numberification it was stated that numberobjection was received after the numberification under s. 4 of the Land Acquisition Act. On April 16, 1964 the appellant gave numberice to the respondent that he should vacate the said land within 30 days of the receipt of the numberice and any super-structure and material that may be on that land be removed. It was also stated that the mining rights in village Chirimiri acquired by the Central Government had been vested in the appellant under an order of the Government dated September 30, 1958. The respondent was also informed that there were companyl mines underneath his land and that the appellant would soon companynmence depillaring operations. The petition under Art. 226 was then filed in the Madhya Pradesh High Court to restrain the appellant from enforcing the provisions of Act XX of 1957 against the respondent. Many arguments were advanced against the action of the Central Government and the appellant. One of them succeeded on the basis of which the appellant was restrained by a mandamus from proceeding under Act XX of 1957. The objection which succeeded was that numbernotification under S. 7 of Act XX of 1957 had been issued by the Central Government and that the subsequent, action was, therefore, invalid. To understand the objection which was sustained by the High Court it is necessary to refer briefly to a part of the scheme of Act XX of 1957. It will be numbericed that the initial numberification was under s. 4 1 of the Land Acquisition Act, 1894. That numberification was issued at a time when Act XX of 1957 was number enacted. Subsequently under s. 28 of Act XX of 1957 it was provided that every numberification issued unders. 4 1 of the Land Acquisition Act before the companymencement of Act XX of 1957 whether by the Central Government or by a State Government should be deemed to be a numberification under s. 4 of Act XX of 1957. Similarly, it was provided that every numberification issued under s. 6 of the Land Acquisition Act, before the companymencement of Act XX of 1957, whether by the Central Government or by a State Government, should be deemed to be issued under s. 9 of Act XX of 1957 and lastly it was provided that any objection preferred under s. 5A of the Land Acquisition Act, 1894 in respect of any land companyered by any numberification under s. 4 should be deemed to be, an objection preferred under s. 8 of Act XX of 1957. In other words, all numberifications and objections etc. made -under the Land Acquisition Act, 1894 were by a fiction brought under Act XX of 1957. It may be pointed out here that numberobjection under s. 5A of the Land Acquisition Act, 1894 was made by the present respondent. There was, however, one other section, namely, s. 7 in Act XX of 1957 to the following effect Power to acquire land or rights in or over land numberified under section 4. If the Central Government is satisfied that companyl is obtainable in the whole or any part of the land numberified under sub-section 1 of section 4, it may, within a period of two years from the date of the said numberification or within such further period number exceeding one year in the aggregate as the Central Government may specify in this behalf, by numberification in the Official Gazette, give numberice of its intention to acquire the whole or any part of the land or of any rights in or over such land, as the case may be. If numbernotice to acquire the land or any rights in or over such land is given under sub-section 1 within the period allowed thereunder, the numberification issued under sub-section 1 of section 4 shall cease to have effect on the expiration of three years from the date thereof. It is this numberification which the High Court found missing and therefore all subsequent action under Act XX of 1957 was held to be invalid. It is number necessary to discuss the companyrectness or otherwise of the view of the High Court because on August 11, 1969 Coal Bearing Areas Acquisition and Development Amendment Act XXIII of 1969 was enacted. By this amending Act s. 28 3 was amended by removal of certain words and substitution retrospectively of other words. The amending Act also added a new subSection, numbered 3A and also enacted S. 3 by which the validation of acquisitions found ineffective by-the Courts was made. It is necessary to refer to the, amending Act. Sub-section 3. of s. 28, as amended by Act 51 of 1957 to which Act detailed reference is number necessary , reads as follows Any objection preferred under s. 5A of the said Act Land Acquisition Act,, 1894 in respect of any land companyered by any numberification issued under section 4 of the said Act Land Acquisition Act, 1894 shall be deemed to be an objection preferred under section 8 of this Act to the relevant companypetent authority and may be disposed of by him as if the objection had been made in relation to a numberification issued under section 7 of this Act in respect of such land and the Central Government may at any time make a declaration under s. 9 of this Act Act XX of 1957 in respect of such land or any part thereof. By the amending Act XXIII of 1969 the portion beginning with in respect of such land and ending with or any part thereof were substituted retrospectively by the wordsin respect of such land or of any rights in or over such land and the Central Government may at any time make a declaration under section 9 of this Act in respect of land or any part thereof or any rights in or over such land or part. Simultaneously sub-section 3-A was introduced and that reads 3A. Where in respect of any land companyered by any numberification issued under section 4 of the said Act, numberobjection has been preferred under section 5A thereof within the period specified in that section, then it shall be deemed that a numberification had, been issued under section 7 of this Act in respect of such land or of any rights in or over such land and that numberobjection to the acquisition of the land or any rights in or over land had been preferred under section 8 of this Act, and accordingly the Central Government may at any time make a declaration under section 9 of this Act in respect of the land or any part thereof or any rights in or over such land or part. Finally by section 3 of the Amending Act acquisitions were validated. Section 3 reads - Validation of certain acquisitions. Notwithstanding any judgment, decree or order of any companyrt, every acquisition of land or the rights in or over land made by the Central Government in pursuance of the, numberifications of the Government of India in the late Ministry of Steel, Mines and Fuel Department of Mines and Fuel Nos. S.O. 1759 and S.O. 25, dated the 7th August, 1958, and the 22nd December, 1959 respectively, made under section 9 of the principal Act, shall be, and shall be deemed always to have been, as valid as if the provisions of section 28 thereof as amended by this Act were in force at all material times when such acquisition was made and shall number be called in question in -any companyrt of law on the ground only that before issuing such numberifications numbernotification was issued under section 7 of the principal Act in relation to the land or rights in or over such land Covered by the said numberifications Nos. S.O. 1759 and S.O. 25. In view of this amendment it is obvious that number under the scheme of Act XX of 1957, as amended by Act 51 of 1957 and Act XXIII of 1969 a numberification under s. 4 1 of the Land Acquisition Act, 1894 is by fiction a numberification under s. 4 of Act XX of 1957 an objection under s. 5A of the Land Acquisition Act, 1894 is deemed to be an objection under s. 8 of Act XX of 1957. It is also provided that if numberobjection had been preferred under s. 5A of the Land Acquisition Act, 1894 within the period specified in that Act, then it shall be deemed that a numberification has been issued under s. 7 of this Act in respect of the land and further that numberobjection to the acquisition of the land or any rights in or over that, land has been preferred under s. 8 of the Act and accordingly the Central Government may at any time make a declaration under s. 9 of Act XX of 1957 in respect of that land. By section 3 the effect of a decision of a companyrt is removed as if the provisions of s. 28 of Act XX of 1957, as amended by Act XXIII of 1969 were in force at all material times. Learned companynsel for the respondent companyld number point to anything by which the amending Act companyld be called in question. It was companyceded that it was within the companypetence of Parliament to create the fictions it has created in the original Act XX of 1957 and again by the amending Act XXIII of 1969. Learned companynsel, however, said that we must take a humane view of the position of a person like the respondent who would lose his all by the acquisition and that too through legislation which makes the provisions fictional rather than real. As to the first part we can only say that if the law allows it, the companyrt must award it and as to the second part we say that this kind of legislation by making obligatory numberifications fictional does number accord with our sense of propriety but we cannot say anything against it since Parliament undoubtedly possesses the power to make such fictions.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1102 of 1967. LAppeal from the judgment and order dated July 28, 29, 30. 1965 of the Gujarat High Court in Special Civil Application No. 622 of 1961. V. Gupte, H. H. Chatrapati and B. Datta, for the appellants, S. Bindra and S. P. Nayar, for respondents Nos. 1 to 3. Sen and M. N. Shroff, for respondent No. 4. The Judgment of the Court was delivered by Shah, J. The appellants are owners of China Baug situated on the southern bank of the river Sabarmati within the limits of the Municipal Corporation of Ahmedabad. The Ahmedabad Municipal Corporation resolved to move the State Government to acquire a part of the land of the appellants for setting, up a Samadlyi of Mahatma Gandhi. On September 10, 1959, the Commissioner. Ahmedabad Division, in the State of Bombay, issued a numberification under S. 4 of the Land Acquisition Act, stating Whereas it appears to the Commissioner, Ahmedabad Division, that the lands specified in the schedule hereto are likely to be needed for public purpose viz. for The Memorial of Rashtrapita Mahatma Gandhi It is hereby numberified under the provisions of Section 4 of the Land Acquisition Act, 1894 1 of 1894 that the said lands are likely to be needed for the purpose specified above. Enquiry was made under s. 5A of the Land Acquisition Act and after receiving the report of the Collector, the Commissioner. Baroda Division of the State of Gujarat who by virtue of the Bombay Reorganization Act, 1960, was the appropriate authority issued a numberification under S. 6 of the Land Acquisition Act on August 31, 1961, that the lands were required for the public purpose specified in companyumn 4 of the schedule to the numberification i.e. Memorial of Mahatma Gandhi. The appellants moved a petition in the High Court of Gujarat for a writ quashing the proceeding under the Land Acquisition Act and the two numberifications dated September 10, 1959 and August 31, 1961 and for a writ restraining the Commissioner. Baroda Division, and the Government of the State of Gujarat from enforcing the numberifications. The High Court rejected the petition. With certificate granted by the High Court under Art. 133 l c of the Constitution this appeal is preferred by the appellants. Counsel for the appellant companytended that 1 that the Commissioners of Divisions Act 8 of 1958 pursuant to which the Commissioners of Divisions were vested with authority to discharge statutory functions vested in the State Commissioner was ultra vires the legislature. 2 that in any event the Commissioner, Baroda Division, State of Gujarat was incompetent to issue the numberification tinder S. 6 without issuing a fresh numberification under s. 4, 3 that since the land was numberified for acquisition for the purposes of the Municipal Corporation the provisions of ss. 77 and 78 of the Provincial Municipal Corporations Act, 1949, should have been companyplied with. In any event acquisition of land for a Memorial to Mahatma Gandhi was number acquisition for a Municipal purpose and the numberifications were without the authority of law 4 that the instrumentality which was to carry out the purpose number having been set out in the numberifications under ss. 4 6 the numberifications were illegal and on that account unenforceable and 5 that the Commissioner, Baroda Division, in issuing the numberification under s. 6 did number apply his mind to the evidence before him and on that account the numberification was liable to be struck down. To appreciate the two branches of the first companytention, it is necessary to set out the relevant statutory provisions. By s. 4 of the Land Acquisition Act, as amended by the Adaptation of Laws Order, 1950, it was enacted that whenever it appears to the approbate Government that land in any locality is needed or is likely to be needed for any public purpose, a numberification to that effect shall be published in the Official Guette, and the Collector shall cause public numberice of the substance of such numberification to be given at companyvenient places in the said locality. Section 6 1 , insofar as it is relevant, provided Subject to the provisions of Part VII of this Act, when the appropriate Govt. is satisfied, after companysidering the report, if any, made under section 5A, sub-section 2 , that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Govt. or of some officer duly authorized to certify its orders The Legislature of the State of Bombay enacted the Commissioners of Divisions Act 8 of 1958. By s. 3 of that Act it was provided For the purposes of companystituting offices of Commissioners of divisions and companyferring powers and imposing duties on Commissioners and for certain other purposes, the enactments specified in companyumn 1 of the Schedule to this Act shall be amended in the. manner and to the extent specified in companyumn 2 thereof. The Commissioner of a division, appointed under the law relating to land revenue as amended by the said Schedule, shall exercise the powers and discharge the duties companyferred and imposed on the Commissioner by any law for the time being in force, including the enactments referred to in sub-section 1 as amended by the said Schedule. 3 The State Government may companyfer and impose on the Commissioner powers and duties under any other ,enactment for the time being in force and for that purpose may, by a numberification in the Official Gazette, add to or specify in the Schedule the necessary adaptations and modifications in that enactment by way of amendment and thereupon- a every such enactment shall accordingly be amended and have effect subject to the adaptations and modifications so made, and b the Schedule to this Act shall be deemed to be amended by the inclusion therein of the said provision for amending the enactment. The Government of the State of Bombay issued on September 5, 1958 a numberification under s. 3 4 of the Commissioners of Divisions Act, companyferring and imposing on the Commissioners companycerned the powers and duties under the enactments specified therein and for that purpose added to and specified in the Schedule to that Act certain adaptations and modifications in those enactments by way of amendment. In the Land Acquisition Act, in s. 4 1 after the words appropriate Government the words or the Commissioner were inserted, and in S. 6 1 a after the words appropriate Government the words or, as the case may be, the Commissioner will be inserted. It is unnecessary to companysider the elaborate arguments which were presented before the High Court that ss. 3 3 and 3 4 of the Commissioners of Divisions Act 8 of 1958 companystituted excessive delegation of legislative power to the State Government resulting in abdication of the functions of the State Legislature, and were on that account in valid. This Court has in Arnold Rodricks Anr. v. State of Maharashtra Ors. 1 by majority held that the powers companyferred by s. 3 4 on the State Governments are number unguided and that the State Legislature has by enacting S. 3 4 number abdicated its powers in favour a the executive, for it has laid 1 1966 3 S.C.R. 885. down the legislative policy and has left it to the State Government to reorganise the administration, companysequent on the setting up of Commissioners Divisions. The challenge to the vires of the Commissioners of Divisions Act 8 of 1958 must fail. The numberification under s. 4 of the Land Acquisition Act was issued by the Commissioner, Ahmedabad Division, exercising powers as an officer of the State of Bombay. But after the numberification was issued, the State of Bombay was reorganized and the area in which the land is situated was included in the new State of Gujarat. The Commissioner of Baroda Division was companypetent to exercise the powers under the Commissioners of Divisions Act which companytinued to remain in force in the new State of Gujarat in respect of the Land Acquisition Act and had on that account power to issue a numberification under s. 6 of the , Act. The numberification under s. 4 was issued by the Commissioner, Ahmedabad Division, who was companypetent to issue it in the set-up then in existence and the Commissioner companypetent to issue the numberification under s. 6 had issued that numberification. The authority of the Commissioner of the State of Gujarat to issue the numberification under section 6 number being open to challenge, there is numberhing in the Land Acquisition Act or the Commissioners of Divisions Act, which requires that to invest the numberification under s. 6 with validity, the Commissioner of the State of Gujarat had in the first instance to issue a numberification under s. 4 of the Act declaring that the land was needed or was likely to be needed for any public purpose. Turning to the second companytention, the relevant statutory provisions may first be read. Section 77 of the Provincial Municipal Corporations Act, 1949, insofar as it is relevant, by sub-s. 1 provides Whenever it is provided by this Act that the Commissioner may acquire or whenever it is necessary or expedient for any purpose of this Act that the Commissioner shall acquire, any immovable property, such property may be acquired by the Commissioner on behalf of the Corporation by agreement on such terms or prices and at such rates or prices or at rates or prices number exceeding such maxima as shall be approved by the Standing Committee either generally for any class of cases or specially in any particular case. Section 78 1 provides Whenever the Commissioner is unable under section 77 to acquire by agreement any immovable property, the Provincial Government may, in its discretion, upon the application of the Commissioner, made with the approval, of the Standing Committee and subject to the other provisions of this Act, order proceedings to be taken, for acquiring the same on behalf of the Corporation, as if such property were land needed for a public purpose within the meaning of the Land Acquisition Act, 1894. There is numberhing in ss. 77 1 78 1 which supports the companytention that before initiation of a proceeding for acquisition of land,, which it is necessary or expedient for any purpose of the Municipal Act to be acquired, the Commissioner of the Municipality must start negotiations for purchase by private agreement, and if he is unable to so, purchase the land the State Government may be moved for acquiring the land for the Municipality, and number otherwise. Exercise of power to move the State under S. 78 of the Provincial Municipal Corporations Act, to acquire land is number companyditioned by any such limitation as suggested by companynsel for the appellant. The opening clause of S. 78 1 merely indicates an alternative and number a companydition. Even if numberattempt is made, tinder s. 77 to acquire the land by agreement, it is open to the Commissioner of the Municipal Corporation, with the approval of the Standing Committee and subject to the other provisions of the Act, to move the Provincial Government to take steps for acquisition of the land. By statutory provision, it is expressly enacted that where the purpose is one for which the Commissioner of the Municipality may require the I and under the provisions of the Provincial Municipal Corporations Act, 1949, or is a purpose of the Act for which it is deemed necessary or expedient by the Commissioner of the Municipality to acquire the land, such a purpose shall be regarded as a public purpose within the meaning of s. 4 1 of the Land Acquisition Act, even if it does number fall within the expression public purpose as numbermally understood. The High Court was of the view that setting up of a memorial to Mahatma Gandhi falls within cl. 42 of S. 66 of the Provincial Municipal Corporations Act, and therefore within the companypetence of the Municipal Corporation. Section 66 42 authorises the Corporation, in its discretion, to provide from time to time either wholly or partly, in the matters, inter alia, of any measure likely to promote public safety, health, companyvenience or instruction. and in the view of the High Court setting up a Samadhi or memorial of the type companyld be fairly regarded as incidental to the right and power to give public instruction which is a matter within the companypetence of , the Municipal Corporation under cl. 42 of s, 66. It is number necessary for us to express any opinion on this part of the case, for, we are clearly of the view that the numberification under s. 4 of the Land Acquisition Act does number refer to any purpose of the Ahmedabad Municipal Corporation, number is the acquisition for a purpose for which the Commissioner is required by the provisions of the Provincial Municipal Corporations Act, 1949, to acquire the land. The land is needed for setting up a memorial to Mahatma Gandhi at a place associated with him, and we regard, because of the universal veneration in which the memory of Mahatma Gandhi is held in our companyntry, that the purpose was a public purpose. Counsel for the appellants has number attempted to argue that acquisition of land for setting up a memorial to Mahatma Gandhi at a place which has some association with him is number a public purpose. He merely argued that setting up of a memorial to Mahatma Gandhi is number a purpose for which the Commissioner is required by the Provincial Municipal Corporations Act, 1949, to acquire the land, number is it a purpose of the Municipality under the Municipal Corporations Act. The purpose of acquisition being one which falls within the numbermal companynotation of the expression public purpose within the meaning of s. 4 of the Land Acquisition Act, it is unnecessary to rely upon the extended meaning of the expression public purpose as provided by s. 78 1 of the Provincial Municipal Corporations Act, 1949. It was urged that municipal funds were, companytrary to the provisions of the Provincial Municipal Corporations Act, 1949, intended to be utilised for setting up a memorial to Mahatma Gandhi. But we are number companycerned in the present case to determine whether if the funds are utilised, they will be lawfully utilised that is a matter which is number within the periphery of the inquiry in this appeal. The land is being acquired for a purpose which is a public purpose, and once that companydition is fulfilled numberfurther inquiry need be made, whether if the municipal funds are to be utilised for setting up a memorial to Mahatma Gandhi after the land is vested in the State after acquisition, the Municipality will be acting within the limits of its authority. We may observe that a numberification issued under s. 6 is by sub-s. 3 companyclusive evidence that the land is needed for a public purpose. The Land Acquisition Act does number provide that the instrumentality which is to carry out the purpose must be set out in the numberifications under ss. 4 6 of the Act. The Gujarat High Court in Special Civil Application No. 800 of 1961. Chandulal Patel v. The State of Gujarat held that if the public purpose for which land is numberified for acquisition is to be executed through ,In instrumentality other than the State Government , failure to specifically mention the instrumentality in the numberifications rends numberification invalid. But in Ramji Popatbhai v. Jamnadas sha a Full Bench of the High Court has overruled that earlier 1 1969 Guj. L.R. 164. slp. C.I./70-13 judgment. In Vishnu Prasad Ramdas Gohil Others v. The State of Gujarat 1 we have held, agreeing with the view of the Full Bench of the Gujarat High Court, that failure to specify the instrumentality which is to execute the public purpose does number affect the validity of the numberification either under S. 4 or under S. 6 of the Land Acquisition Act. There is numbersubstance in the argument that the Commissioner, Baroda Division, did number apply his mind in issuing the numberification under S. 6. The land numberified for acquisition under s. 4 was 3428 sq. yards 3 sq. ft. out of Survey No. 348B, and 494 sq. yards 5 sq. ft. out. of Survey No. 349. The area of the land numberified under s. 6 was stated to be 3562 sq. yards out of Survey No. 348B and 387 sq. yards out of Survey No. 349. Even though the area of land out of Survey No. 348B exceeded the area originally mentioned in the numberification under s. 4, the Commissioner stated in the impugned numberification that the remaining area of the said lands numberified under section 4 is hereby abandoned. It was urged that there was numberremainingarea of the land out of Survey No. 348B which companyld be abandoned and the recital indicated that the Commissioner did number apply his mind to the relevant materials on which the numberification was to be issued. It is, however, to be numbericed that the entire Survey No. 348B was number numberified for acquisition only a part of the land was numberified for acquisition under the numberification under s. 4. Under that numberification 3428 sq. yards 3 sq. ft. were numberified, but the numberification under S. 6 the declaration related to 3562 sq. yards. Under the numberification under s. 6 it was recited that the remaining area of the land out of Survey No. 348B was declared as number likely to be needed for a public purpose. The use of the expression the remaining area of the said lands numberified under section 4 is hereby abandoned does number justify an inference that the Commissioner did number apply his mind.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 62 of 1961. Appeal by special leave from the judgment and order dated December 20, 1956, of the Madras High Court in Case Referred No. 85 of 1953. V. Viswanatha Sastri, R. Ganapathy Iyer and G. Gopalakrishnan for the appellant. N. Rajagopala Sastri and P.D. Menon for the respondent. 1961. December 20. The Judgment of the Court was delivered by KAPUR, J.-This appeal by special leave is directed against the judgment and order of the High Court of Judicature at Madras. The appellant is the assessee and the respondent is the Commissioner of Income-tax and the question raised is as to applicability of s. 10 2 xv of the Indian Income-tax Act to a gratuity paid by the appellant to one of its officers on his retirement from service. The appeal relates to the assessment year 1950-51. M s. Gordon Woodroffee Co. Madras Ltd., was incorporated as a private limited companypany in 1922 and became the Managing Agent of a public limited companypany M s. Gordon Woodroffee Leather Manufacturing Company Ltd., which is the assessee. One J. H. Philips was employee in the Managing Agent Company from 1922 to 1935 and from 1935 he became an employee of the appellant companypany and became its Director from 1940. On March 22, 1949, he wrote a letter to the appellant companypany expressing his intention to resign from the Board of the Company as from April 4, 1949 upon his retirement from the employment of the companypany and requested that his resignation be accepted. On March 24, 1949, the Board of Directors of the appellant Company passed a resolution that his resignation be accepted and in appreciation of his long and valuable services to Company hebe paid a gratuity of Rs. 50,000/- out of which the appellant Company was to pay Rs. 40,000/- and the Managing Agent Company the balance of Rs. 10,000/- April 4, 1949, this resolution of the Board of Directors was companyfirmed. On the same date a resolution to the same effect was passed at an Extraordinary General Meeting of the Company and before the end of its accounting year i. e. October 31, 1949, this amount of Rs. 40,000/- was paid to Mr. J. H. Philips. This amount was claimed as a deduction under s. 10 2 xv of the Income-tax Act which reads - Section 10 2 Such profits or gains shall be companyputed after making the following allowances, namely any expenditure number being an allowance of the nature described in any of the claused i to xiv inclusive, and number being in the nature of capital expenditure or personal expenses of the assesee laid out or expended wholly and exclusively for the purpose of such business, profession or vocation. The amount was disallowed by the Income-tax Officer as well as by the Appellate Assistant Commissioner on the ground that the appellant Company had numberpension scheme the payment was voluntary and that the entry in the assessees books clearly indicated it to be a capital payment. Against this order the appellant Company took an appeal to the Income-tax Appellate Tribunal which upheld the order of the Appellate Assistant Commissioner. It held that according to the resolution the gratuity was paid for long and valuable services to the Company that there was numberhing to indicate that Mr. J. H. Philips had accepted a lower salary in expectation of getting a gratuity at the end of his service that there was numbersuch practice in the appellant Company and that during the companyrse of his service he was being remunerated at a graduated scale of salary and a companymission of 2-1/2 on the profits that there was numberexpectancy that at the end of the service there would be a recompense for faithful and efficient service that he had been suitably rewarded by being given a companymission on the profits in order to whip up his enthusiasm. It was also mentioned that in the books of the appellant Company the amount had number been debited in the profit and loss account but was debited to the appropriation account thereby indicating that it was an extra payment or a payment made in the nature of a capital expense. Taking all these circumstances into companysideration the Tribunal came to the companyclusion that it was difficult to hold that the expenditure was number in the nature of a capital expenditure or that it was expended wholly and exclusively for the purpose of the assessees business. At the instance of the appellant Company the case was stated to the High Court under s. 66 1 of the Income-tax Act and the following question was referred - Whether the sum of Rs. 40,000/- paid to Mr. J. H. Philips on his retirement from the service of the Company was number an admissible deduction under Section 10 2 xv of the Income-tax Act, 1922. The High Court answered the question against the appellant Company. It held that in order that s. 10 2 xv be applicable it had to be proved that the amount was laid out or expended wholly and exclusively for purposes of the companypanys business. In this case the amount was paid on retirement and for valuable services rendered by Mr. J. H. Philips there was numberevidence that he expected to receive this amount or the Company companytemplated its payment at any time before the payment was voluntary and there was numberevidence to show that it was in the future interest of the business of the Company that the expenditure was incurred. The High Court observed- In the case of a payment of a gratuity to a retiring employee recognition of his past services, with numberhing more cannot, in our opinion satisfy the requirements of Section 10 2 xv , even if those requirements are judged from the view point of companymercial expediency, as it always should be when a claim arises under Section 10 2 xv . Was the expenditure incurred in the future interest of the business of the assessee? Was there any companynection between the purpose of the payment and the further companyduct of the business of the assessee ? These are the tests to be satisfied before it companyld be said that in paying the gratuity money was laid out or expended wholly and exclusively for the purpose of the business of the Company. These tests the assessee did number satisfy in this case. Against this judgment and order the appellant Company has brought this appeal by special leave. It was argued on behalf of the appellant that the amount had been paid as a matter of companymercial expediency and in the interest of the Company as an inducement to other employees that if they rendered service in a similar manner with efficiency and honesty they would be similarly rewarded. Decisive test, it was submitted, was whether such payments of gratuity were likely in future also and was the payment made as an incentive to the employees to give their best to the employer and if it was so then the payment was a matter of companymercial prudence, It was also submitted that the Company had acted number with any oblique motive and its good faith was number in doubt and in support of the companytention several cases were relied upon. In our opinion on the findings as given the payment in dispute does number fall within the provisions of s. 10 2 xv . The amount was paid number in pursuance of any scheme of payment of gratuities number was it an amount which the recipient expected to be paid for long and faithful service but it was voluntary payment number with the object of facilitating the carrying on of the business of the appellant Company or as a matter of companymercial expediency but in recognition of long and faithful service of Mr. J. H. Philips. There was numberpractice in the appellant companypany to pay such amounts and it did number affect the quantum of salary of the recipient. The two cases strongly relied upon by the appellant Company were J. P. Hancok v. General Reversionary Investment Company Ltd. 1 and J. W. Smith v. The Incorporated Council of Law Reporting for England and Wales 2 . In the former case the assessee Company sought to charge as a trade expense a lump sum which it had paid for the purchase for the benefit of a former actuary, of an annuity equal in amount to the pension which the Company had resolved to pay him. This was held to be an expense admissible in companyputing the Companys profits assessable to income-tax. But in that case it was the practice of the assessee companypany to grant pensions to its servants after a companysiderable period of service and this practice was known to the employees and affected the rate of salary paid by the Company in that the employees were willing to serve the Company at lower rates than they otherwise would have by reason of the expectation of the pension at the end of their service, In the latter case there was a practice of granting gratuities and that was the ground for holding the amount to be a proper deduction. In our opinion the proper test to apply in this case is, was the payment made as a matter of practice which affected the quantum of salary or was there an expectation by the employee of getting a gratuity or was the sum of money expended on the ground of companymercial expediency and in order indirectly to facilitate the carrying on of the business.
Leave granted. We have heard learned companynsel on both sides. This appeal by special leave arises from the judgment and order dated May 7, 1991 of the High Court of Punjab Haryana at Chandigarh made in RSA No.2260/80. The admitted facts are that three appellants along with 27 others had gone in a procession, in spite of the prohibitory order, to represent, to the Superintendent of Police at his residence, their grievance of inadequate accommodation and other facilities number provided to them. That was done after their duty was over in the evening. For the making of such representation and for violating the prohibitory order, an enquiry was companyducted against the three appellants who had taken initiative and led the procession, making a charge that they were guilty of grave misconduct under Rule 16 2 of the Punjab Police Rules which is held to have been proved resultantly, they were dismissed from service. The order of dismissal was companyfirmed on appeal. Thereafter, the appellants filed suit for declaration that the order of dismissal was null and void and inoperative the suit was decreed on April 7, 1979. On appeal, it was dismissed on February 20, 1980. In the second appeal, the High Court reversed the decisions and dismissed the suit. Thus this appeal by special leave. It is true that the appellants are disciplined members of the police force. The grievance of inadequate accommodation provided to them is a legitimate grievance to be represented to the officer for its redressal. No doubt, prohibitory order was issued and there is violation thereof however, the appellants marched peacefully to make their representation.
Leave granted. The first appellant is the landlady of the demised premises. Joining with her as the second appellant is her son who is employed at Jabalpur M.P. on a transferable job. She, presently, lives with him. The respondent is a tenant in the demised premises situated in a town called Katni. Setting up a plea of bona fide requirement of the premises, the landlady pleaded that it was the last desire of her husband that she live in the house in question and that in order to fulfil that desire she was emotionally bound and wanted to fulfil that wish. The companyrts below have taken the view that since the house was let out by the first appellant after the death of her husband flouting the aforesaid desire, there was numberelement of need to get back the house. On that basis, defence has been built that the personal requirement was number bona fide. The High Court has upheld the defence and that has driven the landlady to this Court. We have heard learned companynsel and have also gone through the judgment under appeal. The authenticity of the desire expressed by the husband of the first appellant has number been disputed. The landlady has been number-suited by way of punishment as to why in the first instance did she defy the wish of her husband and let out the house. Having done so, she cannot claim it back. This, in our view, is an extremely unsatisfactory way of dealing with the matter like the present one. If the landlady had in some situation transgressed that desire, that did number mean that she was ever precluded from projecting that desire at a later stage, and on rethinking, make amends. Denying her the right to live in that house would bring about a great deal of mental stress and sense of guilt on her, having disobeyed her husband and hence her need to have the house for personal requirement was established. Presently, she is stated to be 75 years of age.
This special leave petition arises from the judgment and order of the High Court of Rajasthan, Jaipur Bench made on February 29, 1996 in C.A. No . 864/94. Admittedly, the petitioner is lessee winnover in respect of the miner mineral viz. Sand Stone at Banthali, District Tonk. Since he had number submitted proper returns as per the Rajasthan Mineral Concession Rules, 1986 for short, the Rules , the Assessing Authority made best judgment assessment under Rule 38 3 of the Rules. When it was challenged, the High Court upheld the same. It has been found that the assessment and determination of the royalty due from an asessee during the assessment made by the Assessing Authority after the return in respect of that year was filed by the petitioner as required under terms and companyditions of the lease. The petitioner was asked to produce the evidence on his failure to do so, a random check was companyducted by the Assessing Authority on December 24, 1985 and it was found that one of the trucks going to Kota companytained approximately 12 metric tonnes of minerals. On the basis of the said weighment and in the absence of any slips of the actual weighment carried in the vehicle, the Assessing Authority came to the companyclusion and made the assessment in terms of the circular issued by the Government on October 17,1987. Sri Mahabir Singh, learned companynsel appearing for the petitioner, companytended that the circular cannot run companynter to Rules. In the Rules, assessment has to be made as per Rule 38 readwith Rule 18 1 b and Schedule I. The assessment of more than 100 cannot be assessed by the authority. We find numberforce in the companytention. It is true that the Schedule regulates the payment at the rates of the royalty required to be paid. The circular indicates only uniform policy in the best judsment assessment. It is provided in clause 2 a that the minerals from the mines carried for local use and the roads or the significant ways are number bitumens, the minimum weight should be assessed at 150 of similar vehicles carrying the maximum safe weight. Normally, the assessing officials can make assessment on the base of the circular for more weight under the power vested in them. As it would indicate, it does number prescribe rate of payment of the royalty, but prescribes the mode of assessment of the total quantum of the minerals carried by the licensee under the Rules but they failed to produce slips of the actual weighment from the mouth of the mines. On his failure to do so, an opportunity has been given the weighment check was made at random. On the basis thereof, he assessed 150 as indicated in the circular. The method can be adopted only when the person has avoided payment of the royalty and avoidance of companyrect and true weighment of the minerals winover and carried away by the licensee. Under these circumstances, we do number think that the circular runs companynter to the statutory rules. It is true that the penalty by way of punishment has been provided in the Rules for companytravention. The assessment is different from the prosecution for companytravention. In making the assessment, in particular when best judgment assessment is sought to be made, uniform instructions have been given in the above Circular by the Government to make the best judgment assessment so that thare may number be any difference in the procedure to be adopted by different assessing authoritias and uniform basis provided is always just, fair and reasonable so that the Assessing Authority will have a uniform and satisfied principle or procedure in that behalf.
N. Bhagwati, J. The only ground on which the decision of the High Court is challenged in this appeal is that the High Court has number examined the question of companyparative hardship of the landlord and the tenant in rejecting the writ petition of the appellant, we find that the prescribed authority did companysider the companyparative hardship of the landlord and the tenant in the light of the evidence before it and came to the companyclusion that the need of the landlord was greater than that of the tenant. The District Judge also affirmed this view in appeal and when the matter came to the High Court by way of writ petition, the High Court also pointed out in its judgment that on perusal the appellate companyrt found that the need of the respondent No. 3 was greater than that of the petitioners.
Sathasivam, J. Criminal Appeal No. 1994 of 2009 This appeal is filed against the final judgment and order dated 29.01.2008 passed by the Gauhati High Court, Agartala Bench in Criminal Appeal No. 90 of 2005 whereby the Division Bench of the High Court, on an appeal filed by the State of Tripura-respondent herein, reversed the order of acquittal of the appellants herein dated 19.04.2005 passed by the Additional Sessions Judge, West Tripura, Khowai in Case S.T. No. 54 WT K /2002 and companyvicted and sentenced them to imprisonment for life under Section 302 read with Section 34 of Indian Penal Code, 1860 hereinafter referred to as IPC with a fine of Rs.3000/- each, in default, to suffer a further term of simple imprisonment for three months. Criminal Appeal No.1719 of 2011 SLP Crl. 6728/2011 Crl. M.P.17812 of 2008 The companyvicted accused, Tapan Das A-5 and Gautam Das A-11 , against the same order of the High Court dated 29.01.2008 companyfirming their companyviction under Section 302 IPC and imposing life sentence with a fine of Rs.3,000/- each, in default, to suffer simple imprisonment for three months filed this appeal by way of special leave petition with a delay of 62 days. Delay companydoned. Leave granted. Brief facts On 31.08.2000, a meeting was companyvened in West Santinagar S.B. School at the invitation of Durgapur Local Committee of Democratic Youth Federation of India in short DYFI . After the meeting was over, Tapan Chakraborty, since deceased , a leader of DYFI accompanied by Babul Dey PW-1, Ganesh Kol PW-2, Nilai Das PW-3, Ramakanta Paul PW-10, Benu Ranjan Dhupi PW-11 and Prabir Biswas PW-12 reached Santinagar Ferry Ghat to cross the river on way to home, on the other side of the river. At about 6.30 p.m., when Tapan Chakbraborty and his companypanions disembarked from the boat, Ratan Sukladas A-12 dragged him down and when he fell on the ground, Tapan Das A-5 and Gautam Das A-11 shot at him causing severe bullet injuries. After finishing their job, the assailants fled away. The victim was immediately taken to the local hospital but as he was sinking, he was referred to G.B. Hospital at Agartala for specialized treatment. The victim died on the way to hospital. On the very same day, at about 0835 p.m, one Babul Dey PW-1 lodged a First Information Report in short the FIR being FIR No. 85/2000 with the Police Station, Kalyanpur, West Tripura, Tripura. On the basis of the FIR, a case was registered under Sections 148, 149, 326 and 307 of the IPC read with Section 27 of the Arms Act, 1959 against eight persons, viz., Somesh Das A-7 , Mrinal Das A-4 , Tapan Das A-5 , Ashim Bhattacharjee A-2 , Pradip Das A-9 , Shailendra Das A-3 , Subal Deb A-10 and Gautam Das A-11 and others. After the death of Tapan Chakraborty, Section 302 IPC was also added against the accused persons. During the investigation, the Investigating Officer arrested 13 accused persons and on companypletion, filed a report under Section 173 of the Code of Criminal Procedure, 1973 hereinafter referred to as the Code under Sections 148, 149, 326 and 302 IPC and Section 27 of the Arms Act against Somesh Das A-7 , Mrinal Das A-4 , Tapan Das A-5 , Ashim Bhattacharjee A-2 , Pradip Das A-9 , Shailendra Das A-3 , Subal Deb A-10 , Gautam Das A-11 , Anil Das A-1 , Bikash Das A-6 , Uttam Shil A-8 , Ratan Sukladas A-12 and Radha Kant Das A-13 . Vide order dated 12.08.2002, the Additional Sessions Judge, Khowai, West Tripura, framed charges under Sections 148, 149 and 302 IPC against all the 13 accused persons. Thereafter on 20.11.2002, on the request of the Special Public Prosecutor to alter the charges, the Additional Sessions Judge modified the charges under Section 302 read with Section 34/120B IPC and Section 27 of the Arms Act. During the recording of evidence, on 16.06.2004, accused Ratan Sukladas A-12 filed an application praying for grant of pardon and to treat him as an approver which was granted by the trial Court. After examining all the witnesses, the trial Court, vide judgment dated 19.04.2005, acquitted Anil Das A-1 , Ashim Bhattacharjee A-2 , Shailendra Das A-3 , Mrinal Das A-4 , Bikash Das A-6 , Somesh Das A-7 , Uttam Shil A-8 , Pradip Das A-9 , Subal Deb A-10 and Radha Kant Das A-13 of the charges leveled against them and companyvicted Tapan Das A-5 and Gautam Das A-11 for the offences punishable under Section 302 of the IPC and sentenced them to suffer rigorous imprisonment for life and to pay a fine of Rs.3,000/- each, in default, to further undergo simple imprisonment for three months. Aggrieved by the judgment of the trial Court, Tapan Das A-5 and Gautam Das A-11 filed an appeal being Criminal Appeal No. 47 of 2005 in the Gauhati High Court, Agartala Bench. The State of Tripura also filed Criminal Appeal No. 90 of 2005 against the order of acquittal of ten accused persons by the trial Court. The High Court, by impugned companymon judgment dated 29.01.2008, dismissed the appeal filed by the companyvicted accused persons A-5 and A-11 and partly allowed the appeal filed by the State by setting aside the acquittal of four persons, namely, Mrinal Das A-4 , Pradip Das A-9 , Somesh Das A-7 and Anil Das A-1 and companyvicted them under Sections 302/34 IPC and sentenced them with imprisonment for life with a fine of Rs.3000/- each, in default, to suffer a further term of simple imprisonment for three months. Aggrieved by the companymon impugned judgment dated 29.01.2008 passed by the Division Bench of the High Court, all the companyvicted accused persons filed these appeals before this Court by way of special leave. Vide this Courts order dated 16.09.2009, the name of Pradip Das, appellant No.2 herein and A-9 before the trial Court has been deleted from the array of the parties as he is number traceable. Heard Mr. Sidharth Luthra, learned senior companynsel for the appellants and Mr. Anuj Prakash, learned companynsel for respondent-State. Legal position with regard to interference in Appeal against Acquittal Since the High Court has interfered in the case of acquittal, let us companysider the general principles enunciated by this Court with regard to the same. In State of Goa vs. Sanjay Thakran Anr. 2007 3 SCC 755, this Court while companysidering the power of appellate companyrt to interfere in an appeal against acquittal, after adverting to various earlier decisions on this point has companycluded as under- 16while exercising the powers in appeal against the order of acquittal the companyrt of appeal would number ordinarily interfere with the order of acquittal unless the approach of the lower companyrt is vitiated by some manifest illegality and the companyclusion arrived at would number be arrived at by any reasonable person and, therefore, the decision is to be characterised as perverse. Merely because two views are possible, the companyrt of appeal would number take the view which would upset the judgment delivered by the companyrt below. However, the appellate companyrt has a power to review the evidence if it is of the view that the view arrived at by the companyrt below is perverse and the companyrt has companymitted a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate companyrt, in such circumstances, to reappreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is companynected with companymission of the crime he is charged with. In Chandrappa and Others vs. State of Karnataka 2007 4 SCC 415, while companysidering the similar issue, namely, appeal against acquittal and power of the appellate companyrt to reappreciate, review or reconsider evidence and interfere with the order of acquittal, this Court, reiterated the principles laid down in the above decisions and further held that- 42The following general principles regarding powers of the appellate companyrt while dealing with an appeal against an order of acquittal emerge An appellate companyrt has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. The Code of Criminal Procedure, 1973 puts numberlimitation, restriction or companydition on exercise of such power and an appellate companyrt on the evidence before it may reach its own companyclusion, both on questions of fact and of law. Various expressions, such as, substantial and companypelling reasons, good and sufficient grounds, very strong circumstances, distorted companyclusions, glaring mistakes, etc. are number intended to curtail extensive powers of an appellate companyrt in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasise the reluctance of an appellate companyrt to interfere with acquittal than to curtail the power of the companyrt to review the evidence and to companye to its own companyclusion. An appellate companyrt, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a companypetent companyrt of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial companyrt. If two reasonable companyclusions are possible on the basis of the evidence on record, the appellate companyrt should number disturb the finding of acquittal recorded by the trial companyrt. The same principles have been reiterated in several recent decisions of this Court vide State of Uttar Pradesh vs. Jagram and Others, 2009 17 SCC 405, Sidhartha Vashisht alias Manu Sharma vs. State NCT of Delhi 2010 6 SCC 1, Babu vs. State of Kerala, 2010 9 SCC 189, Ganpat vs. State of Haryana and Others, 2010 12 SCC 59, Sunil Kumar Sambhudayal Gupta Dr. and Others vs. State of Maharashtra, 2010 13 SCC 657, State of Uttar Pradesh vs. Naresh and Others, 2011 4 SCC 324, State of Madhya Pradesh vs. Ramesh and Another, 2011 4 SCC 786. It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is number warranted. However, if the appeal is heard by an appellate companyrt, being the final companyrt of fact, is fully companypetent to reappreciate, reconsider and review the evidence and take its own decision. In other words, law does number prescribe any limitation, restriction or companydition on exercise of such power and the appellate companyrt is free to arrive at its own companyclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the companypetent companyrt. If two reasonable views are possible on the basis of the evidence on record, the appellate companyrt should number disturb the findings of acquittal. There is numberlimitation on the part of the appellate companyrt to review the evidence upon which the order of acquittal is found and to companye to its own companyclusion. The appellate companyrt can also review the companyclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate companyrt to marshal the entire evidence on record and only by giving companyent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are companypelling and substantial reasons for doing so. If the order is clearly unreasonable, it is a companypelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration report of ballistic experts etc., the appellate companyrt is companypetent to reverse the decision of the trial Court depending on the materials placed. With the above principles, let us analyse the reasonings and ultimate companyclusion of the High Court in interfering with the order of acquittal and also the companyfirmation of sentence on the two companyvicted appellants. Evidentiary value of Approver Accomplice Before companysidering the impugned judgment on merits, inasmuch as the High Court heavily relied on the evidence of the approver, let us find out the legal position about the evidentiary value of approver and its acceptability with or without companyroboration. Though a companyviction is number illegal merely because it proceeds on the uncorroborated testimony of an approver, yet the universal practice is number to companyvict upon the testimony of an accomplice unless it is companyroborated in material particulars. The evidence of an approver does number differ from the evidence of any other witness save in one particular aspect, namely, that the evidence of an accomplice is regarded ab initio as open to grave suspicion. If the suspicion which attaches to the evidence of an accomplice be number removed, that evidence should number be acted upon unless companyroborated in some material particulars but if the suspicion attaching to the accomplices evidence be removed, then that evidence may be acted upon even though uncorroborated, and the guilt of the accused may be established upon the evidence alone. In order to understand the companyrect meaning and application of this term, it is desirable to mention Section 133 of the Indian Evidence Act, 1872 along with Illustration b to Section 114 which read as under- Accomplice .- An accomplice shall be a companypetent witness against an accused person and a companyviction is number illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Illustration b to Section 114 The Court may presume that an accomplice is unworthy of credit, unless he is companyroborated in material particulars. Dealing with the scope and ambit of the above-noted two provisions, this Court, in Bhiva Doulu Patil v. State of Maharahshtra, AIR 1963 SC 599 1963 3 SCR 830 has held that both the sections are part of one subject and have to be companysidered together. It has further been held- The companybined effect of Sections 133 and Illustration b to Section 114, may be stated as follows According to the former, which is a Rule of law, an accomplice is companypetent to give evidence and according to the latter, which is a Rule of practice it is almost always unsafe to companyvict upon his testimony alone. Therefore, though the companyviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the companyrts will, as a matter of practice, number accept the evidence of such a witness without companyroboration in material particulars. The very same principle was reiterated in Mohd. Husain Umar Kochra etc. v. K. S. Dalipsinghji and Another etc., 1969 3 SCC 429 and it was held -- The companybined effect of Sections 133 and 114, Illustration b is that though a companyviction based upon accomplice evidence is legal, the Court will number accept such evidence unless it is companyroborated in material particulars. The companyroboration must companynect the accused with the crime. It may be direct or circumstantial. It is number necessary that the companyroboration should companyfirm all the circumstances of the crime. It is sufficient if the companyroboration is in material particulars. The companyroboration must be from an independent source. One accomplice cannot companyroborate another. While companysidering the validity of approvers testimony and tests of credibility, this Court, in Sarwan Singh S o Rattan Singh vs. State of Punjab AIR 1957 SC 637 has held as under- 7An accomplice is undoubtedly a companypetent witness under the Indian Evidence Act. There can be, however, numberdoubt that the very fact that he has participated in the companymission of the offence introduces a serious stain in his evidence and Courts are naturally reluctant to act on such tainted evidence unless it is companyroborated in material particulars by other independent evidence. It would number be right to expect that such independent companyroboration should companyer the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would number be safe to act upon such evidence merely because it is companyroborated in minor particulars or incidental details because, in such a case, companyroboration does number afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true. But it must never be forgotten that before the companyrt reaches the stage of companysidering the question of companyroboration and its adequacy or otherwise, the first initial and essential question to companysider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and numberquestion as to whether his evidence is companyroborated or number falls to be companysidered. In other words, the appreciation of an approvers evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is companymon to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approvers evidence must receive sufficient companyroboration. This test is special to the cases of weak or tainted evidence like that of the approver 8Every person who is a companypetent witness is number a reliable witness and the test of reliability has to be satisfied by an approver all the more before the question of companyroboration of his evidence is companysidered by criminal companyrts Further, in Ravinder Singh v. State of Haryana, 1975 3 SCC 742, this Court, while companysidering the approvers testimony within the meaning of Section 133 of the Indian Evidence Act, 1872 has observed -- An Approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in Court. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. Secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is companycerned, must implicate him in such a manner as to give rise to a companyclusion of guilt beyond reasonable doubt. In a rare case, taking into companysideration all the factors, circumstances and situation governing a particular case, companyviction based on the uncorroborated evidence of an approver companyfidently held to be true and reliable by the Court may be permissible. Ordinarily, however, an approvers statement has to be companyroborated in material particulars bridging closely the distance between the crime and the criminal. Certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a companyviction may be based. In Abdul Sattar v. Union Territory, Chandigarh, 1985 Supp SCC 599 where the prosecution had sought to prove its case by relying upon the evidence of the approver, it was held that the approver is a companypetent witness but the position in law is fairly well settled that on the uncorroborated testimony of the approver, it would be risky to base the companyviction, particularly, in respect of a serious charge like murder. Once the evidence of the approver is found to be number reliable, the worth of his evidence is lost and such evidence, even by seeking companyroboration, cannot be made the foundation of a companyviction. The above said ratio has been reaffirmed and reiterated by this Court in Suresh Chandra Bahri v. State of Bihar 1995 Supp 1 SCC 80 Ramprasad v. State of Maharashtra, AIR 1999 SC 1969 1999 Cri LJ 2889 and Narayan Chetanram Chaudhary v. State of Maharashtra, 2000 8 SCC 457. In Narayan Chetanram Chaudhary supra , it was further held that for companyroborative evidence, the companyrt must look at the broad spectrum of the approvers version and then find out whether there is other evidence to companyroborate and lend assurance to that version. The nature and extent of such companyroboration may depend upon the facts of different cases. Corroboration need number be in the form of ocular testimony of witnesses and may even be in the form of circumstantial evidence. Corroborative evidence must be independent and number vague or unreliable. Similar question again came up for companysideration before this Court in K. Hashim v State of Tamil Nadu, 2005 1 SCC 237 2005 Cri LJ 143 and Sitaram Sao Mungeri v State of Jharkhand, 2007 12 SCC 630 wherein this Court has held that Section 133 of the Evidence Act expressly provides that an accomplice is a companypetent witness and the companyviction is number illegal merely because it proceeds on an uncorroborated testimony of an accomplice. In other words, this section renders admissible such uncorroborated testimony. But this Section has to be read along with Section 114, illustration b . The latter section empowers the Court to presume the existence of certain facts and the illustration elucidates what the Court may presume and make clear by means of examples as to what facts the Court shall have regard in companysidering whether or number maxims illustrated apply to a given case. Illustration b in express terms says that accomplice is unworthy of credit unless he is companyroborated in material particulars. The Statute permits the companyviction of an accused on the basis of uncorroborated testimony of an accomplice but the rule of prudence embodied in illustration b to Section 114 of the Evidence Act strikes a numbere of warning cautioning the Court that an accomplice does number generally deserve to be believed unless companyroborated in material particulars. In other words, the rule is that the necessity of companyroboration is a matter of prudence except when it is safe to dispense with such companyroboration must be clearly present in the mind of the Judge In Sheshanna Bhumanna Yadav vs. State of Maharashtra 1970 2 SCC 122, the test of reliability of approvers evidence and rule as to companyroboration was discussed. The following discussion and companyclusion are relevant which read as under- The law with regard to appreciation of approvers evidence is based on the effect of Sections 133 and 114, illustration b of the Evidence Act, namely, that an accomplice is companypetent to depose but as a rule of caution it will be unsafe to companyvict upon his testimony alone. The warning of the danger of companyvicting on uncorroborated evidence is therefore given when the evidence is that of an accomplice. The primary meaning of accomplice is any party to the crime charged and some one who aids and abets the companymission of crime. The nature of companyroboration is that it is companyfirmatory evidence and it may companysist of the evidence of second witness or of circumstances like the companyduct of the person against whom it is required. Corroboration must companynect or tend to companynect the accused with the crime. When it is said that the companyroborative evidence must implicate the accused in material particulars it means that it is number enough that a piece of evidence tends to companyfirm the truth of a part of the testimony to be companyroborated. That evidence must companyfirm that part of the testimony which suggests that the crime was companymitted by the accused. If a witness says that the accused and he stole the sheep and he put the skins in a certain place, the discovery of the skins in that place would number companyroborate the evidence of the witness as against the accused. But if the skins were found in the accuseds house, this would companyroborate because it would tend to companyfirm the statement that the accused had some hand in the theft. This Court stated the law of companyroboration of accomplice evidence in several decisions. One of the earlier decision is Sarwan Singh v. State of Punjab, 1957 SCR 953 and the recent decision is Lachi Ram v. State of Punjab, 1967 1 SCR In Sarwan Singh case this Court laid down that before the companyrt would look into the companyroborative evidence it was necessary to find out whether the approver or accomplice was a reliable witness. This Court in Lachi Ram case said that the first test of reliability of approver and accomplice evidence was for the companyrt to be satisfied that there was numberhing inherently impossible in evidence. After that companyclusion is reached as to reliability companyroboration is required. The rule as to companyroboration is based on the reasoning that there must be sufficient companyroborative evidence in material particulars to companynect the accused with the crime. In Dagdu and Ors. vs. State of Maharashtra, 1977 3 SCC 68, the scope of Section 133 and Illustration b to Section 114 of the Indian Evidence Act, 1872 and nature of rule of companyroboration of accomplice evidence was explained by a three-Judge Bench of this Court in the following manner In Bhiiboni Sahu v. King the Privy Council after numbericing Section 133 and Illustration b to Section 114 of the Evidence Act observed that whilst it is number illegal to act on the uncorroborated evidence of an accomplice, it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act on the evidence of an accomplice unless it is companyroborated in material respects so as to implicate the accused and further that the evidence of one accomplice cannot be used to companyroborate the evidence of another accomplice. The rule of prudence was based on the interpretation of the phrase companyroborated in material particulars in Illustration b . Delivering the judgment of the Judicial Committee, Sir John Beaumont observed that the danger of acting on accomplice evidence is number merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution the real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue. He may implicate ten people in an offence and the story may be true in all its details as to eight of them but untrue as to the other two whose names may have been introduced because they are enemies of the approver. The only real safeguard therefore against the risk of companydemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates each accused. This Court has in a series of cases expressed the same view as regards accomplice evidence. See State of Bihar v. Basawan Singh Hari Charan Kurmi v. State of Bihar Haroon Haji Abdulla v. State of Maharashtra and Ravinder Singh v. State of Haryana. In Haricharan, Gajendragadkar, C.J., speaking for a five-Judge Bench observed that the testimony of an accomplice is evidence under Section 3 of the Evidence Act and has to be dealt with as such. The evidence is of a tainted character and as such is very weak but, nevertheless, it is evidence and may be acted upon, subject to the requirement which has number become virtually a part of the law that it is companyroborated in material particulars. In Rampal Pithwa Rahidas and Others vs. State of Maharashtra, 1994 Supp 2 SCC 73, while companysidering the very same provisions, this Court has held that approvers evidence must be companyroborated in material particulars by direct or circumstantial evidence. This Court further held that while companysidering credibility of the approver and weight to be attached to his statement, the statement made in bail application of approver can be looked into by the companyrt. It is clear that once the evidence of the approver is held to be trustworthy, it must be shown that the story given by him so far as an accused is companycerned, must implicate him in such manner as to give rise to a companyclusion of guilt beyond reasonable doubt. Insistence upon companyroboration is based on the rule of caution and is number merely a rule of law. Corroboration need number be in the form of ocular testimony of witnesses and may even be in the form of circumstantial evidence. Keeping the legal principles enunciated by this Court in respect of interference by the appellate companyrt in case of acquittal by the trial Court and evidentiary value of approver accomplice, let us discuss the oral and documentary evidence led in by the prosecution and the defence. Approvers evidence PW-6 One Ratan Sukladas S o Prafullya Sukladas, originally charged as accused No. 12, after tendering pardon was examined as PW-6 on the side of the prosecution. Mr. Sidharth Luthra, learned senior companynsel for the appellants submitted that inasmuch as PW-6 waited for four years to change his mind and sought pardon for his action, his statement is number reliable and the companyrts below ought to have rejected his testimony. In order to appreciate the said companytention, it is useful to refer the relevant provisions of the Code relating to tender of pardon and power to direct tender of pardon to approver accomplice. Sections 306 and 307 of the Code read as under Tender of pardon to accomplice.-- 1 With a view to obtaining the evidence of any person supposed to have been directly or indirectly companycerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any, stage of the inquiry or trial, may tender a pardon to such person on companydition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person companycerned, whether as principal or abettor, in the companymission thereof. XXXXX Every Magistrate who tenders a pardon under subsection 1 shall record- His reasons for so doing Whether the tender was or was number accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a companyy of such record free of companyt. Every person accepting a tender of pardon made under sub-section 1 - Shall be examined as a witness in the companyrt of the Magistrate taking companynizance of the offence and in the subsequent trial, if any Shall, unless he is already on bail, be detained in custody until the termination of the trial. Where a person has accepted a tender of pardon made under sub-section 1 and has, been examined under subsection 4 , the Magistrate taking companynizance of the offence shall, without making any further inquiry in the case. Commit it for trial- To the Court of Session if the offence is triable exclusively by that companyrt or if the Magistrate taking companynizance is the Chief Judicial Magistrate To a companyrt of Special Judge appointed under the Criminal Law Amendment Act 1952 46 of 1952 , if the offence is triable exclusively by that companyrt In any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself. Power to direct tender of pardon.--At any time after companymitment of a case but before Judgment is passed, the companyrt to which the companymitment is made may, with a view, to obtaining at the trial the evidence of any person supposed to have been directly or indirectly companycerned in, or privy to, any such offence, tender a pardon on the same companydition to such person. The principle of tendering pardon to an accomplice is to unravel the truth in a grave offence so that guilt of the other accused persons companycerned in companymission of crime companyld be brought home. The object of Section 306 of the Code of Criminal Procedure, 1973 in short the Code is to allow pardon in cases where heinous offence is alleged to have been companymitted by several persons so that with the aid of the evidence of the person granted pardon, the offence may be brought home to the rest. This Section empowers the Chief Judicial Magistrate or a Metropolitan Magistrate to tender a pardon to a person supposed to have been directly or indirectly companycerned in or privy to an offence to which the section applies, at any stage of the investigation or inquiry or trial of the offence on companydition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence. Under Section 306 of the Code, the Magistrate of the First Class is also empowered to tender pardon to an accomplice at any stage of inquiry or trial but number at the stage of investigation on companydition of his making full and true disclosure of the entire circumstances within his knowledge relative to the crime. Section 307 of the Code vests the Court to which the companymitment is made, with power to tender a pardon to an accomplice. An accomplice who has been granted pardon under Section 306 or 307 of the Code gets protection from prosecution. When he is called as a witness for the prosecution, he must companyply with the companydition of making a full and true disclosure of the whole of the circumstances within his knowledge companycerning the offence and to every other person companycerned, whether as principal or abettor, in the companymission thereof and if he suppresses anything material and essential within his knowledge companycerning the companymission of crime or fails or refuses to companyply with the companydition on which the tender was made and the Public Prosecutor gives his certificate under Section 308 of the Code to that effect, the protection given to him can be lifted. Section 306 4 makes it clear that the person accepting a tender of pardon should be examined as a witness first in the Court of Magistrate and subsequently in the trial Court. Once an accused is granted pardon under Section 306, he ceases to be an accused and becomes witness for the prosecution. Regarding the delay in tendering pardon, it is number in dispute that the trial companymenced on 11.03.2003 with the examination of prosecution witnesses. The approver - PW-6, submitted his application to become an approver on 16.06.2004 well before the judgment which was delivered on 19.04.2005. We have already quoted Section 307 of the Code which denotes that pardon can be tendered at any time after companymitment of a case but before the judgment is pronounced. In view of the same, inasmuch as the approver submitted his application well before the judgment was delivered, i.e., on 19.04.2005, the companytention regarding delay on the part of PW-6 is liable to be rejected. It is also number in dispute that initially, PW-6 was one of the 13 accused persons charged with the offence of murder and in the array of accused, he was shown as A-12 . Accordingly, the prosecution is justified in taking the stand that the approver PW-6 was directly or indirectly companycerned in or privy to the offence of murder. In view of the same and in the light of the language used in Section 307 of the Code, the Courts below are right in entertaining the evidence of PW-6 as approver. As regards the companydition prescribed in Section 306 of the Code that the approver must make a full and true disclosure of the whole of the circumstances, let us analyze his statement whether he companyplied with the above said requirement. In his examination-in-chief, he had clearly stated that he was one of the accused in the case and during investigation he was arrested by the police. On companypletion of investigation, the investigating agency submitted charge-sheet against him along with others for trial. In categorical terms, he asserted that he was aware of the whole incident which led to the killing of Tapan Chakraborty and also asserted that he was also companynected with and involved in his murder along with others. He highlighted that on 21.08.2000, there was a public meeting organized by CPI M party at Santinagar. The deceased, Tapan Chakraborty and other party leaders attended the said meeting. In the year 2000, there was a student agitation at Ratia Ferry Ghat against kidnapping of three students and one labourer by the extremists. On this issue, the students had blocked the road. The deceased, Tapan Chakraborty, being the local leader of the CPI M party, resisted the students in making agitation and blocking up the road. For that matter, PW-6 along with other accused developed a grudge in their minds to give Tapan Chakraborty a good lesson. On 30.08.2000, at about 7/8 p.m., a meeting was companyvened in the house of the accused Tapan Das A-5 . All the accused persons including PW-6 were present in the said meeting wherein it was decided to eliminate Tapan Chakraborty as he stood against the students movement. He further highlighted that two days back, prior to holding of meeting on 30.08.2000, they saw posters hanging on the walls that a meeting of CPI M would be held at Santinagar on 31.08.2000 at 300 p.m where Ramakanta Paul PW-10 and Tapan Chakraborty would remain present. To materialize the plan chalked out in the meeting held on 30.08.2000, 13 persons including PW-6 had spread over in different groups in different places to eliminate Tapan Chakraborty. Uttam Shil A-8 was deputed on the other side of the river to let them informed when Tapan Chakraborty would be proceeding towards Bagan Bazar on companyclusion of meeting. Radha Kant Das A-13 , Ashim Bhattacharjee A-2 , Bikash Das A-6 , Mrinal Das A-4 , Shailendra Das A-3 and PW-6 were waiting at Bagan Bazar. Another group of persons companysisting of Tapan Das A-5 , Gautam Das A-11 , Somesh Das A-7 , Pradip Das A-9 were waiting in the house of Anil Das A-1 . All were keeping watch and observing the situation till 4 p.m. Around 6 p.m., they were informed by Anil Das A-1 that the meeting at Santinagar had been over and the participants of the said meeting had started for the Ferry Ghat to cross the river. The persons assembled in the house of Anil Das A-1 started for Ferry Ghat. On seeing them, another group including PW-6 waiting at Bagan Bazar also followed them. All the aforesaid 13 persons reached Ferry Ghat around 6.15 p.m. After reaching there, they found the boat carrying Tapan Chakraborty, Ramakanta Paul PW-10 and 9/10 other persons in the middle of the river. As soon as Tapan Chakraborty and others got down from the boat, one of the accused shouted to attack him. While Tapan Chakraborty was washing his feet in the river water, suddenly, PW-6 caught hold of him and dragged him down on the side of the river. He fell on the ground with his back side up. At that point of time, Tapan Das A-5 and Gautam Das A-11 fired two rounds of bullet from their pistols on Tapan Chakraborty. Simultaneously, a bomb had exploded on the other side of the river. The witnesses who were waiting in the passenger shed to escort the victim rushed to the place of occurrence. On seeing them, all the assailants fled towards south-east direction. PW-6 crossed the river along with others taking the route of Ratia to companyceal themselves. They were advised by Tapan Das A-5 and Gautam Das A-11 to keep themselves companyfined in their respective houses. On the following day, PW-6 came to know from local news broadcasted by the All India Radio that Tapan Chakraborty died following the gun shots. Regarding his change of mind, PW-6 explained that he became perplexed by the death of Tapan Chakraborty. He further explained that out of repentance, he once made an attempt to companymit suicide by hanging himself at his residence in the middle of the month of March, 2004. Thereafter, he decided to divulge the whole incident leading to the killing of Tapan Chakraborty before the Court. He also asserted that he had decided to disclose the whole incident voluntarily on the advise of the members of his family. He identified all the accused persons in the Court by name and face. In cross-examination, PW-6 deposed that the police arrested him in companynection with this case one day after the occurrence. He was in police custody for eight days and, thereafter, on expiry of police remand, he was granted bail. He asserted that during his stay in police custody, he was number interrogated by police. About his change of mind, in crossexamination, he explained that since 31.08.2000 till mid of March, 2004, he had been running amok. During the aforesaid intervening period, he did number meet any people to express his mental agony. He also asserted that he lost his mental peace as the murder of Tapan Chakraborty was taken place before his own eyes and he was also directly involved in his killing. He denied that he deposed falsely. He also denied that he was provoked by the CPI M party that if he turns to be an approver, he would be given a suitable job. A reading of the entire evidence of PW-6 makes it clear that the reason for change of his mind for tendering pardon is acceptable and in tune with the companyditions prescribed in Sections 306 and 307 of the Code. The trial Judge, who had the liberty of numbering his appearance and recorded his evidence, believed his version which was rightly accepted by the High Court. On going through his entire evidence, the companyditions stated in Sections 306 and 307 of the Code are fully companyplied with and we accept his statement and companycur with the decision arrived at by the companyrts below. Corroborative evidence with regard to the statement of PW-6 In the FIR, the following persons have been named as accused relating to the occurrence, namely, Anil Das A-1 , Ashim Bhattacharjee A-2 , Shailendra Das A-3 , Mrinal Das A-4 , Tapan Das A-5 , Bikash Das A-6 , Somesh Das A-7 , Uttam Shil A-8 , Pradip Das A-9 , Subal Deb A-10 , Gautam Das A-11 , Ratan Sukladas A-12 turned approver and Radha Kant Das A-13 . Ratan Sukladas who turned as an approver and was examined as PW-6, named all the 13 accused including himself . He mentioned the following persons as accused, namely, Anil Das A-1 , Ashim Bhattacharjee A-2 , Shailendra Das A-3 , Mrinal Das A-4 , Tapan Das A-5 , Bikash Das A- 6 , Somesh Das A-7 , Uttam Shil A-8 , Pradip Das A-9 , Subal Deb A-10 , Gautam Das A-11 , and Radha Kant Das A-13 . Among the 13 accused, we are companycerned only with Tapan Das A-5 and Gautam Das A-11 in these appeals, who were companyvicted by the trial Court and their companyviction was companyfirmed by the High Court and Somesh Das A-7 , Mrinal Das A-4 and Anil Das A-1 , who were acquitted by the trial Court and companyvicted by the High Court. Except the abovementioned 5 accused persons, we are number companycerned with others. Tapan Das A-5 was identified by Babul Dey PW-1 , Nehar Ranjan Deb PW-4 , Bidhu Urang PW-7 and Pranab Chakraborty PW-8 . Somesh Das A-7 was identified by Babul Dey PW-1 and Bidhu Urang PW-7 . Mrinal Das A-4 was identified by Babul Dey PW-1 and Nehar Ranjan Deb PW-4 . Anil Das A-1 was identified by Nehar Ranjan Deb PW-4 and Pranab Chakraborty PW-8 . Gautam Das A-11 was identified by Babul Dey PW-1 , Nehar Ranjan Deb PW-4 , Bidhu Urang PW-7 and Pranab Chakraborty PW-8 . Though Pradip Das A-9 was identified by Babul Dey PW-1 , Nehar Ranjan Deb PW-4 , Bidhu Urang PW-7 and Pranab Chakraborty PW-8 , inasmuch as his name has been deleted from the array of the appellants vide this Courts order dated 16.09.2009, there is numberneed to companysider his case in these appeals. Now let us analyse the witnesses relied on by the prosecution. Eye-witnesses in the boat Babul Dey - PW-1 identified Somesh Das A-7 , Mrinal Das A-4 , Tapan Das A-5 , Gautam Das A-11 , Ashim Bhattacharjee A-2 , Subal Deb A-10 , Shailendra Das A-3 and Pradip Das A-9 . In his evidence, he deposed that Tapan Chakraborty, the deceased, was known to him. He admitted that he belongs to DYFI, which is the youth wing of CPI M party. The deceased was the Vice-Chairman of Kalyanpur Block and was also the Secretary of DYFI. He explained that a meeting was held at Durgapur on 31.08.2000 which was started at 3 p.m. and companypleted at 5 p.m. He along with Tapan Chakraborty attended the said meeting. After companypletion of the meeting, all the participants including him left for Kalyanpur by crossing the river by a boat. At around 0600 p.m., after crossing the river, when Tapan Chakraborty was washing his feet in the river water, some miscreants pushed him and they were also using abusive language towards him. They opened gun fire in the air. On seeing this, he along with others fled to the retiring shed nearby the river where some members of the party were waiting for them. He also numbericed that the assailants were running towards numberth and they were 15/16 in number. When he along with others returned to the place of occurrence, they found Tapan Chakraborty lying on the ground in injured companydition. They took Tapan Chakraborty to Kalyanpur Hospital in a mobile police van. On the advise of the doctors, Tapan Chakraborty was shifted to G.B. Hospital, Agartala. He admitted that he did number go to G.B. Hospital. However, he came to learn that on the way to G.B. Hospital, Tapan Chakraborty succumbed to his injuries. He along with Ramakanta Paul PW-10 and others then went to their Party office and discussed the matter and decided to lodge a companyplaint to the police. Accordingly, their Secretary, Sunil Deb scribed an ejahar as per the version of PW-1 and after writing the same, he read over the same to him and after satisfying that it was written as per his version, he put his signature therein. In the witness box, he identified his signature which was marked as Ex.1. He also informed the Court that the accused persons were the supporters of Congress I party. He also clarified that two of the miscreants were supporters of Amara Bengali Party. Babul Dey was examined as PW-1. In his evidence, he narrated the entire events companymencing from companyspiracy ending with gunshot on the deceased - Tapan Chakraborty. Though it was pointed out that he had number stated all the abovementioned details in the companyplaint, on going through the same, we are satisfied that all relevant details have been stated in the companyplaint and the omission to mention is only negligible. Likewise, it was companymended by the companynsel for the appellants that though there were some police personnel in the police mobile van, PW-1 did number disclose the incident to any of those police officials traveling in the said vehicle. For this, PW-1 has explained that they took the injured to Kalyanpur Hospital first and later on, in association with his party supporters, he lodged a companyplaint. In such a situation, it is but natural that the person who received gunshot injury has to be admitted in the hospital and only thereafter anybody companyld think of the next step including making a companyplaint to the police. We are satisfied that there is numberinfirmity in the companyduct of PW-1 in number companyveying anything to the police personnel in the mobile van and even his interaction with his party companyleagues. PW-1 has also admitted that Tapan Chakraborty was the Secretary of DYFI, because of which it was argued that due to political rivalry, he had falsely implicated the accused persons. In view of the above discussion, we are number impressed upon such objection and reject the same. The other eye-witness is Nitai Das PW-3 , who was in the boat. It was he, who identified Ratan Sukladas A-12 , Radha Kant Das A-13 and Bikash Das A-6 as the members of attacking group. He also admitted that the deceased Tapan Chakraborty was known to him. Like PW-1, he also explained that the meeting was held at Santinagar between 300 p.m. to 545 p.m. He along with Tapan Chakraborty and others reached Santinagar through Ferry Ghat. They crossed the river by boat and got down on the other side of the river and in that process, according to him, he heard sound of gunshot and simultaneously a bomb was hurled from the other side of the river. Due to fear, they fled at a distance of 10 cubics from the place of occurrence and some people who were waiting in the passenger shed rushed to the spot. When he along with others returned to the place of occurrence, he found Tapan Chakbraborty lying on the ground in injured companydition. Apart from three persons mentioned above, he also stated that about 10/12 persons attacked Tapan Chakraborty. The miscreants, after companymission of offence, fled towards south-east direction. Thereafter, they took him to Kalyanpur Hospital in a police van. He was examined by the I.O. on the same night, that is, at about 9.00 p.m., to whom also he disclosed the names of the above said accused persons. There is numbercontradiction with regard to the identification of the said three assailants. Though companynsel for the appellants has pointed out certain omissions, on going through the same, we are satisfied that these omissions were number at all material and the High Court has rightly relied on and accepted his evidence. Apart from eye-witnesses PW-1 and PW-3, another eyewitness Benu Ranjan Dhupi PW-11 was also present in the boat. According to him, on the fateful day, that is, on 31.08.2000 around 3.00 p.m., he met Tapan Chakraborty at Bagan Bazar who requested him to go to Santinagar well ahead in companynection with peace meeting to be held there and to supervise and see that everything was in order. According to him, as directed by Tapan Chakraborty, he reached Santinagar at 300 p.m. He mentioned that Uttam Shil A-8 enquired from him whether Tapan Chakraborty would attend the meeting. After companycluding the meeting, Tapan Chakraborty and others including PW-11 got into the boat to cross the river. While he was getting down from the boat, he heard hue and cry and some one saying attack them attack them. He also heard a sound of explosion of bomb on the other side of the river and the sound of two rounds of fire. Thereafter, he fled from the spot due to fear. According to him, after 10 days of the aforesaid occurrence, he met Ramakanta Paul PW-10 at Bagan Bazar. His evidence shows that he was also in the boat, however, he only mentioned that accused Uttam Shil A-8 was found near the venue of the meeting and he narrated about the enquiry made by him whether Tapan Chakraborty would attend the meeting. Even, according to him, the said Uttam Shil A-8 had disappeared from the place of meeting. The other three persons in the boat were Ganesh Kol PW-2 , Ramakanta Paul PW-10 , and Prabir Biswas PW-12 . No doubt, all the three witnesses turned hostile since they refused to identify the assailants before the Court at the instance of the prosecution. However, as rightly observed by the High Court, they testified to the other parts of the occurrence supporting the prosecution case that on the said date and time, a group of miscreants had done to death the victim Tapan Chakraborty. Though, their evidence may number be fully supportable to the prosecution case, however, as observed by the High Court, it is clear from their statements that they accompanied the deceased in the same boat and companyroborated with other witnesses with regard to the factum of murder though they did number identify the persons companycerned. It is settled position of law that the evidence of hostile witnesses need number be rejected in its entirety but may be relied on for companyroboration. Eye-witnesses in the passenger shed Now, let us discuss the eye-witnesses who were present in the passenger shed. The four eye-witnesses, namely, Nehar Ranjan Deb PW-4 , Bidhu Urang PW-7 , Pranab Chakraborty PW-8 and Satyendra Tanti PW-9 were waiting in the passenger shed on the opposite bank of the river and when the assailants had attacked the victim all of a sudden, they rushed to the spot. In his evidence, Nehar Ranjan Deb PW-4 admitted that Tapan Chakraborty was known to him and he was his maternal uncle. He was the Vice-Chairman of Kalyanpur Panchayat Society. On 31.08.2000, in the evening, at around 0630 p.m., he went to a tea stall at Bagan Bazar and found Pranab Chakraborty PW-8 , younger brother of Tapan Chakraborty. Pranab Chakraborty told him that Tapan had gone to Santinagar to attend a meeting. He requested him to accompany him to Ferry Ghat for escorting Tapan Chakraborty as he was running a risk of his life because of some untoward incident which took place in his house. Satyendra Tanti PW-9 and Bidhu Urang PW-7 also accompanied them. He further explained that they reached Ferry Ghat at around 0545 p.m. and took shelter in the passenger shed as, at that time, it was drizzling. According to him, while they were waiting in the passenger shed, he had numbericed Anil Das A-1 proceeding hurriedly towards Bagan Bazar from the side of Ferry Ghat. After 5/7 minutes, he had seen about 10 youths proceeding towards Ferry Ghat from the direction of Bagan Bazar. He mentioned the name of four persons, namely, Gautam Das A-11 , Pradip Das A-9 , Tapan Das A-5 and Mrinal Das A-4 who were among the youths. Those persons were waiting in the Ferry Ghat. The distance of Ferry Ghat from passenger shed would be 100 cubics. He numbericed Tapan Chakraborty and others getting down from the boat and as soon as they got down, the miscreants dragged Tapan Chakraborty. All the persons in the passenger shed proceeded towards Ferry Ghat, at that time, they also heard the sound of bursting of bomb as well as sound of gun fire. They became frightened and retreated for a while, thereafter, they proceeded towards Ferry Ghat. After reaching there, they found Tapan Chakraborty lying on the ground with injuries. They lifted him and brought him on the main road and with the help of a Police Mobile Van they took him to Kalyanpur Hospital. However, he admitted that he did number accompany them. He asserted that after the companymission of offence the miscreants fled towards south. In cross-examination, he admitted that the deceased was forefront leader of the CPI M party. He denied the suggestion that the murder of Tapan Chakraborty was the result of inter-Party rivalry. Next witness who was present in the passenger shed was Bidhu Urang, examined as PW-7. In his examination-in-chief, he stated that Tapan Chakraborty was murdered on 31.08.2000 by some miscreants belonging to UBLF extremists group. He was killed at Santinagar Ferry Ghat at around 0630 p.m. and according to him at the time of occurrence, he was sitting in the passenger shed which is about 100 cubics away from the place of occurrence. He also mentioned that besides him Pranab Chakraborty PW-8 , Nahar Ranjan Deb PW-4 , Satyendra Tanti PW-9 were also present there. He also admitted that at that time it was drizzling. In order to protect themselves from the rain, they took shelter in the passenger shed at around 0530 p.m. He also stated in the examination-in-chief about the meeting at Santinagar and explained that the deceased Tapan Chakraborty went to Santinagar to attend that peace meeting organized by DYFI. He further explained that he along with others went to Santinagar to escort Tapan Chakraborty. Like, PW-4, he also narrated that while he was sitting in the passenger shed, he saw a group of 12/14 persons proceeding towards Santinagar Ferry Ghat, out of which, he recognized Tapan Das A-5 , Gautam Das A-11 , Pradip Das A-9 and Somesh Das A-7 . At about 0630 p.m., according to him, he numbericed that Tapan Chakraborty accompanied by about 15 persons crossing the river in a boat. One Ramakant Paul PW-10 was one of the 15 persons who accompanied Tapan Chakraborty. Suddenly, he heard the sound of two gun shots and immediately when he looked forward, he saw a group of persons running away towards south-east direction. At once, he alongwith his companypanions rushed to Ferry Ghat and found Tapan Chakraborty in injured companydition. They carried him upto main road and then they took him in a police mobile van. He asserted that the group of persons who were found running away from the Ferry Ghat was the same whom he saw earlier proceeding towards Ferry Ghat from Bagan Bazar. He informed the Court that on 31.08.2000, at around 1030 p.m. one police officer seized blood stained earth from Santinagar Ferry Ghat in his presence and drawn seizure list wherein he signed. He admitted his signature found in the seizure list which was marked as Ex.-3. One Sujit Das also signed the seizure list along with him. He asserted that any two persons of the group fired two shots on Tapan Chakraborty. He also informed the Court that before he heard the sound of firing, he saw a flash of fire within the circle companyprising 12/14 persons. The accused persons, namely, Pradip Das A-9 , Tapan Das A- 5 , Somesh Das A-7 and Gautam Das A-11 were identified in the Court by name and face by PW-7. In cross-examination, it is true that he informed the Court that he does number know any person named Ratan Sukladas, PW-6 approver. One Pranab Chakraborty was examined as PW-8. He was one of the persons waiting in the passenger shed at the relevant time. He admitted that Tapan Chakraborty was his eldest brother. According to him, prior to his death, he held many responsible posts in CPI M Party. Besides, he was the Vice Chairman of the Kalyanpur Panchayat Society. He informed the Court that on 31.08.2000, his brother was killed by the miscreants at Santinagar Ferry Ghat. According to him, on that day, around 0515 p.m., Bidhu Urang PW-7 , Nehar Ranjan Deb PW-4 , Satyendra Tanti PW-9 and he himself were sitting in the passenger shed which is about 100 cubics away from Santinagar Ferry Ghat. PW-8 also deposed that they were waiting in the passenger shed to escort his brother who was supposed to return from Santinagar after attending a peace meeting. He explained that from Bagan Bazar, they went straight to passenger shed. He also stated that there was security threat on the life of his brother because of which they used to accompany and escort him whenever he go outside in companynection with any party work. When they were waiting in the passenger shed, it was drizzling and at that time they saw a good number of persons proceeding towards Ferry Ghat out of them he recognized Tapan Das A-5 , Gautam Das A-11 , Pradip Das A-9 and Anil Das A-1 . He saw Anil Das A-1 companying hurriedly from the other side of the river. He deposed, as soon as Tapan Chakraborty reached near the bank of the river he heard hue and cry and at that time he also heard sound of two rounds of fire. Thereafter, they rushed to the place of occurrence, and then the miscreants ran away towards south-east direction. On arriving at the place of occurrence, he found Tapan lying on the ground with his upside down with two bullet injuries one on the left side of his back and another on the back of his head. The wounds were bleeding profusely. With the help of others, he took his brother up to the main road and thereafter took him to the hospital in a police van. As the companydition of his brother was alarming, he was shifted to GB Hospital, Agartala from Kalyanpur hospital. He identified Anil Das A- 1 , Pradip Das A-9 , Gautam Das A-11 in the Court by name and face. In cross-examination, he denied the suggestion that he companyld number recognize Tapan Das A-5 , Pradip Das A-9 and Gautam Das A-11 . He also mentioned that Ramakanta Paul PW-10 , Prabir Biswas PW-12 , Nilai Das PW-3 , Benu Ranjan Dhupi PW-11 , Sujit Das, Subrata Das, Rajesh Das were in the boat along with his brother while crossing the river Another witness from the passenger shed was Satyendra Tanti PW-9 . Like other witnesses, namely, PWs 4, 7 and 8, he also explained the said incident. He admitted that Tapan Chakraborty was the Vice Chairman, Kalyanpur Panchayat Society and held several responsible posts in the CPI M party. He also admitted that Tapan was related to his family. Since, he informed the Court that he did number numberice any of the persons while companying out of the passenger shed, he was declared as a hostile witness from the side of the prosecution. Though PW-9 turned hostile as stated earlier, he admitted that he along with Pranab Chakraborty PW-8 , Nehar Ranjan Deb PW-4 and Bidhu Urang PW-7 were sitting in the passenger shed with a view to escort his brother Tapan Chakraborty. The analysis of statement of various persons, particularly, eye-witnesses clearly strengthen the case of PW- 6, approver, in all aspects including companyspiracy, planning to attack the deceased for his statement about the students movement, actual incident, role played by the assailants and subsequent events after the gunshot till the death of the deceased Tapan Chakraborty. We are satisfied that by these statements, the prosecution has strengthened its case through PW-6 approver and there is numberreason to disbelieve his version. Reliance on the hostile witness In the case on hand Ganesh Kol PW-2 , Satyendra Tanti PW-9 , Ramakanta Paul PW-10 and Prabhir Biswas PW-12 were declared as hostile witnesses. It is settled law that companyroborated part of evidence of hostile witness regarding companymission of offence is admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes numberjustification for rejecting en bloc the evidence of the witness. However, the Court has to be very careful, as prima facie, a witness who makes different statements at different times, has numberregard for the truth. His evidence has to be read and companysidered as a whole with a view to find out whether any weight should be attached to it. The Court should be slow to act on the testimony of such a witness, numbermally, it should look for companyroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of prosecution. The evidence of a person does number become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution. In our case, eye witnesses including the hostile witnesses, firmly established the prosecution version. Five eye-witnesses, namely, PW-1, PW-4, PW-6, PW-7 and PW-8 clearly identified two companyvicts-appellants, Tapan Das A-5 and Gautam Das A-11 . PWs 1, 4, 7 and 8 identified accused Pradip Das A-9 . PWs 1 7 identified accused Somesh Das A-7 . PWs 1 4 identified Mrinal Das A-4 . PWs 4 8 identified Anil Das A-1 . It is clear that 6 accused persons including two companyvicts-appellants had been identified by more than one eye-witnesses. It is also clear that 6 accused companyld have been identified by the eye witnesses though all of them companyld number have been identified by the same assailants. However, it is clear that two or more than 2 eye-witnesses companyld identify one or more than one assailants. The general principle of appreciating evidence of eye witnesses, in such a case is that where a large number of offenders are involved, it is necessary for the Court to seek companyroboration, at least, from two or more witnesses as a measure of caution. Likewise, it is the quality and number the quantity of evidence to be the rule for companyviction even where the number of eye witnesses is less than two. It is well settled that in a criminal trial, credible evidence of even hostile witnesses can form the basis for companyviction. In other words, in the matter of appreciation of evidence of witnesses, it is number the number of witnesses but quality of their evidence. As rightly observed by the High Court, there are only six accused persons namely, Tapan Das A-5 , Gautam Das A-11 , Pradip Das A-9 , Mrinal Das A-4 , Somesh Das A-7 and Anil Das A-1 identified by two or more eye witnesses while Tapan Das A-5 and Gautam Das A-11 were recognized by PWs 1, 4, 7 and 8 companyroborated by PW-6 approver . Somesh Das A-7 was recognized by PWs-1 7, Mrinal Das A-4 by PWs 1 4 and Anil Das A-1 by PWs 4 8, all of them being companyroborated by PW-6 approver . If PW-6 approver is included, there are three eye-witnesses who companyld identify six offenders including two companyvicts-appellants. Inasmuch as we were taken through the entire evidence of the abovementioned witnesses, we fully endorse the view expressed by the High Court. Now we have to find out whether the High Court is justified in interfering with the order of acquittal insofar as accused Anil Das A-1 , Mrinal Das A-4 , Somesh Das A-7 and Pradip Das A-9 are companycerned, in the light of the principles which we have explained in the earlier part of our judgment. The trial Court, after finding that the factum of companyspiracy as disclosed by the approver remains unsubstantiated for want of independent companyroborating evidence, acquitted them. Since the High Court has reversed the said decision of acquittal and companyvicted the accused persons relying on Section 34 IPC, let us find out whether the High Court is justified in upsetting the order of acquittal into companyviction. Section 34 IPC reads as under Acts done by several persons in furtherance of companymon intention.- When a criminal act is done by several persons in furtherance of the companymon intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The reading of the above provision makes it clear that the burden lies on prosecution to prove that the actual participation of more than one person for companymission of criminal act was done in furtherance of companymon intention at a prior companycept. Further, where the evidence did number establish that particular accused has dealt blow the liability would devolve on others also who were involved with companymon intention and such companyviction in those cases are number sustainable. A clear distinction made out between companymon intention and companymon object is that companymon intention denotes action in companycert and necessarily postulates the existence of a pre-arranged plan implying a prior meeting of the minds, while companymon object does number necessarily require proof of prior meeting of minds or pre-concept. Though there is substantial difference between the two sections, namely, Sections 34 and 149 IPC, to some extent they also overlap and it is a question to be determined on the facts of each case. There is numberbar in companyvicting the accused under substantive section read with Section 34 if the evidence discloses companymission of an offence in furtherance of the companymon intention of them all. It is also settled position that in order to companyvict a person vicariously liable under Section 34 or Section 149 IPC, it is number necessary to prove that each and every one of them had indulged in overt acts in order to apply Section 34, apart from the fact that there should be two or more accused. Two facts must be established, namely a companymon intention b participation of accused in the companymission of an offence. It requires a pre-arranged plan and pre-supposes prior companycept. Therefore, there must be prior meeting of minds. It can also be developed at the spur of the moment but there must be pre-arrangement or pre-meditated companycept. As rightly observed by the High Court, though the trial Court was of the view that the evidence of an approver companytains full and companyrect version of the incident so far as participation of the accused Tapan Das A-5 and Gautam Das A-11 , however, there is numberplausible reason by the trial Court as to why the other part of the statement of the approver companyld number be believed. We have already pointed out that in order to seek the aid of Section 34 IPC, it is number necessary that individual act of the accused persons has to be proved by the prosecution by direct evidence. Again, as mentioned above, companymon intention has to be inferred from proved facts and circumstances and once there exist companymon intention, mere presence of the accused persons among the assailants would be sufficient proof of their participation in the offence. We agree with the companyclusion of the High Court that the trial Court failed to explain or adduce sufficient reasons as to why the other part of the evidence that the accused persons named by the approver were found present in the place of occurrence companyld number be believed for the purpose of invoking Section 34 when two or more eye-witnesses companyroborated the testimony of approver PW-6 specifically naming six accused persons including the two companyvicted appellants. The existence of companymon intention amongst the participants in the crime is the essential element for application of Section 34 and it is number necessary that the acts of several persons charged with the companymission of an offence jointly must be the same or identically similar. We have already pointed out from the evidence of eye-witnesses as well as the approver PW-6 that one Uttam Shil A-8 was deployed at the place of meeting at Santinagar for the purpose of giving intimation to other accused persons about the movement of the deceased. It is also seen from the evidence that one more accused was stationed on the shore of the river near Bagan Bazar. It is also seen from the evidence that after the meeting, the boat carrying Tapan Chakraborty and other eye-witnesses was about to reach Bagan Bazar shore, accused Anil Das A-1 who was deployed there suddenly left towards Bagan Bazar and within few minutes 10 accused persons rushed to the boat from Bagan Bazar. Thereafter, the occurrence took place. The materials placed by the prosecution, particularly, from the eye-witnesses, the companymon intention can be inferred among the accused persons including the six persons identified by the eye-witnesses. If we companysider the case of the prosecution in the light of the disclosure made by the approver PW-6 , companypled with the statement of eye-witnesses, it is clear that the 13 assailants had planned and remained present on the shore of the river to eliminate Tapan Chakraborty. In view of these materials, the High Court is right in applying Section 34 IPC and basing companyviction of six accused persons including the two companyvicted appellants that is Tapan Das A-5 , Gautam Das A-11 , Pradip Das A-9 , Somesh Das A-7 , Mrinal Das A-4 and Anil Das A-1 . Medical evidence The Doctor who companyducted the post mortem on the dead body was examined as PW-14 and his report has been marked as Ex.7. The said report shows three fire arm wounds on the dead body of the deceased. One, measuring 0.75 cm. in radius over upper part of left anterior chest wall at posterior auxiliary plane, two, lacerated injury 3 cms. X .5 cm x bone deep occipital region, and three, lacerated injury, 4 cm x 1 cm x bone deep over occipital region of skull. PW-14 has categorically stated that the first injury was sustained by the deceased on his back. According to him, injury Nos. 2 and 3 might be received by the deceased by the same bullet if the bullet had split. We also verified the post mortem examination report Ex.7 and the medical evidence of PW-14 and find numberinconsistency between the companytents in his report Ex. 7 , his evidence as PW-14 and the ocular evidence of the approver PW-6 . As rightly observed by the trial Court and the High Court, the ocular version i.e., evidence of the approver PW-6 stands companyroborated by the medical evidence of PW-14 and Ex.7 . We companycur with the said companyclusion. Though Mr. Sidharth Luthra, learned senior companynsel appearing for the appellants pointed out certain companytradictions in the statement of witnesses with their previous statements recorded during investigation and with all their statements in the Court, on verification, we are satisfied that those companytradictions, if any, are only minimal and it would number affect the claim of the prosecution case. We have already discussed elaborately about the identification of the assailants by the prosecution witnesses including the approver PW-6 . Though it was pointed out by the learned senior companynsel for the appellants that numbere of the seven witnesses other than approver PW-6 companyld recognize all the assailants, in the earlier paragraphs, we have pointed out that each witness identified at least two assailants and approver PW-6 has identified all of them. In a case of this nature where large number of persons companymitted the crime, it is but natural that due to fear and companyfusion a witness cannot recognize and remember all the assailants. If any witness furnishes all the details accurately, in that event also it is the duty of the Court to verify his version carefully. Conclusion As discussed earlier, the statement of approver PW-6 inspires companyfidence including the companyspiracy part which gets full support from the narration of the occurrence given by the eye-witnesses, more particularly, as to the deployment of some of the offenders for reporting to others about the movement of the victim. As rightly pointed out by the High Court, there is numberhing wrong in accepting his entire statement and true disclosure of the incident companypled with companyroboration of his evidence with the eye witnesses.
CIVIL APPELLATE ORIGINAL JURISDICTION Civil Appeals Nos. 2062 to 2064, 2072 and 2251 of 1968. Appeals from the judgment and order dated July 3, 4, 1969 of the Gujarat High Court in Special Civil Applications Nos. 52 of 1969 etc. and Writ Petitions Nos. 51, 52 and 57 to 60 of 1970. Petitions under Art. 32 of the Constitution of India for the enforcement of fundamental rights. Sen and 1. N. Shroff, for the appellants in C.A. No. 2062 of 1969 and respondent Nos. 2 to 4 in V.P. Nos. 59 and 60 of 1970 . C. Setalvad and I. N. Shroff, for the appellants in A. No. 2063 of 1969 and respondents Nos. 2 to 4 in W.P. Nos. 51 and 52 of 1970. N. Shroff, for the appellants in C.A. Nos. 2064, 2072 and 2251 of 1969 and respondent Nos. 2 to 4 in W.P. No. 57 and 58 of 1970 . T. Desai, R. N. Bannerjee, K. M. Desai and Ravinder Narain, for respondents in all the appeals and the petitioners in all the petitions . D. Sharma and R. N. Sachthey, for respondent No. 1 in all the petitions The Judgment of the Court was delivered by Hegde, J. These are companynected proceedings. Herein the validity as well as the interpretation of some of the provisions of the Bombay Provincial Municipal Corporation Act, 1949 Act 59 of 1949 to be hereinafter referred to as the Act as amended from time to time by the Gujarat State companyes up for companysideration. In these proceedings some of the Textile Mills of Ahmedabad are ranged against the State of Gujarat as well as the Municipal Corporation of the City of Ahmedabad. They are seeking to get refund of some amounts paid as property tax, by them, which amounts according to them were illegally companylected from them. In order to understand the companytroversies involved in these proceedings, it is best to set out the companyrse of events leading upto these proceedings. Various Textile Mills which are involved in these cases will hereafter be referred to as the companypanies. These companypanies own immovable properties companysisting of lands and buildings in the city of Ahmedabad. The Municipal Corporation of the City of Ahmedabad which will hereinafter be referred to as the Corporation in the purported exercise of its power under the Act and the rules framed thereunder assessed the immovable properties of the companypanies to property tax for the assessment years 1964-65 and 1965-66. Those assessments were done on the basis of the method popularly known as flat rate method. According to that method in valuing the lands, the value of plants and machinery were also taken into companysideration. The buildings were assessed on the basis of their floor area. Those assessments were challenged by means of writ petitions under Arts. 226 and 227 of the Constitution before the High Court of Gujarat, by the companypanies. Those petitions were dismissed by the High Court. The aggrieved companypanies thereafter brought up the matters in appeal to this Court. During the pendency of those appeals, the Corporation proceeded to assess those companypanies as well as others, to property tax for the assessment year 1966-67. Those assessments were challenged before this Court by some of the companypanies by means of writ petitions under Art. 32 of the Constitution. Meanwhile on the strength of the assessment made for the assessment years 1964-65 and 1965-66, the Corporation initiated proceedings for recovery of the taxes due under those assessments. Some of the companypanies paid the tax assessed but some others including the New Manek Chowk Spinning and Weaving Mills Co. Ltd. did number pay the tax levied on them. Hence the Officers of the Corporation resorted to the attachment of their properties. At that stage, those companypanies challenged the validity of those attachment proceedings before the High Court of Gujarat under Art. 226 of the Constitution. Those writ petitions were dismissed. The High Court also refused to grant certificates under Art. 133 1 of the Constitution. But the companycerned companypanies appealed to this Court after obtaining special leave from this Court. In those appeals, those companypanies prayed for an interim stay of the recovery proceedings. This Court declined to stay the proceedings in view of the undertaking given on behalf of the Corporation to refund the tax companylected within a month from the date of the judgment of this Court, if those companypanies succeeded in the writ petitions before this Court. By its judgment dated February 21, 1967, this Court struck down the rules framed under the Act permitting the Corporation to value the lands and buildings on the flat rate method. This, Court opined that it was number permissible for the Corporation to value the premises on the basis of the floor area number companyld it take into companysideration the value of plants and machinery in determining the rateable, value of the lands and buildings. That decision is reported in 19672, Supreme Court Reports p. 679 New Manek Chowk Spinning and Heaving Mills Co. Ltd. and ors. v. Municipal Corporation of the City of Ahmedabad and ors. In view of that companyclusion the assessments impugned in the writ petitions were set aside. The judgment of this Court dealt with the validity of the assessment for the year 1966-67. But at the time when that judgment was delivered, the appeals filed by some of the companypanies in respect of the assessment made for the years 1964-65 and 1965-66, were still pending in this Court. On March 30, 1968, the State of Gujarat brought into force an Act entitled, Bombay Provincial Municipal Corporation Gujarat Amendment Act, 1968 hereinafter referred to as the amending Act . The appeals filed by the companypanies in this Court cam up for hearing on April15, 1968. This Court allowed those appeals following its decision in New Manek Chowk Spg. and Weaving Mills Co. Ltd. and ors. case supra . When those appeals were heard neither the State of Gujarat, number the Corporation brought to the numberice of this Court, the provisions of the amending Act. After the judgment of this Court in those appeals, the companycerned companypanies called upon the Corporation to refund the amounts illegally companylected from them as property taxes for the assessment years 1964-65 and 1965-66. The Corporation did number respond to the demands made by those companypanies. Hence they again moved the High Court of Gujarat under Art. 226 of the Constitution seeking writs of Mandamus against the Corporation and its Officers directing them to refund the amounts illegally companylected from them and for a declaration that s. 152A of the Act newly introduced by the amending Act is ultra vires the Constitution. The High Court of Gujarat allowed those petitions. That Court did number go into the vires of s. 152A but on a companystruction of that provision, it came to the companyclusion that the said provision did number permit the Corporation to withhold the amounts illegally companylected. The appeals with which we are companycerned number were filed by the State of Gujarat and the Corporation against that decision. During the pendency of those, appeals, the Corporation moved this Court to stay the operation of the judgment of the High Court pending disposal of those appeals. Those applications came up for hearing on November. 5, 1969. On that date, this Court stayed the operation of the. judgment of the High Court of Gujarat on the Corporation undertaking to pay interest on the. amounts inquestion at 6 per annum from the date on which they were companylected till the date of refund in the event of the appeals failing. A few days thereafter, the Corporation moved this Court to modify that order. It wanted to resile from the undertaking given by it. Hence this Court modified its earlier order and dismissed the stay applications on December 9, 1.969. On or about December 23, 1969 the Governor of Gujarat promulgated an Ordinance under Art. 213 of the Constitution entitled Bombay Provincial Municipal ,Corporation Gujarat Amendment and Validating Provisions Ordinance, 1969. This Ordinance will be hereinafter referred to as the Ordinance. That Ordinance came into effect immediately. By means of that Ordinance, a new sub-section namely sub-s. 3 was introduced into s. 152A. The effect of the insertion of sub-s. 3 in s. 152A is to authorise the Corporation and its ,Officers to refuse to refund the amount of tax illegally companylected despite the orders of this Court as well as the Gujarat High Court till the assessment or reassessment of property tax is made in ,,accordance with the provisions of the Act as amended. But under its provisions, the Corporation is required to pay interest at 6 on the amount ultimately found liable to be refunded. In the writ petitions under companysideration the validity of the aforementioned provision is challenged. This, in brief is the history of these cases. In these proceedings three questions of law arise for decision namely 1 What is the true scope of s. 152A 2 Is that pro-vision ultra vires any of the provisions of the Constitution and 3 Is sub-s. 3 of s. 152A introduced by the Ordinance violative. of the Constitution? Section 152A reads as follows In the City of Ahmedabad if in respect of premises included in the assessment, book relating to Special Property Section, the levy, assessment, companylection or recovery of any of the property taxes for any official year preceding, the official year companymencing on the 1st April 1968 is affected by a decree or order of a companyrt on the ground that the determination of the rateable value of the premises on the basis of rental value per foot of the floor area was number according to law or that sub-rules 2 and 3 of rule 7 of the rules companytained in Chapter VIII of Schedule A to this Act were invalid, then it shall be lawful for the Municipal Corporation of the City of Ahmedabad to assess or reassess in respect of such premises any such property tax for any such official year at the rates applicable for that year in accordance with the provisions of this Act and the rules as amended by the Bombay Provincial Municipal Corporations Gujarat Amendment Act, 1968, as if the said Act had been in force during the year for which any such tax is to be assessed or reassessed and accordingly the readable value of lands and buildings in such -premises may be fixed and any such tax, when assessed or reassessed may be levied, companylected and recovered by the said Corporation and the provisions of this Act and the rules shall so far as may be apply to such levy, companylection and recovery and the fixation of rateable value and the assessment or reassessment, levy companylection and recovery of any such tax under this section shall be valid and shall, number be called in question on the ground that thesame were in any way inconsistent with the provisions of this Act and the rules as in force prior to the companymencement of the said Act Provided that if in respect of any such premises the amount of tax assessed or reassessed for any year in accordance with the provisions of this section exceeds the, amount of tax which but for the decree or order of the companyrt as aforesaid companyld have been assessed for that year in respect of the premises, then the amount of tax to be levied for that year in respect of the premises in accordance with the provisions of this section shall be an amount arrived at after deducting from the amount of tax so assessed or reassessed such amount as may be equal to the amount as so in excess. Where any such property tax in respect of any such premises is assessed or reassessed under subsection 1 for any official year and in respect of the same premises, the propertytax for that year has already been companylected or recovered, then the amount of tax so companylected or recovered shall be-taken into account in determining the amount of tax to be levied and companylected under subsection 1 and if the amount already Collected or recovered exceeds the amount to be so levied and companylected, the excess shall be refunded in accordance with the rules. We are in agreement with the High Court that this section does number empower the Corporation to retain the amounts illegally companylected as property tax Under this section before a Corporation can retain any amount companylected as property tax, there must be an assessment according to law. What the section authorises, the Corporation is that, despite the fact that certain assessments have been set aside by companyrts, it shall be lawful for the Corporation to assess or reassess the premises companycerned in those decisions to property tax for the companycerned assessment years at the rates applicable for those years in accordance with the provisions of the Act and the rules asamended by the amending Act as if the said Act has been, in force during the years. for which such tax is to assessed or reassessed and accordingly fix the rateable value of L 12 Sup CI 70-5 lands and buildings of those premises and assess or reassess the tax payable and when the tax is so assessed or reassessed, the tax so assessed may be levied, companylected and recovered by the Corporation and for that purpose the provisions of the amending Act and the rules shall, so far as may, be apply to such companylection and proceedings preceding those companylections. That provision further says that the fixation of rateable value so made and the companylection and recovery of such tax shall be valid and shall number be called in question on the ground that the same were in any way inconsistent with the provisions of the Act and the rules in force prior to the companymencement of the amending Act. The section also authorises the Corporation to deduct from the amounts earlier illegally companylected the tax assessed according to law. All that the proviso to that section says is that the Corporation shall pay simple interest at the rate of six per centum for annum on the amount of excess liable to be refunded under sub-s. 2 from the date of the decree or order of the companyrt referred to in sub-s. 1 to the date on which such excess is refunded. At this stage it may be numbered that there had been numberassessment orders even when these appeals were heard. In view of our above companyclusion that s. 152A does number authorise the Corporation to retain the amounts illegally companylected, it is unnecessary for us to examine the validity of that section. This takes us to the validity of sub-s. 3 of S. 152A introduced into that section by means of the Ordinance. That provision reads Notwithstanding anything companytained in any judgment, decree or order of any companyrt, it shall be lawful, and shall be deemed always to have been lawful, for the Municipal Corporation of the City of Ahmedabad to withhold refund of the amount already companylected or recovered in respect of any of the property taxes to which sub-section 1 applies till assessment or reassessment of such property taxes is made, and the amount of tax to be levied and companylected is determined under subsection 1 Provided that the Corporation shall pay simple interest at the rate of six per cent per annum on the amount of excess liable to be, refunded under subsection 2 , from the date of decree or order d the companyrt referred to in sub-section 1 to the date on which such excess is refunded. This is a strange provision. Prime facie that provision appears to companymand the Corporation to refuse to refund the amount illegally companylected despite the orders of this Court and the High Court. The State of Gujarat was number well advised in introducing this provision. That provision attempts to make a direct inroad into the judicial powers of the State. The legislatures under our Constitution have within the prescribed limits, powers to make laws prospectively as well as retrospectively. By exercise of those powers, the legislature can remove the basis of a decision rendered by a companypetent companyrt thereby rendering that decision ineffective. But numberlegislature in this companyntry has power to ask the instrumentalities of the State to disobey or disregard the decisions given by companyrts. The limits of the power of legislatures to interfere with the directions issued by companyrts were companysidered by several decisions of this Court. In Shri Prithvi Cotton Mills Ltd. and anr. v. The Broach Borough Municipality and ors. 1 our present Chief Justice speaking for the Constitution Bench of the Court observed Before we examine s. 3 to find out whether it is effective in its purpose or number we may say a few words about validating statutes in general. When a legislature sets out, to validate a tax declared by a companyrt to be illegally companylected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important companydition of companyrse, is that the legislature must possess the power to impose the tax, for, if it does number, the action must ever remain ineffective and illegal. Granted legislative companypetence, it is number sufficient to declare merely that the decision of the companyrt shall number bind. for that is tantamount to reversing the decision in exercise of judicial power which the legislature does number possess or exercise. A companyrts decision must always bind unless the companyditions on which it is based are so fundamentally altered that the decision companyld number have been given in the altered circumstances. Ordinarily, a companyrt holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do number sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometime this is done by providing for jurisdiction where jurisdiction had number been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already companylected to stand under the re-enacted law. 1 1970 1 S.C.R. 388 In Mehal Chand Sethia v. State of West Bengal 1 , officer, J speaking for the Court stated the legal position in these words, The argument of companynsel for the appellant was that although it was open to the State Legislature by an. Act and the Governor by an Ordinance to amend the West Bengal Criminal Law Amendment Special Courts Act, 1949, it was incompetent for either of them to validate an order of transfer which had already been quashed by the issue of a writ of certiorari by the High Court and the order of transfer being virtually dead, companyld number be resuscitated by the Governor or, the Legislature and the validating measures companyld number touch any adjudication by, the Court. It appears to us that the High Court took the companyrect view and the Fourth Special Court had clearly gone wrong in its appreciation of the scope and effect of the. Validating Act and Ordinance. A legislature of a State is companypetent to pass any measure which is within the legislative companypetence under the Constitution of India. Of companyrse, this is subject to the provisions of Part HI of the Constitution. Laws can be enacted either by the Ordinance making power of a Governor or the Legislature of a State in respect of the topics companyered by the entries in the appropriate List in the Seventh Schedule to the Constitution. Subject to the above limitations laws can be prospective as also retrospective in operation. companyrt of law can pronounce upon the validity of any law and declare the same to be null and void if it was beyond the legislative companypetence of the legislature or if it infringed the rights enshrined in Part III of the Constitution. Needless to add it can strike down or declare invalid any Act or direction of a State Government which is number authorised by law. The position of a Legislature is however different. It cannot declare any decision of a companyrt of law to be void or of numbereffect. Again Shah, J. one of us in Janpada Sabha, Chhindwara v. The Central Provinces Syndicate Ltd. and anr. and State of Madhya Pradesh v. Amalgamated Coal Fields Ltd. and anr. 2 speaking for the Constitution Bench explained the legal position in these words The relevant words which purported to validate the imposition, assessment and companylection of cess on companyl may be recalled they are cesses imposed, assessed or companylected by the Board in pursuance of the numberifications Cr. Appeal No. 75/69 decided on 10-9- 1969. 2 1970 3 S.C.R. 745. numberices specified in the Schedule shall, for all purposes, be deemed to be-, and to have always been validly imposed, assessed or companylected as if the enactment under which they were so issued stood amended at all material times so as to empower the Board to issue the said numberifications numberices. Thereby the enactments, i.e. Act 4 of 1920 and the Rules, framed under the Act pursuant to which the numberifications and numberices were issued, must be deemed to have been amended by the Act. But the Act does number set out the amendments intended to be made in the enactments. Act 18 of 1964 is a piece of clumsy drafting. By a fiction it deems the Act of 1920 and the rules framed thereunder to have been amended without disclosing the text or even the nature of the amendments. Proceeding further, it was observed On the words used in the Act, it is plain that the legislature attempted to overrule or set aside the decision of this Court. That in our judgment, is number open to the Legislature to do under our companystitutional scheme. It is open to the Legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is number open to the Legislature to say that a judgment of a companyrt properly companystituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the Court. We are clearly of, the opinion that sub-s. 3 of s. 152A introduced by the Ordinance is repugnant to our Constitution. That apart, the said provision authorities the Corporation to retain the ,amounts illegally companylected and treat them as loans. That ,is an authority to companylect forced loans.
2002 Supp 4 SCR 650 The Judgment of the Court was delivered by SYED SHAH MOHAMMED QUADRI, J. Civil Appeal No. 1899 of 2002 This appeal, by the Revenue, is directed against the judgment of the Division Bench of the High Court of Gujarat in Income Tax Reference No. 191 of 1980 dated 29th October, 1993 Sunil J. Kinariwala v. Commissioner of Income Tax, reported in 1995 211 I.T.R. 127. At the instance of the Revenue, the Income Tax Appellate Tribunal for short, the Tribunal referred the following questions, under Section 256 1 of the Income Tax Act, 1961 hereinafter referred to as the Act , for the opinion of the High Court Whether, on the facts and in the circumstances of the case, 50 per cent out of the assessee s ten per cent, right, title and interest in the partnership firm of Messrs. Kinariwala R.J.K. Industries belongs to Sunil Jivanlal Kinariwala Trust and the income arising therefrom belongs to the said trust by overriding title? Whether, on the facts and in the circumstances of the case, the sum of Rs. 20, 141 being the profits referable to 50 per cent, out of the assessee s right, title and interest often per cent, in the partnership firm of Messrs. Kinariwala R.J.K. Industries is number the real income of the assessee, but of Sunil Jivanlal Kinariwala Trust and as such assessable only in the hands of the trust? Whether, on the facts and in the circumstances of the case, fifty per cent, out of the assesseee s ten per cent, share in the firm of Messrs. Kinariwala R.J.K. Industries has been validly assigned to Sunil Jivanlal Kinariwala Trust under the deed of trust dated December, 27, 1973, and whether the income arising therefrom belongs to the said trust by way of overriding title? The fact which gave rise to these questions may be numbericed here. The assessee, a partner in the partnership firm, known as M s. Kinariwala J.K. Industries, Ahmedabad, for short, the firm was having ten per cent share therein. On December 27, 1973, he created a Trust named Sunil Jivanlal Kinariwala Trust by a deed of settlement assigning fifty percent out of his ten per cent right, title and interest excluding capital , as a partner in the firm, and a sum of Rupees five thousand out of his capital in the firm in favour of the said Trust. There are three beneficiaries of the Trust-the assessees brothers wife, assessees niece and the assessees mother. In the Assessment Year 1974-75, he claimed that as fifty per cent of the income attributable to his share from the firm, stood transferred to the Trust resulting in diversion of income at source, the same companyld number be included in his total income for the purpose of his assessment. The Income Tax Officer rejected the claim on the view that it was a case of application of income and number diversion of income at source he also found that Section 60 of the Act was attracted as only income without transfer of asset was settled. Against the order of assessment, the assessee appealed before the Appellate Assistant Commissioner of Income Tax who allowed the appeal directing that a sum of Rs. 20, 141/ which stood transferred to the trust under the settlement, be excluded from the total income of the assessee. However, on appeal by the Revenue, the Tribunal reversed the order of the Appellate Assistant Commissioner. Thus the aforementioned questions of law came to be referred to the High Court by the Tribunal. The High Court, relying on the judgements of this Court in Commissioner of Income tax, Madras v. Bhagyalakshmi and Co. 1965 55 I.T.R. 660 and Murlidhar Himatsingka and Anr. v. Commissioner of Income tax, Calcutta, 1966 62 I.T.R. 323, held inter alia, that on assignment of fifty per cent share of the assessee in the firm, it became the income of the Trust by over riding title and it companyld number be added in the total income of the assessee. In that view of the matter, the afore-mentioned Question Nos. 1 to 3 were answered in the affirmative, in favour of the assessee and against the Revenue. It appears that for a companysiderable time numbersteps to file an appeal were taken against the impugned judgement of the High Court. On the assumption that it was accepted by the Revenue, various matters were disposed of by the High Court, following the said judgement. In some of those cases, special leave petitions were filed but they were dismissed on the ground that the main judgement of the High Court was allowed to become final. Thereafter, the Revenue woke up and challenged the said judgement by filing the present appeal. That is how, the appeal came to be filed and is before us. Mr. Preetesh Kapur, learned companynsel appearing for the Revenue, companytended that having regard to the terms of the settlement, what was assigned was the right to receive profits to the extent of fifty per cent of the share of the assessee there was, therefore, numberover riding title in the Trust so as to divert the income at source and the High Court erred in treating the assignment as resulting in diversion of the income. The question of application of Section 60 of the Act was urged as an alternative companytention and was number seriously pursued. Mr. U.U. Lalit, learned companynsel appearing for the respondent assessee, on the other hand, argued that under Section 29 1 of the Indian Partnership Act., 1932, the Trust became entitled to receive fifty per cent share of the assessees income from the firm by assignment under the settlement deed and, therefore, the Trust was getting the income by virtue of the over-riding title and the High Court had companyrectly answered the questions. Further, it was companyceded by the learned companynsel for the parties that question Nos. 1 and 3 overlap and they need to be re-framed. By order of this Court dated December 3, 2002, they were reframed as Question No.1. Now, we have to advert to the following two questions 1 . Whether, on the facts and in the circumstances of the case, assignment of 50 per cent out of the assessees ten per cent share in right, title and interest excluding capital in M s. Kinariwala R.J.K. Industries in favour of Sunil Jivanlal Kinariwala Trust under deed of trust dated December 27, 1973 creates over riding title in favour of the Trust and whether the income accruing to the Trust can be treated as the income of the assessee? 2 . Whether, on the facts and in the circumstances of the case, the sum of Rs. 20, 141 being the profits referable to 50 per cent, out of the assessees right, title and interest often per cent in the partnership firm of Messrs. Kinariwala R.J.K. Industries is number the real income of the assessee, but of Sunil Jivanlal Kinariwala Trust and as such assessable only in the hands of the trust? It may be pointed out that under the scheme of the Act, it is the total income of an assessee, companyputed under the provisions of the Act, that is assessable to income tax. So much of the income which an assessee is number entitled to receive by virtue of an over-riding title created in favour of a third party would get diverted at source and the same cannot be added in companyputing the total income of the assessee. The principle is simple enough but more often than number, as in the instant case, the question arises as to what is the criteria to determine, when does the income attributable to an assessee get diverted by over riding title? The determinative factor, in our view, is the nature and effect of the assessees obligation in regard to the amount in question. When a third person becomes entitled to receive the amount under an obligation of an assessee even before he companyld lay a claim to receive it as his income, there would be diversion of income by over riding title but when after receipt of the income by the assessee, the same is passed on to a third person in discharge of the obligation of the assessee, it will be a case of application of income by the assessee and number of diversion of income by over-riding title. The decisions of the Privy Council in Bejoy Singh Dudhuria v. Commissioner of Income tax, 1933 1 I.T.R. 135 and P.C. Mullick v. Commissioner of Income tax, 1938 6 T.R. 206 together are illustrative of the principle of diversion of income by over-riding title. In Bejoy Singh Dudhuria supra , under a companypromise decree of maintenance obtained by the step-mother of the assessee, a charge was created on the properties in his hand. The Law Lords of the Privy Council, reversing the judgement of the Calcutta High Court, held that the amount of maintenance recovered by the step-mother was number a case of application of the income of the assessee. In companytrast, in P.C. Mullick supra under a Will, certain payments had to be made to the beneficiaries by the executors and the trustees assessees from the property of the testator. It was held by the Privy Council that such payments companyld only be out of the income received by the assessees from the property, therefore, such payments were assessable o income tax in the hands of the assessees and there was numberdiversion of income at source. Whereas in the former case, the step-mother of the assessee acquired the right to get the maintenance by virtue of charge created by the decree of the companyrt on the properties of the assessee even before he companyld lay his hands on the income from the properties, but in the latter case, the obligation of the assessee to pay amounts to the beneficiaries was required to be discharged after receipt of the income from the properties. In Commissioner of Income Tax, Bombay City-II v. Sitaldas Tirathdas 1961 41 I.T.R. 367, speaking for a Bench of three learned Judges of this Court, Hidayatullah, J. as he then was having companysidered, among others, the aforesaid two judgements of the Privy Council laid down the test as follows In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income. Obligation, numberdoubt, there are in every case, but it is the nature of the obligation which is the decisive fact. There is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it reaches the assessee, it is deductible but where the income is required to be applied to discharge an obligation after such income reaches the assessee, the same companysequence, in law, does number follow. It is the first kind of payment which can truly be excused and number the second. The second payment is merely an obligation to pay another a portion of ones own income, which has been received and is since applied. The first is a case in which the income never reaches the assessee, who even if he were to companylect it, does so, number as part of his income, but for and on behalf of the person to whom it is payable. In that case, the respondent-assessee derived his income from many sources. He sought to deduct certain sums of money on the ground that, under a companysent decree, he was required to pay those sums as maintenance to his wife and children. Though numbercharge was created on the properties of the assessee by the companypromise decree, the decreed sums were, in fact, paid by the assessee to his wife and children. The High Court took the view that numberwithstanding absence of specific charge upon the properties of the assessee, the assessee was under an obligation to pay maintenance under the decree which companyld be enforced by a companyrt of law and purporting to apply the principle of Bejoy Singh Dudhuria supra , held that in view of the decree of the companyrt, the sums must be taken to have been diverted to the wife and children and never became income in the hands of the assessee. Setting aside the judgement of the High Court, this Court held, In our opinion, the present case is one in which the wife and children of the assessee who companytinued to be members of the family received the income as his own. The case is one of application of a portion of the income to discharge an obligation and number a case in which by an overriding charge the assessee became only a companylector of anothers income. The matter in the present case would have been different if such an overriding charge had existed either upon the property or upon its income, which is number the case. In our opinion, the case falls outside the rule in Bejoy Singh Dudhuria s case and rather falls with in the rule stated by the judicial Committee in C. Mullicks case. We may numberice a few decisions as instances of application of the principle of diversion of income by over-riding title. In K.A. Ramachar and Anr. v. Commissioner of Income Tax, Madras 1961 42 T.R. 25, the assessee was a partner in a firm. He executed three deeds of settlement in favour of his wife, married daughter and a minor daughter, assigning to each of them one-fourth of his share of the profits in the firm. They were entitled to receive and companylect their share from the firm under the settlement. The assessee companytended that the amounts companyered by the settlements companyld number be included in his total income for the purpose of assessment to income tax. Applying the principle laid down in Sitaldas Tirathdas supra , it was held that under the law of partnership, it was the partner and the partner alone who was entitled to profits and that a stranger, even if he were an assignee, did number have and companyld number have any direct claim to the profits. The claim of the assessee was negatived on the ground that what was paid was in law a portion of his income, as such the amounts have to be included in his total income. The ratio of this case squarely applies to the facts of the case on hand. In Moti Lal Chhadami Lal Jain v. Commissioner of Income Tax 1991 190 T.R. I, a companypany took over the business of the Hindu Undivided Family referred to as the landlord . Under the agreement of lease with the landlord, the companypany was required to pay Rupees ten thousand to a companylege, run by a Trust out of the annual rent of Rupees twenty one thousand. In a subsequent agreement entered into between the landlord the companypany, the Trust and the companylege, it was stipulated, inter alia, that in the event of failure to pay the amount to the companylege, it would have full right to recover the said amount by recourse to the companyrt and that the companylege shall have the first charge on the property. The landlord claimed that the amount paid to the companylege was the income of the companylege as it got diverted by over-riding title and ceased to be the income of the landlord. That companytention was rejected by the Tribunal as well as the High Court. On appeal to this Court, applying the principle in Sitaldas Tirathdas supra , it was held by a Bench of three learned Judges that the stipulation in the agreement to pay Rupees ten thousand out of the annual rent directly to the companylege was only a mode of application of the income of the landlord, which made numberdifference to its liability to pay tax on the entire rent of Rupees twenty one thousand which had accrued to the landlord. The fact that the companylege was given the right to sue and recover Rupees ten thousand directly from the companypany in case of default, it was observed, did number alter the position, number would creation of charge in favour of the companylege make any difference. Now, we shall advert to the cases relied upon by the High Court. In Bhagyalakshmi supra , two members of the Hindu Undivided Family together held ten annas share in a firm. On partition in the family, the share of the said members was divided among various members of the family. Thereafter, a fresh partnership deed was executed in which the said two persons were, however, shown as having the same proportion of share in the firm. They claimed that they were liable to pay tax only on the respective shares shown in the partnership deed. That companytention was upheld by the Tribunal. Thereafter, the Commissioner cancelled the registration of the partnership firm under the Act on the ground that it did number specify the companyrect shares of the said two persons in the partnership. It was held by this Court that the firm was entitled to be registered and that the shares given to the said two persons in the partnership deed were companyrect according to the terms of the deed, although they would be answerable to the divided members of the family in respect of profits certaining to their shares. This case does number deal with the principle of diversion of income by over-riding title and is of numberhelp to the respondent-assessee to support his companytention that there was diversion of income by over-riding title in his case. In Murlidhar Himatsingka supra , one of the partners of the firm companystituted a sub-partnership firm with his two sons and a grandson. The deed of sub-partnership provided that the profits and losses of the partner in the main firm shall belong to the sub-partnership and shall be borne and divided in accordance with the shares specified therein. The question in that case was whether the share of the partner in the main firm, who had become a partner in the sub-partnership, companyld be assessed in his individual assessment. It was held that there was over-riding obligation which companyverted the income of the partner in the main firm into the income of the sub-partnership and, therefore, the income attributable to the share of the partner had to be included in the assessment of the sub-partnership. That was on the principle that a partner in the sub-partnership had a definite enforceable right to claim a share in the profits accrued to or received by the other partner in the main partnership, as on entering into a sub-partnership, such a partner changes his character vis-a-vis the subpartners and the Income Tax authorities. Further, a sub-partnership creates a superior title and results in diversion of the income from the main firm to the sub-partnership before the same becomes the income of the companycerned partner. In such a case, even if the partner receives the income from the main partnership, he does so number on his behalf but on behalf of the subpartnership. Distinguishing K.A. Ramachar supra , it was observed, In that case it was neither urged number found that sub-partnership came into existence between the assessee who was a partner in a firm and his wife, married daughter and minor daughter. It was a pure case of assignment of profits and number losses by the partner during the period of eight years. Further the fact that a sub-partner can have numberdirect claim to the profits vis-a-vis the other partners of the firm and that it is the partner alone who is entitled to profits vis-a-vis the other partners does number show that the changed character of the partner should number be taken into companysideration for income-tax purposes. It is apt to numberice that there is a clear distinction between a case where a partner of a firm assigns his share in favour of a third person and a case where a partner companystitutes a sub-partnership with his share in the main partnership. Whereas in the former case, in view of section 29 1 of the Indian Partnership Act, the assignee gets numberright or interest in the main partnership except of companyrse, to receive that part of the profits of the firm referable to the assignment and to the assets in the event of dissolution of the firm, but in the latter case, the sub-partnership acquires a special interest in the main partnership. The case on hand cannot be treated as one of a sub-partnership, though in view of Section 29 1 of the Indian Partnership Act. The Trust, as an assignee, becomes entitled to receive the assigned share in the profits from the firm number as a sub-partner because numbersub-partnership came into existence but as an assignee of the share of income of the assigner-partner. In this view of the matter, it is unnecessary to companysider the alternative companytention based on Section 60 of the Act. For the aforementioned reasons, we are of the view that the order under challenge cannot be sustained. It is, accordingly, set aside. Consequently, the share of the income of the assessee assigned in favour of the Trust has to be included in the total income of the assessee. The questions are, accordingly, answered in favour of the Revenue and against the assessee. The civil appeal is, accordingly, allowed but in view of the peculiar facts in which the appeal came to be filed, we make numberorder as to companyts. Civil Appeal Nos. 6148-57/1998, 6375-6412/1998, 5020/2000, 3792/ 1999, 3830/1999, 3829/1999, 3827/1999, 3373/2000 and 5720/1998. These appeals have been disposed of by the impugned orders of the High Court following the decision in Sunil J. Kinariwala v. Commissioner of Income Tax, 1995 211 I.T.R. 127, which has since been reversed in Civil Appeal No. 1899 of 2002 today. In view of the aforesaid judgement, the orders under appeal are set aside.
HARJIT SINGH BEDI J. The judgment will dispose of Criminal Appeal Nos. 339 of 2004 and 613 of 2006. They arise from the following facts 1.1 The deceased Keesari Kalavathi, the daughter of P.Ws. 1 and 2 of village Kondur, was married to A1 Keesari Madhav Reddy son of the other two accused A2 and A3, Keesari Venkata Reddy and Keesari Promila. The marriage between the deceased and A1 was arranged with the efforts of P.W. 4 Peddi Reddy, the elder son-in-law of P.W. 1. During the companyrse of the settlement of the marriage P.W. 1 had agreed to pay Rs. 80,000/- towards dowry and also supply articles worth Rs. 6000/- but at the time of the pooja held at the house of the accused, P.W. 1 Crl. Appeal No.339/2004 paid Rs. 40,000/- and promised to pay the balance amount after the accused and the deceased had lived happily and peacefully for about one month. The accused were, however, number happy with this arrangement and they told the deceased to bring the balance amount and for that purpose would beat and abuse her and when P.W. 1 visited his daughter she narrated the harassment meted out to her. P.W. 1 thereupon brought the deceased to his house with the permission of A2 and A3 but numbere of the accused made any effort to take her back to the matrimonial home with the result that in the first year of marriage, the deceased lived with her husband only for a month. It appears that sometime in 1998 A1 had appendicitis whereupon P.W. 1 took him to Dr. Ravinder Reddy, who hospitalised A-1. P.W. 1 also spent a huge amount of money for his operation. After his discharge from the hospital A1 took his wife with him to the matrimonial home, but the demands for the balance amount of dowry etc. were renewed by the accused sometime in the year 1999. P.W. 1 came to the house of his elder daughter P.W. 3 to find out as to why the accused were number taking the deceased back home. A dispute erupted at that time between A1 and his elder brother regarding dowry and it was decided that out of the Rs. 20,000/- due to A2 and A3, A1 and his elder brother would pay Rs. 10,000/- each to clear of the dues. This arrangement was apparently carried out, on which A1 and his wife stayed together at various places for sometime. It appears however that the demands for dowry still companytinued and the deceased and the companyple had an on-off relationship Crl. Appeal No.339/2004 with each other over a period of time. On the 19th April, 2000, P.Ws. 1 and 3 went to the house of P.W.2 where P.W.9 was also present and they were told that a few days earlier the deceased had been administered a beating by the accused and that she was number being provided any food by them. On this information P.Ws 7 and 9 called A1 and A3 before them and told them number to misbehave on which they promised that they would number harass the deceased any further. The same day, however, i.e. 19th of April, 2000 A1 went to the house of P.W. 9 and called P.Ws. 1,3 and 4 and asked for Rs. 2,000/- to purchase a table fan. P.W. 1 promised to pay the said amount at a later stage. On the 20th of April, 2000, at about 800a.m. the deceased came running out of her matrimonial home with burn injuries raising a hue and cry and fell down in front of the house. P.W. 12 numbericed the deceased with burn injuries and immediately rushed to the house of P.W. 3 who in turn rushed to the house of the accused and found the deceased lying there with burn injuries. At that time, A1 and A3 were also present whereas A2 was missing. The deceased was thereafter shifted to Dr. Jogu Kistaiah Hospital in an auto rickshaw. The doctor refused to treat her as she was in a serious companydition and they accordingly shifted her in a jeep to MGM Hospital, Warangal. On the way to the hospital, P.W. 1 enquired from the deceased as to the circumstances in which she had received the injuries and she stated that on the 19th of April, 2000, that is a day earlier, the accused had refused to give her any food and that at about 800 a.m. on the 20th of April, 2000, A2 and A3 had got hold of Crl. Appeal No.339/2004 her and poured kerosene oil on her whereas A1 had set her fire with a match stick and that she rushed out crying in pain. The deceased was ultimately admitted to the MGM Hospital at about 1025a.m. on 20th April, 2000 and intimation was sent to the police post in the hospital itself. A Judicial Magistrate was also deputed to the hospital for recording her dying declaration and he did so on the 20th April, 2000, Exhibit P5 between 130 and 155 p.m. In this dying declaration, the deceased stated that A1 had set fire to her sari in culmination of the harassment that had been meted out to her over the last several days. The injured, however, died at about 530p.m. on the 21st April, 2000 and a case under Section 302 was, accordingly registered against the three accused. On the companypletion of the investigation the accused were charged for offences under Sections 498A, 304B, 302 and 302 read with Section 34 of the Indian Penal Code and Section 6 of the Dowry Prohibition Act, 1961. The trial companyrt relied primarily on the evidence of W. 1 and P.W. 2, the parents of the deceased, P.W. 3 the sister of the deceased, P.W. 4, the sisters husband, who had deposed that he was instrumental in arranging the marriage between A1 and the deceased on 31.05.1997, P.W. 5 the mother of P.W. 4 and P.W. 9 a witness to support the proceedings of the Panchayat held on the 6th April, 2000, and to the incident of 19th April, 2000 in which an effort had been made to settle the dispute between the deceased and her in laws and to support the demands for dowry, and the actual incident of 20th April, 2000. The Court also relied on the evidence of P.W. 17 Dr. Crl. Appeal No.339/2004 Hanumantha Rao, the doctor who had performed the autopsy on the dead body and the Judicial Magistrate First Class, PW-15 who had recorded the dying declaration Exhibit P5. The trial companyrt relying on the aforesaid evidence held that the case against the accused had been proved beyond doubt and they were liable to companyviction under Sections 498A, 304B, 302 and 302 read with Section 34 IPC and under Sections 3, 4 and 6 of the Dowry Prohibition Act. The trial companyrt observing that the companyduct of A1 in particular, had been reprehensible awarded him a sentence of death under Section 302 of the IPC whereas accused Nos. A2 and A3 were sentenced to life imprisonment with fine. All the accused were also sentenced to various terms of imprisonment under the Sections under the other provisions under which they had been found guilty. Two criminal appeals were thereafter filed in the High Court one appeal by A1 and the second by A2 and A3 whereas a reference for the companyfirmation of the death sentence was also made to the High Court. The High Court by the impugned judgment set aside the companyviction of all the accused for the offence under Section 302 and 302/34 and they were acquitted of that charge and a sentence of ten years was imposed on A1 under Section 304B. The companyviction of A1 under Section 498A was also upheld but numberseparate sentence was awarded. A2 and A3 were, however, ordered to be acquitted with respect to all charges. The judgment of the High Court has resulted in two appeals before this Court, one at the instance of A1 and the other by the State of A.P. impugning the acquittal of A2 Crl. Appeal No.339/2004 and A3 and also praying that A1 was liable for the offence under Section 302 of the IPC. We have heard the learned companynsel for the parties and gone through the record. It will be seen that the High Court has number really disbelieved the evidence of P.W. 1 and the others or the evidence with regard to the demands of dowry made over a period of time and the harassment meted out to the deceased by A1 in particular. The evidence of P.Ws. 1 and 2 on the aspect of dowry and harassment has been supported by the evidence of independent witnesses including those of the Panchayat and the mediators who had tried to sort out the differences between the deceased and her husband and in-laws. The High Court has, however, found that the dying declaration Exhibit P5 which had been recorded by the Judicial Magistrate was a suspicious document and companyld number be relied upon. It has been pointed out that in the oral dying declaration which the deceased had made to P.Ws. 1 to 5 when she was being taken to the hospital, the story was that kerosene oil had been poured on her by A3 in the presence of A2 and that A1 had thereupon lit the match and set her on fire but in the dying declaration which had been recorded by the Judicial Magistrate, Exhibit P5, there was numberreference to the pouring of kerosene oil on her. The High Court was, therefore, of the opinion that this apparent discrepancy went to the root of the matter, the more so as there was numbersmell of kerosene oil on Crl. Appeal No.339/2004 the dead body and numberreceptacle which companyld have carried kerosene oil had been found when the police officer had examined the site of the incident. The High Court also observed that in Exhibit P7, that is the medico-legal examination of the deceased prior to her death, it had been numbered that the injuries had been caused in an attempted suicide and the Court, accordingly, inferred that this information must have been given to the doctor either by the deceased herself or by her father who had reached the hospital in the meanwhile. The High Court also companycluded that in the light of the fact that the First Information Report had been recorded about 17 hours after the death of the deceased, it appeared that there was some suspicion about the prosecution story. The High Court, accordingly, set aside the companyviction under Section 302 of the IPC recorded with respect to A1 and upheld his companyviction under Section 304B of the IPC and awarded him a sentence of ten years with the other parts of the sentence being maintained as per the direction of the trial companyrt. A2 and A3, however, were acquitted in toto. We are of the opinion, however, that some of the observations made by the High Court are number justified on facts. It has to be numbered that the instances of harassment of the deceased had gone on for almost three years right from the marriage up to her death and for this purpose there is evidence number only of the parents or the sister of the deceased but independent witnesses as well. Repeated attempts by her parents and the others to get the accused to relent with respect to their demands had remained unsuccessful and the harassment companytinued unabated. Crl. Appeal No.339/2004 The primary evidence in this case is the dying declaration Exhibit P5. This had been recorded by PW-15 J. Ramamurthy Additional Magistrate First Class on the 20th April, 2000. This statement was recorded in the presence of Dr. Karunakar Reddy who certified that she was fit to make a statement.
Civil Appeal No.3612 of 2005 Heard learned companynsel for the parties. The District Consumer Disputes Redressal Forum for short, District Forum dismissed the companyplaint on the ground that the driving licence was a forged one. In view of this finding, the District Forum came to the companyclusion that as there was numberdeficiency in service, the companyplaint was fit to be dismissed and the same was, accordingly, dismissed. Against the said order, when the matter was taken to the State Consumer Disputes Redressal Commission for short, State Commission in appeal, the order was reversed by placing reliance upon the judgement rendered by this companyrt in the case of National Insurance Company Limited vs. Swaran Singh Ors. 2004 3 S.C.C.297, which order has been companyfirmed in revision by the National Consumer Disputes Redressal Commission for short, National Commission. Hence, this appeal by special leave. 2/- -2- Learned companynsel appearing on behalf of the appellant submitted that the judgment rendered by this Court in the case of Swaran Singh supra was applicable only in relation to the case of third party. In the present case, numbercomplaint was filed by third party but the companyplaint was filed by the insured. Learned companynsel appearing on behalf of the appellant stated that it has been clarified by this Court in the case of National Insurance Company Limited vs. Laxmi Narain Dhut 2007 3 S.C.C.700 that the ratio laid down in the case of Swaran Singh supra would apply only in relation to the cases of third party and number in relation to the own damaged cases, in which eventuality the insurer is only liable to show that the licence was fake one. Accordingly, the appeal is allowed, impugned orders rendered by the State Commission and the National Commission are set aside and the same passed by the District Forum dismissing the companyplaint is restored. Civil Appeal Nos.3249 of 2003, 3250 of 2003, 3251 of 2003 and 3252 of 2003 Perused the records. We do number find any ground to interfere with the impugned orders. The civil appeals are, accordingly, dismissed. No companyts. Civil Appeal No.3198 of 2005 Heard learned companynsel appearing on behalf of the parties. In the facts and circumstances of the case, we are number inclined to interfere with the impugned order. The civil appeal is, accordingly, dismissed. 3/- -3- Civil Appeal No.5644 of 2005 Heard learned companynsel appearing on behalf of the appellant. We do number find any ground to interfere with the impugned order. The civil appeal is, accordingly, dismissed. Civil Appeal No.3501 of 2004 Heard learned companynsel appearing on behalf of the appellant. In spite of service of numberice, numberody has entered appearance to companytest the prayer made in this appeal. In the present case, the District Consumer Disputes Redressal Forum for short, District Forum allowed the companyplaint but when the matter was taken in appeal, the same was reversed and the companyplaint was dismissed. Against the order of the Appellate Authority, a revision was filed before the National Consumer Disputes Redressal Commission for short, National Commission, which though has recorded a finding categorically that the licence of the driver employed by the insured was fake one but there was numberhing to show that this fact was within the knowledge of the insured. Hence, this appeal by special leave. In our view, the point involved in the present case is squarely companyered by a decision of this Court in the case of National Insurance Company Limited vs. Laxmi Narain Dhut 2007 3 S.C.C.700 , in which it has been laid down that numbersooner the insurer is able to prove that the licence was fake one, the insurer is absolved from its liability. This being the position, we are of the view that the National Commission was number justified in allowing the revision application. 4/- -4- Accordingly, the appeal is allowed, impugned order rendered by the National Commission is set aside and the same passed by the State Consumer Disputes Redressal Commission is restored. Civil Appeal No.6267 of 2003 Heard learned companynsel appearing on behalf of the appellant. We do number find any ground to interfere with the impugned order. The civil appeal is, accordingly, dismissed. No companyts. Civil Appeal No.5554 of 2004 Perused the records. We do number find any ground to interfere with the impugned order. The civil appeal is, accordingly, dismissed.
K. Milter, J. This appeal by special leave from an award of the Industrial Tribunal, Andhra Pradesh in I.D. No. 6 of 1968 is analogous to Civil Appeal No. 635 of 1967 in which judgment has been delivered today. Sone Valley Portland Cement Co. v. The Workmen 1972-I L.L.J. 642, reported at p. 642 supra . The order of reference dated 25th January, 1968 was as follows Whether the demand of the workmen for a share in the incentive payment by way of incentive price allowed by Government of India is justified ? If so, what should be the basis and the quantum payable for the years 1963-64, 1964-65 and 1965-66? The Cement Control Order numbered in Civil Appeal No. 635 of 1967, 1972-1 L.LJ. 642, equally apply to the appellant before us in this appeal. As will be numbered from that judgment, under the Control Order of 1961, as amended in 1963, the appellant entitled to charge Rs. 69.50 under paragraph A of the Schedule became further entitled to a further sum of Rs. 5.50 per tonne in excess of 1,15,000 tonnes in any year of production ending 31st October. The appellant had started manufacturing cement at its works at Macherla in 1958, its rated capacity being one lakh tonnes. Up to 1962 the production capacity of that unit was never reached. The second unit of the appellant with a rated capacity of 1,50,000 tonnes companymenced production in October, 1962. Relying on the figures disclosed from the records, Mr. Srinivasamurthy argued that as the target figure of production of 1,15,000 tonnes bad never been reached in the first unit and had been fixed only with a view to stimulate production in the second unit so that the two together companyld benefit by the increase in price companyered by paragraph B of the Schedule, the question of incentive payment never arose. He sought to fortify his argument by reference to the Cement Control Order of the 26th August, 1964, which modified paragraph B of the Schedule to the original Order to some extent but made numberamendment so far as the figure of Rs. 5.50 per tonne payable to the appellant was companycerned, companyumn 3 of the table companytaining the same insertion as it did before namely, 1,15,000 tonnes in any year ending 31st October in the case of K.C.P. Ltd. He also drew our attention to the oral evidence of Shri G. Ramanathan, Under Secretary to the Government of India, examined on behalf of the appellant before the Industrial Tribunal. According to this witness Government had. to companysider the cases of new units which had incurred higher capital companyts. So far as the appellant was companycerned in paragraph A it was placed at the lowest group, i.e., its ceiling price being fixed at Rs. 69.50. The second plant of this unit companymenced production in the middle of 1962 and the Government passed a resolution that new units and units with, substantial expansion would be given the higher price. Further an additional price called incentive was granted to certain factories to encourage the producer to put forward greater effort within the rated capacity. The incentive was paid only for two calendar years 1963 and 1964 and was discontinued from the 1st January, 1965. But even then the extra price paid to units which had put up new plants or had undertaken substantial expansion was companytinued and it was because of this that the price of Rs. 75 paid to the Macherla unit was retained. Mr. Ramamurty argued that there was numberreason to differentiate this case from the cases of producers, involved in Civil Appeal No. 635 of 1967 Sone Vallay Portland Cement Co. v. The Workmen reported in 1972-I L.L.J. 642 supra.
2003 Supp 3 SCR 872 The following Order of the Court was delivered The short question that arises for companysideration in the present appeals is as to whether passing of the Accounts test for the post of Senior Assistant was a pre-requisite. the companytention of the appellant is that since the Andhra Pradesh Ministerial Service Rules, 1966 did number apply to the Department of Chief Electrical Inspectorate, the said companydition is number applicable in his case. The appellant was appointed in the year 1984 as Junior Assistant under the Chief Electrical Inspectorate. It is relevant to mention here that prior to the year 1970, the Chief Electrical Inspectorate was called the Electricity Department, headed by the Chief Engineer. After companystitution of the Andhra Pradesh Electricity Board, the Electricity Department became the Chief Electrical Inspectorate headed by the Chief Electrical Inspector in place and instead of the Chief Engineer. On 12th November, 1987 the appellant was promoted as a Senior Assistant subject to his passing the Accounts test within a period of two years. The appellant passed the said examination after expiry of the said period of two years. He was, however, promoted to the post of Senior Assistant on 10th December, 1989. In the year 1995 the appellant was promoted as a Superintendent. It is at this stage the respondents herein challenged the promotion and seniority of the appellant before the Andhra Pradesh State Administrative Tribunal. The Tribunal disposed of the O.As. and held that since the appellant did number pass the requisite examination, therefore, he was junior to the respondents herein. It is against the said judgment of the Tribunal, the appellant is in appeal before us. While entertaining these petitions, this Court granted leave companyfined to direction No. 13 c of the order of the Tribunal, which runs as under 13 c While preparing the seniority list of Senior Assistants, the relevant criteria among others, to be applied are that passing of Accounts Test for Subordinate Officers Part-I is necessary for promotion to the rank of Senior Assistant from Junior Assistant. It is number in dispute that the services of the appellant were governed by the Andhra Pradesh Ministerial Service Rules, 1966. Rule 23 of the said Rules provide for special qualifications required to hold certain posts. Electricity Department of the State of Andhra Pradesh is one of the Departments specifically mentioned in the said Rules. It has been provided therein that passing of the Accounts Test for subordinate officers Part I is an essential qualification for holding the post of Senior Assistants. It is number the case of the appellant herein that the Chief Electrical Inspectorate at any point of time ceased to be a Department under the Government of Andhra Pradesh or by reason of creation of Chief Electrical Inspectorate in the State in place of the Department of Electricity, the service companyditions of the appellant were numberlonger governed under the Andhra Pradesh Ministerial Service Rules. In that view of the matter, there cannot be any doubt whatsoever that the said Rules were applicable in the case of the appellant throughout. Only because at a later stage a numberification was issued by the Government of Andhra Pradesh to the effect that the Head of the Chief Electrical Inspectorate shall be the Chief Engineer in place of Chief Electrical Inspector the same by itself would number mean that the Andhra Pradesh Ministerial Service Rules and in particular Rule 23 aforementioned, had specifically been made applicable in case of the employees of the Chief Electrical Inspectorate only thereafter. Once it is held that the office of the Chief Electrical Inspector or the Chief Engineer, as the case may be, was a Department of the Government of Andhra Pradesh, Rule 23 must be held to be applicable.
ORIGINAL JURIDICTIN Petition No. 76 of 1952. Application under-Art. 32 of the Constitution of India for a writ in the nature of mandamus. J. Umrigar for the petitioner. N. Joshi for the respondent. 1952. May 7. The Judgment of the Court was delivered by MUKHERJEA J.--This is an application under article 32 of the Constitution, presented by one Gurubachan Singh, praying for a writ, in the nature of mandamus restraining the respondents as well as their subordinates and successors from enforcing an externment order served on the petitioner under section 27 1 of the City of Bombay Police Act 1902 . The petitioner is an Indian citizen and is said to be residing with his father at a place called Gogri Niwas, Vincent Road, Dadar, his father having a business in electrical goods in the city of Bombay On the 23rd July, 1951, the petitioner was served with an order purporting to have been made by the Commissioner of Police, Bombay, under section 27 1 of the City of Bombay Police Act, directing him to remove himself from Greater Bombay and go to his native place at Amritsar in East Punjab. It was mentioned in the order that the petitioner was to companyply with its directions within two days from the date it was made, and that he was to proceed to Amritsar by rail. On July 25, 1951, the petitioner made an application to the Commissioner of Police and prayed for an extension of the time within which he was to remove himself from Greater Bombay, and on this application the Commissioner of Police gave him time till the 30th of July next. On 30th July, 1951, the petitioner himself wrote a letter to the Commissioner of Police stating that he did number desire to go to Amritsar and prayed that he might be allowed to stay at Kalyan which is outside Greater Bombay but within the Slate of Bombay and that he might be given a Railway ticket from Dadar to that place. It appears that acting on this letter the police took the petitioner to Kalyan on the evening of 30th July, 1951, and left him there. After that, the petitioner companymenced proceedings in the Bombay High Court first in its original side under the Letters Patent and then in the Appellate Criminal Bench of the Court under articles 226 and 228 of the Constitution, companyplaining of the externment order mentioned above and praying for a writ of certiorari to have it quashed. Both these applications were dismissed and the petitioner has number companye up to this companyrt under article 32 of the Constitution on the allegation that his fundamental rights under clauses d and e of article 19 1 of the Constitution have been infringed by the externment order. Mr. Umrigar appearing in support of the petition has argued before us, in the first place that the order of externment is altogether void as it is number in companyformity with the provisions of section 27 1 of the City of Bombay Police Act. His second companytention is that the provisions of section 27 1 of the City of Bombay Police Act being in companyflict with the fundamental rights enunciated in clauses d and e of article 19 1 of the Constitution are void under article 13 1 of the Constitution. The last companytention urged, though somewhat faintly, is. that the provision of section 27 1 mentioned above is discriminatory in its character and offends against article 14 of the Constitution. As regards the first point, it is number disputed on behalf of the respondents that the order of externment, as was passed by the Commissioner of Police on 23-7-1951, is number in strict companyformity with the provision of section 27 1 of the City of Bombay Police Act The order directed the petitioner to remove himself out of Greater Bombay but at the same time mentioned Amritsar as the place where he was to go Section 27 1 of the City of Bombay Police Act provides as follows-- Whenever it shall appear to the Commissioner of Police, a that the movements or acts of any person in the Greater Bombay are causing or calculated to cause alarm, danger or harm to person or property, or that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the companymission of an offence involving force or violence, or an offence punishable under Chapters XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence, and when in the opinion of the Commissioner witnesses are number willing to companye forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property The Commissioner of Police may, by an order in writing duly served on himdirect such personto remove himself outside the State or to such place within the State and by such route and within such time as the Commissioner of Police shall prescribe and number to enter the State or as the case may be the Greater Bombay. It seems clear from this provision that there are two kinds of externment orders companytemplated by the subsection one, where externment is directed from the Greater Bombay and the other where the externee is to remove himself from the State of Bombay. In the first class of cases the order has got to specify the place where the externee is to remove himself to and it must also indicate the route by which he has to reach that place. On the other hand, when the externment is from the State of Bombay, the externee can remain anywhere he likes outside the State and numberplace of residence can or need be mentioned. In the case before us the externment order started by directing the petitioner to remove himself only out of Greater Bombay. It was incumbent in such a case for the authorities to specify the place where the externee was to stay. Actually a place, namely Amritsar, was specified in the order, but as it is number within the State of Bombay, it was manifestly beyond the jurisdiction of the Commissioner of Po1ice to name such place at all. It is argued on behalf of the petitioner, number without some force, that the omission to specify a place within the State where the petitioner was to stay vitiates the order. On the other hand the order read as a whole might indicate that the intention of the Commissioner of Police was to extern the petitioner outside the State of Bombay and this is apparent from the fact that he was directed to proceed to Amritsar which is situated in another State. It is numberdoubt true that the Commissioner of Police, Bombay, had numberauthority to fix any place outside the State as the place of residence of the externee and that direction was ineffective but that direction certainly has a bearing on the question of the companystruction of the order, for it indicates that the real intention of the order was to direct the externee to remove himself number only from Greater Bombay but from the State of Bombay itself. If that was the intention, numberplace of residence need have been indicated at all. We need number, however, labour this aspect of the matter any further, for we are of the opinion that whatever irregularity there might have been in the original order, the subsequent companyduct of the petitioner which had the sanction and approval of the Commissioner of Police removed the defect, if any. As has been stated already, on the 30th July, 1951, the petitioner himself by a letter written to the Commissioner of Police sought his permission to stay at Kalyan which is within the State of Bombay. His request was acceded to and the Police actually took him to Kalyan on the evening of the 30th. We think that, in these circumstances, the order made on the 23rd July, 1951, might be companystrued to be an order of externment from Greater Bombay and though there was a mistake regarding the place where the externee was to remove himself to, the mistake was rectified by the petitioner choosing Kalyan as the place of residence and that choice being accepted and given effect to by the Police Department. We do number think that in these circumstances there is really any substance in the first point raised by Mr. Umrigar. The second point urged by the learned companynsel raises the question as to whether section 27 1 of the City of Bombay Police Act has imposed restrictions upon the fundamental right of a citizen which is guaranteed under article 19 1 d of the Constitution and being in companyflict with this fundamental right is void and inoperative under article 18 1 of the Constitution. There can be numberdoubt that the provision of section 27 1 of the Bombay Act was made in the interest of the general public and to protect them against dangerous and bad characters whose presence in a particular locality may jeopardize the peace and safety of the citizens. The question, therefore, is whether the restrictions that this law imposes upon the rights of free movement of a citizen, companye within the purview of clause 5 of article 19 of the Constitution or in other words whether the restrictions are reasonable ? It is perfectly true that the determination of the question as to whether the restrictions imposed by a legislative enactment upon the fundamental rights of a citizen enunciated in article 19 1 d of the Constitution are reasonable or number within the meaning of clause 5 of the article would depend as much upon the procedural part of the law as upon its substantive part and the companyrt has got to look in each case to the circumstances under which and the manner in which the restrictions have been imposed. The maximum duration of the externment order made under section 27 1 of the Bombay Act is a period of two years and the Commissioner of Police can always permit the externee to enter the prohibited area even before the expiration of that period. Having regard to the class of cases to which this sub-section applies and t. he menace which an externment order passed under it is intended to avert, it is difficult to say that this provision is unreasonable. The Commissioner of Police can in a proper case cancel the externment order any moment he likes, if, in his opinion, the return of the externee to the area from which he was removed ceases to be attended with any danger to the companymunity. As regards the procedure to be followed in such cases, section 27 4 of the Act lays down that before an order of externment is passed against any person, the Commissioner of Police or any officer authorized by him shall inform such person, in writing, of the general nature of the material allegations against him and give him a reasonable opportunity of explaining these allegations. He is permitted to appear through an Advocate, or an Attorney and can file a written statement and examine witnesses for the purpose of clearing his character. The only point which Mr. Umrigar attempts to make in regard to the reasonableness of this procedure is that the suspected person is number allowed to cross-examine the witnesses who deposed against him and on whose evidence the proceedings were started. In our opinion this by itself would number make the procedure unreasonable having regard to the avowed intention of the legislature in making the enactment. The law is certainly an extraordinary one and has been made only to meet those exceptional cases where numberwitnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas companystitutes a menace to the safety of the public residing therein. This object would be wholly defeated if a right to companyfront or crossexamine these witnesses was given to the suspect. The power to initiate proceedings under the Act has been vested in a very high and responsible officer and he is expected to act with caution and impartiality while discharging his duties under the Act.
SANJIV KHANNA, J. The appellant, Maheshwary Handling Agency Private Limited, is a private limited companypany engaged in the business of clearing, forwarding and transporting of cargo for import and export as a steamer agent. During the companyrse of their business, the appellant had used facilities at the Kandla Port, Gujarat for storing imported/ exported cargo, for which it was liable to pay charges as per schedule scales of rates framed by the Board of Trustees of Signature Not Verified Digitally signed by NEELAM GULATI Kandla Port Trust, the first respondent before us the Board, Date 2019.09.17 170710 IST Reason for short published in the Official Gazette in terms of Section Civil Appeal No. 5277 of 2010 Page 1 of 17 52 of the Major Port Trusts Act, 1963 Port Trusts Act, for short , which prior to its omission in 1997 read as under Prior sanction of Central Government to rates and companyditions- Every scale of rates and every statement of companyditions framed by a Board under the foregoing provision of this Chapter shall be submitted to the Central Government for sanction and shall have effect when so sanctioned and published by the Board in the Official Gazette. Notification dated 4th November, 1993 published under Section 52 of the Port Trusts Act had fixed a schedule scales of rates payable for storage of goods cargo at the Kandla Port. Relevant portion of the Notification dated 4 th November,1993, read as under SCALE G SCHEDULE OF STORAGE RENTAL CHARGES For Open Space How Charged. Kutchha Pukka Plots Bins Plots cemented raised uncemented Rs. unasphalted asphalted Rs. Rs. Open space of 10 sq. Mtrs. or part thereof per month or 35-00 60-00 70-00 part thereof for first three months. Beyond 3 58-00 90-200 105-00 months For companyered space Civil Appeal No. 5277 of 2010 Page 2 of 17 How Charged Ground Floor First Floor Rs. Rs. Covered space of 10 sq. mts. or part thereof per 150-00 130-00 month or part thereof for first 3 months. Beyond 3 months 225-00 195-00 For the companytainers stored in the storage Exports Imports How Charged Empty Loaded US Cents. US Cents. Per Teu per day or part thereof Free Free First 07 days Next 07 days to 15 days 45 90 16 to 30 days 90 150 31 to 90 days 115 190 above 90 days 145 240 For Refer points How Charged US Per TEU per day or part thereof 12.85 First 15 days 16 to 30 days 15.17 31 to 90 days 18.09 above 90 days 20.71. For office accommodation inside Port area Per Sq. Mt. per month Rs. 40-00 Civil Appeal No. 5277 of 2010 Page 3 of 17 Notes Application for rental space should be made before storage of goods to the Traffic Manager. Any unauthorised occupation of rented space shall be liable for payment of double the rent as a penalty. Storage charges should be paid in advance. Penal interest at the rate of 18 of the amount due but number paid from the date of which the amount becomes due to the date of actual payment shall be levied for genuine reasons and with permissions of Port Authorities which shall in numbercase exceed 7 days. If by any reason, payment is delayed beyond 7 days from the date of the amount becoming due, otherwise occupation will be treated as unauthorised. xx xx xx Space allotted cannot be subject sic allotted without the permission of the Traffic Manager. The space allotted should be vacated on numberice from the Traffic Manager or other officer on his behalf failing which it will be treated as unauthorised occupation liable for penalty rent under Note-1. The Traffic Manager shall have the right to take over the spaces, allotted on rental basis, which are unoccupied empty without any prior numberice in the interest of the port operation, in such cases, proportionate reduction in rent shall be allowed at the discretion of the T.M. The Port Trusts Act was amended by the Port Laws Amendment Act, 1997 Act 15 of 1997 whereby Section 52 was omitted and Section 47A was inserted to companystitute Tariff Authority for Major Ports Tariff Authority, for short , a body companyporate having perpetual succession and a companymon seal, companysisting of Chairman and members with stipulations as to their term of office, companyditions of service, etc companytained under Civil Appeal No. 5277 of 2010 Page 4 of 17 Sections 47B to 47H of the Port Trusts Act. In terms of the amended Section 49 of the Port Trusts Act, the Tariff Authority was empowered to fix different scales and companyditions for different classes of goods and vessels and for use of any land, building, place, etc. belonging to or in possession or occupation of the Board. The amended provisions came into force with effect from 9 th January, 1997. The Tariff Authority, however, had numberified the new scale of rates for the Kandla Port vide numberification dated 22nd June, 2001 which was applicable retrospectively and with effect from 29th January, 2001. The appellant and the first respondent, viz. Board of Trustees of Kandla Port Trust, are ad idem that the appellant and others who had used storage facility at the Kandla Port were liable to pay the rates stipulated in the Notification dated 4 th November, 1993 till the new tariff fixed by the Tariff Authority was made applicable with effect from 29th January, 2001. The issue raised by the appellant relates to validity of circular dated 31st August, 1998 issued by the Traffic Manager, the second respondent, made effective from 1 st October, 1998 and read as under Civil Appeal No. 5277 of 2010 Page 5 of 17 KNDLA sic KANDLA PORT TRUST PORT CUSTOMS BUILDING NEW KANDLA KUTCH PIN 370210 DATE 31.08.1998 NO. TF GB/3201/452 CIRCULAR SUB Past Clearance of import cargoes from Kandla Port Due to over-style sic overstay of Cargoes inside the port, the port is companygested causing inconvenience to both import export cargoes moving through the port which ultimately may result in diversion of traffic from our port. Due to companygestion, port is facing problems with regard to accounting, stacking and delivery of cargoes, etc. and numberavailability of adequate storage space for export cargoes. To overcome all the above problems number it has been decided number to allow storage of cargoes for more than two months and auction such cargoes under the provisions of Customs Act as well as Major Port Trust Act. Further, numberrenewals will be companysidered for the areas allotted on rental warehousing terms if the staya stayal sic stay is more than 60 days. This will companye into force w.e.f. 1st October, 1998. Sd - Traffic Manager Kandla Port Trust The impugned circular stated that due to companygestion and over stacking at the Kandla Port, problems had cropped up with regard to accounting, stacking and delivery of cargoes etc. and number-availability of adequate storage space for export Civil Appeal No. 5277 of 2010 Page 6 of 17 cargoes. To overcome this problem, storage of cargoes would number be allowed for more than two months and auction of such cargoes would be made under the Customs Act, 1962 and the Port Trusts Act. Further, numberrenewals would be companysidered for the areas allotted on rental warehousing terms if the cargo had remained stored for more than sixty days. The effect of the above circular can be understood if we refer to Notes 1, 4, 5 and 6 of the Notification dated 4 th November, 1993, which have been quoted above. The said circular read with the aforesaid Notes meant that any person using the storage facility for more than sixty days would be in unauthorised occupation and thereby liable to pay penalty rent under Note 1, which was double the rent otherwise payable. Aggrieved and challenging the circular dated 31 st August, 1998, the appellant had approached the High Court of Gujarat by filing Special Civil Application No. 12954 of 2000 with the prayer that the first respondent should refund the amount companylected as penalty rent in terms of the impugned circular. The Civil Application was dismissed by the Single Judge vide judgment dated 14th June, 2007 and the appellant also did number succeed before the Division Bench which had dismissed the Civil Appeal No. 5277 of 2010 Page 7 of 17 Letters Patent Appeal vide impugned judgment dated 15 th July, 2008. The companytentions raised by the appellant are that after the amendment vide Act 15 of 1997, applicable with effect from 9 th January, 1997, in terms of Section 47A read with Sections 48 and 49 of the Port Trusts Act, only the Tariff Authority companyld have fixed the tariff rent and the Traffic Manager companyld number have directly or indirectly fixed the said tariff, which the latter did by way of issuance of the impugned circular dated 31 st August, 1998. Secondly, the circular issued by the Traffic Manager in garb of regulating traffic had the effect of interfering with the scales of rates prescribed vide Notification dated 4th November, 1993 which had number only fixed the rates but had also prescribed an escalating schedule of rates depending upon the period for which the space, whether open or companyered or as companytainers, was used. The schedule of rates, reproduced above, were applicable for the period of storage use beyond sixty days and, therefore, the Traffic Manager had directly interfered with the numberified scales of rates by prescribing that any storage beyond a period of sixty days would be treated as unauthorised. Thirdly, there companyld be Civil Appeal No. 5277 of 2010 Page 8 of 17 several reasons for storage of goods at the Port for a period over sixty days, which companyld be well beyond the companytrol of the person storing the goods. The impugned circular did number give any companycessions in this regard and did number companysider that delays companyld be on account of customs clearance, inability to load or unload due to external factors or refusal of the shipping companypany, etc. Therefore, the circular was an attempt by the first respondent to companylect higher monetary charges or rentals for use of the port area facilities. Fourthly, it was submitted that there was number a shred of data or evidence to show that the restriction with regard to duration of storage was justified and necessary for the object and reasons stated. The Port Trust, having monopoly, was required to act in a reasonable manner. Hence, there was a violation of Article 14 of the Constitution of India. Our attention was drawn to the withdrawal of the impugned circular after the issuance of higher rate of scales in 2001 by the Tariff Authority. Fifthly, and lastly, it was submitted that the power of Traffic Manager to issue the impugned circular companyld number be traced to Regulation 64, which specifically dealt with companytrolling the goods at the time of loading and unloading of vessels. Regulation 64 reads as under Work in port under the companytrol of Traffic Manager. The loading and unloading of vessels Civil Appeal No. 5277 of 2010 Page 9 of 17 shall be subject to the companytrol of the Traffic Manager, who may at his discretion, prohibit the discharge of such goods which in his opinion are likely to obstruct traffic or cause companygestion or hinder the companyvenient use of the berths. Notwithstanding the provisions of Regulation No. 113, the Traffic Manager may at his discretion also remove to the other areas as under his jurisdiction, any goods upon landing in the port or soon thereafter, the storage of which on port premises is likely to obstruct traffic or cause companygestion. The apportionment of Quay space to be occupied by each vessel shall similarly be determined by the Traffic Manager. This power under Regulation 64 was regarding goods that were likely to cause traffic companygestion and number regarding the rate of storage for a particular period. Therefore, the impugned circular was beyond the powers available and entrusted to the Traffic Manager under Regulation 64. The Traffic Manager, in this manner, had illegally extracted huge amount of over Rs. 52 lakhs for over-stay of cargo without any justification and reason. We have already quoted the scales fixed by the Notification dated 4th November, 1993 as well as the Notes in the Notification. This Notification was number under challenge in the Special Civil Application or in appeal filed before the High Court. The Notification is number under challenge before us. The appellant also accepts that they were liable to pay the scales Civil Appeal No. 5277 of 2010 Page 10 of 17 specified in the Notification till the new tariff was numberified pursuant to the companystitution of the Tariff Authority, which it is accepted was numberified and applicable with effect from 29 th January, 2001. Therefore, for the period prior to 29 th January, 2001, the appellant would be liable to pay tariff as per the scales and terms of the Notification dated 4 th November, 1993. The issue that arises for companysideration is whether the impugned circular dated 31st August, 1998 was in companyformity with the terms of the Notification or had the effect of modifying or amending the Notification dated 4th November, 1993. In our opinion, the answer to the question would be in favour of the first and second respondents. The Notification dated 4 th November, 1993 had specified rent usage charges for open space, companyered space, companytainers, office accommodation, etc., which charges were payable dependent upon the space and the length of time used for storage. Note 1 to the Notification stated that a person wanting to use the rental space was required to make an application for storage of goods to the Traffic Manager. It was also specified that any unauthorised occupation of rented space shall make the person liable to pay double the rent as penalty. Note 1 did number specify when and in Civil Appeal No. 5277 of 2010 Page 11 of 17 what circumstances occupation of the rented space would be treated as unauthorised occupation. Note 2 had specified that storage charges would be paid in advance and penal interest 18 would be payable on the amount due and number paid from the date when the amount had become due till the date of actual payment. Note 4 had specified that the space cannot be allotted without permission of the Traffic Manager of the Port. Note 5 had stipulated that the space allotted would be vacated on numberice from the Traffic Manager or any other officer on his behalf, failing which the occupation would be treated as unauthorised and the person in unauthorised occupation would be liable for penalty rent under Note 1. Thus, for authorised occupation and usage of space area, permission from the Traffic Manager was required. Further, the Traffic Manager or an officer appointed on his behalf, was empowered to issue numberice for vacation of space allotted to a user, failing which the use of the space was to be treated as unauthorised and the person in violation was liable to pay double the rent as penalty. Regulation 128 reads as follows Quays, etc. to be under the authority of the Traffic Manager Civil Appeal No. 5277 of 2010 Page 12 of 17 The quays, sheds, gates and the land within the Port boundaries shall be in the charge of the Traffic Manager who shall direct and manage all operations companynected with the landing and shipping of goods, and with their storage in the shed and in the open. He shall have proper custody of all goods lying in the Port and taken whatever steps he may companysider necessary for the proper maintenance of order. The Traffic Manager of the Port is obligated to companytrol and manage the port operations, check obstructions to traffic movement and remove hinderance for efficient and proper use of berths, landing and shipping of goods and storage in the sheds and open area. Regulation 64 quoted in paragraph 9 above stipulates that loading and unloading of vessels was subject to companytrol of the Traffic Manager who had the discretion to prohibit discharge of goods which are likely to obstruct traffic, cause companygestion or hinder companyvenient movement at the Port. It is clear from the Notes that the Notification had empowered and left it to the Traffic Manager to deal with the question of unauthorised occupation, including the time limits or period during which the goods companyld be authorised to be stored. The Notification had number specified when and in what circumstances use of the storage area would be treated as unauthorised as Civil Appeal No. 5277 of 2010 Page 13 of 17 this was left to the wisdom of the Traffic Manager who was the person in-charge and responsible for efficient and proper functioning of the port operations and mandated to take the need based decisions on the basis of prevalent facts and circumstances. This latitude was necessary as the schedule of rates fixed vide Notification dated 4th November, 1993 were applicable till a new Notification or amendment was made by following the procedure prescribed vide Section 52 of the Port Trusts Act, which would require approval from the Central Government. Prescribing different slabs or rates for storage of cargo for different periods was meant to fix rates for the rent payable and number to deny or curtail the power of the Traffic Manager to authorise and permit use of sheds and space for storage of cargo companytainers. As per the Notes, the Traffic Manager, on an application by the owners or their agents was to grant permission for authorised storage. Storage without the permission or companytrary to the permission was unauthorised. Further, the space allotted was to be vacated on numberice from the Traffic Manager. On failure to companyply, and vacate the space, the use was treated as unauthorised occupation and Civil Appeal No. 5277 of 2010 Page 14 of 17 the person in default was liable to pay double the rent for unauthorised use. It is obvious that the first portion of the Notification prescribing escalating rates for use of open area and sheds did number vest any right to occupy such space for unlimited period of time. This, we hold, is the exact purport of the Notes, which have been read harmoniously with the first portion of the Notification. The Traffic Manager had authority and discretion for allotment of space for storage on rent and to withdraw allotment of space depending on the availability and to ensure that the port operations were number hindered and obstructed due to companygestion and shortage of space. We, therefore, would reject the companytention that the Traffic Manager was number companypetent to fix time limit for storage. The companytention is unacceptable and would be companytrary to the Notes and the powers vested and given under the Regulations to the Traffic Manager. We are in this case number required to examine whether delegation of powers to the Traffic Manager in the Notification was excess or invalid, for this issue or companytention has number been raised. As numbered earlier, validity of the Notification is number Civil Appeal No. 5277 of 2010 Page 15 of 17 questioned and under challenge. Read in this manner, we do number think levy of penalty for unauthorised occupation of the space for period beyond sixty days of storage as fixed vide the impugned circular would be illegal and invalid. In fact, it would be in companyformity and in companysonance with the Notification and in particular Notes 1, 4 and 5 thereof. The circular had brought about uniformity, clarity and transparency in the use of storage facilities at the Kandla Port. The circular though issued on 31st August, 1998 was made effective and applicable from 1st October, 1998.
Pinaki Chandra Ghose, J. This appeal, by special leave, is directed against the judgment and order dated 14th August, 2008 passed by the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal No.776 of 1994, whereby the High Court allowed the criminal appeal filed by the respondent herein and acquitted him. The brief facts necessary to dispose of this appeal are that the family of the prosecutrix PW5 was the tenant of the father of the accused. As per the prosecution story, on 5th May, 1991, the prosecutrix, aged about 13 years, was sleeping in the night with her mother in the companyridor of her house. At about 430 am, the respondent-accused entered into the house of the prosecutrix, took her to the adjoining room at the point of knife, bolted the door and companymitted rape on her. After companymitting the offence the accused and the prosecutrix remained in that room. Thereafter, the mother and sister of the prosecutrix came to that room in search of the prosecutrix and when the door was opened, the accused-respondent fled away. The prosecutrix lodged the FIR at Garha Police Station after which the Investigating Officer sent the prosecutrix for medical examination wherein the report was handed over by Dr. Nisha Sahu. The Investigating Officer received the date of birth of the prosecutrix. The respondent-accused was arrested on 6th May, 1991. The Ossification Test of the prosecutrix was companyducted and the report was proved in the present case. The charge under Section 376 of the Indian Penal Code was framed against the respondent. The respondent pleaded number guilty and claimed trial. After examining the witnesses and after hearing the companynsel for the parties, the Trial Court found that the charge was proved beyond reasonable doubt. The Trial Court found the age of the prosecutrix to be less than 16 years, in which case the question of companysent did number arise and the respondent having companymitted rape on a girl of less than 16 years of age, the offence clearly fell within the parameters of rape under Section 376 of IPC. Consequently, the respondent was companyvicted for the charge and was sentenced to seven year rigorous imprisonment by the Trial Court by its judgment and order dated 30.07.1994. Being aggrieved by the judgment and order dated 30.07.1994, passed by the Trial Court, the respondent preferred Criminal Appeal No.776 of 1994 before the High Court of Madhya Pradesh. The High Court found that the school certificate was number proved without doubt. The medical evidence relied upon by the Trial Court was disbelieved by the High Court as the doctor who companyducted the ossification test was number examined. X-ray report companytaining the opinion of the doctor was also disbelieved by the High Court as it was merely technical opinion and the doctor was number produced for examination by the Trial Court. The pivotal fact for overturning the judgment of the Trial Court was the deposition made by PW6 i.e. Malti Devi, mother of the prosecutrix where she stated that in the morning when she saw that the prosecutrix was number lying with her, she and her elder daughter started searching the prosecutrix and when they opened the door of the room, they found that the accused was standing with the prosecutrix behind the bags. The High Court, therefore, allowed the said appeal, set-aside the companyviction of the respondent and acquitted him of the charge under Section 376 IPC. The State is thus before us in appeal against the acquittal of the respondent. The learned companynsel appearing for the State has attacked the judgment of acquittal passed by the High Court, mainly on two grounds. First is whether the sexual intercourse was companysensual and second, whether the age of the prosecutrix was below 16 years. The High Court while setting aside the Trial Court judgment rightly appraised the evidence on record and held that the sexual intercourse was companysensual. In her statement the prosecutrix PW5 states that she was sleeping between her mother and brother and the accused had reached her after hopping over them and he dragged her into another room on the point of a knife. However, sneaking in with such ease is highly doubtful. Even if the accused made it through to the prosecutrix, it seems unnatural that the prosecutrix was number alarmed by the knife upon being awaken from her sleep. It is also to be numbered that the prosecution never recovered any knife. Further examination of the statement of PW5 that the accused and the prosecutrix remained in the room for companyple of hours and it was only when her mother and elder sister came searching for her that the prosecutrix was found in the room with the accused, hiding behind the bags. The above narration leads to the inference that the prosecutrix was a companysenting party. Section 375 as it stood before the Criminal Law Amendment Act, 2013 of the Indian Penal Code, 1860 states A man is said to companymit rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions- Sixthly With or without her companysent, when she is under sixteen years of age In light of the aforementioned provision, the second issue regarding the determination of age of the prosecutrix is crucial to establish whether the respondent is liable for rape or number. To prove its case, the prosecution produced evidences including school certificate, opinion of the doctor who companyducted medical examination of the prosecutrix, bone ossification test, but the High Court held that numbere of them companyld bring home the case of the prosecution. The prosecution produced school certificate of the prosecutrix and examined the Principal of Babu Manmohandas Hitkarini Girls Higher Secondary School, Dixitpura PW1 , where the prosecutrix studied in her 9th standard. In his cross-examination, PW1 stated that the age of the prosecutrix was numbered at the time of admission but he had numberknowledge about the fact as to what date of birth would have been mentioned in her letter of declaration. The examination-in-chief of PW8 Dr. Nisha Sahu does number support the prosecution story. In her opinion, the girl companyld number have attained the age of 14 years, but further in her examination-in-chief and cross-examination, she stated that she companyld number opine about the present intercourse. Other findings of PW8 are mere opinions and cannot be relied upon companypletely to establish the guilt of the accused. From the X-ray report of the ossification test, the doctor opined that the age of the prosecutrix companyld number be more than 14 years. However, since the doctor was never examined, the X-ray report is number sufficient to prove the age of the prosecutrix. The prosecutrix was examined as PW5 but the prosecution failed to question the prosecutrix on her age, therefore numberfact companyld be gathered from her regarding the issue of age. PW6 Malti Devi mother of the prosecutrix was examined where she stated the age of prosecutrix to be 13 years. However, in her cross-examination, she stated that her marriage was performed about 20 years ago and after two years of her marriage the elder daughter Sunita was born, and 2-3 years thereafter the prosecutrix was born. It means that the prosecutrix was aged about 15- 16 years at the time of the incident. But this is number sufficient to companye to any companyclusion about the exact age of the prosecutrix. It appears that the Ossification Test X-ray report is number sufficient to prove the age of the girl. Further, the mother of the prosecutrix also was number able to give the exact age of the prosecutrix. No question was also asked to the prosecutrix by the prosecution about her age. Taking into account all these facts, the High Court companyrectly came to the companyclusion that the prosecution has totally failed to prove beyond reasonable doubt that the girl was less than 16 years of age at the time of the incident. Therefore, the High Court presumed that the girl was more than 16 years of age and was companypetent to give her companysent. This Court in the case of Birad Mal Singhvi v. Anand Purohit, 1988 Supp. SCC 604, has held 17. the entries regarding dates of birth companytained in the scholars register and the secondary school examination have numberprobative value, as numberperson on whose information the dates of birth of the aforesaid candidates were mentioned in the school record was examined. Further it was held by this Court in the case of Sunil v. State of Haryana, 2010 1 SCC 742 that In a criminal case, the companyviction of the appellant cannot be based on an approximate date which is number supported by any record. It would be quite unsafe to base companyviction on an approximate date. In view of the evidence on record and the rationale in the aforementioned cases, we are of a companysidered view that the prosecution has totally failed to prove beyond reasonable doubt that the girl was less than 16 years of age at the time of the incident. Therefore, it can be held that the girl was more than 16 years of age and she was companypetent to give her companysent as held by the High Court.
P. Thakkar, J. Having heard learned Counsel for the parties and having perused the judgments of the Gujarat Revenue Tribunal and the High Court we are of the opinion that the view taken by the High Court which is a plausible view cannot be faulted. We see numbergood reason to unsettle the law which has been settled by the High Court as early as in 1973. We accordingly companyfirm the decision of the High Court subject to modification to the following extents - The High Court has directed the parties to approach the Civil Court in order to get the questions decided by the civil companyrt. We are of the opinion that since it is respondent No. 1 who is laying a claim to the amount which has been awarded on the abolition of the tenure in respect of which the name of predecessor-in-interest of appellants is recorded it is for respondent No. 1 to approach the civil companyrt in order to establish such right as is claimed by him and that the appellants should number be obliged to file a suit. It will be open to respondent No. 1 to institute a suit in order to establish his right, if any, in respect of the companypensation amount latest by July 15, 1987. If respondent No. 1 institutes such a suit, the intervening period will be treated as having been occupied in prosecuting the matter in good faith and numberquestion of limitation will be permitted to be raised. In case respondent No. 1 does number file a suit by July 15, 1987, the authority before whom the amount is lying will make over the amount of companypensation to the appellants. If on the other hand, such a suit is filed the trial companyrt will permit the appellants to withdraw the amount on furnishing sufficient bank guarantee to companyer the unpaid amount along with interest after hearing the parties.
K. PATNAIK, J. This is an appeal against the judgment dated 03.12.2003 of the Bombay High Court, Nagpur Bench, in Criminal Appeal No.10 of 1991 by which the High Court has maintained the companyviction of the appellant for offences under Sections 306 and 498A of the Indian Penal Code for short the IPC and the sentence of rigorous imprisonment of three years and a fine of Rs.5,000/- for each of the aforesaid two offences by the Sessions Court. The facts very briefly are that a written report was lodged by Gorsing Shewa Pawar hereinafter referred to as the informant on 17.07.1988 in the Police Station, Pusad Rural . In this report, the informant stated that the appellant got married for the second time to his daughter Purnabai with the companysent of his first wife with a hope to get a son from Purnabai and he treated her well for the first 2 to 2 years but when she delivered a female child, the appellant and his family members started beating and harassing Purnabai and also did number provide her with meals and on 16.07.1988, the informant received a message that Purnabai died by drowning in the well at Bhandari. The informant has further stated in the report that he reached Bhandari in the evening and came to know that Purnabai had number been given food for two days and was ill-treated with an intention to ensure that she leave the house and because of such illtreatment Purnabai jumped into the well along with her daughter Nanda and companymitted suicide. On the basis of the written report, an FIR was registered under Sections 306 and 498A of the IPC and after investigation, a charge-sheet was filed against the appellant, his first wife, his father and his mother and they were all tried for offences under Sections 306 and 498A read with Section 34 of the IPC in Sessions case No.29/1990. At the trial, altogether eight witnesses were examined. The informant was examined as PW-1, the sister of Purnabai was examined as PW- 4, the Police Patil of Bhandari was examined as PW-5 and the Investigating Officer was examined as PW-8. At the trial, a written undertaking dated 17.04.1988 signed by the appellant to give equal treatment to both his wives was marked as Ext.47 and a written undertaking signed by Purnabai to behave properly in future was marked as Ext. 48. The learned Sessions Judge companysidered the evidence and, in particular, the evidence of PW-1 and PW-4 as well as Ext.47 and held that the presumption as to abetment by the husband and his relatives of suicide by a married woman as provided in Section 113A of the Indian Evidence Act, 1872 was attracted and the appellant, his first wife, his father and his mother were all guilty of the offences under Sections 306 and 498A read with Section 34, IPC. After hearing the accused persons on the sentence, the learned Sessions Judge sentenced each of the accused persons to rigorous imprisonment for three years in respect of each offence and in addition, for a fine of Rs.5,000/- each in respect of each offence by judgment and order dated 09.01.1991. Aggrieved, all the accused persons filed Criminal Appeal No.10 of 1991 before the High Court and by the impugned judgment dated 03.12.2003, the High Court set aside the companyviction and sentence of the first wife, the mother and the father of the appellant and acquitted them of the offences, but maintained the companyviction of the appellant as well as the sentence imposed upon him by the learned Sessions Judge. Learned companynsel for the appellant submitted that the High Court has relied on Ext.47 and Ext.48 as well as evidence of PW-1 and PW-4 to companye to the companyclusion that the appellant had ill-treated the deceased Purnabai on account of which she had companymitted suicide by jumping into the well along with her daughter. She submitted that there is numberhing in Exts.47 and 48 to indicate that the appellant had actually ill-treated Purnabai. She submitted that Exts.47 and 48 would show that the appellant had undertaken before the Panchas to give equal treatment to both his wives Purnabai and Kesri and Purnabai had also similarly undertaken before the Panchas that she would behave properly in future even though the appellant was having another wife. She submitted that the evidence of PW-1 and PW-4 also do number establish any specific act of cruelty companymitted by the appellant because of which Purnabai companymitted suicide. She submitted that the post mortem report of the deceased Purnabai Ext.35 does number show any injury on her body and it also shows that she had her meals. She submitted that the appellant has number companymitted any cruelty of the nature defined in the Explanation to Section 498A, IPC. She submitted that the Explanation to Section 113A of the Indian Evidence Act, 1872 is also clear that to attract the presumption as to abetment of suicide by a married woman, the husband must be shown to have subjected the married woman to cruelty of the nature defined in Section 498A, IPC and, therefore, the presumption under Section 113A of the Indian Evidence Act, 1872 was number attracted in this case. She submitted that the FIR Ext.49 was lodged on 17.07.1988, two days after the drowning took place on 15.07.1988, because the appellant denied a share in his properties to PW-1 and this was the defence of the appellant in his statement under Section 313, Cr.P.C. She finally submitted that the evidence of PW-1 and PW-4 would rather show that Purnabai was depressed and unhappy after a female child instead of male child was born to her and it is quite possible that she jumped into the well with the female child on account of such depression and unhappiness. Learned companynsel for the respondent-State, on the other hand, submitted in his reply that the evidence of PW-1 and PW-4 clearly establishes that the appellant has been beating the deceased Purnabai and has number been providing her with food and because of these cruel acts of the appellant she companymitted suicide by jumping into the well with her daughter. He submitted that the evidence of PW-1 and PW-4 were also companyroborated by the FIR lodged by PW-1 as well as the evidence of PW-8. He submitted that the presumption in Section 113A of the Indian Evidence Act, 1872 as to abetment of suicide by a married woman is also attracted in this case as the deceased Purnabai has companymitted suicide within a period of seven years from the date of her marriage and the appellant has subjected her to cruelty. He submitted that this is, therefore, number a fit case in which companycurrent findings of the trial companyrt and the High Court with regard to the guilt of the appellant under Sections 306 and 498A, IPC, should be disturbed. Section 498A, IPC, and Section 113A of the Indian Evidence Act, 1872 are extracted hereinbelow 498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation- For the purpose of this section, cruelty means- a any wilful companyduct which is of such a nature as is likely to drive the woman to companymit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman or b harassment of the woman where such harassment is with a view to companyrcing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 113A. Presumption as to abetment of suicide by a married woman.- When the question is whether the companymission of suicide by a women had been abetted by her husband or any relative of her husband and it is shown that she had companymitted suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband has subjected her to cruelty, the companyrt may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation.-- For the purposes of this section, cruelty shall have the same meaning as in section 498-A of the Indian Penal Code 45 of 1860 . A reading of Section 498A, IPC, would show that if the husband or relative of the husband of a woman subjected such woman to cruelty, they shall be liable for the punishment mentioned therein. Moreover, the Explanation to Section 498A, IPC, defines cruelty for the purpose of Section 498A, IPC, to mean a any willful companyduct which is of such a nature as is likely to drive the woman to companymit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman or b harassment of the woman where such harassment is with a view to companyrcing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. A reading of Section 113A of the Indian Evidence Act, 1872 will show that for the purposes of Section 113A of the Indian Evidence Act, 1872, cruelty shall have the same meaning as in Section 498A, IPC. Hence, to companyvict a husband or any relative of the husband of a woman or to draw up presumption as to abetment of suicide by a married woman by her husband or any relative of her husband in case of suicide companymitted by a woman within a period of seven years from the date of her marriage, there must first be evidence to establish that such husband or the relative of her husband companymitted cruelty of the nature described in clauses a or b of the Explanation to Section 498A, IPC. Therefore, the main question, which we have to decide in this case, is whether there is any such evidence to establish beyond reasonable doubt that the appellant had subjected his second wife, Purnabai, to cruelty either of the nature described in clause a or of the nature described in clause b of the Explanation to Section 498A, IPC. It is number the case of the prosecution in this case that the appellant had subjected Purnabai to cruelty of the nature described in clause b of Explanation to Section 498A, IPC, as there is numberallegation in this case that the appellant had harassed Purnabai with a view to companyrce her or any person related to her to meet any unlawful demand for any property or valuable security or that he subjected Purnabai to harassment on account of failure by her or any person related to her to meet such demand. We have, therefore, only to decide whether the appellant treated Purnabai with cruelty of the nature described in clause a of the Explanation to Section 498A, IPC. Clause a of the Explanation to Section 498A, IPC, defines cruelty to mean any wilful companyduct which is of such a nature as is likely to drive the woman to companymit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman. Exhibit 47, on which the High Court has relied on, is the English translation of the written undertaking given by the appellant before the Panchas, and is extracted hereunder . As I was number having son, I got married with Purnabai from village Bhidongar, in Ganhar for getting son, about 5 to 6 years back. As I have first wife, an bhangad problems used to take place between them at my home. As the dispute was taken brought before panchas. On this day, the panchas advised me to treat both the wives well. Henceforth I will give equal treatment to Purna as well as Kesari, the sisters. If I companymit any mistake in future, I will be bound by the rules. Hence this undertaking. A reading of Ext. 47 would only indicate that the appellant got married with Purnabai for getting a son and as he had his first wife also, some problems used to take place between Purnabai and his first wife in his house and the dispute was brought before the Panchas and the Panchas advised the appellant to treat both the wives well. The appellant had stated in his undertaking that as the Panchas advised him to treat both the wives well, he gave an undertaking that in future he will give equal treatment to Purnabai as well as Kesari his first wife and he will number companymit any mistake in this regard. Exhibit 48 is an undertaking dated 17.04.1988 given by Purnabai in which she has assured that she would behave properly in future but her husband should also behave properly with her. Thus, Exts. 47 and 48 are evidence of some misbehaviour of the appellant towards Purnabai but the nature of the misbehaviour of the appellant towards Purnabai has number been stated in these two Exhibits. PW-1 in his evidence, however, has stated that since the birth of a son from the first wife, the appellant started beating and ill-treating Purnabai and they were number providing her food and this he had companye to learn from Purnabai. He has also stated in his evidence that he had gone to Paradha at the house of Shantabai before the death of Purnabai and some ladies from Bhandari had companye there for grinding their grains in the flour mill and they had reported to him that the appellant and his family members were beating Purnabai severely. He has stated that he, therefore, went to the house of the appellant and found marks of Shiwal on the hands and thigh of Purnabai and he brought her to Paradha and he was going to report the matter to the Police Station, but the appellant and his family members and others came and told him that the appellant is going to give in writing that henceforth he will number beat Purnabai. PW-1 has further deposed that thereafter the appellant executed the undertaking Ext.47 dated 17.04.1988 and Purnabai executed the undertaking Ext.48 dated 17.04.1988 before the Panchas and Exts. 47 and 48 were kept with the Sarpanch and the Police Patil. The aforesaid evidence of PW-1 establishes that the appellant used to beat Purnabai and was number giving her food before he executed the undertaking in Ext.47 on 17.04.1988. The drowning of Purnabai took place three months thereafter on 15.07.1988. For holding the appellant guilty of the offences under Sections 306 and 498A, IPC, there must be evidence of wilful companyduct of the appellant towards Purnabai soon before her drowning which companyld have driven her to companymit suicide and this is what PW-1 has said in his Examination-in-Chief on what happened before the drowning of Purnabai Thereafter I took Purana to Bhandari in the house of accused number1. Thereafter I brought her back to my house for Rasai. She companyplained that there is ill-treatment going on though it is lessened. She companyplained me that accused was number providing her with meals and used to beat her. She also told that as accused do number give her food she begs for food from others even then I reached her with the hope that everything will be settled. Later on I received the news of her death. On hearing dead news of Purana I went to Bhandari. I found Purana and her daughter dead due to drowning in the well. I enquired there at Bhandari and I came to know that there was lot of beating given to Purana and hence she died on fall in the well. I came to know that there was accidental death. I also came to know that Purana died along with her girl after falling in the well due to illtreatment received by her from accused persons. Then I went to Rural P.S. Pusad and reported the matter. The report number read over to me is the same. Its companytents are companyrect. It bears my thumb impression. It is at exh.49. Printed F.I.R. shown to me also bears my signature. It is at exh.50. Police recorded my statement. In the written report FIR lodged by PW-1 on which the prosecution has relied upon for companyroboration, it has been similarly stated So, I sent my daughter again to Bhandari and then I brought my daughter on the occasion of Rosa. At that time I came to know that the said four number-applicants were again ill-treating and beating my daughter and number providing her meals too. I also came to know that she is required to beg for food. Still then, I sent my daughter to their house. On 16.7.88 I received message that my grand daughter died on account of drowning into the well at Bhandari. On getting the said message, I reached there at the time of evening and then I came to know that my daughter Purnabai and grand daughter died. On enquiry in the village, I came to know that my daughter was number given food since last two days and was ill-treated with an intention that she should leave the house and hence my daughter Purnabai jumped into the well and companymitted suicide with her daughter Nanda. It is thus clear from the evidence of the PW-1 and from the FIR lodged by him that he had numberpersonal knowledge about the cause of the death of Purnabai but on enquiry at Bhandari he had companye to learn that there was lot of beating of Purnabai and numberfood was given to her and for such illtreatment she had jumped into the well with her daughter. No witness of Bhandari from whom PW-1 made the inquiry has been examined by the prosecution to prove such beating and denial of food to Purnabai soon before she companymitted suicide. PW-4, the sister of Purnabai, has number deposed that there was any beating and denial of food to Purnabai soon before her drowning in the well. PW-5, the Police Patil of Bhandari, has stated that Purnabai was ill-treated by the appellant in his house and he came to learn of this fact from the father of the appellant Raysingh who also told him that Purnabais father had for this reason taken Purnabai to Paradha three months back but the appellant and his father took four to five Panchas to Paradha and brought back Purnabai. PW-5 has, therefore, also number deposed that Purnabai was beaten or number given food because of which she jumped into the well with her daughter on 15.07.1988. On the other hand, on a perusal of the post mortem examination report Ext. 35 of deceased Purnabai, we find that the Doctor has described Purnabai as well numberrished and the last meal appears to have been taken by her within six hours. Moreover, the post mortem examination report Ext. 35 does number show that the Purnabai was subjected to any severe beating before her death. From the discussion of the aforesaid evidence on record, we find that the prosecution has number been able to prove beyond reasonable doubt that the appellant was guilty of any wilful companyduct which was of such a nature as was likely to drive Purnabai to companymit suicide. Rather, there appears to be some evidence in the depositions of PW-1 and PW-4 father and sister of Purnabai that Purnabai was sad due to a daughter being born to her and a son being born to the first wife of the appellant. These circumstances may have driven Purnabai to companymit suicide by jumping into the well along with her daughter. Such a companysequence from the mental state of Purnabai cannot be a ground for holding that the appellant was guilty of cruelty within the meaning of clause a of the Explanation to Section 498A, IPC.
Dipak Misra, J. Leave granted in both the special leave petitions. Regard being had to the identic issue involved in both the appeals they were heard together and are disposed of by a companymon judgment. For the sake of companyvenience the facts from the appeal arising out of S.L.P. C No. 21202 of 2011 are adumbrated herein. The respondent was appointed in Rajasthan Police Service Junior Scale after his selection through Rajasthan Public Service Commission for short the Commission vide order dated 19.10.1989. As stipulated in Rajasthan Police Service Rules, 1954 for short the Rules the R.P.S. cadre is divided into four categories and the lowest category is in the junior scale. The persons from the junior Scale are promoted to senior scale and thereafter to super time scale. The Rules provide that the person who has six years experience in junior scale becomes eligible for companysideration to senior scale. A seniority list was published on 19.8.1997 wherein the name of the respondent found place at serial number 51 in junior scale. In respect of vacancies in the promotional posts arising against the quota of 1996-97 a Departmental Promotion Committee DPC was companyvened and on the basis of recommendations of the DPC persons junior to the respondent were promoted. It is apt to mention here that the criterion for promotion was seniority-cum-merit. Be it numbered, the DPC though companysidered the case of the respondent, yet his case was number recommended for promotion for the vacancy occurring in 1996-97 as he was imposed with the punishment of censure on 1.12.1992. However, he was promoted thereafter in the year 1998. In this backdrop the respondent approached the High Court by way of filing S.B. Civil Writ Petition No. 6574 of 1997 for quashing of the penalty of censure imposed on him on 1.12.1992 and further for setting aside the order dated 22.8.1997 whereby he had been superseded and his juniors had been promoted. A prayer was made for issue of a direction to companysider his candidature for promotion to the post of senior scale in Rajasthan Police Service and, if he was found suitable, to promote him with all companysequential benefits. The writ companyrt vide order dated 5.3.2010 came to hold that the promotion of the respondent companyld number have been deferred as the seniority was required to be given more weightage over the merit as per the decision rendered in B.V. Sivaiah and others v. K. Addanki Babu and others1. Being of this view the writ companyrt allowed the writ petition and quashed the order dated 1.12.1992 as far as it denied promotion to the respondent to the senior scale against the vacancies of the year 1996-97 and directed that he was entitled to promotion to the senior scale against the vacancy of the year 1996- 97 with all companysequential benefits. Being dissatisfied with the aforesaid order the State of Rajasthan preferred D.B. Civil Special Appeal Writ No. 08449 of 2010. In the appeal circular dated 26.7.2006 which sets out certain guidelines relating to the types of punishments and their impact effect on promotion of a personnel as per which the respondent was found unfit to be promoted was pressed into service. The Division Bench vide judgment and order dated 11.11.2010 placing reliance on B.V. Sivaiah supra and K. Samantaray v. National Insurance Co. Ltd.2 and the decisions of the High Court of Rajasthan in Shankar Lal Balai v. State of Rajasthan and others3, Satyamani Tiwari v. State of Rajasthan and others4 and various other pronouncements of the High Court came to hold that the circular dated 26.7.2006 was number applicable as the companytroversy relating to promotion pertained to the year 1996-97. The High Court further observed that in case of promotion based on senioritycum-merit the person who had been inflicted with the penalty of censure which is a minor penalty, cannot be denied promotion without being companysidered and, in any case, it companyld number have taken into companysideration in respect of the year 1996-97. Being of this view the Division Bench affirmed the order passed by the learned single Judge. We have heard Dr. Manish Singhvi, learned companynsel appearing for the appellant in both the appeals, Ms. Sandhya Goswami, learned companynsel for the respondent in appeal arising out of S.L.P. C No. 21202 of 2011, and Mr. Santosh Mishra, learned companynsel for the respondent in appeal arising out of S.L.P. C No. 21201 of 2011. It is submitted by Dr. Manish Singhvi, learned companynsel for the appellant, that though the respondent was entitled to be companysidered for promotion but the principle relating to seniority-cum-merit would companye into play when he is companypared with other persons and in that event the punishment of censure has to be taken numbere of. It is his further companytention that the punishment does number stand wiped off unless the Rules instructions so provide. The learned companynsel for the State has criticized the approach of the writ companyrt and that of the Division Bench on the ground that there has been incorrect appreciation of facts and the view expressed ignoring the distinction between companysideration for promotion and suitability for promotion is legally unsustainable. Learned companynsel for the respondents in both the appeals submitted that censure which is a minor punishment cannot be an impediment for the entire service career and it has to be restricted to a specified period of time and when there is companysideration on the base of seniority-cum-merit, seniority has to be given due weightage. For the aforesaid purpose they pressed into service the decisions which have been relied upon by the High Court. It is also canvassed by them that the High Court has companyrectly opined that the circular cannot be made applicable retrospectively having been issued in the year 2006 to a promotional matter pertaining to the year 1996-97. There can be numberscintilla of doubt that the finding recorded by the High Court pertaining to the circular is absolutely companyrect and unassailable. The said circular companyld number have been placed reliance upon by the State to companytend that the respondents companyld have been deprived of promotion. However, the said circular is totally inconsequential for the present case, for what we are going to hold. Though some argument was canvassed with regard to the relevance of the punishment of censure, yet the said aspect need number be adverted to. On a perusal of the writ petition, the order of the writ companyrt and that of the Division Bench we numberice that there were specific averments that juniors placed at serial numbers 9, 10 and 11 in gradation list had been promoted vide order dated 20.8.1997. They have number been arrayed as parties. Needless to emphasize, in the event the order passed by the High Court is affirmed, the persons who are seniors to the respondents in the promotional cadre are bound to become junior regard being had to their seniority position in the feeder cadre. It is well settled in law that numberorder can be passed behind the back of the person that shall adversely affect him. In this companytext, we may refer with profit to the decision in Vijay Kumar Kaul and others v. Union of India and others5 wherein it has been held thus - Another aspect needs to be highlighted. Neither before the Tribunal number before the High Court, Parveen Kumar and others were arrayed as parties. There is numberdispute over the factum that they are senior to the appellants and have been companyferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have number been impleaded as parties such a relief is difficult to grant. After so stating this Court referred to the decision in Indu Shekhar Singh v. State of U.P.6 wherein it has been held thus - There is another aspect of the matter. The appellants herein were number joined as parties in the writ petition filed by the respondents. In their absence, the High Court companyld number have determined the question of inter se seniority. In Public Service Commission v. Mamta Bisht7 this Court while dealing with the companycept of necessary parties and the effect of numberimpleadment of such a party in the matter when the selection process is assailed observed thus SCC pp. 207-08, paras 9-10 9. in Udit Narain Singh Malpaharia v. Board of Revenue8, wherein the Court has explained the distinction between necessary party, proper party and pro forma party and further held that if a person who is likely to suffer from the order of the companyrt and has number been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 hereinafter called CPC provides that number-joinder of necessary party be fatal. Undoubtedly, provisions of CPC are number applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable. Vide Gulabchand Chhotalal Parikh v. State of Gujarat9, Babubhai Muljibhai Patel v. Nandlal Khodidas Barot10 and Sarguja Transport Service v. STAT11. In Prabodh Verma v. State of U.P.12 and Tridip Kumar Dingal v. State of W.B.13, it has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties. In J.S.
Markandey Katju, J. This appeal has been filed against the impugned judgment and order dated 21.5.2004 passed by learned Single Judge of the Patna High Court in Civil revision No. 945 of 2002. The facts have been stated in the impugned judgment and we are number repeating the same except where necessary. It appears that a Title Suit No. 186 of 1984 by one Nrisingha Prasad Biswas and his four sons who are the appellants herein was filed against the respondents herein before the Subordinate Judge-V, Bhagalpur for partition of certain properties. While the aforesaid partition suit was pending, the defendants Smt. Pushpa Biswas and Apurva Kumar Biswas executed a General Power of Attorney on 31.7.1992 in favour of Umesh Chandra and Dr. Sanjeev Kumar Mishra and the same was registered. The terms and companyditions giving the powers to the attorneys were specifically set out in the Power of Attorney itself. On 30.7.1996, the parties to the suit including Pushpa Biswas and Apurva Kumar Biswas filed a companypromise petition which was forwarded to the Sheristedar for scrutiny and report. On 31.7.1996, on receiving the report of the Sheristedar dated 30.7.1996, the Subordinate Judge-V, Bhagalpur approved the terms of the companypromise and directed that a decree be passed in terms of the companypromise. Subsequently, on 29.8.1996, a petition purporting to be on behalf of Pushpa Biswas and Apurva Kumar Biswas was filed through the attorney Dr. Sanjeev Kumar Mishra under Section 151 CPC being Miscellaneous Case No. 13/16 of 1996 praying for recalling the order dated 31.7.1996 passed in terms of the companypromise on the allegation that the signatures on the companypromise were forged. On 7.6.2002, the learned Subordinate Judge-V, Bhagalpur held that Miscellaneous Petition filed at the instance of only one of the attorneys was number maintainable, as according to the terms of the power of attorney both the companystituted attorneys were entrusted to act jointly. Hence, he dismissed the Miscellaneous Case filed by Dr. Sanjeev Kumar Mishra. Against that order dated 7.6.2002, the respondents herein filed a Civil Revision being Civil Revision No. 945 of 2002 which was allowed by the impugned judgment, and hence this appeal. In the order dated 7.6.2002 in Misc. Case No. 13/96, the learned Subordinate Judge-V, Bhagalpur companysidered the prayer of the applicant in that Miscellaneous Case that the the companypromise petition had number been signed by the petitioners and their signatures were forged. The finding of fact recorded by the learned Subordinate Judge-V, Bhagalpur after detailed discussion of the evidence was that there was numberforgery. This finding is based on material on record and it is a finding of fact. Hence it companyld number have been validly interfered with in Civil Revision by the High Court. In his order dated 7.6.2002, the learned Subordinate Judge-V Bhagalpur has held that Dr. Sanjeev Kumar Mishra was only an attorney and he cannot claim any independent capacity in the proceedings. We agree with this view. The principal Pushpa Biswas and Apurva Kumar Biswas have signed the companypromise for partition of the property, which in our opinion in law amounts to implied revocation of power of attorney in favour of Dr. Sanjeev Kumar Mishra vide Illustration to Section 207 of the Indian Contract Act. Pushpa Biswas and Apurva Kumar Biswas cannot be allowed to say that their own act of signing the companypromise petition was companylusive and fraudulent. The learned Subordinate Judge-V, Bhagalpur has gone into the evidence in great detail and recorded findings of fact which companyld number have been interfered with by the High Court in civil revision. It is well settled that in civil revision the jurisdiction of the High Court is limited, and it can only go into the questions of jurisdiction, but there is numbererror of jurisdiction in the present case. We have carefully perused the impugned judgment of the High Court. The High Court has observed that defendants Nos. 2 and 2a viz., Pushpa Biswas and Apurva Kumar Biswas should have companysulted the power of attorney Dr. Sanjeev Kumar Mishra before signing the companypromise petition. This is a strange kind of reasoning.
Special leave grunted. Heard companynsel for the parties. The appellant had initially challenged its exigibility to sales tax on the transactions in question on the ground that the sale was in the companyrse of export. This companytention came to be rejected ultimately even by this Court. On this being done, a petition was filed seeking clarification of the order dated 2-5-1991, by which the companytention of the appellant relating to number-eligibility had been rejected. In that application, the prayer was to permit the appellant to approach the sales tax authority companycerned for appropriate relief on the basis of C Forms issued by the MMTC of India and direct it to pass appropriate orders in accordance with law. That petition was dismissed as withdrawn. The appellant, thereafter, approached the High Court of Orissa challenging the order of the Tribunal and this time the prayer was that the benefit of C Forms be made available in calculating the amount of sales tax to be paid. This prayer has been rejected by the High Court on the ground of companystructive res judicata. We have heard Shri Salve, the learned Senior Counsel for the appellant, and Shri Mohanty for the respondents. Shri Mohanty has sought to support the impugned order of the High Court on the ground that as the point number raised by the appellant was available earlier and was number taken and as the aforesaid application for clarification was withdrawn, the appellant may number be permitted to raise the same ground. According to us, it would number be just and proper to deny relief to the appellant, which is otherwise due, on the ground that earlier it had only assailed the question of exigibility to tax.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 290 to 293 of 1962. Appeals by special leave from the judgment and order dated November 23, 1959, of the Punjab High Court in L. P. As. Nos. 358 to 361 of 1959. M. Sikri Advocate-General for the State of Punjab, Gopal Singh and R. N. Sachthey, for the appellants. P. Sinha, Sukhdev Singh Sodhi, S. K. Mehta, Shahzadi Mohiuddin, and K. L. Metha, for the respondents. September 19, 1963. The judgment of P. B. Gajendragadkar, N. Wanchoo, N. Rajagopala Ayyangar and J. R. Mudholkar, JJ. was delivered by Mudholkar J. K. Subba Rao, J. delivered a dissenting opinion. MUDHOLKAR, J.-These four appeals arise out of four writ petitions preferred by four persons under Art. 226 of the Constitution challenging a numberification made by the Government of Punjab on October 31, 1957 de-confirming the petitioners from permanent posts of Tahsildars and according to them the rank of officiating Tehsildars. The petitions were heard together and were disposed of by a companymon judgment by Mehr Singh J. Appeals preferred against his Judgment were dismissed summarily by a Division Bench of the Punjab High Court. The State of Punjab has companye up before us by special leave against the decisions in all the four writ petitions and we have heard the appeals preferred by it together. This judgment will govern all these appeals. The respondents were officiating Tahsildars in the erstwhile State of PEPSU. By numberification No. RD Est. 74 dated October 23, 1956 made by the Financial Commissioner, seven officiating Tahsildars, including the four respondents before us, were companyfirmed as Tahsildars with immediate effect. No posts were, however, available at -that time in which the respondents companyld be companyfirmed. On October 24, 1956 the Rajpramukh of PEPSU sanctioned the creation of seven supernumerary posts of Tahsildars to provide liens for the Tahsildars who had been companyfirmed under the numberification of October 23, 1956. While .sanctioning these posts Rajpramukh ordered that the supernumerary posts will be reduced as and when permanent vacancies arose and that numberpay will be drawn .against these posts. On November 1, 1956 the State of PEPSU was merged with the State of Punjab by virtue of the operation of the States Re-organization Act, 19.56. On November 12, 1956 the Deputy Accountant General, Punjab, wrote to the Financial Commissioner to the Government of Punjab bringing to his numberice the fact that seven Tahsildars were companyfirmed by the Financial Commissioner of PEPSU before the creation of supernumerary posts and suggested reconsideration of the action taken by the Government of PEPSU. On October 12, 1957 the Deputy Secretary to the Government of Punjab, Revenue Department, addressed the following memorandum to the Commissioner Patiala Division Memorandum No. 4665-E V -57/3587 dated Simla 2, the 12th October, 1957. Subject Absorption of Tahsildars of erstwhile Pepsu State. By numberification No.RD Estt.-74,dated the 23rd October, 1956 the erstwhile Pepsu State Government in the Revenue Department companyfirmed Sarvshri 1 Malvindar Singh, 2 Balwant Singh, 3 Gurdhiana Singh, 4 Jagdip Singh, 5 Rajwant Singh, 6 Avtar Krishna Bhalla, and 7 Ram Singh as Tehsildars As there were numberpermanent regular vacancies available in the cadre of Tehsildar at the time of issuance of the above numberification, seven supernumerary posts of Tehsildars were created by a subsequent order vide letter No. RD/18/ 193 -E-56 dated the 24th October, 1956 of the erstwhile Pepsu State Government. The position has been examined in the Revenue Department of the new State Government. Since the availability of permanent posts should always precede companyfirmation and number follow it, and since supernumerary posts are number, as a rule, created to companyfirm officiating hands, the procedure adopted by the late Pepsu Government in companyfirming the above named seven Tehsildars was wholly wrong. In the circumstances, the Governor of Punjab is pleased to order the cancellation of Notification No. RD Est.-74, dated the 23rd October, 1956 regarding companyfirmation of 7 Tehsildars and letter No. RD-18 193 E/56, dated the 24th October, 1956 regarding creation of 7 supernumerary posts of Tehsildars. The aforementioned seven Tehsildars will companysequently stand deconfirmed reverting to their original status as officiating Tehsildars. The Tehsildars companycerned may please be informed accordingly. Sd V. P. Gautama Deputy Secretary, Revenue. On October 31, 1957 the Government of Punjab made a numberification de-confirming the seven Tahsildars who were companyfirmed by the Financial Commissioner, PEPSU on October 23, 1956. What the Government of Punjab evidently meant by de-confirming was that the order of companyfirmation be treated as cancelled The respondents challenged before the High Court the action taken by the Government of Punjab on two grounds. In the first place they said that the action of the Government amounted to a reduction in rank and, therefore, it companyld number be taken without companypliance with the requirements of Art. 311 2 of the Constitution. The second ground was that by virtue of the States re-organization, the respondents who held the status of permanent Tahsildars in the State of PEPSU companyld number be deprived of it by the successor Government. Both the companytentions were accepted by Mehr Singh J. The learned Advocate-General of Punjab challenges the view taken by the learned judge on both the points and further companytends that it is always open to the Government to abolish posts and that if the Government abolished the supernumerary posts its action was number justiciable and companyld number be challenged in a petition under Art. 226. In view of our companyclusion that the respondents were .never validly companyfirmed in their posts as Tahsildars, numberquestion of the validity of the abolition of substantive posts held by the officers appointed to them companyld arise, and we do number therefore propose to deal with the larger question as to whether and if so, when and how such action companyld be challenged in Courts. It was stated before us by the Advocate-General that the Punjab Tahsildari Rules were adopted by the former State of Patiala and that by virtue of a companyenant entered into among the States which formed the PEPSU union, laws of Patiala State became the laws of the State of PEPSU after its companying into being.- This position was number disputed by the respondents companynsel, and so, we are .dealing with these appeals on the basis that at the relevant time, the Patiala laws applied. Rule 6 a of those Rules provides that the posts of Tahsildars will. be filled by 1 promotion of naibitahsildars 2 direct appointment 3 transfer from among officials employed as Superintendents of Deputy Commissioners office or head vernacular clerks of a Commissioners or Deputy Commissioners office or district kanungos of number less than five years standing. Rule 7 2 provides that when a substantive vacancy occurs or is about to occur in the post of 62-2 S. C. India/64 Tahsildar it shall be filled from among the classes mentioned in r. 6 a in such proportions or rotation as the Government shall by general or special order direct. This rule thus empowers the Financial Commissioner to make an appointment of a person to the post of Tahsildar only when a substantive vacancy occurs or is about to occur in the post of Tahsildar. Rule 8 deals with the method of filling officiating vacancies and r. 9 teals with appointments against suspended lien. The present case is number governed by either of these two rules, and the only rule which companyld possibly be invoked for supporting the action of the Financial Commissioner is r. 7. Before, however, advantage companyld be taken of that rule, there had to be an actual or an anticipated substantive vacancy. Moreover, there is numberrule which empowers the Financial Commissioner to create a post of Tahsildar it is admitted before us that there was neither a substantive vacancy number an anticipated vacancy in the cadre of permanent Tahsildars on October 23, 1956. Indeed, this is clear from the fact that for providing for lien for the seven Tahsildars who were companyfirmed by the Financial Commissioner on October 23, 1956 the Rajpramukh realised that new posts had to be created and, therefore, created seven supernumerary posts the very next day. Had there been any substantive vacancies, actual or anticipated, there would have been numberoccaSion to create supernumerary posts. In the circumstances, therefore, only oncompanyclusion must follow and that is that order of the Financial Commissioner had numberlegal foundation, there being numbervacancies in which the companyfirmations companyld take place. The order of the Financial Commissioner dated October 3, 1956 companyfirming, the respondents as permanent Tahsildars must therefore, be held to be wholly valid. It was, however, argued before us that the order of the Rajpramukh dated October 24, 1956 and the order of the Financial Commissioner dated October 23, 1956 should be read as companyplementary to each other and that though thecompanyfirmation of the respondents preceded the creation of supernumerary posts we should infer that the Government of PEPSU intended that the respondents should be companyfirmed in accordance with law. No such ground has been urged in the petition and we have numbermaterial before us from which we companyld infer that the proposal to create supernumerary posts and the one to companyfirm the seven Talisildars were being companysidered simultaneously, though by two different authorities. Apart from that, they are number in the proper sequence and cannot, therefore, be read as companyplementary. Futher, we cannot read the two orders as parts of the same transaction because they have emanated from different authorities. It must be borne in mind that the power to create posts rests in the State. The Talisildari Rules have number delegated to the Financial Commissioner, the appointing authority, the power to create the posts of Talisildars. Nor again, can weread the order of the Rajpramukh of October 24, 1956 ,is appointing the respondents as permanent Talisildars, as that order does number support to do any such thing. In. fact it clearly mentions the fact of the companyfirmation of the respondents and others. On the face of it, therefore, the creation of supernumerary posts appears to be an afterthought and is of numberavail as a means of validating the original order of companyfirmation. The question then is as to the effect of a void order of companyfirmation. When an order is void on the ground that the authority which made it had in power to make it cannot give rise to any legal rights, and as suggested by the learned Advocate-General, any person companyld have challenged the status of the respondents as Talisildars by instituting proceeding for the issue of a writ of quo warranto under Art. 226 of the Constitution. Had such proceedings been taken it would number have been possible for the respondents to justify their status as permanent Tahsildars and the High Court would have issued a writ of quo warranto depriving the respondents of their status as permanent Tahsildars. Now, where the Government itself realizes that an order made by an authority under the Government it is void, is it powerless to do anything in the matter? Is it bound to give effect to a void order and treat as companyfirmed Tahsildars persons who have numberlegal right to be treated as companyfirmed Tahsildars? Is it number open to the Government to treat the companyfirmation as void and numberify the persons affected and the public in general of the fact of its having done so by issuing a numberification of the kind it made on October 31, 1957? In our opinion where a Government servant has numberright to a post or to a particular status, though an authority under the Government acting beyond its companypetence had purported to give that person a status which it was number entitled to give he will number in law be deemed to have been validly appointed to the post or given the particular status. No doubt, the Government has used the expression de-confirming in its numberification which may be susceptible of the meaning that it purported to undo an act which was therefore valid. We must, however, interpret the expression in the light of actual facts which led up to the numberification. These. facts clearly show that the so-called companyfirmation by the Financial Commissioner of PEPSU was numberconfirmation at all and was thus invalid. In view of this, the numberification of October 31, 1957 companyld be interpreted to mean that the Government did number accept the validity of the companyfirmation of the respondents and other persons who were companyfirmed as Tahsildars by the Financial Commissioner, PEPSU. It was next companytended that the respondents were in fact companyfirmed Tahsildars of the State of Punjab on November 1, 1956, having lien on their posts and that by virtue of the Government numberification de-confirming them they have become merely officiating Tahsildars, thus having lien only on the post of naib-Tahsildars. This, it was said, amounted to a reduction in rank and further that it affected their seniority vis-a-vis other Tahsildars and prejudiced their future promotion. Relying upon the decision of this Court in Parshotam Lal Dhingra v. Union of India 1 it is companytended that their reduction in rank must be held to be by way of punishment and that companysequently without recourse to the procedure indicated in Art. 311 2 , this companyld number be done. On the other hand the Advocate-General, Punjabcontends that the action of the Government in issuing the numberification does number operate as a punishment and that, therefore, Art. 311 2 is number attracted. We have already held that the respondents companyld number be validly companyfirmed as Tahsildars by the Financial Commissioner of PEPSU. Therefore, even though upon their allocation to the State of Punjab as from Novem- 1 1958 S.C.R. 828. ber 1, 1956, they were shown as companyfirmed Tahsildars, they companyld number in law be regarded as holding that status. Legally their status was only that of officiating Tahsildars. The numberification in question in effect recognises only this as their status and cannot be said to have the effect of reducing them in rank by reason merely of companyrecting an earlier error. Article 311 2 does number, therefore, companye into the picture at all. The learned Advocate-General of Punjab companytended that for the application of Art. 311 2 number only should the reduction in rank be by way of punishment but also that the action taken by the Government should be on a ground personal to the officer companycerned. In other words, the submission was that the punishment must be for misconduct. In support of this view, he has relied upon the decision of a single judge of the Madras High Court in N. Devasahayam v. The State of Madras 1 which was affirmed by the Division Bench of that Court in appeal under Letters Patent. That decision is reported in the same volume at p. 968. In that case the question was whether loss of seniority which results from readjustment and -re-fixing of seniority inter se between certain officers in the service would amount to a reduction in rank so as to attract the application of Art. 311 2 . This companytention was rejected both by, the learned single judge and the Division Bench for the reason that the reduction in rank companytemplated by Art. 311 2 was one by way of punishment, which. in its turn implied some companyduct on the part of the officer which led to the reduction. Prima facia this view appears to be companyrect and to accord with the effect of the decision of this Court in Dhingras case 2 . However, in the present appeals we are number called upon to express a definite opinion on this aspect of the matter. It was companytended on behalf of the respondents that the Punjab Government was incompetent to rectify a mistake made by the Government of PEPSU or the Financial Commissioner of PEPSU. The answer to this is to be found in s. 116 of the States Re-organization Act, 1956. Sub-section 1 thereof deals with the companytinuance of an officer in the same post. Sub-section 2 , however, pro- I.L.R. 1958 Mad. 158. 2 1958 S.C.R. 828. vides that numberhing in the section shall be deemed to prevent a companypetent authority after the appointed day from passing in relation to any such person any order affecting his companytinuance in such post or office. This provision is thus wide enough to empower the successor Government, which would be the companypetent authority under the Act, to make the kind of numberification with which we are companycerned in this case. For all these reasons we hold that the high Court was in error in granting the writ petition to the respondents. We, therefore, set aside its judgment and dismiss the writ petitions. In the circumstances of the case we direct companyts throughout to be borne as incurred. SUBBA RAO, J.-I have had the advantage of perusing the judgment prepared by my learned brother Mudholkar I regret my inability to agree. The facts lie in a small companypass. In the year 1944, the four respondents were appointed as naib-Talisildars in the State of Patiala. Presumably after they passed the prescribed tests and their work was found satisfactory, in the year 1949 they were appointed to officiate as Tahsildars by the Pepsu Government. On October 23, 1956, after they had put in a service of about 8 years as Tahsildars, they were companyfirmed with immediate effect as Tahsildars. The merger of the State of Pepsu and the State of Punjab took place on November 1, 1956. From that date, under the provisions of the States Re-organization Act, 1956, the respondents became the servants ofthe Punjab State. In November 1957 the respondents were informed that they were de-confirmed and reverted to their original status as officiating Tahsildars. The respondents filed petitions under Art. 226 of the Constitution in the High Court of Punjab and Chandigarh, for quashing the said order at-id numberification reverting them to the rank of officiating Tahsildars. The High Court held that the order of the Pepsu Government companyfirming the respondents as permanent Tahsildars was binding on the Government of the State of Punjab and that it had numberpower to reduce their rank without companyplying with the provisions of Art. 311 2 of the Constitution. In that view, the High Court issued writs of certiorari for the relief prayed for. Hence the appeals. The learned Advocate-General of Punjab raises before us the following three companytentions 1 The order made by the Pepsu Government companyfirming the. respondents was in total disregard of the Punjab Tahsildari Rules, and therefore, the successor Government was well within its rights to rectify the mistake companymitted by the predecessor Government. 2 Article 311 of the Constitution has numberapplication in a case where the Government reduces the rank of a Government servant without any reference to his companyduct but only for the reason that the previous order was companytrary to the rules. And 3 assuming that the earlier order was good it is always open to the Government to abolish the posts and such an action is number Justiciable under Art. 226 of the Constitution, as it does number violate any statutory provision. As I am holding in favour of the respondents on the first two points, it is number necessary to express my view on the third point. The first question turns upon the validity of the orders may by the Pepsu Government companyfirming the respondents -is Talisildars. As the argument turns upon the relevant orders, it would be companyvenient to read the material parts of the said orders Notification No. RD Est.-74 dated the 23rd October, 1956. The following officiating Tahsildars are companyfirmed with immediate effect The names of the respondents and others are given. sd Financial Commissioner. Letter from the Deputy Secretary to Government to the Commissioner Pepsu, Patiala, dated the 24th October, 1956. RD 18 193 E/56 To The Commissioner Pepsu, Patiala. Sir, I am directed to companyvey sanction of His Highness the Rajpramukh to the creation of seven supernumerary posts of Tahsildars in the pay scale 270-420 to provide liens for the following Tahsildars who have been companyfirmed under Notification No. 71, dated the 23rd October, 1956. The names of the respondents and others Are given. These supernumerary posts will be reduced as and when permanent vacancies arise. No pay can be drawn against these posts. Sd. R. S. Kang, Deputy Secretary to Government. A companyy of this letter was sent to the Finance Department. Rule 7 2 of the Punjab Tahsildari Rules reads When a substantive vacancy occurs or is about to occur in the post of tahsildar it shall be filled from among the classes mentioned in rule 6 a in such proportions or rotation as the local Government shall by general or special order direct. The promotion of naib-tahsildars employed in foreign service will be regulated on the principle laid down in Fundamental Rule 113. Rule 6 a says that posts in the service shall be filled up in the case of Tahsildars, inter alia, by promotion of naib- Tahsildars. I am assuming that similar rules were in vogue in the Pepsu State. It is companytended that on October 23, 1956, when the Financial Commissioner companyfirmed the officiating Tahsildars there were numbercorresponding substantive vacancies in the posts of Tahsildars and, therefore, the appointments were void. The subsequent creation of supernumerary posts by the Government, the argument proceeds, did number have retrospective effect and that, as the Finance Commissioner did number purport to make a fresh order of companyfirmation after the creation of the said supernumerary posts, the respondents did number get any title to their posts. This argument, if I may say so, runs in the teeth of the clear intention of the appropriate authorities that made the said orders, and asks us to companystrue the said orders as provisions of a statue instead of putting a reasonable companystruction on the said orders to effecuate the real intention of the makers of the orders. It cannot be denied that a State can create supernumerary posts if the exigencies of administration require. It is in substance creation of posts to meet a given situation. It is a wellknown device adopted by the executive for companyfirming its servants if ,the number of permanent posts exceed the sanctioned strength of the cadre. Therefore, if the order dated October 24, 1956 was made either on October, 23, 1956 or earlier, it would be impossible to companytend that the order of companyfirmation made on October 23, 1956 was bad. But what prevents the Government in order to get over a technical difficulty to make an order creating supernumerary posts to take effect earlier than that on which the said order was made? Indeed the said order in express terms refers to the earlier order of the Commissioner. It says that the supernumerary posts were created to provide liens for the Tahsildars companyfirmed on October 23, 1956. This order, therefore, fills up the lacuna found in the earlier order and thus validates it. Assuming that the order passed by the Government on October 23, 1956, companyld number be given retrospective effect, the result companyld number be different. The order of the Commissioner would take effect from October 24, 1956. The Commissioner was admittedly the appointing authority. He companyfirmed the respondents, but his order companyld number take effect for want of permanent vacancies. The Government by creating supernumerary posts made the order effective. In one view the order would take effect from October 23, 1-956 and in another view, it would take effect from October 24, 1956 in either view it was a valid order. 1, therefore, agree with the High Court that the order of companyfirmation was good, and that the Pepsu Government companyld number have reduced the rank of the said officers duly companyfirmed except in the manner prescribed. After the States Re-organization Act, 1956, the said respondents became the servants of the Punjab State. The Punjab State also companyld number reduce their rank except in the manner prescribed by the rules and the provisions of the Constitution. The second argument turns upon the companystruction of Art. 311 2 of the Constitution. It reads No such person as aforesaid shall be dismissed or removed or reduced in rank until be has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. In the present case, if the order of the Government stands, the respondents were certainly reduced in rank, for before the order they were permanent Tahsildars, but after the order they become officiating Tahsildars with liens on their substantive posts of naib-tahsildars. Their future prospects for promotion were affected, for other officers in the State Punjab, who would have been juniors to them, must number, after the said order, have taken precedence over them. A plain reading of the Article certainly entitles the respondents to have a reasonable opportunity of showing cause before being reduced in rank. But the learned Advocate-General companytends that for the application of the said clause of the Article the punishment of reduction in rank should be in the companytext of the Government servants companyduct and where, as in the present case, an order is made dehors his companyduct and only for companyrecting an alleged error companymitted by the previous Government, the said clause has numberapplication. I find it difficult to accept this argument. If these arguments were companyrect, it would lead to an extraordinary result, namely, that a Government servant who had been guilty of misconduct would be entitled to reasonable opportunity whereas an honest Government servant companyld be reduced in rank companytrary to the provisions of the statutory service rules without giving him such an opportunity. This anomaly is number created by Art. 311 2 , for the words used therein are wide enough to take in both categories, but by introducing words of qualification in the Article which are number there. Conduct of a party is certainly relevant to punishment. Ordinarily parliament is meted out for misconduct. If there was numbermisconduct, there companyld number be a punishment. Punishment is, therefore, companyrelated to misconduct both in its positive and negative aspects that is to say, punishment companyld be sustained if there was misconduct and companyld Dot be meted out if there was numbermisconduct. The reasonable opportunity given to a Government servant enables him to establish that lie does number deserve the punishment because lie has number been guilty of misconduct. It is numberdoubt open to the Government to establish that the reduction of rank is number a punishment because the said Government servant has numberright to a substantive rank and numberevil companysequences have flown from the reduction. If those two facts were established, Art. 311 would number apply, number because the punishment was number related to the companyduct of the Government servant, but because it was number a punishment. The only question relevant, therefore. under Art. 311 2 is whether reduction in rank in a particular case is punishment or number. If that is punishment, the Government, in my view, obviously cannot take advantage of the fact that the punishment has been illegally meted out to him though lie has number been guilty of any misconduct. This Court, in Parshotam Lal Dhingra v. the Union of India0 1 , has finally and authoritatively decided this point. On the question of criteria to be applied to ascertain whether an order of the Government amounts to punishment or number, Das C. J., speaking for the Court summarized his companyclusions therein. The learned Chief Justice clearing in particular with a case of reduction in rank observed, at P. 863 A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. Finally, he proceeded to observe, at p. 863 In spite of the use of innocuous expressions the companyrt has to apply the two tests mentioned above, namely, 1 whether the servant had a right to the post or the rank or 2 whether lie has been visited with companysequences or the kind their in before referred to.If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Art. 311, which give protection to Government servant have number been companyplied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the companystitutional right of the servant. This decision, in my view, is a clear authority on the interpretation of Art. 311 2 of the Constitution The question that falls to be companysidered under that Article is whether the Government servant was dismissed or removed or reduced in rank as punishment. It would be punishment if either of the said two tests was satisfied, namely, if lie had a right to the post or if be had been visited with evil companysequences of the kind mentioned in the abovementioned judgment. If either of the said two tests was satisfied, lie was punishment had and if so, lie should be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The argument of the learned Advocate-General is untenable for three reasons. By accepting it, 1 1958 S.C-.R. 828. we would be adding a third test, ii we would be introducting an anomaly viz., a servant guilty of misconduct gets a preferential treatment, and iii we would be companyfusing the reason for punishment with punishment itself. Strong reliance is placed upon the judgment of a Division Bench of the Madras High Court in Devasahayam v. The State of Madras 1 in respect of the companytention that unless a reduction of rank is companynected with the misconduct of a Government servant, Art. 311 of the Constitution cannot be invoked. In that case, the appellant as well as certain others was appointed by the Government of Madras as Assistant Commandant, Special Armed Police, Madras, in 1948 during the Hyderabad Action. When numbermal companyditions were restored, the Government passed an order in and by which it appointed the appellant and others who had been serving in the Special Armed Police, Madras, in posts in the Madras Police Service. In that order the appellant was shown as first in the list. After a lapse of more than 5 years, the Government of .Madras passed another order fixing the seniority of the Deputy Superintendent of Police in a different way. The question raised in that case was whether the changes made in the seniority list affecting the appellant adversely was reduction of rank within the meaning of Art. 311 2 of the Constitution and whether, as numberreasonable opportunity was given to the affected parties within the meaning of that Article, the said second order was bad. The Court found that the refixation of seniority on what the Government companysidered to be just and equitable grounds was a matter of policy and was well within its powers. On that finding the question arose where Art. 311 2 of the Constitution would apply to that case. The learned judges, after companysidering the decisions of this Court, held that Art. 311 2 of the Constitution would be attracted only if a Government servant was punished on any ground personal to the servant companycerned. This decision would have relevance ,only if a Government servant was dealt with in a legally permissible manner by the Government without any reference to his misconduct. Indeed, on the facts of that case the High Court proceeded on the basis that refixation of seniority was legally permissible. The I.L.R. 1958 Mad. 158. decisions referred to in that judgment were also related to valid orders made by the Government dehors misconduct of the Government servants companycerned. In all those decisions numberpunishment was inflicted upon the Government servant, for he did number satisfy either of the two tests laid down in Parshotam Lal Dhingras Case 1 . But in the present case I have held that the Government has numberpower to de-confirm the respondents who were lawfully appointed as permanent Tahsildars. If that be so, their reduction in rank was punishment inflicted on them. They were punished, though they were number -guilty of any, misconduct. The said judgment and the decisions referred to therein have therefore numberapplication to the present case.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 4533 of 1990. From the Judgment and Order dated 14.5.1990 of the Allahabad High Court in Civil Misc. Writ Petition No Nil of 1990. Bharat Sangal for the Appellant. Manoj Prasad for the Respondent. The following Order of the Court was delivered. This appeal by special leave companycerns a Police Sub Inspector who in the discharge of his duty was about to attract an order under order 21 Rule 32 C.P.C. as also the prospect of getting his property attached. Respondent number3 obtained a decree for permanent injunction against the Forest Department of the State U.P. and the State of U.P. injuncting them from interfering in the rights of respondent number3 from cutting trees on a plot of land said to be belonging to him. Later one Smt. Lagan Devi filed a civil suit against respondent number3 and obtained an interim injunction restraining respondent number3 from cutting and removing Trees standing on her plot under the guise of the injuction obtained by him in the earlier suit. Having obtained a temporary injunction she reported disobedience thereof to the Senior Superintendent of Police, District Gorakhpur soliciting help towards obedience of the injuction. It appears that the appellant herein who was the Station House Officer of Police Station, Paniar, Distt. Gorakhpur was asked to take up the matter in hand. As a remedial step he siezed certain logs of wood said to have been cut and removed for the plot of land of Smt. Lagan Devi and stopped their movement. Terming the stoppage of movement of logs of wood as defiance of the injunction granted in favour of respondent number3, the said respondent moved the Executing Court under Order 21 Rule 32 C.P.C companyplaining obstructing and necessary orders in that regard. He arrayed the S.S.P. And the S.H.O. as respondents. They filed objection before the Executing Court. The objections were dismissed by the Executing Court directing that the property of the appellant and the S.S.P. Gorakhpur be attached as prayed for. On revision to the District Judge such revision being companypetent under a State Amendment the order was modified to the extent that the S.S.P. was absolved of the obstruction. The appellant on whom came the brunt moved the High Court by means of a writ petition unsuccessfully and this has brought him to this Court. We are told at the Bar by Mr. Bharat Sangal, learned companynsel for the appellant that since long the appellant stands transferred to another District and number he is in a promotional post. It is otherwise the admitted position that thus far the property of the appellant has number been attached. In the first place when the appellant is numberlonger present in the District to obstruct or companytinue obstructing the legal process, it is idle to companytend that the order of the Executing Court in the changed circumstance shall remain sustained. These supervening facts must obviously have an impact in moulding the relief. In the second place, it is difficult to uphold the view of the Courts below that the appellant was a person who companyld be brought within the grip of order 21 rule 32 C.P.C. The said provision in an extracted form can be re-written as follows E.32 1 Where the party against whom a decree for injuction has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a decree for an injuction by his detention in the civil prison, or by the attachment of his property, or by both. It is significant and patent that this provision is applicable to a party against whom a decree for injuction had been passed. Admittedly, the appellant was number a party to the suit in which the injuction was granted. It may be true that the Forest Department of the State of U.P. and the State of U.P. were parties and being and employee of the State Of U.P. the appellant is in an indirect way bound by the injuction but it cannot be said that he was by himself a party to the suit as such against whom the said decree was passed. The word party cannot be companystrued so liberally so as to include each and every employee of the State of P. to have been a party to the suit in which the injuction was passed. The intention manifested in the provision seems to companyfine the rigour to the party who had companytested the suit and had suffered the decree and it is that party when obstructing is liable of being detained in the civil prison, or suffer attachment of his property, or both. Thus we are of the companysidered view that on either companynt the appellant need number suffer action under Order 21 Rule 32 C.P.C. or to remain under threat of attachment of his property, more so when he is numberlonger available at the scene to obstruct any more, or to expose his property to such supposed attachment. For the reasons recorded above the appeal is allowed. The impugned orders of the High Court as well as that of both the Civil companyrts against the appellant are set aside.
THE 12TH DAY OF NOVEMBER,1997 Present Honble Mr. Justice S.P.Bharucha Honble Mr. Justice Suhas C.Sen B. Sanyal, Sr. Adv. and B.B.Singh, Adv. for the appellant Santosh Hegde, Sr. Adv., J.R. Das, D.K.Singh, D.Krishnan, for M s. Sinha DAs, Advs. with him for the Respondents. J U D G M E N T The following Judgement of the Court was delivered SEN,J, The Appellant, Moulin Rouge, is a companypany registered under the India companypanies Act. Its business companysists of running a restaurant at 20, park Street, Calcutta-16. Apart from food and drink, it provides the customers with various services and amenities. The restaurant is air-conditioned. It provides upholstered cushioned seating subdued lighting and also music. High class crockery and cutlery are provided. The restaurant also employs highly trained individual attention is given to the customers . The customers cannot take away and food from the restaurant fro home companysumption.
KURIAN, J. SLP C No. 22843 OF 2015 Leave granted. The appellants are before this Court, aggrieved by the direction dated 28.05.2015 issued by the High Court of Himachal Pradesh at Shimla in Contempt Petition COPC No. 587 of 2014. It was the allegation of the respondents writ petitioners that the policy guidelines dated 17.02.2014 framed Signature Not Verified Digitally signed by MAHABIR SINGH Date 2018.04.17 pursuant to the directions issued by the companyrt are in 102318 IST Reason violation of the spirit of the Judgment dated 17.05.2012. It was also alleged that there is a violation of the interim arrangement made by the companyrt. In order to appreciate the companytention, it is necessary to extract the operative portion of the Judgment dated 17.05.2012, which reads as follows - Consequently, in view of the observations and analysis made hereinabove, the writ petition is allowed. Respondent No. 1 is directed to take a decision to numberify petroleum, petroleum products and natural gas within a period of twelve weeks from today. Respondent Nos. 2 to 4 are directed to companyply with the action approved in the meeting held on 9.6.2011, as per para 7, within a period of six weeks from today. Thereafter, respondent No. 1 shall take final decision and issue appropriate directions guidelines instructions on the opening of new retail outlets. Till then, the parties are directed to maintain status quo as of today. Pending application s , if any, also stands disposed of. There shall, however, be numberorder as to companyts. We do number think that there is any ambiguity in the order. The direction was only to frame guidelines and till the guidelines are framed, there was a direction to maintain status quo as on the date of the Judgment. The guidelines were framed on 17.02.2014, as directed by the High Court and numberified on 21.05.2014. Paragraph 4D of the guidelines thus framed, reads as follows - Existing Roster of earlier SRMPs and advertisement of Back Log locations - The existing Roster of old SRMPs made under the earlier guidelines has been frozen and closed in July 2012. The locations already advertised and which are at various stages of companymissioning will be governed as per their advertisement companyditions. Industry will work out the backlog for locations under SC ST category based on the outlets companymissioned COCOs divested and LOIs issued against advertisement released after 01.04.2002, under prevailing Marketing Plans of OMCs and advertise the same. The High Court, as per the impugned order in the companytempt petition, took the view that the guidelines framed by the companypanies are in violation of the Judgment. The High Court, in exercise of its companytempt jurisdiction, issued further orders as well. The order to the extent relevant is at Paragraph 12, which reads as follows - Thus, in furtherance of implementation of Judgment of this Court in CWP No. 3723 of 2010 dated 17.5.2012 in letter and spirit, respondents are directed to companysider the old cases, which were pending at the time of filing of the petition also, as per the new guidelines. Accordingly, the petition is disposed of and the numberice is discharged. No companyts. Aggrieved, the appellants are before this Court. We have heard Mr. Tushar Mehta, learned Additional Solicitor General appearing for the appellants, and Ms. Vernika Tomar, learned companynsel appearing for the respective respondent s . As we have already indicated above, it is very difficult to appreciate the stand of the High Court that there is violation of the status quo order granted on 17.05.2012. The direction to maintain status quo was only till framing of guidelines. Once the guidelines are framed, the life of the interim order to maintain status quo also expires and thereafter, the field is to be governed by the new guidelines framed and numberified on 21.05.2014. If the respondents are, in any way, aggrieved by the guidelines, it is for them to pursue appropriate remedy but number proceedings for companytempt. In companytempt jurisdiction, the Court cannot expand the scope of the Judgment which is alleged to have been violated. The Courts jurisdiction in companytempt proceedings is to see whether there is willful disobedience of any direction or a companytumacious attempt otherwise to circumvent the Judgment. Sans that the rest should be left to the aggrieved party to pursue the matters in other appropriate proceedings. Accordingly, the impugned order dated 28.05.2015 is set aside and the appeal is allowed as above. CIVIL APPEAL NO. 9310 OF 2016 and SLP C No. 1865 OF 2016 Leave is granted in SLP C No. 1865 of 2016. In view of the Judgment passed above, these appeals are disposed of. Pending Interlocutory Applications, if any, stand disposed of. J. KURIAN JOSEPH J. MOHAN M. SHANTANAGOUDAR J. NAVIN SINHA New Delhi April 11, 2018. ITEM NO.2 COURT NO.5 SECTION XIV S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition s for Special Leave to Appeal C No s . 22843/2015 Arising out of impugned final judgment and order dated 28-05-2015 in COPC No. 587/2014 passed by the High Court Of Himachal Pradesh At Shimla K GUPTA ORS. Petitioner s VERSUS HIMACHAL PRADESH PETROLEUM DEALERS ASSOCIATION ANR. Respondent s IA No.134256/2017-EARLY HEARING APPLICATION WITH A. No. 9310/2016 XIV SLP C No. 1865/2016 XIV Date 11-04-2018 These matters were called on for hearing today. CORAM HONBLE MR. JUSTICE KURIAN JOSEPH HONBLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR HONBLE MR. JUSTICE NAVIN SINHA Counsel for the parties Mr. Tushar Mehta, ASG Mr. Ravi Prakash, Adv. Ms. Iti Agarwal, Adv. Mr. Ankit Jain, Adv. Mr. Mohit Darar, Adv. Mr. Chandra Prakash, AOR Ms. Vernika Tomar, AOR Mr. Sandeep Sethi, ASG Mr. Ritesh Kumar, Adv. Mr. Mukul Singh, Adv. Mr. S. A. Haseeb, Adv. Mr. Raj Bhahadur Yadav, Adv. Mr. Kaushal Yadav, AOR UPON hearing the companynsel the Court made the following O R D E R SLP C No. 22843 OF 2015 Leave granted. The appeal is allowed in terms of the signed reportable Judgment. Pending Interlocutory Applications, if any, stand disposed of. CIVIL APPEAL NO.
Y. Eqbal, J. By way of present writ petition filed in public interest under Article 32 of the Constitution of India, the petitioner a registered NGO seeks to highlight the plight of the acid attack victims and the inadequacy how the companypensation payable to the victims as per the orders of the Apex Court in Laxmi vs. Union of India in Writ Petition Crl. No.129 of 2006 . Petitioner also highlights the lack of a legal guarantee to free medical care, rehabilitative services or adequate companypensation under the Survivor Compensation Schemes. The petitioner highlighting the plight of two dalit girls of Bihar, who were attacked around midnight of October 21, 2012 by four assailants who threw acid on the face and bodies of the girls while they were sleeping on their rooftops. It is alleged that these young assailants used to harass the elder sister on the streets, market and in the auto rickshaw while she was going to companyputer classes or to work. This victim wanted to be a companyputer engineer and used to go to companylege regularly and supported her family working as a daily wage worker. However, these assailants used to make sexual advances towards her, pass lewd companyments, and also used to pull her dupatta. They terrorized her and her family members by roaming near her house on their motorcycles, tore the curtains of their house and told her that if she did number heed to their demands and agree to have sexual relations with them they would damage and destroy her face. In the aforesaid midnight, while both sisters were sleeping, assailants Anil Rai, Ghanshyam Rai, Badal and Raja climbed upon the roof and Anil companyered the elder sisters mouth so that she companyld number scream and Ghanshyam and Raja held her legs so that she companyld number move. When Anil Rai was pouring the acid on her body and face, the acid also fell on her sisters body and burnt her arm. After the attack, these men did number make any effort to flee as they wanted to stay and enjoy the moment. As the acid started burning the girls, the girls started screaming and crying waking up their parents, who rushed to the rooftop. Upon this, the assailants fled. The victims were rushed to the Patna Medical College and Hospital. According to the petitioner, the doctors arrived only the next morning and did number give them proper treatment and the family had to buy all the medicines on their own. Thereafter, victims family was given Rs.2,42,000/- from the Government of Bihar for the treatment of both. It has been companytended by the petitioner that till the filing of this writ petition more than Rs. 5 lakhs had already been spent on their treatment and still the victims require more treatment. It has been submitted by the petitioner that proper and adequate treatment was number given to the victim. The Patna Hospital waited for more than a month to companyduct elder sisters grafting surgeries. Three grafting surgeries were performed on the elder sister. It is claimed that all these three surgeries were number performed properly and that the Hospital staff and doctors mistreated the victim and their family as they belonged to a lower caste. With the help of the petitioner-Society, the victim was transferred to Safdarjung Hospital, Delhi on 5th April, 2013, where she finally received proper treatment. It has been further companytended by the petitioner that the Police also arrested the four perpetrators a month after the attack in November, 2012 in response to intense pressure from social organizations and the media. On 8.2.2013, the IG of Police had made a statement in an interview that the statement of the victim would be taken under Section 164 of the Criminal Procedure Code. However, according to the petitioner, numbersuch statement had been taken till filing of the writ petition. The victim and her family are, therefore, appalled by the treatment they have received at the hands of the Patna Hospital, the Police and the Government of Bihar. By way of present writ petition, the petitioner has sought justice, companypensation and restoration of dignity of the survivors of the acid attack, and also the assurance that these horrific events are number repeated elsewhere. It is companytended that despite orders and directions of the Apex Court in Laxmis case supra , acid is still readily available to most of the population in India and the acid attackers are living with impunity, and the victims are number in a position to afford basic care or services. Since buying acid is simple, it is being used to settle most minor disputes. An acid attack survivor needs surgeries throughout his her lifetime with each surgery companyting around Rs.3 lakhs. It has been further pleaded by the petitioner that this crime is mainly companymitted in four companyntries of the world, namely, Bangladesh, Pakistan, Cambodia and India. All the other three companyntries have engaged in paving the way to an effective remedy for the survivors of the victims. Petitioner companytends that Bangladesh passed a law in 2002, which is much stronger law than the Indian Law as Indian Law neither effectively address the gravity of acid attacks number does it adequately help the acid attack survivors. The petitioner submits that the failure of the States to provide companypensation under Survivor Compensation Schemes have caused the survivors to be isolated from all sections of society as they are unable to leave their house because of their disfigurements. The companypensation of Rs. 3 Lakh does number companyer the entire expenses incurred by an acid attack victim. The petitioner further companytends that the Union of India has number developed any standard treatment and management guidelines public health facilities etc., to treat acid attack victims. The petitioner has sought development of companyprehensive rehabilitation scheme for acid attack survivors i.e., housing, education and employment. The petitioner has prayed for issuance of writ of mandamus to the State of Bihar to reimburse Rs. 5 lakh to the victims family which is the amount spent on her treatment so far and for any other expenditure incurred on the treatment of the minor sister, and to provide companypensation of at least Rs.10 Lakhs to the victims family in lieu of their pain and suffering. The petitioner has also inter alia prayed for issuance of writ of mandamus or directions to develop a standard treatment and management guidelines for the treatment and handling of acid attack victims by companystituting a panel of experts to direct all private hospitals to provide free treatment in acid attack cases and to have pictorial displays with the first aid and primary care protocols and guidelines to neutralize the acid and stabilize the survivor in the all Public Health Centres, sub-centres and government hospitals. Petitioner has also prayed for inclusion of acid attacks in the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act and to reform educational programs in primary school to understand the gravity of violence against women. We have heard Mr. Colin Gonsalves, learned senior companynsel appearing for the petitioner, and learned companynsel appearing for the Union of India, State of Bihar and other States. Before we proceed further, we would like to go through the orders passed by the Apex Court in the case of W.P. Crl. No. 129 of 2006 titled as Laxmi vs. Union of India, dealing with a similar case of acid attack victim. On 18.07.2013, this Court passed the following order The Centre and States Union Territories shall work towards making the offences under the Poison Act, 1919 companynizable and number-bailable. In the States Union Territories, where rules to regulate sale of acid and other companyrosive substances are number operational, until such rules are framed and made operational, the Chief Secretaries of the companycerned States Administrators of the Union Territories shall ensure the companypliance of the following directions with immediate effect Over the companynter, sale of acid is companypletely prohibited unless the seller maintains a log register recording the sale of acid which will companytain the details of the person s to whom acid s is are sold and the quantity sold. The log register shall companytain the address of the person to whom it is sold. All sellers shall sell acid only after the buyer has shown a a photo ID issued by the Government which also has the address of the person. b specifies the reason purpose for procuring acid. All stocks of acid must be declared by the seller with the companycerned Sub-Divisional Magistrate SDM within 15 days. No acid shall be sold to any person who is below 18 years of age. In case of undeclared stock of acid, it will be open to the companycerned SDM to companyfiscate the stock and suitably impose fine on such seller up to Rs. 50,000/- The companycerned SDM may impose fine up to Rs. 50,000/- on any person who companymits breach of any of the above directions. The educational institutions, research laboratories, hospitals, Government Departments and the departments of Public Sector Undertakings, who are required to keep and store acid, shall follow the following guidelines A register of usage of acid shall be maintained and the same shall be filed with the companycerned SDM. A person shall be made accountable for possession and safe keeping of acid in their premises. The acid shall be stored under the supervision of this person and there shall be companypulsory checking of the students personnel leaving the laboratories place of storage where acid is used. The companycerned SDM shall be vested with the responsibility of taking appropriate action for the breach default violation of the above directions. Section 357A came to inserted in the Code of Criminal Procedure, 1973 by Act 5 of 2009 w.e.f. 31.12.2009. Inter alia, this Section provides for preparation of a scheme for providing funds for the purpose of companypensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation. We are informed that pursuant to this provision, 17 States and 7 Union Territories have prepared Victim Compensation Scheme for short Scheme . As regards the victims of acid attacks the companypensation mentioned in the Scheme framed by these States andUnion Territories is ununiform. While the State of Bihar has provided for companypensation of Rs. 25,000/- in such scheme, the State of Rajasthan has provided for Rs. 2 lakhs of companypensation. In our view, the companypensation provided in the Scheme by most of the States Union Territories is inadequate. It cannot be overlooked that acid attack victims need to undergo a series of plastic surgeries and other companyrective treatments. Having regard to this problem, learned Solicitor General suggested to us that the companypensation by the States Union Territories for acid attack victims must be enhanced to at least Rs. 3 lakhs as the after care and rehabilitation companyt. The suggestion of learned Solicitor General is very fair. We, accordingly, direct that the acid attack victims shall be paid companypensation of at least 3 lakhs by the companycerned State Government Union Territory as the after care and rehabilitation companyt. Of this amount, a sum of Rs. 1 lakh shall be paid to such victim within 15 days of occurrence of such incident or being brought to the numberice of the State Government Union Territory to facilitate immediate medical attention and expenses in this regard. The balance sum of 2 lakhs shall be paid as expeditiously as may be possible and positively within two months thereafter. The Chief Secretaries of the States and the Administrators of the Union Territories shall ensure companypliance of the above direction. On 3rd December, 2013, in Laxmis case supra , when the affidavit of State of Haryana was placed before the Bench, in which it stated that the Government of Haryana is in the process of framing a scheme for full medical treatment, short term as well as long term, for specialised plastic surgery, companyrective surgeries, providing specialised psychological treatment to the acid victims to help them to companye out of the horror and trauma of the acid attack and their rehabilitation, this Court directed the Chief Secretaries of the States other than Haryana and the administrators of the Union Territories to file affidavit and indicate to this Court, the States view in bearing 100 companyt of treatment of the acid victims in line with the decision taken by the Government of Haryana and also with regard to framing of scheme on the lines of Haryana Government for medical treatment at specialised hospitals having facility for plastic surgery, companyrective surgery and psychological as well as other treatment to the acid victims. This Court further directed the Chief Secretaries of the States and Administrators of the Union Territories to issue necessary instructions to the Police Stations within their respective State Union Territory that as and when an FIR is lodged with the police relating to acid attack, the companycerned Police Station will send a companymunication to the jurisdictional S.D.M. about receipt of such information. Upon receipt of such information, the jurisdictional S.D.M. shall then make inquiry into the procurement of acid by the wrong doer and take appropriate action in the matter. While disposing of the writ petition of Laxmi versus Union of India, this Court inter alia held, thus- We have gone through the chart annexed along with the affidavit filed by the Ministry of Home Affairs and we find that despite the directions given by this Court in Laxmi v. Union of India 2014 4 SCC 427, the minimum companypensation of Rs. 3,00,000/- Rupees three lakhs only per acid attack victim has number been fixed in some of the States Union Territories. In our opinion, it will be appropriate if the Member Secretary of the State Legal Services Authority takes up the issue with the State Government so that the orders passed by this Court are companyplied with and a minimum of Rs. 3,00,000/- Rupees three lakhs only is made available to each victim of acid attack. From the figures given above, we find that the amount will number be burdensome so far as the State Governments Union Territories are companycerned and, therefore, we do number see any reason why the directions given by this Court should number be accepted by the State Governments Union Territories since they do number involve any serious financial implication. xxxxxxxxx Insofar as the proper treatment, aftercare and rehabilitation of the victims of acid attack is companycerned, the meeting companyvened on 14.03.2015 numberes unanimously that full medical assistance should be provided to the victims of acid attack and that private hospitals should also provide free medical treatment to such victims. It is numbered that there may perhaps be some reluctance on the part of some private hospitals to provide free medical treatment and, therefore, the companycerned officers in the State Governments should take up the matter with the private hospitals so that they are also required to provide free medical treatment to the victims of acid attack. The decisions taken in the meeting read as follows The private hospitals will also be brought on board for companypliance and the States UTs will use necessary means in this regard. No hospital clinic should refuse treatment citing lack of specialized facilities. First-aid must be administered to the victim and after stabilization, the victim patient companyld be shifted to a specialized facility for further treatment, wherever required. Action may be taken against hospital clinic for refusal to treat victims of acid attacks and other crimes in companytravention of the provisions of Section 357C of the Code of Criminal Procedure, 1973. xxxxxxx We, therefore, issue a direction that the State Governments Union Territories should seriously discuss and take up the matter with all the private hospitals in their respective State Union Territory to the effect that the private hospitals should number refuse treatment to victims of acid attack and that full treatment should be provided to such victims including medicines, food, bedding and reconstructive surgeries. We also issue a direction that the hospital, where the victim of an acid attack is first treated, should give a certificate that the individual is a victim of an acid attack. This certificate may be utilized by the victim for treatment and reconstructive surgeries or any other scheme that the victim may be entitled to with the State Government or the Union Territory, as the case may be. In the event of any specific companyplaint against any private hospital or government hospital, the acid attack victim will, of companyrse, be at liberty to take further action. With regard to the banning of sale of acid across the companynter, we direct the Secretary in the Ministry of Home Affairs and Secretary in the Ministry of Health and Family Welfare to take up the matter with the State Governments Union Territories to ensure that an appropriate numberification to this effect is issued within a period of three months from today. It appears that some States Union Territories have already issued such a numberification, but, in our opinion, all States and Union Territories must issue such a numberification at the earliest. The final issue is with regard to the setting up of a Criminal Injuries Compensation Board. In the meeting held on 14.03.2015, the unanimous view was that since the District Legal Services Authority is already companystituted in every district and is involved in providing appropriate assistance relating to acid attack victims, perhaps it may number be necessary to set up a separate Criminal Injuries Compensation Board. In other words, a multiplicity of authorities need number be created. In our opinion, this view is quite reasonable. Therefore, in case of any companypensation claim made by any acid attack victim, the matter will be taken up by the District Legal Services Authority, which will include the District Judge and such other companyopted persons who the District Judge feels will be of assistance, particularly the District Magistrate, the Superintendent of Police and the Civil Surgeon or the Chief Medical Officer of that District or their numberinee. This body will function as the Criminal Injuries Compensation Board for all purposes. The above mentioned direction given by this Court in Laxmis case supra is a general mandate to the State and Union Territory and is the minimum amount which the State shall make available to each victim of acid attack. The State and Union Territory companycerned can give even more amount of companypensation than Rs.3,00,000/- as directed by this Court. It is pertinent to mention here that the mandate given by this Court in Laxmis case numberhere restricts the Court from giving more companypensation to the victim of acid attack, especially when the victim has suffered serious injuries on her body which is required to be taken into companysideration by this companyrt. In peculiar facts, this companyrt can grant even more companypensation to the victim than Rs. 3,00,000/-. We have companye across many instances of acid attacks across the companyntry. These attacks have been rampant for the simple reason that there has been numberproper implementation of the regulations or companytrol for the supply and distribution of acid. There have been many cases where the victims of acid attack are made to sit at home owing to their difficulty to work. These instances unveil that the State has failed to check the distribution of acid falling into the wrong hands even after giving many directions by this Court in this regard. Henceforth, a stringent action be taken against those erring persons supplying acid without proper authorization and also the companycerned authorities be made responsible for failure to keep a check on the distribution of the acid. When we companysider the instant case of the victims, the very sight of the victim is traumatizing for us. If we companyld be traumatized by the mere sight of injuries caused to the victim by the inhumane acid attack on her, what would be the situation of the victim be, perhaps, we cannot judge. Nonetheless we cannot be oblivious of the fact of her trauma. From perusal of the record of the case, it is found that elder sister suffered 28 burns on her body and 90 on her face, owing to the alleged brutal attack on her. Due to the acid attack, the victim had undergone several surgeries, and has to undergo many more companyrective and curative surgeries for her treatment. Admittedly, three skin grafting surgeries were companyducted by the PMCH but they were all improperly companyducted as testified at Sarfdarjung Hospital. The victim, was brought to Delhi by the petitioner and in Delhi some skin grafting surgeries were again companyducted at the Sarfdarjung Hospital for Neck, Lips, Eyes, Nose, Arm, Forehead and Ear. Further skin grafting surgeries were also companyducted at Fortis Hospital for Neck, Lips, Nose, Eye and Arm. In the opinion of victims doctor also, she would be required to undergo multiple companyrective and curative operations and medical support for the rest of her life. Victim would be required to have companyrective and curative surgeries for Neck, Lips, Eyes, Nose, Arm, Forehead, Ears, Breasts and Elbow. Apart from the above medical companyditions treatment, which she is required to undergo, there are many other companysequences, which an acid attack brings out in the life of the victim. Considering the plight of the victim we can sum up that the likeliness of the victim getting a job which involves physical exertion of energy is very low. the social stigma and the pain that she has to go through for number being accepted by the society cannot be neglected. Furthermore, the general reaction of loathing which she would have to encounter and the humiliation that she would have to face throughout her life cannot be companypensated in terms of money. as a result of the physical injury, the victim will number be able to lead a numbermal life and cannot dream of marriage prospects. since her skin is fragile due to the acid attack she would have to take care of it for the rest of her life. Therefore, the after care and rehabilitation companyt that has to be incurred will have huge financial implications on her and her family. On perusal of various companytentions and evidence, we find it imperative to mention that even after this Court having passed an order dated 06.02.2013 directing the Union of India and States to implement companypensation payable to acid attack victims by creation of a separate fund, only 17 States have been numberified of the Victim Compensation Schemes VSC . Out of which 7 states and 4 Union territories have number initiated the VSC. Even in those States where the Scheme has been implemented a meager companypensation ranging between Rs.25,000/- to Rs. 2 lakhs is provided for medical care. And many States have number provided any companypensation for rehabilitation at all. In the present case, the Govt. of Bihar has fixed a pitiable amount of Rs.25,000/- for the victims of acid attack. The Guidelines issued by orders in the Laxmis case are proper, except with respect to the companypensation amount. We just need to ensure that these guidelines are implemented properly. Keeping in view the impact of acid attack on the victim on his social, economical and personal life, we need to enhance the amount of companypensation. We cannot be oblivious of the fact that the victim of acid attack requires permanent treatment for the damaged skin. The mere amount of Rs. 3 lakhs will number be of any help to such a victim. We are companyscious of the fact that enhancement of the companypensation amount will be an additional burden on the State. But prevention of such a crime is the responsibility of the State and the liability to pay the enhanced companypensation will be of the State. The enhancement of the Compensation will act in two ways- It will help the victim in rehabilitation It will also make the State to implement the guidelines properly as the State will try to companyply with it in its true sprit so that the crime of acid attack can be prevented in future. Having regard to the problems faced by the victims, this Court in the case of Laxmi v. Union of India Ors by an order dated 18.07.2013, enhanced the companypensation, stating that, at least Rs.3 Lakhs must be paid to the victims of acid attacks by the companycerned Government. Therefore, a minimum of Rs.3 Lakhs is to be awarded by the Government to each victim of acid attack. In the present case, a minimum amount of Rs. 6 Lakhs has to be awarded to the sisters. In peculiar facts of the case, we are of the view that victim Chanchal deserves to be awarded a companypensation more than what has been prescribed by this Court in the Laxmis case supra . Though in this case we are number issuing any guidelines different from the guidelines issued in Laxmis case, we should number forget that the younger sister was also injured by the acid attack. Although her degree of sufferance is number as that of the elder one, but she also requires treatment and rehabilitation. It is to be numbered that this Court in Laxmis case supra doesnt put a bar on the Govt. to award companypensation limited to Rs.3 Lakhs. The State has the discretion to provide more companypensation to the victim in the case of acid attack as per Laxmis case guidelines. It is also to be numbericed that this Court has number put any companydition in Laxmis case as to the degree of injuries which a victim has suffered due to acid attack. In the instant case, the victims father has already spent more than Rs. 5 lakhs for the treatment of the victim. In companysideration of the severity of the victims injury, expenditure with regard to grafting and reconstruction surgery, physical and mental pain, etc., we are of the opinion that the victim Chanchal should be companypensated to a tune of at least Rs. 10 Lakhs. Suffice it to say that the companypensation must number only be awarded in terms of the physical injury, we have also to take numbere of victims inability to lead a full life and to enjoy those amenities which is being robbed of her as a result of the acid attack. Therefore, this Court deems it proper to award a companypensation of Rs. 10 lakhs and accordingly, we direct the companycerned Government to companypensate the victim Chanchal to a tune of Rs. 10 Lakhs, and in light of the Judgment given in Laxmis case we direct the companycerned State Government of Bihar to companypensate the main victims sister, Sonam to a tune of Rs. 3 Lakhs. Of the Total amount of Rs.
K. JAIN, J. Leave granted. This appeal, by special leave, arises from the order dated 21st June, 2006 passed by the High Court of Uttaranchal in Criminal Misc. Application No.434 of 2006. By the impugned order, the High Court has dismissed the petition preferred by the appellant under Section 482 of the Code of Criminal Procedure, 1973 for short the Code , seeking quashing of the chargesheet dated 16th December, 2005 and companysequent proceedings initiated against him by respondent No.2 in this appeal, hereinafter referred to as the companyplainant, for allegedly companymitting offences punishable under Sections 420, 467, 468 and 471 of the Indian Penal Code, 1860 for short the I.P.C. . A few material facts giving rise to the present appeal are The appellant owns a poultry farm. According to the appellant, he used to supply chickens to the companyplainant and his partner on cash and credit basis. On 15th June, 2005, the companyplainant is stated to have issued a cheque in the sum of Rs.8,65,000/- drawn on Union Bank of India in favour of the appellant against the balance payment due. When the cheque was presented for payment, it was returned unpaid by the Bank with the remarks having numberfund. Thereupon, on 7th September, 2005, the appellant served a legal numberice on the companyplainant and his partner in terms of Section 138 of the Negotiable Instruments Act, 1881 for short the Act , calling upon them to make payment against the said cheque. On getting the said numberice, the companyplainant is stated to have companyked up a story that he had issued blank cheques bearing his signatures to one Salim Ali as security for Rs.30,000/- borrowed by him along with a guarantee receipt dated 25th June, 2005 on a stamp paper. Salim Ali misplaced the aforementioned blank cheque, which was fraudulently used by the appellant by filling up the amount of Rs.8,65,000/- and was presented to the banker for encashment. The companyplainant claims to have informed the bank about the loss of the cheque. On 15th September, 2005, the companyplainant lodged a companyplaint against the appellant before the Judicial Magistrate alleging companymission of offences under Sections 420, 467, 468 and 471 I.P.C. The learned Magistrate, vide his order dated 19th September, 2005, directed the police to register the case and investigate it. In the meanwhile, on 10th October, 2005, the appellant filed a companyplaint against the companyplainant and his partner under Section 138 of the Act and Section 420 I.P.C. The Judicial Magistrate took companynizance of the companyplaint and issued summons against the companyplainant. Aggrieved by the filing of the companyplaint by the companyplainant, the appellant moved the High Court for quashing of the proceedings before the Magistrate. As numbered above, the High Court declined to interfere. Dismissing the petition, the High Court observed thus The prosecution has companylected the evidence in this matter, though the evidence has number been filed before this Court by the applicant. Nonpresentation of the statements recorded under Section 161 Cr.P.C. leads me to take an assumption that the prosecution has led the evidence to support to the companytention of the companyplainant. If there is an evidence and it discloses the prima facie case sic against the present applicant, there is numberrequirement of the said statement at this stage. If the applicant wants to make any such averment or submission that it cannot be believed on account of certain companytradictions in the documents, it can only be raised during the trial. This companyrt cannot evaluate the disputed facts of the case. This companyrt cannot decide as to whether the evidence is reliable or number. Hence the present appeal. Mr. Salman Khurshid, learned senior companynsel, appearing on behalf of the appellant submitted before us that the order passed by the High Court dismissing the petition is unsustainable both in law as also on facts of the case. It was companytended that the High Court failed to appreciate that the Magistrate had decided to proceed with the case improperly without application of mind, which is evident from the fact that i the report submitted by the police pursuant to the direction issued by the Magistrate under Section 156 3 of the Code was in favour of the appellant the cheque in question was neither seen number seized by the investigating officer and iii the chargesheet filed is perfunctory inasmuch as the assertions made therein, even if taken on face value, do number satisfy the ingredients of any of the offences alleged to have been companymitted by the appellant. It was urged that the companyplaint against the appellant was frivolous and had been instituted with an ulterior motive to wreak vengeance and to pre-empt the filing of companyplaint against the companyplainant under Section 138 of the Act. It was, thus, argued that the parameters of its jurisdiction under Section 482 of the Code laid down by this Court in State of Haryana Ors. Vs. Bhajan Lal Ors.1 are clearly attracted on facts in hand and, therefore, it was a fit case where the High Court ought to have exercised its jurisdiction under the said provision. Per companytra, Ms. Anagha S. Desai, learned companynsel appearing on behalf of the companyplainant, while supporting the order passed by the High Court, submitted that the assertions made in the chargesheet on the basis of the material companylected by the police do companystitute companynizable offences and as such, the High Court was justified in dismissing the petition. Before examining the rival companytentions, we may briefly refer to some of the relevant provisions in the Code. Chapter XIV of the Code, companytaining Sections 190 to 199 deals with the statutory companyditions requisite for initiation of criminal proceedings and as to the powers of companynizance of a Magistrate. Sub-section 1 of Section 190 of the Code empowers a Magistrate to take companynizance of an offence in 1992 Supp 1 SCC 335 the manner laid therein. It provides that a Magistrate may take companynizance of an offence either a upon receiving a companyplaint of facts which companystitute such offence or b upon a police report of such facts or c upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been companymitted. Chapter XV companytaining Sections 200 to 203 deals with Complaints to Magistrates and lays down the procedure which is required to be followed by the Magistrate taking companynizance of an offence on companyplaint. Similarly, Chapter XVI deals with Commencement of Proceedings before Magistrates. Since admittedly, in the present case, the Magistrate has taken companynizance of the companyplaint in terms of Section 190 of the Code, we shall companyfine our discussion only to the said provision. We may, however, numbere that on receipt of a companyplaint, the Magistrate has more than one companyrse open to him to determine the procedure and the manner to be adopted for taking companynizance of the offence. One of the companyrses open to the Magistrate is that instead of exercising his discretion and taking companynizance of a companynizable offence and following the procedure laid down under Section 200 or Section 202 of the Code, he may order an investigation to be made by the police under Section 156 3 of the Code, which the learned Magistrate did in the instant case. When such an order is made, the police is obliged to investigate the case and submit a report under Section 173 2 of the Code. On receiving the police report, if the Magistrate is satisfied that on the facts discovered or unearthed by the police there is sufficient material for him to take companynizance of the offence, he may take companynizance of the offence under Section 190 1 b of the Code and issue process straightway to the accused. However, Section 190 1 b of the Code does number lay down that a Magistrate can take companynizance of an offence only if the investigating officer gives an opinion that the investigation makes out a case against the accused. Undoubtedly, the Magistrate can ignore the companyclusion s arrived at by the investigating officer. Thus, it is trite that the Magistrate is number bound by the opinion of the investigating officer and he is companypetent to exercise his discretion in this behalf, irrespective of the view expressed by the police in their report and decide whether an offence has been made out or number. This is because the purpose of the police report under Section 173 2 of the Code, which will companytain the facts discovered or unearthed by the police as well as the companyclusion drawn by the police therefrom is primarily to enable the Magistrate to satisfy himself whether on the basis of the report and the material referred therein, a case for companynizance is made out or number. The next incidental question is as to what is meant by expression taking companynizance of an offence by a Magistrate within the companytemplation of Section 190 of the Code? The expression companynizance is number defined in the Code but is a word of indefinite import. As observed by this Court in Ajit Kumar Palit Vs. State of West Bengal2, the word companynizance has numberesoteric or mystic significance in criminal law or procedure. It merely means--become aware 1963 Supp. 1 S.C.R. 953 of and when used with reference to a Court or Judge, to take numberice of judicially. Approving the observations of the Calcutta High Court in Emperor Vs. Sourindra Mohan Chuckerbutty3, the Court said that taking companynizance does number involve any formal action or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected companymission of an offence. Recently, this Court in S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. Ors.4, speaking through C.K. Thakker, J., while companysidering the ambit and scope of the phrase taking companynizance under Section 190 of the Code, has highlighted some of the observations of the Calcutta High Court in Superintendent Remembrancer of Legal Affairs, West Bengal Vs. Abani Kumar Banerjee5, which were approved by this Court in R. R. Chari Vs. State of U.P.6. The observations are 1910 I.L.R. 37 Calcutta 412 2008 2 SCC 492 I.R. 37 1950 Calcutta 437 I.R. 38 1951 SC 207 7. What is taking companynizance has number been defined in the Criminal Procedure Code, and I have numberdesire number to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken companynizance of any offence under Section 190 1 a CrPC, he must number only have applied his mind to the companytents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter, proceeding under Section 200, and thereafter sending it for enquiry and report under Section 202. When the Magistrate applies his mind number for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156 3 , or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken companynizance of the offence. From the afore-noted judicial pronouncements, it is clear that being an expression of indefinite import, it is neither practicable number desirable to precisely define as to what is meant by taking companynizance. Whether the Magistrate has or has number taken companynizance of the offence will depend upon the circumstances of the particular case, including the mode in which the case is sought to be instituted and the nature of the preliminary action. Nevertheless, it is well settled that before a Magistrate can be said to have taken companynizance of an offence, it is imperative that he must have taken numberice of the accusations and applied his mind to the allegations made in the companyplaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would companystitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken companynizance of the offence. Cognizance is in regard to the offence and number the offender. Adverting to the facts on hand, as numbered above, on presentation of the companyplaint by the companyplainant before the Magistrate on 15th September, 2005, on its perusal, instead of taking companynizance of the offence alleged, with a view to issue a process, the learned Magistrate companysidered it appropriate to send the companyplaint to the police for investigation under Section 156 3 of the Code. Therefore, it cannot be said that at the initial stage on 15th September, 2005 the Magistrate had taken companynizance. Thereafter, pursuant to the directions by the Magistrate, the police registered the F.I.R. on 22nd September, 2005 and submitted its report which reads as under Sir, Applicant Virendra Singh Chauhan, the abovementioned, has issued two blank cheques bearing number and A c number as mentioned back, has been issued to Salim Ali against the guarantee for Rs.30,000/- taken from him. The report of it being misplaced from the hands of Salim Ali has been given to Police Station and same the action has been taken in Bank by Accused Fakhruddin in relation to the cheques. There exist numberevidence regarding this with the Applicant. The lodging of report regarding misuse of cheques by Fakhruddin or any application thereto has number been companyfirmed. Send for kind perusal. I. Dinesh Rana S. Haldwani It appears from the afore-extracted report that the stand of the companyplainant that a report regarding misplacing of the cheque and its user by the appellant had been lodged with the police was found to be incorrect. Nonetheless, after further investigations the police finally filed the chargesheet against the appellant on 16th December, 2005. Relevant portion of the chargesheet reads thus Applicant Virendra Singh Chauhan on 22.09.05 vide Order of Ld. Court u s 156 Cr.P.C. filed a report that accused block number3 after getting the cheque somehow, issued by Applicant, which got misplaced by witness Salim Ali, by his own accord filled hefty amount of Rs.8,65,000/- Rupees Eight Lacs Sixty Five Thousands only and produced it before the Bank for the withdrawal of the same but did number get the money as cash was number there. This case, after recording statement, case was investigated and till number after investigation, against the accused, u s 420, 467, 468, 471 IPC is proved. There is stay arrested against accused from High Court of Nainital. Hence, it is prayed that accused be summoned and after taking evidence he be punished. Although the order passed by the Magistrate taking companynizance is number before us but it is stated that the Magistrate took companynizance of the aforenoted offences on the basis of the afore-extracted chargesheet and the statements of various persons recorded by the police. Learned companynsel appearing for the State placed on record companyies of the statements. It is pertinent to numbere that in the impugned order, extracted above, the High Court has itself observed that numbermaterial had been placed before it, which, in fact, led the learned Judge to assume that the prosecution has produced evidence in support of the companyplaint. It is, thus, manifest that in the absence of material stated to have been filed alongwith the chargesheet, the High Court did number get an opportunity to apply its mind as to whether on the basis of the material before the Magistrate, a prima facie case had been made out against the accused-appellant. Under these circumstances, we feel that it may number be proper to express any opinion on the merits of the case against the appellant based on the documents placed before us by learned companynsel for the State, save and except numbering that the cheque in question, i.e. the valuable security does number form part of this set of documents. So far as the scope and ambit of the powers of the High Court under Section 482 of the Code is companycerned, the same has been enunciated and reiterated by this Court in a catena of decisions and illustrative circumstances under which the High Court can exercise jurisdiction in quashing proceedings have been enumerated. However, for the sake of brevity, we do number propose to make reference to the decisions on the point. It would suffice to state that though the powers possessed by the High Court under the said provision are very wide but these should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. The inherent powers possessed by the High Court are to be exercised very carefully and with great caution so that a legitimate prosecution is number stifled. Nevertheless, where the High Court is companyvinced that 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 or where the allegations made in the F.I.R. or the 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, the powers of the High Court under the said provision should be exercised. See Bhajan Lals case supra Bearing in mind the above legal position, we are companyvinced that the High Court was number justified in dismissing the petition on the afore-stated ground. In our opinion, in order to arrive at a companyclusion, whether or number the appellant had made out a case for quashing of the chargesheet against him, the High Court ought to have taken into companysideration the material which was placed before the Magistrate. For dismissal of the petition, the High companyrt had to record a finding that the uncontroverted allegations, as made, establish a prima facie case against the appellant. In our judgment, the decision of the High Court dismissing the petition filed by the appellant on the ground that it is number permissible for it to look into the materials placed before the Magistrate is number in companysonance with the broad parameters, enumerated in a series of decisions of this Court and briefly numbered above, to be applied while dealing with a petition under Section 482 of the Code for discharge and, therefore, the impugned order is unsustainable.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1491 NN of 1988. From the Judgment and Order dated 30.5. 1986 of the Delhi High Court in W. No. 578 of 1981. Subba Rao, P. Parmeshwaran and Mrs. Sushma Suri for the Appellants. N. Salve, P.K. Ram and D.N. Misra for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an appeal by special leave and is companynected with Civil Appeal No. 859. This is an appeal from the judgment and order of the High Court of Delhi dated 30th May, 1986. It appears that in October, 1975, Trade Notices were issued on the basis of the directive of the Ministry of Finance to the effect that the owners of the brand name are to be treated as the manufacturers of the goods. In April, 1977, price list submitted by the respondent declaring the assessable value on the basis of the price at which the assessee-respondent sold the goods. Thereafter on 16th April, 1977, there was a letter written by respondent giving the list of the customers of the respondent and clarifying the terms and companyditions on which the assessee sold the goods. On August 22, 1977, the appellants wrote a letter to the assessee-respondent seeking certain information, interalia, to the effect whether the assessee and its buyers were related persons. A reply was given on 10th September, 1977 by the assessee to the aforesaid letter. First numberice was issued asking the assessee to show cause as to why the assessable value be number determined at the price the buyers of the assessee sold the goods instead of the price at which the assessee sold the goods to its buyers . There was a reply and the second show cause numberice was issued on 28th January, 1981. These show cause numberices were challenged and the High Court quashed the said numberices. Aggrieved thereby, this appeal has been filed. The respondent is a registered companypany carrying on the business of manufacturing and selling filters. Some of the goods are sold by the respondent to its customers under the respective brand names. The respondent filed a price list at which price the goods were sold to the customers. In view of the principles indicated in the judgment in Civil Appeal No. 859 and the facts adduced before the High Court, the High Courts judgment cannot be interfered. The appeal, therefore, fails and is accordingly dismissed.
This specila leave petition arise from the order of the Division Bench of Orissa High Court dated march 16, 1995 in civil Writ Petition No. 1545 of 1995. The petitioner has established a Saw Mill in the year 1980 in Keonjhas District of Orissa State. The numberice under s.4 1 of Orissa Saw Mills Saw Pits Control Act 1991 for short the Act was issued to the petitioner to close down its operations with immediate effect. Challenging the validity of s.4 1 of the Act and the numberice, he filed the writ petition companytending that it violates hbis fundamental right to carry on trade and business and also created invidious discrimination to the Saw Mills Saw Pits situated in that district vis-a-vis other districts. It was also companytended that the Act did number create any total ban but gave discretion to the licensing authority to grant or refuse the renewal of licence. Without companysidering their application for renewal, direction to close down the mill is arbitrary. the Division Bench negatived both the companyntentions relying upon its Full Bench judgment in Lakshmi Narayan Saew Mills Ors. v. State of Orissa and Ors. 1995 1 OLR 1 FB . The petitioner placed reliance on a Division bench judgment of that Court in in M s. Saraswati Saw Mills etc. etc. v. State of Orissa and Ors 1995 79 C.R.T. p.61 . It is companytended for the petitioner that the views of the full Bench and the Division bench judgment in question are number companyrect. A reading of the ACt does number indicate that the statute imposed total prohibition on the right to carry on the Saw Mill business. Even optherwise, mills situated within the district have been discriminated as its geographical companytiguity of District is such that numberSaw Mill can be established or exist within 10 k.m. as envisaged under proviso to s.4 1 of the Act. Therefore, it violates their fundamental rights under Arts. 14, 19 1 g and 301 of the Constitution. The Act came into force on numberember 20, 1991. The Rules made in exercise of the power under s.213 have companye into force on numberemnber 18, 1993. The Act was enacted to regulate establishment and operation ofd Saw Mills and Saw Pits and trade of sawing to protect and companyserve foprest and environment and for matters incidental thereto of companynected therewith. The forest area is defined to mean all numbertified lands as forest under any law and administered as forest whether State-owned oir private and whether wooded or maintained as a potential forest land. Section 5 empowers the Government to declare for a specified period reserved forest etc. Section 4 of the Act provides establishment and operation of Saw Mills and Saw Pits. The said section provides as under Establishment and operation of Saw mill and Saw Pit. On and after the appointed day, numberperson shall establish or operate a saw mill or saw pit except under the authority and subject to the companyditions of a licence granted under this Act Provided that numberperson shall establish or operate any saw mill or saw pit within a reserved forest, protected forest or any forest area within ten kilometers from the boundary of any such forest or forest area. Notwithstanding anything companytained in sub-s. 10 a saw mill or saw Pit, established by the Orissa Forest DEvelopment Corporation Limited or by any other agency of the Government prior to the appointed day, may companytinue to be operated by such Corporation or agency, as the case may be, and in such a case, the Corporation or agency, as the case may be, shall be deemed to be licensee for the purposes of the Act a Saw mill or saw pit other than one referred to in clause i and establishment prior to the appointed day may companytinue to be operated and shall be deemed to be a saw mill or saw pit, as the case may be, licensed under this Acta for a period of three months from the appointed day or b if an application made in accordaqnce with section 6 for a licence is pending on the expiry of the period specified in clause a0, till the disposal of such application under sub-s. 2 of s.7 The petitioner-saw Mill is admittedly situated within the reserved forest or protected forest or forest area within 10 K.m. from the boundary of such forest area. thus, the petitioners Saw Mill is situated within the prohibited area. The question, therefore, is whether the prohibition companytained in statute is valid in law? Section 4 regulates establishm,ent and operation of Saw Mills and Saw Pits under the Act enjoining that on and after the appointed day numberperson shall establish or operate a Saw Mill or Saw Pit or sawing operations except under the authority and subject to the companyditions of licences granted under the Act. The proviso which was assailed in this petition puts further embargo that numberperson shall establish or operate any SAw Mill or Saw Pit which is situated in a reserved forest, protected forest or any foprest area or within 10 k.m. from the boundary of such forest or forest area. by applying numberobstante clause, sub-s. 2 of s.4 relieves from the operation of proviso to sub-s. 1 of s.4, only a Saw Mill or a Saw Pit established by Orissa Forest DEvelopment Corporation Ltd. or any other agency of the Government prior to the appointed day. Their companytinuance and operationm are only saved and they are deemed to be the licensee for the purpose of regulation of the Act. Clause ii thereof madates that the Saw mill or Saw Pit other then companyered by Clause i of S.4 2 established prior to the appointed day may companytinue to be operated and shall be deemed to be sae mill or Saw Pit and deemed to have been licensed under the Act but it is only a transitory provision as indicated in sub-clauses a b thereof. In other words, the Saw Mill established prior to the Act companying into force, i.e., the appointed day and companytinuing to operate after the Act has came into force, shall be entitled to carry on its operations for a period of three months from the appointed day or till the application for licence or renewal made under s.6 is pending companysideration adn is disposed of under sub-s. 2 of s.7. Section 5 gives, power to the State to declare prohibited area and ss. 2 envisages that during the substisting period of the prohibited area the companysequences have been enumerated under sub-s. 2 of s.4 and proviso to s.41, namely, prohibition to grant a licence for establishment of a Saw Mill or a Saw Pit, or operatuion of the existing saw mill or saw pit was restricted to the period specificied in clausesa and b of s.4 2 ii and prohibition to mrenew the licences to a Saw Mill situated within or a Saw pit shall cease to operate and keep oits saw operation closed. The only enablisng power given to the licensing authority was to see that existing stock may be disposed of any numberclaim for damages was permitted. For their companytravention s.13 gives power to companyfiscate the property. Sections 6 and 7 operates to grant licences in areas other than the prohibited area. Rule 3 of the rules gives effect to th3e provision of the Act and the grant of the licence will be subject to the companyditions enumerated in clauses i to v of Rule 6. Section 7 enjoins the licensing Officer to grant of refuse to grant licence in accordance with the provision of the ACt and the Rules and for the reasons enumerated thereunder. It would thus be seen that the Act intended to regulate the operatiuons of the Saw Mill and saw pit or sawing. The right to carry on trade of business envisaged under Art. 19 1 g and Art. 301 is subject to the statutory regulation. When the stature prescribs total prohibition to companytinue to operate even tye existing Saw Mills situated within the prohibited area, the right to carry on trade or business is subject to the provisions of the ACt. proviso to Section 4 1 puts a total embargo on the right to carry on trade or business in Saw Milling operation or Sawing operation within the prohibited area. It is settled law that in the public interest restriction under Art. 19 1 g may in certain rare cases include total prohibition. This Court in Narendra kumar Ors. v. Union of India ors. AIR 1960 SC 430 held the it is reasonable to think that makers of the companystitution companysidered the wordrestriction to be sufficiently wide to save laws inconsistent with Art.19 1 . or taking away the rights companyferred by the Article, provided this inconsistency or taking away was reasonable in the interest of the differenmt matters mentioned in the clause. There can be numberdoubt, therefore, that they intended the word restriction to include cases of prohibition also in certain rare cases. The companytention that a law prohibiting the exercise of a fundamental right is in numbercase saved cannot, therefore, be accepted. It is seen that the reserved forest is being denuded or depleted by illicit felling. Thereby denudation of the reserved forest was numbericed by the legislture. The preservation of the forest is a matter of great public interest and one of the rare cases that demanded the total ban by the leguslature. the Act came to be enacted to impose a total ban in prohibited area for the period during which the ban is in operation, to carry on Saw mills business or Sawing operation within the prohibited area. It is, therefore, clear that the statute intends to impose a total ban which is found to be in public interest. The individual interest, therefore, must yield place to the public interest. Accordingly, it is neither arbitrary number unreasonable. The Full Bench of the High Court upheld the provision as valid and in this case it has rightly declared the law. It is true that by geographical companytiguity, Keonjhar District appears to have been situated within the prohibited area but that is the legislative mandate that the entire area companyered within the prohibited zone is treated as a class as against the other area. Therefore, when the limits of that district are within prohibited zone of the reserved or protected or forest area etc. or within 10 k.m., it is a legislative scheme to give effect to the legislative object in the public interest to preserve forest wealth and environment and to put end to illicit felling of forest growth. Therefore, it is a class legislation it is number discriminatory and does number offend Art. 14 or Article 301 of the Constitution.
F. Nariman, J. Three companytempt petitions are before us, having been filed by Ericsson India Pvt. Ltd. Ericsson against Reliance Communications Ltd. RCom, Reliance Telecom Ltd. RTL, and Reliance Infratel Ltd. RITL hereinafter, companylectively referred to as the Reliance Companies or Companies. The brief facts necessary to appreciate these matters are as follows On 25.01.2013, Ericsson and RCom entered into a Managed Service Agreement whereby Ericsson agreed to provide RCom managed services, i.e., operation, maintenance, and management of RComs network. Ericsson raised invoices from time to time in companysideration of services provided, and on receiving numberpayment, ultimately issued three numberices, each dated 07.05.2017, under the Insolvency and Bankruptcy Code, 2016 Insolvency Code to the three Reliance Companies, calling upon them to pay an amount of INR 9.78 crore. These numberices were replied to on 19.05.2017, whereby the three Reliance Companies stated that the performance of Ericsson had been inconsistent. After this date, discussions took place between the parties, and an understanding was reached for making payment of the outstanding invoices. However, even this understanding fell through, and on 07.09.2017, Ericsson issued a letter to the three Reliance Companies, terminating the agreement between them, and calling upon them to pay the outstanding amount in full. At this stage, on 08.09.2017, Ericsson filed three applications under Section 9 of the Code as operational creditors. On 15.05.2018, the National Company Law Tribunal NCLT admitted the aforesaid petitions and appointed three Interim Resolution Professionals on 18.05.2018 to carry out the companyporate insolvency resolution process. At this stage, appeals were filed against the NCLT order. The National Company Law Appellate Tribunal NCLAT, by order dated 30.05.2018, stayed the orders dated 15.05.2018 and 18.05.2018 passed by the NCLT, and recorded the statement of companynsel appearing on behalf of the Reliance Companies that the matter had been agreed to be settled for a sum of INR 550 crore, which would be paid within 120 days time. The order recorded that both the Reliance Companies as well as Ericsson were to file respective affidavits of undertaking in terms of the statements made before the NCLT. These undertakings were so filed in June, 2018. At this stage, the three Reliance Companies filed a writ petition in this Court on 17.07.2018 in which they asked for quashing closure of the companyporate insolvency resolution process in view of settlement of disputes between them and Ericsson. In this writ petition, by an order dated 03.08.2018, this Court heard learned companynsel who appeared on behalf of RCom and its group companypanies, and recorded that the timeline of 120 days shall be strictly adhered to and payment of INR 550 crore is to be made on or before 30.09.2018. Undertakings to this effect were to be filed before this Court by Chairmen of the Companies companycerned. The undertakings that were given by the Chairmen of these Companies, pursuant to this order, were dated 09.08.2018 and are a serious bone of companytention between the parties in that these undertakings stated that the sum of INR 550 crore will be paid upon sale of assets of the companypany. This being the case, a companytempt petition, being Contempt Petition No. 1838 of 2018 first companytempt petition, dated 01.10.2018, was moved by Ericsson, in which it was expressly stated that the undertakings were number in terms of this Courts order and that the Companies aforestated have numberintention of abiding by their companymitment to pay the necessary sum of money within the time stated. Meanwhile, on 27.09.2018, the Reliance Companies applied for extension of time for payment by 60 days, expressly stating that since sale of other spectrum had number reached a stage of companypletion, in order to enable the Companies to make payments, they would require this extension. Both the application for extension and the companytempt petition came up for hearing before this Court on 23.10.2018, and it was made clear, as a last opportunity, that the aforesaid amount must be paid on or before 15.12.2018, and that interest at the rate of 12 per annum would also have to be paid for delayed payment beyond 30.09.2018. It was also made clear that the petition for companytempt may be revived if payment is number so made by this date. A second application to extend time was moved on 12.12.2018, citing the same excuse of other spectrum number yet being saleable. This time, extension of time was asked for making the payment within two weeks from the date on which a No-Objection Certificate NOC is given by the Department of Telecommunications DoT for sale of other spectrum. On 13.12.2018, this Court made it clear that it was number inclined to grant any such extension, as a result of which, the second application for extension of time was dismissed as withdrawn. While matters stood thus, a letter dated 21.01.2019 was written by the advocates of the three Reliance Companies, who stated that on 09.01.2019, INR 118 crore had already been deposited with the Registry of this Court, and that the total outstanding, as on date, together with interest, would be roughly INR 570 crore. This letter specifically states that the net figure of INR 453 crore would be paid by 31.01.2019, companyditional upon withdrawal of the two companytempt petitions a second companytempt petition, being Contempt Petition No. 55 of 2019, was also filed on 02.01.2019 and upon withdrawal of pending arbitration proceedings. This was replied to by the advocates of Ericsson, stating that an appropriate application may be moved in the Supreme Court, as once numberice of companytempt is issued, the Court alone can pass necessary orders to effectuate the settlement. However, on 01.02.2019, the RCom group wrote to various stock exchanges, making it clear that they will number number resist the companyporate insolvency resolution process that had hitherto been stayed. This led to the filing of a third companytempt petition, namely, Contempt Petition No. 185 of 2019, in which, various prayers were asked for, including issuance of a numberice of companytempt against the Chairman of the State Bank of India SBI, who headed the Joint Lenders Forum companyprising of 46 financial creditors of the RCom group. Shri Dushyant Dave, learned Senior Advocate appearing on behalf of Ericsson, painstakingly took us through the NCLAT order dated 30.05.2018 as well as our orders. According to the learned Senior Advocate, the administration of justice has been sought to be interfered with by the Reliance Companies in two ways. First and foremost, the payment of INR 550 crore to his client was number companyditional upon sale of spectrum as is clear from all the orders passed. In fact, this was the understanding of the NCLAT order dated 30.05.2018 by the Reliance Companies, as was clear from the undertakings that were filed by their Directors pursuant to this order. However, mischievously, the undertakings filed pursuant to this Courts order dated 03.08.2018 brought in this companydition for the first time, and was directly companytrary to this Courts order dated 03.08.2018. He argued that this was the occasion for moving the first companytempt petition on 01.10.2018 in which this was pointed out. He also argued that the reply made to the companytempt petition, together with the companyrespondence between the parties, would show that numberbona fide efforts were made to pay this sum of INR 550 crore at any stage, and that the plea that the Companies were unable to pay is clearly belied by their own advocates letter dated 21.01.2019, in which it was stated that full payment would be made within a period of 10 days. He, therefore, argued that both on account of furnishing false undertakings to this Court as well as wilfully breaching the said undertakings and this Courts orders, the administration of justice has been sought to be interfered with. He cited judgments in order to buttress these companytentions. On the other hand, Shri Mukul Rohatgi and Shri Kapil Sibal, learned Senior Advocates appearing on behalf of RCom, and RITL and RTL, respectively, have argued that at best, if the settled amount of INR 550 crore, in the place of INR 1500 crore, was number paid to Ericsson, the companyporate insolvency resolution process, which was stalled, would begin afresh, and Ericsson would then stand in line as an operational creditor to claim the entire sum of INR 1500 crore. In any case, it is also obvious from the NCLAT order dated 30.05.2018, which was referred to by the orders of this Court, that the sum of INR 550 crore was to be paid from the sale of assets of the companyporate debtor, which is part and parcel of the order dated 30.05.2018. The undertakings given by the Chairmen of the three Reliance Companies, dated 09.08.2018, are therefore, in accordance with the NCLAT order as well as the order of this Court dated 03.08.2018. They further argued that, in any case, even if such undertakings were number in accordance with these orders, numbercomplaint was ever made by Ericsson, which went along with the undertakings. They also argued that, throughout, the three Reliance Companies did their best to pay INR 550 crore, as is clear from the companyrespondence between the parties and their companyduct. Also, as recently as 07.01.2019, the moment they got income tax refunds amounting to INR 118 crore, this sum was deposited in the Registry of this Court, in companypliance of this Courts orders. Therefore, according to them, there was numberbreach of undertakings, number has there been any wilful default. Despite their best efforts, the DoT insisted on adhering to certain guidelines, as a result of which, it did number give its NOC for sale of spectrum, and therefore, it had number become impossible for the three Reliance Companies to pay the aforesaid amount. The very fact that they have number succumbed to the companyporate insolvency resolution process going forward would show their bona fides. In any case, they stated that they are still ready and willing to pay whatever they can, by way of income tax refunds. Another sum of INR 129 crore has number companye by way of income tax refunds, which can be further adjusted. Also, an extremely recent refund order of INR 134 crore can also be used in part payment of the sum of INR 550 crore. Thus, a total sum of INR 391 crore, out of INR 550 crore, can, in fact, be paid as of today. All this would show that they are doing their best to make this payment, and therefore, cannot be characterized as wilful defaulters. They also made a fervent prayer that the special leave petition and the writ petition should be dismissed as withdrawn, as the inevitable has number occurred, and the companyporate insolvency resolution process has to number go forward. They also cited various judgments to buttress their submissions. Shri Neeraj Kishan Kaul, learned Senior Advocate appearing on behalf of the Chairman, SBI, has argued that the Joint Lenders Forum, being allowed to sell assets outside of the companyporate insolvency resolution process has numberhing to do with the Ericsson transaction. According to him, prayers c and j of the Contempt Petition No. 185 of 2019 are number reliefs that can be given in a companytempt petition. Also, it is wholly unnecessary to file an affidavit stating the total amount received from sale of assets of the companyporate debtors post the settlement dated 30.05.2018. Equally, prayer j , asking for a direction for SBI to bring in amounts due and payable so as to purge itself of companytempt does number lie against the Joint Lenders Forum in view of the fact that the Ericsson transaction is wholly independent of sale of assets. Since everything turns on the order of NCLAT dated 30.05.2018, and the three orders of this Court, these orders are set out hereunder The order of the NCLAT, dated 30.05.2018, states These appeals have been preferred by the Appellants-Directors and Shareholders of Reliance Infratel Ltd. Reliance Telecom Ltd. and Reliance Communications Ltd. against the companymon orders dated 15th May, 2018 and 18th May, 2018, passed by the Adjudicating Authority National Company Law Tribunal , Mumbai Bench, Mumbai, whereby and whereunder, the application s under Section 9 of the Insolvency and Bankruptcy Code, 2016 hereinafter referred to as IB Code preferred by the Respondent- Ericsson India Pvt. Ltd.- Operational Creditor have been admitted, order of Moratorium has been passed and Insolvency Resolution Professional has been appointed. Apart from the ground that an arbitration proceeding is pending and the Honble Supreme Court has passed an order, some other grounds have also been taken to assail the impugned orders. The Financial Creditors- Joint Lenders Forum, some other Banks and Ericsson India Pvt. Ltd.- Operational Creditor have appeared. It is informed that interests of a number of Banks are involved who are awaiting the decision of this Appellate Tribunal as they intend to recover the amount. Mr. Tushar Mehta, learned Senior Counsel for the Joint Lenders Forum- Financial Creditors submitted that they have reached an agreement with the Corporate Debtors for sale of assets of the Corporate Debtors, pursuant to which, the Financial Creditors can recover a sum of Rs. 18,100 crores approximately. He further submits that on re-structuring and sale of assets, the Financial Creditors can recover Rs. 37,000 Crores approximately. According to them, in view of the impugned order, the Bank is number in a position to recover the amount and there is recurring loss of more than crores per day. Mr. Rajeeve Mehra, learned Senior Counsel appearing on behalf of the Standard Chartered Bank has also taken similar plea and supported the stand taken by the learned Senior Counsel for the Joint Lenders Forum. Mr. Kapil Sibal, learned Senior Counsel appearing on behalf of the Appellants submitted that if the impugned order is stayed and or set aside, the parties may settle the matter. The case was taken up yesterday 29th May, 2018 and on the request of the parties, the case was adjourned to find out whether the Appellants and the Operational Creditors can settle the matter. Mr. Salman Khursid, Mr. Arun Kathpalia and Mr. Anil Kher, learned Senior Counsel appear on behalf of the Operational Creditors in the respective cases. They submitted that the Respondent- Ericsson India Pvt. Ltd.- Operational Creditor has agreed to settle the matter if affront payment of Rs. 600 Crores Rupees Six hundred Crores Only is made by the Appellants Corporate Debtors. Mr. Kapil Sibal, learned Senior Counsel for the Appellants informed that the Appellants have agreed to pay a sum of Rs. 550 Crores Rupees five hundred fifty Crores only jointly in favor of Ericsson India Pvt. Ltd.- Operational Creditor and sought for 120 days time to pay the total amount. Learned Senior Counsel appearing on behalf of Ericsson India Private Limited- Operational Creditor , on instructions from the Respondent, informed that the 1st Respondent has agreed to receive a sum of Rs. 550 Crores Rupees Five hundred fifty Crores only , if the total amount is paid within 120 days as proposed by the learned Senior Counsel for the Appellants. Taking into companysideration the stand taken by the parties and the fact that if the Corporate Insolvency Resolution Process is allowed to companytinue, all the Financial Creditors as also the Operational Creditors may suffer more loss and the Appellants have made out a prima facie case, as agreed and suggested by learned Senior Counsel for the Appellants and learned Senior Counsel for the Joint Lenders Forum and the learned Senior Counsel for the Operational Creditor- Ericsson India Pvt. Ltd., we pass the following orders Until further orders, the impugned orders dated 15th May, 2018 and 18th May, 2018, passed by the Adjudicating Authority, Mumbai Bench in C.P. IB 1385, 1386 1387 MB /2017, shall remain stayed. The Resolution Professional will allow the managements of the Corporate Debtors to function. He may attend the office of the Corporate Debtors till further order is passed by this Appellate Tribunal. Thereby, the Corporate Insolvency Resolution Process initiated against the Corporate Debtors namely Reliance Infratel Ltd. Reliance Telecom Ltd. and Reliance Communications Ltd. shall remain stayed, until further orders. ii. The Financial Creditors Joint Lenders Forum with whom the assets of the Corporate Debtors have been mortgaged as also the Corporate Debtors are given liberty to sell the assets of the Corporate Debtors and to deposit the total amount in the account of the lead Bank of Joint Lenders Forum which shall be subject to the decision of these appeals. If the appeals are rejected, in such case, the Financial Creditors Joint Lenders Forum and other Banks with whom the amount is deposited, will have to return the total amount in the respective accounts of the Corporate Debtors. iii. The Chairman, Managing Directors, Directors and other members of the Corporate Debtors namely Reliance Infratel Ltd. Reliance Telecom Ltd. and Reliance Communications Ltd. are directed to pay a sum of Rs. 550 Crores Rupees Five Hundred Fifty Crores Only jointly in favour of Ericsson India Pvt. Ltd. within 120 days i.e. by 30th September, 2018. In case of number-payment of the amount and part of the same, the companycerned appeal s may be dismissed and this Appellate Tribunal may direct to companyplete the Corporate Insolvency Resolution Process and may pass appropriate order. The payment of Rs. 550 Crores Rupees Five Hundred Fifty Crores Only in favour of the Operational Creditor shall be subject to the decision of these appeals. If the appeals are dismissed, the Operational Creditor will pay back the amount to the Corporate Debtors. The Appellants and the Operational Creditors are directed to file their respective affidavits of undertaking in terms of their statement as made and recorded above within 10 days. Let the appeals be listed for admission on 3rd October, 2018. In the meantime, it will be open to the parties to file Interlocutory Application if orders and directions given above are number companyplied. Interlocutory Application Nos. 701-702, 709-710 and 712-713 of 2018 stand disposed of with aforesaid observations and directions. xxx xxx xxx The order of the Supreme Court, dated 03.08.2018, states Applications seeking exemption from filing certified companyy of the impugned orders are allowed. Permission to file Appeals is granted. Applications for impleadment are allowed. Reading the interim Order dated 30.05.2018 of the National Company Law Appellate Tribunal, it is clear that Ericsson India Pvt. Ltd., who is an Operational Creditor, is willing to settle its debt of over Rs. 1500 Crores for a sum of Rs. 550 Crores Rupees Five Hundred Fifty Crores only which is to be paid within 120 days from the date of that order i.e. by 30th September, 2018. Having heard Mr. P. Chidambaram, learned Senior Counsel for Neptune Steel Strips Ltd. and Mahima Mercantile Credits Ltd., Mr. Kapil Sibal, learned Senior Counsel for Reliance Communications Limited Ors. and Mr. Tushar Mehta, learned ASG for Joint Lenders Forum SBI, we are of the view that this time-line shall be strictly adhered to and payment of Rs. 550 Crores Rupees Five Hundred Fifty Crores only be made on or before 30th September, 2018. In the meanwhile, the undertaking that is to be given by the Chairman of the Company companycerned shall be given within a period of one week from today. Mr. Tushar Mehta, learned ASG appearing for the Joint Lenders Forum agrees to this. Mr. Dushyant Dave, learned Senior Counsel for Ericsson India Pvt. Ltd. also agrees to it. In this view of the matter, list on Monday, the 1st October, 2018. Needless to say, the sale of the assets companycerned will go through as has been stated in the orders of the Tribunal and Appellate Tribunal. xxx xxx xxx The order of the Supreme Court, dated 23.10.2018, states A. No. 141871/2018 The applicants in this I.A. state that - thanks to a situation which is beyond their companytrol - they have number been able to make the requisite payment on or before 30.09.2018 in accordance with the undertaking given to this Court. At the request of Mr. Kapil Sibal, as a last opportunity, we make it clear that the amount that is to be paid to Mr. Daves client shall be paid on or before 15.12.2018. We also make it clear that interest shall begin ticking on this amount at the rate of 12 p.a. for delayed payment beyond 30.09.2018. We make it clear that numbertime beyond 15.12.2018, in any case, will be given. We also make it clear that Mr. Dave may revive his I.A. for companytempt, if payment is number made. A. stands disposed of accordingly. A. Nos. 9337-9338/2018 The Civil Appeals are dismissed in terms of the signed order. Pending applications, if any, stand disposed of. xxx xxx xxx The order of the Supreme Court, dated 13.12.2018, states IA No. 180453/2018 in W.P. C. No. 845/2018 is dismissed as withdrawn. List the matters on Friday, the 14th December, 2018. xxx xxx xxx A perusal of the NCLAT order dated 30.05.2018 would show that the financial creditors Joint Lenders Forum stated that they have reached an agreement with the companyporate debtors for the sale of assets of the companyporate debtors, pursuant to which they can recover a sum of INR 18,100 crore. Also, from restructuring and sale of further assets, a further sum of INR 37,000 crore companyld be recovered, which would then suffice to pay off the entire debt of the secured creditors. This order also recorded that Ericsson had agreed to settle the debt in its favour which amounted to roughly INR 1500 crore for the sum of INR 550 crore within a period of 120 days. As a result of this, the erstwhile management companytinued in the saddle the companyporate insolvency resolution process was stayed until further orders the financial creditors Joint Lenders Forum was given liberty to sell assets of the companyporate debtors and to deposit the amount so received in an account of the lead bank, i.e., SBI and the sum of INR 550 crore was directed to be paid by 30.09.2018. It was made clear that in case of numberpayment, the companycerned appeals may be dismissed, and the NCLAT may direct the companypletion of the companyporate insolvency resolution process. In any case, the amount so deposited with the financial creditors Joint Lenders Forum would be subject to the decision of these appeals, and that if the appeals are dismissed, the financial creditors Joint Lenders Forum will pay back this amount to the companyporate debtors. Most importantly, the companyporate debtors and creditors were directed to file their respective affidavits of undertaking in terms of the statements recorded. At this stage, it is important to set out one sample undertaking that has been filed on behalf of one of the Reliance Companies, i.e., by the Director of RITL. This affidavit of undertaking reads as follows BEFORE THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI xxx xxx xxx AFFIDAVIT OF UNDERTAKING OF THE APPELLANTS I, Suresh Madihally Rangchar, S o Sh. Rangachar M. Raghavachar, aged about 54 years, R o Imperial Tower, Flat No. 3604, 36th Floor, South Wing, BB Nakashe Marg, Tardeo, Mumbai 400 036, do hereby solemnly affirm and state as under That I am the Appellant and the Director of the Reliance Infratel Ltd. in the above said matter and as such I am well acquainted with all the facts and circumstances of the case and am fully companypetent to swear this affidavit for the Reliance Infratel Ltd. That I am giving this affidavit cum undertaking on behalf of the Reliance Infratel Ltd. pursuant to the order of this Honble Tribunal dated 30.05.2018. That the Reliance Infratel Ltd. alongwith Reliance Communications Ltd. and Reliance Telecom Ltd. and their respective directors shall jointly pay a sum of Rs.550 Crores Rupees Five Hundred Fifty Crores Only to Ericsson India Pvt. Ltd. Operational Creditors within a period of 120 days i.e. by 30th September, 2018. xxx xxx xxx This undertaking makes it clear that the understanding of the three Reliance Companies with regard to the NCLAT order dated 30.05.2018 was that a sum of INR 550 crore will be paid by 30.09.2018 without there being any linkage to sale of assets, as separately stated in the order. Even otherwise, reading the order as a whole, it is clear that whereas INR 550 crore had to be paid within 120 days, sale of assets companyld take place at any time in the future without any time limit being mentioned. This being the case, it is futile to companytend that this order itself made it clear that the sum of INR 550 crore was to be obtained only from sale of assets. Both the undertakings as well as a plain reading of the NCLAT order, militate against any such linkage. On 03.08.2018, the writ petition that was filed before this Court was taken up. It is important to numbere that this writ petition expressly states that this Court was approached so that it companyld pass orders under Article 142 of the Constitution of India to quash close the companyporate insolvency resolution process, which numberother companyrt or tribunal companyld do. This was done on the footing that the parties have fully, mutually, and finally settled all the disputes between them as has been numbered in the NCLAT order dated 30.05.2018. When this writ petition came up for hearing, the order dated 03.08.2018 clearly records that the payment of INR 550 crore will be made on or before 30.09.2018, and an undertaking was to be given by the Chairmen of the Reliance Companies to that effect. The order separately numbered that the sale of assets will companytinue, as has been stated in the orders of the NCLT and the NCLAT. A reading of this order also leaves numbermanner of doubt that the undertakings that were to be given by the Chairmen of the Companies companycerned were only that the payment of INR 550 crore was to be made on or before 30.09.2018. There is numberdoubt whatsoever that there was numberlinkage with any sale of assets of these Companies. Despite the aforesaid position being clear, on 09.08.2018, the affidavits of undertaking, in pursuance of this Courts order dated 03.08.2018, were given by the Chairmen of the Reliance Companies. A sample undertaking, filed by the Chairman of RCom, reads as follows IN THE SUPREME COURT OF INDIA xxx xxx xxx AFFIDAVIT OF UNDERTAKING COMPLIANCE I, Anil Dhirubhai Ambani, S o Late Shri Dhirajlal Dhirubhai Hirachand Ambani, aged about 60 years, residing at 39, Sea Wind, Cuffe Parade Colaba, Mumbai 400005, do hereby solemnly affirm and state on oath as under That I am the Chairman of the Reliance Communications Limited Company , the holding companypany of Reliance Telecom Limited and Reliance Infratel Limited, the Petitioners in the above Writ Petition, I am well acquainted with the facts of the case and as such I am companypetent to swear this affidavit. By order dated 30 May, 2018, the Honble National Company Law Appellate Tribunal NCLAT by way of an interim order recorded settlement between the parties and permitted sale of the assets for repayment to the banks. Pursuant to the said order, the Petitioner gave an Undertaking dated 1st June 2018 before the NCLAT inter alia stating as under that the Reliance Infratel Ltd. alongwith Reliance Communications Ltd. and Reliance Telecom Ltd. and their respective Director shall jointly pay a sum of Rs.550 Crores Rupees Five Hundred Fifty Crores only to Ericson India Pvt. Ltd. Operational Creditors within a period of 120 days i.e. 30th September, 2018. In the Petitions filed before this Honble Court for orders under Article 142 of the Constitution of India to be able to proceed with the sale and to effectuate the settlement, this Honble Court passed the following order In the meanwhile, the undertaking that is to be given by the Chairman of the Company companycerned shall be given within a period of one week from today. Accordingly, in light of the order of this Honble Court dated 3rd August, 2018, read with the order of the Honble NCLAT dated 30th May, 2018, I hereby undertake that upon the sale of the assets of the Company, the Company and its directors will honour their undertaking extracted above. Similar undertakings were filed on behalf of the Chairmen of the other two Reliance Companies. A perusal of these undertakings would show that they are companytrary to the undertakings given by the authorized persons of these very Companies pursuant to the NCLAT order dated 30.05.2018. We have seen that whereas those undertakings were unconditional, these undertakings are number companyditional upon sale of assets of the Companies. These undertakings have obviously number been given in accordance with this Courts order dated 03.08.2018. To further companypound this misdemeanor, an application to extend time by 60 days was moved on 27.09.2018, in which the same linkage was made to sale of assets before the sum of INR 550 crore companyld be paid. Contrary to Shri Rohatgis argument, Ericsson immediately protested in the form of a companytempt petition, being the first companytempt petition that was filed on 01.10.2018, in which it was clearly pointed out that the said undertaking would show companytumacious behavior companypled with the fact that the Reliance Companies were wriggling out of the companymitment made to this Court. When the first companytempt petition and the first application for extension of time came up for hearing before this Court, this Court, vide order dated 23.10.2018, made it clear that as a matter of indulgence, a last opportunity would be granted to pay the aforesaid sum on or before 15.12.2018, making it clear that this is companyditional upon payment of interest of 12 per annum for delayed payment beyond 30.09.2018. It was also made clear that numberfurther extension would be granted and that Ericsson may revive the petition for companytempt if payment is number so made. This order again leads to only one companyclusion that the averment made in the application for extension of time that the sum of INR 550 crore will be paid out of sale of assets was number accepted by this Court, as sale of assets companyld have taken place even beyond 15.12.2018. This further becomes clear from the fact that the companytempt petition would be revived if this payment were number to be made, i.e., it would be open for Ericsson to companytend that the undertaking given to this Court was number as per this Courts order, and that there had been wilful and companytumacious default on part of the Reliance Companies. When a further application for extension of time was made on the selfsame ground, this Court made it clear by its order dated 13.12.2018 that in view of the order passed on 23.10.2018, numberfurther extension of time companyld be granted, and revival of the companytempt petition would necessarily follow. As a result of this, this I.A. was dismissed as withdrawn on the said date. Meanwhile, in parallel proceedings, this Court did its utmost to lend a helping hand, so that, independently of these orders, sale of assets companyld also be affected. The DoT was called before this Court and was asked to give its NOC for sale of spectrum. However, it was pointed out that this NOC companyld only be given according to certain guidelines, one of which mandated that the buyer of the spectrum would have to undertake that it would be responsible for payment of the erstwhile debts of the seller. The sale of spectrum to Reliance Jio, therefore, did number fructify, number because the DoT wrongfully refused to give its NOC, as has been alleged by the Reliance Companies in their pleadings filed in this case. It fell through only because the prospective buyer, Reliance Jio, refused to give the undertaking that if called upon, it would pay the erstwhile debts of the seller of the spectrum. We number companye to two other companytempt petitions that were filed. Contempt Petition No.55 of 2019 dated 02.01.2019 was filed in view of number-payment of the sum of INR 550 crore on or before 15.12.2018. Contempt Petition No.185 of 2019 dated 05.02.2019 was filed pointing out two subsequent facts. First, that by a letter dated 21.01.2019, the Reliance Companies were willing to pay the entire sum of INR 550 crore with interest if two companyditions were met, namely, withdrawal of companytempt petitions and withdrawal of arbitration proceedings. Ericsson replied on 23.01.2019, stating that this companyld only be done by moving an application before this Court as companytempt proceedings were pending. Secondly, this petition points out that, maliciously, instead of moving such appropriate application, from 01.02.2019 onwards, an about-turn was taken, and Ericsson was left in the lurch as a decision was taken by the three Reliance Companies that the companyporate insolvency resolution process companyld be revived. The law of companytempt has been recognized in English law at least from the 12th Century A.D. to the present time see The History of Contempt of Court The Form of Trial and the Mode of Punishment by Sir John C. Fox, at page 1. It is always important to bear in mind, as was stated in Attorney-General v. British Broadcasting Corporation, 1980 3 All ER 161 House of Lords, per Lord Salmond, that The description companytempt of companyrt numberdoubt has an sic historical basis but it is nevertheless most misleading. Its object is number to protect the dignity of the companyrts or the judges but to protect the administration of justice at page 170 In the same judgment, Lord Scarman added It is high time, I would think, that we re-arranged our law so that the ancient but misleading term companytempt of companyrt disappeared from the laws vocabulary. at page 184 Another edifying statement, by Lord Diplock in Attorney-General v. Leveller Magazine Ltd. and Ors., 1979 1 All ER 745 House of Lords, reads as follows It is justice itself that is flouted by companytempt of companyrt, number the individual companyrt or judge who is attempting to administer it. at page 749 It is also important to remember that while companysidering the question of disobedience of an order, what must be regarded is the letter and the spirit of the order, together with the bona fide or genuine belief of the alleged companytemnor as to such order see Lakshman Prasad Agarwal v. Syed Mohammad Kareem, 2009 6 SCALE 413 at paragraph 5. In Rosnan Sam Boyce v. B.R. Cotton Mills Ltd., 1990 2 SCC 636, this Court referred to a party who gave an undertaking based on an implication or assumption which was false to its knowledge. This Court held We are, of companyrse, quite companyscious of the fact that the proceedings in the companytempt are quasicriminal in nature, that the law of companytempt has to be strictly interpreted and that the requirements of that law must be strictly companyplied with before any person can be companymitted for companytempt. However, as we have pointed out, respondent 1 gave an undertaking based on an implication or assumption which was false to its knowledge and to the knowledge of respondent 2. Respondent 2 was equally instrumental in the giving of this undertaking. This implication or assumption was made explicit by the clarification given by the learned companynsel for respondent 1 as set out earlier. Respondent 2 was equally responsible for instructing companynsel to give this clarification which was false to the knowledge of both, respondents 1 and 2. Both respondent 1 and respondent 2 have tried to deceive the companyrt and the appellant. In view of this, we fail to see how it can be said that they are number guilty of companytempt. Finally, the Court directed the companyrt receiver to take possession of the suit premises from the tenant sub-tenant and hand it over to the landlord, as agent, so that the companytempt companymitted be purged. We have seen from the above narration of facts that the undertakings given on 09.08.2018 by the three Chairmen of the three Reliance Companies were neither as per the Courts understanding of its order dated 03.08.2018, number the understanding of the three Companies themselves, as is clear from the undertakings given by the three Directors pursuant to the order dated 30.05.2018. In this view of the matter, it is clear that the three Reliance Companies had numberintention, at the very least, of adhering to the time limit of 120 days or to the extended time limit of 60 days plus, as was given by way of indulgence, by the order dated 23.10.2018. The undertakings given on the footing that the amount of INR 550 crore would be paid only out of the sale of assets was false to the knowledge of the three Reliance Companies. This itself affects the administration of justice, and is therefore, companytempt of companyrt. What is of greater relevance is the fact that, despite the Reliance Companies companytinuous protestations to the companytrary, the letter dated 21.01.2019 from the advocate for the three Reliance Companies made it clear that the entire payment would be made by 31.01.2019, albeit on fulfilment of two companyditions. This letter is of great importance and is set out in entirety hereinbelow 21 January, 2019 To, xxx xxx xxx SUB COMPLETION OF SETTLEMENT Dear Sir, We are companycerned for our clients Reliance Communications Limited RCom , Reliance Infratel Limited RITL and Reliance Telecom Limited RTL, and companylectively with RCom and RITL, the RCom Group , who have instructed us to write to you on behalf of your client Ericsson India Private Limited Ericsson as under The Honble Supreme Court has vide its order dated 3 August, 2018 in Writ Petition No. 845 of 2018, recorded the settlement arrived at between the RCom Group and Ericsson before the Honble National Company Law Appellate Tribunal NCLAT on 30 May, 2018, pursuant to which Rs.550 crores was to be paid to Ericsson by 30 September, 2018 as full and final settlement of all dues and claims. Vide its order dated 23 October, 2018, the Honble Supreme Court extended the date for the RCom Group to make payment to Ericsson and directed that interest at 12 p.a. on such amount to be paid from 1 October, 2018. As on 31 January 2019, such interest would amount to Rs.20.016 crores being an amount of Rs.22.24 crores less TDS of Rs. 2.224 crores. Thus, the total net amount payable by the RCom Group to Ericsson on 31 January, 2019 is Rs.570.016 crores. Out of the total settlement payment set out in para 3 above, the RCom Group has deposited an amount of Rs.118 crores with the Registry of the Supreme Court on 9 January, 2019 Deposited Payment , pursuant to the Honble Supreme Courts order dated 7 January, 2019. The RCom Group will make the balance net settlement payment of Rs.452.016 crores Balance Settlement Payment in favour of Ericsson on 31 January, 2019 to companyplete all their payment obligations to Ericsson. Ericsson is therefore required to Withdraw Contempt Petition Civil Diary No.122/2019 and Contempt Petition C No.1838/2018 in W.P. C No.845/2018 filed on its behalf, immediately upon receipt of the Balance Settlement Payment and towards the same, prepare and send for our companysideration and for us to mutually agree by 29 January, 2019, the draft application to be made to the Honble Supreme Court for withdrawal of the said Contempt Petitions Withdraw all its claims and companytentions as per the Arbitration between RCom and its affiliates, and Ericsson, pending before the Honble Arbitral Tribunal companyprising Justice Mr. S.B. Sinha, Justice Mr. Swatanter Kumar, and Justice V.S. Sirpurkar, and towards the same, prepare and sent for our companysideration and for us to mutually agree by 29 January 2019, the draft application to be made to the Honble Arbitral Tribunal for withdrawal of all claims and companytentions, and the companysequent termination of proceedings. Sign and return the attached No Dues Confirmation simultaneous with the Demand Draft for an amount of Rs. 452.016 crores, being handed over to Ericsson on 31 January 2019. Yours sincerely, xxx xxx xxx It may be pointed out that in their reply to the Contempt Petition No.55 of 2019, RCom and its group companypanies had stated that they were disabled from paying the amount of INR 550 crore plus interest that they were and are unable to pay and finally, that xxx xxx xxx The Respondents had submitted the Undertaking on behalf of RCom Group Companies based on the lenders companysent for monetization of the Other Spectrum for Rs.975 crores and in the genuine hope and bonafide belief that Asset Monetization Scheme would be implemented and Ericsson shall be paid an amount of Rs.550 crores along with interest, however, the same has become impossible to be achieved. xxx xxx xxx Obviously, the letter dated 21.01.2019 by the advocates on behalf of the Reliance Companies would belie each of the aforesaid statements made in the said reply affidavit. There is, therefore, numberdoubt whatsoever that the three Reliance Companies have wilfully number paid the sum of INR 550 crore plus interest and have thus breached the undertakings given to this Court. Another disturbing feature of the reply affidavit filed in this Court by the Chairman of RCom to Contempt Petition No. 55 of 2019 is the statement that RCom has number taken or received any advantage on account of the undertaking submitted before this Court. This, again, is a wholly incorrect statement, given the fact that a writ petition was filed in this Court seeking quashing of the companyporate insolvency resolution process on settlement of the matter with Ericsson, which companyld number be achieved without such undertaking being given to this Court. We are of the view that any unconditional apology given that there was numberintention to make any wrongful undertaking or that the undertaking was submitted bona fide must be rejected. It is clear that this reply affidavit clearly demonstrates the cavalier attitude of the deponent of this affidavit to the highest companyrt of the land. However, Shri Rohatgi and Shri Sibal relied upon the following judgments Babu Ram Gupta v. Sudhir Bhasin, 1980 3 SCC 47 was a case where an express undertaking to hand over possession to a receiver was number given. In this view of the matter, it was held that it would number be possible to state that the appellant had wilfully disobeyed or companymitted breach of such undertaking. This case has numberapplication on facts to the present case. In Ashok Paper Kamgar Union v. Dharam Godha, 2003 11 SCC 1, this Court held Section 2 b of the Contempt of Courts Act defines civil companytempt and it means wilful disobedience to any judgment, decree, direction, order, writ or other process of a companyrt or wilful breach of undertaking given to a companyrt. Wilful means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to companystitute companytempt the order of the companyrt must be of such a nature which is capable of execution by the person charged in numbermal circumstances. It should number require any extraordinary effort number should be dependent, either wholly or in part, upon any act or omission of a third party for its companypliance. This case again has numberapplication to the facts of this case. We have seen that right from the beginning, the sum of INR 550 crore was undertaken to be paid, without having to depend upon any act or omission of a third party. To say that the sum of INR 550 crore would be paid only out of sale of assets of the three Reliance Companies is a deliberate misstatement made in the undertakings as well as the applications for extension of time filed before this Court, which was done with the purpose of circumventing the orders of this Court. We are also of the view that in the facts of the present case, wilful default is made out, as has been pointed out in this judgment. In Dinesh Kumar Gupta v. United India Insurance Co. Ltd., 2010 12 SCC 770, this Court held Besides this, it would also number be companyrect to overlook or ignore an important statutory ingredient of companytempt of a civil nature given out under Section 2 b of the Contempt of Courts Act, 1971 that the disobedience to the order alleging companytempt has to satisfy the test that it is a wilful disobedience to the order. Bearing this important factor in mind, it is relevant to numbere that a proceeding for civil companytempt would number lie if the order alleged to have been disobeyed itself provides scope for reasonable or rational interpretation of an order or circumstance which is the factual position in the instant matter. It would equally number be companyrect to infer that a party although acting due to misapprehension of the companyrect legal position and in good faith without any motive to defeat or defy the order of the Court, should be viewed as a serious ground so as to give rise to a companytempt proceeding. To reinforce the aforesaid legal position further, it would be relevant and appropriate to take into companysideration the settled legal position as reflected in the judgment and order delivered in Ahmed Ali v. Supdt., District Jail 1987 Cri LJ 1845 Gau as also in K. Kar v. High Court of Orissa AIR 1961 SC 1367 1961 2 Cri LJ 438 that mere unintentional disobedience is number enough to hold anyone guilty of companytempt and although disobedience might have been established, absence of wilful disobedience on the part of the companytemnor, will number hold him guilty unless the companytempt involves a degree of fault or misconduct. Thus, accidental or unintentional disobedience is number sufficient to justify for holding one guilty of companytempt. It is further relevant to bear in mind the settled law on the law of companytempt that casual or accidental or unintentional acts of disobedience under the circumstances which negate any suggestion of companytumacy, would amount to a companytempt in theory only and does number render the companytemnor liable to punishment and this was the view expressed also in State of Bihar v. Rani Sonabati Kumari AIR 1954 Pat 513 and N. Baksi v. O.K. Ghosh AIR 1957 Pat 528. This judgment also has numberapplication to the facts of this case as the only reasonable or rational interpretation of the orders involved in this case leads to the result that INR 550 crore plus interest was to be paid without any linkage to sale of assets within a fixed time limit. This is also number a case of accidental or unintentional disobedience. As is clear from the letter dated 21.01.2019, the Reliance Companies are able to pay this amount, but are wilfully refusing to do so. Similarly, the judgments in Mohd. Iqbal Khanday v. Abdul Majid Rather, 1994 4 SCC 34, at paragraph 34, and Gyanichand v. State of A.P., 2016 15 SCC 164, at paragraph 11 also do number apply on the facts of this case. The facts of this case are far from cases where directions or orders are impossible of companypliance. At this stage, we may point out that the companytempt petition against the Chairman of SBI would number lie inasmuch as the Ericsson transaction and the sale of assets by the Joint Lenders Forum are companypletely independent of each other, as argued by Shri Dave himself, and as has been held by us hereinabove. Also, the statement made in paragraph 18 of the Contempt Petition No. 185 of 2019 that, all the respondents in the companytempt petition were bound to have handed over the amount of INR 550 crore to the petitioner on or before 15.12.2018 is patently incorrect inasmuch as respondent number 4 SBI has numberhing to do with this amount of INR 550 crore which had to be paid over to Ericsson only by the three Reliance Companies. The companytempt petition against the Chairman of SBI is, therefore, dismissed. Having held the three Reliance Companies guilty of companytempt of this Court, it is number necessary to point out Section 12 4 of the Contempt of Courts Act, 1971, which reads as follows Punishment for companytempt of companyrt. xxx xxx xxx Where the person found guilty of companytempt of companyrt in respect of any undertaking given to a companyrt is a companypany, every person who, at the time the companytempt was companymitted, was in charge of, and was responsible to, the companypany for the companyduct of the business of the companypany, as well as the companypany, shall be deemed to be guilty of the companytempt and the punishment may be enforced with the leave of the companyrt, by the detention in civil prison of each such person Provided that numberhing companytained in this sub-section shall render any such person liable to such punishment if he proves that the companytempt was companymitted without his knowledge or that he exercised all due diligence to prevent its companymission. xxx xxx xxx The question number is as to the punishment to be awarded. Shri Rohatgi pointed out that in Supreme Court Bar Assn. v. Union of India, 1998 4 SCC 409, this Court had held The object of punishment being both curative and companyrective, these companyrcions are meant to assist an individual companyplainant to enforce his remedy and there is also an element of public policy for punishing civil companytempt, since the administration of justice would be undermined if the order of any companyrt of law is to be disregarded with impunity. Under some circumstances, companypliance of the order may be secured without resort to companyrcion, through the companytempt power. For example, disobedience of an order to pay a sum of money may be effectively companyntered by attaching the earnings of the companytemner. In the same manner, companymitting the person of the defaulter to prison for failure to companyply with an order of specific performance of companyveyance of property, may be met also by the companyrt directing that the companyveyance be companypleted by an appointed person. Disobedience of an undertaking may in the like manner be enforced through process other than companymittal to prison as for example where the breach of undertaking is to deliver possession of property in a landlord-tenant dispute. Apart from punishing the companytemner, the companyrt to maintain the majesty of law may direct the police force to be utilised for recovery of possession and burden the companytemner with companyts, exemplary or otherwise. Thus, disobedience of an order to pay a sum of money may be companyntered by orders of attachment instead of companymittal to prison. On the other hand, Shri Dave pointed out that this Court had, in Chhaganbhai Norsinbhai v. Soni Chandubhai Gordhanbhai, 1976 2 SCC 951, held that in cases of perverse and deliberate flouting of undertakings, the High Court rightly observed that it had numberoption except to companyvict the appellant and sentence him to three months imprisonment, with which this Court agreed. He also pointed out that in Patel Rajnikant Dhulabhai v. Patel Chandrakant Dhulabhai, 2008 14 SCC 561, so-called apologies, which are only tactful moves when companytemnors are in a tight companyner, should number be accepted and a jail sentence should be awarded see paragraphs 77 and 78. He also referred to and relied upon Noorali Babul Thanewala v. K.M.M. Shetty, 1990 1 SCC 259, where this Court held When a companyrt accepts an undertaking given by one of the parties and passes orders based on such undertaking, the order amounts in substance to an injunction restraining that party from acting in breach thereof. The breach of an undertaking given to the companyrt by or on behalf of a party to a civil proceedings is, therefore, regarded as tantamount to a breach of injunction although the remedies were number always identical. For the purpose of enforcing an undertaking that undertaking is treated as an order so that an undertaking, if broken, would involve the same companysequences on the persons breaking that undertaking as would their disobedience to an order for an injunction. It is settled law that breach of an injunction or breach of an undertaking given to a companyrt by a person in a civil proceeding on the faith of which the companyrt sanctions a particular companyrse of action is misconduct amounting to companytempt. The remedy in such circumstances may be in the form of a direction to the companytemnor to purge the companytempt or a sentence of imprisonment or fine or all of them. On the facts and circumstances of this case in the light of our finding that there was a breach of the undertaking we think that mere imposition of imprisonment or fine will number meet the ends of justice. There will have to be an order to purge the companytempt by directing respondent 1-contemnor to deliver vacant possession immediately and issuing necessary further and companysequential directions for enforcing the same. Given the facts as aforesaid, we are of the view that the companytempt of this Court needs to be purged by payment of the sum of INR 550 crore together with interest till date. As stated by the letter dated 21.01.2019, subject to any calculation error, an amount of INR 453 crore must be paid to Ericsson in addition to the deposit of INR 118 crore made in the Registry of this Court. The Registry of this Court is directed to pay over the sum of INR 118 crore to Ericsson within a period of one week from today. The RCom group is directed to purge the companytempt of this Court by payment to Ericsson of the sum of INR 453 crore within a period of four weeks from today.
The respondent was represented by Mr. M.N. Sharma, advocate. On the death of the said advocate numberice was sent to the respondent apprising him of the said fact and asking him to make alternate arrangement. The letter has companye back with the endorsement left. This was in January, 1995. We treat it as sufficient service and proceed with the matter. This appeal is preferred against the order of the Delhi High Court rejecting the application of the Revenue filed under Section 256 2 of the Income-tax Act, 1961. The question which the Revenue wanted to be referred by the Tribunal reads thus Whether, on the facts and in the circumstances of the case, the Tribunal was legally companyrect in holding that the cash credit amounting to Rs. 25,000 stood explained in view of the disclosure made by the creditors under Section 24 of the Finance No. 2 Act of 1965 ? Is the order of the Income-tax Appellate Tribunal number vitiated in view of the provisions of Section 68 of the Income-tax Act, 1961 ? It is number brought to our numberice that this very question has since been decided by this companyrt in ITO v. Rattan Lal 1984 145 ITR 183. In the said decision it has been held that the immunity enjoyed by a declarant under Section 24 of the Finance No. 2 Act, 1965, under the Voluntary Disclosure Scheme is companyfined to the declarant alone and is number extended to the assessment of a third party assessee in relation to the income disclosed by the declarant.
L. Untwalia,J. This appeal by special leave arises out of a suit for pre-emption filed by the appellants under Section 15 of the Punjab Pre-emption Act, 1913-hereinafter called-the pre-emption Act. The suit land is situated in the State of Haryana to which the provisions of the Act aforesaid are still applicable. The land belonged to Smt. Shanti, respondent No. 3. The appellants were the tenants of the disputed land under her. She sold the land to respondents 1 and 2 on the 21st June, 1965. The land sold measured 176 kanals 4 marlas. The plaintiffs claimed the right of pre-emption in respect of the agricultural land in suit in accordance with clause Fourthly of Section 15 1 a of the Pre-emption Act. The suit was resisted by the vendes-respondents on several grounds. It was decreed by the Trial Court on the 20th June, 1967 in respect of a portion of the land, measuring 157 kanals 2 marlas. The vendess appeal in the First Appellate Court failed on the 20th April, 1968. They succeeded, however in the High Court of Punjab Haryana on the basis of the decision of this Court in Bhagwan Das dead by Lrd. Brs, v. Chet Ram. A learned single Judge of the High Court allowed the second appeal filed by respondents 1 and 2 and dismissed the paintiffs suit. We may state a few more facts before numberhing down the points urged on behalf of the appellants. In the appellants suit an order of injunction was made on 11-7-1966 restraining the defendants from dispossessing the plaintiffs from any portion of the suit land. But before the order of injunction was passed respondents 1 and 2 had filed an application before the Revenue Authorities under Section 9 of the Punjab Security of Land Tenures Act, 1953 hereinafter called the Land Tenures Act for ejectment of the appellants. An order of eviction was passed by the first authority on 225-1967 that is to say, about a month prior to the passing of the decree by the Trial Court. The appellants appeal from that order of the Assistant Collector was dismissed by the Collector on 14-9-1967. The High Court took the view that since the appellants had ceased to be the tenants of the land prior to the passing of the decree of pre-emption by the Trial Court, they were numberlonger qualified to get such a decree. Mr. S.C. Agarwal, learned Counsel for the appellants made the following submissions That the decision of this Court in Bhagwan Dass Caseis distinguishable or any view of the matter requires reconsideration by a larger bench. That the High Court companymitted errors of record and law in relying upon the order of eviction without bringing the companyy of the order on record. That the order of eviction was in respect of about 3 standard acres of land only and a decrees for pre-emption in any event ought to have been made in respect of the remaining portion of the land measuring about 9 standard acres. Section 15 1 of the Pre-emption Act says The right of pre-emption in respect of agricultural land and village immovable property small west a where the sale is by a sole owner Fourthly, in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof. Under the general law of pre-emption it is firmly established that the decisive date as regards the right of preemptor to pre-empt the sale was the date of the decree. In other words the preemptor who claims the right to pre-empt the sale on the date of the sale must companytinue to possess that right till the date of the decree. In he loses that right if before the passing of the decree, decree for pre-emption cannot be granted even though he may have such right on the date of the suit. In several cases companying up before the Punjab Haryana High Court a question before arose whether the rule applies to a person who claims to preampt the sale under Section 15 1 a Fourthly of the Pre-emption Act. In quite a large number of cases the answer given by the High Court was that it does number. While in a few, a companytrary view was expressed. One of such cases from the majority line, viz. Kashmiri Lal and Ors. v. Chuhar Ram was expressly over-ruled. By this Court in Bhagwan Dass case. The facts of Bhagwan Dass case are somewhat different. Yet the ratio is aptly applicable to the facts of the instant case also. In the former case the preemptor had been evicted in pursuance of the decree of eviction prior to the institution of a suit lor pre-emption. But the decision of this Court was number given tresting this as a divisive factor. The firm rule of the general law of pre-emption was applied thus In the presence of the above principle which is firmly entrenched-in the law of pre-emption it us difficult to companyceive that the legislature intended to depart from it in Section 15 1 a fourthly number has any reason been suggested for doing so. The language employed is number very happy but the clear requirement is that the tenant must hold the land as such. And finally it was said at page 643 It must be remembered that sale alone does number and cannot divest the tenant of his right to hold the land of which is in possession by virtue of his tenancy and under the vender. But if his tenancy is determined by a decree for eviction he loses his status of a tenant. He then does number satisfy the first requirement of Section 15 I FOURTHLY that he is a tenant who holds the land. In that situation he cannot succeed in a pre-amption suit if the decree for eviction has been passed after the sale but before the institution of the suit or during its pandency and before the date of the decree. This would be so by applying the well established rule which, as stated earlier, has become a part of the law relating to preamption. Mr. Agarwrl suggested a reason to depart from the general principle of the law of pre-emption in Section 15 1 a fourthly. Counsel submitted that under the general law of pre-emption the qualification of the pre-amptor cannot be lost at the instance of the vendes where as in the case of a tenant claiming pre-amption under Section 15 1 a fourthly of the Pre-emption Act the vendes can defeat the tenants right of pre-amption by his own action. The reason suggested for making a distinction appears to be attractive but was number forceful enough to persuade us to take the view that the decision of this Court in Bhagwan Dass case requires reconsideration. The landlord companyld number determine the tenancy by his unilateral section under the Land Tenures Act. An order of eviction was necessary to be obtained under Section 9. The relationship of the land-lord and the tenant ceases to exist between the parties after the passing of an order of ejectment against the tenant. Dispossession in execution of the order is number necessary for determination of the tenancy. In the instant case the appellant did number obtain an order of injunction in their application for eviction. The order of injunction was companyfined to a restraint on dispossession. In a given case the landlord may be prevented from obtaining an order of ejectment against the tenant so that the latters right to pre-empt the sale made in favour of the former may number be defeated. We think two views of the law may be reasonably possible on the point at issue. It is therefore number expediant or advissable to send this case to a larger Bhagwan Dass case number is that case distinguishable. The second grievance of the appellant is to some extent justified but the submission does number stand final scrutiny. Respondents 1 and 2 had filed an application in the first appellate Court under Order 41 Rule 27 of the CPC for admitting the order of eviction dated 22-5-1967 as an additional evidence in the case. That companyrt rejected that application, the proper companyrse for the High Court, therefore, was to admit the order as an additional evidence if it thought it fit in law to do so. But then, the fact that there was an eviction order was number disputed before the High Court as it appears from its judgment. Of companyrse, the High Court was number right when it said that on the date, when the land was sold a decree for ejectment against the tenant had been passed and this decree had become final in appeal. The decrees was number passed on the date of sale but surely it was passed before the decree for pre-emption was made by the first Court. In the circumstances of this case therefore we are number inclined to accept the second submission made on behalf of the appellants. The third point urged on behalf of the appellants is also number fit to succeed. A companyy of the order of eviction passed by the Assistant Collector was incorporated in the supplementary paper book and place before us. The order shows that eviction was allowed from the entire land. The appellants were directed to be ejected forthwith from a portion and their actual eviction from the rest of the land was deferred till the allotment of the surplus land. We are, therefore, of the view that the appellants did number companytinue to be tenants of any portion of the land sold to respondent 1 and 2 on the date the decree for pre-emption was passed in their favour.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 2201- 2203 of 1979. From the Judgment and Order dated 25.7.1978 of the Bombay High Court in I.T. Ref. Nos 121/69, 191/73 and 192 of 1974. A. Ramchandra and A.G. Ratnaparkhi for the appellant. Ramamurthy and Ranbir Chandra for the Respondent. The Judgment of the Court was delivered by MOHAN, J. All these appeals, arising out of a judgment of the High Court of Bombay Nagpur Bench , can be dealt with under a companymon judgment since they relate to one and same assessee, the appellant before us. Shrimant Padmaraje R. Kadambande is the assessee and the only child of Late Chhatrapati Raja Ram Maharaj, the ruling Chief of the former State of Kolhapur. Under the Huzur Order dated April 8, 1974 the assessee was granted a cash allowance of Rs. 3,000 per month from April 1, 1947. This order was passed by the successor of Chhatrapati Raja Ram Maharaj. After the merger of Kolhapur State in the then State of Bombay, the allowance was companytinued for some time upto July 31, 1955. Thereafter is was discontinued. This was because of the provisions of the Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955 hereinafter referred to as the Act . It may be stated at this state that the Act was passed to abolish miscellaneous alienations of various kinds prevailing in the merged territories in the State of Bombay. The District Treasury Officer, Kolhapur, by his letter dated April 14 1956 companymunicated the discontinuance of the said allowance. Under subsection 1 clause d of Section 15 of the Act it was provided that a cash allowance companyld be paid as a companypassionate payment numberwithstanding the abolition of all alienations under Section 4 of the Act. The assessee companytinued to receive cash allowance from August 1, 1956 on modified terms. The sanction of this cash allowance was companyveyed to the appellant by the Collector of Kolhapur through his letter dated October 6, 1959. It appears that an amount of Rs. 10 lakhs out of a trust property in the Bank of kolhapur in accordance with the provisions of Indenture of Trust dated October 19, 1947 was misappropriated. The cash allowance that was to be paid to the assessee under order dated October 6, 1959 was to be reduced in the circumstances mentioned therein. For the assessment year 1963-64 the assessee received a sum of Rs. 36,000. For the assessment year 1964-65 she received a sum of Rs. 33,992. Before the Income Tax officer a question arose whether the amounts received by the assessee were subject to income tax. It was urged on behalf of the assessee that these receipts were of a capital nature and, therefore, would number be subject to income tax. This companytention was negatived by the Income Tax Officer who subjected the respective amounts to tax in each of the assessment years. Being aggrieved by the said assessment orders an appeal was preferred by the assessee before the Appellate Assistant Commissioner. Two alternative companytentions were urged on behalf of the assesseethe receipts were of a capital nature and, therefore, would be exempt from income tax. having regard to the casual and number-recurring nature of this income it would be exempt under section 10 3 of the income Tax Act. Rejecting these two companytentions, the appellate Assistant Commissioner companyfirmed the orders of the Income Tax Officer. The appeal to the Tribunal was preferred urging the same companytentions but without success. Thereafter a reference was made for determination by the High Court for the assessment years 1963-64 and 1964-65 which reads as underwhether the amounts of Rs.36,000 and Rs.33,992 received by Shrimant Padamraje R. Kadambande of Kolhapur from the Government of Maharashtra during the financial years ended 31.3.1963 and 31.3.1964 are receipts of an income nature and taxable under the provisions of the Indian incompanye-tax Act, 1922 sic 1961 ? The High Court on reference to the statutory provisions of the Act and relying on the case in H.H. Maharani Shri Vijaykuverba Sabeb of Morvi and Anr. v. Commissioner of Income-Tax, Bombay City ii, 49 ITR 594 came to the companyclusion that the decision of the taxing authorities and the tribunal that the amounts received by the assesee during the two relevant financial years were income within the meaning of Income Tax Act. They companyld number be regarded as capital receipts in the hands of the assesee. Accordingly the reference was answered in the affirmative in favour of the revenue. It is under these circumstances, civil appeals arose, special leave petitions having been granted on 10th August, 1979. Civil appeal No.2201 of 1979, directed against the order passed in Income Tax Reference No.192 of 1973, relates to assessment year 1970-71 companyresponding to financial year 1969-70. Civil Appeal No.2202 of 1979, directed against the order passed in Income tax Reference No.191 of 197, relates to assessment years 1965-66, 1966-67, 1967-68, 1968-69 and 1969-70 companyresponding to financial years 1964-65 to 1968-69. Civil Appeal No.2203 of 1979, directed against the order passed in Income Tax Reference No.121 of 1969, relates to assessment years 1963-64 and 1964-65 companyresponding to financial years 1962-63 and 1963-64. The learned companynsel for the appellant draws our attention to the various provision of the Act particularly to Section 2 wherein the definition of alienation is provided. According to him payment was originally made under Huzur Order which was abolished companysequent to the merger of Kolhapur State. Section 4 of the Act makes it very clear that all alienations shall be deemed to have been abolished. The said Section companytains a number obstante clause. However, where any cash allowance which is included in the definition of alienation is granted under Section 15 1 d , the said payment is numbercompassionate ground. This payment is entirely different from those allowances paid under clauses i , ii and iii of the said Section. If that much is clear the High Court is incorrect in holding that it is a receipt of revenue and would number amount to companypensation when the statute declares otherwise. The interpretation of Section 15 runs companynter to the spirit of the Section. The revenue relies heavily on the case in Raja Rameshwara Rao v. Commissioner of Income-Tax Hyderabad, 49 IRT S.C. 144. The case referred to therein namely Butterleys case proceeded on the companytention that the payments were of income nature. Then again, Raja rameshwara Raos supra itself came to deal with maintenance allowance as qualified by statute. As a matter of fact, this is explained in S.R.Y. Sivram Prasad Bahadur v. Commissioner of Income-Tax, Andhra Pradesh, 82 ITR 527 at 537 wherein it was categorically held shall be deemed to be interim maintenance allowances and therefore, ware held as revenue receipts The submission of the learned companynsel is that in determining whether payments companystitute revenue receipt of number, regard must be had to the statutory provisions. The principle to be applied is found in P.H. Divecha v Commissioner of Income-Tax, Bombay City 1, 48 ITR 222 at 231-32. It is nature and the quality of the payment and number he periodicity where of which companystitute income. As a matter of fact, the periodicity was number held to be companyclusive. A case similar to the one on hand is H.H. Maharani Shri Vijaykuverba Saheb of Morvi and Anr. supra wherein the High Court held that a voluntary payment without companysideration cannot fall in the category of income. The position here is exactly the same. There is numbercompulsion on the part of the government to give any allowance. It is purely discretionary it cannot be got over by saying that after the order is passed the assesee gets a right. That has numberhing to do in determining the question. In S.R.Y. Sivram Parasad Bahadur supra , in numberuncertain terms it was laid down that it is the quality of the payment that is decisive of the character of the payment and number the method of a payment or its measure which will make it fall within the category of capital or revenue. Undoubtedly, the High Court had number kept these important aspects before rendering the decision whether it is revenue receipt or number. The judgment of the High Court requires to be interfered with. The learned companynsel appearing for the respondent revenue after referring to Section 2 24 of the Income-Tax Act, 1961, would submit that if it is number windfall and if there is regularity in payment, that would be enough to companystitute income. That is the test adopted as seen in the case of E.D. Sassoon Co. Ltd. v. Commissioner of Income-tax, 26 ITR 27 at 49. Similar is the case is Raghuvanshi Mills Ltd. v. Commissioner of Income-Tax, 22ITR 484 AT 489. Therefore, if these are applied there is numberdifficulty in holding that the payments received by the assessee, which do number amount to companypensation, are numberhing but income. Where it is a case of companypensation that would be as down in Commissioner of Incompanye-Tax v. Kamal Behari Lal Singha, 82 ITR 460. The direct authority which governs the present case is Raja Rameshwara Rao v. Commissioner of Income-Tax, 49 ITR 144 because that was a case of maintenance allowance. Here, as well, the assessee applied to the government in order to maintain herself. It is such an allowance which is talked of under clause d of Section 15 1 of the Act. Therefore, where she is paid maintenance allowance periodically it cannot be claimed as companypensation. It does number matter on what ground or on what basis the grant is made. That is alien to taxation. Therefore, to say that it is paid as companypassionate allowance cannot make the position of assessee any better. The next authority on which reliance companyld be placed is R.Y. Sivaram Parasad Bahadur supra in which also it was held that one must look at the substance of the payment. Therefore, the judgment of the High companyrt is companyrect. No doubt, the marginal heading of the Section is companypensation but that does number companytrol the operation of the section or the interpretation of Section 15 The general principle that marginal heading cannot companytrol the interpretation, is deducible from Chandroji Rao v. Commissioner of Income-Tax, 77 ITR 743. We will number proceed to companysider the companyrectness of these submission.Section 2 24 of the Income-Tax Act, 1961 defines in am inclusive manner what income is. The word income companynotes periodical monetary return companying in with some regularity of expected regularity from definite sources. In E.D. Sassoon Company Ltd. and Ors. supra at page 49 this Court cited the Privy Council ruling in Commissioner of Income-Tax v. Shaw Wallace Co., 1932 ILR 59 Cal. 1343 at p. 1352 wherein it was observed. Income, their Lordships think, in the Indian Income- Tax Act, companynotes a periodical monetary return companying in with some sort of regularity, or expected regularity from definite sources. The source is number necessarily one which is expected to be companytinuously productive, but it must be one whose object is the production of a definite return, excluding anything in the nature of a mere windfall. In Raghuvansh Mills Ltd. supra while dealing with a case of the amounts received under an insurance policy it was held that it would companystitute income. It is sufficient if we extract the headnote which is as under The assessee companypany had insured its mills with certain insurance companypanies and also had taken out certain policies of the type knows as companysequential loss policy which insured against loss of profit, standing charges and agency companymission. The mills were companypletely destroyed as a result of fire and a certain amount was paid to the assessee by the insurance companypanies. The question was whether this amount which was treated as paid on account of loss of profits was assessable to IncomeTax Held, that the amount received by the assessee was income and so was taxable Held further, that the receipt was inseparably companynected with the ownership and companyduct of the business and arose from it and therefore it was number exempt under Section 4 3 vii . The view taken in England in B.C. Fir and Cedar Lumber Co v. The King 1932 A.C. 441 and Commissioners of Inland Revenue v. Williams Executors, 1944 26 Tax Cas.23, preferred The remarks of the Judicial Committee in Commissioner of Income Tax v. Shaw Wallace Co., 1932 59 I.A. 206 with regard to the meaning of the word income must be read with reference to the particular facts of that case. What is to be carefully observed is at page 489 where it was held as under It is true the Judicial Committee attempted a narrower definition in Commissioner of Income-Tax v. Shaw Wallace Co., by limiting income to a periodical monetary return companying in with but, some sort of regularity, or expected regularity, from definite sources but, in our opinion, those remarks must be read with reference to the particular facts of that case. Therefore, the observation of the Privy Council in Commissioner of Income Tax v. Shaw Wallace Co case supra cannot be pressed into service as of general application as is sought to be done by the learned companynsel for the revenue. Those observations must be read with reference to the particular facts of the case. The salient facts in this case are Under the Huzur order dated April 8, 1947 passed by the Maharaja of Kolhapur. The appellant-assessee was granted a cash allowance of Rs.3,000 per month from April 1, 1947. After the merger of Kolhapur State the allowance was discontinued from July 31, 1955. Section 4 of the Act having an overriding effect over the settlement grant order etc. states that all alienations shall be deemed to have been abolished. Clause of Section 4 says Save as expressly provided by or under this Act all rights legally subsisting on the said date in respect of such alienations and all other incidents of such alienation shall be deemed to have been extinguished. It cannot be denied and in fact, it is number denied before us that under section 2 of the Act the allowance paid to the assessee would fall within the definition of alienation. In fact, section 2 1 III defines alienation as follows Section 2 1 III - of cash allowance or allowance in kind of any person by whatever name called. The next question would be whether the saving clause would apply to the payment made in favour of the assessee. This takes us to Section 15. It is worthwhile to quote the section in full Section 15 1 In the case of an alienation companysisting of a cash allowance or allowance in kind, the alienee shall be paid companypensation in respect of allowances in cash or kindseven times the amount of the cash allowance or of the value of the allowance in kind, as the case may be, if the alienation was hereditary without being subjected to deduction or cut at the time of each succession five times the amount of the cash allowance of the value of the allowance in kind, as the case may be, if the alienation was hereditary but subject to a deduction or out at the time of each succession or three times the amount of cash allowance or the value of the allowance in kind, as the case may be, if the alienation was companytinuable for he life-time of the alienee Provided that if under the terms of a grant any case allowance or allowance in kind- a is received by a widow for the purpose of maintenance, she shall be paid an amount equal to such allowance for the remainder of her life b is received by an alienee for the purpose of education, he shall be paid an amount equal to such allowance during a like period, and subject to the like companyditions, as are companytained in the grant c is received by an alienee who isa male minor, he shall be paid an amount equal to the allowance till he attains the age of twenty-one years an unmarried female, she shall be paid an amount equal to the allowance till she marries, or the amount calculated in accordance with provisions of this section, whichever is greater d is received by an alienee of whom, upon application made to it, in the manner prescribed, before the first day of August 1958, the State Government is satisfied after such inquiry if any as it thinks fit, that he has numberother source of income, or that if he has any other source of income it is insufficient for his livelihood, or that on account of old age, mental or physical infirmity or other reason he is incapable of earning a livelihood, or maintaining himself in a reasonable manner, there shall be paid to such alienee as a companypassionate payment an amount equal to such allowance during his lifetime, or for such lesser period as the State Government in the circumstances thinks just. Emphasis supplied For the purpose of subsection 1 , the amount of cash allowance shall be the amount paid or payable to the alienee for the year immediately preceding the appointed date and the value of the allowance in kind shall be the value of the allowance in kind paid or payable to the alienee for the year immediately preceding the appointed date, such value being determined in the prescribed manner. The marginal heading says companypensation. In our companysidered view those cases falling under subsection 1 clauses i , ii and iii fall under a different category than what is companyered under clause d of the proviso while clauses i , ii and iii provide for statutory payment at different rates of payments for different categories of persons. In the case of a person falling under clause d it requires an alienee to make an application. If such an application had been made in the prescribed from before the first day of August, 1958, the State Government, if satisfied after such enquiry, as it thinks fit, that the applicant has numberother source of income, there shall be paid as a companypassionate payment, an amount equal to such allowance during his life time or for lesser period, as the State Government may think fit. This payment is made on account of a old age b mental or physical infirmity or c other reasons that he is engaged in earning his livelihood or maintaining himself in a reasonable manner. If was under Section 15 that an application was made by the assessee to the State Government on 23rd of May, 1958 for companypassionate payment. The decision of the Government was companymunicated to the assessee by a letter of the companylector dated April 6, 1959 wherein the Government stated that Government is pleased to sanction under clause d of the proviso to Section 15 1 of the Act to the making of a companypassionate payment of Rs.3,000 per month with effect from August 1, 1956 to the assessee during her life time as companypensation for the abolition of the cash allowance held by her subject to certain companyditions laid down therein. In the light of these facts, the only question is whether the amounts received by the assessee during these financial years companyld be regarded as capital receipts in the hands of the assessee. Strong reliance is placed on Raja Rameshwara Rao supra . That case numberdoubt dealt with interim maintenance allowance. At page 148 the following observations are found We have earlier said that is number in dispute that the companymutation sum was paid as companypensation for the loss of the jagir and was, therefore, capital which was number liable to be taxed. We thus find the Regulation make a clear distinction between the companymutation sum or companypensation and the interim maintenance allowances. These allowances were obviously number in tended to be companypensation. The question then arises, if these allowances were number paid as companypensation for the loss of the Jagir and were number of the nature of capital as such, what was their nature? We think that if we have regard to the provisions of the regulations under which they werw paid, as we must, there is number doubt that they were of the nature of income. No doubt they were number income of any of the kinds that are companymonly found, but are, as Lord Radcliffe said in a case to which we shall later refer, sui generis We proceed number to discuss why we think they were income. These allowances, we numberice, were treated by the Regulations as something other than the companypensation for the loss of the Jagir. They were, therefore, number treated as capital as representing companypensation for the Jagir. If they were treated as capital for the reason that they were number companypensation for the loss of the Jagir, we find numberground on which we can say they were capital. It would follow that they must be income and taxable as such. They were certainly number windfall, for a right to them was created by the Abolition Regulation, a right which under section 21 companyld be enforced in a civil companyrt. Then we find that these allowances were payable with a regularity and were of a recurring nature, both of which are recognized as characteristic of income see Commissioner of Income-tax v. Shaw Wallaced and Co., 1932 L.R.59 I.A.206 1932 2 Comp.cas.276. Next, we observe that the Regulation advisedly called the payments maintenance allowances, a numberenclature peculiarly suited to payments of the nature of income. Therefore, in this case, the maintenance allowance was qualified by the statute and it was a numberenclature peculiarly suited to payments of the nature of income. The learned companynsel for the revenue would state if the payments in this case do number companystitute windfall and the right to payment of these cash allowances in the case on hand, companyld be enforced in civil companyrt, as laid down in this ruling, there is numberother way than to hold this to be an income, but, as we have pointed out just number, maintenance allowance is qualified by statute unlike the present case which is purely a discretionary payment. It is numberuse companytending as also observed by the High companyrt that after the order is passed an enforceable right arises. On the companytrary the question would be whether the statute gives an enforceable right. We think, in such of those cases falling under clause d of the proviso to section 15 1 of the Act, numberstatutory right is created. This is unlike those cases falling under clauses i , ii and iii of sub-section 1 of section 15. These companystitute different clauses as has already been pointed out by us. The fact that the assessee has applied for a grant for maintenance number again, the periodicity of payment, would be companyclusive as we will demonstrate a little later. Now, we companye to the observation at page 149 We think for all these reasons the interim maintenance allowances were taxable income. If a source had to be found for them, the Regulation had to be held the source. A case very near to the one in hand and a case that throws a great deal of light on the problem that faces us is Commissioners of Inland Revenue v. Butterley Co. Ltd., 1955 36 Tax Cas.411 we think a detailed reference to it can be very profitably made. That case was companycerned with the English Coal industry Nationalisation Act, 1946, which nationalised the companylieries and divested all owners of them and the business companycerning them. Under this Act and the Coal industry number Act. 1949, the assessee companypany became entitled to companypensation for the assets transferred to the Government and to certain payments called revenue payments and interim income for the period between what was called the primary vesting date and the date on which companypensation for the assets taken away was fully satisfied. The question was with regard to these payments. The assessee companypany had companytended in the beginning that the payments were number of income nature at all in the Court of Appeal however that companytention was abandoned and it was companyceded that the payments were of income nature. The only dispute was whether they were income chargeable to profits tax as profits of a trade or business carried on by the assessee companypany. The decision was that the payment were number income or profit of any trade or business. Emphasis supplied It is clear from the above extract that Butterleys case supra proceeded on companycession that the payments were of income nature. This ruling was explained by this Court in R.Y. Sivaram Prasad Bahadur supra at pages 537-38 which is extracted as under In order to understand the ratio of that decision, we must bear in mind the provisions of the two regulations referred to hereinbefore. The first regulation provided for the taking over of the management of the estates and the second regulation prescribed the mode of determining the companymunication sum in respect of each Jagir and for its payment, the character of the receipt which this companyrt was called upon to companysider was the maintenance allowance paid under section 14 of the first of the two regulations. Under that regulation, the administrator of jagir took over the management of the estates pending the making provision for determination of the companymutation amount. Provision in that regard was made under second regulation. Till the payment of the companymutation sum, the administrator merely managed the estates on behalf of the former owners of those estates. This is clear from sections 5,8,11,12,13 and 14 of the first regulation. Under section 5 thereof the quondam jagirdars were required to hand over the possession of their estates to the jagir administrator. Section 8 required the former jagirdars to pay to the Government the administration expenses of their estates. Section 11 provided for distribution of the net income of an estate between the jagirdar and his hissedars who were entitled to a share in the income of the estate. Section 12 1 says From the amount payable to any person under section 11, there shall be deducted the amount of any maintenance allowance which under sub-section 2 is debitable to the share of that person. Section 13 required the jagir administrator to maintain separate accounts in respect of each jagir and afford the companycerned jagirdar and hissedar reasonable facilities for the inspection of the same. Section 14 reads The amounts payable to jagirdaras and hissedars under the regulation shall be deemed to be interim maintenance allowances payable until such time as the terms for the companymutation of jagirs are determined. It is the character of the payments made under section 14 that came up for companysideration before this companyrt in Rameshwara Raos case 1963 49 ITR SC 144. Quite clearly the maintenance allowances paid were revenue receipts. Hence that decision has numberbearing on the question of law under companysideration in the present case. The observations made by this companyrt in that decision must be read in the light of the facts of that case. Emphasis supplied Thus it is clear that the observations made by this Court in Rameshwara Raos case supra must be read in the light of the facts of the case From the ruling in S.R.Y. Sivaram Prasad Bahadur supra it is clear that what is decisive of the character is the quality of the payment. The following passage at page 535 is of vital significance It is the quality of the payment that is decisive of the character of the payment and number the method of the payment or its measure, and makes it fall within capital or revenue. Equally, in P.H. Divechas case supra at page 231-32 the test applied was as under In determining whether this payment amounts to a return or loss of a capital asset or is income, profits or gain liable to income-tax, one must have regard to the nature and quality of the payment. If the payment was number received to companypensate for a loss or profits of business, The receipt in the hands of the appellant cannot properly be described as income, profits or gains as companymonly understood. To companystitute income, profits or gain, there must be a source from which the particular receipt has arisen, and a companynection must exit between the quality of the receipt and the source. If the payment is by another person it must be found out why that payment has been made. It is number the motive of the person who pays that is relevant. More relevance attaches to the nature of the receipt in the hands of the person who receives it though in trying to find out the quality of the receipt one may have to examine the motive out of which the payment was made. It may also be stated as a general rule that the fact that the amount involved was large or that it was periodic in character have numberdecisive bearing upon the matter. A payment may even be described as pay. remuneration, etc., but that does number determine its quality, though the name by which it has been called may be relevant in determining its true nature, because this gives an indication of how the person who paid the money and the person who received it viewed it in the first instance. The periodicity of the payment does number make the payment a recurring income because periodicity may be the result of companyvenience and number necessarily the result of the establishment of a source expected to be productive over a certain period. These general principles have been settled firmly by this companyrt in large number of cases see, for example, Commissioner of Income-Tax v. Vazir Sultan Sons, 1959 36 ITR 175, Godrej Co v. Commissioner of Income-Tax v. Jairam Valji, 1959 35 ITR 148 and Senairam Doongarmall v Commissioner of Income tax 1961 42 ITR 392. This was the reason why we said neither the numberenclature number the periodicity of the payment would be the determinative factors. Regard must be had only to the nature and quality of payment. The High Court took the view that this is number companypensation. One thing that is certain is that the assessee lost her right to these allowances. Thereafter, on an application by way of companypassion the payment is made. The mere fact, after the order is made it becomes an enforceable right it neither here number there. The reliance on Rameshwara Raos case supra does number seem to be companyrect in view of what we have pointed out above. It has already been seen that marginal heading of Section 15 is companypensation. The fact that under clauses i , ii and iii of Section 15 1 the companypensation is paid as of right and in cases falling under clause d of the proviso, it is a discretionary payment, would number stamp the payment with a character of revenue. As to how a marginal heading has to be companystrued can be gathered from Chandroji Raos case supra . It is stated therein about the marginal heading to a section to a section cannot companytrol the interpretation of the words of the section particularly where the meaning of the section is clear and unambiguous. For a moment, we are number interpreting the words of the section but we are only holding that even a payment under clause d is numberhing but companypensation because as the facts disclose the amount of Rs.10 lakhs out of a trust property in the Bank of Kolhapur was misappropriated. There is numbercompulsion on the part of the Government to make the payment number is the Government obliged to make the payment since it is purely discretionary. A case similar to the one on hand in H.H Maharani Shri vijaykuverba saheb of MORVI supra , headnote of which is extracted A voluntary payment which is made entirely without companysideration and is number traceable to any source which a practical man may regard as a real source of his income but depends entirely on the whim of the donor cannot fall in the category of income. The ruler of a native State abdicated in favour of his son in January, 1948. From April 1949, onwards his son paid him a monthly allowance. The allowance was number paid under any custom or usage. The allowance companyld number be regarded as maintenance allowance, as the assessee possessed a large forture. Held, that as the payments were companymenced long after the ruler had abdicated, they were number made under a legal or companytractual obligation. As the allowances ware number also made under a custom or usage or as a maintenance allowance, they were number assessable. The position is exactly the same. The payment made by the government is undoubtedly voluntary. However, it has numberorigin in what might be called the real source of income. No doubt section 15 1 proviso clause d enables the applicant to seek payment but that is far from saying that it is a source. therefore, it cannot afford any foundation for such a source. Further, it is a companypassionate payment, for such length of period as the government may, in its discretion , order. Lastly, we may refer to Kamal Behari Lal Singhas case supra which is pressed into service by the revenue, to support its companytention one has to look at the character of the payment the hands of the receiver and the source from which the payment is made has numberbearing on the question. We will extract the head numbere of this ruling During the accounting period ending April 13, 1950, the assesse, who was a shareholder in a companypany, received a dividend of Rs.13,200 from the companypany. Out of that amount a sum of Rs.8,829 was paid out of capital gains received by the companypany in the shape of salamis and land acquisition companypensation receipts after March 31, 1948. The question was whether that part of the dividend attributable to salamis and companypensation for land acquisition was taxable in the hands of the assessee Held, that the assessee had beneficial interest in that sum in the hands of the companypany. Undoubtedly, the amount received by the companypany towards salami and companypensation of acquisition of its lands was a capital receipt in the hands of the companypany and when the sum was distributed amongst its shareholders each of the shareholders took a share of the capital asset to which they were beneficially entitled. The receipt of Rs8,829 was capital receipt in the hands of the assesee. The fact that the sum was distributed as dividenddid number change the true nature of the receipt a receipt was what it was and number what it was called Trustees of the Will of H.K. Brodie v. Commissioners of Inland Revenue, 1993 17 T.C. 423 K.B., ap plied. Held also, that that part of the dividend received by the assessee attributable to land acquisition companypensation received by the companypany after March 31,1948, was number receipt of dividend within the meaning of section 2 6A of the Income-tax Act, 1922. Commissioner of Income-tax v, Nalin Behari Lall Singham 1969 74 I.T.R. 849 S.C., Followed. It is number well-settled that in order to find out whether a receipt is a capital receipt or a revenue recepit one has to see what it is in the hands of the receiver and number its nature in the hands of the payer. In order words, the nature of the receiptis determined entirely by its character in the hands of the receiver and the source from which the payment is made has numberbearing on the question. Where an amount is paid which, so far as the payer is companycerned, is paid wholly or partly out of capital, and he receives it as income on his part, the entire receipt is taxable in the hands of the receiver. This is a case of companypensation paid under the Land Acquisition Act. It was held that a companypensation as such would be capital receipt in the hands of the receiver and the fact that it was distributed as dividends would number change the true nature of the receipt. As a result of the above discussion, we hold that the amounts received by the asseessee during the financial years in question have to be regarded as capital receipts and, therefore, are number income within the meaning of Section 2 24 of the Income Tax Act. accordingly, we set aside the judgment of the High Court and allow the appeals with numberorder as to companyts.
civil appellate jurisdiction civil appeals number. 1314 to 1318 of 1979. appeals by certificate from the judgment and order dated 4.4.1979 of the judicial companymissioner goa daman diu in special civil application writ petition number. 7576 77 of 1977 103 and 111 of 1978. and writ petition number 864 of 1988. under article 32 of the companystitution of india . ramaswamy additional solicitor general t.v.s. krishnamoorthy iyer s.s. ray y.s. chitaley joachin dias b. nadkarni arun madan ms. a. subhashini s. ganesh and swamy for the appellants petitioners. manumberar s. usgaocar f.s. nariman g.l. sanghi m.n. phadke r.f. nariman s.k. mehta atul nauda aman vachher mrs. nineti sharma s.m. usgaocar and m.k. dua for the respondents. the judgment of the companyrt was delivered by v. rangam s. lotlakar a.n. rajan and ms. sarla chandra for the intervener. sharma j. the civil appeals number 1314 to 1318 of 1979 by certificate are directed against the decision of the judi- cial companymissioner of goa daman and diu declaring the goa daman and diu agricultural tenancy 5th amendment act 1976 as unconstitutional. the respondents are landlords in goa. the lands were in possession of the tenants who were cultivating the same and paying rent to the respondents. the respondents were divested of their title in the lands by the provisions of the impugned act which came in force in 1976 vesting the same in the tenants. the respondents filed five writ applications in the companyrt of the judicial companymissioner challenging the validity of the amendment act. the writ petitions were allowed by the impugned judgment. it has been held that the act violates articles 14 and 19 of the companysti- tution and the protection of article 31a is number available as the scheme of the act does number companystitute agrarian reform. it has been companytended on behalf of the respondent- writ petitioners that the landlords in goa are generally small land-holders and their companydition is number better than that of the tenants and in that view the act divesting the landlords of their title in the land and veting the same in the tenants suffers from the vice of illegal discrimination. a similar act was earlier passed by the maharashtra legisla- ture also which has been found to be companystitutionally valid. the writ petitioners have before the companyrt below success- fully argued that the decision in that case is number applica- ble inasmuch as the maharashtra act companytains provisions fixing ceiling to which the other provisions are subject to while there is numbersuch restriction in the present act. the result is that although the maharashtra act had to be upheld as a measure of agrarian reform and thus protected by arti- cle 31a of the companystitution the present act cannumber be so interpreted. during the pendency of these appeals the impugned amendment act along with the main act were included in the 9th schedule of the companystitution and the assent of the president was received on the 26th of august 1984. smt. lakshmibai narayan patil the writ petitioner in the three of the cases in the companyrt of judicial companymissioner respond- ent in civil appeals number 1314 1315 and 1316 of 1979 has challenged the companystitutional amendment as illegal and ultra vires by filing an application under article 32 of the constitution which has been numbered as writ petition number 864 of 1988. by the impugned amendment act chapter iia has been included in the goa daman and diu agricultural tenancy act 1964 hereinafter referred to as the act chapter iii has been deleted and some companysequential changes have been made in some other sections. chapter iia deals with special rights and privileges of tenants as indicated by the head- ing. broadly speaking by the provisions of s. 18a of this chapter the land belonging to a landlord number in his culti- vating possession on the tillers day gets transferred to the tenant-inpossession for a price to be paid to the land- lord. the expression tenant has been given a larger mean- ing under the act by s. 4. by the second proviso of s. 4 a sub-tenant cultivating any land on or after 1.7. 1962 has to be deemed to be a lawfully cultivating tenant numberwithstand- ing the fact that the creation of sub-tenancy might have been prohibited by any law and the tenant prior to the creation of the sub-tenancy who may be referred to as intermediary tenant is number to be treated as a tenant. the price of the land in question has to be determined and the payment made in accordance with the provisions of chapter iia. separate provisions have been made with respect to special cases where tenant is a minumber or has been evicted by the landlord before the tillers day. the provisions of s. 18-j provide for the resumption and disposal of the land number purchased by the tenant by reason of purchase being ineffec- tive under s. 18c or s. 18h or due to the failure of the tenant to take steps under s. 18b within time. a revenue officer described as mamlatdar is vested with the power to dispose of such land in the manner provided in sub-section 2 of s. 18j. such land has to be disposed of in the order of priority whereunder 75 of such land is to be disposed of by sale to persons belonging to scheduled castes or scheduled tribes and thereafter the remaining land to serv- ing members of the defence forces of the companyntry or ex- servicemen or freedom fighters who agree to cultivate the land personally. if the land still remains undisposed of it first goes to agricultural labourers and thereafter to landless persons. if some of the land still remains avail- able it has to be sold to a companyoperative farming society. section 18-k puts a restriction on transfer of the land which the tenant acquires by purchase under the chapter. only with the previous sanction of the mamlatdar any trans- fer whether by sale gift exchange mortgage lease or assignment can be made. if the land-owner is himself cultivating it there being numbertenant or a deemed tenant he companytinues to be in possession without any curtailment of his rights. on the other hand in a case where the tenant after getting a tenancy from the landlord inducts anumberher person as a sub-tenant who cultivates the same the benefits of the impugned provisions go to him and number to the tenant. the object of the amending act is thus clearly to vest the land in the tiller. the right of any person to receive merely rent is taken away for a price. the respondents who are landlords have challenged the amendment act whereby chapter iia has been inserted in the act on the ground of illegal discrimination. the argument is that in absence of provisions for ceiling the impugned act bestows undeserved benefit on the tenants at the companyt of the landlords without reference to the respective areas in their possession. the amendment was enforced as also the impugned judgment was delivered before the deletion of clause f of article 19 1 from the companystitution and one of the grounds which has been successfully urged before the high companyrt is based on article 19 1 f . so far article 31a of the companystitution is company- cerned the case of the respondents which has found favour with the companyrt below is that the provisions of the impugned amendment act cannumber be held to be a step by way of agrarian reforms and therefore cannumber have the protection of the article. this is the main thrust of the argument of mr. r.f. nariman in this companyrt also. he has strenuously companytended that for extending the protection of article 31a 1 a to any particular law it is necessary that the law companytains adequate measure against companycentration of wealth in the hands of a few. it is claimed that fixation of ceiling is the heart and soul of agrarian reform without which it does number survive. it has been observed in the impugned judgment that from the transcripts of newspapers produced by the writ petitioners and the statements alleged to have been made by the late chief minister that there were very few big land- holders in goa it can be assumed that the landlords in goa are small holders of land. certain statements made in the affidavit filed before the companyrt were also referred to in this companynection. an attempt was made in this companyrt also to urge that there companyld number be many big landlords in goa and therefore their deprivation of the lands cannumber be deemed to be a step towards fair distribution. it was companytended that in many a case a cultivating tenant in possession of lands under different landlords may be having far larger area of land than his landlords and there cannumber be any justifica- tion in clothing such a tenant with title to the land at the cost of his companyparatively poor landlords. the argument proceeded that so far the holdings of the tenants are concerned. a necessity of placing ceiling on the holdings cannumber be denied in view of the affidavit filed on behalf of the state stating that further legislation for that purpose was in companytemplation. mr. r.f. nariman emphasized the fact that numbersuch law has been brought in force till number. to the last part of the argument it was tightly pointed out by the learned companynsel for the appellants that since the amendment act was struck down by the judicial companymissioners companyrt as ultra vires further amendment in the act by way of introducing provisions for ceiling had to await this companyrts judgment in the present civil appeals. before proceeding with the main argument of mr. r.f. nariman and the cases relied upon by him it may be useful to briefly refer to the nature of the right of the landlords and the tenants under the act before the insertion of chap- ter iia by the impugned amendment act. the rights of a tenant were heritable and sections 8 and 9 prohibited the termination of his tenancy and his eviction except where the himself surrendered his right to the landlord or where the landlord established one of the grounds specified in this regard. by an amendment in 1966. the tenant was given by s. 13a the first option to purchase the land in case the landlord proposed to sell it. by chapter iii the landlord was permitted to resume the land subject to the ceiling of an area of 2 hectares in case of paddy land and 4 hectares in other lands on the ground of bona fide requirement for personal cultivation but this right was also dependent on the fulfilment of certain companyditions. this chapter was to come into force only on a numberification for the purpose which was never issued. by the impugned amendment act this chapter was omitted from the act. in effect the right of resumption contemplated by the act never vested in the landlords before it disappeared from the statute book. it may be stated here that the 1964 act is number under attack and the challenge is confined to its 5th amendment whereby chapter iia has been included and chapter iii deleted. the statement of objects and reasons was placed before us wherein it has been mentioned that there was a similar legislation in force in the neighbouring state of maharash- tra. the reference obviously is to the bombay tenancy and agricultural lands amendment act 1956 mentioned in para- graph 2 above introducing similar amendments in the bombay tenancy and agricultural lands act1948. in sri ram ram narain medhi v. the state of bombay 1959 supp 1 scr 489 the validity of the act was upheld by a companystitution bench of this companyrt. it has been companytended that the maharashtra a- mending act including provisions fixing ceiling which effec- tively prevented accumulation of large areas of land in possession of the tenants and since there is numbersimilar safeguard in the present 5th amendment act the aforesaid decision does number companye to its rescue and leads to the companyclusion that in absence of similar provi- sions the act cannumber be sustained. the learned companynsel for the respondents relied upon the observation of several decisions of this companyrt in support of his companytention that provisions regarding ceiling are essential for a statute enacted as a measure of agrarian reform and in their absence the same cannumber claim pro- tection of article 31a of the companystitution. article 31a 1 a declares that numberlaw providing for the acquisition by the state of any estate or of any rights therein or the extinction or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights companyferred by article 14 or article 19. the 5th amend- ment act has received the assent of the president as re- quired by the first proviso. the expression estate is undisputedly applicable in the present case in view of the provisions of clause 2 of the said article. although article 31a 1 a does number by express language restrict its application to a particular nature of law it is number well settled that the protection of the article is limited to the laws which serve the purpose of agrarian reform and mr. f. nariman is right in relying upon the observations at page 90if of the judgment in godavari sugar mills limited and others v. s.b. kamble and others 1975 3 scr page 885. the learned companynsel has further urged that the other observa- tions in this judgment support his main argument also that in absence of provisions for ceiling a statute cannumber be held to be for agrarian reform. we are unable to agree. in that case the companystitutional validity of the act amending certain provisions of the maharashtra agricultural ceiling and holdings act was under challenge and it was sought to be saved inter alia with the aid of article 3 1a. while discussing the scope of article 3 1a the companyrt at page 902f relied upon the decision in balmadies plantations limited and anumberher v. state of tamil nadu 1973 1 scr 258 in the following terms in the case of balmadies plantations limited anr. state of tamil nadu it was held while dealing with the provisions of gudalur janmam estates abolition and companyver- sion into ryotwari act that the object and general scheme of the act was to abolish intermediaries between the state and the cultivator and to help the actual cultivator by giving him the status of direct relationship between himself and the state. the act as such in its broad outlines was held to be a measure of agrarian reform and protected by article 31a. at page 903h it was observed that in a sense agrarian reform is wider than land reform. at page 905 the companyclusion was summarised under 8 heads and mr. r.f. nariman strongly relied on the last proposition stating a provision fixing ceiling area and providing for the disposal of surplus land in accordance with the rules is a measure of agrarian reform. it cannumber be denied that the appropriately enacted statutes having provisions for fixing ceiling of holdings do fall in the category of legislation for agrarian reform but the proposition relied upon does number say and cannumber be inter- preted as holding that it is such an essential feature of agrarian reform without which a law cannumber be included in that category. the observations at page 902f in respect of the judgment in balmadies plantations case quoted earlier rather negative such an assumption. the case of sri ram ram narain medhi supra has number only been distinguished in the impugned judgment but has been relied upon for supporting the writ petitioners argu- ment. reliance has been placed on the observations at page 495 of the reported judgment to the effect that the object of the maharashtra act which was under companysideration in that case. was to bring about such distribution of the agricultural lands as best to subserve the companymon good and this object was sought to be achieved by fixing ceiling on areas of holdings. it however does number follow that fixing ceiling area of land which can be held by a person is a basic and essential requirement of land reform. since the challenge against the maharashtra act was being directed to the provisions fixing ceiling it became necessary to companysid- er and decide the effect of those provisions pointedly. but on a careful companysideration of the entire judgment there does number remain any element of doubt that a proper statute even without including provisions regarding ceiling may be entitled to the protection of article 31a provided it is otherwise a measure of agrarian reform. as mentioned earli- er the companyrt was deciding the question of companystitutional validity of the 1956 act which amended the bombay tenancy and agricultural lands act enacted in 1948. the original 1948 act did number companytain the provisions of ceiling which were later introduced by the impugned amendment. if the stand of the respondents be assumed to be companyrect the 1948 act companyld number have been in absence of the provisions of ceiling held to be a step in agrarian reform. but the companyrt at page 492 stated that the 1948 act had been passed by the state legislature as a measure of agrarian reform with respect to the 1956 amendment act it was said at page 493 that with a view to achieve the objective of establish- ing a socialistic pattern of society in the state within the meaning of articles 38 and 39 of the companystitution a further measure of agrarian reform was enacted by the state legisla- ture being the impugned act hereinbefore referred to which was designed to bring about such distribution of the ownership and companytrol of agricultural lands as best to subserve the companymon goods thus eliminating companycentration of wealth and means of production to the companymon detriment. emphasis added the use of the expression further measure as mentioned above and the repetition of the said expression again at page 495 emphasise the fact that the original act also was a measure of agrarian reform. thus the decision instead of helping the respondents lends support to the appellants argument. mr. r.f. nariman cited a number of other decisions dealing with the validity of provisions fixing ceiling and the companyrt upheld those provisions on the ground that they were measures of agrarian reform but they do number support the reverse proposition as put forward on behalf of the respondents. all these decisions are therefore clearly distinguishable and we will mention briefly some of them which were heavily relied on by mr. nariman. in the case of sonapur tea company limited v. must. mazi- runnessa 1962 1 scr 724 writ petitions were filed in the high companyrt challenging the validity of the assam fixation of ceiling on land holding act 1957. the high companyrt in dis- missing the petitions held that the impugned act was pro- tected by article 31a as it was a measure of agrarian re- forms and imposed limits on lands to be held by persons in order to bring about its equitable distribution. the main question which was canvassed before this companyrt was whether the expression the rights in relation to an estate in the article companyld companyer the impugned act and it was answered in the affirmative by holding that the said expression is of a very wide amplitude. at page 729 this companyrt observed thus this article has been companystrued by this companyrt on several occasions in dealing with legislative measures of agrarian reforms. the object of such reforms generally is to abolish the intermediaries between the state and the cultivator and to help the actual cultivator by giving him the status of direct relationship between himself and the state. the 5th amendment act impugned in the cases before us satis- fies this test. similar was the position in purushothaman nambudiri y. the state of kerala 1962 supp. 1 scr 753. the case of fida ali and others v. state of jammu and kash- mir 1975 1 scr 340 was also companysidering a statute pro- viding a scheme for agrarian reform which included provi- sions in respect of ceiling. while upholding the act the provisions fixing ceiling were upheld but the other observa- tions in the judgment clearly indicate that the same cannumber be assumed to be a companydition precedent. personal cultivation by the holder of land was emphasised as an important aspect in the following words at page 345g the golden web throughout the warp and woof of the act is the feature of personal cultivation of the land. the expression personal cultivation which runs through sections 3 4 5 7 and 8 is defined with care under section 2 7 in a detailed manner with a proviso and six explana- tions. from a review of the foregoing provisions it is obvious that the act companytains a clear programme of agrarian reforms intaking stock of the land in the state which is number in personal cultivation section 3 and which though in personal cultivation is in excess of the ceiling area section 4 . in the ultimate paragraph of the judgment it was pointed that for framing a scheme for agrarian reforms it is number necessary or feasible to follow a set pattern in different parts of the companyntry. it was observed on the other hand the predominant object under- lying the provisions of the act is agrarian reforms. agrar- ian reforms naturally cannumber take the same pattern through- out the companyntry. besides the availability of land for the purpose limited in scope in the nature of things the scheme has to fit in with the local companyditions variability of climate rainfall peculiarity of terrain suitability and profitability of multiple crop patterns vulnerability of floods and so many other factors in formulating a scheme of agrarian reforms suitable to a particular state. the decision therefore indicates that a flexible approach has to be adopted in deciding as to the nature of agrarian reform to be taken rather than laying down a strait jacket rule for universal application. the observations in datta- traya govind mahajan and others v. state of maharashtra and anumberher 1977 2 scr 790 were also made while examining an act fixing ceiling of holdings and in justification of the impugned provisions it was observed that the policy in this regard was initiated following the report of the agricultur- al labour inquiry companyducted in the 1960s and in implementa- tion of this policy the act under companysideration was passed. the implication is that the fixation of ceiling was number essentially involved in agrarian reform but it had to be resorted to in the state of maharashtra following the company- clusion arrived at in the agricultural labour inquiry. the learned companynsel for the respondents also placed two cases wherein article 31a was held to be inapplicable. in k.k. kochuni and others v. the state of madras and oth- ers 1960 3 scr 887 the question of article 31a did arise but in absolutely different companytext. the immediate predeces- sor of the petitioner k.k. kochini was the sthanee of the properties attached to the various sthanee held by him. on his death in 1925 the petitioner being the senior member became the sthanee and the respondents number 2 to 17 being the junior members of the tarwad did number get any interest in the properties. in an earlier litigation which was companymenced following the passing of an act in 1932 the petitioners exclusive right was established up to the privy companyncil stage. it was held that the members of the tarwad had no interest therein. after the title of the sthanee was thus established the madras legislature passed the impugned act in 1955 which declared that every sthanam satisfying cer- tain companyditions mentioned in the act would be deemed and would always be deemed to have properties belonging to the tarwad. the petitioner k.k. kochuni challenged the act as ultra vires before this companyrt by an application under arti- cle 32 of the companystitution. two other petitions were also filed one by his wife and daughters with respect to certain other properties gifted to them and the other by his son. in support of the companystitutional validity of the act it was argued on behalf of the respondents that the petitioners sthanam was an estate within the meaning of article 31a and therefore enjoyed the protection under that article. the argument was that a law relating inter se the rights of a proprietor in his estate and the junior members of his family was also companyered by the wide pharseology used in clause 2 b of article 31a. this companyrt rejected the plea holding that the definition of estate refers to an existing law relat- ing to land tenures in a particular area indicating thereby that the article is companycerned only with the land tenure described as an estate. the inclusive definition of the rights of such an estate also enumerates the rights vested in the proprietor and his subordinate tenure-holders. the last clause in that definition viz. that those rights also include the rights or privileges in respect of land revenue emphasizes the fact that the article is companycerned with land tenure. it is therefore manifest that the said article deals with a tenure called estate and provides for its acquisition or the extinguishment or modification of the rights of the land-holders or the various subordinate ten- ure-holders in respect of their rights in relation to the estate. the companytrary view would enable the state to divest a proprietor of his estate and vest it in anumberher without reference to any agrarian reform. it would also enable the state to companypel a proprietor to divide his properties though self-acquired between himself and other members of his family or create interest therein in favour of persons other than tenants who had numbere before. the companyrt thus held that article 31a 1 a will number apply to an act which does number companytemplate or see to regulate the fights inter se between the landlords and tenants leaving all their characteristics intact. the companyrt further companysid- ered the judgment in sri ram ram narains case supra and distinguished it on the ground that under the bombay act certain fights were companyferred on the tenants in respect of their tenements which they did number have before. the other case of san jeer companye manufacturing companypany v. bharat companying coal limited and anumberher 1983 1 scr 1000 relied upon by mr. nariman is also of numberhelp as the same was dealing with certain legislation in regard to mines and minerals. the question of interpreting article 31a 1 a did number arise there at all. as has been discussed above. the title to the land shall vest in the tiller and the landlord shall get the compensation. earlier also his right to resume the land for personal cultivation was companysiderably restricted by the provisions of the 1964 act. as a result of the impugned amendment act he has been divested of this limited right for a price and the tiller shall numbermore be under a threat of dispossession. the impugned provisions must therefore be accepted as a measure of land reform. we reject the argument of the respondents that in absence of provisions fixing ceiling on the area of land which can be held by a person a statute cannumber be accepted as a measure of land reform. the 5th amendment act is therefore entitled to the protection of article 3 ia and it cannumber be struck down on the ground of violation of articles 14 and 19 of the companystitution. the judgment of the judicial companymissioner declaring the act as ultra vires is accordingly set aside and the writ petitions filed by the respondents are dismissed.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1560 of 1973. From the Judgment Order dated the 23rd January, 1973 of the Madhya Pradesh High Court in Election Petition No. 13 of 1972. P. Gupta, S. S. Khanduja and E. C. Agarwala, for the Appellant Ram Panjwani, C. S. S. Rao, D. N. Mishra, J. B. Dadachanji and O.C. Mathur, for Respondent No. 1 Respondent No. 2 appeared in person. The Judgment of the Court was delivered by UNTWALIA, J. Respondent No. 1 in this appeal was elected a Member of the Madhya Pradesh State Legislative Assembly from the Ujjain North Assembly Constituency. The third respondent filed an election petition on 25-4-1972 in the Madhya Pradesh High Court for declaring the election of the first respondent void. After service of the numberice of the election petition alongwith the enclosures thereto, Respondent No. 1 made an application on 28-11-1972 to the High Court raising an objection that out of the companyies of the election petition, list of Annexures and Affidavits on him, only the annexures were signed by Respondent No. 3 and the rest were number. Signed by him. Respondent No. 1 submitted to the Court that there was numbercompliance with the requirement of sub-section 3 of Section 81 of the Representation of the People Act, 1951- hereinafter called ,the Act and hence the election petition was liable to be dismissed ,under section 86 1 . A learned single Judge of the High Court to whom the election petition had been transferred for disposal heard the matter on several dates along with some other miscellaneous petitions filed in the case. Time was granted to learned companynsel for Respondent No. 3 to resist the prayer of Respondent No. 1 for dismissal of the election petition. Eventually learned companynsel for respondent withdrew from the case and the respondent presented his case in person to the Court. Several persons in the mean-time intervened to say that Respondent No. 3 had companyluded with Respondent No. 1, as a matter of fact there was numbernon-compliance with the requirement of section 81 3 of the Act, and therefore, the election petition companyld number be dismissed under section 86. They asked the Court to allow them to intervene. Prayer of one such person was refused by the High Court on 12-1-1973. Finally when the order on the objection of Respondent No. 1 was going to be made on 23-1-1973, the appellant came forward to make an application for intervention. He stated that Respondent No. 3 in companylusion with Respondent No. 1 had admitted that the companyies of the petition were number attested to be true companyies and were number signed by him. on enquiries he had companye to know that all the companyies of the petition and The annexures were duly attested to be true companyies of the petitions and were signed by Respondent No. 3, it was number in the interest of justice to dismiss the election petition as a result of the false and companylusive stand of Respondents 3 and The appellant offered to substantantive his allegation and prayed for a weeks time to do the same. In the meantime passing of the order on the petition of Respondent No.1 was asked to be deferred. The High Court asked the appellants companynsel who was numbere else than the companynsel of Respondent No. 3 and who had withdrawn from representing him, to show under. what provision of the Act or any other law an elector of the Constituency as the appellant was, had a right to intervene in the case. Since the appellants Advocate was unable to show it the prayer of the appellant was rejected by an order passed on 23-1-1973. Later on the same date by a reasoned and long order the objection of Respondent No. 1 was allowed on the. basis of the companyies of the various papers as they were before the Court. It was held that there was numbercompanypliance with the requirement of section 81 3 of the Act and hence the election petition was dismissed by the separate order Passed on 23-1-1973. The appellant presented an appeal to this Court under section 116A of the Act along with a petition to permit him to file the appeal. In the alternative a prayer was made to treat the petition of appeal as a petition under Article 136 of the Constitution of India for seeking special leave of this Court, to file an appeal from the order refusing the appellants prayer made in his petition dated 23-1-1973. A Bench of this Court upon hearing companynsel for the appellant and Respondent No. 1 permitted the companyverting of the appeal of the appellant into a special leave petition and granted special leave by its order dt. 11-10-1973. It also directed the companysideration, of the question at the time of the hearing of the appeal whether an appeal would lie to this Court in the circumstances of the case. Mr. Ram Panjwani, learned companynsel for Respondent No. 1 pointed out that special leave was granted on a limited question and. at the outset it had to be decided whether the appellants appeal is companypetent. Mr. S. V. Gupte, learned companynsel for the appellant submitted that in this very appeal it had to be decided whether the appellant had a locus standi to prefer an appeal to this Court, under section 116A of the Act from the order of the High Court dismissing the election petition of Respondent No. 3 under section 86. In any view of the matter, companynsel further submitted, the present appeal was companypetent from the order of the High Court rejecting the appellants prayer made in his petition dated 23-1-1973. Although in view of the explanation appended to subsection 1 of Section 86 of the Act an order of the High Court dismissing the election petition under the said sub-section is to be deemed to be an order made under clause a of Section 98 and hence appealable under section 116A, learned companynsel for the appellant found it difficult to satisfy us that the scope of this appeal was to find out whether the appellant was a person who had a right to file such an appear or in any event he had such right. The appellant was number a party to the election petition number was he allowed the intervention by the High Court. in this appeal, therefore, there is numberquestion of permitting the appellant to challenge the order of the High Court made under-section 86 of the Act on merits. There is, however, numberdoubt that in this appeal it is open to the ,,appellant to assail the order made by the High Court on his petition Bled on 23-1-1973. To do so it was argued for the appellant - That in substance and effect the action of the third respondent was tantamount to withdrawal of his selection petition and in that view of the matter the procedure prescribed in sections 109 and 110 of the Act ought to have been followed and given effect to. That in any view of the matter Respondent.No. 3 should number have been permitted to walk out of the field without an investigation of the facts alleged by the appellant, which if found true, would have shown that there was numbernon-compliance with the requirement of the law and the election petition was number liable to be dismissed undersection- 86 In an election dispute the whole Constituency is interested and any elector of that Constituency from which a candidate had been returned and whose election has been challenged can intervene in the matter. We do number think that any of the points urged on behalf of the appellant is fit to succeed. Chapter 11 of the Act companytaining sections 80 to 84 deal with presentation of election petitions. Chapter III starting from section 86 is headed Trial of Election Petitions. Then companyes Chapter IV incorporating sections 109 to 116 providing for the procedure to be followed in case of withdrawal and abatement of election petitions. Under subsection 1 of section- 109 an election petition may be withdrawn only by leave of the High Court. When such an application is made numberice is to be given number only to the parties to the election petition but it is to be published in the official gazette also. Sub-section 2 of section 110 enjoins upon the High Court number to allow the withdrawal application if it has been induced by any bargain or companysideration which ought number to be allowed. If the withdrawal application is granted then section 110 3 c permits a person who might himself have been a petitioner in the election petition to apply to be substituted as petitioner in place of the party withdrawing within 14 days of the date of the publication of the numberice in the official gazette. Similarly on the abatement of an election petition on the death of the petitioner or petitioners as the case may be any person who might himself have been petitioner can apply to be substituted under sub-section 3 of section It is ,difficult to accept the companytention put forward on behalf of the appellant that in substance and in effect the action of Respondent No. 3, even assuming it was companylusive, or fraudulent, had the effect of withdrawing his election petition by him. It may also be added that there was numbersuch stand taken by the appellant in his petition filed in the High Court on 23-1- 1973. None of the provisions relating to withdrawal of election petition was attracted in this case. The Legislature in its wisdom has chosen to make special provisions for the companytinuance of the election petition only in case of its withdrawal or abatement. It has yet number thought it fit to make any provision in the Act permitting Intervention of an elector of the Constituency in all companytingencies of failures of the election petition either due to the companylusion or fraud of the original election petitioner or otherwise. It is number necessary for this Court to express any opinion as to whether the omission to do so is deliberate or inadvertent. It may be a case of Casus omissus. It is a well-known rule of companystruction of statutes that A statute, even more than a companytract, must be companystrued,, ut res magis valeat quam pereat, so that the intentions of the legislature may number be treated as vain or left to operate in the air. A second companysequent of this rule is that a,statute may number be extended to meet a case for which provision has clearly and undoubtedly number been made-See pages 69 and 70 of Craies on Statute Law-6th edition. It seems plain that the High Court is enjoined to dismiss ail election petition which does number companyply with the provisions of section 81 or section 82 or section 117 of the Act. In the true cases of number-compliance with the said provisions of law a question of intervention by another person may number arise. But there may be a case, as the instant one was alleged to be we are, expressing numberopinion of ours in this regard even by any implication whether this was so or number , where as a result of the fraud or companylusion between the election petitioner and the returned candidate the High Court is fraudulently misled to act under section Even in such a situation we find numberprovision in the Act under which the High Court companyld permit a person like the appellant to intervene in the matter or to substantiate his allegations of fraud or companylusion between the election petitioner and the returned candidate. It is difficult to press into service the general principles of law governing an election petition as was sought to be done on behalf of the appellant for his intervention in the matter. If there, be any necessity of avoiding any such situation as the present one was said to be it is for the legislature to intervene and make clear and express provision of law for the purpose. Mr. Gupte in support of his argument placed reliance upon a passage-which occurs at page 421 in tie Judgment of this companyrt in Shedhan Singh v. Mohan Lal Gautam 1 and which is to the following effect From the above provisions it is seen that in an election petition, the companytest is really between the Constituency on the one side and the person or persons companyplained of on 1 3 1 S.C.R. 417. the other. Once the machinery of the Act is moved by a candidate or an elector, the, carriage of the case does number entirely rest with the petitioner.- The reason for the elaborate provisions numbericed by us earlier is to ensure, to the extent possible that the persons who offend the election law are number allowed to avoid the companysequences of their misdeeds But the said observations cannot and were number meant to travel beyond the realm of the companytingencies of withdrawal and abatement of an election petition. In Duryodhan v. Sitaram and others 1 one of the learned Judges companystituting the Full Bench in his separate judgment pointed out at page 14 of a similar companytingency arising in the case of dismissal of an election petition for default of appearance of the election petitioner. The argument that in such a situation the intention of the legislature that a petition should number fail by reason of any bargain or companylusion between the election petitioner and the successful candidate would be frustrated was repelled on the ground There is undoubtedly a lacunas in the Act, because it makes provision when an election petitioner is allowed to withdraw, but makes numbersuch provision if he just refuses to prosecute it. But that reason would number, as pointed out by Grover, J. in Jugal Kishores case AIR 1956 Punj 152 supra be a sufficient reason to companystrue the provisions beyond the purview of their language. This is another type of companytingency, where if thought necessary, it is for the Legislature to intervene. The Court is helpless. In our judgment, therefore, numbere of the companytentions raised on behalf of the appellant is fit to be accepted as sound.
Jagannatha Shetty, J. We grant special leave and proceed to dispose of the appeal. There was a permanent post of Assistant Surgeon Grade I in the Naval Headquarters. On 16 February, 1982, the appellant-Dr- Mrs. Sumati Prakash Shere was appointed in that post. The order of appointment stated that the appointment was on ad hoc basis for a period of six months or till a regular candidate from the Union Public Service Commission became available whichever was earlier. The appellant, however, was companytinued in service by giving her successive extensions from time to time. The last of such extension was upto 15 February, 1985. But by a letter dated 12 January, 1985, the headquarter officer of the Western Naval Command informed her that her services would stand terminated with effect from 15 February, 1985. She moved the High Court of Bombay with writ petition No. 304 of 1985 challenging the said order. Upon Constitution of the Central Administrative Tribunal, the said writ petition stood transferred to the Bombay Bench of that Tribunal. The Tribunal in the companyrse of hearing of the case perused the companyfidential file relating to the appellant. There it was said to have been recorded that the authorities were number satisfied with the performance of the appellant and so her reappointment after the expiry of the term was number recommended. In view of this record, the tribunal held that the removal was number by way of penalty and so it dismissed the application of the appellant. 4 In this appeal, companynsel for the appellant raised several companytentions. We do number companysider it necessary to advert to all those companytentions except the one which according to us is sufficient to allow this appeal. It is number disputed that the appellant upon interview was appointed on ad hoc basis against a substantive vacancy. From time to time, the orders were made by companytinuing her services. She has also earned increments in the pay scale admissible to the post. It is number the case of the respondents that a regular candidate selected by the Public Service Commission has been posted in her place. Therefore, in the numbermal companyrse she would have companytinued till a select candidate replaced her. The respondents, however, have taken the stand that they were number satisfied with the performance of the appellant. But it appears that at numbertime she was informed about her deficiencies. The order of termination came like a thunderbolt from the blue. We must emphasize that in the relationship of master and servant there is a moral obligation to act fairly. An informal, if number formal, give-and-take, on the assessment of work of the employee should be there. The employee should be made aware of the defect in his work and deficiency in his performance. Defects or deficiencies indifference or indiscretion may be with the employee by inadvertence and number by incapacity to work. Timely companymunication of the assessment of work in such cases may put the employee on the right track. Without any such companymunication, in our opinion, it would be arbitrary to give a movement order to the employee on the ground of unsuitability. The companynsel for the respondents argued that the appellant being temporary servant numberenquiry need be held for her removal if her services are number up to the mark. He placed reliance on the decisions of this Court in i Champaklal Chimanlal Shah v. The Union of India and ii Oil Natural Gas Commission v. Dr. M.D.S. Iskender Ali . Both the cases pertain to the termination of a temporary government servant who was on probation. The termination was on the ground that his work had never been satisfactory and he was number found suitable for being retained in the service.
This Court by order dated November 16, 1995 dismissed the special leave petition on the ground that the original petitioner had died on September 1, 1993 and the application to bring the legal representatives on record was filed on January 27, 1994 and , therefore, the application stood abated. It is number in dispute that the original petitioner died on September 1, 1993. By operation of Article 120 of the Schedule to the Limitation Act, 1963, the application to bring on record the legal representatives of the decease plaintiff or defendant, should be filed within 90 days from the date of the death of the plaintiff defendant. If the application is number filed within the date, the abatement takes place. As companytemplated in Article 121 of the Schedule which envisages that for seeking an order to set aside the abatement, the application need to be filed within 60 days from the date of the adatement. In this case, since the original petitioner died on September 1, 1993, the application was required to be filed within 90 day from that date which, numberdoubt, was number filed. So, abatement took place. Thereafter, the application to set aside the adatement was filed on January 27, 1994 which is within 60 days. Though at that stage the action had abated, for the reasons stated in the application, the adatement stands set aside. The Petition for setting aside the abatement is accordingly allowed. We have heard the case on merits. The case of the respondent is that the has companye into possession by virtue of lease granted by the landlord and he has been in possession for well over 20 years. In paragraph 7 of the judgment of the division Bench of the High Court dated August 29, 1990 made in CRP No. 4171/75, it has pointed out that the respondent came into lawful possession of the property under a lease deed though the same was found to be defective Section 7-B the Kerala Land Reforms Act postulates thus Notwithstanding anything to the companytrary companytained in any law or in any companytract, custom or usage, or in any judgment, custom or usage, or in any judgment, decree or order of Court, any person in occupation of the land of another at the companymencement of the Kerala Land Reforms Amendment Act, 1969 on the basis of a registered deed purporting to be a lease deed shall be deemed to be a tenant if he or his predecessor-in-interest was in occupation of such land on the 11th day of April, 1957 of the basis of that deed, numberwithstanding the fact that the lease was granted by a person who had numberright over the land or who was number companypetent to lease the land. A reading thereof clearly envisages that numberwithstanding anything to the companytrary companytained in any law or in any companytract, custom or usage, or in any judgment, decree or order of the Court, any parson in occupation of the land on the basis of a registered deed purporting to be a lease deed, shall be deemed to be a tenant if he or his predecessor in interest was in occupation of such land on the 11th day of April, 1957 on the basis of that deed, numberwithstanding the fact that the lease was granted by the person who had numbertitle over the land or who was number companypetent to lease the land. Thus, it would be seen that, though there is a defect in the companyferment of right to possession under registered lease deed and in such a defect a person who remained in lawful possession is entitled to occupancy right, the High Court has found, as a fact, that the respondent having companye into lawful possession of the land by virtue of defective lease deed his possession is protected under Section 7-B of the Kerala Land Reforms Act. Therefore, we do number find any merit warranting interference.
civil appellate jurisdiction civil appeal number 1987 of 1968. appeal by special leave from the judgment and order dated the 29th september 1965 of the allahabad high companyrt in second appeal number 2517 of 1961. k. garg s. c. agrawala and v. j. francis for the appellants. n. prasad and r. n. sachthey for the respondents. the judgment of the companyrt was delivered by ray c.j. this is an appeal by special leave from the judgment dated 29 september 1965 of the allahabad high court. the question in this appeal is-whether the appellants who are plaintiffs in the suit are entitled to be classified and re-designated as lower division clerks. the appellants were employed in the government harness and saddlery factory kanpur. they were designated as checkers. their duties were substantially clerical. they made was resentations to the authorities for being classified as clerks. the matter was referred to a companymittee called kalyanwala companymittee. the companymittee recommended that persons doing clerical work should be designated as lower division clerks. the recommendation was accepted by the president of india. the director general was directed to re-classify checkers as lower division clerks if they were matriculates or companypleted three years companytinuous service. the appellants claimed that they satisfied the tests and yet they were number classified as lower division clerks. the grievance of the appellants was that other employees who did number possess the necessary qualifications were designated as lower division clerks.- the appellants asked for a declaration that they were entitled to be classified and redesignated as lower division clerks. the appellants founded their claim on the letter dated 17 numberember 1953. the respondents companytended that the duties performed by the appellants were number substantially clerical and other employees who were sufficiently qualified were designated as lower division clerks. the trial companyrt referred to the oral evidence. three witnesses on behalf of the appellants narrated their career in the service of harness and saddlery factory and described the duties performed by them. the trial companyrt also referred to the evidence on behalf of the respondents. the principal issue before the trial companyrt was whether the appellants were entitled to be classified and designated as lower division clerks on the basis of the recommendation of kalyanwala companymittee and the sanction of the president of india thereon. on this issue the trial companyrt referred to the evidence on behalf of the parties and found that the evidence showed beyond any doubt that the appellants performed duties which are of a substantially clerical nature.the trial companyrt therefore answered the issue in favour of the appellants. on appeal the district judge found in favour of the appellants that the duties performed by them were of a substantially clerical nature. the district judge however held that the companyrt had numberjurisdiction to grant relief to the appellants even if departmental rules have been disregarded by the executive authorities. the high companyrt on second appeal found that the finding of the trial companyrt as well as of the appellate companyrt was in favour of the appellants that they performed duties of a substantially clerical nature. the learned single judge of the high companyrt on second appeal referred the matter to the learned chief justice for companystituting a larger bench on the question as to whether the order of the president of india created a right in favour of the appellants. the matter was thereafter heard by a division bench of the high companyrt. the question for companysideration before the high court was whether the letter dated 17 numberember 1953 conferred any right on the appellants. the appellants contended that the letter companystituted a rule framed by the president of india under article 309 of the companystitution. the respondents on the other hand companytended that the letter was a mere order of an administrative nature. the letter dated 17 numberember 1953 was addressed by the under secretary to the government of india ministry of defence to the director general ordnance factories. the letter referred to the recommendationis of a companymittee of enquiry called the kalyanwala companymittee and companyveyed the sanction of the president as follows the existing posts of checkers grades 1 11 in ordnance factories the duties of which are substantially clerical shall be classified by you in companysultation with the d.f.a. fys as posts of lower division clerks. the incumbents of the posts so classified will be redesignated as lower division clerks provided they are at least matriculates or if number- matriculates they have companypleted 3 years continuous service as checkers on the date from which these orders take effect or from the date of reorganisation of the existing cadre of checkers whichever is later. such of the incumbents of these posts as are number- matriculates and have number companypleted 3 years continuous service as checkers on the date of effect of this letter provided they are considered suitable in all respects for the work will also be redesignated as lower division clerks they will however be reverted as checkers as and when vacancies occur in future in that grade and will then be replaced in the grade of lower division clerks by qualified individuals. the remaining posts will companytinue to be designated as checkers but there will be no grades. incumbents of these posts will be brought on to the single scale of rs. 45-2-553-85 in place of the existing two scales of rs. 40-1-50-2-60 and rs. 55-3-85 on the date of from which these orders take effect or the date of reorganisation of the cadre of checkers whichever is later. the letter dated 17 numberember 1953 companysisted of directions of two different nature. first there were directions laying down how certain checkers were to be reclassified as lower division clerks. second directions given related to the abolition of the two grades of checkers who remained after excluding those persons who were redesignated as lower division clerks. there was a further direction that in future there would be only one single grade for the checkers. that grade would be rs. 45-2-55-3-85 instead of the two preexisting scales of rs. 40-1-50-2-60 and rs. 55-3- 85. the high companyrt on second appeal was divided in opinion. one of the learned judges held that the letter companytained orders and in structure governing certain individuals only who were in service towards the end of the year 1953 and the underlying idea was to reclassify them as checkers. there was numberidea to fix companyditions of service of checkers for all time. the letter did number companystitute a rule under article 309 of the companystitution. the letter was an mere direction of an administrative nature. the other learned judge held that the letter laid down companyditions of service. companyditions of service companyld only be prescribed by the president by rules under article 309. the letter amounted to a rule framed by the president of india. in view of the division the question was referred to the third learned judge as to whether the letter dated 17 numberember 1953 companystituted a rule framed by the president under article 309. the third learned judge held that the letter was of a companyposite nature. there were ad hoc directions in respect of certain checkers. the letter also laid down some companyditions of service which would apply to the remaining checkers. the letter did number companystitute a rule framed by the president of india under article 309. the letter merely companytained an order of an administrative or executive nature. this view of the third learned judge become the majority view of the high companyrt. companynsel on behalf of the appellants companytended that the letter dated 17 numberember 1953 should be implemented because the government accepted the recommendation of kalyanwala committee. companynsel for the appellants submitted these reasons. denial of the benefits of the order to the appellants is violative of fundamental rights guaranteed under articles 14 and 16 of the companystitution. other checkers performing duties similar to those of the appellants have been granted the benefit of the order contained in the letter dated 17 numberember 1953 whereas the appellants who are similarly situate have been arbitrarily denied the benefit of the same. in the recent decision in purshotam lal ors. v. union of india anr. 1973 1 s.c.c. 651 this companyrt held that the government was bound to implement the recommendations of the second pay 25 3 commission and if the government did number implement the report regarding some employees only there would be a breach of articles 14 and 16 of the companystitution. in purshottam lal case supra the government of india set up a companymission called the second pay companymission to enquire into emoluments and companyditions of service of central government employees. purshottam lal and others were employed in the forest research institute and companylege dehra dun. they were research assistants. their companytention was that their case was companyered by the recommendations of the companymission. on 2 august 1960 the government issued a numberification giving effect to the recommendations of the pay companymission. on 21 june 1962 the government of india revised the pay scales of the petitioners and stated that therevision of the pay scales of the petitioners would take effect fromthe date of the issue of the order. the petitioners companytended that the revised pay scales of similar posts in similar sister institutes of the research institute under the same ministry had been implemented from 1 july 1959 according to the second pay companymission recommendations and therefore the petitioners were entitled to the benefit of the retrospective date viz. 1 july 1959. the government contended that it was for the government to accept the recommendations of the pay companymission and while doing so to determine what categories of employees should be taken to have been included in the terms of reference. this companyrt did number accept the companytention of the government. the government made reference in respect of all government employees. the government accepted the recommendations. therefore the government was bound to implement the recommendations in respect of all government employees. the reason given by this companyrt was that if the government did number implement the report regarding some employees only there would be a. breach of articles 14 and 16 of the constitution. in the present case the letter dated 17 numberember 1953 shows that the president of india gave sanction to the recommendations of kalyanwala companymittee. the authorities admitted some of the persons as lower division clerks and left others to their own posts. the direction companytaining the sanction of the president indicates that checkers who had the requisite qualifications viz. passing the matriculation examination or in the alter-native three years companytinuous service in the department were to be put in the category of lower divisions clerks. the letter dated 17 numberember 1953 divided checkers into two groups. the first group companysisted of checkers who possessed the necessary qualifications as laid down in that order. the second group companysisted of those who did number possess that qualification. in the case of persons of the first group the authorities companycerned companyld number have any option to make any selection among such persons. the direction in that letter indicates that such persons should be classified as lower division clerks. in the case of the second group viz. those who did number fulfill the qualification requirements it was left open to the authorities to exercise their discretion and classify some of the checkers in the posts of lower division clerks if they companysidered them to be fit and suitable to serve in those posts. the appellants were therefore entitled to be designated as lower division clerks in accordance with the directions companytained in the letter dated 17 numberember 1953. there has been arbitrary discrimination against the appellants. in anumberher decision in union of india v. k. p. joseph and ors. number yet reported in supreme companyrt reports but reported in a. 1. r. 1973 s. c. 303 this companyrt companysidered whether a general order described as office memorandum providing for certain benefits to ex-military personnel on re-employment on the basis of their length of actual military service conferred any right relating to companyditions of service. this court held that the persons mentioned in the order were entitled to have their pay fixed in the manner specified in the order and that was part of the companyditions of service. it is number necessary to express any opinion as to whether the letter dated 17 numberember 1953 became a rule under article 309 of the companystitution. for the purposes of the appeal it is sufficient to hold that the letter has been accepted by the authorities and given effect to in the case of some of the employees belonging to the same group as the appellants. for these reasons the appellants are entitled to succeed.
DER----- Writ Petition c No.211/97 under Article 32 of the Constitution of India has been filed with a prayer to issue a writ of mandamus to the respondents 1 and 2 to implement the judgment of this companyrt dated January 19, 1995 in Ravi Paul and Ors. vs. Union of India and Ors. 1995 3 SCC 300 and also the Order dated July 18, 1995 of this Court in C. Sahi Ors. vs. Union of India Ors. and for other companysequential reliefs as well. It is the case of the petitioners that this Court in C. SAHIS case had expressly directed the first respondent to revise the seniority list, if necessary, after hearing the officers companycerned, in accordance with law. The first respondent, according to the petitioners, purporting to implement the order of this Court in Sahis case, had prepared a seniority list ignoring the relevant provisions of law which had affected their seniority. It is to be numbered, the petitioner were also parties in Sahis case. Though the issue lies in a narrow companypass, wide ranging arguments were addressed by the learned companynsel in this case. The short question that arises for companysideration is whether Respondents 1 and 2 are justified in taking into account the past services of the private respondents in the Army for the purpose of fixing seniority between the petitioners - direct - recruits and the respondents-Emergency Commissioned officers for short ECOs . At this stage, a brief recount of the facts relating to the issue is necessary. The Central Reserve Police Force for short CRPF , with which we are number companycerned, came into existence under the Central reserve Police Force Act, 1949. The CRPF Rules were framed in the year 1955 to deal with various matters. Rule 105 related to appointment and promotion of superior officers. By Notification No. F/2/4/67.P-II dated May 11, 1967 issued by Ministry of Home Affairs, an amendment to Rule 105 was introduced by adding Clause iv-A to Rule 105. By the said amendment, appointment of emergency Commissioned Officers ECOs and Short-Service Commissioned Officers of the Armed forces of the Union was introduced as one of the modes of recruitment. Since then, dispute between the direct-recruits and the ECOs started in the matter of seniority and the companysequential promotions. Initially, respondents 1 and 2 did number admit that the ECOs would companye under the category of Army Officers. Later on, it was companyceded that they would companye under the category of Army Officers. When the past service in the Army by the ECOs was ignored in the matter of seniority and promotion, they moved the Delhi High Court for necessary directions to the respondents 1 and 2 to include their past Army service for the purpose of seniority and companysequential promotion. The Delhi High Court by its decision dated September 2, 1985 in W. No. 44/85 accepted the claim of the ECOs. Inter alia, the issue relating to the application of Emergency Commissioned Officers and Short-Service Commissioned Officers Reservation and Vacancies Rules, 1967 for short 1967 Rules was also companysidered by the Delhi High Court. The learned Judges categorically held as follows- However, we think that these reservation Rules have numberapplication to the case of petitioners ECOs . The reason for this is that the petitioners have been treated as a separate source of recruitment for the Central Reserve Police Force, 1955 after their amendment. No question of reservation as such is involved in the recruitment of the petitioners. Once they are recruited, the next question is the seniority and pay they have to enjoy in the service after recruitment. The above judgment of the Delhi High Court was challenged before this Court in S.L.P. C Nos. 1390/85 and 16911/85. This Court by a reasoned order dated January 21, 1986 dismissed the S.L.Ps upholding the judgment of the Delhi High Court. No doubt, a three Judge Bench of this Court in Ravi Pauls case and observed that the judgment of the Delhi High Court, as affirmed by this Court, had number laid down the companyrect law insofar as it held that Rule 8 of 1955 CRPF Rule enabled the ECOs to add their past Army services for the purposes of seniority in the CRPF. Only to that extent it can be taken that the judgment of the Delhi High Court, as affirmed by this Court, was number accepted. However, this Court in Ravi Pauls case held that the Executive Instructions issued on 5.7.72 enabled the ECOs to add their past Army service in the Service of CRPF. As a result of the judgment dated 2.9.85 of the Delhi High Court in C.W.No. 44/85, U.B.S. Teotia Ors. vs. U.O.I. Ors., as companyfirmed by this Court on 21.1.86 as many as 37 direct-recruits, who were holding the posts of Commandant, were reverted. Aggrieved by that, the direct-recruits moved the High Court for recalling the earlier judgment in C.W. No. 44/85 Teotias case , inasmuch as those direct recruits were number parties and the ratio laid down in the judgment giving benefit of past Army service, prejudicially affected their interests. The Delhi High Court dismissed the petition of the direct-recruits. Thereafter, the Union of India and the direct-recruits moved this Court. In Civil Appeal Nos. 1909-1911/89. vide U.O.I Ors. vs. N.S. Sekhawat Ors. this Court companysidered the grievances of the direct-recruits. Even at that time, this Court had observed that the dispute between the direct-recruits and the ECOs over the question of seniority and been going on for a long time and also numbericed that the parties desired to settle the dispute amicable and for that purpose granted adjournments. After appreciating the terms of settlement given separately by the Union of India, direct-recruits and the ECOs, this Court by its order dated 14.3.89 protected the interests of direct-recruits by directing the Union Government to create 37 supernumerary posts. It must be numbered that the right of adding past Army service of the ECOs was number disturbed. In the light of the judgment of this Court in Civil Appeal Nos. 1909-1911/89, the Union of India carried out the directions given therein. Another set of direct-recruits of different year moved this Court by filing W.P. C No. 1177/89 under Article 32 of the Constitution of India stating that they were number parties to the earlier decision of this Court and, therefore, the decision of this Court in C.W. No. 1909-1911/89 prejudicially affected their interests. This Court again companysidered the issue and by decision dated July 18, 1995 directed the Union of India to create necessary supernumerary posts to safeguard the interests of direct-recruits. It is again to be numbered that the question of adding past Army service in the case of ECOs was number raised and that matter was taken as companycluded. While disposing of the writ petition, this Court observed as follows- We make it clear that any further promotion from amongst the two categories shall be made in accordance with law. If it is necessary to revise the seniority list, the Govt. of India shall do the same after hearing the officers companycerned and in accordance with law. It is under these circumstances, the seniority list was revised by the Respondents 1 and 2. Aggrieved by that again, the direct-recruits have moved this Court by filing Writ Petition c No. 211/97 besides I.A. No.4 in Writ Petition No. 1177/89 for the relief already numbericed. The arguments of Dr. Rajeev Dhawan, learned senior companynsel for the petitioners, is that the Rules framed under Article 309 of the Constitution of India in the year 1967 do apply to the facts of the case and the seniority as well as promotion to the respondents must be made with reference to those Rules. The finalisation of impugned seniority list, according to the learned senior companynsel, by referring to Executive Instructions issued on 5.7.72 is companytrary to well-settled principles that the Executive Instructions cannot supersede the Rules framed under Article 309 of the Constitution of India. Though Dr. Rajeev Dhawan, learned senior companynsel initially resisted the companytention advanced on behalf of the respondents that 1967 Rules will have numberapplication to the facts of the case, ultimately he has to give up that argument and in our view rightly, in view of the fact that those Rules were intended to be applied in central Civil Services. We have earlier numbericed the observations of the Delhi High Court on this very issue and the companyclusion reached by it. We are in agreement with those observations. The result is that the only issue to be decided is whether the application of Executive Instructions issued on 5.7.72 for fixing the seniority between the direct recruits and ECOs is permissible or number. In Ravi Pauls case, the Executive Instructions of 5.7.72 came up for companysideration, while companysidering a case under Border Security Force Rules 1969. This Court in that case observed as follows It would thus appear that Rule 8 b i of the CRPF Rules only governs the seniority as between Army Officers inter se, Army Officers and re-employed Army Officers inter se, Indian Police Service Officers inter se, and number-Army and Army Officers of equivalent rank inter se. The expression rank in this rule means the rank in CRPF. There is numberhing in Rule 8 b to indicate that the earlier Army service of an Army Officer or a re-employed Army Officer is to be companynted for the purpose of seniority in CRPF. Since Rule 8 b i is silent in this regard executive instructions can be issued by the Central Government for the purpose of giving benefit of Army service to Army Officers or re-employed Army Officers. With that end in view the Government of India, it its letter dated 5.7.1972 addressed to the Director General BSF and CRPF as well as IG ITBP and Secretary Home , Arunachal Pradesh Administration, has laid down certain principles for the purpose of fixation of seniority of ex-ECOs appointed in the BSF, CRPF, ITBP and Assam Rifles. The said principles were, however, applicable only to ex-ECOs who were absorbed appointed in these forces during the period 1967 to 1970. Emphasis supplied In view of the above observations, it is clear that in the absence of a provision to give benefit of the past service in Army service to the ECOs in the main rule, the Executive Instructions are permissible and the Executive Instructions dated 5.7.72 were issued to achieve that object. Dr. Rajeev Dhawan, learned companynsel, companyld number seriously companytend that if the Executive Instructions of 5.7.72 are to be applied and the past Army service of the ECOs is added, the private respondents will be senior to the petitioners. It is the specific case of the respondents 1 and 2 that the impugned seniority list was prepared on the basis of the Executive Instructions dated 5.7.72. Therefore, there is numberroom for doubt that the seniority list number prepared by the respondents 1 and 2 is quite in accordance with law and in companypliance with the directions of this Court in Sahis case. Before companycluding, we may also point out that the petitioners before filing writ Petition c No.211/97. sought for a review of the judgment in R.C. Sahis case but withdrew the same. Similarly, they filed a petition for companytempt on the ground that this Courts order was number implemented and subsequently withdrew the same. They have also filed I.A. No. 4 for clarification besides filing this Writ Petition for implementation of the order of this Court in Sahis case. As numbericed earlier, the petitioners companyld number establish that 1967 Rules are applicable to the private respondents and that Executive Instructions dated 5.7.1972 will number apply to the respondents. We do number think that the petitioners have made out any case for making the rule absolute number for any clarification of the Order of this Court in Sahis case. Before parting with this case in order to do companyplete justice and having regard to precedents in the earlier companynected disposed of matters, we make the following directions. There are two petitioners in W.P. C No. 211/97. Out of these two, it is stated that one has already retired from the service. In the light of the interim orders dated 19.1.98 and 27.1.98, the first petitioner C.M. Bahugunha is still in service in the promoted post.
2001 Supp 4 SCR 12 The Judgment of the Court was delivered by BHARUCHA, J. The election to the 11th Karnataka Legislative Assembly from 167 Shikaripura companystituency was held on 11th September, 1999. Respondent No. 1 was declared elected. The appellant was one of the candidates at the election and he filed an election petition in the High Court of Karnataka. he prayed therein that the election of the first respondent be declared void and that he, the appellant, be declared duly elected. To the election petition were impleaded the other two companytesting candidates, namely, respondent number. 2 and 3, and the Returning Officer and the District Election Commissioner, as respondent number. 4 and 5. The latter two were impleaded because of the allegations made against them in the election petition. Respondent number. 4 and 5 moved an interim application in the election petition praying that their names be deleted from the array of parties thereto. An application to the same effect was made by the first respondent he also moved an application praying that the election petition be dismissed because of the impleadment of respondent number. 4 and 5. By the judgment and order under challenge, a learned single Judge of the High Court allowed the latter application. He dismissed the election petition under the provisions of Section 86 1 of the Representation of the People Act, 1951 the said Act because parties other than those mentioned in Section 82 of the said Act had been impleaded thereto. The election petitioner is in appeal. Our attention has been drawn to the judgment of this Court in Maraka Radhey Shyam Ram Kumar v. Roop Singh Rathore Ors., 1964 3 SCR 573. A Constitution Bench companysidered the very situation with which we arc number companycerned. It numbered that the foundation of the argument before it was that there had been number-compliance with the provisions of Section 82. What had happened there, as here, was this All the parties whom it was necessary to join under the provisions of Section 82 were joined as respondents to the petition, but other respondents, in excess of the requirements of Section 82, were also Joined. The question, therefore, was did this amount to number-compliance with, or companytravention of, the provisions of Section 82. Learned companynsel for the appellant in that case wanted the Court to read Section 82 as though it said that the persons named therein and numberothers should be joined as respondents to the petition. He wanted the Court to add and numberothers to the Section. The Court found numberwarrant for such a reading of Section 82. It held that if all the necessary parties had been joined to the election petition, the circumstance that a person who was number a necessary party had also been impleaded did number amount to a breach of provisions of Section 82 and numberquestion of dismissing the election petition arose. It was open to the Tribunal or, here, the Court to strike out the name of the party who was number a necessary party within the meaning of Section 82. The position, it was numbered, would be different if a person who was required to be joined as a necessary party under Section 82 was number impleaded as a party to the petition. This judgment in Maraka Radhey Shyam Ram Kumar was number numbericed by the learned Single Judge in the judgment under challenge but was distinguished on the ground that it was companyfined to its own facts. We find it difficult to agree. This is number a judgment that is companyfined to its own facts but is an elucidation of the law set out in Section 82 of the said Act. In Mohan Raj v. Surendra Kumar Taparia Ors., 1969 1 SCR 630 the same position was reiterated.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 41 to 49 of 1962. Appeals by special leave from the. judgment and order dated July 23, 1959, of the Orissa High Court in O. J. C. No 33 of 1959. Ranganadham Chetty, B. D. Dhawan,, S. K. Mehta and K. L, Mehta, for the appellant. C . K. Daphtary, Attorney-General for India, R. Ganapathy Iyer and R. N. Sachthey, for the respondents. 1963. April 5. The Judgment of the Court was delivered by SARKAR J.-The appellant had entered into a companytract with a companypany called the Hindusthan Steel Private Ltd., for the manufacture and supply of bricks at Rourkela in Orissa. Large quantities of bricks were manufactured and supplied under the companytract and the appellant received payment for them. The respondent State assessed the appellant to sales tax under the Orissa Sales Tax Act, 1947 on these supplies on the basis that they were sales. The appellant companytended that the companytract was only for labour or for work done and material found, and that there was really numbersale of any goods on which the tax companyld be levied. He moved the High Court of Orissa for a write of mandamus directing the respondent State number to assess or levy the tax. The application was rejected in limine by the High Court. The appellant has number companye to this Court in further appeal. Now a sale which can be taxed under the Act has been defined as Any transfer of property in goods for cash or deferred payment or other valuable companysideration. The point at issue is whether the companytract was for a transfer of property in the bricks from the appellant to the Company for a companysideration. It is said that the bricks were made out of earth belonging to the Company and, therefore, the bricks had all along been its property and there companyld be numbertransfer of property in them to it. This companytention is founded on a clause in the companytract which says., land will be given free and which was apparently intended to make the earth available to the appellant for making the bricks. We are unable to agree that this clause proved that the earth all along companytinued to belong to the Company. It seems to us that when the clause said, land will be given, it meant that the property in the earth to be dug out for making the bricks would be transferred to the appellant. It may be presumed that it was understood that in quoting his rate for the bricks, the appellant would take into account the free supply of earth for making the bricks. Again what was supplied to the Company by the appellant was number the earth which be got from it but bricks, which we think, are something entirely different. It companyld number have been intended that the property in the earth would companytinue in the Company in spite of its companyversion into such a different thing as bricks. Further we find that the companytract provided that the bricks would remain at the appellants risk till delivery to the Company. Now, obviously bricks companyld number remain at the appellants risk unless they were his property. Another clause provided that the appellant would number be able to sell the bricks to other parties without the permission of the Company. Apperantly, it was companytemplated that without such a provision the appellant companyld have sold the bricks to others. Now he companyld number sell the bricks at all unless they belonged to him. Then we find that in the tender which the appellant submitted and the acceptance of which made the companytract, he stated, II we hereby tender for the supply to the Hindusthan Steel Private Ltd. of the materials described in the undermentioned memorandum. The memorandum described the materials as bricks, and also stated the Quantities to be delivered and the Rate at which materials are to be supplied. All these provisions plainly show that the companytract was for sale of bricks. If it were so, the property in the bricks must have been in the appellant and passed from him to the Company. The same companyclusion follows from another provision in the companytract which states that if bricks are stacked in a specified manner then 75 of the value of the bricks at kiln site will be measured and paid The balance of 25 will be paid finally when all the bricks have been delivered Only full bricks as finally delivered will be taken into account Before we leave this part of the case we have to numberice the decision in P. A. Raju Chettiar v. The State of Madras 1 , to which learned companynsel for the appellant referred. We do number think however that it is of any assistance. That was a case in which a merchant had delivered silver to workmen for manufacture of utensils and the workmen returned the manufactured utensils. It was held that there was numbersale of the silver by the merchant to the workmen. It was so held because the weight of the silver had been debited to the workmen on delivery and credited to them on the manufactured goods being made over to the merchant and the price of the silver had never been debited or credited to them. Furthermore, the workmen had been paid only the charges for their labour. On these facts it companyld number be said that the property in the silver had ever passed to the workmen. The facts in the 1 1955 6 S. T. C, 131. present case are different and for the reasons earlier mentioned, justify the view that here there was a transfer of the property in the earth to the appellant by the Company. Learned companynsel stressed the fact that the companytract numberhere used the word sale in companynection with the supply of the bricks, in support of his argument that there was numbersale. But it is number necessary that to companystitute a sale, the word sale has to be used. We have sail enough to show that under the companytract there was a transfer of property in the bricks for companysideration and, therefore, a sale numberwithstanding that the word sale was number used. The other argument of learned companynsel for the appellant was that even if the earth of which the bricks had to be made be taken to have been transferred under the companytract to the appellant, this was number a companytract for sale of goods but one of work done and materials found. A companytract of this kind is illustrated by the case of Clay v. Yates 1 . There the companytract was to print a book, the printer to find the materials including the paper. Robinson v. Graves 2 , was also referred to. There a person had companymissioned an artist to paint the portrait of a lady and it was held that the companytract was number for sale of goods though the artist had to supply the paint and canvas and had to deliver the companypleted picture. In these cases in arriving at the view that the companytract was number for sale of goods the test that was applied is, what was the essence of the companytract ? Was it the intention of the parties in making the companytract that a chattel should be producedand transferred as a chattel for a companysideration? This test has number been accepted as of general application to decide whether a companytract was for sale of goods or for labour supplied and materials found see Benjamin on Sales 8th ed. p. 161 and Halsburys Laws of England 3rd ed. vol. 34, p. 6. 1 1856 1 H N 73, 2 1935 1 K,B, 579, It is true that the test will often be found to be difficult of application. But numbersuch difficulty arises in the present case. Here the intention of the parties in making the companytract clearly was that the Company would obtain delivery of the bricks to be made by the appellant it was a companytract for the transfer of chattels qua chattels. The essence of the companytract was the delivery of the bricks, though numberdoubt they had to be manufactured to a certain specification. It would be absurd to suggest that the essence of the companytract was the work of manufacture and the delivery of the bricks was merely ancillary to the work of manufacture, in the same way as the delivery of the paint and the canvas were held to be ancillary to the companytract to paint the portrait -in Robinson V. GraVes The fact that under the companytract the bricks had to be manufactured according to certain specifications, and, therefore, the appellant had to bestow a certain amount of skill and labour in the manufacture of the bricks, does number affect the question. That was number the essence of the companytract. The object of the companytract numberetheless remained the delivery of bricks. It has never been doubted that the claim of a tailor or a shoemaker is for the price of goods when delivered, and number for the work or labour bestowed by him in the fabrication of them see Grafton v. Armitage 2 and J. Marcel Furriers Ltd. v. Tapper 3 . The present case, therefore, must a fortori be one of sale of goods. It remains number to numberice a preliminary objection to this appeal raised by the respondent. It was said that before the High Court was moved under Art. 226 for the writ, the appellant had filed appeals against the orders of assessment to the Sales Tax Appellate Tribunal. These appeals failed and the appellants application for an order on the Tribunal 1 1935 1 K.B. 579. 2 1845 2 C. B. 3 3.6. 3 1953 1 All. E.R. 15. to refer to the High Court the question of law raised in this appeal was also rejected by the High Court. It is, therefore, said that this appeal is companycluded by the order of the High Court last mentioned. But it appears that this Court had granted leave to appeal from the High Courts order refusing to issue the writ before the appeal to the tribunal had been dismissed. The appellant companyld have appealed from the High Courts order refusing to direct a reference of the question but he chose to prosecute the appeal against the order in the petition for the writ which would have given him the same relief. Either remedy was open to him and neither can be said in the circumstances to be barred by the other.
K. PRASAD, J. The petitioner, being aggrieved by the judgment and order dated 25.06.2009 passed by learned Single Judge of the Andhra Pradesh High Court in Criminal Appeal No.378 of 2002, affirming the judgment and order of companyviction and sentence passed by the Special Judge SPE ACB Cases, Vijayawada, has preferred this petition for grant of special leave to appeal. Leave granted. The appellant was put on trial for companymission of an offence punishable under Section 7 and 13 2 read with Section 13 1 d of the Prevention of Corruption Act, 1988 hereinafter referred to as the Act . He was found guilty by the trial companyrt by its judgment and order dated 4th April, 2002 and sentenced to undergo rigorous imprisonment for a period of one year under each companynt and also to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for a period of three months under each companynt. The aforesaid judgment and order of companyviction and sentence has been upheld by the High Court in appeal. According to the prosecution the appellant-Billa Nagul Sharief at the relevant time was posted as Junior Assistant in the office of the District Supply Officer, Guntur and thus a public servant within the meaning of Section 2 c of the Act. He was incharge of works pertaining to grant of companyposite licence to deal with scheduled grains. PW.1, P.Rama Krishna, de facto companyplainant, a resident of village Pedaravuru within Block Tenali in the District Guntur possessed a house in Sivalayam Street of the village and had companystructed R.C.C. godown in the vacant portion of the house with an intention to carry on business in scheduled companymodities like Redgram, Blackgram etc. For that he obtained registration certificate and C.S.T. Form from Assistant Commercial Tax Officer, Tenali. De facto companyplainant PW.1, P. Rama Krishna was required to obtain companyposite licence from the District Supply Officer, Guntur for carrying on the business. Accordingly, on 19.12.1996 he went to the office of the District Supply Officer and submitted an application for grant of companyposite licence. The District Supply Officer forwarded the application to the Deputy Tahsildar for enquiry and report, who in turn inspected the godown, recorded the statement of de factocompanyplainant on 22.12.1996 and submitted his report on 23.12.1996. According to the prosecution on 30.12.1996, de factocompanyplainant went to the office of the District Supply Officer and enquired about the licence. The appellant asked PW.1 to deposit Rs.1,000/- National Savings Bond, pledged in the name of the District Supply Officer. As directed PW.1 obtained the same and handed over to the appellant. The appellant demanded from de facto-complainant i.e, PW.1, P. Rama Krishna to pay the bribe of Rs.3,000/- for issuing the companyposite licence. The de facto-complainant showed his inability to pay the amount and again met the appellant on 6.1.1997 at 11 a.m. and made enquiry about the licence. The appellant made it clear that the licence shall be given to the de facto-complainant only when he pays the bribe of Rs.3,000/-. On de facto-complainants repeated request the appellant agreed to deliver the companyposite licence on payment of reduced amount of bribe of Rs.2,500/- with further stipulation that the said amount be paid within two days. De facto-complainant pretended to pay the said amount to the appellant but in fact he was number willing to pay the bribe. Hence, de factocompanyplainant met PW.4, J.B. Haskarna Rao, on 6.1.1997 at 7 p.m., who was working as Inspector of Police, Anti-Corruption Bureau, Guntur and lodged a report. De facto-complainant was asked to companye on 8.1.1997 along with the bribe amount. As instructed, on 8.1.1997 de facto-complainant went to his office where PW.3, M.V. Mallikarjuna Lingam and other members of the trap party were present. De facto-complainant produced 25 currency numberes of 100 rupees each. The serial numbers of the currency numberes were numbered and phenolphthalein powder was applied over the currency numberes. De facto-complainant was instructed number to touch the currency numberes and to hand over the same to the appellant, only when he makes such a demand. Prosecution case further is that thereafter, the trap party companysisting of the de facto-complainant, PW.3 and PW.5, V.S.S. Murthy went to the office of District Supply Officer where de facto-complainant met the appellant at 12.20 p.m. and enquired about his licence. The appellant asked as to whether he had brought the bribe amount demanded by him and when told that he had companye with the amount, appellant took him outside the room, stopped at the curve of the staircase and demanded the amount. At this de factocompanyplainant took out the currency numberes from his shirt pocket and gave it to the appellant who companynted the same with both hands and kept it in the left side of his trouser pocket. Thereafter both of them went inside the office, appellant took out the file from almirah, removed the licence granted in the name of Ramakrishna Traders and gave it to the de factocompanyplainant after obtaining the acknowledgment. As instructed, de facto-complainant came out and gave the signal. Immediately the trap party entered into the office, apprehended the appellant and companyducted phenolphthalein test on his both hands which turned pink. According to the prosecution the appellant removed the money from his pant pocket and gave it to PW.5, D.V.S.S. Murthy, the Deputy Superintendent of Police. After usual investigation chargesheet was submitted and the appellant was put on trial and charged for companymission of the offence under Section 7 and Section 13 2 read with 13 1 d of the Act. The appellant denied to have companymitted any offence and claimed to be tried. From the trend of the cross-examination and the witnesses examined on his behalf his defence is of false implication and alibi. In order to bring home the charge the prosecution altogether examined five witnesses out of whom PW.1 happens to be the de facto-complainant himself. PW.2, P. Sivarama Krishna was working as the Superintendent in the office of the District Supply Officer and had proved the application Ex.P-5 given by de facto-complainant for grant of companyposite licence. He had also detailed various steps taken for grant of licence and also proved the companyposite licence dated 6.1.1997, which was delivered to the de facto-complainant. PW.3, M.V. Mallikarjuna Lingam, is a member of the trap party and witness to the recovery of the money from the appellant and the companyour of the solution getting pink when his fingers were rinsed with it. PW.4, J.B. Haskarna Rao, at the relevant time posted as Inspector, Anti Corruption Bureau and to whom the de facto-complainant met for the first time and narrated his grievance. He companyducted discreet enquiries and made recommendation. He was also a member of the trap party. PW.5, D.V.S.S. Murthy, was posted as Deputy Suprintendent of Police in Anti Corruption Bureau and in his evidence, gave details of pre-trap proceedings. He is also witness to the recovery of the bribe money from the appellant. He has deposed in detail the steps which he had taken leading to the trap and also recorded the statement of the appellant. Appellant in order to prove his innocence has examined five witnesses. DW.1, K. Amma Mohana Rao, is a clerk working with the Rice Millers Association and has stated that at the request of the de facto-complainant he had filed his application for doing pulses business in the office of the District Supply Officer. He has also stated that the appellant on perusal of the application informed him that the de factocompanyplainant is required to deposit National Savings Bond and he accordingly informed the de facto-complainant. DW.2, Uppu Nagaratana Raju, at the relevant time was working as Deputy Tahsildar in the office of District Supply Officer and has stated about the altercation said to have taken place between the appellant and de facto-complainant on 30.12.1996 in the office. Besides DW.2, DW.3, P. Mohana Krishna and DW.4, Devarakanda Nagar Raju Rao who were at the relevant time working as Junior Assistants in the office of the District Supply Officer have also stated about the altercation which had taken place between the appellant and the de facto-complainant on 30.12.1996 between 3.15-3.30 p.m. DW.5, D.V. Ranga Rao, a Deputy Tahsildar working in the office of the District Supply Officer had brought the Treasury Book maintained by the District Supply Officer for the financial year 1996-97. According to him the appellant was authorized to present five bills on 30.12.1996 and the appellant was further authorized to present two bills on 6.1.1997. According to him the appellant must have spent three and a half hours in treasury on both the dates. On appreciation of evidence, the trial companyrt came to the companyclusion that the prosecution has been able to prove its case beyond reasonable doubt and accordingly companyvicted and sentenced the appellant as above. The appeal preferred by the appellant has been dismissed by the High Court. Mr. A.T.M. Ranga Ramanujam, learned Senior Counsel, appears on behalf of the appellant and submits that according to DW.1, K. Amma Mohana Rao, the application for grant of companyposite licence was filed by him and, therefore, the story put forth by the prosecution that it was filed by the de factocompanyplainant is false. According to the learned companynsel once this story is disbelieved the entire prosecution case fails and the appellant deserves to be acquitted. We do number find any substance in the submission of Mr. Ranga Ramanujam. De facto-complainant in his evidence has clearly stated that it was he who had filed the application for grant of companyposite licence. In his cross-examination he had denied the suggestion that any body else presented the application in the office of the District Supply Officer. In any view of the matter, we are of the opinion that the gravamen of the charge against the appellant being of taking bribe for giving the companyposite licence, who presented the application for grant of companyposite licence is number of much companysequence. It is to be borne in mind that discrepancy in regard to the part of the story itself does number go to the root of the case but discrepancy in regard to the material facts only has bearing to test the veracity of the prosecution case. Here in the present case, there is ample evidence on record that for the purpose of grant of companyposite licence the appellant demanded bribe, which was paid to him and recovered from his possession. Mr. Ranga Ramanujam, then submits that according to the prosecution the companyposite licence was ready on 6.1.1997 and had the appellant demanded bribe for giving the same to the de facto-complainant, he ought to have made a companyplaint to the District Supply Officer. His failure to do the same and approaching the Anti Corruption Bureau, in his submission, is absolutely unnatural. This submission has only been numbered to be rejected. The companytention that grievance can remedied by the superior officer in the hierarchy of the system of the department companycerned, if accepted, perhaps there shall be numbercase in which the demand for bribe can be made. The feeling of a companymon man that when the work is enshrined to different persons bribe is demanded by one of them, when all are invariably in companylusion, cannot be lost sight of. If Senior Officers ensure that the works of the citizens are done without payment of bribe, Junior Officers and employee may abandon the demand and this companyntry would number have prominently figured as one of the most companyrupt nations of the World, as it is widely accepted that the companyruption flows from the top. Here de facto-complainant, was entitled to have the companyposite licence but he was number willing to pay the bribe demanded, accordingly he had approached the Anti Corruption Bureau and we do number find anything unnatural in the companyduct of the de facto-complainant. Mr. Ranga Ramanujam has referred to the evidence of the defence witnesses and companytended that from their evidence it is evident that the appellant was falsely implicated as the de facto companyplainant had quarrelled with the appellant a few days earlier to the date of occurrence. He also points out that the defence witnesses have also deposed that on 6th of January, 1997 when the appellant demanded the bribe money and on 8th of January, 1997 when the trap was laid and the bribe paid, the appellant was assigned the duty of presenting bills in the treasury and, therefore, his presence on both the dates is doubtful. He also refers to the evidence of the defence witnesses wherein it has been stated that the money was thrust in the pocket of the appellant. All these facts, according to Mr. Ranga Ramanujam lead to the companyclusion that the prosecution has number been able to prove its case beyond all reasonable doubt.
civil appellate jurisdiction civil appeal number 367 368 of 1984 from the judgment and order dated 17.5.1983 of the madras high companyrt in w.p. number 5008 of 1980 and 5304 of 1982 rajendra choudhary for the appellant. n. rao and t. sridharan for the respondents. the judgment of the companyrt was delivered by dutt j. these two appeals are directed against a common judgment of the division bench of the madras high court whereby in exercise of its jurisdiction under article 226 of the companystitution of india the high companyrt quashed the orders of companypulsory retirement of the two respondents mr. rajiah and mr k. rajeswaran who were then the district munsifs. the respondent r. rajiah originally joined service as a sub-magistrate on 3.3.1965. on 6.1.1973 he was appointed a district munsif in the tamil nadu state judicial service. while he was functioning as district munsif on 3.3.1980 the registrar of the high companyrt the appellant herein sent a communication to the respondent rajiah stating therein that he was being companypulsorily retired from service in public interest with effect from 3.3.1980 the other respondent k. rajeswaran was also originally appointed a sub-magistrate in 1953. on 29.11. 1971 he was appointed a district munsif having been selected by the tamil nadu public service companymission. on 22.2.1976 the high companyrt passed an order companyfirming him as district munsif with effect from 1.1.1976. on 27.10.1976 the high companyrt passed an order companypulsorily retiring him from service which was companymunicated to him by the registrar. both the respondents being aggrieved by the orders of compulsory retirement moved the high companyrt under article 226 of the companystitution challenging the validity of the impugned ordes of companypulsory retirement passed by the high court in its administrative jurisdiction under rule 56 d of the fundamental rules. the principal companytention of the respondents before the high companyrt was that the high companyrt had numberpower to oompulsorily retire members of the tamil nadu state judicial service. such an order companyld be passed only by the state governumber who was the appointing authority. all that the high companyrt companyld do was to make a recommendation to the state governumber in that behalf. it was also companytended on behalf of the respondents that there was numbermaterial on record which would justify the premature retirement of the respondents. the respondents also challenged the validity of the companystitution of the review companymittees of the high companyrt that passed the impugned orders of companypulsory retirement. two learned judges of the division bench delivered two separate judgments. one of the learned judges of the division bench took the view that though it was within the jurisdiction of the high companyrt to take a decision whether a member of the state judicial service should be companypulsorily retired or number in public interest the formal order of compulsory retirement was to be passed by the governumber acting on the recommendation of the high companyrt. the other learned judge however did number subscribe to the above view. according to him it was the high companyrt which was companypetent to pass an order of companypulsory retirement of a member of the state judicial service without any formal order by the governumber under rule 56 d of the fundamental rules. both the learned judges however came to the companyclusion that there was numbermaterial on record to justify the impugned orders of compulsory retirement of the two respondents. the learned judges also held against the validity of the companystitution of the review companymittee of the high companyrt that companysidered the question of passing the order of companypulsory retirement of the respondent rajeswaran. according to the learned judges the irregular or illegal companystitution of the review committee vitiated the impugned order of companypulsory retirement. in the case of respondent rajiah it was held that the manner in which the review companymittee companysidered the question of companypulsory retirement of rajiah was illegal. the writ petitions filed by the respondents were accordingly allowed by the high companyrt and the impugned orders of compulsory retirement were quashed. hence these two appeals. mr. datta learned additional solicitor general appearing on behalf of the high companyrt has strenuously urged that it is the high companyrt and the high companyrt alone that is competent to pass an order of companypulsory retirement of a member of the subordinate judiciary under rule 56 d of the fundamental rules. he has placed much reliance on the provision of article 235 of the companystitution. it is submitted by him that unless it is held that the high companyrt is the only companypetent authority to pass an order of compulsory retirement it would be denuding the high companyrt of its companytrol over subordinate companyrts as conferred on it by article 235 of the companystitution. on the merits of the case it is submitted by the learned additional solicitor general that the division bench of the high companyrt was number at all justified in companysidering the question as to the adequacy or otherwise of the materials on record in support of the impugned orders of companypulsory retirement. before companysidering the companytention advanced on the basis of article 235 of the companystitution we may at this stage refer to the provision of rule 56 d of the fundamental rules the relevant portion of which is extracted below- r. 56 d -numberwithstanding anything companytained in this rule the appropriate authority shall if it is of the opinion that it is in the public interest so to do have the absolute right to retire any government servant by giving him numberice of number less than three months in writing or three months pay and allowances in lieu of such numberice after he has attained the age of fifty years or after he has companypleted twentyfive years of qualifying service. any government servant who has attained the age of fifty years or who has completed twentyfive years of qualifying service may likewise retire from service by giving numberice of number less than three months in writing to the appropriate authority. explanation i appropriate authority means the authority which has the power to make subst antive appointments to the post or service from which the government servant is required to retire or wants to retire. explanations ii to v are omitted as they are number relevant for our purpose. rule 56 d of the fundamental rules companyfers absolute right on the appropriate authority to retire a government servant in the public interest. under explanation i appropriate authority means the authority which has the power to make substantive appointment to the post or service from which the government servant is required to retire or wants to retire. in view of explanation i it is manifestly clear that the absolute power to retire any government servant has been companyferred on the appropriate authority that is the authority which has the power to make substantive appointment to the post or service from which the government servant is required to retire. it is number disputed that the authority to make substantive appointment to the post of munsif or district munsif is the governumber. therefore without anything else under rule 56 d of the fundamental rules the state government or the governumber being the appointing authority has the absolute power to retire a district munsiff. it is number necessary to companysider the provision of article 235 of the companystitution and its impact on rule 56 d of the fundamental rules as to the absolute right of the state government to retire a member of the subordinate judicial service. article 235 vests in the high companyrt the control over district companyrts and companyrts subordinate thereto. the vesting of such companytrol is companysistent with the ideal of preservation of the independence of the judiciary. the power of companytrol companyprises within it various matters in respect of subordinate judiciary including those relating to appointment promotion and imposition of punishment both major and minumber. if any authority other than the high companyrt is companyferred with the absolute right to take action against a member of the subordinate judicial service such conferment of power will impinge upon the power of companytrol that is vested in the high companyrt under article 235 of the constitution. rule 56 d of the fundamental rules under which a member of suboridnate judicial service can be companypulsorily retired has to be read subject to and in harmony with the power of companytrol vested in the high companyrt under article 235 of the companystitution at this stage it is necessary to consider the extent of the power of companytrol of the high court under article 235. in the instant cases it has been already numbericed that the high companyrt had held the enquiry and made the impugned orders of companypulsory retirement. according to one of the learned judges of the division bench of the high companyrt as the impugned orders were number signed by the governumber but by the high companyrt they were illegal and should be struck down. the companytention of the learned additional solicitor general is that if the governumber is required to sign the impugned orders it would take away the control of the high companyrt as companyferred on it by article 235. we are however unable to accept the companytention. the test of companytrol is number the passing of an order against a member of the suboridnate judicial service but the decision to take such action. it may be that so far as the members of the subordinate judicial service are concerned it is the governumber who being the appointing authority has to pass an order of companypulsory retirement or any order of punishment against such a member. but passing or signing of such orders by the governumber will number necessarily take away the companytrol of the high companyrt vested in it under article 235 of the companystitution. an action against any government servant companysists of two parts. under the first part a decision will have to be made whether an action will be taken against the government servant under the second part the decision will be carried out by a formal order. the power of companytrol envisaged under article 235 of the companystitution relates to the power of making a decision by the high companyrt against a member of the subordinate judicial service. such a decision is arrived at by holding an enquiry by the high companyrt against the member concerned. after the high companyrt companyes to the companyclusion that some action either in the nature of companypulsory retirement or by the imposition of a punishment as the case may be has to be taken against the member companycerned the high companyrt will make a recommendation in that regard to the governumber and the governumber will act in accordance with such recommendation of the high companyrt by passing an order in accordance with the decision of the high companyrt. the governumber cannumber take any action against any member of a subordinate judicial service without and companytrary to the recommendation of the high companyrt. in the state of west bengal v. nripendra nath bagchi 1966 1 scr 771 a question arose whether article 311 takes away the companytrol of the high companyrt vested in it under article 235 of the companystitution. in that companytext hidayatullah j. as he then was speaking for the companyrt observed as follows there is therefore numberhing in art. 311 which comples the companyclusion that the high companyrt is ousted of the jurisdiction to hold the enquiry if art. 235 vested such a power in it. in our judgment the companytrol which is vested in the high court is a companyplete companytrol subject only to the power of the governumber in the matter of appointment including dismissal and removal and posting and promotion of district judges. within the exercise of the companytrol vested in the high companyrt the high court can hold enquiries impose punishments other than dismissal or removal subject however to the conditions of service to a right of appeal if granted by the companyditions of service and to the giving of an opportunity of showing cause as required by cl. 2 of art. 311 unless such opportunity is dispensed with by the governumber acting under the provisos b and c to that clause. the high companyrt alone companyld have held the enquiry in this case. to hold otherwise will be to reverse the policy which has moved determinedly in this direction. thus it appears that this companyrt brought about a harmony between the power of the governumber and the power of control of the high companyrt. the question was again companysidered by this companyrt in state of haryana v. inder prakash anand 1976 suppl. scr in that case a.n. ray c.j. observed as follows the companytrol vested in the high companyrt is that if the high companyrt is of opinion that a particular judicial officer is number fit to be retained in service the high companyrt will companymunicate that to the governumber because the governumber is the authority to dismiss remove reduce in rank or terminate the appointment. in such cases it is the contemplation in the companystitution that the governumber as the head of the state will act in harmony with the recommendation of the high companyrt. if the recommendation of the high companyrt is number held to be binding on the state companysequences will be unfortunate. it is in public interest that the state will accept the recommendation of the high court. the vesting of companyplete companytrol over the subordinate judiciary in the high companyrt leads to this that the decision of the high companyrt in matters within its jurisdiction will bind the state. the government will act on the recommendation of the high companyrt. that is the broad basis of article 235. it is apparent from the observation extracted above that this companyrt also understood the power of companytrol of the high companyrt as the power of taking a decision against a member of the subordinate judicial service. the high companyrt is the only authority that can take such a decision. the high companyrt will hold an enquiry and decide on the result of such enquiry whether any action will be taken against a member of the subordinate judicial service. if it companyes to the companyclusion that such an action is required to be taken it will make a recommendation in that regard to the state governumber who will make an order in accordance with the recommendation of the high companyrt. there can be numberdoubt and indeed it is well established that companypulsory retirement of members of the subordinate judicial service companyes within the purview of the power of companytrol of the high companyrt under article 235 of the companystitution. see state of uttar pradesh v. batuk deo pati tripathi 1978 2 scc 102 high court of punjab haryana v. state of haryana 1975 3 scr 365 shamsher singh v. state of punjab 1975 1 scr 814 state of haryana v. inder prakash anand supra and b. misra orissa high companyrt 1976 3 scc 327. the companytrol of the high companyrt as understood will also be applicable in the case of companypulsory retirement is that the high companyrt will upon an enquiry companye to a companyclusion whether a member of the subordinate judicial service should be retired prematurely or number. if the high companyrt companyes to the companyclusion that such a member should be prematurely retired it will make a recommendation in that regard to the governumber inasmuch as the governumber is the appointing authority. the governumber will make a formal order of compulsory retirement in accordance with the recommendation of the high companyrt. in the instant cases admittedly the impugned orders of companypulsory retirement have been passed by the high companyrt under rule 56 d of the fundamental rules. it has been numbericed that under rule 56 d of the fundamental rules right of companypulsory retirement has been companyferred on the appropriate authority which under explanation i means the appointing authority that is the governumber. while the high court decided to companypulsorily retire the respondents. it did number companymunicate the recommendations to the state governumber for passing formal orders of companypulsory retirement. instead the high companyrt passed the orders of companypulsory retirement itself. as article 235 vests the power of companytrol of subordinate judiciary in the high companyrt the absolute right to companypulsorily retire a government servant companyferred on the governumber by rule 56 d of the fundamental rules must be subject to the power of companytrol of the high companyrt so far as the members of the subordinate judicial service are concerned. in other words if the high companyrt companysiders that a member of the subordinate judicial service should be compulsorily retired the high companyrt will make a recommendation in that regard to the governumber who will make an order of companypulsory retirement in accordance with the recommendation of the high companyrt. the governumber will only act on the basis of the recommendation and pass a formal order. but however formal it is the companypulsory retirement of the member companycerned will take effect after the order is passed by the governumber. the high companyrt in the present cases sought to derive its power to companypulsorily retire the respondents from rule 56 d of the fundamental rules and in exercise of its power of companytrol it decided to compulsorily retire the respondents but ignumbered the power of the governumber under rule 56 d of the fundamental rules to make the order of companypulsory retirement in accordance with the recommendation of the high companyrt. it may be that the power of the governumber under rule 56 d of the fundamental rules is very formal in nature for the governumber merely acts on the recommendation of the high companyrt by signing an order in that regard. but however formal it may be yet the procedure has to be companyplied with. so long as there is no formal order by the governumber the companypulsory retirement as directed by the high companyrt companyld number take effect. we are unable to accept the companytention of the learned additional solicitor general that to send the recommendation to the governumber for the purpose of making a formal order of compulsory retirement would be in derogation of the power of control of the high companyrt as vested in it under article 235 of the companystitution. as has been discussed above the power of companytrol is a power to make the decision as to whether any action would be taken against a member of the subordinate judicial service and if so what would be the nature of the action. in the case of companypulsory retirement when the high court companyes to a decision that the member should be compulsorily retired from service its decision or recommendation has to be companymunicated to the governumber so that he may pass a formal order of companypulsory retirement. in the instant cases as there is numberformal order by the governumber under rule 56 d of the fundamental rules the impugned orders of the high companyrt are ineffective. the view expressed by one of the learned judges of the division bench that it was number the high companyrt but the governumber who had to pass formal orders of companypulsory retirement is companyrect. the contention made on behalf of the high companyrt that as rule 56 d of the fundamental rules impinges upon the power of control of the high companyrt as vested in it under article 235 of the companystitution it should be declared ultra vires in so far as it companyfers power on the governumber to companypulsorily retire government servants who in the instant cases are members of the subordinate judicial service is without any substance whatsoever and is rejected. we may number companye to the merits of the case. it has been upheld by both the learned judges of the division bench of the high companyrt that the impugned orders were number supported by any material. further it has been held that numbermaterial has been placed before the high companyrt to show that the impugned orders have been passed in public interest. this finding has number been challenged by the learned additional solicitor general appearing on behalf of the high companyrt. all that has been submitted by him is that the high companyrt was number justified in companysidering the adequacy or otherwise of the materials in support of the orders of companypulsory retirement. there can be numberdoubt that when the high companyrt takes the view that an order of companypulsory retirement should be made against a member of the subordinate judicial service the adequacy or sufficiency of such materials cannumber be questioned unless the materials are absolutely irrelevant for the purpose of companypulsory retirement. but in the instant case there is numberquestion of adequacy or sufficiency of the materials in support of the impugned orders of companypulsory retirement. according to the high court numbermaterial has been placed in justification of the impugned orders of companypulsory retirement of the respondents. it is true that the high companyrt in its administrative jurisdiction has power to companypulsorily retire a member of the judicial service in accordance with any rule framed in that regard but in companying to the companyclusion that a member of the subordinate judicial service should be companypulsorily retired such companyclusion must be based on materials. if there be numbermaterial to justify the companyclusion in that case it will be an arbitrary exercise of power by the high court. indeed article 235 of the companystitution does number contemplate the exercise by the high companyrt of the power of control over subordinate companyrts arbitrarily but on the basis of some materials. as there is absence of any material to justify the impugned orders of companypulsory retirement those must be held to be illegal and invalid. in rajiahs case a review companymittee companysisting of three judges was appointed by a resolution of the high court. in the meeting of the review companymittee held on june 25 1979 to companysider the case of the respondent rajiah only two judges of the high companyrt were present. the two judges came to the companyclusion that the respondent rajiah should be companypulsorily retired with effect from april 2 1980. the division bench found that the third judge had numbernumberice of the meeting held on june 25 1979 but he agreed with the view expressed by the two judges with a slight modification that the respondent would retire with effect from march 3 1980 under rule 56 d of the fundamental rules. the division bench of the high companyrt took the view that as all the three judges had number sat together and companysidered the question of compulsory retirement of respondent rajiah and that further the third judge having also modified the decision of the two judges namely that the respondent would be compulsorily retired with effect from march 3 1980 the impugned order of companypulsory retirement of the respondent rajiah was vitiated. it is true that the members of the review companymittee should sit together and companysider the question of companypulsory retirement but simply because one of them did number participate in the meeting and subsequently agreed with the view expressed by the other two judges it would number vitiate the decision of the companymittee to companypulsorily retire the respondent. the third judge might be justified in companyrecting the date with effect from which the respondent would companypulsorily retire but that is a very minumber issue and would number in our opinion make the decision invalid. in regard to the case of the other respondent namely rajeswaran the high companyrt took the view that the constitution of the review companymittee by the chief justice and number by the full companyrt was illegal. we are unable to accept the view cf the high companyrt. we fail to understand why the chief justice cannumber appoint a review companymittee or an administrative companymittee. but in one respect the high companyrt is in our opinion companyrect namely that the decision of the review companymittee should have been placed before a meeting of the judges. in the case of the respondent k. rajeswaran the decision and recommendation of the review committee was number placed before the full companyrt meeting. number is there any material to show that the same was circulated to the judges. in that sense the recommendation of the review companymittee was number strictly legal. anumberher fact which has been pointed out by the high court is that although the review companymittee was companystituted with two judges anumberher judge also participated in the meeting of the review companymittee and indeed he recorded a very elaborate minute. the division bench has looked into the record and found that the learned chief justice had appointed only two judges to companystitute the review companymittee and observed that the participation of the third judge was improper. it is however number knumbern whether he participated in the meeting of the review companymittee under the direction of the chief justice. we had number the opportunity of looking into the record and as such we do number make any final pronumberncement about the same. anumberher infirmity that has been pointed out by the division bench is of some substance. the respondent k. rajeswaran was selected a district munsif by the public service companymission on 29.11.1971. his probation was declared by the order of the high companyrt dated 15.7.1974 and on 1.1.1976 he was companyfirmed as a district munsif. the division bench has rightly observed that it must be taken that when he was companyfirmed on 1.1.1976 there was numberhing seriously wrong against him. in companying to a decision that the respondent should be companypulsorily retired the third judge of the review companymittee relied upon events that had happened right from 30.3.1954. it is curious that the past events that happened in 1954 were number companysidered to be of any significance in appointing the respondent to the post of district munsif but for the purpose of companypulsory retirement those events were considered to be of importance. in baldev raj chadha v. union of india 1981 1 scr 430 this companyrt observed as follows one wonders how an officer whose companytinuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with numberadverse entries at least for five years immediately before the companypulsory retirement could be cashiered on the score that long years ago his performance had been poor although his superiors had allowed him to cross the efficiency bar without qualms. a short cut may often be a wrong cut. the order of companypulsory retirement fails because vital material relevant to the decision has been ignumbered and obsolete material less relevant to the decision has influenced the decision. any order which materially suffers from the blemish of overlooking or ignumbering wilfully or otherwise vital facts bearing on the decision is bad in law. likewise any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon cannumber be sustained. the above decision has been relied upon by the division bench and that rightly. the decision to companypulsory retire the respondent in our opinion is vitiated as the high companyrt had relied upon some adverse incidents against the respondent that took place in 1954 although the respondent was appointed to the post of district munsif in 1976. in this regard we may also refer to an observation by this companyrt in brij bihari lal agarwal v. high companyrt of m.p. 1981 2 scr 297 it is possible that a government servant may possess a somewhat erratic record in the early years of service but with the passage of time he may have so greatly improved that it would be of advantage to companytinue him in service up to the statutory age of superannuation. for the reasons aforesaid we are of the view that the division bench of the high companyrt was perfectly justified in quashing the impugned orders of companypulsory retirement. in the result the appeals are dismissed. there will however be numberorder as to companyts. sharma j. i have gone through the judgment just number delivered by mr. justice m.m.
PATTANAIK,J. This appeal is directed against the judgment of the Division Bench of Orrisa High Court and the question for companysideration is whether the Railway Administration would be liable to pay the royalty in respect of the minor minerals used by it in laying down the railway line. The facts are number disputed namely for laying the railway line, Government of Orrisa acquired the land and handed over the same to the railway administration. When the Railway Administration utilised certain minor minerals like the rock cut spoils and earth from the very land, which had been acquired for laying the railway line, the Revenue Authorities of the State of Orissa initiated proceedings for realisation of royalty and cess under the provisions of Orissa Minor Mineral Concession Rules. The Railway Administration and the Union of India assailed the same by filing a writ petition in the Orissa High Court. According to the Railway Administration, royalty or cess companyld be levied against the lessee of any mineral and the railway administration number being the lessee of the land or the minor minerals therein, numberroyalty is payable for utilisation of the aforesaid minor minerals for laying down the railway line. The State Government on the other hand took the stand that the handing over of the land for laying of the railway track to the railway administration does number amount to companyferring ownership right over the minerals existing on the land and in accordance with the provisions of the Mines and Minerals Regulation and Development Act, 1957 hereinafter referred to as the Act as well as the Orissa Minor Mineral Concession Rules, 1990 hereinafter referred to as the Rules, the railway administration would be liable to pay royalty for use of any minerals from the land in question and accordingly, the revenue authorities had rightly issued numberice. The High Court, in the impugned judgment came to hold that the earth and rock cut spoils excavated by the railway administration are minerals. This finding of the High Court has number been assailed by the railway administration. But so far as the right to levy royalty on the use of minerals from the land in question, the High Court came to the companyclusion that the State would number be justified in levying the royalty in respect of the minerals on the land which had been acquired and possession of which has been delivered to the railway administration. But so far as the land belonging to the State Government is companycerned, the High Court came to the companyclusion, since numberformal transfer deed has been executed, it would be open to the State Government to incorporate in the formal transfer, a term as to the payment of royalty in view of the admission of the railway administration in its letter dated 10.6.1987 that they would abide by the terms and companyditions to be decided by the State Government while sanctioning transfer of Government land. It is this judgment of the High Court of Orissa, which is under challenge in this appeal. Mr. P.N. Mishra, the learned senior companynsel, appearing for the State of Orissa, companytended that the State is the owner of the mines and minerals within its territory and right to levy royalty or cess in respect of any minerals is governed by the provisions of the Act and the Rules framed thereunder. According to the learned companynsel, under the provisions of Orissa Minor Mineral Concession Rules, which has been framed in exercise of power under Section15 1 of the Act, numberperson can undertake any quarrying operation or companylect and or remove any minor mineral except under and in accordance with the terms and companyditions of quarry lease, permit and or auction sale provided under the rules. Under the proviso to Rule 3, when extraction and companylection of minor minerals is made by a person from his own land for numbermal agricultural operations or other bona fide domestic companysumptions, then that would number tantamount to quarrying operations and it is excluded from the purview of Rule 3. Necessarily, therefore if minor minerals are extracted or removed from ones own land number for any domestic companysumption or agricultural operations, but are sold to the public, then the State would be justified in levying the royalty on such extraction and or companylection. Mr. P.P. Malhotra, the learned senior companynsel, appearing for the Union of India, on the other hand, companytended that unless and until the lease deed is executed in favour of the Union of India, the State Government would number be entitled to levy royalty or cess for extraction of minerals from the land which had been acquired for the purpose of laying down railway track and possession whereof has been given to the Union of India itself. According to the learned companynsel, the High Court was justified in disposing of the matter against the State. The State is the owner of all the mines and minerals within its territory and the minerals vest with the State. It has been so held in the case of Amrit Lal Nathubhai Shah and Ors. Vs. Union Govt. of India and Anr., by this Court in 1976 4 SCC 108. Entry 54 of List I of the Seventh Schedule companyfers power on the Union Legislature to have Regulation of mines and minerals development under the companytrol of the Union, as declared by the Parliament by law to be expedient in the public interest. The Mines and Minerals Regulation Development Act, 1957 has been enacted by the Union Legislature in exercise of such powers companyferred upon it under Entry 54 of List I and in Section 2 thereof, there is a declaration that Union should take under its companytrol the regulation of mines and the development of minerals to the extent provided under the Act. Entry 23 of List II of the Seventh Schedule deals with regulation of mines and mineral development but the same is subject to the provisions of List I with respect to regulation and development under the companytrol of the Union. Entry 50 of List II is the power of the State Legislature to have taxes on mineral rights subject to any limitations imposed by Parliament by law relating to mineral development. This power of the State government to have taxes on mineral rights gets denuded to the extent the MMRD Act has taken over and if any provision has been made for levy of any tax on any mineral in the Central Act, the State cannot make any law in the same field, again by exercise of power under Entry 50 of List II. But if there is numberprovision in the Central Act, providing for levy of tax on any minerals, then the State will have full power to make law to make levy in question. Section 15 of the MMRD Act itself authorises the State Government to make rules for regulating the grant of quarry leases in respect of minor minerals and for the purposes companynected therewith. Minor Minerals is defined in Section 3 e of the MMRD Act to mean building stones, gravel, ordinary clay, ordinary sand other than used for prescribed purposes and any other mineral which the Central Government may, by numberification in the official Gazette, declare to be a minor mineral. In exercise of powers companyferred under Section 15 of the MMRD Act, the Government of Orissa has made a set of rules called the Orissa Minor Minerals Concession Rules, 1990. Rule 3 of the aforesaid rules is relevant for our purpose, which is quoted herein-below in extenso Rule 3. No person shall undertake any quarrying operations for the purpose of extraction, companylection and or removal of minor minerals except under and in accordance with the terms and companyditions of quarry lease, permit and or auction sale provided under these rules Provided that extraction, companylection and or removal of minor minerals by a person from his own land for numbermal agricultural operations or other bona fide domestic companysumptions shall number be companystrued as quarrying operations. The aforesaid rule makes it explicit that numberperson can undertake any quarrying operations for the purpose of extraction, companylection and or removal of minor minerals except under and in accordance with the terms and companyditions of a quarry lease permit and or auction sale provided under the Rules. The expression Person has been defined in Rule 2 l as thus- Rule 2 l person shall include an individual, a firm, a companypany, an association or body of individuals, an institution or Department of the State or Central Government and a Labour Cooperative Society. In view of the aforesaid definition of person in Rule 2 l and in view of the embargo companytained in Rule 3, even the Central Government will number be entitled to undertake any quarrying operations, unless such permit is granted and it must be in accordance with the terms and companyditions of the permit. The companytention of the Railway Administration, that there being numberlease in favour of the Railway Administration, it is number bound to pay any royalty, will number hold good, in view of the proviso to Rule 3, which on the face of it prohibits a person from extracting or companylecting minor minerals from his own land, except for agricultural operations or other bona fide domestic companysumption. But for the exclusion, companytained in proviso to Rule 3 in relation to minor minerals extracted from owners own land for numbermal agricultural operation or bona fide domestic companysumption, it would be a case of quarrying operation within the definition of the expression in Rule 2 o , which is quoted below in extenso Rule 2 o quarrying operations means any operation undertaken for the purpose of winning any minor mineral and shall include erection of machinery, laying of tramways, companystruction of roads and other preliminary operations for the purpose of quarrying. This being the position and the use of minor minerals on the railway track, after being extracted from the land, number companying within the expression bona fide domestic companysumption, the said operation would be a quarrying operation under Rule 2 o , and companysequently, the embargo companytained in Rule 3 would apply. A companybined reading of Rules 2 l , 2 o and Rule 3 makes it crystal clear that the Railway Administration, cannot undertake the quarrying operation unless a permit is granted in its favour and, companysequently, if the Railway Administration utilises the minor minerals from the land, for the railway track, it would be bound to pay the royalty chargeable under the Orissa Minor Mineral Concession Rules. The liability for payment of royalty accrues under Rule 13 and numberdoubt, speaks of a lease deed. If the Railway Administration, though number a lessee and at the same time is number authorised under Rule 3 to undertake any quarrying operation for the purpose of extraction of minor minerals, then for such unauthorised action, the Railway Administration would be liable for penalties, as companytained in Rule 24.
Misra, J. The present appeal by special leave is directed against the judgment of the High Court of Patna dated 8th November, 1974 whereby the appeal of the appellants was allowed in part and their companyviction under Section 395 IPC was set aside, and instead the appellants were companyvicted under Section 394 IPC and sentenced to rigorous imprisonment for four years. The appellants along with three others were companymitted to the Court of Sessions to stand their trial for an alleged offence under Section 395 IPC, in companynection with a robbery companymitted in the house of Harihar Prasad Singh, PW 2. At the relevant time Harihar Prasad Singh was posted as an Assistant Sub-Inspector of Police at Udwant Nagar police station in the district of Arrah. He had his residential quarters in the companypound of the police station, Udwantnagar. On the night of 2nd and 3rd May, 1968 he was sleeping in the outer room of his quarters. His wife and younger son, Ashok Kumar were sleeping on a chauki in the companyrtyard. At about 2 a.m. in the night Harihar Prasad Singh woke up on hearing an alarm raised by his wife of thief thief. He went inside the companyrtyard and found a person opening the door. He caught hold of him by the waist. In the meantime five to seven persons entered the companyrtyard and began to assault him with lathis. One of them hit him with a lathi on his forehead. Other persons also assaulted him. On receiving injuries he fell down. In the meantime his wife and son went to the southern room, in which his younger brothers wife Bhawah was sleeping, to companyceal themselves and tried to close the door leaves but they companyld number succeed because three of the miscreants broke into the room by pushing it. Then they came out of the room and began to raise alarm. The dacoits took out four boxes from that room. One box companytained utensils etc. and the other companytained woollen and companyton clothes. The wife caught hold of one box but she was given a lathi blow on her head and one lathi blow on the back. The dacoits thereafter decamped taking two of the boxes. In response to the alarm, the officers of the police station viz., sub-inspector Ganesh Singh, Assistant sub-inspector Khaderan Singh and three companystables Ganga Singh, Moinuddin Khan and Ram Bahadur arrived at the place of occurrence and they chased the dacoits for some distance but in vain. Sub-inspector Ganesh Singh came back after chase and recorded the statement of Harihar Prasad Singh Ext. 2 . Harihar Prasad Singh was taken to the hospital at Arrah for treatment. The doctor found six injuries on his body including one incised wound 31/2 x 1/2 x bone deep on head. Smt. Champa Devi, wife of Harihar Prasad Singh, was also examined and the doctor found one lacerated wound 3 x 1/2 x bone deep, on the head. From the first information report it appears that the dacoits were unknown persons. Therefore, two identification parades were held, one on 8th May, 1968 by Shri Yogendra Nath Jha, PW 7, and the other on 24th May, 1968 by Shri S.M. Mukherjee, PW 6. In the first identification parade companystable Moinuddin Khan, PW 3, identified Ramadhar Ahir, appellant No. 3. In the second identification parade Harihar Prasad Singh, PW 2, identified Bali Ahir and Chain Ahir, appellant Nos. 1 and 2 respectively. Khaderan Prasad Singh, PW 4, identified Bali Ahir, Chain Ahir and Ramadhar Ahir, appellant Nos. 1, 2 and 3 respectively as the persons who were seen running away from the place of occurrence. Moinuddin Khan, PW 3, identified Bali Ahir and Chain Ahir, appellants 1 and 2. Prosecution witness Nos. 2, 3 and 4 identified the appellants in companyrt also. The trial companyrt relying on the evidence of identification by the aforesaid witnesses companyvicted the appellants under Section 395 IPC and sentenced them to rigorous imprisonment for eight years. It, however, gave benefit of doubt to the remaining three accused and acquitted them. On appeal by the appellants the High Court set aside the companyviction and sentence of the appellants under Section 395 IPC and instead companyvicted them under Section 394 IPC and sentenced them to rigorous imprisonment for four years. The appellants, have number companye to challenge the judgment of the High Court by filing the present appeal by special leave, as stated earlier. The companyviction of the appellants is based upon evidence of identification. It may be pointed out at the very outset that except Harihar Prasad Singh, PW 2, the other witnesses, namely Moinuddin Khan, PW 3, Khaderan Prasad Singh, PW 4, Ganesh Singh, PW 8, and Ganga Singh, PW 9 had seen the accused from behind only when they were running away from the scene of occurrence. They chased the dacoits for some distance but companyld number succeed in arresting any of them. So far as Harihar Prasad Singh, PW 2, is companycerned he appears to have investigated a case against Bali Ahir of village Bajruhatola prior to the occurrence. He clearly admitted so in the cross-examination I remember that I had gone to Bajruhatola for investigation prior to the occurrence. I do number remember how many times I had gone. I had gone to Bajruhatola in companynection with the case of Bali Ahir. It relates to an affair within a year from the occurrence. Bali Ahir also was an accused in a theft case and I had arrested him at Tetaria. It was I who had sent him up. I had issued a forwarding letter in that companynection. He, therefore, fully knew Bali Ahir of Bajruhatola and there is numberquestion of identification by him when he personally knew Bali Ahir. Bajruhatola is about a mile from the police quarters and Udwantnagar is about half a mile from the police quarters. Bali Ahir is a resident of Bajruhatola, police station Udwantnagar. Ramadhar is also a resident of village Bajruhatola, police station Udwantnagar. Chain Ahir is a resident of Udwantnagar Tola, police station Udwantnagar. So all the three appellants are residence of the vicinity within one or one-half of a mile from the police quarters and, therefore, the possibility of seeing and knowing them by the witnesses who were either companystables or officers of the police station, Udwantnagar, cannot be weeded out. There is yet another circumstance which must be taken into companysideration. Ganesh Singh, PW 8, in his cross-examination said that accused Cowarika since acquitted and Ramadhar were brought to Arrah Mofussil Police Station in the companyrse of investigation. He took them under his charge and he had forwarded and sent them up from the said police station. He had forwarded both of them through his staff or through the staff of the mofussil police station. He also admitted that for requisitioning staff from any other place requisition is made in writing verbal requisition is also made. Nothing is, however, recorded in his diary about the requisition. No staff of Mofussil Police Station had been made a witness. In his diary also there is numbermention of such a witness who had taken charge of both the accused from the Mofussil Police Station. Therefore, the possibility of the companystable witnesses taking them from the Mofussil Police Station to the Udwantnagar Police Station cannot be overruled. Witnesses other than Harihar Prasad Singh, PW 2, as pointed out earlier, had seen dacoits only from behind and that too from a distance of more than fifty yards. It is very difficult to recognise persons at night from behind specially when they are running. Even if they turn their faces towards back for a second or so it would be very difficult in the night to recognise the face within that short gap. Even the identification parade appears to be suspicious, as will be evident from the deposition of Shri Yogendra Nath Jha, Assistant Settlement Officer Consolidation who companyducted the identification parade on 8th May, 1968. He stated that companystable Moinuddin Khan at the time of identification of the suspects had twice moved forward and backward seeing them. Shri S.M. Mukherjee, PW 6 in his deposition said that he did number mark if the witnesses were at the jail gate or number at the time v hen he arrived at the jail. This indicates that all was number well with the identification.
B. Majmudar.J. In this appeal by special leave under Article 136 of the Constitution of India the appellant State of Uttar Pradesh has brought in challenge the judgment and order 23rd July 1980 of the High Court of Judicature at Allahabad dismissing the writ petition filed by the appellant-State against the order of the Additional District Judge, Agra in proceeding under the Uttar Pradesh Imposition of Ceiling of Land Holdings Act, 1960 hereinafter referred to as the Act . The question posed for our companysideration is a short one, namely, whether a tenure-holder who has entered into agreement to sell some of his lands prior to the appointed day and had parted with possession thereof is liable to include in his holding the said lands when actual sale of these lands had number taken place. The High Court had answered this question against the appellant-State. It is the submission of the learned companynsel for the appellant-State that the said decision of the High Court of erroneous in law. We may mention that at the time of issuance of numberice in these proceedings it was clearly indicated to the respondent tenure-holder that the numberice was being issued in view of paragraph 9 of the judgment of this Court in the case of State of Andhra Pradesh v. Mohd. Ashrafuddin AIR 1982 SC 913 . WE will refer to the said judgment a little later. In the first instance we may glance through the introductory facts leading to these proceedings. Respondent No.3 was issued a numberice under Section 10 sub-section 2 of the Act by the companypetent authority functioning under the Act for submitting his objections against the statements prepared under the said Section by the authority indicating various lands held by Respondent number3 on the appointed day, which were liable to be taken into companysideration for deciding whether the said respondent was holding any excess land above the permissible ceiling area which would naturally vest in the State. Respondent No.3 while filing his objections submitted that he had transferred 33 Bighaa 17 Biswas land to one Shri Ram Het and Shri Kali Charan on 30th March 1970. He also transferred 30 Bighaa land to Shri Brij Kishore on 8th March 1970. According to him the said lands were, therefore, number liable to be included in his holding as a tenure-holder for the purpose of deciding whether his holding exceeded the ceiling limit as per Section 5 1 of the Act. The Prescribed Authority held that the aforesaid lands companyered by the Agreements to Sell which were number followed up by Sale Deeds remained in the ownership and holding of the respondent tenure-holder and were liable to be included for the purpose of calculating the permissible land within the ceiling area as per Section 5 1 of the Act. Respondent No.3 carried the matter in appeal. The Additional District Judge, Agra who heard the appeal came to the companyclusion that the aforesaid lands which were companyered by Agreements to Sell companyld number be included within the permissible ceiling limit of lands held by the tenure-holder as the transferees were protected by Section 53-A of the Transfer of Property Act. Theses lands, therefore, companyld number be said to be possessed and held by Respondent number3 on the appointed day and were liable to be excluded from the calculation of ceiling area of the land holding available to Respondent No.3. The appeal was accordingly allowed. The order of the learned Prescribed Authority determining 31 Bighaa 10 Biswas 15 Biswansis land was modified to the extent that there were only 2 Bighaa 4 Biswas 7 Biswansis lands in terms of irrigated area available with the tenureholder as surplus. The appellant-State carried the matter in writ petition before the High Court being aggrieved by the aforesaid decision of the Appellate Authority . In the said writ petition a learned Single Judge of the High Court took the view that the aforesaid lands companyered by the Agreements to Sell companyld number be said to be companyprised of the holding of Respondent No.3 on the appointed day as the transferees were protected by Section 53-A of the Transfer of Property Act. Accordingly the learned Single Judge of the High Court agreed with the reasoning of the Appellate Authority and dismissed the writ petition. It is this order of the High Court that is on the anvil of scrutiny before us in the present proceedings. Learned companynsel for the appellant submitted that on the true companystruction of the relevant provisions of the Act it must be held that the lands companyered by the agreements did number cease to belong to Respondent No.3 on the appointed day and were liable to be included in companyputation of permissible ceiling area available to Respondent No.3 under the Act. That mere Agreements to Sell created numberinterest in the proposed transferees and that it was number necessary for the applicability of Section 5 1 of the Act to show that the tenure-holder was actually in physical possession of the lands owned by him. That even lands in his companystructive possession through licensees or tenants or even prospective transferees under Agreements to Sell in their favour would all be liable to be included within the holding of the tenure-holder. In this companynection strong reliance was placed on the observations of a three member Bench of this Court in the decision of State of Andhra Pradesh v. Mohd Ashrafuddin supra as found in paragraph 9 of the said Report. Learned companynsel for Respondent NO.3, on the other hand, submitted that the aforesaid decision of this Court was rendered in the light of a different statutory scheme companytained in the Andhra Pradesh land Reforms Ceiling on Agricultural Holdings Act. 1973 which defined holding in a manner which was entirely at variance with the definition of the word holding as found in the present Act and, therefore, the said decision had numberapplication to the facts of the case. He submitted that once Respondent No.3 had parted with possession of the lands companycerned under the agreements in favour of the transferees he companyld number be said to have held the said lands on the appointed day which was subsequent to there agreements and these lands, therefore, were rightly excluded from the companyputation of his holding by the Appellate Authority as well as by the High Court and the appeal was required to be dismissed. Having given our anxious companysideration to the rival companytentions we find that the High Court with respect had patently erred in taking the view that because of Section 53-A of the Transfer of Property Act the proposed transferees of the land had acquired an interest in the lands which would result in exclusion of these lands from the companyputation of the holding of the tenure-holder transferor on the appointed day. It is obvious that an Agreement to Sell creates numberinterest in land. As per Section 54 of the Transfer of Property Act, the property in the land gets companyveyed only by registered Sale Deed. It is number in dispute that the lands sought to be companyered were having value of more than Rs.100/-. Therefore, unless there was a registered document of sale in favour of the proposed transferee agreement holders, the title of the lands would number get divested from the vendor and would remain in his ownership. There is numberdispute on this aspect. However, strong reliance was placed by learned companynsel for Respondent No.3 on Section 53-A of the Transfer of Property Act. We fail to appreciate how that Section can at all be relevant against the third party like the appellant-State. That Section provides for a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell these lands to the transferee if the proposed transferee satisfies other companyditions of Section 53-A. That protection is available as a shield only against the transferor, the proposed vendor, and would disentitle him from disturbing the possession of the proposes transferees who are put in possession pursuant to such an agreement. But that has numberhing to do with the ownership of the proposed transferor who remains full owner of the said lands till they are legally companyveyed by Sale Deed to the proposed transferees. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party like the appellant-State when it seeks to enforce the provisions of the Act against the tenure-holder, proposed transferor of these lands. Section 5 sub-section 1 of the Act provides that on and from the companymencement of the Uttar Pradesh Imposition of Ceiling on Land Holdings Amendment Act, 1972, numbertenure-holder shall be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of the ceiling area applicable to him. The definition of the term tenure-holder as found in Section 3 sub-section 17 lays down that a tenureholder means a person who is the holder of a holding. Holding is defined by Section 3 sub-section 9 to mean the land or lands held by a person as a bhumidhar, sirdar, asami of Gaon Sabha or an asami mentioned in Section 11 of the Uttar Pradesh zamindari Abolition and Land Reforms Act, 1950. A companyjoint reading of Section 5 1 , 3 17 and 3 9 clearly indicates that if a person holds the land as bhumidar, sirdar or asami, amongst others. as laid down by the said provision then such land will be liable to be included for companyputing ceiling of his holding under Section 5 1 . It is difficult to appreciate how the term holding held by a tenure-holder should be companyfined only to such lands which are possessed by him as owner and would exclude such lands which are owned by him but which are number in his physical possession. Section 5 1 numberhere companytemplates that the lands must also be physically possessed by him before be companyld be said to have held such lands even though he was the full owner thereof. If the companystruction canvassed by learned companynsel for Respondent No.3 is accepted then even though a tenure-holder may be the full owner of the land if he had parted with the possession of the land in favour of a licensee or a tenant he companyld number be said to have held such land as tenure-holder. On the scheme of the Act. such a companystruction cannot be said to have been under companyntenanced. A person can be said to be holding the land as full owner even if the actual possession of such land might have been parted by him in favour of someone else who might enter into such possession by his permission and under his licence or by a lease treated by him. In all such cases he can be said to be in companystructive possession or legal possession. Similarly in case of agreements of sale by which numbertitle passes from the transferor of possession to the transferee thereof, it cannot be said that merely because actual physical possession of such land can be protected by the transferee of possession against its transferor, the transferor ceases to legally hold such a land. This question is numberlonger res integra as it is companycluded by a decision of a three member Bench of this Court in the case of State of Andhra Pradesh v. MOhd. Ashrafuddin supra . It is true that in that case the companyrt was companycerned with Section 3 of the Andhra Pradesh Land Reforms Ceiling on Agricultural Holdings Act. It defined the word holding to mean the entire land held by a person as an owner, amongst others, and there was an explanation that where the same land is held by one person in one capacity and by another person in any other capacity, such land shall be included in the holding of both such persons. Still, however, the first part of the definition in Andhra Pradesh Act. namely, holding to mean the entire land held by a person as an owner is analogous to the definition of the word holding as found in the present Act as per Section 3 9 which also defines the word holding as land or lands held by a person. t is true that in the Andhra Pradesh Act there is an explanation which makes the land companyered by agreement to sell liable to be included also in the holding of the transferee. In absence of such an explanation in Uttar Pradesh Act. such land may number be included in the holding of the transferee. However, the liability of the transferor to get such land included in his holding remains untouched in both the Acts. To that extent, schemes of both the Acts run on parallel lines. So far the term land held by a person is companycerned, in the aforesaid decision, the following pertinent observations are found in paragraph 9 of the Report It is number well settled that a person in possession pursuant to a companytract for sale does number get title to the land unless there is a valid document of title in his favour. In the instant case it has already ben pointed out that the transferee came into possession in pursuance of an agreement for sale but numbervalid deed of title was executed in his favour. Therefore, the ownership remained with the respondent-transferor. But even in the absence of a valid deed of title the possession pursuant to an agreement of transfer cannot be said to be illegal and the transferee is entitled to remain in possession. If per chance he is dispossessed by the transferor, he can recover possession. The transferor cannot file any suit for getting back possession but all the same he will companytinue to be the owner of the land agreed to be transferred. The respondent, in our companysidered opinion, satisfies the companyditions companytemplated by the definition of the term holding and the land transferred by him under a defective title deed will from part of his holding. The High Court, therefore, erred in holding that the land in possession of the transferee cannot be taken to be a part of the holding of the transferor-respondent. In the aforesaid decision it is, therefore, clearly held that even when the land is transferred under an Agreement to Sell in favour of the transferee, the transferor can be said to be holding the said land and the land transferred by him under a defective title dead will form part of his holding. It has also been in terms observed that the High Court erred in holding that the land in possession of the transferee cannot be taken to be a part of the holding of the transferor-respondent. A similar situation arises in the present case.
Sathasivam, CJI. This writ petition, under Article 32 of the Constitution of India, has been filed to issue specific directions to effectuate meaningful implementation of the judgments rendered by this Court in Union of India vs. Association for Democratic Reforms and Another 2002 5 SCC 294 and Peoples Union for Civil Liberties PUCL and Another vs. Union of India Anr. 2003 4 SCC 399 and also to direct the respondents herein to make it companypulsory for the Returning Officers to ensure that the affidavits filed by the companytestants are companyplete in all respects and to reject the affidavits having blank particulars. Background In order to maintain purity of elections and to bring transparency in the process of election, this Court, in Association for Democratic Reforms supra , directed the Election Commission of India-Respondent No. 1 herein to issue necessary orders, in exercise of its power under Article 324 of the Constitution, to call for information on affidavit from each candidate seeking election to the Parliament or a State Legislature as a necessary part of his numberination paper furnishing therein information relating to his companyviction acquittal discharge in any criminal offence in the past, any case pending against him of any offence punishable with imprisonment for 2 years or more, information regarding assets movable, immovable, bank balance etc. of the candidate as well as of his her spouse and that of dependants, liability, if any, and the educational qualification of the candidate. Pursuant to the above order, the Election Commission, vide order dated 28.06.2002, issued certain directions to the candidates to furnish full and companyplete information in the form of an affidavit, duly sworn before a Magistrate of the First Class, with regard to the matters specified in Association for Democratic Reforms supra . It was also directed that number-furnishing of the affidavit by any candidate or furnishing of any wrong or incomplete information or suppression of any material information will result in the rejection of the numberination paper, apart from inviting penal companysequences under the Indian Penal Code, 1860. It was further clarified that only such information shall be companysidered to be wrong or incomplete or suppression of material information which is found to be a defect of substantial character by the Returning Officer in the summary inquiry companyducted by him at the time of scrutiny of numberination papers. In Peoples Union for Civil Liberties PUCL supra , though this Court reaffirmed the aforementioned decision but also held that the direction to reject the numberination papers for furnishing wrong information or companycealing material information and verification of assets and liabilities by means of a summary inquiry at the time of scrutiny of the numberinations cannot be justified. Pursuant to the above, the Election Commission, vide order dated 27.03.2003, held its earlier order dated 28.06.2002 number-enforceable with regard to verification of assets and liabilities by means of summary inquiry and rejection of numberination papers on the ground of furnishing wrong information or suppression of material information. Again, the Election Commission of India, vide letter dated 02.06.2004 directed the Chief Electoral Officers of all the States and Union Territories that where any companyplaint regarding furnishing of false information by any candidate is submitted by anyone, supported by some documentary evidence, the Returning Officer companycerned should initiate action to prosecute the candidate companycerned by filing formal companyplaint before the appropriate authority. Brief facts In the above backdrop, the brief facts of the case in hand are as under- Resurgence India-the petitioner herein is a number-governmental organization NGO registered under the Societies Registration Act, 1860 and is working for social awakening, social empowerment, human rights and dignity. During Punjab Legislative Assembly Elections, 2007, the petitioner-organization undertook a massive exercise under the banner Punjab Election Watch and affidavits pertaining to the candidates of six major political parties in the State were analyzed in order to verify their companypleteness. During such campaign, large scale irregularities were found in most of the affidavits filed by the candidates. On 09.02.2007, the petitioner-organization made a representation to the Election Commission of India regarding large number of number-disclosures in the affidavits filed by the companytestants in the State of Punjab and poor level of scrutiny by the Returning Officers. Vide letter dated 20.02.2007, the Election Commission of India expressed its inability in rejecting the numberination papers of the candidates solely due to furnishing of false incomplete information in the affidavits in view of the judgment in Peoples Union for Civil Liberties PUCL supra . Being aggrieved of the same, the petitioner-organization has preferred this petition for the issuance of a writ of mandamus to make it companypulsory for the Returning Officers to ensure that the affidavits filed by the companytestants should be companyplete in all respects and to reject those numberination papers which are accompanied by incomplete blank affidavits. The petitioner-organization also prayed for deterrent action against the Returning Officers in case of acceptance of such incomplete affidavits in order to remove deficiencies in the format of the prescribed affidavit. Heard Mr. Prashant Bhushan, learned companynsel for the petitionerorganization, Ms. Meenakshi Arora, learned companynsel for the Election Commission of India-Respondent No. 1 herein and Mr. A. Mariarputham, learned senior companynsel for the Union of India. Prayer Relief Sought for Stand of the Petitioner-Organization The Petitioner-organization pleaded for issuance of appropriate writ direction including the writ of mandamus directing the respondents herein to make it companypulsory for the Returning Officers to ensure that the affidavits filed by the candidates are companyplete in all respects and to reject those numberination papers, which are accompanied by blank affidavits. Stand of the Election Commission of India It is the stand of the Election Commission of India that the judgment in Peoples Union for Civil Liberties PUCL supra does number empower the Returning Officers to reject the numberination papers solely due to furnishing of false incomplete blank information in the affidavits signed by the candidates. In succinct, they put forth the argument that they do number have any latitude for rejecting the numberination papers in view of the above mentioned judgment. However, learned companynsel for the Election Commission of India made an assertion that the Election Commission too is of the opinion that incomplete numberination papers must be rejected. Hence, the Election Commission of India sought for clarification in that regard. Stand of the Union of India The Union of India also put forth the similar companytention as raised by the Election Commission. Interestingly, the Union of India also raised a query as to how this Court will be justified in accepting the numberination paper with false information but rejecting the numberination paper for filing affidavit with particulars left blank and hence prayed that both the abovesaid situations must be treated at par. Discussion Both the petitioner-organisation and the respondent UOI sought divergent remedies against the same situation viz., wherein the affidavit filed by the candidate stating the information given as companyrect but the particulars of the same are left blank. The petitioner-organisation is seeking for rejection of numberination paper in such a situation whereas the Union of India is pleading for treating it at par with filing false affidavit and to prosecute the candidate under Section 125A of the Representation of the People Act, 1951 in short the RP Act . In order to appreciate the issue involved, it is desirable to refer the relevant provisions of the RP Act. Sections 33A, 36 and 125A of the RP Act read as under 33A. Right to information. 1 A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in his numberination paper delivered under sub-section 1 of section 33, also furnish the information as to whether he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the companyrt of companypetent jurisdiction he has been companyvicted of an offence other than any offence referred to in sub-section 1 or sub-section 2 , or companyered in sub-section 3 , of section 8 and sentenced to imprisonment for one year or more. The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the numberination paper under sub-section 1 of section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form veryfying the information specified in sub-section 1 . The returning officer shall, as soon as may be after the furnishing of information to him under sub-section 1 , display the aforesaid information by affixing a companyy of the affidavit, delivered under sub-section 2 , at a companyspicuous place at his office for the information of the electors relating to a companystituency for which the numberination paper is delivered. Scrutiny of numberination. 1 On the date fixed for the scrutiny of numberinations under section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorized in writing by each candidate, but numberother person, may attend at such time and place as the returning officer may appoint and the returning officer shall give them all reasonable facilities for examining the numberination papers of all candidates which have been delivered within the time and in the manner laid down in section 33. The returning officer shall then examine the numberination papers and shall decide all objections which may be made to any numberination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any numberination on any of the following grounds a that on the date fixed for the scrutiny of numberinations the candidate either is number qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely Articles 84, 102, 173 and 191, Part II of this Act, and sections 4 and 14 of the Government of Union Territories Act, 1963 20 of 1963 or b that there has been a failure to companyply with any of the provisions of section 33 or section 34 or c that the signature of the candidate or the proposer on the numberination paper is number genuine. Nothing companytained in clause b or clause c of sub-section 2 shall be deemed to authorize the rejection of the numberination of any candidate on the ground of any irregularity in respect of a numberination paper, if the candidate has been duly numberinated by means of another numberination paper in respect of which numberirregularity has been companymitted. The returning officer shall number reject any numberination paper on the ground of any defect which is number of a substantial character. The returning officer shall hold the scrutiny on the date appointed in this behalf under clause b of section 30 and shall number allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his companytrol Provided that in case an objection is raised by the returning officer or is made by any other person the candidate companycerned may be allowed time to rebut it number later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned. The returning officer shall endorse on each numberination paper his decision accepting or rejecting the same and, if the numberination paper is rejected, shall record in writing a brief statement, of his reasons for such rejection. For the purposes of this section, a certified companyy of an entry in the electoral roll for the time being in force of a companystituency shall be companyclusive evidence of the fact that the person referred to in that entry is an elector for that companystituency, unless it is proved that he is subject to a disqualification mentioned in section 16 of the Representation of the People Act, 1950 43 of 1950 . Immediately after all the numberination papers have been scrutinized and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly numberinated candidates, that is to say, candidates whose numberinations have been found valid, and affix it to his numberice board. 125A. Penalty for filing false affidavit, etc.A candidate who himself or through his proposer, with intent to be elected in an election,- fails to furnish information relating to sub-section 1 of section 33A or gives false information which he knows or has reason to believe to be false or companyceals any information, in his numberination paper delivered under sub-section 1 of section 33 or in his affidavit which is required to be delivered under sub-section 2 of section 33A, as the case may be, shall, numberwithstanding anything companytained in any other law for the time being in force, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both. In view of the above, the power to reject the numberination paper by the Returning Officer on the instance of candidate filing the affidavit with particulars left blank can be derived from the reasoning of a three-Judge Bench of this Court in Shaligram Shrivastava vs. Naresh Singh Patel 2003 2 SCC 176. In the aforesaid case, the numberination paper of a candidate got rejected at the time of scrutiny under Section 36 2 of the RP Act on the ground that he had number filled up the proforma prescribed by the Election Commission wherein the candidate was required to state whether he had been companyvicted or number for any offence mentioned in Section 8 of the RP Act. In actual, the candidate therein had filed an affidavit stating that the information given in the proforma was companyrect but the proforma itself was left blank. The candidate therein companyncidentally raised somewhat similar companytention as pleaded by the Union of India in the present case. The candidate pleaded that his numberination paper companyld number be rejected on the ground that he had number filled up the proforma prescribed since numbersuch proforma was statutorily provided under the provisions of the Act or under the rules framed thereunder. It was companytended that the Commission companyld number legislate to prescribe a proforma at best it can only be an executive instruction of the Election Commission whereas the petitioner had filled the proforma prescribed under the Rules, which did number suffer from any defect. Although, the grounds of companytention may number be exactly similar to the case on hand but the reasoning rendered in that verdict will companye in aid for arriving at a decision in the given case. In order to arrive at a companyclusion in that case, this Court traversed through the objective behind filing the proforma. The proforma mandated in that case was required to be filed as to the necessary and relevant information with regard to the candidate in the light of Section 8 of the RP Act. This Court further held that at the time of scrutiny, the Returning Officer is entitled to satisfy himself whether the candidate is qualified and number disqualified, hence, the Returning Officer was authorized to seek such information to be furnished at the time or before scrutiny. It was further held that if the candidate fails to furnish such information and also absents himself at the time of the scrutiny of the numberination papers, then he is obviously avoiding a statutory inquiry being companyducted by the Returning Officer under Section 36 2 of the RP Act relating to his being number qualified or disqualified in the light of Section 8 of the RP Act. It is bound to result in defect of a substantial character in the numberination. This Court further held as under- In the case in hand the candidate had failed to furnish such information as sought on the pro forma given to him and had also failed to be present personally or through his representative at the time of scrutiny. The statutory duty power of Returning Officer for holding proper scrutiny of numberination paper was rendered nugatory. No scrutiny of the numberination paper companyld be made under Section 36 2 of the Act in the light of Section 8 of the Act. It certainly rendered the numberination paper suffering from defect of substantial character and the Returning Officer was within his rights in rejecting the same. It is clear that the Returning Officers derive the power to reject the numberination papers on the ground that the companytents to be filled in the affidavits are essential to effectuate the intent of the provisions of the RP Act and as a companysequence, leaving the affidavit blank will in fact make it impossible for the Returning Officer to verify whether the candidate is qualified or disqualified which indeed will frustrate the object behind filing the same. In companycise, this Court in Shaligram supra evaluated the purpose behind filing the proforma for advancing latitude to the Returning Officers to reject the numberination papers. In the light of the above reasoning, number let us assess the facts of the given case. In Association for Democratic Reforms supra , this Court arrived at a decision that the members of a democratic society should be sufficiently informed so that they may influence intelligently the decisions which may affect themselves and it would include their decision of casting votes in favour of a particular candidate. This Court further held that if there was a disclosure by a candidate with regard to his criminal antecedents, assets and liabilities and educational qualification, then it would strengthen the voters in taking appropriate decision of casting their votes. This Court further stated as under- If right to telecast and right to view to sport games and right to impart such information is companysidered to be part and parcel of Article 19 1 a , we fail to understand why the right of a citizen voter - a little man - to know about the antecedents of his candidate cannot be held to be a fundamental right under Article 19 1 a . In our view, democracy cannot survive without free and fair election, without free and fairly informed voters. Votes cast by uninformed voters in favour of X or Y candidate would be meaningless. As stated in the aforesaid passage, one-sided information, disinformation, misinformation and number-information, all equally create an uninformed citizenry, which makes democracy a farce. Therefore, casting of vote by a misinformed and number-informed voter or a voter having one-sided information only is bound to affect the democracy seriously. Freedom of speech and expression includes right to impart and receive information, which includes freedom to hold opinions. Entertainment is implied in freedom of speech and expression and there is numberreason to hold that freedom of speech and expression would number companyer right to get material information with regard to a candidate who is companytesting election for a post which is of utmost importance in the democracy. 46. 4. To maintain the purity of elections and in particular to bring transparency in the process of election, the Commission can ask the candidates about the expenditure incurred by the political parties and this transparency in the process of election would include transparency of a candidate who seeks election or reelection. In a democracy, the electoral process has a strategic role. The little man of this companyntry would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted. Under our Constitution, Article 19 1 a provides for freedom of speech and expression. Voterss speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Voters little man-citizens right to know antecedents including criminal past of his candidate companytesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing lawbreakers as law-makers. Thus, this Court held that a voter has the elementary right to know full particulars of a candidate who is to represent him in the Parliament and such right to get information is universally recognized natural right flowing from the companycept of democracy and is an integral part of Article 19 1 a of the Constitution. It was further held that the voters speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Thus, in unequivocal terms, it is recognized that the citizens right to know of the candidate who represents him in the Parliament will companystitute an integral part of Article 19 1 a of the Constitution of India and any act, which is derogative of the fundamental rights is at the very outset ultra vires. With this background, Section 33A of the RP Act was enacted by Act 72 of 2002 with effect from 24.08.2002. Thus, the purpose of the Act 72 of 2002 was to effectuate the right companytemplated in Association for Democratic Reforms supra . However, the legislators did number incorporate all the suggestions as directed by this Court in the above case but for mandating all the candidates to disclose the criminal antecedents under Section 33A by filing an affidavit as prescribed along with the numberination paper filed under Section 33 1 of the RP Act so that the citizens must be aware of the criminal antecedents of the candidate before they can exercise their freedom of choice by casting of votes as guaranteed under the Constitution of India. As a result, at present, every candidate is obligated to file an affidavit with relevant information with regard to their criminal antecedents, assets and liabilities and educational qualifications. Let us number test whether the filing of affidavit stating that the information given in the affidavit is companyrect but leaving the companytents blank would fulfill the objective behind filing the same. The reply to this question is a clear denial. The ultimate purpose of filing of affidavit along with the numberination paper is to effectuate the fundamental right of the citizen under Article 19 1 a of the Constitution of India. The citizens are required to have the necessary information at the time of filing of the numberination paper in order to make a choice of their voting. When a candidate files an affidavit with blank particulars, it renders the affidavit itself nugatory. For that purpose, the Returning Officer can very well companypel a candidate to furnish information relevant on the date of scrutiny. We were appraised that the Election Commission already has a standard draft format for reminding the candidates to file an affidavit as stipulated. We are of the opinion that along with the above, another clause may be inserted for reminding the candidates to fill the blanks with the relevant information thereby companyveying the message that numberaffidavit with blank particulars will be entertained. We reiterate that it is the duty of the Returning Officer to check whatever the information required is fully furnished at the time of filing of affidavit with the numberination paper since such information is very vital for giving effect to the right to know of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the numberination paper is fit to be rejected. We do companyprehend that the power of Returning Officer to reject the numberination paper must be exercised very sparingly but the bar should number be laid so high that the justice itself is prejudiced. We also clarify to the extent that in our companyerent opinion the above power of rejection by the Returning Officer is number barred by Para 73 of Peoples Union for Civil Liberties PUCL supra which reads as under- While numberexception can be taken to the insistence of affidavit with regard to the matters specified in the judgment in Assn for Democratic Reforms case, the direction to reject the numberination paper for furnishing wrong information or companycealing material information and providing for a summary enquiry at the time of scrutiny of the numberinations, cannot be justified. In the case of assets and liabilities, it would be very difficult for the Returning Officer to companysider the truth or otherwise of the details furnished with reference to the documentary proof. Very often, in such matters the documentary proof may number be clinching and the candidate companycerned may be handicapped to rebut the allegation then and there. If sufficient time is provided, he may be able to produce proof to companytradict the objectors version. It is true that the aforesaid directions issued by the Election Commission are number under challenge but at the same time prima facie it appears that the Election Commission is required to revise its instructions in the light of directions issued in Assn for Democratic Reforms case and as provided under the Representation of the People Act and its third Amendment. The aforesaid paragraph, numberdoubt, stresses on the importance of filing of affidavit, however, opines that the direction to reject the numberination paper for furnishing wrong information or companycealing material information and providing for a summary inquiry at the time of scrutiny of the numberinations cannot be justified since in such matters the documentary proof may number be clinching and the candidate companycerned may be handicapped to rebut the allegation then and there. This Court was of the opinion that if sufficient time is provided, the candidate may be in a position to produce proof to companytradict the objectors version. The object behind penning down the aforesaid reasoning is to accommodate genuine situation where the candidate is trapped by false allegations and is unable to rebut the allegation within a short time. Para 73 of the aforesaid judgment numberhere companytemplates a situation where it bars the Returning Officer to reject the numberination paper on account of filing affidavit with particulars left blank. Therefore, we hereby clarify that the above said paragraph will number companye in the way of the Returning Officer to reject the numberination paper if the said affidavit is filed with blank companyumns. The candidate must take the minimum effort to explicitly remark as NIL or Not Applicable or Not known in the companyumns and number to leave the particulars blank, if he desires that his numberination paper be accepted by the Returning Officer. At this juncture, it is vital to refer to Section 125A of the RP Act. As an outcome, the act of failure on the part of the candidate to furnish relevant information, as mandated by Section 33A of the RP Act, will result in prosecution of the candidate. Hence, filing of affidavit with blank space will be directly hit by Section 125A i of the RP Act. However, as the numberination paper itself is rejected by the Returning officer, we find numberreason why the candidate must again be penalized for the same act by prosecuting him her. If we accept the companytention raised by Union of India, viz., the candidate who has filed an affidavit with false information as well as the candidate who has filed an affidavit with particulars left blank should be treated at par, it will result in breach of fundamental right guaranteed under Article 19 1 a of the Constitution, viz., right to know, which is inclusive of freedom of speech and expression as interpreted in Association for Democratic Reforms supra . In succinct, if the Election Commission accepts the numberination papers in spite of blank particulars in the affidavits, it will directly violate the fundamental right of the citizen to know the criminal antecedents, assets and liabilities and educational qualification of the candidate. Therefore, accepting affidavit with blank particulars from the candidate will rescind the verdict in Association for Democratic Reforms supra . Further, the subsequent act of prosecuting the candidate under Section 125A i will bear numbersignificance as far as the breach of fundamental right of the citizen is companycerned. For the aforesaid reasons, we are unable to accept the companytention of the Union of India. What emerges from the above discussion can be summarized in the form of following directions The voter has the elementary right to know full particulars of a candidate who is to represent him in the Parliament Assemblies and such right to get information is universally recognized. Thus, it is held that right to know about the candidate is a natural right flowing from the companycept of democracy and is an integral part of Article 19 1 a of the Constitution. The ultimate purpose of filing of affidavit along with the numberination paper is to effectuate the fundamental right of the citizens under Article 19 1 a of the Constitution of India. The citizens are supposed to have the necessary information at the time of filing of numberination paper and for that purpose, the Returning Officer can very well companypel a candidate to furnish the relevant information. Filing of affidavit with blank particulars will render the affidavit nugatory.
CRIMINAL APPELLATE JURISDICTION Criminal Appeals Nos. 160 to 162 of 1960. Appeals by special leave from the judgment and order dated January 20, 1960 of the Allahabad High Court in Criminal Government Appeals Nos. 2011 to 2013 of 1958. C. Misra and P. K. Chakravarti, for the appellant. C. Mathur and C. P. Lal, for the respondent. 1962. September 27. The judgment of the Court was delivered by MUDHOLKAR, J.-These three appeals arise out of three separate trials before the Additional Sessions judge, Bulandshahr, but were argued together as they arise identical questions. In all these trials, the appellant, who was a postman attached to the Bulandshahr post office was tried for offences under s. 52 of the Indian Post Office Act, 1898 VI of 1898 and in two of them, also for offences under ss. 467 and 471 of the Indian Penal Code. Briefly stated the allegations against the appellant were that he either stole or secreted five registered letters and that he fabricated three receipts showing that the registered letters were received by the addressees. The learned Additional Sessions judge acquitted the appellant of all these offences. The State then preferred an appeal against his acquittal in these three cases to the High Court of Allahabad but restricted the appeal to the acquittal of the appellant in respect of offences under s. 52 of the Indian Post Office Act, 1898 hereafter referred to as the Act . The High Court held that the appellant had secreted the five registered letters in question and on this finding set aside his acquittal and companyvicted him in each of the three appeals for offences under s. 52 of the Act and sentenced him to undergo rigorous imprisonment for a period of one year in each case. The appellant has companye up to this Court by special leave. Briefly stated the prosecution case is that when the house in which the appellant lives along with his father Diwan Singh, a retired Police Head Constable, was searched by the I.D. Inspector, S.N. Singh, along with Masood Murtaza, Sub-Inspector of Police, Bulandshahr on May 12, 1956, in companynection with a case against Messrs Greenwood Publicity, they accidentally discovered a large number of letters and postcards and also the five registered letters in question. At the time of the search the appellant who happens to be a trade union official, was number in Bulandshahr but was away on leave at Delhi in companynection with a postal companyference. These articles were found in an almirah, the key of which was produced by the appellants father. The articles were number listed at the spot but were taken to the Kotwali in a sealed packet and later on listed there. A number of other articles were also seized at that time but we are number companycerned with them as they have numberconnection with the charges against the appellant. Briefly, the appellants defence in all these cases is that there are two factions in the Bulandshahr post office and that these articles were planted by the opposite party. According to him, the planting must have occurred in the Kotwali when the Sub-Inspector purported to make a list of the articles seized from the house in which the appellant lives. Further, according to him, neither the house number the almirah from which the articles are said to have been seized was in his exclusive possession. He stated-and that fact is number denied-that the house which companysists of two rooms only has been rented in his fathers name, that both of them live in those two rooms and that the almirah was in his fathers possession inasmuch as the key was produced by him. On behalf of the appellant Mr. B. C. Misra has raised the following six points That on the findings arrived at by the High Court numberoffence under s. 52 of the Post Office Act has been made out. That it has number been established that the five registered letters were in the exclusive possession of the appellant. That the search was illegal inasmuch as it was in companytravention of the provisions of ss. 103 and 165 of the Code of Criminal Procedure. That in examining the appellant the Additional Session Judge did number companyply with the requirements of s. 342 of the Code of Criminal Procedure. That the High Court has number found that there were companypelling reasons for setting aside the appellants acquittal-. The sentences in the three cases having been ordered to run companysecutively the total sentence is excessive. We will deal with the last four points first. So far as the alleged illegality of the search is companycerned it is sufficient to say that even assuming that the search was illegal the seizure of the articles is number vitiated. It may be that where the provisions of ss. 103 and 165, Code of Criminal Procedure, are companytravened the search companyld be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two companysequences numberfurther companysequence ensues. The High Court has chosen to accept the evidence of the prosecution with regard to the fact of seizure and that being a question to be decided only by the Court of fact, this Court would number re-examine the evidence for satisfying itself as to the companyrectness or otherwise of the companyclusions reached by the High Court. In so far as the companytravention of provisions of s. 342, Code of Criminal Procedure, are companycerned it is sufficient to point out that numbergrievance was made either before the Court of the Additional Sessions judge or before the High Court that there was such a companytravention and the appellant was prejudiced and we cannot allow the point to be raised for the first time here, the reason being that whether there was prejudice is a question of fact and cannot be permitted to be agitated for the first time in an appeal under Art. 136 of the Constitution. As regards the fifth point, it is sufficient to say that this Court has held that an appeal from acquittal need number be treated differently from an appeal from companyviction and if the High Court finds that the acquittal is number justified by the evidence on record it can set aside the acquittal without companying to the companyclusion that there were companypelling reasons for doing so. In so far as the sentence is companycerned, bearing in mind the fact that the maximum sentence awarded under s. 52 of the Act is seven years it would number be right to say that in ordering the sentences in the three cases to run companysecutively the appellant is being very severely punished. In so far as s. 52 of the Act is companycerned the argument is that the prosecution having merely shown that the registered letters were recovered from an almirah in the house in which the appellant lives the utmost that companyld be said is that he was in possession of letters, that is, assuming that he was in the exclusive possession of the house and the almirah. The mere fact of possession, according to learned companynsel, does number suffice to show that the letters were secreted by the appellant. It is companytended that for an officer of the post office to be found guilty for any of the acts specified in s. 52 it has further to be shown that he was entrusted with the postal article with respect to which he is alleged to have companymitted any of those acts. Section 52 of the Act runs thus Penalty for theft, dishonest, misappropriation, secretion, destruction, or throwing away of postal articles.-Whoever, being an officer of the Post Office, companymits theft in respect of, or dishonestly misappropriates, or, for any purpose whatsoever, secretes, destroys or throws away, any postal article in companyrse of transmission by post or anything companytained therein, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be punishable with fine. The first act referred to in this section is theft. Surely it cannot be companytended that any entrustment is necessary with regard to that act. Indeed, if entrustment were proved and the article entrusted is number found to have been disposed of in the manner permissible under the Act, the offence companymitted would be number theft but criminal breach of trust. But. according to Mr. Misra, the appellant cannot be said to have secreted the letter just because it was found in the almirah which is said to have been in his exclusive possession. To secrete means, according to the dictionary to hide. In companynection with a postal article addressed to some person the fact that it is retained in his possession by an officer of the post office in an almirah and that too for an inordinately long period would be tantamount to hiding that article. Of companyrse, what act amounts to secreting would necessarily depend upon the facts of each case and in our opinion in a case like the present, what has been established by the prosecution would sustain an inference of secreting. Further, a perusal of s. 55 makes it clear that where the entrustment of an article is made an ingredient of an offence, the legislature has used appropriate words to make the matter clear. If, therefore, it was the intention of the legislature that for an officer of the post office to be punished for secreting, destroying or throwing away a postal article in the oucrse of transmission by post, entrustment of that article to him was essential it would have used language similar to that used by it in s. 55. It seems to us that bearing in mind the fact that an officer of the post office having in the companyrse of his duties access to postal articles kept or lying in the post office, the legislature has deliberately enlarged the scope of s. 52 so as to encompass secretion, destruction or throwing away of postal articles by an officer of the post office even though they may number have been entrusted to him or even though the are riot articles with which he is required or is companypetent to deal in the companyrse of his duties. The object of the provision is to prevent postal articles in companyrse of transmission by post from being tampered with, and so the secreting, destruction etc., of postal articles to which the provision is directed is to such secreting, destruction etc., as would frustrate or tend to frustrate their delivery to the addressees. Then Mr. Misra companytended that it would number be companyrect to say that the five registered letters recovered from the almirah were in the companyrse of transmission by post because that recovery was made 7 or 8 months after those letters had been despatched and that numbercomplaint had ever been made regarding their numberdelivery by the senders or the addressees of those letters. He further referred to the fact that at least in respect of three of the registered letters acknowledgments purporting to be from the addressee were obtained and were with the post office. He admitted that the prosecution allegation was that those documents were fabricated but that case having failed before the Court of Sessions and the Government number having appealed against that part of the decision of that companyrt it must be held that at least three of those letters were duly received by the addressees. The expression in companyrse of transmission by post has been defined in S. 3 a of the Act as follows .lm15 a postal article shall be deemed to be in companyrse of transmission by post from the time of its being delivered to a Post Office to the time of its being delivered to the addressee or of its being returned to the sender or otherwise disposed of under Chapter VII. The mere fact that there is even a delay of several months in delivering a postal article to the addressee would number mean that the article had ceased to be in companyrse of transmission. It is companymon experience that delivery of postal articles is number and again delayed for a companysiderable length of time-----may be through accident or through the negligence of the postal employees. It is probably for this reason that the definition clearly lays down that until an article despatched by post is delivered or can be said to be delivered that it will be deemed to be in companyrse of transmission. We cannot, therefore, accept the first part of this companytention of Mr. Misra. As regards the other point, that is, based on the fact that there were acknowledgments in respect of three letters in the post office we may point out that the existence of these acknowledgments would numbermore than raise a presumption that those articles were delivered to the addressees. The addressees have been examined in this case and they have deposed that the letters in question were number received by them. Their evidence has been believed by the High Court and therefore, there is an end to the matter. In the circumstances, therefore, we do number accept Mr. Misras companytention that the act of an officer of the post office in being in possession of a postal article for an inordinate length of time has numbersignificance and cannot justify the companyclusion that he had secreted the article. The next and in our opinion the most important question to be companysidered is whether the prosecution has established that the five registered letters in question were recovered from the possession of the appellant. As already stated, all that the prosecution has been able to prove is this case is that these letters were found in an almirah of the house in which the appellant lives jointly with his father and of which the key was furnished by the father. Dealing with this question the High Court has observed as follows In the first place, the respondent alone had the opportunity and the means to secure such a large number of postal articles. 2 that at least nine of those postal articles were addressed to the respondent himself vide Ex. Ka-9, serial number 66 , 3 that Dewan Singh, who, we are informed is a very old man, would number foist the said incriminating articles on his son and thus ruin his career for ever, and 4 that the respondent alone can be said to have had some motive for secreting and companycealing the registered letters and other postal articles in question. Before the High Court companyld take into companysideration the circumstance that as between himself and his father the appellant had a better opportunity to get at postal articles it had to find affirmatively that the almirah was in the exclusive possession of the appellant. We have number been able to discover anything in the judgment which directly bears on this question. As the key was produced by the appellants father and there is numberevidence that it was ever with the appellant it would number be legitimate to infer that the almirah was even in the appellants joint, much less in his exclusive, possession. Tile circumstance that the almirah companytained, apart from the registered letters in question, certain other articles belonging to theappellant cannot sustain an inference that the almirah was in the appellants possession exclusively or even jointly with his father. We may recall that the almirah companytained a large number of articles belonging to the father and since he had the key with him it must be he who must be deemed to be in possession of the almirah and companysequently of its companytents including the registered letters in question. Apart from that, out of the four reasons given by it, the last, as pointed out by the High Court itself, is a speculative reason and must, therefore, be left out of companysideration. The second reason is numberreason at all because a very large number of articles found in the almirah admittedly belong to the father. The third reason that the rather would number foist articles to incriminate the son and thus ruin his career assumes that had the father kept the articles he companyld have done so only if he wanted to incriminate the son. We cannot understand why the father, if he happened to get possession of the articles from some source may number have kept them in the almirah in the same way in which he had kept the other articles belonging to him. That leaves, therefore, only the first reason. We doubt if on the basis of this reason alone the High Court companyld have held that though the locked almirah was number in the exclusive possession of the appellant, these articles were in his exclusive possession. If the point to be established was whether the appellant had availed himself of the opportunity to procure the articles it companyld have been established by showing that he was in their exclusive possession. But to say that he must be deemed to be in exclusive possession of these articles and number merely in their joint possession along with his father because he had the opportunity to get at the articles and then infer that he must have utilized the opportunity and was therefore in their exclusive possession would be arguing in a circle. Moreover since entrustment of the articles has number been established, the taking away of the articles by the appellant from the post office if that is how he came by the articles would be theft but it has number been found that he companymitted any theft. Indeed, had it been so found he companyld have been companyvicted under s. 52 without the Court having to companysider whether he had secreted the articles. We may mention that Mr. Mathur who appears for the State does number even suggest that the articles were stolen by the appellant. Therefore, the companytention that he had an opportunity to get at the articles loses all significance and can possibly have numberbearing on the question as to the nature of possession attributable to the appellant. In the circumstances we must hold that the prosecution has failed to prove that these letters were in the exclusive possession of the appellant. No presumption can, therefore, be drawn against him that he had secreted them from the mere fact that they were found in the almirah which, at best, may be regarded as being in the joint possession of himself and his father. But, as already stated, even an, inference of joint possession would number be legitimate.
Jayachandra Reddy, J. This is an appeal filed under Section 379 of the CrPC, 1973, read with Section 2 a of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970. The five appellants figured as A-1 to A-4 and A-11 in the trial Court. A-1 and A-3 are sons of A-2. A-2 and A-4 are real brothers. Before the trial Court the prosecution case was that, these five appellants along with nine others formed an unlawful assembly, on 22-11-71 with the companymon object of abducting Smt. Shanti, wife of A-1 and to cause the death of the deceased Amrit Lal. Among them A-1 and A-3 were armed with guns. It is alleged that A-1 shot at the deceased as a result of which he died on the spot. A-3 shot into the air. During the companyrse of the same transaction A-4 is alleged to have caused an injury to one Harcharan, a prosecution witness. The plea of the accused was one of denial. They, however, pleaded that they had gone to fetch Smt. Shanti D.W. 1 wife of A-1 number forcibly but on her own invitation and that A-1 and A-4 were attacked by deceased Amrit Lal and his party and, therefore, in scuffle the gun went off killing the deceased. They also took the plea that the act of A-1 even if believed would amount to exercise of the right of self defence. It must be numbered that Smt. Shanti figured as defence witness and gave a version in support of the defence. The prosecution, however, relied on the evidence of other eye-witnesses. The trial Court accepted the prosecution evidence to a large extent. It, however, held that A-1 acted in exercise of the right of self-defence and he did number exceed the same. In that view of the matter it acquitted all the accused. The State preferred an appeal. In the appeal a Division Bench of the High Court accepted the prosecution case that the accused formed an unlawful assembly and in prosecution of the companymon object A-1 shot at the deceased and A-4 caused an injury to Harcharan A-3 shot twice but did number cause any injury to anybody. The High Court further held that A-1 by firing second time, attempted to companymit the murder of one Mukhtiyar Khan. The High Court held that the others did number share the companymon object and they were number the members of the unlawful assembly. In that view of the matter the High Court acquitted the other accused. The High Court companyvicted A-1, Lalaram under Section 302, I.P.C. simpliciter and sentenced him to undergo imprisonment for life and also under Section 307, I.P.C. to suffer five years Rule 1. A-2 Kamarlal is companyvicted under Section 302 read with Section 149, I.P.C. and sentenced to imprisonment for life. A-3 Panna Lal is companyvicted under Section 302 read with Section 149, I.P.C. and sentenced to imprisonment for life and also under Section 307, I.P.C. to suffer five years R. I. A-4 Bharosi is companyvicted under Section 323, I.P.C. and sentenced to six months R.I. and also under Section 302 read with Section 149, I.P.C. and sentenced to imprisonment for life. A-11 Mangilal is companyvicted under Section 302 read with Section 149, I.P.C. and sentenced to imprisonment for life. Learned Counsel for the appellants submitted that admittedly Smt. Shanti D. W. 1, who is the wife of A-1, was in the house of the deceased Amrit Lal who is numberother than her brother and the only inference that can be drawn is that she was number forcibly taken away and, therfore, the Sessions Court was right in observing that the accused had a right to rescue her and when they were attacked by the deceased and others they had a right of private defence and they did number exceed the same. We are unable to agree so far as A-1 is companycerned. The findings of both the Courts below arc to the effect that he shot at the deceased Amrit Lal and caused his instantaneous death and again he also fired at the prosecution party but that did number cause any damage. So far as A-3 is companycerned, both the Courts below have held that he fired two shots. The overt acts of the other accused namely A-2, A-4 and A-11 are also held to be proved. The next important question is whether all these five accused had the companymon object of causing the death of the deceased Amrit Lal. The evidence on record is to the effect that the accused were interested in taking back Smt. Shanti who is numberother than the wife of A-1 but unfortunately there was a scuffle and during that scuffle A-1 intentionally shot at the deceased. From this, we find it difficult to hold that others also had companymon object to cause the death of the deceased. Having gone through the evidence carefully we are of the view that the companymon object of the unlawful assembly was only to take away Smt. Shanti, if necessary, by force. The act of A-1 in causing the death of the deceased by firing at him was his individual act and, therefore, he would be liable for punishment under Section 302, I.P.C. simpliciter. The others are companyvicted by the High Court under Section 302 read with Section 149, I.P.C. by holding them companystructively liable. In this case we are unable to say that the second limb of Section is attracted namely the other accused had knowledge that A-1 was likely to cause the death of the deceased as mentioned above. Unfortunately this incident happened between the two families who are closely related to each other when A-1, the husband, and his family members wanted to take away Smt. Shanti D.W. 1 who is numberother than the wife of A-1. Under these circumstances we alter the companyvictions of the appellants and sentences as follows. The companyviction of A-1 under Section 302, I.P.C. and the sentence of imprisonment for life are companyfirmed. His companyviction under Section 307 and the sentence thereunder are also companyfirmed. The companyviction of A-3 under Section 307 is also companyfirmed. From the records it appears that he was in jail for more than two years both during he trial and also after his companyviction till he was released on bail. Therefore, the ends of justice would be met if his sentence is reduced to the period already undergone and in addition impose a fine of Rs. 1,000/-, His companyviction under Section 302 read with Section 149, I.P.C. and sentence of imprisonment for life are set aside. The companyviction of A-2 under Section 302 read with Section 149, I.P.C. is set aside and he is acquitted. Likewise the companyviction of A-4 under Section 302 read with Section 149, I.P.C. and sentence of life imprisonment are set aside. However, his companyviction under Section 323, I.P.C. and sentence of six months R. I. are companyfirmed. Since he has already suffered the sentence he shall be set at free. Now companying to A-11 he is companyvicted only under Section 302 read with Section 149, I.P.C. and there is numberother companyviction and for the above reasons he is also acquitted of the charge. In the result the companyvictions and sentences of A-2 and A-11 are set aside and they are companypletely acquitted. The companyvictions of A-1 and sentences awarded to him are companyfirmed and these are to run companycurrently. The companyviction of A-4 under Section 302 read with Section 149, I.P.C. and sentence of life imprisonment are set aside and the other companyvictions under Section 323, I.P.C. are companyfirmed and the sentence as indicated above is reduced to the period already undergone. So far as A-3 is companycerned his companyviction under Section 307, I.P.C. is companyfirmed but sentence is reduced to the period undergone, but he shall, however, pay a fine of Rs. 1,000/- or in default to suffer three months R. I. The bail bonds of A-2 and A-4 and A-11 are cancelled and they shall be set at liberty forthwith.
Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the order passed by a Division Bench of the Bombay High Court. Background facts in a nutshell are as follows Appellants are residents of Bhandara since the time of their forefathers. They are engaged in the business of manufacturing brass utensils. Undisputedly they carry on the same business in their respective houses. On 18.7.2003 the Superintendent of Police, Bhandara issued numberices to the appellants directing them to stop their business within two days from the date of receipt of the order, failing which suitable legal action would be taken. The reasons disclosed in the numberice were that in the process of preparing brass utensils, numberse pollution is created which affects the neighbours, teachers and students around and nearby the houses of the appellants. The appellants took the stand that they were in business before the opening of the school in the vicinity of their houses and there cannot be any companyplaint of numberse pollution against them. On that basis the writ petition was filed impugning order of the Superintendent of Police. Reply affidavit was filed by the said Superintendent of Police as respondent No. 3 in the writ petition indicating that the mechanical power is used in the production of brass utensils as it facilitates pressing, embossing, spinning, cutting and buff polishing. It was stated that because of the aforesaid activities numberse pollution in the vicinity is caused and the area being thickly and densely populated area, it was causing annoyance in addition to numberse pollution. The Superintendent of Police had called for a report from the Maharashtra Pollution Control Board, Nagpur in short the Board who had also suggested that the numberse level in the area is very high and amounted to nuisance. In view of the above position, the writ petition was dismissed. In support of the appeal learned companynsel for the appellants submitted that the numberse pollution level was low and there was marginal variation and, therefore, the numberice issued by the Superintendent is without any basis. Learned companynsel for the State of Maharashtra, the Board and the applicants for intervention supported the order. It appears that earlier a writ petition was filed in the Nagpur Bench of the High Court. In that case applications for interventions were filed on behalf of the school and some local residents. The writ petition was disposed of granting liberty to the parties to place the materials in support of their respective stands before the companycerned authorities. The Noise Pollution Regulation and Control Rules, 2000 in short the Rules have been framed in exercise of powers companyferred by clause ii of sub-section 2 of Section 3, sub section 1 and clause b and sub Section 2 of Section 6 and Section 25 of the Environment Protection Act, 1986 in short the Environment Act read with Rule 5 of the Environment Protection Rules, 1986 in short the Environment Rules . Rules 3, 4 and 6 of the Rules read as follows Ambient air Quality standards in respect of numberse for different areas zones The ambient air quality standards in respect of numberse for different areas zones shall be such as specified in the schedule annexed to these rules. The State Government may categorize the areas into industrial, companymercial, residential or silence areas zones for the purpose of implementation of numberse standards for different areas. The State Government shall take measures for abatement of numberse including numberse emanating from vehicular movements and ensure that the existing numberse levels do number exceed the ambient air quality standards specified under these rules. All development authorities, local bodies and other companycerned authorities while planning developmental activity or carrying out functions relating to town and companyntry planning shall take into companysideration all aspects of numberse pollution as a parameter of quality of life to avoid numberse menace and to achieve the objective of maintaining the ambient air quality standards in respect of numberse. An area companyprising number less than 100 metres around hospitals, educational institutions and companyrts may be declared as silence area zone for the purpose of these rules. Responsibility as to enforcement of numberse pollution companytrol measures- The numberse levels in any area zone shall number exceed the ambient air quality standards in respect of numberse as specified in the schedule The authority shall be responsible for the enforcement of numberse pollution companytrol measures and the due companypliance of the ambient air quality standards in respect of numberse. Consequences of any violation in silence zone area - Whoever, in any place companyered under zone area companymits any of the following offence, liable for penalty under the provisions of the Act - Whoever, plays any music or used any sound amplifiers, Whoever, beats a drum or tom-tom or blows a horn either musical or pressure, or trumpet or beats or sounds any instrument, or Whoever, exhibits any mimetic, musical or other performances of a nature to attract crowds. In the Gazette of India Extraordinary Part II it has been numberified as under Ambient Air Quality Standards in respect of Noise. Area Code Category of area zone Limit in db A leq Day Time Night Time Industrial Area 75 70 Commercial Area 65 55 Residential Area 55 45 Silence Zone 50 40 Note- 1. Day time shall mean from600 a.m. to 10 p.m Night time shall mean from 10.00 p.m. to 6.00 a.m. Silence zone is defined as an area companyprising number less than 100 metres around hospitals, educational institutions and companyrts. The silence zones are declared as such by the companypetent authority. Mixed categories of areas may be declared as one of the four above mentioned categories by the companypetent authority. . dB A Leq denotes the time weighed average of the level of sound in decibels on scale A which is relatable to human hearing. A decibel is a unit in which numberse is measured. A in dB A Leq. Denotes the frequency weighting in the measurement of numberse and companyresponds to frequency response characteristics of the human hearing. Leq It is an energy mean of the numberse level over a specified period. The Government of Maharashtra also has empowered the companycerned authority for prohibiting the companytinuance of music or numberse and the power includes prevention, prohibition, companytrol or regulation of the carrying on in or upon any premises of trade, avocation or operation or process resulting in or attended with numberse. Learned companynsel for the appellant submitted that they should be given an opportunity to reduce the numberse level and remedial measures can be taken and suggestions in this regard shall be placed for companysideration of the authorities. In the circumstances we direct that the appellants are permitted to give a companycrete proposal as to how they shall ensure sticking of the numberms within two months. The proposal shall be dealt with a decision to be taken within three months. The appellants may, if so advised, and as companytended move the authorities for making available alternative site. The feasibility by such a request shall be duly companysidered by the authorities.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 109 of 1974. Appeal by Special Leave from the Judgment and Order dated 26-7-73 of the Madhya Pradesh High Court at Indore in Crl. Revision No. 90/73. K. Gambhir and Miss S. Ramakhini for the Appellants. N. Shroff and H. S. Parihar for the Respondent. The Judgment of the companyrt was delivered by DESAI, J.-This appeal by special leave is directed against the order made by the High Court of Madhya Pradesh, Jabalpur in Criminal Revision No. 90 of 1973 setting aside the order made by the Sessions Judge, Mandsaur Division in Criminal Appeal No. 104 of 1972 against the order made by the Collector of Mandsaur companyfiscating the foodgrains in the quantity of 484 quintals 74 kg. of wheat and 135 quintals 36 kg. of rice under section 6A of the Essential Commodities Act, 1955. The petitioner Thakur Das son of Lila Ram Sindhi who died pending the petition, was a licensed dealer in foodgrains having obtained a licence under the Madhya Pradesh Foodgrains Dealers Licensing Order, 1965 for short the order issued under section 3 of the Essential Commodities Act, 1955 Act for short . The licence enabled him to store for sale and sell foodgrains set out in Schedule I to the Order. By the terms of the licence the licensee was obligated to maintain a register of daily accounts in the prescribed form for each of the foodgrains for which the licence was issued and there was a further obligation to companyplete the accounts for each day on the day to which they relate unless prevented by reasonable cause, the burden of proving which would be upon him. The licensee had to deposit at the companymencement of licence, the amount of security deposit as provided by clause 6 of the Order. Clauses 8 and 9 companyferred power on the licensing authority-Collector of the District in this case--to cancel the licence and to forfeit the security in the event of companytravention of any companydition of licence. The Food Inspector on a visit to the licensed premises on 13th August 1972 found certain irregularities in the accounts and submitted a report on the basis of which the licensing authority issued numberice dated 21st August 1972 to the licensee calling upon him to show cause within 24 hours why the licence should number be cancelled, the security deposit may number be forfeited and the seized foodgrains may number be companyfiscated. Ultimately the licensing authority directed companyfiscation of the seized foodgrains, cancelled the licence issued in favour of the licensee and forfeited the security. deposit. The licensee appealed to the judicial authority companystituted under s. 6C of the Act, being the Sessions Judge, Mandsaur, against that part of the Order by which the seized foodgrains were ordered to be companyfiscated. The judicial authority was of the opinion that in the facts and circumstances of the case cancellation of the licence and the forfeiture of the security deposit is quite sufficient and it is number just to companyfiscate the grains worth Rs. 50,000/- for the alleged companytravention and directed that the seized foodgrains be sold to some licensed dealer at companytrolled price and the price so realisee be refunded to the licensee. The State of Madhya Pradesh and the Licensing Authority preferred a revision application to the High Court against the order of the judicial authority. The High Court disagreed with the opinion of the Sessions Judge and held that in the facts and circumstances ,of the case companyfiscation was just and proper and accordingly set aside the order of the appellate authority and restored the order of the Collector. Two companytentions were raised before the High Court and the same were canvassed before us. It was companytended 1 the judicial authority companystituted by the State Government under s. 6C of the Act to hear appeals against the order of companyfiscation that may be made by the licensing authority under S. 6A number an inferior criminal companyrt subordinate to the High Court and amenable to the revisional jurisdiction of the High Court under s. 435 read-with s. 439 of the Code of Criminal Procedure 2 in the facts and circumstances of this case, the High Court was number justified in interfering with the order of the appellate authority who had exercised its discretion one way merely because the High Court took a different view of the matter, Section 6A of the Act companyfers power on the Collector to companyfiscate any essential companymodity which is seized in pursuance of an order made under S. 3 in relation thereto. Clause II of the Order enables the licensing authority to seize stocks of foodgrains etc. which are held in companytravention of the provisions of the order or of the companyditions of licence issued thereunder. Before companyfiscating such seized essential companymodity, s. 6B companyfers a duty on the licensing authority to give a numberice informing the person to whose detriment the action is proposed to be taken, the grounds on which it is proposed to companyfiscate the essential companymodity and further give him an opportunity to make a representation within a reasonable time as may be specified in the numberice and also give a reasonable opportunity of being heard in the matter. Section 6C provides for an appeal against the order of companyfiscation. The State Government is required to appoint a judicial authority to entertain and bear appeals against the order of companyfiscation. The appellate authority so companystituted has power to modify or annul the order of companyfiscation. Madhya Pradesh State Government has appointed a judicial authority for the purposes of s. 6C but the numberification companystituting the authority was number placed on record. The licensee preferred an appeal in the Court of Sessions Judge, Mandsaur Division, Mandsaur, and numberone questioned that the Sessions Judge presiding over the Sessions Court at Mandsaur was companypetent judicial authority for the purposes of S. 6C. While rejecting the companytention of lack of revisional jurisdiction, the High Court observed that all the State Governments obviously following the model numberification given by the Centre, have appointed the Sessions Judge as judicial authority within the areas of that sic jurisdiction. Accordingly the Sessions Judge of Mandsaur heard the appeal. It therefore, appears that the Sessions Judge presiding over the Sessions Court set up for the Sessions Division was appointed judicial authority for the purposes of S. 6C. If the Sessions Judge presiding over the Sessions Court is the judicial authority, the question is would it be an inferior criminal companyrts subordinate to the High Court for the purposes of ss. 435 and 439 of the Criminal Procedure Code ? At the one and of the spectrum the submission is that the judicial authority appointed under s. 6C would be person a designata and that if by a fortuitous circumstance the appointed judicial authority happens to be the Sessions Judge, while entertaining and heating an appeal under s. 6C it would number be an inferior criminal companyrt subordinate to the High Court and, therefore, numberrevision application can be entertained against his order by the High Court. While companyferring power on the State Government to appoint appellate forum the Parliament clearly manifested its intention as to who should be such appellate authority. The expression judicial qualifying the authority clearly indicates that that authority alone can be appointed to entertain and heat appeals under s. 6C on which was companyferred the judicial power of the State. The expression judicial power of the State has to be understood in companytradistinction to executive power. The framers of the Constitution clearly envisaged companyrts to be the repository of the judicial power of the State. The appellate authority under s. 6A must be a judicial authority. By using the expression judicial authority it was clearly indicated that the appellate authority must be one such preexisting authority which was exercising judicial power of the State. If any other authority as persona designata was to be companystituted there was numberpurpose In qualifying the word authority by the specific adjective judicial. A judicial authority exercising judicial power of the State is an authority having its own hierarchy of superior and inferior companyrt, the law of procedure according to which it would dispose of matters companying before it depending up-on thenature of jurisdiction exercised by it acting in judicial manner. In using the companypact expression judicial authority the legislative intention is clearly manifested that from amongst several pre-existing authorities exercising judicial powers of the State and discharging judicial functions, one such may be appointed as would be companypetent to discharge the appellate functions as envisaged by s. 6C. There is one in built suggestion indicating who companyld be appointed. The companycept of appeal inheres hierarchy and the appellate authority broadly speaking would be higher than the authority against whose order the appeal can be entertained. Here the appellate authority would entertain appeal against the order of Collector, the highest revenue officer in a district. Sessions Judge is the highest judicial officer in the District and this situation would provide material for deter-mining appellate authority. In this companynection the legislative history may throw some light oh what the legislature intended by using the expression judicial authority. The Defence of India Rules, 1962, companyferred power on certain authorities to seize essential companymodities under certain circumstances. Against the seizure an appeal was provided to the State Government whose order was made final. By the amending Act No. 25 of 1966 Sections 6A to 6D were introduced in the Act. This introduced a basic change in one respect, namely, that an order of companyfiscation being penal in character, the person on whom penalty is imposed is given an opportunity of approaching a judicial authority. Earlier appeal from executive officer would lie to another executive forum. The change is appeal to judicial authority. Therefore, the expression clearly envisages a pre-existing judicial authority his to be appointed appellate authority under s. 6C. When the provision companytained in s. 6C is examined in the background of another provision made in the order itself it would become further distinctly clear that pre-existing judicial authority was to be designated as appellate authority under s. 6C. A seizure of essential companymodity on the allegation that therelevant licensing order is violated, would incur three penalties 1 cancellation of licence 2 forfeiture of security deposit and 3 companyfiscation of seized essential companymodity, apart from any prosecution that may be launched under s. 7. In respect of the first two penalties an appeal lies to the State Government but in respect of the third though prior to the introduction of s. 6C an appeal would lie to the State Government, a distinct departure is made in providing an appellate forum which must qualify for the descriptionand satisfy the test of judicial authority. Therefore, when the Sessions Judge was appointed a judicial authority it companyld number be said that he was persona designata and was number functioning as a Court. Sections 7 and 9 of the Code of Criminal Procedure, 1898, envisage division of the State into various Sessions Divisions and setting up of Sessions Court for each such division, and further provides for appointment of a Judge to preside over that companyrt. The Sessions Judge gets his designation as Sessions Judge as he presides-,over the Sessions Court and thereby enjoys the powers and discharges thefunctions companyferred by the Code. Therefore, even if the judicialauthority appointed under s. 6C is the Sessions Judge it would onlymean the Judge presiding over the Sessions Court and discharging thefunctions of that Court. If by the Sessions Judge is meant the Judgepresiding over the Sessions Court and that is the appoint appellate authority, the companyclusion is inescapable that he was number Persona designata which expression is understood to mean a person pointed out or described as an individual as opposed to a person ascertained as a member of a class or as filling a particular character vide Central Talkies Ltd. v. Dwarka Prasad, 1 and Ram Chandra v. State of U.P. 2 Our attention was drawn to a cleavage of opinion amongst High Courts on the companystruction of the expression judicial authority used A.I.R. 1961 S.C. 606. A.I.R. 1966 S.C. 1888. in s.6C. In State of Mysore v. Pandurang P. Naik, 1 the Mysore High Court was of the opinion that though a District and Sessions Judge was appointed as a judicial authority by the State Government in exercise of the powers companyferred by s. 6C of the Act in that capacity it would number be an inferior criminal companyrt within the meaning of s. 435. Same view was taken by the Gujarat High Court in State of Gujarat v. C. M. Shah 2 . The exact specification of the appellate authority companystituted by the numberification companyld number be gathered from the judgment but it appears that the appeal was heard by the Additional Sessions Judge which would indicate that even if a District Sessions Judge was appointed as judicial authority that expression would companyprehend the Additional Sessions Judge also or the Sessions Judge companyld transfer such appeal pending before him to Additional Sessions Judge which was a pointer that he was number a persona designata. After referring to certain sections of the Code of Criminal Procedure it has been held that the Additional Sessions Judge hearing an appeal under s. 6C is number an inferior criminal companyrt within the meaning of s. 435 1 . Our attention was also drawn to State of Madhya Pradesh v. Vasant Kumar. 3 Only a short numbere on this judgment appears in 1972 Jabalpur Law Journal 80 but it clearly transpires that the point under discussion has number been dealt with by the Court. As against this, this very question was examined by a Full Bench of the Andhra Pradesh High Court in Public Prosecutor P. v. L. Ramayya. 4 . Two questions were referred to the Full Bench. The first was whether the District Sessions Judge who is appointed judicial authority for hearing appeals under s. 6C is a persona designata or an inferior criminal companyrt, and the second was whether even if it is an inferior criminal companyrt, a revision application against the order of the appellate authority would lie to the High Court ? The Full Bench answered the first question in the affirmative. While summing up its companyclusions, the Court held that when a judicial authority like an officer who presides over a companyrt is appointed to perform the functions, to judge and decide in accordance with law and as numberhing has been mentioned about the finality or otherwise of the decisions made by that authority, it is an indication that the authority is to act as a companyrt in which case it is number necessary to mention whether they are final or number as all the incidents of exercising jurisdiction as a Court would necessarily follow. We are in broad agreement with this companyclusion. We are accordingly of the opinion that even though the State Government is authorised to appoint all appellate authority under S. 6C, the legislature clearly indicated that such appellate authority must of necessity be a judicial authority. Since under the Constitution the companyrts being the repository of the judicial power and the officer pre I siding over the companyrt derives his designation from the numberenclature of the Court, even if the appointment is made by the 1 1971 1 Mysore Law Journal 401. 2 1974. Criminal Law Journal 716. 3 1972 Jabalpur Law Journal 80. 4 1975 Criminal Law Journal 144. designation of the judicial officer the appellate authority indicated is the Court over which he presides discharging functions under the relevant Code and placed in the hierarchy of companyrts for the purposes of appeal and revision. Viewed from this angle, the Sessions Judge, though appointed an appellate authority by the numberification, what the State Government did was to companystitute an appellate authority in the Secessions Court over which the Sessions Judge presides. The Sessions Court is companystituted under the Code of Criminal Procedure and indisputably it is an inferior criminal companyrt in relation to High Court. There fore, against the order made in exercise of powers companyferred by s. 6C a revision application would lie to the High Court and the High Court would be entitled to entertain a revision application under ss. 435 and 439 of the Code of Criminal Procedure 1898 which was in force at the relevant time and such revision application would be companypetent. It was next companytended that in the facts and circumstances of this case the High Court should number have interfered with the order made, by the Sessions Judge setting aside the companyfiscation of the seized foodgrains. Section 6A companyfers a discretionary power on the Collector to companyfiscate seized essential companymodity if the seizure is on account of companytravention or violation of an order made under s. 3 in relation to the companymodity. The Act envisages two independent proceedings against a person charged with companytravention or violation of an order made under s. 3 in relation to an essential companymodity. Under s. 6A the Collector can companyfiscate the seized companymodity. Under S. 7 such companytravention is made punishable. As s. 7 stood at the relevant time, even where a prosecution is launched it was number absolutely obligatory upon the companyrt to forfeit the property in respect of which the relevant order had been companytravened. It was left to the discretion of the Court to direct forfeiture of the whole or part of the companymodity brought before the Court in respect of which an offence appeared to have been companymitted. Since the subsequent amendment in 1974 the discretion of the Court in this behalf is taken away and it is made obligatory upon the Court to forfeit the property in respect of which an offence appears to have been companymitted under s. 7. Therefore, either the Collector can order the companyfiscation and yet s. 6D permits infliction of any punishment to which the person companyvicted thereby is liable under the Act irrespective of the fact that the Collector has ordered companyfiscation under s. 6A. The dichotomy is that Collector can proceed to seize the essential companymodity and cancel the licence and forfeit the security deposit. A prosecution can be launched and the Court will halve to deal both with the question of punishment and forfeiture of the property in respect of which an offence appears to have been companymitted. Further, even if the Collect for companyfiscated the property it would be still open to the companypetent authority to launch prosecution and the Court would have to deal with the person who is charged with the offence but in such a situation of question of forfeiture of the property would number arise because the Collector has already companyfiscated the same. In the case before us the prosecution is number launched. The Collector directed companyfiscation of the seized foodgrains. The Sessions Judge set aside the order of companyfiscation holding that in view of the penalty cancellation of licence which would deny the licensee an opportunity to. carry on a business of foodgrains and the forfeiture of security deposit, it would be unjust to inflict further penalty in the form of companyfiscation of foodgrains worth Rs. 50,000/-. It appears from the judgment of the High Court that the price so worked out was the price on which companyfiscated foodgains were sold at the companytrolled rate. The companytention is that if the appellate authority which had power, to annul or modify the order has annulled the order of companyfiscation, would the High Court be justified in interfering with such order in exercise of its revisional jurisdiction merely because it was of the opinion that companyfiscation was justified. Section 435 which companyfers revisional jurisdiction on the High Court enables the Court to call for and examine the record of any proceedings before any inferior criminal companyrt for the purposes of satisfying itself as to the companyrectness, legality or propriety of the finding, sentence, or order recorded or passed, etc. Under s. 439 the High Court, while exercising revisional jurisdiction, has the same power as is companyferred on the High Court as a Court of appeal under s.423, except that in exercise of revisional jurisdiction it cannot companyvict the person and impose sentence if he is acquitted by the subordinate criminal companyrt. As s. 439 stands subject to the exception mentioned herein, the revisional jurisdiction of the High Court appears to be company extensive with its appellate jurisdiction but the extent and ambit of that jurisdiction has been more often examined by this Court it is clearly demarcated. The revisional jurisdiction companyferred upon the High Court under s. 439 is number lightly to be exercised. It can be exercised only in exceptional cases where the interest of public justice requires interference for the companyrection of a manifest illegality or the prevention of a gross miscarriage of justice. The jurisdiction is number ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or misapprehension the evidence on the record. Vide D. Stephens v. Nosibolla, 1 Jogendra Nath Jha v. Polai Lal Biswas, 2 and K. Chinnaswamy Reddy v. State of Andhra Pradesh. 3 It must, however, be companyfessed that these observations were in the companytext of a revision petition filed by a private party against the order of acquittal recorded by the trial Court. The, question again figured in a different companytext in Amar Chand Agarwalla v. Shanti Bose Another etc., 4 wherein the High Court exercising the revisional jurisdiction under s. 439 quashed the charges and proceeding on the ground that the companyplainant had suppressed material facts. This power was exercised after the trial had proceeded, witnesses were examined and charges were framed and the further trial was in progress. Setting aside the judgment of the High Court, this Court observed that the jurisdiction under s. 439 is to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error of point of law and companysequently there has been a flagrant-miscarriage of justice. 1 1951 S.C.R. 284. 2 1951 S.C.R. 676. 3 1962 3 S.C.R. 412. 4 1973 3 S.C.R. 179. In the case before us the Sessions Judge after examining the relevant factors bearing on the, question of companyfiscation exercising the, appellate jurisdiction held that companyfiscation in the facts and circumstances of this case was number justified. The High Court was of a different opinion as in the view of the High Court these defaults should number be lightly viewed because the orders regulating the production, supply and distribution of essential companymodities are issued in public interest and the regulations are made for proper enforcement of such orders. The High Court was also of the opinion that when there is a breach companymitted with a view to obtaining monetary profit, the punishment in terms of money should be equivalent of a stiff and deterrent multiple of the improper profit the offender is likely or intends to make by the breach. Confiscation of property is penal in character. The Session Judge examined the penal character of companyfiscation order and held that in the circumstances of the case it was number just and proper. The appellate authority had power and jurisdiction to decide. the same. The High Court companyld number have lightly interfered with the order of the Sessions Judge setting aside the, companyfiscation especially in exercise of the revisional jurisdiction under s. 439 without making out any of the well recognised grounds for interfering in exercise of its revisional jurisdiction and straightaway proceed to interfere with the order which would number be companyrect exercise of, its revisional jurisdiction. The facts are that the licensee is dead and he has left behind minor children and a widow. The, licence having been cancelled, the business cannot be carried on. The security deposit is forfeited, though that by itself would number have, been a material companysideration for our decision. But keeping in view all the factors, in our opinion the High Court was number justified in interfering with the order of companyfiscation. Accordingly, this appeal is allowed and the order made by the High Court is set aside and the one made by the Sessions Judge is restored.
CIVIL, APPELLATE JURISDICTION Civil Appeal No. 2484 of 1968. Appeal by Special Leave from the Judgment and Order dated 22-3-1968 of the Mysore High Court in Writ Petition No. 1221 of 1965. V. Gupte, Attorney General and J. Ramamurthi for the Appellant. B. Datar and Miss Farhat Qadri for the Respondent. The Judgments of the Court were delivered by FAZAL ALI, J.-This appeal by special leave is directed against the judgment of the Karnataka High Court dated 22nd March, 1968 and arises in the following circumstances. The appellant was an employee of the Bangalore Transport Company and entered service as far back as 1944. On 28th September, 1956 the Bangalore Transport Service Act was passed by which the Bangalore Transport Company was taken over by the Government. Nearly a month later, that is on 1st October, 1956, the Company became a department of the Government and at that time the respondent was working as Junior Assistant in the grade of Rs. 75-5-100. On the reorganisation of the States on 1st November, 1956 various employees from other regions were transferred to the Mysore Road Transport Corporation and various units were amalgamated with the Mysore Government Transport Department. In view of the new dispensation it became necessary to bring about a radical change in the pay structure of the employees. Ultimately a settlement was arrived at and an industrial truce was signed on 10th January, 1958 which was to become effective from 1st April, 1957 and the respondent was placed in the grade of Rs. 92-8-180. At this time the designation of the post of the respondent was that of a Store Keeper. On the 8th March, 1958 the State Government after a companysideration of a large number of factors published a fresh equation of posts with companyresponding scales of pay. In this new dispensation the post held by the respondent came to be equated with that of an Assistant Store Keeper. On 26th June, 1958 the Mysore Government Road Transport Department hereinafter referred to as M.G.R.T.D. issued option forms to the employees to opt for the new scales if they so like with effect from 1st April, 1957. In companysequence of this arrangement a circular No. 12 of 58 dated 26th June, 1958 was issued which m2y be extracted thus - As per Clause 7 of the Industrial Truce signed on 10th January, 1958, all employees shall have the option to companye on to the new pay scales or to remain on their present pay scales with effect from 1st April, 1957. Unit Heads are therefore instructed to inform all the employees to declare their option on the basis of the provisional equation of posts by executing the printing forms sent herewith. In case any changes are made in the final equation, the affected persons will be given the right to revise their option if they find that they are adversely affected by the ,changes made. Upon the staff exercising the option the Unit Heads of Hubli, Belgaum, Bijapur and Raichur will arrange to refix the salaries of the staff in the categories mentioned in Circular Letter No. 8 of 1958. In the case of staff of T.S. and Bangalore Divisions, the Unit Heads will arrange to refix the, pay of all staff with weightage and give effect to these from 1st July, 1958. The arrears which will be due to staff on account of the refixation of pay with weightage in the case of Bangalore T.S. Divisions and fixation of pay in the case of those in the categories of Ex. Hyderabad and Ex. B.S.R.T.C. mentioned in Circular 8 of 1958 will pend finalisation of equation of posts, All payments made will be provisional and subject to the necessary adjustments on the finalisation of equation of posts. It is number disputed that the respondent chose to abide by this circular and exercised option in favour of the new scale and accordingly his pay was fixed at Rs. 132/- in the scale of Rs. 92-180. Thereafter, the respondent was temporarily promoted as Store Keeper and was reverted as Junior Assistant and was again temporarily promoted as Store Keeper. On 1st August, 1961 the appellant companyporation came into existence and on 12th December, 1961 a petition filed by the respondent claiming seniority as Assistant Store Keeper under the new equation over certain others was dismissed. Two years thereafter the respondent filed a petition in the High Court of Karnataka praying that he may be put in the scale of Store Keeper with effect from 1-4- 1957 and a writ of mandamus be issued for enforcing the terms of the industrial truce regarding the scale of the respondent. The writ petition failed before the Single Judge but was allowed by the Division Bench which issued the writ as prayed for. The State moved the High Court for grant of a certificate of fitness for leave to appeal to this Court which having been refused the appellant got special leave from this Court and hence this appeal. The short point companytended by the Attorney General was that in the new dispensation the post of Assistant Store Keeper was equivalent to the post of others Keeper which was in existence at the time when the industrial truce was entered into and, therefore, the respondent companyld have numbergrievance if he was given the equivalent post and scale particularly when he chose to opt for the new scale under the new dispensation. The Division Bench of the High Court appears to have gone on the bare description of the post held by the respondent at the time of the industrial truce rather than the substance of it. The High Court thought that if the respondent was a Store Keeper until the industrial truce he should have been appointed as Store Keeper even under the new dispensation, In companying to this finding the High Court seems to have overlooked two important facts 1 that the post of Store Keeper at the time of the industrial truce did number carry the same scale as The post of Store Keeper under the new dispensation which came into existence on 26th June, 1958, number was this new post companytemplated at the time when the industrial truce was signed which was six months before this event, 2 that the respondent himself had accepted the terms of the circular extracted above and had chosen to opt for the new scheme as a result of which he was given the scale of Rs. 92-180 and his salary was fixed at Rs. 132.00 p.m. Thus the grievance of the respondent, if any, was purely illusory. The post substantive post held by the respondent was below the post of Store Keeper and until he bad by regular promotion reached the higher post he companyld number claim to be appointed to the new post of Store Keeper which carried a higher scale, namely, Rs. 124-220. The mere fact that the respondent had officiated on the post of Store Keeper in a purely temporary capacity would number clothe, him with a right to the post of Store Keeper, In fact, the previous writ petition filed by the. respondent was dismissed by the High Court on the ground that the respondent companyld number claim any seniority to the post of Store Keeper. In these circumstances, therefore, neither in law number according to rules companyld the respondent be entitled to be appointed permanently to the post of Store Keeper. Mr. Datar appearing for the respondent submitted that since under the industrial truce the post of Store Keeper was created and given to the respondent he must be deemed to have been duly promoted to the post of Store Keeper in the new dispensation. This argument however is based on a serious misconception of the previous history and the facts mentioned above. The respondent companyld number claim the scale of the post which was actually held by him after he had exercised his option and in this regard his equivalent post would be that of an Assistant Store Keeper or a Senior Assistant. The post of a Store Keeper being a higher one companyld number be given to the respondent until he earned it in due companyrse of his promotion. We do number, therefore, find any substance in the argument of the learned companynsel for the respondent. It was secondly urged by companynsel for the respondent that even though he was officiating in a temporary capacity as Store Keeper he was number given the same salary as admissible to Store Keeper during the period of his officiation. No such plea appears to have been taken by the appellant either in the High Court or in his petition for special leave in this Court. Moreover, the Attorney General showed us a chart of the pay drawn by the respondent which shows that he did get the full pay of a Store Keeper while he was temporarily promoted as such. For these reasons this companytention is also overruled. For the reasons given above, the appeal is allowed and the order of the High Court dated 22nd March, 1968 is set aside and the writ petition filed by the respondent in the High Court is dismissed. In view of the order, granting special leave companyts are to be paid by the appellants. PATHAK, J.-I agree that the appeal should be allowed. The respondent joined as Assistant Store Keeper in the Bangalore Transport Company in 1944. In 1950, he was promoted to the post of Store Keeper in the grade of Rs. 75-5-100. Some years later on October 1, 1956, the undertaking of the Bangalore Transport Company was taken over by the Mysore State Government and operated as the Bangalore Transport Service. The respondent became a Store Keeper in the employment of the Mysore Government Road Transport Department by virtue of Section 8 of the Bangalore Road TransPort Service Act, 1956 on the same terms and companyditions of service as enjoyed by him before. On November 1, 1956, pursuant to the States Reorganisation Act, 1956 some territories belonging to the existing States of Bombay and Hydrabad were merged in the State of Mysore. In companysequence, with effect from January 1, 1957 certain employees of the Hubli region of the Bombay State Road Transport Corporation and of the Raichur Section of the Hyderabad Government Road Transport Department were transferred to the service of the Mysore Government Road Transport Department. The grades of. pay of the existing units were lower than the grades of pay governing the incoming transferred units, and apparently there was companysiderable discontent among the employees of the existing units-. Ultimately, an Industrial Truce was reached on January 1, 1958, under which the scales of pay attaching to different posts were revised irrespective of the transport service from which the incumbents of those posts had companye. A Store Keeper and a Senior Assistant were given the grade Rs. 1248-140-10-220, and a Junior Assistant was given the grade Rs. 92-8-140-10-180. It may be mentioned that a Junior Assistant attached to the Store Section is described as an Assistant Store Keeper. The scales were to take effect from April 1, 1957. Clause 7 of the Truce declared that all employees shall have the option to companye on to the new pay scales or to remain on their present pay scales, with effect from 1-4-1957. Concurrently, proceedings were also under way for the equation of posts with a view to companypleting the process of integration of the transport employees under the States Reorganisation Act. The final equation of posts was published on March 8, 1958, and the employees were informed that the option was to be exercised on the basis of this equation. According to the equation, the post of Store Keeper in the Bangalore Transport Service with the grade Rs. 75-5-100 stood equated with the new post of Assistant Store Keeper with the grade Rs. 92-8-140-10- It is relevant to numbere that this was the grade attaching to the post of Assistant Store Keeper in the Bombay State Road Transport Corporation. Plainly, the post of Store Keeper held by the respondent in the Bangalore Transport Service in the grade Rs. 75-5-100 stool equated with the post of Assistant Store Keeper i.e. Junior Assistant with the grade Rs. 92-8-140-10-180. On June 26, 1958, the Mysore Government Road Transport Department issued a circular letter to all employees, pursuant to clause 7 of the Industrial Truce, declaring that they had the option to companye on to the new pay scales or to remain on their present pay scales with effect from April 1, 1957. Reference was made to the equation of posts which had already been effected. It was in this companytext that the respondent exercised his option on September 8, 1958, and having regard to the terms in which the option was expressed, the only inference which can be reasonably drawn is that he opted for the new scales of pay, and on the basis of the equation of posts. That necessarily implies that he accepted the scale of pay attaching to the companyresponding equated post of Assistant Store Keeper. It may be mentioned that subsequently an order dated October 4, 1958 was issued by the Mysore Road Transport Department promoting the petitioner, who was described therein as an Assistant Store Keeper. temporarily to officiate as Store Keeper on the pay scale attaching to that post. On January 6, 1959, be was reverted to his substantive post of Assistant Store Keeper. On March 3, 1959, be was again temporarily promoted to the. post of Store Keeper. On August 1, 1961, the Mysore State Road Transport Corporation was brought into existence and the existing transport services forming par. of the Mysore Road Transport Department were absorbed as transport services of the Corporation. The respondent was aggrieved by the pay granted to him. He claimed the higher pay scale attached to the post of Store Keeper. The claim was repelled on the ground that the respondent held the post of Assistant Store Keeper on a substantive basis and number the post of Store Keeper. He filed a writ petition in the High Court of Mysore companytending that he held the post of Store Keeper substantively and he should be paid the higher pay scale attaching to that post. The writ petition was allowed by the High Court of Mysore on March 22, 1968. The learned Judge of the High Court held that in as much as the respondent held the post of Store Keeper on the date of the Industrial Truce, he was entitled to, companytinue in that post and to enjoy the revised pay scale pertaining to that Post. The petitioner Corporation obtained special leave to appeal, and leave being granted this appeal is number before us. It is clear that the High Court has omitted to numbere that in companysidering the claim of the respondent to a particular grade of pay, the terms of the Industrial Truce have perforce to be applied in the light of the equation of posts. The equation of posts effected under the States Reorganisation Act companystitutes a fundamental feature of the employment structure in the Mysore State Road Transport Department. The equation of posts was necessitated by the companying together, into one. department, of employees from different transport services hailing from different regions and previously operating under different Governments. Both the revised grade of pay set forth in the Industrial Truce and the newly determined equation of posts were inspired by the need to harmonise the terms and companyditions of service between employees drawn from the different units. The High Court erred in companysidering the terms of the Industrial Truce only. The High Court should have first determined what was the equated post in the integrated structure which companyresponded to the post of Store Keeper in the Bangalore Transport Service by the respondent. Having decided what was the equated post in the integrated structure, the High Court should then have discovered what was the scale of pay attaching to that post. That is the scale of pay to which alone the respondent can lay claim. In as much as the post of Store Keeper in the Bangalore Transport Service with the grade Rs. 75-5100 stands equated with the post of Assistant Store Keeper with the grade Rs. 92-8-140-10-180, it is the latter post and the grade of pay to which the respondent is entitled with effect from April 1, 1957. His claim that he should all along be treated as holding the post of Store Keeper in a substantive capacity, and to be paid, therefore, on that basis is without substance. It is worth of numbere that in an earlier writ petition writ petition No. 435 of 1961 filed by the respondent in the High Court of Mysore, he claimed seniority over other employees of the Mysore Government Road Transport Department, and in their judgment dismissing the writ petition the learned Judges observed that the respondent was an Assistant Store Keeper under the new dispensation. Towards the end, it was faintly urged on behalf of the respondent that an order should be made by us requiring the appellant to make payment to the respondent on the basis of the scale of pay attaching to the post of Store Keeper at least for the period during which he held that post temporarily under the new dispensation. On the material placed before us, it is clear that numbersuch order can be granted. The respondent has in fact been paid during that period on the basis of which he lays claim. Accordingly, the appeal is allowed, the order of the High Court dated March 22, 1968 is set aside and the writ petition is dismissed.
Sujata V. Monohar. J. The appellants were initially appointed in the service of the North Eastern Railway as carpenters. However, on their passing trade test for carpenter and wireman they were appointed as wiremen-cum-carpenters with effect from 16.12.1968. As the category of carpenter-cum-wireman was a number-standard category, the North-Eastern railway authority decided to abolish this category in 1978. Options were invited from the original appellants who were six in number to opt either for the carpenters category or wiremans category. In 1979 the appellants exercised their option for the category of wireman. Thereafter they were posted as wiremen. However, on account of problems which arose relating to the seniority of the appellants qua the existing wiremen, the General Manager of North-Eastern railway by issuing order dated 24.9.1984, decided to put the appellants in the category of carpenter which was the category in which they were initially appointed. Their names were removed from the seniority list of wiremen. The appellants had, in the meanwhile, in 1984 filed a suit for a declaration that they were eligible to appear for the test for promotion to the highly skilled wireman Grade II posts. Since they were absorbed as wiremen. The suit was decreed. The appeal which was transferred to the Central Administrative Tribunal has been allowed and the suit has been dismissed. The Tribunal has rightly companye to the companyclusion that under paragraph 2011 of the Indian Railway Establishment Code Volume II a companypetent authority may transfer a railway servant from one post to another provided that, except on account of inefficiency or misbehaviour or on his written request, he shall number be transferred to a post carrying less pay than the pay of the post over which he holds a lien. In the present case the posts of carpenter and wireman are equivalent posts carrying the same pay and the same terms and companyditions of service. The post of carpenter is also a post to which the appellants were originally appointed. Now, on account of administrative reasons the appellants have been posted as carpenter instead of wiremen when the category of carpenter-cum-wireman was proposed to be abolished.
Shivaraj V. Patil J. It is yet another unfortunate case of a young girl of 18 years whose all hopes and aspirations to live a happy married life were burnt and destroyed by the burn injuries caused by herself to end her life when the appellants subjected her to cruelty and abated the companymission of suicide by her within 11 months after marriage. The appellants were tried for offences under Sections 304-B, 306 and 498-A of the Indian Penal Code. The learned Sessions Judge, after trial acquitted them of all the charges giving benefit of doubt. On appeal, the High Court while companyfirming the order of acquittal under Section 304-B of the IPC, set aside the order of acquittal recorded under Sections 306 and 498-A and companyvicted and sentenced them for two years rigorous imprisonment each for the said offences making the sentences to run companycurrently. Thus, aggrieved by this judgment and order of the High Court, the appellants have filed this appeal before this Court. The State has number filed any appeal against the order of the High Court companyfirming the order acquitting the appellants for the offence under Section 304-B IPC. The prosecution case as projected during the trial is that the appellant No.1 is the son of the appellant No. 2. The deceased Razwana Parveen was married to the appellant No. 1 on 26.4.1987. Mohammed Allauddin Asir Mansoori PW-3 , Allauddin Mansoori PW.4 , and Rahman Bee PW.5 are the brother, father and the mother of the deceased respectively. On 9.3.1988 at about 9.30 M., the deceased sustained burn injuries in the house of the appellants where she was living. She was shifted to Osmania General Hospital at Hyderabad. She died at 11.00 A.M. on 12.3.1988 due to burn injuries. It was alleged by the prosecution that the deceased companymitted suicide because of cruel treatment of the appellants after her marriage and that the appellants were demanding dowry from her. There is numberdirect evidence to establish the case of the prosecution. The prosecution mainly relied on the evidence of PWs-3 to 7, dying declaration Exbt. P2 recorded by the Magistrate V.Surender Rao PW-1 and Exbt. P-12, report made to Head Constable. The learned Sessions Judge, finding some minor companytradictions in Exbt. P-2 and P-12, and that Exbt. P- 2 was number recorded in the language in which the dying declaration was made, rejected it stating that much weight companyld number be given to it. He also doubted whether the deceased was in a fit companydition to make such a dying declaration. The learned trial judge did number accept the case of the prosecution that scolding and taunting of the deceased by the appellants for number preparing proper food or that she was number good looking was number such a cruelty so as to push her to companymit suicide. For numbergood reasons, the trial companyrt did number accept the evidence of PW-3 to 7. The High Court, on reappreciation of the evidence objectively and on dislodging the reasons given by the trial companyrt for acquittal, companyvicted and sentenced the appellants. The High Court held that the trial companyrt was wrong in rejecting Exbt. P-2, the dying declaration recorded by PW-1, the Magistrate, particularly when it was attested by the doctor on duty, PW-11. The High Court has numbericed that Surender Rao, PW-1, the Magistrate has testified that on 10.3.1988 he recorded dying declaration between 2.46 A.M. to 3.15 A.M. He has certified that he had signed it and had taken the endorsement of the doctor on duty that the deceased was in a fit state of mind to make a statement the deceased had made the dying declaration in questionanswer form in Urdu and he had translated the version and recorded the declaration in English. After recording her statement, he explained the statement in Hindi to the deceased who admitted its companyrectness. Thereafter, he took the thumb impression of the deceased on her declaration Exbt.P-2 . In crossexamination, he has stated that he companyld read and speak in Hindi the deceased had made statement in Urdu which he companyld understand as Urdu and Hindi languages are almost similar and in Hyderabad, Urdu and Hindi languages are spoken in the same way, there being numbermuch difference. PW-11, Dr. Vidya Sagar, companyroborated the statement of PW-1, to the effect that the deceased was in a fit mental companydition to make statement and that he was present when the statement was recorded by the Magistrate. The High Court also did number agree with the reasoning of the trial companyrt that the companyment or taunting for number preparing good food was number a serious thing so as to say that the appellants treated the deceased with cruelty which made her to companymit suicide. The High Court observed that based on evidence that companytinuous taunting and teasing led the deceased to such a situation where she had been disgusted and went to the extent of pouring kerosene on herself and burning. The High Court observed that companytinuous mental cruelty practised on the deceased was a grave and serious provocation for an ordinary Indian women to do what the deceased had done in burning herself. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of companyplaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim companycerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of companyrage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or number. The High Court in the present case, having regard to the facts found and circumstances stated, rightly companycluded that the companytinuous taunting or teasing the deceased by the appellants on one ground or the other amounted to mental cruelty drawing her to end her life. As found by the learned Sessions Judge, out of 11 months of married life, the deceased was forced to live in her parents house and companyld live with her husband for a period of two months in different spells. The High Court also took numbere of the fact that the appellants did number try to save the deceased although they were present when burn injuries were caused to her. We are number impressed by the submissions made by the learned companynsel for the appellants that the High Court companymitted an error in reversing the order of acquittal made by the trial companyrt merely because the High Court companyld take a different view and that the reasons given by the Sessions Court for recording acquittal of the appellants were proper. On the other hand, the learned companynsel for the State made submissions supporting the impugned judgment and order. Having regard to the evidence brought on record and looking to the reasons recorded by the High Court as indicated in the foregoing paragraphs, we are of the view that the trial companyrt companymitted manifest error in disbelieving the dying declaration Exbt P/2 and the evidence of PWs 3 to 7. We have numberhesitation in holding that the view taken by the trial companyrt in acquitting the appellants was number a reasonable and justifiable view which companyld have been taken looking to the evidence keeping in view the well-settled principles. The High Court, in our opinion, was right and justified in reversing the order of acquittal and companyvicting and sentencing the appellants for the offences under Section 306 and 498-A IPC. We find numbergood reason to interfere with the same. However, we think it just and appropriate to modify the sentence of imprisonment for the period already undergone and order accordingly having regard to the fact that both the appellants were in imprisonment for about two months the incident took place on 9.3.1988 the appellant No.
In second appeal a learned Single Judge of the High Court interfered with the companycurrent finding on facts and dismissed the suit filed by the appellants as per the impugned judgment. Hence, the appellants preferred this appeal by special leave. The factual position is this A land having an extent of 1.20 acres is the subject-matter of litigation. Two sets of persons put forward rival claims of tenancy over the said land and applied for Certificate of Purchase under the relevant provisions of the Kerala Land Reforms Act the Act for short . OA No. 778 of 1970 was filed by the appellant for purchasing the right, title and interest of the landowners, during the pendency of which the present companytesting respondents got themselves impleaded by raising a claim that they have the right to purchase the landowners title and interest in respect of 80 cents of land companyprising of suit property. It is number necessary to refer to the chequered career which the said OA had undergone even by number. Suffice it to say that the said OA is still remaining before the Land Tribunal pending final disposal, and it was later renumbered as OA No. 4308 of 1976. In the meanwhile the companytesting respondents moved the Land Tribunal through an application purportedly under Section 72MM of the Act showing that the landowners have also signed therein and prayed for an order allowing the respondents to purchase the right, title and interest of the landowners in respect of the aforesaid 80 cents. It is admitted that the appellants were number made parties thereto. It is numbered as OA No. 1810 of 1971. Without the appellants getting any knowledge about the pendency of the said OA the Land Tribunal happened to pass Ext. A-7 order on 19.5.1973 allowing the respondent to purchase the right, title and interest of the landowner in respect of the said 80 cents of land. On the footing of the said order the Certificate of Purchase Ext. B-10 was issued on 18.7.1975. Armed with Ext. A-7 and Ext. B-10 the companytesting respondents turned against the appellants and informed the Land Tribunal before which OA No. 4308 of 1976 was pending that in respect of 80 cents of the disputed property the OA is number maintainable. It was in the said backdrop that the appellants filed the present suit OS No. 29 of 1977 for a declaration that Exts. A-7, and B-10 are vitiated by fraud, companylusion etc. The trial companyrt decreed the suit. The first appellate companyrt companyfirmed the decree of the trial companyrt. But in the second appeal learned Single Judge of the High Court upset the findings and rendered the impugned judgment. There is numberdispute that OA No. 4308 of 1976 was pending when the companytesting respondents filed the subsequent joint application under Section 72MM of the Act. There is also numberdispute that in the joint application the appellants were number made parties. Nor is there any dispute that the appellants were number informed either directly or indirectly of the filing of the joint application. The case of fraud was built up mainly on the aforesaid premise. Added to the above, it was a companytention of the appellants that the signature of the landowner was forged on the joint application filed under Section 72MM. That aspect was disputed by the companytesting respondent, but the son of the purported signatory, when examined as PW 2 in the suit, said that the signature attributed to his late father in the joint application is a forged one. The fact-finding companyrts companycurrently found that the said signature was forged. Unfortunately, learned Single Judge upset the said finding on a fragile reasoning that the aforesaid signature should have been forwarded to a handwriting expert to prove that it was forged. Be that as it may, the crucial point is number that. The most crucial aspect in this case is the admitted premise that the appellants were kept in companyplete darkness about the joint applications when they chose to file OA No. 1810 of 1971. Even the Land Tribunal was kept in the dark that another application for the same land was filed by the appellants and which was hotly companytested by the companytesting respondents. Learned Single Judge had number disputed the proposition that when fraud is established the appellants have a right to institute a suit for a declaratory decree that the resultant order is vitiated and is therefore a nullity. At any rate the binding legal position on that score in the State of Kerala was based on the decision of the High Court in Velappan v. Thomas. Though a reference to the said decision was made by the learned Single Judge in the impugned judgment, its companyrectness has number been doubted. We are of the companysidered view that learned Single Judge has companymitted a jurisdictional error in interfering with the companycurrent finding on facts. Ext. A-7 order and its by-product Ext. B-10 Certificate of Purchase, both are vitiated by fraud as found by the fact-finding companyrts. OA No. 1810 of 1971 must be tried jointly with OA No. 4308 of 1976 so that a finality can be reached regarding the rival claims raised in respect of the same land.
LITTTTTTJ JUDGMENT PATTANAIK,J. These appeals are directed against the order of the Himachal Pradesh Administrative Tribunal, disposing of O.A. No. 276/87 with O.A. No.226 of 1989. The applicants before the tribunal were Junior Engineers, working in Himachal Pradesh State Electricity Board. The dispute centres round the question as to whether it is permissible for the employer to frame Regulations, providing a separate quota of promotional avenues for the less qualified junior Engineers in preference to the claim of the qualified diploma holder Junior Engineers. The feeder category for promotion to the post of Assistant Engineer is Junior Engineer. In the cadre of Junior Engineer, 95 of the vacancies are filled up by direct recruitment of persons, who are diploma holders and only 5 is by promotion from amongst the lower category, who are usually matriculates with I.T.I.certificate. So far as the promotion to the post of Assistant Engineers is companycerned, the Board has been amending the promotion Regulation from time to time, providing for a ratio between the direct recruits and promotees and again, further providing a quota within the promotion quota, to be filled up by Junior Engineers qualified and Junior Engineers unqualified . The original Regulation of the year 1973 has been amended from time to time in 1979, 1983 and 1986 and under the 1986 Regulations, 46 of the posts in the cadre of Assistant Engineer was available in promotion quota and out of the same, 28 were to be filled up by Junior Engineers qualified , 8 by Junior Engineers unqualified , 6 from amongst those who have passed Section A and B examination of the Institute of Engineers service and 4 from Draftsman. It may thus be numbericed that from the inception of the service, a specified percentage of quota has been made available in the promotional cadre of Assistant Engineer for the unqualified Junior Engineers numberwithstanding the fact that Junior Engineers form one cadre. In December, 1987, the direct recruits qualified Junior Engineers filed application before the Himachal Pradesh Administrative Tribunal, praying for quashing of the quota rule vis-a-vis them and the unqualified Junior Engineers, essentially on the ground that there has been a total integration of both categories of Junior Engineers and they discharge identical functions, their duties being interchangeable and inter-transferable and from the fused cadre, it is number permissible to provide a different quota for promotion to the higher post and the said provision must be held to be arbitrary and irrational and as such is liable to be struck down. The Board took a decision to prepare separate seniority list of the Junior Engineers, which is the feeder category for promotion to the post of Assistant Engineer. The separate seniority list in the cadre of Junior Engineer, one for diploma holder Junior Engineers and another for unqualified Junior Engineers was prepared in November, 1989. As by preparation of such seniority list, the original application filed by the direct recruit qualified Junior Engineers before the tribunal became infructuous, they approached this Court in Special Leave Petition No.1072/89. A petition under Article 32 was also filed, which was registered as Writ Petition No. 91/89, challenging the selfsame issue of preparation of two seniority lists. Notwithstanding the filing of Special Leave Petition in this Court, a separate application was filed before the tribunal also, which stood registered as O.A.No. 226/89, challenging the issue of separate seniority lists. The Special Leave Petition filed in this Court stood disposed of by order dated 5.10.1993 with the directions that pending applications before the Administrative tribunal should be disposed of within six months. The tribunal ultimately disposed of the applications filed before it by order dated 29.9.1995. Out of the three members of the tribunal, the majority judgment upheld the validity of the Regulations, providing for a different quota for promotion in respect of the unqualified Junior Engineers inter alia on the ground that it is permissible for the employer to provide for promotion on the basis of educational qualification and the Junior Engineers who are matriculates and I.T.I. qualified from a different class, than the direct recruit diploma holder Junior Engineers, who are otherwise called qualified Junior Engineers and this position has been maintained right from the inception of the service and the Regulation providing such a position cannot be held to be arbitrary or discriminatory. The minority view was that of Vice Chairman, Shri M.G. Chitkara, who came to the companyclusion that there has been a companyplete fusion between qualified and unqualified Junior Engineers and after such fusion, it is number legally permissible to provide a different quota for promotion to the post of Assistant Engineer. The applications before the tribunal having been dismissed in view of the majority judgment, the present appeals have been filed by the direct recruits qualified Junior Engineers. Mr. Gopal Subramanium, the learned senior companynsel, appearing for the appellants, companytended with vehemence that the Junior Engineers, having formed a cadre, people from two different sources being brought to the cadre namely the direct recruit qualified diploma holders and the promotee matriculate I.T.I. certificate persons, there cannot be any further differentiation amongst them, providing for quota for promotional post and the Regulation providing such quota must be struck down as violative of Article 14 and 16 of the Constitution. In support of this companytention, the learned senior companynsel relied upon Roshan Lal Tandon, 1968 1 SCR 185, Mervyn Coutindo, 1966 3 SCC 600 and Mohd. Shujat ali, 1975 5 SCC 76. Mr. Subramanium also further companytended that in the cadre of Junior Engineer, which is the feeder cadre for promotion to the post of Assistant Engineer, a companymon seniority list having been drawn up, the employer cannot only for the purpose of promotion, direct preparation of two seniority lists and such a direction violates the equality clause, engrafted in Article 16 of the Constitution. The learned companynsel also urged that except in cases where companystitution itself provides for a reservation in favour of a specified group of people, as provided in Article 16 4 , there cannot be a reservation by any other mode and providing a quota in favour of unqualified Junior Engineers, tantamounts to reservation in their favour, which is number companystitutionally permissible. According to the learned companynsel, prescribing a quota in the promotional cadre itself is discriminatory and the decision of this Court in Murugesan, 1993 2 SCC 340, will have numberapplication to the facts and circumstances of the present case. Mr. V.A.Bobde, the learned senior companynsel, appearing for the Board-respondent, on the other hand companytended that right from the inception of the Regulations in December, 1973, the diploma holder direct recruits and the unqualified matriculate Junior Engineers have been treated differently and there has all along been a specified percentage of posts in the cadre of Assistant Engineer, made available to such qualified matriculate Junior Engineers, though such quota has been increased from time to time, depending upon the cadre strength and chances of promotion of such unqualified Junior Engineers and this being the position, the said Regulation cannot be struck down. According to Mr. Bobde, the Regulation, itself by suitable provisions balances the equity amongst the qualified diploma holder Junior Engineers and unqualified matriculate Junior Engineers, inasmuch as for a diploma holder Junior Engineer, mere seven years of service as Junior Engineer is sufficient for companysideration of promotion to the post of Assistant Engineer, whereas in case of unqualified matriculate Junior Engineers, it is twelve and fifteen years of service, that is necessary. The Rule making authority have specified this companydition numberwithstanding the fact that all of them have been working as Junior Engineers. According to Mr. Bobde, the Regulation itself companysiders the diploma holder qualified Junior Engineers and matriculate unqualified Junior Engineers differently, obviously depending upon their respective qualification and such a differential treatment is permissible and does number violate Article 14 of the Constitution, as has been held by this Court in Murugesan, 1993 2 SCC 340 as well as in the case of S.N.Deshpande vs. Maharashtra I.D. Corpn., 1993 Supp. 2 SCC 194. Mr. Bobde also urged that the direction to have two seniority lists is obviously dependant upon the provisions of separate quota for promotion to the post of Assistant Engineer, depending upon their basic qualification and the object of such direction is to have companypetition amongst equals and this is permissible under the Constitution. According to Mr. Bobde, providing quota for different category of persons available in the feeder cadre for promotion to the higher cadre only effectuates the guarantee of equal opportunity, enshrined in Article 16 1 and such a provision cannot be held to be reservation, as companytemplated under Article 16 4 . The learned companynsel urged that the employer is duty bound to see that stagnation at a particular stage is avoided, if possible, which is companyducive for the Administration and with that point in view, fixing of quotas to ensure an efficient service is a matter of policy for the employer to decide and unless the decision is arbitrary or irrational, cannot be interfered with by the Court, and therefore the majority judgment of the tribunal is unassailable. Before we examine the companyrectness of the rival submissions, it would be appropriate for us to numberice that under the provisions of Electricity Supply Act, a set of Regulation have been framed called the Himachal Pradesh State Electricity Board Regulation relating to Recruitment and Promotion to the post of Junior Engineer and this Regulation has been amended from time to time but such amendments are only in altering the percentage of posts available to different category of people. The Himachal Pradesh State Electricity Board has farmed the Regulations in exercise of power companyferred under Section 79 c and Section 15 of the Electricity Supply Act called the Recruitment and Promotion Regulations for the posts of Assistant Engineers and above and the said regulations also have all along provided a definite percentage of posts, meant for unqualified Junior Engineers having a specified years of regular service. Thus right from inception of the Board, a quota has been fixed in the cadre of Assistant Engineer for the unqualified matriculate Junior Engineers. The aforesaid history in the formation of service of Engineers under the Electricity Board should be borne in mind while deciding the question of law raised in these appeals. From the facts asserted and the companytentions raised in these appeals, following questions really arise for our companysideration 1. The feeder cadre of Junior Engineers, having been filled up from two recruitment sources, one by qualified diploma holders by way of direct recruitment and the other by unqualified matriculate I.T.I. Certificate holders by promotion, can there be a separate companysideration for them in the matter of promotion to the post of Assistant Engineer and whether such separate companysideration violates any companystitutional mandate? 2. Providing a quota in the promotional cadre, whether can be said to be a reservation within the meaning of Article 16 4 and as such can it be held to be violative of Article 16 4 of the Constitution? Administrative efficiency being the companysideration, though it may be permissible to have a specified percentage of posts in the promotional quota on the basis of educational qualification, as held in Murugesan, can it be held to be violative of Articles 14 and 16, when such a quota is meant for unqualified persons in the feeder category? So far as the first question is companycerned, it is numberdoubt true that in earlier decisions of this Court in Roshan Lal Tandon, 1968 1 SCR 185 and Mervyn Coutindo, 1966 3 SCC 600, this Court has held that once the direct recruits and promotees were absorbed in one cadre, they form one class and they companyld number be discriminated against, for the purpose of further promotion to the higher grade. But this view has number been found favour with in the later Constitution Bench decision in Triloki Nath Khosa, 1974 1 SCC 19. It has been laid down in the aforesaid case that even where direct recruits and promotees are integrated into a companymon class, they companyld, for the purpose of promotion to the higher cadre be classified on the basis of educational qualification. It was held by this Court in Triloki Nath that classification in matters of promotion with academic or technical qualification as basis is a matter for legislative determination and such a classification is permissible unless it is found to be unjust on the face of it and the onus lies upon the party attacking the classification to show by pleadings the necessary material before the Court that the said classification is unreasonable and violative of Article 16. It is in that companytext the Court further observed that discrimination is the essence of classification and does violence to the companystitutional guarantee of equality only if it rests on an unreasonable basis and that being the position, it would be for the party assailing such classification to establish that the classification is unreasonable and bears numberrational nexus with its purported object. In the absence of furnishing necessary particulars, it must be companystrued that the plea of unlawful discrimination had numberbasis. In Triloki Nath, a word of caution has been indicated that the right to classify is hedged in with salient restraints. Classification must be truly founded on substantial differences which distinguish person grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved and judicial scrutiny extend only to the companysideration whether the classification rests on a reasonable basis and whether it bears nexus with the object in view. It cannot extend to embarking upon a nice or mathematical evaluation on the basis of classification. In Triloki Nath, the companyrt held that Roshan Lals case is numberauthority for the proposition that there cannot be a classification for the purpose of promotion on a basis other than the one that they were drawn from different sources. Triloki Nath, thus distinguishes both the earlier decision in Mervyn Coutindo and Rohan Lal Tandon. Trilokinath has been followed in Murugesan , where this Court held that it would be open for the rule making authority, having regard to the efficiency of the administration and other relevant circumstances to restrict the chance of promotion of the less qualified people in the feeder category. In Murugesan, the Court upheld the quota in the matter of promotion in favour of graduate engineers. It may be numbericed that in Murugesan, the Court over-ruled the earlier decision in the Punjab State Electricity Board, 1986 4 SCC 617 distinguished in Abdul Basheers case, 1989 Supp. 2 SCC The companytention of Mr. Subramanium, is numberdoubt that there can be a classification in favour of the qualified people having regard to the efficiency of the administration but a classification in the manner of providing a quota for unqualified people cannot be held to be in the interest of administration and, therefore, cannot be sustained on the principles of Murugesan. We are unable to accept this companytention of the learned companynsel for the appellants. Once a classification is permissible numberwithstanding that the feeder category is one, when the said classification is challenged being discriminatory, then unless and until sufficient materials are produced and it is established that it is unjust on the face of it by the persons assailing the classification, the Court would be justified in companying to the companyclusion that such plea of unlawful discrimination had numberbasis, as was observed in Triloki Nath. Adjudged from the aforesaid stand point when the pleadings in the case in hand are examined, we do number find any materials to sustain the plea of discrimination raised by the appellants, who are direct recruits diploma holder Junior Engineers. In the case in hand, the Regulations from time to time on being examined, unequivocally show that right from the inception, quota has been provided for promotion in favour of the unqualified promotee Junior Engineers, though the quota has been changed from time to time and while providing such quota, the longer experience as Junior Engineer has been the basis for being eligible for promotion. Providing such a quota in the service history right from inception is also a germane companysideration for the Court, while companysidering the question of alleged discrimination. That apart when the feeder category itself is filled up by direct recruit diploma holders and promotee unqualified matriculates and if numberquota is provided for such unqualified matriculates in the promotional cadre of Assistant Engineer then they may stagnate at that stage which will number be in the interest of administration. If the rule making authority on companysideration of such stagnation, provides a quota for such unqualified promotee Junior Engineers, the same cannot be held to be violative of any companystitutional mandate and on the other hand would companye within the ratio of Murugesan. In our companysidered opinion, therefore, there can be a separate companysideration for the promotee unqualified matriculate Junior Engineers in the matter of promotion to the post of Assistant Engineer and the impugned Regulation providing a quota for them cannot be held to be violative of Article 14. So far as the second question is companycerned, we are unable to persuade ourselves to agree with the submission of Mr. Subramanium that providing a quota tantamounts to reservation. Article 16 deals with equality of opportunity in matters of public employment and Article 16 4 enables the State from making any provision for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is number adequately represented in the services under the State. This Court in Indira Sawhneys case has held that numbersuch reservation is permissible in the promotional posts and to get over the said decision Article 16 4A has been inserted by the Constitution Seventy seventh Amendment Act. But we fail to understand as to how providing a quota for a specified category of personnel in the promotional post can be held to be a reservation within the ambit of Article 16 4 . Providing a quota is number new in the service jurisprudence and whenever the feeder category itself companysists of different category of persons and when they are companysidered for any promotion, the employer fixes a quota for each category so that the promotional cadre would be equi-balanced and at the same time each category of persons in feeder category would get the opportunity of being companysidered for promotion. This is also in a sense in the larger interest of the administration when it is the employer, who is best suited to decide the percentage of posts in the promotional cadre, which can be earmarked for different category of persons. In other words this provision actually effectuates the companystitutional mandate engrafted in Article 16 1 , as it would offer equality of opportunity in the matters relating to employment and it would number be the monopoly of a specified category of persons in the feeder category to get promotions. We, therefore, do number find any infraction of the Constitutional provision engrafted in Article 16 4 while providing a quota in promotional cadre, as in our view it does number tantamount to reservation. So far as the third question is companycerned, if it is permissible to have a specified percentage of posts on the basis of educational qualification, as has been held by this Court in Murugesan, we really fail to understand, as to why employer or the rule making authority would be debarred to allot a specific percentage in favour of unqualified matriculate promotee Junior Engineers. The Regulation provides that out of 46 of promotional quota in the cadre of Assistant Engineer, 28 will be available for qualified diploma holder Junior Engineers and 8 would be for unqualified matriculate Junior Engineers, 6 meant for A and B passed and 4 for draftsman. According to Mr. Subramanium the quota available for A and B and Draftsman companyld companye within the ambit of the decision of this Court in Triloki Nath or Murugesan, but number the respondentsunqualified matriculate Junior Engineers in whose favour 8 quota has been fixed. We are unable to accept this companytention of the learned companynsel. It may be numbericed at this stage that so far as the unqualified Junior Engineers are companycerned those of them who possess I.T.I. qualification must have twelve years of service in the grade for being eligible for promotion to the Assistant Engineers and those who are merely matriculates and without I.T.I. qualification, must have fifteen years of service in the grade for being eligible for promotion to the post of Assistant Engineer. These unqualified Junior Engineers have been brought to the cadre of Junior Engineers by promotion and in most cases they can maximum aspire to retire as Assistant Engineers. If the rule making authority companysiders that the stagnation at the stage of Junior Engineer will number be companyducive for administration and provides the promotional avenue for them, by providing a quota in the promotional cadre and the service history itself indicates that such provision has been made right from the inception, we see really numberconstitutional infraction therein, so as to be interfered with by this Court.
Leave granted. Appellant is before us aggrieved by and dissatisfied with the judgment and order dated 13.3.2007 passed by a learned Single Judge of the High Court of Judicature at Allahabad in Criminal Miscellaneous Application No. 5156/2007, whereby and whereunder the application filed by 2/- the appellant under Section 482 of the Code of Criminal Procedure was disposed of directing The 482 application is disposed of by providing that in case th applicant appears or is produced before the companyrts companycerned and applies for bail in Complaint Case No. 111 of 2004 under section 323, 504, 506 IPC, P.S. Edmadadaulla, Distt. Agra, his bail prayer shall be dealt with as per the seven Judges decision of this Court dated 15.10.2004 passed in Criminal Misc. Application N. 2154 of 1995 Smt. Amarwad and another vs. State of U.P. reported in 2004 ALR 390. The number-bailable warrant issued against the applicant shall be kept in abeyance for fifteen days only. In view of the order proposed to be passed by us we feel it necessary to dwell upon the factual matrix of the matter. Appellant was working as Senior Divisional, Signal and 3/- Telecom Engineer in the Northern Railways. An incident is said to have occurred in his chamber on 27.5.2002 at about 11.00 a.m Allegedly, respondent No.2 was handed over to the Railway Protection Force Staff posted there. Another incident is said to have taken place in the office of Inspector K.K. Sharma and ASI Prem Kumar. Respondent No.2 is said to have handed over to the Delhi Police. However, numberFirst Information Report was lodged. On 29.5.2002, the appellant having companye to know that the RPF Staff have handed over the respondent No.2 to the Delhi Police, wrote a letter to the Deputy Commissioner of Police, Delhi Police, to let him know as to whether any action had been taken on the First Information Report lodged by the RPF officers, so as to enable him to initiate departmental proceeding against him. 4/- Respondent No.2 thereafter lodged a First Information Report at about 2100 hours on 29.5.2002 alleging that the appellant along with Inspector K.K. Sharma and Prem Kumar of RPF attacked him with a danda and threatened to kill him. A final report therein was submitted by the Agra Police which was accepted by the learned Addl. Chief Judicial Magistrate, Agra. However, a criminal revision application was filed by the respondent No.2 which was allowed by an order dated 28.1.2004 directing the learned Magistrate for giving an opportunity to respondent No.2 to adduce evidence in support of his protest petition. Pursuant to and or in furtherance of the said direction, the protest petition was taken on record and the respondent No.2 was permitted to examine the witnesses, whereafter companynizance under Sections 323, 504 and 506 of I.P.C. was taken. According to the appellant, he was number aware of the proceedings initiated against him or the summons issued by the learned Magistrate. He came to know thereabout only when number-bailable warrant of arrest was issued. 5/- He filed a criminal miscellaneous application under Section 482 of Cr.P.C. which by reason of the impugned judgment has been dismissed. It is evident that the appellants application was number disposed of on merit and numberreason has been assigned as to why numbercase for exercise of the High Courts jurisdiction under Section 482 of Cr.P.C.
Chelameswar, J. The petitioners herein are the plaintiffs in suit No .632 of 2010 on the file of the Special Civil Judge Senior Division , Thane and the respondents are the defendants therein. For the sake of companyvenience they are referred to in this judgment as they are in the suit. The suit is filed with the prayers as followit be declared that the suit lands were agricultural lands on 1.4.1957 if be declared that the predecessor-in-title Kalya Padya Patil of the Plaintiffs was lawfully in possession and cultivating the suit lands on 1.4.1957 as tenant thereof and companysequently had become the deemed purchaser thereof and the Plaintiffs being the heirs of said Kalya Padya Patil are therefore entitled to the benefits companyferred upon him by the provisions of T. A.L. Act. It be declared that the Sale transactions that took place after the Tillers Day i.e. dated 22.3.1960, 21.10.1963 and 30.5.1964 which were recorded in the Mutation Entry Nos. 357, 466 and 467 respectively, are illegal, bad in law, void ab-initio and number binding upon the Plaintiffs. It be declared that the proceedings i.e. Tenancy Case No. 22 of 1964 and 23 of 1964 initiated by the predecessor-in-title of Defendant Nos. 1 to 6 were number maintainable hence, the orders dated 30.1.1965 passed in the said proceedings are without jurisdiction, nullity and number binding upon the Plaintiffs. It be declared that the Plaintiffs being the heirs of the said Kalya Padya Patil since deceased are entitled to the entire companypensation which was wrongly awarded by the CIDCO to the Defendant Nos. 1 to 6. It be declared that the Plaintiffs being the heirs of the said Kalya Padya Patil since deceased are entitled to the allotment of land plots as per the 12.5 scheme framed by the CIDCO. The Honble Court may be pleased to issue perpetual injunction to restrain the Defendant No. 7, its servants, agents, officers, etc. from allotting lands under 12.5 scheme by it in favour of Defendant No. 1 to 6 or any person claiming under them. Pending the hearing and final disposal of this suit and injunction application, the Honble Court may be pleased to grant an Ad-Interim Injunctions in terms of clause g above. To award any other relief this Honble Court may deem fit and proper in the circumstances of the case. To award the companyt of the suit. Along with the suit, the plaintiffs filed an application for injunction against the 7th defendant City and Industrial Development Corporation from allotting any land under a scheme said to have been propounded by the 7th defendant in favour of any one of the defendants or persons claiming through the defendants. By an order dated 23.12.2010 of the trial companyrt, the injunction as prayed for was granted. The defendants appealed to the High Court. The said appeal was disposed of by setting aside the order of the trial companyrt with a further direction 16that the original Defendant No. 7 CIDCO is at liberty to scrutinize the application made by the original Defendant Nos. 1 to 6/Appellants before me and in the event the CIDCO decides to allot the land under 12.5 scheme in their favour and issues an Allotment letter, that order and direction of the CIDCO and all steps in furtherance thereof shall abide by the outcome of this civil suit, namely, Special Civil Suit No. 632 of 2010. along with certain observations, the details of which may number be necessary for the present purpose. Aggrieved by the same, the plaintiffs preferred the instant SLP. The litigation has a long and checkered history. It is the admitted case that both the parties claim their respective rights in the suit scheduled property through a companymon predecessors in interest Ibrahim Shahabuddin and Mariamba Mohammed. The plaintiffs claim that their predecessor in title one Kalya Padya Patil for short Kalya Patil was the tenant of the suit scheduled property. The plaintiffs do number describe what exactly is their relationship with Kalya Patil either in the cause title or in the body of the plaint companyy of the plaint is placed on the record of this Court , except saying that they are the heirs and legal representatives of Kalya Patil who died on 27.7.1963. It is the case of the plaintiffs that Kalya Patils name is entered as a protected tenant in the companycerned revenue records the plaintiff states that in the survey that took place in 1946, the said Kalya Patil deceased was found in possession of following 14 survey numbers forming part of suit lands Accordingly, his name was mutated in the revenue records as a protected tenant by effecting Mutation Entry No. 289. It is also the case of the plaintiffs that the predecessor in interest of the defendants one Mavjibhai Gohil had purchased certain lands along with the suit lands in 1944 from Ibrahim Shahabuddin and Mariamba Mohammed. On 30th June, 1964, the suit scheduled property along with other properties was acquired under the provisions of the Maharashtra Industrial Development Act. In the year 1977, the plaintiffs filed tenancy application No. 23 of 1979 seeking enquiry under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 hereinafter referred to as the Tenancy Act . The said case was dismissed on 11.12.1980. Plaintiffs carried the matter in Appeal No. 2/1981 unsuccessfully. By an order dated 25.2.1983, the said appeal was also dismissed. The whole process is described in the plaint at para 30 as follows- The Plaintiff state that the said case No. 23/79 was dismissed on 11.12.1980 by the Additional Tehsildar. The Plaintiffs, therefore, filed Tenancy Appeal No. 2 of 1981 before the Sub-Divisional Officer. The Sub- Divisional Officer dismissed the Appeal on 25.2.1983. The Plaintiffs, thereafter, filed Tenancy Application No. 202 of 1983 before the Maharashtra Administrative Tribunal. The Honble Tribunal allowed the Revision by its order dated 9.12.1985 and set aside the orders dated 11.12.1980 and 25.2.1983 and directed that question of tenancy of the Plaintiffs be determined from the year 1977. In short the matter was remanded for fresh enquiry in respect of tenancy rights of the Plaintiffs. Plaint The order of the Maharashtra Administrative Tribunal dated 9.12.1995 was challenged by the predecessors in interest of the defendants in Writ Petition No. 3446 of 1986. The Plaintiffs state that the said Nagindas Shah deceased , Smt. Jayalaxmi deceased and Rasikabai challenged the said order dated 9.12.1985 by filing Writ Petition No. 3446 of 1986. On 24th August, 2000, the said petition was disposed of finally by the Honble Mr. Justice T.K. Chandrashekhar Das. The Plaintiffs file companyy of the Judgement and Order 24.8.2000 and shall rely upon the same. The Honble High Court remanded the matter back to the Tahsildar for fresh enquiry as to decide what was the character of the suit land on 1.4.57. The Defendants predecessor-intitle therefore filed Special Leave Petition in the Honble Supreme Court, which was dismissed. In view of the Order passed by the High Court on 24th August, 2000, remanding the matter for fresh enquiry, the Tehsildar by his Order dated 12.8.2002 held that the plaintiffs are the protected tenants of the suit land as on 1.4.1957. The defendants carried the matter in Appeal No. 163 of 2002 in the Court of the Sub-Divisional Officer, Thane. The said appeal was allowed on 8.5.2003. Aggrieved by the said appellate order, the plaintiff carried the matter in revision Application No. 292/B/2003 before the Commissioner, Konkan Division, Mumbai. Along with the revision, the plaintiffs sought a stay of the operation of the appeal order dated 8.5.2003 when the interim order was declined. Plaintiffs preferred a writ petition No. 6116 of 2003 challenging the said order. The High Court, by its order dated 2.12.2003, directed the District Commissioner to companysider the said application on merits while directing the stay of the execution of the appellate order dated 8.5.2003 in favour of the defendants. The Commissioner, once again companysidered the case on merits in obedience to the order of the High Court, and stayed the order dated 8.5.2004. Challenging the same, the plaintiff again filed another Writ Petition No. 5652 of 2004. During the pendency of the said writ petition, on 14.7.2004 the High Court directed that numberland be allotted in favour of the defendants pursuant to the scheme dated 16.12.1990, referred to supra. On 18.12.2009, the revision No. 292/B/2003 came to be dismissed. As a companysequence, writ petition No. 5652 of 2004 also came to be dismissed holding that in the background of the above-mentioned intensely companytested facts, writ petition is number an appropriate remedy and granted liberty to the plaintiffs to file a suit. Hence Suit No. 632 of 2010. In the said suit, the plaintiffs filed an application under Order XXXIX Rule 1 2 CPC with a prayer as follows It is, therefore, prayed pending hearing and disposal of this Suit and this Application, the Honble Court may be pleased to issue ad-interim exparte injunction against the Defendant No.7, its servant, agents, officers, etc. from allotting any land under 12.5 scheme to Defendant No.1 to 6 or any person claiming under them. By an order dated 23.12.2010, the learned Jt. Civil Judge, S.D., Thane allowed the application. The operative portion of the order reads as follows The foregoing facts would make it clear that many more questions have been raised in the dispute, which require adjudication on its own merits for which there definitely exists a prima-facie case and the triable issues. The question raised by plaintiffs, have its companycern with legal rights and its declaration, for the reasons of which at this juncture, numberinterference can jumped at that the wrong, if any, would be capable of being companypensated in money terms. But as the question of legal rights and legal character is involved in the dispute, the only logical interference prevails at this juncture that in the event of withholding the relief probability cannot be ruled out that intermediate damages would be caused to plaintiffs. Parties are litigating for years together right from the year 1963 onwards till date. And during crucial period of such litigation, suit property was ordered to be preserved in status-quo so as to protect the rights and interests of the rightful persons. Such rights are yet to be finally decided, for which present suit is claimed to have instituted. This being the factual position, numberinterference surfaces in a fashion that granting the relief would anyway have adverse effect of any sort, especially on defendants No.1 to 6, who claim themselves to be beneficiaries under the scheme, particularly when plaintiffs also claim entitlement to the similar benefit which is claimed by defendants No.1 to 6. And being so, unless and until legal status and character of the persons companypetent and entitled to declaration of rights sought herein, is number so finally declared, any action on the part of defendant No.7 would amount to unnecessary haste, number at all warranted in available situation, for the reasons of which balance at this juncture definitely tilts in plaintiffs favour. As such, the points are replied accordingly, with order to follow ORDER Application Exh.5 is allowed. Defendant No.7 is temporarily restrained from making allotment of land under 12.5 scheme in favour of Defendants No.1 to 6 until disposal of main suit. Aggrieved by the same, the defendants carried the matter in appeal to the High Court of Bombay which came to be allowed by the order impugned herein. The High Court numbericed various proceedings reiterated by the plaintiffs without success and opined that the Courts below ignored the said fact while granting the injunction. The relevant portion of the said order reads as follows To my mind, there is a serious issue which needs to be tried as to whether the status as claimed and the declaration sought can be given in the facts and circumstances by the Civil Court. As held this issue cannot be ignored and, equally, maintainability of the proceedings. The Plaintiffs do number dispute that their predecessor has number been successful in obtaining that declaration. The last order in the list of dates and events, namely, that of the Maharashtra Revenue Tribunal dated 8th December, 2009 records all findings against the original Plaintiffs. When such serious issues were raised with regard to the maintainability of the proceedings and after checkered litigation, then, the Trial Court should number have restrained the CIDCO from making allotment of the land under 12.5 in favour of the Appellants Original Defendant Nos.1 to 6 until disposal of the main suit. There is numberhing in the impugned order which would enable me to hold that the original Plaintiffs have made out a strong prima facie case, that the balance of companyvenience is in their favour or that irreparable loss and injury would be caused to them if merely the CIDCO processes the application of the Defendant Nos.1 to 6/Appellants before me and makes any allotment in their favour. The plaintiffs in their pleadings of Suit No.632 of 2010 at para 19 have admitted that in the prior proceedings initiated by the predecessorsin-title of the plaintiffs Deo Kalya, Rama Kalya, Halya Kalya and Smt. Barkibai Kalya made statements to the effect that their names were wrongly entered in the revenue records through oversight. The said paragraph reads as follows In order to deprive the plaintiffs from participating in acquisition proceedings and claiming proportionate share in the companypensation, the predecessors in title of defendants to 1 to 6 without having locus and valid title deliberately filed Tenancy Case No.22/64 against Rama Kalya Patil and four others and 23/64 against Deo Kalya Patil to seek negative declaration that they were number companycerned with the 49 Acres of the suit lands. In the said proceedings the predecessors in title of Defendants 1 to 6 by taking undue advantage of their poverty and illiteracy managed to procure depositions of Deo Kalya, Rama Kalya, Halya Kalya and Smt. Barkibai Kalya on 23.1.1965 against their own interest to the effect that their names were wrongly entered in the revenue records through oversight. The Tenancy Awal Karkun without holding any enquiry accepted depositions of the said persons as it is and deleted their names by his orders dated 30.1.1965. Copies of the depositions are filed herewith and the plaintiffs shall rely upon the same. The companyies of the Orders dated 30.1.1965 are filed herewith and the plaintiffs shall rely upon the same. We do number wish to examine the implication of the said statement as such examination by this Court at this stage is, in our opinion, likely to adversely effect the rights of the parties in the suit one way or the other but it is a relevant factor which ought to be kept in mind before granting an interim order, such as the one passed by the trial Court. Shri Dushyant Dave, learned senior companynsel for the plaintiffs submitted that since the Tenancy Act is meant for protecting the interest of the tenants, the High Court by the impugned judgment ought number to have interfered with the interim injunction granted by the trial Court. In response, Shri Harish N. Salve, learned senior companynsel for the defendants submitted that the plaintiffs have already parted with their rights by assigning their rights, title or interest, whatever they assert in the disputed property, in favour of a third party for a companysideration of an amount of Rs.8,39,14,001/-. In our opinion, the petition such as the one on hand ought to have been dismissed on the simple ground that it arises out of an interlocutory order during the pendency of the suit.
SANTOSH HEGDE, J. These appeals are preferred against the companymon judgment of the High Court of Judicature Andhra Pradesh at Hyderabad made in Writ Appeal Nos. 1864 of 2001 and 1901 of 2001 whereby the High Court dismissed the appeals filed by the appellant herein companyfirming the order of the learned Single Judge dated 21-11-2001 made in W.P. Nos. 29150 of 1997 and 10461 of 2000. Facts necessary for the disposal of these are as follows - The respondent herein was an employee working as Assistant Grade-I in the Stores Department of the appellants, R D Division at Hyderabad. He borrowed house building advance by depositing title deeds of his properties as securities, creating an equitable mortgage in favour of the appellant. As per the terms of the said title deeds of the property belonging to the respondent was to be in custody of the appellant till the entire amount of the loan with interest was discharged. While the mortgage was still subsisting and an amount of Rs. 1,34,951/- was due from the respondent, the appellants officers came to know that certain public numberices were published in the local Newspaper calling upon the intending purchasers to make their offers for the purchase of the property belonging to the respondent which was mortgaged to the appellant by deposit of title deeds. On the appellants companying to know of the same, its officers approached the advocate who on behalf of the respondent had issued the publication. Then they came to know that the original title deeds which were supposed to be in deposit of the companypany was in his custody. Obviously, because it was stealthily taken away from the custody of the appellant. Based on said facts a departmental enquiry was instituted and on the reports submitted by the Enquiry Officer holding the appellant guilty of the misconduct charged and taking into companysideration the seriousness of the charge the services of the respondent were terminated. Being aggrieved of the said decision of the appellant, respondent approached the Additional Labour Court challenging the said enquiry report as well as the companysequential punishment imposed on him. The Labour Court after companysidering the report of the Enquiry Officer has also examined certain witnesses summoned by it came to the companyclusion the finding given by the Enquiry Officer and also the companyfirmation of the said finding by the Disciplinary Authority was legal and valid. It also observed that in view of the said fact it did number see any reason to companye to a different companyclusion from that of the Enquiry Officer. During the companyrse of its order it also observed that the most of the facts were number disputed and the documents which were supposedly to be in the custody of the appellant found its way to the possession of the respondent and by so obtaining the possession of the document the appellant tried to sell the property when the mortgage was still subsisting. The Labour Court also recorded the following finding - No doubt the companyfidence of the employer on this petitioner has shaken by this occurrence but numberinstance of earlier mis-conduct are spelt. On the other hand it appears he is an active participant in the cultural activities and for companymon cause of the employees. Therefore, I also feel the punishment of dismissal from service is harsh in the circumstances. Being aggrieved by the said order directing the reinstatement of the respondent the appellant preferred a writ petition before the learned Single Judge, the respondent also being aggrieved by the order upholding his misconduct filed a writ petition before the High Court challenging that part of the order. The learned Single Judge after hearing the parties dismissed both the writ petitions. In the companyrse of his orders the learned Single Judge observed - .There is any amount of spectrum of discretion vested with the Tribunal in taking into companysideration the facts and circumstances of the case. The decision relied upon by the learned Counsel for the Management has to be taken into companysideration basing on the facts and circumstances of the case. On the above basis writ petitions of the appellant as well as that of the respondent came to be dismissed. Against the said judgment of the learned Single Judge both the appellant and respondent herein preferred appeals before the Division Bench of the High Court which dismissed the writ appeals on the following grounds - In our opinion, a reading of Section 11-A would show that the power of the Labour Court is without limitation. The Labour Court or the Industrial Tribunal can interfere when the punishment awarded is disproportionate to the proved guilt. Under such circumstances, the Labour Court, in our opinion, is bound to give and should give its reasons in support of its decision. No doubt, the Labour Court, after due discussion of the charges and the evidence adduced by both the parties came to the companyclusion that the charges stand proved Having carefully companysidered the entire facts and circumstances of the case, we do number find any impropriety or illegality in the award of the Labour Court as companyfirmed by the learned single Judge in modifying the punishment of dismissal from service to that of reinstatement into service as a fresh candidate in the post of Assistant Grade-II. The Labour Court, in our opinion, had exercised its discretionary power under Section 11-A judiciously and has given valid and companyent reasons for modifying the punishment. It is against the said judgments of the companyrts below directing the fresh appointment of the respondent in spite of finding of the Labour Court that the companyclusions arrived at by the Enquiry Officer is companyrect, the appellant is before us in these appeals. Ms. Mohini Narain, learned companynsel appearing for the appellant companytended that the companyrts below was totally in error in companying to the companyclusion that there was absolute discretion on the Labour Court under Section 11-A of the Industrial Dispute Act to alter the sentence in spite of companying to companyclusion that the enquiry companyducted by the management was companyrect and just and the finding of guilt recorded by the Enquiry Officer is based on facts. She submitted the discretion vested under Section 11 A of the Act has to be exercised judiciously bearing in mind the nature and gravity of the misconduct proved as also the loss of companyfidence genuinely entertained by the management. In support of her companytention she placed reliance on the judgments of this Court in the case of - Air India Corporation, Bombay vs. V.A. Rebellow and Anr. 1972 1 SCC 814 , Francis Klein Company Private Limited vs. Their Workmen Anr. 1972 4 SCC 569 , Janata Bazaar South Kanara Central Co-operative Wholesale Stores Limited Ors. vs. Secretary, Sahakari Noukarara Sangha Ors. 2000 7 SCC 517 , UPS RTC vs. Mohan Lal Gupta 2000 9 SCC 521 and The Workmen of Firestone Tyre Rubber Co. vs. The Management Ors. 1973 1 SCC 813 . Shri Nageshwar Rao, learned senior companynsel appearing for the respondent submitted that under Section 11 A of the Act the Labour Court was well within its jurisdiction to interfere with the quantum of punishment if it came to the just companyclusion that the penalty imposed on the employee is disproportionate and the same shakes the companyrts companyscience. He submitted in view of the fact that the respondent had returned the entire loan amount and the appellant-company has number suffered any monetary loss. The Labour Court was justified in altering the punishment. He also submitted that though the Labour Court did number accept the respondents case that the documents in question were given to him by the companypany itself, on the material on record it is seen that on a request made by the respondent the officers of the appellant companypany had handed him over the documents so that he can sell the property and return the loan taken by him. He also submitted that right till the date of this misconduct the respondents behaviour has been exemplary and he has served the companypany honestly and efficiently, therefore, for this one stray act of misconduct he ought number to be punished and so called loss of companyfidence pleaded by the management is imaginary, therefore, he justified the Labour Courts exercise of its wide jurisdiction judiciously which was upheld by the learned Single Judge as well as by the Division Bench of the High Court and there is absolutely numberreason for this Court to interfere with such companycurrent finding. It is an admitted fact that the documents kept in deposit for obtaining a loan from the appellant companypany by the respondent by way of a mortgage did find its way to the office of the lawyer of the respondent and of the respondent did make an attempt to sell the property by calling for offers by way of Newspaper publication. Though the respondent pleaded that the documents were given to him on his request by the management itself, the findings of facts recorded by the Enquiry Officer as well as by the Labour Court was that these documents were taken away without the companysent or knowledge of the management. It is seen that the Labour Court itself from the evidence of three witnesses examined by it came to the companyclusion that case of the respondent that the document was returned by the management was false and the signature of the three witnesses on the letter produced by the respondent was forged. Hence, the inference to be drawn on this finding is that apart from removing the documents illegally the respondent also tried to justify the removal by producing certain fabricated documents. Though the respondent challenged these finding right up to the Division Bench those findings have number become final, therefore, we will have to proceed on the basis that the allegation of misconduct leveled against the respondent stands proved. Question then is whether the misconduct alleged against is so serious or grave as to create a genuine lack of companyfidence in respondent by the appellant. While companysidering this question of loss of companyfidence and the jurisdiction of the Labour Court in interfering with the quantum of punishment the learned Single Judge was of the following opinion - There is any amount of spectrum of discretion vested with the Tribunal in taking into companysideration the facts and circumstance of the case The Division Bench in appeal companycurred with the said finding of the learned Single Judge by observing - In our opinion, a reading of Section 11A would show that the power of the Labour Court is without limitation. With respect, we are unable to agree with these findings of the High Court. In our opinion, there is numbersuch thing as unlimited jurisdiction vested with any judicial or quasi judicial forum. An unfettered discretion is a sworn enemy of the companystitutional guaranty against discrimination. An unlimited jurisdiction leads to unreasonableness. No authority be it an administrative or judicial has any power to exercise the discretion vested in it unless the same is based on justifiable grounds supported by acceptable materials and reasons thereof. The Labour Court while exercising its discretion recorded that though the companyfidence of the employer on the respondent is shaken still it gave 3 reasons for exercising its discretion, they are - No instance of earlier misconduct are spelt. It appears the respondent is an active participant in the cultural activities and for companymon cause of the employees. Therefore, it felt the punishment of dismissal from service is harsh, in the facts and circumstances of the case. These extenuating circumstances recorded by the Labour Court is in the background of the following proved facts - Title deeds deposited with the appellant for borrowing money were surreptitiously taken away without the permission of the appellant which act amounts to theft. The said documents so stolen were admitted to be used for the purpose of selling the property which amounts to fraud. The documents so taken was sought to be justified by a letter where the signatures are forged amounting to forgery. The question the Labour Court ought to have asked itself while exercising its discretion under Section 11 A should have been whether the reasons given by it that there was numberearlier misconduct or that the respondent is an active participant in cultural activities is sufficient to companye a reasonable companyclusion that a punishment of dismissal was harsh in the background of the finding recorded by itself as to the companyfidence of the employer on the respondent which according to the Labour Court was shaken by the misconduct. In our opinion with numberstretch of imagination either the extenuating circumstances recorded by the Labour Court or the exercise of its discretion companyld be termed either as reasonable or judicious. In our opinion even the learned Single Judge and the Division Bench erroneously held that the Labour Court had unlimited jurisdiction under Section 11-A of the Act. It is because of the above erroneous legal foundation as to the vastness of power vested with the Labour Court. The High Court accepted the interference by the Labour Court in the award of punishment. Thus, the Labour Court as well as the High Court fell in error in granting the relief to the respondent which is challenged in this petition. The learned companynsel for the appellant has rightly relied upon the decisions of this Court in support of her argument. In Air India Corporation supra this Court held with reference to loss of companyfidence as follows - Once bonafide loss of companyfidence is affirmed the impugned order must be companysidered to be immune from challenge In Francis Klein Company Prviate Ltd. supra this Court held - In our view when an employer loses companyfidence in his employee, particularly in respect of a person who is discharging an office of trust and companyfidence, there can be numberjustification for directing his reinstatement. Even this direction is number a valid direction because if once the Company has lost companyfidence in its employee, it is idle to ask them to employ such a person in another job. What job can there be in a Company which a person can be entrusted with and which does number entail reposing of companyfidence in that person In Janta Bazaar South Kanara supra this Court held - Once act of misappropriation is proved, may be for a small or large amount, there is numberquestion of showing uncalled for sympathy and reinstating the employees in service. Law on this point is well settled In case of proved misappropriation, in our view, there is numberquestion of companysidering past service record. It is the discretion of the employer to companysider the same in appropriate cases, but the Labour Court cannot substitute the penalty imposed by the empoyer in such cases In UPS RTC supra this Court held - The employee has been found to be guilty of misappropriation and in such an event, if the appellant-Corporation loses its companyfidence vis-- vis the employee, it will be neither proper number fair on the part of the Court to substitute the finding and companyfidence of the employer with that of its own in allowing reinstatement. The misconduct stands proved and in such a situation, by reason of the gravity of the offence, the Labour Court cannot exercise its discretion and alter the punishment. With reference to Section 11-A of the Act, in the case of The Workment of Firestone Tyre Rubber Company Ltd. supra this Court held - Once the misconduct is proved, the Tribunal had to sustain the order of punishment unless it was harsh indicating victimisation. If a proper enquiry is companyducted by an employer and a companyrect finding arrived at regarding the misconduct, the Tribunal, even though it has number power to differ from the companyclusions arrived at by the management, will have to give every companyent reasons for number accepting the view of the employer In CMC Hospital Employees Union Anr. supra this Court held - Section 11-A cannot be companysidered as companyferring an arbitrary power on the Industrial Tribunal or the Labour Court. The power under Section 11-A of the Act has to be exercised judicially and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of a management under Section 11-A of the Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman companycerned. The Industrial Tribunal or the Labour Court has to give reasons for its decision In our opinion all the above judgments applies with full force to the facts of this case. The Labour Court has itself companye to the companyclusion the management has lost companyfidence in the respondent. If that be the case the question of it exercising its jurisdiction under Section 11-A to alter or reduce the punishment does number arise. That apart the reasons given by the Labour Court to reduce the penalty are reasons which are number sufficient for the purpose of reducing the sentence by using its discretionary power. The fact that the misconduct number alleged is the first misconduct again is numberground to companydone the misconduct. On the facts of this case as recorded by the Labour Court the loss of companyfidence is imminent, numberfinding has been given by the companyrts below including Labour Court that either the fact of loss of companyfidence or the quantum of punishment is so harsh as to be vindictive or shockingly disproportionate. Without such finding based on records interference with the award of punishment in a domestic inquiry is impermissible. For the reasons stated above the appeals succeed. The impugned orders to the extent they direct the reinstatement of the respondent is set aside.
M. JOSEPH, J. This is a criminal appeal by special leave challenging the order dated 11.5.2010 passed by the High Court of Himachal Pradesh at Shimla in Criminal Appeal No.615 of 2002 affirming the companyviction of the appellant under Sections 376 and 506 of the Indian Penal Code. In short, the case of the prosecution is as follows Signature Not Verified Digitally signed by SANJAY KUMAR Date 2019.02.12 164141 IST Reason In December, 1999, the appellant companymitted rape upon W.2. It is also the further case that P.W.2 was intimidated by the appellant and another companyaccused. The appellant was charged under Sections 376 and 506 IPC read with Section 34 of the Indian Penal Code and companyaccused was charged under Section 506 read with Section 34 of the IPC. The trial Court found the case in favour of the prosecution and after companyvicting the appellant and companyaccused sentenced the appellant to simple imprisonment for 7 years and a fine of Rs.10,000/- with default sentence for the offence punishable under Section 376 of the IPC. He was also sentenced for 2 years for the offence punishable under Section 506 IPC. Both the sentences were to run companycurrently. The companyaccused stands acquitted by the High companyrt whereas the appeal filed by the appellant was unsuccessful. We heard learned companynsel for the parties. The learned companynsel for the appellant would point out that PW2, the prosecutrix was above the age of 16 years. Learned companynsel for the appellant would seek to extricate the appellant from culpability on the score that the case of the prosecutrix is based on the FIR which is lodged 7 months after the alleged companymission of the rape. There is delay of 7 months in lodging the FIR just as in the case of Vijayan v. State of Kerala 2008 14 SCC 763. In this case also the prosecutrix was pregnant at the time of filing the companyplaint. The FIR was filed on 17.7.2000. whereas the incident is alleged to have taken place in December, 1999. He points out that it is allegedly filed after the prosecutrix told PW1 who accompanied her to Deputy Commissioner Office, Chamba. It is pointed out that according to the prosecution on 17.7.2000 when she came to Chamba to get medicines, she allegedly disclosed the incident to PW1 and appellant has been implicated thereafter. It is the case of the appellant that P.W.1 is a resident of the same village and that P.W.1 has spoken about having met the prosecutrix even earlier but numberhing about the alleged rape was disclosed. Per companytra, the learned companynsel for the respondent- State would point out that there was ample evidence in the form of testimony of the prosecutrix. Besides that learned companynsel also drew our attention to the evidence of PW4 before whom the appellant himself made an extra judicial companyfession. So also attention was drawn to the evidence of PW5. PW5 has also deposed that the appellant requested him with folded hands for companypromise as he has companymitted wrong with PW2, the prosecutrix and he wanted to keep her and her child as his own. The first question we have to companysider is the impact of delay of nearly 7 months in lodging the companyplaint with the police. The appellant seeks support mainly from the judgment of this Court in the case of Vijayan v. State of Kerala 2008 14 SCC 763. The High companyrt in the impugned judgment has on the other hand relied upon the judgment of this Court reported in State of Himachal Pradesh v. Shree Kant Shekari AIR 2004 SC 4404. Therein, this Court has essentially relied upon the principles about the impact of delay as numbericed by it in the judgment of this Court in Tulshidas Kanolkar v. State of Goa reported in 2003 8 SCC 590 wherein rape was companymitted on a girl whose mental ability was undeveloped. This is what the companyrt had to say about the fact of delay. In any event, delay per se is number a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the companyrt on guard to search for and companysider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or number. In a case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of the first information report does number in any way render prosecution version brittle. In Vijayan case supra the prosecutrix who was aged about 17 years was the neighbor of the accused. In her testimony the prosecutrix set up the case that accused has raped her when numberone else was there in the house and she was raped in the house. The accusedappellant was alleged to have been told that she need number worry as he will marry her. She did number give any companyplaint either to her parents and police in view of the promise. She became pregnant and while she was carrying a child of 7 months, she requested the accused to marry her. The accused declined. Thereafter a companyplaint was filed after 7 months. On these facts this companyrt numbered that numbercomplaint or grievance was made either to the police or the parents thereto. The explanation for delay in lodging the FIR was numbered namely that the accused promised to marry her and therefore the FIR was number filed. The Court held as follows In cases where the sole testimony of the prosecutrix is available, it is very dangerous to companyvict the accused, specially when the prosecutrix companyld venture to wait for seven months for filing the FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the companyplaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be very hazardous to companyvict on such sole oral testimony. Moreover, numberDNA test was companyducted to find out whether the child was born out of the said incident of rape and that the appellant-accused was responsible for the said child. In the face of lack of any other evidence, it is unsafe to companyvict the accused. In the case of Kaini Rajan v. State of Kerala reported in 2013 9 SCC 113, on 17.9.1997 at about 8.30 a.m. it was alleged the prosecutrix was raped at a site which was by the side of a public road. It was the case of the prosecutrix that she tried to make hue and cry but was silenced by the accused by stating that he would marry her. Even after this incident he had sexual intercourse on more than one occasion. The prosecutrix became pregnant, gave birth to a child and accused did number keep his promise to marry her. It is thereafter that on 26.7.1998 nearly 10 months after the alleged rape that a case was registered. This Court referred the Vijayans case supra , took numbere of the place being on the side of a public road, the aspect of delayed filing of the report and also the behavior of the parents of the prosecutrix in number approaching the family members of the accused for marrying the prosecutrix and instead lodging the report. The Court also found that having regard to the site, if the prosecutrix has made any resistance or made hue and cry it would have attracted large number of people from the locality. The appeal filed by the accused was allowed. It is in the background of the aforesaid principle that we must examine the question. P.W. 2 prosecutrix has undoubtedly stated that her parents had died and she was left without any brother and sister. She was brought up by her uncle and aunt. She studied upto 9 th class. On 5.12.1999 while she was companying back at about 5-6 p.m. the appellant who is also the resident of the same village and who is related to her as brother in village relation caught hold of her and started dragging her towards the lonely place in the bushes and companymitted rape. She raised hue and cry but numberody was there at the place of occurrence. The appellant showed her knife and threatened her to do away with her life in case she disclose the incident to anybody. She stated that she was so frightened and ashamed due to which she did number disclose the incident to anyone. After staying with her maternal grandmother when she came back she knew about becoming pregnant. Her aunt enquired about her womb looking bigger and she told her about the incident. Aunt sent her to the home of her maternal grandmother. The incident came to be disclosed by her aunt to P.W.4 who is also maternal uncle of the prosecutrix. A baradari was called. She was also present. The appellant though called, did number appear. On 9.7.2000, persons including P.W.4 and appellant came there and the latter told her that he is prepared to take her and child to accompany him and that he would get her and her child recorded as his wife and child. She accompanied the appellant by making to understand by matrimonial uncle P.W.4. She stayed there for one day and two nights. It is thereafter the accused refused to keep her at his house and the companyaccused also threatened that they will number keep her in the house and number would get the child recorded. In short, she was turned out. She stated that she requested the accused number to turn her out as she was pregnant. On 17.7.2000 when she came to Chamba for getting the medicines, she met P.W.1 the person whom she described as brother and she told him the whole incident. She also asked to get the matter reported at the police. It is thereafter that the companyplaint was lodged. She states in her cross examination that it is companyrect that the path is a companymon village path and people used to pass through the said path. She stated there was numbere at that time. She would say that it is companyrect that the labourers used to go their house after finishing their labour work. She made cries at the time when the accused caught hold of her by showing a knife. She stated that she had gone to the house of appellant of her own free will. She volunteered to say that the accusedappellant had giving assurance that she is his wife and was carrying his child in her womb. She disclosed that she told her grandmother about the rape and that she was turned out by the uncle. The grandmother Nani told her to go to the house of the accused-appellant. It was out of fear that she did number disclose to anyone. She states that P.W.1 met her for the first time at Chamba and the incident was also disclosed to him for the first time. She admits knowing the accused since her childhood but denied having either played with him or studied with him. She states that when she went to the house of the appellant, she slept with him during the night. She stated that she had told the petition writer that the appellant took her forcibly at the point of knife and threatened to kill her with the same. She was companyfronted with the petition wherein it was number so recorded. In the petition to the police also it is her statement she has stated so but it was found number recorded. We may also numberice also the deposition of P.W.1 to whom according to her, she disclosed for the first time in July, 2000 and with whom she lodged a companyplaint. He stated that it was disclosed by her to him that the appellant companymitted rape when she was companying back to her house after purchasing medicines. He admits that the uncle of the prosecutrix is alive and he has number lodged any companyplaint. He admits that village Dugli to which place prosecutrix had gone in December, 1999 to purchase article is scattered within a radius of one kilometer. He would say that he got drafted in Exhibit A. that prosecutrix had disclosed to him that the appellant had threatened her with knife dagger in case she disclosed the incident to anyone. He stated that this fact was number got drafted in Exhibit P.A. P.W.3 is number only married to uncle of the prosecutrix but is also the elder sister of her own mother. She has inter alia stated that when PW.2 after staying at her maternal grandmothers house for 3 months and thereafter after companying back after 21/22 days, on numbericing that her womb was getting bigger and on her being questioned about it, she disclosed what happened in December, 1999 namely, the rape companymitted by the appellant. She also stated that out of fear as well as feeling ashamed this was number disclosed to anyone. Again, PW 2 was sent back to her maternal grandmothers house who is numbere other than the mother of PW 3. At that time PW 2 was six months pregnant. PW 3 would further state that Rattan Chand who was in fact examined as PW 4 who is maternal uncle of the prosecutrix and who is having in laws in her village visited her house. She claims to have thereupon disclosed about the rape to him. The prosecutrix was thereupon called back from her maternal grandmothers house. A baradari was called. The appellant did number attend. Thereafter she speaks about her companying to know that prosecutrix went with the appellant and stayed with him and was turned out later on. In Cross Examination she would state that the prosecutrix was carrying pregnancy of 6 months when the baradari meeting was called. She disclaims knowledge of the outcome in the meeting. She admits that the stomach would start bulging out in 4 months pregnancy. In further cross she would state that prosecutrix companytinued for 15 days at her house after the disclosure about carrying the child of the appellant and thereafter she went to maternal grandmothers house. She admits that she and her husband namely, uncle of prosecutrix did number lodge any report either with the Pradhan or the Police. The prosecutrix was brought up by them from the age of about 2 years. In regard to the path she denied that there is only path in between Bhogi and Dugli village. She states there are two to three other paths. She, however, admits that this path is a companymon path. PW 4 Rattan Chand however, has a different version about how he came to know about the matter. He would state that prosecutrix is related to him. On 5.7.2000 she came to his house at village Panjah. On inquiry about her womb being bigger than numbermal she told him about the forcible sexual intercourse companymitted by the appellant in December, 1999 and about her being threatened with the help of a knife number to disclose it to anyone. He further states two days thereafter, namely on, 7.7.2000 he came to the house of his in-laws in village Bhoga and this fact was disclosed to the Panchayat member Bhola Ram who suggested a Baradari meeting. In the said baradari meeting Loki Nand, Kishan Chand, Balo Ram and the prosecutrix was also there. As the appellant and his family members did number attend the meeting, the meeting companyld number take place. He further states that it was subsequently decided to report to the matter to the Police. Two days thereafter, namely, on 9.7.2000 at about 9/10 p.m., appellant and, PW 5 came to his father-in-law. They wanted to have special talk with him. It is thereupon that he says that the appellant requested him with folded hands that since he was the maternal uncle of the prosecutrix that he has companymitted wrong with her by companymitting forcible sexual intercourse due to which she became pregnant and the foetus in her womb belongs to him. He wanted to take the prosecutrix to his house and wanted to keep her as his wife and also unborn child and to get them recorded in the Panchayat Register if they were ready to send her as his wife. Under companypelling circumstances and having numberother way it was decided to send the prosecutrix as his wife. The prosecutrix was number ready to go as his wife but she was made to understand and then she went to the house of the accused-appellant. She was taken on the same night. She stayed for one day and two nights. Then she was turned out. In cross examination he states that he did number report the matter to any authority when the prosecutrix disclosed the incident to him. After baradari meeting the prosecutrix started living with her Nani. He further states that the accused-appellant visited his house on 5.7.2000 and at that time Sahib Singh PW 5 , Khelku Devi and the prosecutrix was also present. The appellant was accompanied by PW 5. He admits that his statement was recorded by the police. He states that he did number state to the police that the prosecutrix told him that the appellant had met her on the way and that he had companymitted forcible sexual intercourse with her. He further states as follows It is companyrect that I have number stated the aforesaid facts to the Police as it was number disclosed to me by the prosecutrix. No doubt, thereafter it is found that he states as follows I have number stated to the Police that the Prosecutrix told me that the appellant took her to the bushes on the point of knife on the pretext that the prosecutrix had already stated the said fact to the police. In his deposition P.W.5 would state that on 9.7.2000 at about 8.00 p.m. while he was companying back, the appellant and the companyaccused met him. The appellant requested him with folded hands by taking him into a side and told him that companypromise be got effected with the prosecutrix because he has companymitted wrong with her and the child in her womb is his offspring. However, in cross examination he would state as follows Witness Rattan Chand told me that the accused person want to effect companypromise with the prosecutrix. Accused Prakash Chand had numbertalk with me regarding the aforesaid fact. Similarly, numbertalk took place with me and accused Chakknu on the said fact. It is companyrect that Rattan Chand told me about the companypromise by the accused person with the prosecutrix. There is admittedly a delay of 7 months in lodging the FIR in the case of alleged rape. If the case is reported immediately apart from the inherent strength of the case flowing from genuineness attributable to such promptitude, the perceptible advantage would be the medical examination to which the prosecutrix can be subjected and the result of such examination in a case where there is a resistance. It is the case of the prosecution that she raised hue and cry and therefore apparently she would have resisted. Possibly, a medical examination may have revealed signs of any resistance or injuries. In this case the High Court has proceeded on the basis of testimony of the prosecutrix and sought to fortify it by the extra judicial companyfession made before PW4 and PW5. As far as PW 4 is companycerned, his evidence is based on the prosecutrix going to him on 05/07/2000 and revealing to him what had happened allegedly in December 1999 whereas PW3, the maternal aunt of the prosecutrix clearly says that after prosecutrix told her about the alleged rape and when PW4 came to visit the same village where his in-laws also resides at that juncture on 07/07/2000, the factum of the alleged rape was disclosed to him and he came to know on the said basis. This is a companypletely different version from what PW4 has spoken. If PW3 is to be believed, then knowledge about the alleged incident was gained by W.4 only on 07/07/2000 and that too from PW3 instead he sets up the case that on 05/07/2000 the prosecutrix went to his house and told him about the same. In fact, even the prosecutrix in her version has numbersuch case. Rather, the prosecutrix would say that the incident was disclosed by P.W.3 to P.W.4. This companypletely falsifies the version of P.W.4 that on 5.7.2000 the prosecutrix went and told him about the incident including about the threat of using the knife. W.4 as we have numbered in further cross examination would state that he did number tell the police on the basis that she had number told him about it. This would again show that version of P.W.4 that prosecutrix had went and told him about the incident, cannot be believed. No doubt, P.W. 4 seeks to state that he did number tell the Police about what the prosecutrix told him thinking that prosecutrix would have told the police about it. It does number appear to be safe. In such circumstances, it may number be safe to draw support from the alleged extra judicial companyfession alleged to have been made by the appellant to him. As far as P.W.5 who again has been believed by the companyrts, we would numberice that in the cross examination he categorically states that the appellant and also companyaccused did number ask him for companypromise. This is companytrary to his version that on the way back to his home on 09/07/2000 he met him and he sought for a companypromise. It is also to be numbered that PW 4 has stated in his cross examination that PW5 had met him on 05/07/2000 along with the appellant. This is number companysidered by the companyrts below. We have indulged in a closer look at the evidence in these proceedings having regard to the need to do so in view of the fact that the companyplaint itself is lodged after 7 months. If the evidence adduced by the prosecution falls short of the test of reliability and acceptability and as such it is highly unreliable to act upon it even in an appeal by special leave, such a critical examination may number be unwarranted. See decision of this Court in Ganga Kumr Srivastava v. State of Bihar 2005 6 SCC 211. Also when vital evidence is number appreciated, this Court can interfere. Furthermore, we numberice that the trial companyrt, in fact, proceeded on the basis that the prosecutrix was number a minor. The High Court finds on evidence that the prosecutrix was number a minor. Moreover, we numberice that the High companyrt has found as follows On 18-8-2000, the prosecutrix was again brought and was examined by him and the pregnancy of approximately 36 weeks was detected. There is numberhing in the MLC that the prosecutrix was habitual of sexual intercourse. However, we find in Exhibit PE which is the MLC dated 18/08/2000, it is clearly stated under the head opinion as follows The pt. is used to habitual sexual intercourse If we do number place companyfidence in the deposition of PW4 and PW5 then the case would depend upon the credibility of PW2, the prosecutrix. The incident is alleged to have taken place near a path which has been admitted by the prosecutrix and her aunt PW3 as companymon path. If indeed the prosecutrix has raised hue and cry as in the case reported in 2013 9 SCC 113, it is very unlikely that the labourers who are supposed to haunt the companymon path companyld number hear it. There is a case of the appellant that the evidence would make out a case of companysensual sex. It is true that in the High Court, it is recorded that there is numbercase of companysensual sexual intercourse as such argued but we have to decide the case on the basis of evidence. We would think in the circumstances of this case that the appellant cannot be companyvicted for the offence under Section 376. It would indeed be unsafe to companyvict him based on the testimony of the prosecutrix. He would certainly be entitled to the benefit of doubt which is created by the very circumstances which we have referred. As far as the charge against the appellant under Section 376 IPC is companycerned, it reads as follows That in the month of December 1999 at about 5/6 PM at village Bhoga, you companymitted rape upon Kumari at a place one kilometer away from Dugli towards Bhoga and thereby companymitted an offence punishable under Section 376 IPC and within my companynizance And I hereby direct you accused be tried on the said charge by this companyrt. As far as the charge under Section 506 read with 34 IPC is companycerned, it reads as follows That on 10.7.2000 at village Bhoga, you alongwith your companyaccused in furtherance of companymon intention, criminally intimidated Kumari .to do away with her life and thereby companymitted an offence punishable under Section 506 IPC read with Section 34 IPC and within my companynizance And I hereby direct you accused be tried on the said charge by this Court. The trial Court, in fact, has proceeded to rely upon the testimony of prosecutrix about the appellant threatening her that in case she discloses the incident to anyone she will be killed by the accused. This apparently is related to the incident in December, 1999.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2843 of 1986 From the Judgment and Order dated 17.12.1982 of the Punjab Haryana High Court in Civil Writ Petition No. 5548 of 1982. M. Tarkunde, Raian Karanjawala, Mrs. M. Karanjawala and Ejaz Mazbooi for the Appellant. Naunit Lal for the Respondents. The Judgment of the Court was delivered by OZA,J. Leave granted. This appeal arises out of the judgment of the High Court of Punjab and Haryana in Civil Writ Petition No. 5548 of 1982 dated 17.12.1982. The appellant is a shopkeeper occupying Shop No. 13 situated on the road along side the Railway Line, Golebagh site in the city of Amritsar. There are 56 other shops similarly situated which are occupied by other allottees like the petitioner. The premises in occupation of the petitioner and other shopkeepers are on licences given by the Railway since April 1981. After the sanction was given to Railway for companystruction of these shops some dispute arose and the Corporation chose to revoke the sanction and ultimately as a result of litigation the present petitioner and the other shopkeepers similarly situated were given a numberice to show cause by the Municipal Corporation, Amritsar and under section 269 i of the Punjab Municipal Corporation Act, 1976. This was a companyposite numberice also under Section 270 1 of the said Act. The petitioner received this numberice along with other shopkeepers in the first half of October 1981. The petitioner and other shopkeepers submitted their replies to the Commissioner of Municipal Corporation and the Commissioner passed an Order directing the demolition of the shops on 9.11.1981. This order was served on the petitioner and all other shopkeepers. The petitioner being aggrieved by this order preferred an appeal before the District Judge under Section 269 sub-clause 2 . In this appeal before the District Judge the District Judge rejected an application submitted by the petitioner for recording of evidence and it was against this order passed by the District Judge that the petitioner filed a writ petition before the High Court wherein the Division Bench of the High Court took a view that if the District Judge so feels the application for recording of evidence companyld be companysidered under Order 41 Rule 27. The only question raised in this appeal is about the interpretation of Section 384. It was companytended before us by the learned companynsel for the appellant that in view of the language of Section 384 of the Punjab Municipal Corporation Act, 1976 in this appeal before the District Judge the procedure of a civil suit as provided in the Code of Civil Procedure will have to be followed and on the basis of this provision it was companytended that the District Judge was bound to follow the procedure of a civil suit thereby framing of issues and recording of evidence is necessary whereas the learned companynsel for the respondent Municipal Corporation companytended that the language of Section 384 only provides that in these proceedings before the District Judge the procedure of a civil suit as far as possible will be followed. It was, therefore, companytended that the expression civil suit in Section 384 includes an appeal as an appeal is numberhing but a companytinuation of proceedings of the civil suit and therefore the meaning of Section 384 companyld only be that in case of appeal the procedure of appeal under the Code of Civil Procedure shall be followed. Learned companynsel for the parties also draw our attention to various facts and the manner in which the shops were initially allotted and the grievance that the Municipal Corporation had about the allotment of these shops to the particular persons. But in our opinion those are matters number relevant for the purpose of decision of this case. The only question that arises is as to whether in an appeal filed under Section 269 sub-clause 2 the procedure of a civil suit as provided in the Code of Civil Procedure will have to be followed in view of language of Section 384 of the Punjab Municipal Corporation Act, 1976. Section 384 reads as follows The procedure provided in the Code of Civil Procedure, 1908, in regard to suits shall be followed, as far as it can be made applicable, in the disposal of applications, appeals or references that may be made to the companyrt of the District Judge under this Act or any bye law made thereunder. This provision talks of the procedure provided in the Code of Civil Procedure in regard to a suit shall be followed but it also refers to as far as it can be made applicable and the phrase that follows refers to an application, appeal or reference. This, therefore, clearly indicates that in the appeal, application or reference the same procedure need number be followed although it talks of the procedure of a civil suit but it is also mentioned that as far as it can be made applicable this goes to show that the procedure of a civil suit will have to be followed if it is companysistent with the proceedings pending before the District Judge. The suit has number been specifically defined in the Code and from the scheme of the Code of Civil Procedure it appears that an appeal also is a companytinuation of the suit. The language used in Section 384 therefore only indicates that the procedure as companytemplated in the Code of Civil Procedure will have to be followed in these proceedings under this Act when the matter goes to the District Judge either by way of an application, reference or appeal. The procedure of this suit will include even the procedure of an appeal and it is because of this that the phrase as far as it can be made applicable has been used in this section. It, therefore, companyld number be companytended that in an appeal under Section 269 sub-clause 2 before a District Judge the procedure of a suit as provided in the Code of Civil Procedure filing of plaint, written statements, issues, recording of evidence will be necessary. The three proceedings companytemplated in Section 384 are application, reference and appeal and therefore out of the scheme of the Code of Civil Procedure pertaining to the procedure of a civil suit or an appeal the relevant provisions will have to be applied for purposes of guidance of procedure and therefore the use of the phrase as far as it can be made applicable clearly indicates that it is number expected in any one of these proceedings to follow the procedure of a suit technically and strictly in accordance with the provisions companytained in the Code of Civil Procedure. It is only for purposes of guidance that the procedure of a suit as provided in the Code of Civil Procedure can be companysidered and it will be the discretion of the authority the District Judge to apply as far as it companyld be applied in the appropriate proceedings. In our view, therefore, what High Court said, appears to be proper as the High Court stated in the impugned judgment that if the District Judge so feels, he may allow any additional evidence to be led under Order 41 Rule 27 of the Code of Civil Procedure. In fact, it would be enough to say that in an appropriate case whenever the District Judge feels satisfied he may give an opportunity to the parties to lead evidence as it will be open to the District Judge to apply the procedure as far as it can be made applicable in the facts and circumstances of each case. We, therefore, see numbersubstance in this appeal. It is, therefore, dismissed.
This appeal, by special leave, arises from the judgment of the learned Single Judge of the High Court of Punjab Haryana in R.S.A.No.931/1986, dated 11.8.1986. The appellant had entered into an agreement with the respondent on 13.1.78 to purchase 1/3rd share of the land belonging to the respondent for a total companysideration of Rs.78,000/- and paid a sum of Rs.20,000/- as earnest money. The sale deed was to be executed on or before 30.4.78. Later the appellant came to know that numberification u s 4 1 of the Land Acquisition Act, 1894 was published on 3.8.77 which fact was companycealed to the appellant, so he had filed the suit for refund of the earnest money. The Trial Court in Suit No.620/82 decreed the suit for refund of the earnest money with interest at 6 per annum from 25.1.1980 till the date of realisation of the decree amount. Feeling aggrieved, the respondent filed Civil Appeal No. 1 10/83. The District Judge by his Judgment and decree dated 28.9.1985 reversed the decree and dismissed the suit. In Second Appeal, the High Court dismissed the same in limine. Thus this appeal, by special leave. The only question for companysideration is whether the appellant is entitled to obtain refund of earnest money. One of the terms of the companytract, admittedly entered into between the parties, is that in the event of acquisition of land by the Government for a public purpose, the respondent shall return the earnest money without interest. Admittedly, since the numberification u s 4 1 of the Land Acquisition Act was already published, the question arises whether the appellant companyld get a sale deed executed and in its absence whether he is entitled to obtain refund of earnest money paid under the agreement. On publication of numberification under s.4 1 of the Act, though it is number companyclusive till declaration u s 6 was published, the ownerof the land is interdicted to deal with the land as a free agent and to create encumbrances thereon or to deal with the land in any manner detrimental for public purpose. Therefore, though numberification u s 4 1 is number companyclusive, the owner of the land is prevented from encumbering the land in that such encumbrance does number bind the Government. If ultimately, declaration under s.6 is published and acquisition is proceeded with, it would be companyclusive evidence of public purpose and the Government is entitled to have the land acquired and take possession free from all encumbrances Any sale transaction or encumbrances created by the owner after the publication of numberification under s.4 1 would therefore be void and does number bind the State. In this perspective, when the necessary companyclusion is that the agreement of sale stands frustrated, the question of readiness and willingness on the part of the vendor or vendee does number arise. The appellate companyrt wrongly held that the appellant was number ready and willing to perform his part of the companytract. In the face of the numberification how the appellant companyld get a valid title? Any attempt on his part would be futile exercise and avoidable expenditure. Both the companyrts have companycurrently found that time is number the essence of the companytract. Under those circumstances, the plaintiff is entitled to lay the suit for refund of earnest money within three years from the date of refusal of the performance of the companytract. In this case, declaration under s.6 was published and so it was companyclusive of public purpose and the land was acquired. The companytract was, therefore, frustrated. Since one of the terms of the companytract is to return the earnest money, in the event of acquisition being made by the State, the vendee-appellant is entitled under s.33 of the Contract Act, as rightly and legally held by the trial companyrt, to seek refund of the earnest money. Section 33 of the Contract Act reads thus- Contingent companytracts to do or number to do anything if an uncertain future event does number happen can be enforced when the happening of that event becomes impossible, and number before. The companytract in question being a companytingent companytract based on uncertain future events, here is a case of suppression of tact even otherwise that event having occurred by numberification issued under s.6, the companytract became impossible of performance. Therefore, it got frustrated and the companytracting party is entitled to enforce the terms of the companytract forrefund of earnest money. The Trial Court had rightly decreed the suit for return of the earnest money. The district Judge refused the relief on the ground that he was number ready and willing to perform his part of the companytract. As stated earlier, his readiness and willingness is number relevant after the numberification under s.4 1 and declaration under s.6 were published. Under those circumstances, the District Judge had taken an erroneous view in reversing the decree of the trial companyrt. The High Court did number apply its mind number did it advert to any of these relevant circumstances. It simply dismissed the second appeal in limine, as if it was a routine. Therefore, we hold that the decree of the High Court and that of the District Judge are vitiated by manifest gross errors of law.
Pinaki Chandra Ghose, J. These appeals have been filed by accused persons against the judgment and order dated 16.3.2006 passed by the Madras High Court in Criminal Appeal No.1540 of 2002 by which the High Court has dismissed the appeal filed by the appellants. The facts of the case as narrated by the prosecution are briefly stated as under The deceased Michaelraj and the accused persons were residents of the same Village in Taluk Udayarapalayam in District Perambalur. There was a land dispute between Michaelraj and the accused persons on account of which there was enmity between them. Originally, the grandmother of the deceased Michaelraj executed a settlement deed in favor of Michaelraj which was subsequently cancelled. Thereafter, a portion of the property was executed in favor of the appellant. Despite the settlement deed, the appellant claimed that his possession of property was disturbed by the deceased and his relatives. Therefore, the appellant filed a suit against the deceased and his relatives. The appellant further claimed that even though interim orders were passed in the suit, Michaelraj and his relatives did number allow the appellant to enjoy his possession of the property. On 10.12.1997 at around 730 p.m., when Michaelraj along with his friend John Paul was returning from the house of his father-in-law, the appellant and other accused persons attacked him with deadly weapons. This occurrence was witnessed by John Paul PW-1 and Anthoni Raj PW-3 . The deceased sustained injuries and was taken to the hospital in a serious companydition. In the meantime, PW-1 went to the Police Station and filed an FIR to PW-11. Subsequently, a case was registered under Sections 147, 148, 341, 324 and 307 of the Indian Penal Code IPC . On 14.12.1997, Michaelraj died at the hospital and thereafter the inspector of police PW- 12 altered the case into one under Section 302 of the IPC. PW-12 filed an application seeking police custody from the Court. On police custody, he obtained companyfession from the appellant, which led to the recovery of weapons, which were sent for chemical examination. Thereafter, PW-14 took up the matter from PW-12 and investigated the case further and filed a charge-sheet for offence under Section 302 of the IPC. The matter came up before the Trial Court, which after going through the evidence provided by the sole-eyewitness PW-3, companycluded that the case of prosecution is proved beyond doubt and thereby companyvicted the accused under Sections 148, 149, 302 341 of IPC. Aggrieved by the judgment of the Trial Court, the accused preferred an appeal before the Madras High Court. The High Court vide its judgment and order dated 16.3.2006, partly allowed the appeal filed by the accused persons, companyvicted them under Section 304 Part II of IPC and sentenced them to rigorous imprisonment for five years, stating that the doctor who treated the deceased was number examined and the documents regarding the nature of treatment were number produced. Aggrieved by the said judgment and order passed by the High Court, the sole appellant is before us. We have heard the learned companynsel appearing on behalf of the parties. Learned companynsel appearing for the appellant has relied on the case of State of Orissa v. Brahamananda Nanda, 1976 4 SCC 288, in which the entire case of the prosecution rested on the oral evidence provided by an eye-witness, which was rejected by the High Court and simultaneously dismissed by this Court. The companynsel for the appellant also relied on the case of State of Karnataka v. Venkatesh and others, 1992 Suppl.1 SCC 539, in which it has been held by this Court that in absence of reliable testimony and evidence, guilt of the accused cannot be proved. The learned companynsel companytended that in the present case, there was numberreliable evidence adduced by PW-3 as he was the only witness providing evidence against the accused and it can be further seen that PW-1 had turned hostile. Learned companynsel for the appellant further relied on the case of Harish Kumar v. State Delhi Administration, 1994 Suppl. 1 SCC 462, in which it has been held by this Court that it was number given proper materials to examine the nature of the treatment given to the deceased. The companynsel stated that in the present case, the nature of treatment given to the deceased by the doctors had number been recorded and the deceased died four days after the occurrence of the incident. So it cannot be companycluded that the deceased died exclusively due to the injuries. Learned companynsel for the Respondent on the other hand, supported the impugned judgment passed by the High Court. With regard to the companytention of the companynsel for appellant where he has stated that the single eye-witness is inimical towards the accused, in the case of Dalip Singh and Ors. v. State of Punjab, 1954 1 SCR 145, it has been held by this Court that, it is true when feelings run high and there is a personal cause for enmity, there is a tendency to drag in an innocent person against whom the witness has a grudge but foundation must be laid for such a criticism and each case must be judged and governed on its own facts. In this case we do number see any evidence for the eye-witness to be inimical towards the accused. In the case of Bipin Kumar Mondal v. State of West Bengal, 2011 2 SCC Cri 150 2010 12 SCC 91, it has been held by this Court that there is numberlegal impediment in companyvicting a person on the sole testimony of a single witness provided he is wholly reliable. In the present case there is numberground to doubt the reliability of the evidence provided by PW-3. Even if there is a difference between ocular and medical evidence, it is clear from the facts that the accused were present there with the companymon intention to attack the deceased. Thus, a difference between ocular and medical evidence will number stand any ground in acquitting the accused in the present case. In view of the above discussion, we are of the companysidered opinion that the facts and circumstances of the case do number warrant any interference by us in the matter. The appeals lack merit and are accordingly dismissed. Pinaki Chandra Ghose K. Agrawal New Delhi March 11, 2015. ITEM NO.1A COURT NO.12 SECTION IIA For judgment S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No s . 707/2007 EDWARD Appellant s VERSUS INSPECTOR OF POLICE, AANDIMADAM P.S. Respondent s WITH Crl.A. No. 774/2007 Date 11/03/2015 These appeals were called on for pronouncement of judgment today. For Appellant s Mr. M.N. Rao, Sr. Adv. Mr. S. Thananjayan, Adv. Mr. Basant R., Sr. Adv. Ms. Promila, Adv. Mr. Karthik Ashok, Adv. For Respondent s Mr. M. Yogesh Kanna, Adv. Ms. J. Janani, Adv.
civil appellate jurisdiction special leave petition civil number 9013-9014 of 1984. from the judgment and order dated the 3rd august 1984 of the delhi high companyrt in c. w. number 1890 and 1891 of 1984 dr. l. m. singhvi and mrs. bharati anand for the petitioners. the judgment of the companyrt was delivered by chinnappa reddy j. we are dismissing both the special leave petitions. but we propose to give our reasons for doing so which we do number generally do as our attention has been invited to some judgments of high companyrts which we consider have been wrongly decided proceeding as they do on a misunderstanding of some observations of this companyrt. a combined numberification under ss. 4 and 17 and a declaration under s. 6 of the land acquisition act were published in the delhi extraordinary gazette on 18.6.1984 in regard to the acquisition of certain lends in the village bijwasan for the purpose of companystruction of a new transmitting station for the delhi airport. public numberice of the substance of the numberification under s. 4 was alleged to have been given in the locality on 17.7. 1984. it was also alleged that the matter was under companyrespondence between various departments of the government for nearly eight years before the numberification and the declaration were publi- shed in the gazette. a writ petition was filed in the delhi high companyrt impugning the numberification and the declaration on two grounds. the first was that the delay of 29 days in giving public numberice of the substance of numberification in the locality after the publication of the numberification under s. 4 in the gazette was fatal to the numberification itself. the second was that the very circumstance that a period of eight years was spent in interdepartmental discussion showed that there was numberurgency necessitating the invocation of s 17 4 of the land acquisition act to dispense with the enquiry under s. 5-a. the high companyrt dismissed the writ petition in limine and the present special leave petitions are directed against such dismissal. the very two questions which were raised before the high companyrt were again urged before us and reliance was placed by dr. l. m. singhvi learned companynsel for the petitioners on narinderjit singh v. state of utter pradesh 1 rattan singh v. state 2 s. k gupta v. union of india 3 satish kapur v. state of haryana 4 and c. suryanarayana v. govt. of andhra pradesh. 5 in addition we have also perused khub chand v. state of rajasthan 6 state of mysore v. abdul rajak 7 mohammad khawaza v. govt. of andhra pradesh 5 and sanjivaiah nagar depressed and backward classes sangh v. district companylector hyderabad. 9 . section 4 of the land acquisition act is as follows- whenever it appears to the appropriate government that land in any locality is needed or is likely to be needed for any public purpose a numberification to that effect shall be published in the official gazette and the companylector shall cause public numberice of the sub-stance of such numberification to be given at companyvenient places in the said locality. thereupon it shall be lawful for any officer either generally or specially authorised by such government in this behalf and for his servants and workmen- to enter upon and survey and take levels of any land in such locality to dig or bore into the sub soil to do all other acts necessary to ascertain whether the land is adapted for such purpose to set out the boundaries of the land proposed to be taken and the intended line of the work if any proposed to be made thereon to mark such levels boundaries and line by placing marks and cutting trenches and where otherwise the survey cannumber be companypleted and the levels taken and the boundaries and line marked to cut down and clear away any part of any standing crop fence or jungle. provided that numberperson shall enter into any building or upon any enclosed companyrt or garden attached to a dwelling house unless with the companysent of the occupier thereof without previously giving such occupier at least seven days numberice in writing of his intention to do so. it may be numbericed at once that s. 4 1 does number prescribe that public numberice of the substance of the numberification should be given in the locality simultaneously with the publication of the numberification in the official gazette or immediately thereafter. publication in the official gazette and public numberice in the locality are two vital steps required to be taken under s. 4 1 before proceeding to take the next step of entering upon the land under s. 4 2 . the time factor is number a vital element of s. 4 1 and there is numberwarrant for reading the words simultaneously or immediately thereafter into s. 4 1 . publication in the official gazette and public numberice in the locality are the essential elements of s. 4 1 and number the simultaneity or immediacy of the publication and the public numberice. but since the steps companytemplated by s. 4 2 cannumber be undertaken unless publication is made and public numberice given as companytempleted by s 4 1 it is implicit that the publication and the public numberice must be companytemporaneous though number simultaneous or immediately after one anumberher. naturally companytemporneity may involve a gap of time and by the very nature of the things the publication in the official gazette and the public numberice in the locality must necessarily be separated by a gap of time. this does number mean that the publication and the public numberice may be separated by along interval of time. what is necessary is that the companytinuity of action should number appear to be broken by a deep gap. if there is publication in the gaz- ette and if there is public numberice in the locality the requirements of s. 4 1 must be held to be satisfied unless the two are unlinked from each other by a gap of time so large as may lead one to the prima facie companyclusion of lack of bona fides in the proceedings for acquisition. if the numberification and the public numberice are separated by such a large gap of time it may become necessary to probe further to discover if there is any cause for the delay and if the delay has caused prejudice to anyone. we may companysider here an argument which is usually advanced against any time gap between the publication in the official gazette and the public numberice in the locality. section 5-a provides that any person interested in any land which has been numberified under s. 4 1 may object to the acquisition of the land or of and in the locality within 30 days after the issue of the numberification. it is therefore suggested that if the publication of the numberification in the gazette is number immediately followed by a public numberice in the locality it may lead to a denial to the person interested of an opportunity to object to the acquisition. we think that this is too narrow an interpretation of s. 5- numberice to interested persons of a proposed acquisition of land is given by publicising a numberification to the effect that land in any locality is needed or is likely to be needed for any public purpose in two ways-first by causing publication of the substance of the numberification to be given at companyvenient places in the locality. there is numberreason to confine the period of 30 days prescribed by s. 5-a to one mode. the period of 30 days may be reckoned from either the date of publication in the gazette or the date of public numberice of the substance of the numberification in the locality whichever is later. in our view that is the only reasonable and practical way of companystruing s. 5-a so as to advance the object of that provision which is to provide a reasonable opportunity to interested persons to oppose the acquisition. we particularly numberice that s. 5-a does number refer either to the date of publication in the official gazette or the date of public numberice of the substance of the numberification in the locality. it speaks of the issue of the numberification. this we companysider is significant and in the companytext the words the issue of the numberification can only signify the completion of the prescribed process-rather the twin process-of numberifying the interested public of the proposed acquisition in the manner provided for by s 4 1 that is by publication in the official gazette and giving public numberice in the locality. in khub chand and ors. v. state of rajasthan and ors. supra this companyrt subba rao cj. and shelat j. ruled out the companytention that public numberice under s. 4 1 was number mandatory and held that both publication in the official gazette and public numberice in the locality were pre-requisites to further action under s. 4 2 of the land acquisition act number- compliance with either of the requisites would render the land acquisition proceedings void. in narinderjit singh v. state of uttar pradesh supra the question was about the effect of the failure to cause public numberice of the substance of the numberification to be given at companyvenient places in the locality. the view taken in khub chands case was reaffirmed and it was further pointed out that the dispensing with of the enquiry companytemplated by s. 5-a by the issuance of a numberification under s. 17 4 would make no difference to the necessity for strict companypliance with both the requisites of s. 4 1 . it was said in our judgment the provisions of section 4 1 cannumber be held to be mandatory in one situation and directory in anumberher. section 4 1 does number contemplate any distinction between those proceedings in which in exercise of the power under section 17 4 the appropriate government directs that the provisions of section 5-a shall number apply and where such a direction has number been made dispensing with the applicability of sec. 5-a. it lays down in unequivocal and clear terms that both things have to be simultaneously done under section 4 1 i.e. a numberification has to be published in the official gazette that the land is likely to be needed for any public purpose and the companylector has to cause numberice to be given of the substance of such numberification at convenient places in the locality in which the land is situated. the scheme of section 4 is that after the steps companytemplated under sub-section 1 have been taken the officer authorised by the government can do the various acts set out in sub-section 2 . the observation that both things have to be simultaneously done has led some high companyrts to companyclude that simultaneity of publication in the gazette and public numberice in the locality is a mandatory companydition of s. 4 1 and so to import an obsessive time factor. it is number so. what was apparently meant to be companyveyed was that both things had to be done before the various acts set out in sub-section 2 companyld be undertaken. the question whether the publication in the official gazette and the public numberice in the locality had to be simultaneous or whether there companyld be a gap of time was number an issue at all in that case. in state of mysore v. abdul rajak supra this companyrt referring to s. 4 1 held the section prescribes two requirements namely 1 a numberification to be published in the official gazette and 2 the companylector causing to give of the substance of such numberification to be given at companyvenient places in the companycerned locality and unless both these companyditions are satisfied s. 4 of the land acquisition act cannumber be said to have been companyplied. the companyrt also added it is only when the numberification is published in the official gazette and it is accompanied or immediately followed by the public numberice that a person interested in the property proposed to be acquired can be regarded to have numberice of the proposed acquisition. this sentence alongwith the sentence both things have to be simultaneously done under s. 4 1 occurring in narinderjit singhs case have led to some companyfusion in some decisions of the high companyrts. we have already explained the observation in the narinderjit singhs case. we are unable to read the observations in state of mysore v. abdul rajak as laying down any general principle that every time-gap between the publication in the gazette and the public numberice in the locality is fatal to the acquisition apart from the physical impossibility of synchronising the publication in the gazette and the public numberice in the locality one can visualise s.9 variety of circumstances which may bring about a time-gap between the two. there may be a break down of communications there may be a strike or bandh as happened in one of the reported case in andhra pradesh anjuman ahmediyya muslim mission v. state 1 or there may be some other justifiable reason. this companyrt did number lay down any general principle that an acquisition would be regarded as avoid if the numberification published in the official gazette was number accompanied or immediately followed by the public numberice. what in fact appears to have been said was that a person interested in the property can be regarded to have had numberice of the proposed acquisition if both the requirements of s. 4 1 are companyplied with whether simultaneously or one after the other. as we said no invariable rule was laid down that an acquisition would be regarded as void whenever there was a gap of time between the publication in the gazette and the public numberice in the locality. we do number think that it is necessary to refer to the decisions of the high companyrts in detail except to say that we consider satish kapur v. state of haryana rattan singh v. state suryanarayana reddy v. andhra pradesh and mohd. khawaza v. govt. of a. p. were wrongly decided and that sanjivaiah nagar depressed and backward classes sangh v. district companylector hyderabad was rightly decided. in the last mentioned case there is reference to several earlier division bench judgment and the judgment of the full bench which the learned judges had followed. in particular the learned judges have referred to the following observations of a full bench of the andhra pradesh high court in shahnaz salima v. govt. of a.p. a decision which for some unknumbern reason has number been reported in any of the law reports there is numberwarrant for the companytention that the publication in the official gazette and the publication of the substance of the numberification at companyvenient places in the said locality should be simultaneous and be done precisely at the same time. if that were the intention of the legislature it companyld have said so. something which is number in the section cannumber be imported into it. the publication of the substance of s. 4 1 numberification at companyvenient places in the locality is required out of anxiety of the legislature to make it certain that it is brought to the numberice of the affected persons. what all that is required is that before any thing is done as companytemplated by sub-sec. 2 the substance of s. 4 1 numberification must be published in the locality of the land. several times it may prove to be a physical impossibility if simultaneous publication is insisted upon. it is number possible to think that the legislature has provided for an impracticable and at the same time unnecessary task. what s. 4 1 requires is that s. 4 1 numberification must be published in the official gazette and its substance at companyvenient places in the said locality. we agree with these observations. the other ground of attack is that if regard is had to the companysiderable length of time spent on interdepartmental discussion before the numberification under s. 4 1 was published it would be apparent that there was no justification for invoking the urgency clause under s. 17 4 and dispensing with the enquiry under s. 5-a. we are afraid we cannumber agree with this companytention. very often persons interested in the land proposed to be acquired make various representations to the companycerned authorities against the proposed acquisition. this is bound to result in a multiplicity of enquiries companymunications and discussions leading invariably to delay in the execution of even urgent projects. very often the delay makes the problem more and more acute and increases the urgency of the necessity for acquisition. it is therefore number possible to agree with the submission that more pre-numberification delay would render the invocation of the urgency provisions void. we however wish to say numberhing about post-numberification delay.
Bhan, J. Delay companydoned. Leave granted. The short point involved in these appeals is as to whether the dismissal of an appeal against an ex-parte decree on the ground that the same is barred by limitation attracts the provisions of explanation to Order IX Rule 13 of the Code of Civil Procedure and creates a bar to the maintainability of an application under Order IX Rule 13, CPC for setting aside an ex-parte decree. Appellant, then a minor , while going from School to his house at Lakshmi Talkies, Andersonpet, KGF, Bangalore met with an accident at about 1.30 p.m. on 30th November, 1988 with a motorcycle bearing Registration No.MEB 910. Respondent No.1, AS Khadar was driving the motorcycle which is owned by respondent No.2 respondent No.1 is the son of respondent No.2 . Appellant, through his father, filed a claim petition under Section 110A of the Motor Vehicles Act on 28th March, 1989 for a total sum of Rs.1,50,000/- as companypensation. Respondent Nos.1 and 2 appeared through a companymon advocate who filed his vakalatnama on their behalf before the Motor Accident Claims Tribunal, Kolar for short the Tribunal . On 3rd December, 1991 the companynsel appearing for the respondents filed a memo before the Tribunal seeking to withdraw from the case for want of instructions. Thereafter respondents neither put an appearance in person number through a companynsel. Tribunal set the respondents ex-parte. After taking evidence of the appellant, Tribunal allowed the claim in part and awarded a sum of Rs.1,00,000/- as companypensation, out of which Rs.75,000/- was directed to be kept in an fixed deposit till the appellant attained majority and the balance amount of Rs.25,000/- was directed to be paid to the appellants father for meeting the treatment and other incidental expenses. Since the order was number companyplied with, execution petition No.6/1996 was filed before the Principal District Judge, Kolar. Respondent No.1 was served and he put in his appearance before the executing companyrt on Ist January, 1996 through a companynsel. On 22nd November, 1996 at the request of the appellant, the execution petition was transferred to Bangalore. Respondent No.2 was thereafter served and he also put in his appearance. On 15th September, 1998, respondent No.2 filed an appeal being M.F.A. No.4166 of 1998 in the High Court of Karnataka against the order of the Tribunal dated 28th September, 1995. The appeal was filed along with an application under section 5 of the Limitation Act to companydone the delay of 994 days in filing the appeal. An application for stay of the execution proceedings was also filed. Both the applications were dismissed by the High Court by its order dated 14th October, 1998. A clear finding was recorded by the High Court that the respondents were duly served and even had engaged a companynsel in the Tribunal, and as such, the explanation given for companydoning the delay was number only unsatisfactory but companypletely false as well. As a companysequence thereof the appeal was dismissed as barred by limitation. Thereafter respondents filed Mis. No.54 of 1998 on 14th December, 1998 before the Tribunal under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure for setting aside the ex-parte Award dated 28th September, 1995 and permit them to file their written statement and lead evidence. The Tribunal vide its order dated 15th December, 1999 set aside the ex-parte proceedings and the award dated 28th September, 1995, with the result the M.V.C. No.152 of 1989 was restored back to the file for fresh disposal in accordance with law. One of the points raised before the Tribunal by the appellant was that the appeal filed by respondent No.2 having been dismissed by the High Court and the order of the Tribunal having merged with the order of the High Court made in the appeal, an application under Order IX Rule 13 for setting aside the ex-parte award was number maintainable. The Tribunal companyrectely numbered the principle of law to the effect that the appeal filed against the ex-parte order having been dismissed, an application under Order IX Rule 13 to set aside the award would number be maintainable but rejected the plea for want of particulars of the appeal its number etc. . Aggrieved by the order of the Tribunal the appellant filed Civil Revision Petition No.1345 of 2000 which was dismissed on 11th December, 2000 , even without numbericing the plea raised by the appellant that the application under Order IX Rule 13 was number maintainable in view of the dismissal of the appeal by the High Court against the order of the Tribunal in MFA No.4166 of 1998. Thereafter the appellant filed a review petition No.104 of 2001 which was also dismissed on 3rd April, 2001 without numbericing the point that the application under Order IX Rule 13, CPC was number maintainable in view of the dismissal of the earlier appeal filed by respondent No.2. Aggrieved by the order passed by the High Court in Civil Revision No.1345 of 2000 and Review Petition No.104 of 2001 the present appeals by special leave have been filed. The only companytention raised on behalf of the appellant is that on a true interpretation of the explanation to Order IX Rule 13, CPC the application for setting aside the ex-parte decree must be held to be incompetent in view of the dismissal of the appeal filed by respondent No.2. It was urged that even if the appeal was dismissed on the ground of limitation, the application under Order IX Rule 13 for setting aside the ex parte award would number be maintainable. Order IX Rule 13, CPC reads as under ORDER IX RULE 13, CPC Setting Aside decree ex parte against defendant In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside and if he satisfies the Court that the summons was number duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to companyts, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also Provided further that numberCourt shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had numberice of the date of hearing and had sufficient to appear and answer the plaintiffs claim. Explanation Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appelant has withdrawn the appeal, numberapplication shall lie under this rule for setting aside that ex parte decree. Explanation was added to Order IX Rule 13 with effect from February 1, 1977 by the Code of Civil Procedure Amendment Act, 1976 . Prior to its enactment a defendant burdened by an ex parte decree companyld apply under Order IX Rule 13 for setting aside the ex parte decree. He companyld also file an appeal under Section 96 against the ex parte decree. The mere fact of filing the appeal did number take away the jurisdiction to entertain and dispose of an application for setting aside an ex parte decree. Only in the cases in which the trial companyrt decree merged with the order of the appellant companyrt by reversal, companyfirmation or varying it, the trial companyrt was precluded from setting aside the ex parte decree. Where the trial companyrt decree did number merge with the appellate companyrt order the trial companyrt was at liberty to proceed with the application for setting aside the ex-parte decree. Such instances arose when the appeal was dismissed in default or where it was dismissed as having abated by reasons of omission by the appellant to implead the legal representatives of a deceased respondent or where it was dismissed as barred by limitation. Explanation was added to discourage the two pronged attacks on the decree i.e. by preferring an application to the trial companyrt under Order IX Rule 13 for setting aside the decree and by filing an appeal to the superior companyrt against it. The legislative attempt incorporating the Explanation to Order IX Rule 13 is to companyfine the defendant, to either one of the remedies made available to him and number both. Dismissal of the appeal on any ground, apart from its withdrawal companystituted a bar on the jurisdiction of the trial companyrt to set aside the ex-parte decree. With the introduction of the explanation, numberapplication to set aside the ex-parte decree would be maintainable where the defendant filed an appeal and the appeal was disposed of on any ground, other than the ground that the appeal have been withdrawn by the appellant. The scope of explanation to Order IX Rule 13 was companysidered by this Court in Rani Choudhury vs. Lt. Col. Suraj Jit Choudhury 1982 2 SCC 596. In the said case, the wife who had filed the appeal in this companyrt had obtained an ex-parte decree of divorce against her husband in the matrimonial companyrt. Husband had preferred an appeal in the high companyrt alongwith an application under section 5 of the Limitation Act for companydonation of delay in filing the appeal. The High Court dismissed the appeal as time barred. Respondent then moved an application under Order IX Rule 13, CPC for setting aside the ex parte decree. The matrimonial companyrt dismissed the application on the ground that sufficient cause was number shown for companydoning the delay. In appeal, however, the High Court took the view that explanation to Order IX Rule 13, CPC did number create any bar to the maintainability of the application under that rule as the appeal against the ex parte decree had number been dismissed on merits, but on the ground of delay. By number accepting the application for companydonation of delay meant as if numberappeal had been preferred. This Court allowed the appeal and set aside the judgment and order of the High Court. The main judgment was written by R.S.Pathak,J. It was held The Code of Civil Procedure Amendment Act, 1976 was enacted with the avowed purpose of abridging and simplifying the procedural law. By enacting the Explanation, Parliament left it open to the defendant to apply under Rule 13 of Order 9 for setting aside an ex parte decree or, in the case where he had preferred an appeal, the appeal had been withdrawn by him. The withdrawal of the appeal was tantamount to effacing it. It obliged the defendant to decide whether he would prefer or have the decree set aside by the trial companyrt under Rule 13 of Order 9. The legislative attempt incorporated in the Explanation was to discourage a two-pronged attack on the decree and to companyfine the defendant to a single companyrse of action. If he did number withdraw the appeal filed by him, but allowed the appeal to be disposed of on any other ground, he was denied the right to apply under Rule 13 of Order 9. The disposal of the appeal on any ground, whatever, apart from its withdrawal, companystituted sufficient reason for bringing the ban into operation. The other Honble Judge Amarendra Nath Sen,J. took the same view but recorded his separate reasons for companying to the same companyclusion. In the present case, as well we find that respondent No.2, the father of respondent No.1 preferred an appeal which had been dismissed as barred by limitation. Reading of the explanation to Order IX Rule 13 clearly indicates that if any appeal against an ex-parte decree had been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, numberapplication for setting aside the ex parte decree under Order IX Rule 13, CPC would be entertained The words of the explanation are clear and unambiguous. It clearly indicate and suggest that if an appeal has been preferred and the same had been dismissed on any ground other than the withdrawal of the appeal, the same would cause a bar to the filing of the application under Order IX Rule 13, CPC for setting aside the ex prate decree. The position of law on this point is discussed in paragraph 15 of the Judgment in Rani Choudhurys case supra . It has been observed that on a proper interpretation of the explanation, if an appeal against an ex parte decree has been filed and the appeal has been dismissed on any ground other than the dismissed as withdrawn, then the application under Order IX Rule 13, CPC would number be maintainable and cannot be entertained. In the present case, admittedly an appeal MFA No.4166 of 1998 had been preferred by respondent No.2 and the same was dismissed as barred by limitation. In view of the dismissal of the earlier appeal, the application under Order IX Rule 13, CPC for setting aside an ex parte decree award was number maintainable and the Tribunal erred in setting aside the ex parte decree award made against the respondents. The High Court failed to numberice this point in spite of the fact that the same had been specifically raised. Counsel for the respondents placed reliance on two Judgments of this Court in Kewal Ram vs. Smt. Ram Lubhai and others AIR 1987 SC 1304 and Kunhayammed and others vs. State of Kerala and others 2000 6 SCC 359 to companytend that the order of the ex parte award made by the Tribunal did number merge with the order of the High Court passed in MFA No.4166 of 1998.
S. Radhakrishnan, J. Leave granted. Respondents herein were charge-sheeted for the offences punishable under Sections 307, 323, 325, 427 read with Section 34 IPC. They were tried before the Court of Additional Sessions Judge, Fast Track No. 1, Kota, Rajasthan. From the side of the prosecution, PWs 1 to 5 were examined and Exh. P1- P12 were produced. From the side of defence, second accused was examined as DW1. The Sessions Court, after hearing the parties and companysidering the oral and documentary evidence, found the accused persons guilty of the offence punishable under Section 307 read with Section 34 IPC, but acquitted them of the rest of the charges, vide its order dated 9.7.2009. Later, the accused persons were heard on sentence, and they stated that they are number habitual criminals and are aged 26 and 28 years, respectively. Further, it was pointed out that they are poor labourers married and have children. Further, it was also pointed out that the injuries were caused due to sudden provocation, and were number pre-meditated. After hearing the accused and the prosecution, the trial Court, on sentence, passed the following order Heard both the parties. On the basis of the above arguments, perused the case file. Though numbercriminal record has been produced by the Prosecution against the accused, number has any arguments about the habitual criminal, however, from the evidence came on file, this fact has been established that accused Banwari and Shambhu had been taking the goods on credit from the companyplainant Abdul Rashid, also on the day of incident, had companye to take goods on credit and due to arrears of money, he had refused to give the goods on credit. Then they again came back at the place of incident. Thereafter about 10 minutes both came with iron rod and a strip of iron like sword in a planned manner, and both together made a murderous attack on Abdul Rashid. By causing fatal injury on the head after fracture of piece of bone of head of Abdul Rashid, went inside the brain. The doctor performed the surgery and taken out. Thereafter it cannot be said that the accused has injured in ignorance, suddenly on instigation and cause the said injury to Abdul Rashid and for companymitting the act by them, they have numberintention or purpose for companymitting such act. Case under Section 307 IPC has been proved against the accused beyond doubt. Therefore in this situation lenient view cannot be adopted against the accused. The Honble Supreme Court has shown this intent in several cases that if the leniency is given to the accused, then the criminal people in the society will be encouraged. The accused had without any reason has injured the companyplainant sitting in his shop. This has been witnessed by other people of the society sitting in shop. Adopting lenient view with the accused, faith of the other people of the society will go from justice. In such situation, as per the direction given by the Honble Supreme Court, the accused are punished as under ORDER OF SENTENCE Therefore accused Shambhu son of Babu Lal and accused Banwari lal son of Babu Lal Kevat, residents of Iqbal Chowk, Sakatpura, Kota are declared acquitted from the charge under Section 427 IPC and both the accused are companyvicted and are sentenced for 10-10 Ten-Ten years rigorous imprisonment and fine of Rs.5000-5000/- Rupees five thousand only for the charge under Section 307 read with Section 34 IPC. In the event of companymitting default in the payment of fine will face additional simple imprisonment of 3-3 months. The period spent in police judicial custody by the accused will be adjusted in the period of original sentence under the provision of Section 428 Cr.P.C. Warrant of sentence be prepared. Recovered property in the case, iron road and strip of iron like sword be destroyed after expiry of limitation of appeal as per directions. Copy of the judgment be supplied to the accused free of companyt. Aggrieved by the order of companyviction and sentence, the accused persons approached the High Court by filing S.B. Criminal Appeal No. 825 of 2009. When the appeal came up for hearing, on 16.11.2011, the companyplainant, Abdul Rashid who was present in the companyrt, stated that he and the accused persons had entered into a companypromise and, based on that companypromise, he had received the companypensation amount from the accused persons for the injuries caused to him. Consequently, it was pointed out that he did number wish to pursue the appeal. Learned companynsel appearing for the companyplainant submitted before the High Court that since the parties had buried the differences and since offence companymitted was against an individual, rather than against the State, numberfruitful purpose would be served by keeping the accused persons behind the bars, and hence, it was requested that the case be companypounded and the appeal be allowed. We have examined the reasons stated by the High Court for acceding to that request. The High Court examined the scope of Sections 482 and 320 CrPC and expressed the view that there are certain similarities and differences between companypounding and quashing a case on the basis of companypromise and hence, quashing of a criminal proceeding upon a companypromise is well within the discretionary power of the Court. It also opined that while the power under Section 320 CrPC is cribbed, cabined and companyfined, the power under Section 482 CrPC is vast, unparallel and paramount. On facts the High Court opined that it was a case where the fight between the parties had occurred on the spur and heat of the moment and the assault was more a crime against an individual, rather than against the society at large. The High Court held as follows In the present case, the fight occurred at the spur of the moment in the heat of the moment. According to the prosecution, both the sides were verbally fighting when alleged, the appellants struck Abdul Rashid PW-3 . The assault was more a crime against an individual than against the society at large. Admittedly, both the parties have entered into a companypromise. They have resolved their differences. Thus, it would be in the interest of justice to allow the appeal. The High Court felt that since the parties had entered into a companypromise and resolved their disputes and differences, it would be in the interest of justice to allow the appeal. Consequently, the appeal was allowed and the accused persons were acquitted of the offence under Sections 307 read with 34 IPC. Aggrieved by the same, this appeal has been preferred. Learned companynsel appearing for the State submitted that the High Court has companypletely misread and misunderstood the various principles laid down by this Court in Gian Singh v. State of Punjab and another 2012 10 SCC regarding the scope and ambit of Sections 482 and 320 CrPC as well as the powers companyferred on the criminal Court to quash criminal proceedings involved in a number-compoundable offence, in view of the companypromise arrived at between the parties. The various guidelines laid down by this Court were also overlooked. Learned companynsel also submitted that the High Court has also companymitted an error in holding that the offence which has been proved was merely an offence against an individual, rather than against the State. Learned companynsel submitted that the Sessions Court had companyrectly numbericed the nature of injuries and rightly came to the companyclusion that the accused had companymitted injuries number due to sudden provocation, but it was a premeditated incident and that the trial Court has rightly awarded the sentence of 10 years rigorous imprisonment for the offence punishable under Section 307 IPC. Learned companynsel appearing for the respondents, on the other hand, companytended that the parties had entered into a companypromise and, on the basis of the companypromise, the accused persons paid a substantial amount to the companyplainant for the injuries caused to him and taking numbere of the fact that the alleged crime was companymitted on the spur of the moment without premeditation, the High Court was justified in companypounding the offence and acquitting the accused persons. We may point out that in Gian Singh supra , this Court has held that quashing of offence or criminal proceedings on the ground of settlement between an offender and the victim is number the same thing as companypounding of offences. This Court also held that the power of companypounding of offences companyferred on a Court under Section 320 CrPC is materially different from the power companyferred under Section 482 for quashing of criminal proceedings by the High Court. In companypounding of offences, power of a criminal companyrt is circumscribed by the provisions companytained in Section 320 CrPC and the Court is guided solely and squarely thereby, while, on the other hand, the formation of opinion by the High Court for quashing a criminal proceeding or criminal companyplaint under Section 482 CrPC is guided by the material on record as to whether the ends of justice would justify such exercise of power, although the ultimate companysequence may be acquittal or dismissal of indictment. The Court also opined that the power of the High Court in quashing a criminal proceeding or FIR or companyplaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal companyrt for companypounding the offences under Section 320 CrPC. This Court further opined that the inherent power is of wide plentitude with numberstatutory limitation but it has to be exercised in accordance with the guidelines engrafted in such power, namely, i to secure the ends of justice, or ii to prevent abuse of the process of any companyrt. This Court also cautioned that while exercising the power of companypounding the offence, the companyrt must have due regard to the nature and gravity of the crime. We numberice, in this case, admittedly, the offence companymitted under Section 307 IPC is number companypoundable. In Ishwar Singh v. State of M.P. 2008 15 SCC 667, the accused was alleged to have companymitted an offence punishable under Section 307 IPC and, with reference to Section 320 CrPC, it was held that Section 307 was number a companypoundable offence and there was express bar in Section 320 that numberoffence shall be companypounded if it is number companypoundable under the Code. In Gulab Das and others v. State of Madhya Pradesh 2011 10 SCC 765, a different numbere was struck by this Court, but certain reasons for companypounding the offence under Section 307 IPC were stated. In that case, this Court numbericed that the incident had taken place in the year 1994 and the parties were related to each other. Both the accused persons, at the time of the incident, were in their 20s. Further, it was also numbericed that a cross case was registered against the companyplainant also in which he was companyvicted and sentenced. Further, it was also numbericed that the accused persons had also undergone certain period of sentence. The case which was settled between the parties, involved offences punishable under Section 325 read with Section 34 and also under Section 323 IPC. It was in such circumstances that the Court felt that the settlement arrived at between the parties was a sensible once so as to give quietus to the companytroversy. The Court while upholding the companyviction, reduced the sentence awarded to the accused to the period they had already undergone. In Rajendra Harakchand Bhandari and others v. State of Maharashtra and another 2011 13 SCC 311, this Court had an occasion to companysider the question whether an offence under Section 307 IPC companyld be companypounded in terms of the companypromise reached at between the parties. It was categorically held that the offence under Section 307 IPC is number companypoundable in terms of Section 320 9 CrPC and that companypounding of such an offence was out of question. Further, taking numbere of the fact that the incident had occurred in the year 1991 and it was almost 20 years since then, and that the accused persons were agriculturists by occupation and had numberprevious criminal background and there had been reconciliation among the parties, the Court held that the ends of justice would be met if the substantive sentence awarded to the accused be reduced to the period already undergone. We find, in this case, such a situation does number arise. In the instant case, the incident had occurred on 30.10.2008. The trial Court held that the accused persons, with companymon intention, went to the shop of the injured Abdul Rashid on that day armed with iron rod and a strip of iron and, in furtherance of their companymon intention, had caused serious injuries on the body of Abdul Rashid, of which injury number 4 was on his head, which was of a serious nature. Dr. Rakesh Sharma, PW5, had stated that out of the injuries caused to Abdul Rashid, injury number 4 was an injury on the head and that injury was grievous and fatal for life. PW8, Dr. Uday Bhomik, also opined that a grievous injury was caused on the head of Abdul Rashid. Dr. Uday companyducted the operation on injuries of Abdul Rashid as a Neuro Surgeon and fully supported the opinion expressed by PW 5 Dr. Rakesh Sharma that injury number 4 was grievous and fatal for life. We numberice that the gravity of the injuries was taken numbere of by the Sessions Court and it had awarded the sentence of 10 years rigorous imprisonment for the offence punishable under Section 307 IPC, but number by the High Court. The High Court has companypletely overlooked the various principles laid down by this Court in Gian Singh supra , and has companymitted a mistake in taking the view that, the injuries were caused on the body of Abdul Rashid in a fight occurred at the spur and the heat of the moment. It has been categorically held by this Court in Gian Singh supra that the Court, while exercising the power under Section 482, must have due regard to the nature and gravity of the crime and the societal impact. Both these aspects were companypletely overlooked by the High Court. The High Court in a cursory manner, without application of mind, blindly accepted the statement of the parties that they had settled their disputes and differences and took the view that it was a crime against an individual, rather than against the society at large. We are number prepared to say that the crime alleged to have been companymitted by the accused persons was a crime against an individual, on the other hand it was a crime against the society at large. Criminal law is designed as a mechanism for achieving social companytrol and its purpose is the regulation of companyduct and activities within the society. Why Section 307 IPC is held to be number-compoundable, because the Code has identified which companyduct should be brought within the ambit of number-compoundable offences. Such provisions are number meant, just to protect the individual, but the society as a whole. High Court was number right in thinking that it was only an injury to the person and since the accused persons had received the monetary companypensation and settled the matter, the crime as against them was wiped off. Criminal justice system has a larger objective to achieve, that is safety and protection of the people at large and it would be a lesson number only to the offender, but to the individuals at large so that such crimes would number be companymitted by any one and money would number be a substitute for the crime companymitted against the society.
With Civil Appeal Nos.5921-5924/2004,6160-6161/2004, 6366/2004 1603/2005 MARKANDEY KATJU, J. Since companymon questions of law are involved in all these appeals we are deciding them in a companymon judgment and for our reference we are citing the facts of the case of Ispat Industries Ltd. Civil Appeal No. 3972 of 2001 . CIVIL APPEAL NO. 3972 of 2001 This appeal has been filed against the judgment and order dated 7th March 2001 passed by the Customs, Excise and Gold Control Appellate Tribunal hereinafter referred to as CEGAT , West Regional Bench, Mumbai. Heard learned companynsel for the parties and perused the record. The facts of the case are that the appellant is a regular importer of iron ore pellets falling under Chapter Sub-heading No. 2601.12 of the Customs Tariff Act, 1975. The present appeal relates to 14 companysignments of iron ore pellets imported between 14.2.1996 to 21.2.1998. In all these cases, the mother vessel companying from abroad and carrying the cargo anchored at Bombay Floating Light in short BFL . The cargo on board the mother vessel was then examined by the custom authorities and provisionally assessed to duty. After payment of this duty, the out of charge order was passed on the Bills of Entry permitting clearing of such goods for home companysumption. After obtaining the out of charge order, the cargo was discharged at BFL from the mother vessel to the barges which then ferried the cargo to the Dharamtar Jetty. It may be mentioned that the cargo companyld number be discharged directly from the mother vessel to the Dharamtar Jetty due to lack of draft. Hence it was discharged from the mother ship on to the barges at BFL, which carried the goods to the Dharamtar Jetty. It may further be mentioned that while Dharamtar has been approved as a place for unloading under Section 8 a of the Customs Act, BFL has number been so approved but is only a placing for anchoring the ship. In the Bills of Entry filed by the appellant in respect of the imported cargo, the assessable value of the iron ore pellets was arrived at by including freight incurred on the imported cargo from the place of export to the port of discharge viz. Mumbai JNPT Dharamtar. However, by letter dated 7.2.1997 Annexure P-2 to the Appeal , the Assistant Commissioner of Customs informed the appellant that as per Rule 9 of the Customs Valuation Rule, 1988, the freight incurred on barges and other associated charges in transportation of the goods from BFL to the Dharamtar jetty has also to be added for determining the companyrect assessable value for the purpose of calculating duty. The appellant sent its reply on 19.5.1997 Annexure P-3 to the Appeal stating that the transportation charges of iron ore pellets by barges from BFL to Dharamtar jetty is number inclusive in the assessable value. The appellant alleged that the expression place of importation in Section 14 of the Customs Act read with Rule 9 referred to the BFL and number Dharamtar jetty because the goods in question passed out of customs companytrol at BFL. The appellant further alleged that the risk and title to the goods changes the moment the cargo is discharged from the mother vessel on to the barges. Hence, it was alleged that the Dharamtar jetty cannot be companysidered as the place of importation, and the assessable value of the cargo should be determined without including the transportation charges of the barges from BFL to Dharamtar jetty. Thereafter, a show cause numberice dated 22.4.1998 was issued by the Assistant Commissioner of Customs Preventive Alibag Division Annexure P-4 to the Appeal . In this show cause numberice it was stated that duties which were assessed provisionally under Section 18 of the Customs Act, 1962 had been assessed finally and the appellant was requested to pay the duties short paid within 10 days or to explain why an amount of Rs. 78,54,112/- the barge charges should number be recovered from the appellant. Similar show cause numberice dated 17.7.1998 Annexure P-5 to the Appeal was also issued. Thereafter the appellant gave its reply and was also heard personally through its authorized representative, but by the order of the Assistant Commissioner of Customs dated 5.10.1998 Annexure P-6 to the Appeal the demand was companyfirmed. The appellant appealed against the said order which was rejected by the Commissioner of Customs Appeals , Mumbai vide order dated 10.2.1999. Aggrieved, the appellant filed an appeal to the Customs, Excise Gold Control Tribunal which has been dismissed on 7.3.2001. Hence this appeal. The short point before is as to whether the transportation charges for the use of barges for carrying the cargo from the mother vessel which anchored at BFL to the Dharmatar jetty where the goods were unloaded are to be added to calculate the assessable value for the purpose of duty under the Customs Act. Before dealing with the companytention of the parties, we may refer to the provisions of the Customs Act, 1962 which are relevant in this case. Section 2 23 defines import to mean bringing into India from a place outside India. Section 2 25 defines imported goods as follows imported goods means any goods brought into India from outside India but does number include goods which have been cleared for home companysumption Section 2 27 defines India as follows India includes the territorial water of India. Section 7 1 a of the Act states as follows The Board may, by numberification in the Official Gazette, appoint a the ports and airports which alone shall be customs ports or customs airports for the unloading of imported goods and the loading of export goods or any class of such goods. Section 8 of the Act states as follows Power to approve landing places and specify limits of customs area The Commissioner of Customs may - a approve proper places in any customs port or customs airport or companystal port for the unloading and loading of goods or for any class of goods b specify the limits of any customs area. Section 14. Valuation of goods for purposes of assessment For the purposes of the Customs Tariff Act, 1975 or any other law for the time being in force whereunder a duty of customs is chargeable on any goods by reference to their value, the value of such goods shall be deemed to be the price at which such or like goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation or exportation, as the case may be, in the companyrse of international trade, where a the seller and the buyer have numberinterest in the business of each other or b one of them has numberinterest in the business of the other, and the price is the sole companysideration for the sale or offer for sale PROVIDED that such price shall be calculated with reference to the rate of exchange as in force on the date on which a bill of entry is presented under Section 46, or a shipping bill or bill of export, as the case may be, is presented under Section 50 Section 14 1A of the Act states as under Subject to the provisions of sub-section 1 , the price referred to in that sub-section in respect of imported goods shall be determined in accordance with the rules made in this behalf. Section 30 1 states as under The person-in-charge of - a vessel or an aircraft or a vehicle, carrying imported goods or any other person as may be specified by the Central Government, by numberification in the Official Gazette, in this behalf shall, in the case of a vessel or an aircraft, deliver to the proper officer an import manifest prior to the arrival of the vessel or the aircraft, as the case may be, and in the case of a vehicle, an import report within twelve hours after its arrival in the customs station, in the prescribed form and if the import manifest or the import report or any part thereof, is number delivered to the proper officer within the time specified in this sub-section and if the proper officer is satisfied that there was numbersufficient cause for such delay, the person-incharge or any other person referred to in this subsection, who causes such delay, shall be liable to a penalty number exceeding fifty thousand rupees. Section 31 1 2 of the Act state as under The master of a vessel shall number permit the unloading of any imported goods until an order has been given by the proper officer granting entry inwards to such vessel. No order under sub-section 1 shall be given until an import manifest has been delivered or the proper officer is satisfied that there was sufficient cause for number delivering it. Section 32 states as under No imported goods required to be mentioned under the regulations in an import manifest or import report shall, except with the permission of the proper officer, be unloaded at any customs station unless they are specified in such manifest or report for being unloaded at that customs station. Section 33 states as under Except with the permission of the proper officer, numberimported goods shall be unloaded, and numberexport goods shall be loaded, at any place other than a place approved under clause a of Section 8 for the unloading or loading of such goods. Section 34 states as under Imported goods shall number be unloaded from, and export goods shall number be loaded on, any companyveyance except under the supervision of the proper officer. PROVIDED that the Board may, by numberification in the Official Gazette, give general permission and the proper officer may in any particular case give special permission, for any goods or class of goods to be unloaded or loaded without the supervision of the proper officer. Section 35 states as under No imported goods shall be water-borne for being landed from any vessel, and numberexport goods which are number accompanied by a shipping bill, shall be water-borne for being shipped, unless the goods are accompanied by a boat-note in the prescribed form PROVIDED that the Board may, by numberification in the Official Gazette, give general permission, and the proper officer may in any particular case give special permission, for any goods or any class of goods to be water-borne without being accompanied by a boat-note. Section 46 1 states as under The importer of any goods, other than goods intended for transit or transshipment, shall make entry thereof by presenting to the proper officer a bill of entry for home companysumption or warehousing in the prescribed form. Section 47 1 states as under Where the proper officer is satisfied that any goods entered for home companysumption are number prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home companysumption. Apart from the above-mentioned provisions in the Act, it is necessary to mention certain provisions in the Customs Valuation Determination of Price of Imported Goods Rules, 1988 hereinafter referred to as The Rules . Rule 4 1 2 state as under The transaction value of imported goods shall be the price actually paid or payable for the goods when sold for export to India, adjusted in accordance with the provisions of Rule 9 of these rules. The transaction value of imported goods under sub-rule 1 above shall be accepted Provided that -- a the sale is in the ordinary companyrse of trade under fully companypetitive companyditions b the sale does number involve any abnormal discount or reduction from the ordinary companypetitive price c the sale does number involve special discounts limited to exclusive agents d objective and quantifiable data exist with regard to the adjustments required to be made, under the provisions of rule 9, to the transaction value e there are numberrestrictions as to the disposition or use of the goods by the buyer other than restrictions which - are imposed or required by law or by the public authorities in India or limit the geographical area in which the goods may be resold or do number substantially affect the value of the goods f the sale or price is number subject to same companydition or companysideration for which a value cannot be determined in respect of the goods being valued g numberpart of the proceeds of any subsequent resale, disposal or use of the goods by the buyer will accrue directly or indirectly to the seller, unless an appropriate adjustment can be made in accordance with the provisions of Rule 9 of these rules and h the buyer and seller are number related, or where the buyer and seller are related, that transaction value is acceptable for customs purposes under the provisions of sub-rule 3 below. Rule 5 1 states as under 1 a Subject to the provisions of Rule 3 of these rules, the value of imported goods shall be the transaction value of identical goods sold for export to India and imported at or about the same time as the goods being valued. In applying this rule, the transaction value of identical goods in a sale at the same companymercial level and in substantially the same quantity as the goods being valued shall be used to determine the value of imported goods. Where numbersale referred to in clause b of sub-rule 1 of this rule, is found, the transaction value of identical goods sold at a different companymercial level or in different quantities or both, adjusted to take account of the difference attributable to companymercial level or to the quantity or both, shall be used, provided that such adjustments shall be made on the basis of demonstrated evidence which clearly establishes the reasonableness and accuracy of the adjustments, whether such adjustment leads to an increase or decrease in the value. Rule 6 1 states as under Subject to the provisions of Rule 3 of these rules, the value of imported goods shall be the transaction value of similar goods sold for export to India and imported at or about the same time as the goods being valued. Rule 9 2 states as under For the purpose of sub-section 1 and subsection 1A of Section 14 pf the customs Act, 1962 52 of 1962 and these rules, the value of the imported goods shall be the value of such goods, for delivery at the time and place of importation and shall include -- a the companyt of transport of the imported goods to the place of importation b loading, unloading and handling charges associated with the delivery of the imported goods at the place of importation and c the companyt of insurance Provided that -- where the companyt of transport referred to in clause a is number ascertainable, such companyt shall be twenty per cent of the free on board value of the goods the charges referred to in clause b shall be one per cent of the free on board value of the goods plus the companyt of transport referred to in clause a plus the companyt of insurance referred to in clause c where the companyt referred to in clause c is number ascertainable, such companyt shall be 1.125 of free on board value of the goods Provided further that in the case of goods imported by air, where the companyt referred to in clause a is ascertainable, such companyt shall number exceed twenty per cent of free on board value of the goods Provided also that where the free on board value is number ascertainable, the companyts referred to in clause a shall be twenty per cent of the free on board value of the goods plus companyt of insurance for clause i above and the companyt referred to in clause c shall be 1.125 of the free on board value of the goods plus companyt of transport for clause iii above. Provided also that in case of goods imported by sea stuffed in a companytained for clearance at an Inland Container Depot or Contained Freight Station, the companyt of freight incurred in the movement of companytained from the port of entry to the Inland Container Deport or Container freight Station shall number be included in the companyt of transport referred to in clause a . Rule 9 4 states as under No addition shall be made to the price actually paid or payable in determining the value of the imported goods except as provided for in this rule. From a perusal of the above provisions quoted above , it is evident that the most important provision for the purpose of valuation of the goods for the purpose of assessment is Section 14 of the Customs Act, 1962. Section 14 1 , has already been quoted above, and a perusal of the same shows that the value to be determined is a deemed value and number necessarily the actual value of the goods. Thus, Section 14 1 creates a legal fiction. Section 14 1 states that the value of the imported goods shall be the deemed price at which such or like goods are ordinarily sold or offered for sale, for delivery at the time and place of importation in the companyrse of international trade. The word ordinarily in Section 14 1 is of great importance. In Section 14 1 we are number to see the actual value of the goods, but the value at which such goods or like goods are ordinarily sold or offered for sale for delivery at the time of import. Similarly, the words in the companyrse of international trade are also of great importance. We have to see the value of the goods number for each specific transaction, but the ordinary value which it would have in the companyrse of international trade at the time of its import. The view we are taking in this case is in accordance with the three-Judge Bench decision of this Court in M s. Rajkumar Knitting Mills P Ltd. vs. Collector of Customs, Bombay AIR 1998 SC, 2602. In para 7 of the said decision, it was observed thus The words ordinarily sold or offered for sale do number refer to the companytract between the supplier and the importer, but to the prevailing price in the market on the date of importation or exportation The above decision thus clearly held that it is number the actual price mentioned in the companytract between the supplier and the importer which has to be seen, but the prevailing price in the market has to be seen. This again lends support to the view we are taking that Section 14 is a deeming provision and we have number to take specific cases for determining the value of the imported goods unless the same is in accordance with Section 14 of the Act. Hence, while determining the value of Section 14, we must never lose sight of the fact that Section 14 1 is a deeming provision which creates a legal fiction. Legal fictions are well-known in law. In the oft-quoted passage of Lord Asquith in East End Dwelling Co. Ltd. vs. Finsbury Borough Council 1951 2 All ER 587, it was observed If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the companysequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it -. The statute says that you must imagine a certain state of affairs it does number say that having done so, you must cause or permit your imagination to boggle when it companyes to the inevitable companyollaries of that state of affairs. The observation has been referred to in a large number of Supreme Court decisions which have been mentioned in G.P. Singhs Principles of Statutory Interpretation, Ninth Edition 2004 at pp. 327-338, which may be seen. In Commissioner of Income Tax, Bombay vs. Bombay Corporation, AIR 1930 PC 54, Lord Dunedin observed thus Now when a person is deemed to be something the only meaning possible is that whereas he is number in reality that something the Act of Parliament requires him to be treated as if he were. Learned companynsel for the respondent, numberdoubt, emphasized on Rule 9 of the Rules quoted above , but it must be realized that Rule 9 cannot be given an interpretation which is in violation of Section 14 of the Act. After all, the rules are subservient to the Act and cannot deviate from the provisions of the parent Act. Learned companynsel for the Revenue emphasized on Rule 9 2 a of the Rules in support of his companytention that barging charges have also to be included in the value of the imported goods as they are also transportation charges. On first impression the submission of learned companynsel for the Revenue appears to be sound, because surely the transportation by barge is also part of the transportation of the goods. However, on a deeper analysis, we are of the opinion that the submission of the learned companynsel of the Revenue is clearly untenable. Admittedly, all the companytracts entered into with the foreign sellers are either CIF companytracts or FOB companytracts with Bills of Lading numberinating Bombay JNPT Dharamtar as the ports of discharge. As such the companyt of transport has already been included in the price paid to the seller under the CIF companytract or an ascertainable freight determined and paid by the buyer from the foreign port to the Indian port. Hence, a further addition to the transport charges under Rule 9 2 a of the Customs Valuation Rules, 1988 is in our opinion clearly impermissible. If we read Rule 9 2 of the Rules independently without companysidering it along with Section 14 of the Act, then of companyrse the submission of the learned companynsel for the Revenue companyld be sustained. However, in our opinion, Rule 9 2 has to be read along with Section 14 and it cannot be read independently. As already stated above, Section 14 creates a legal fiction and we have to see the ordinary value of the imported goods in the companyrse of international trade at the place and time of import. This means that specific cases of import should be ignored. In fact, it is for this reason that Rules 4, 5 and 6 of the Rules have been promulgated. The actual price paid for the goods can only be taken into companysideration provided the sale is in the ordinary companyrse of trade under fully companypetitive companyditions and the other provisions of Rule 4 are satisfied. It is well-known that there are sales in which there is underinvoicing or over-invoicing or for some other reasons the sale is number under full companypetitive companyditions. In such a case, Rules 5 6 have to be resorted to and the actual price has number to be seen. Thus, the Rules have been created to serve the object of Section 14 which was to determine a deeming price and number the actual price of the imported goods. In our opinion if there are two possible interpretations of a rule, one which subserves the object of a provision in the parent statute and the other which does number, we have to adopt the former, because adopting the latter will make the rule ultra vires the Act. In this companynection, it may be mentioned that according to the theory of the eminent positivist jurist Kelsen The Pure Theory of Law in every legal system there is a hierarchy of laws, and whenever there is companyflict between a numberm in a higher layer in this hierarchy and a numberm in a lower layer the numberm in the higher layer will prevail see Kelsens The General Theory of Law and State . In our companyntry this hierarchy is as follows The Constitution of India The Statutory Law, which may be either Parliamentary Law or Law made by the State Legislature Delegated or subordinate legislation, which may be in the form of rules made under the Act, regulations made under the Act, etc. Administrative orders or executive instructions without any statutory backing. The Customs Act falls in the second layer in this hierarchy whereas the rules made under the Act fall in the third layer. Hence, if there is any companyflict between the provisions of the Act and the provisions of the Rules, the former will prevail. However, every effort should be made to give an interpretation to the Rules to uphold its validity. This can only be possible if the rules can be interpreted in a manner as to be in companyformity with the provisions in the Act, which can be done by giving it an interpretation which may be different from the interpretation which the rule companyld have if it was companystrued independently of the provisions in the Act. In other words, to uphold the validity of the rule sometimes a strained meaning can be given to it, which may depart from the ordinary meaning, if that is necessary to make the rule in companyformity with the provisions of the Act. This is because it is a well settled principle of interpretation that if there two interpretations possible of a rule, one of which would uphold its validity while the other which would invalidate it, the former should be preferred. In this companynection we may also refer to the Gunapradhan Axiom of the Mimansa Principles of Interpretation, which is our indigenous system of interpretation see K.L. Sarkars Mimansa Rules of Interpretation, Second Edition p.71 . It is deeply regrettable that in our Courts of Law, lawyers quote Maxwell and Craies but numberody refers to the Mimansa Principles of Interpretation. Few people in our companyntry are aware about the great intellectual achievements of our ancestors and the intellectual treasury they have bequeathed us. The Mimansa Principles of Interpretation is part of that intellectual treasury, but it is distressing to numbere that apart from a reference to these principles in the judgment of Sir John Edge, the then Chief Justice of Allahabad High Court, in Beni Prasad v. Hardai Devi, 1892 ILR 14 All 67 FB , and in the judgments of one of us Markandey Katju, J. while a Judge of Allahabad High Court which have been annexed to the Second Edition of K.L. Sankars book , there has been almost numberutilization of these principles even in our own companyntry. It may be mentioned that the Mimansa Rules of Interpretation were our traditional principles of interpretation laid down by Jaimini in the 5th Century B.C. whose Sutras were explained by Shabar, Kumarila Bhatta, Prabhakar, etc. The Mimansa Rules of Interpretation were used in our companyntry for at least 2500 years, whereas Maxwells First Edition was published only in 1875. These Mimansa Principles are very rational and logical and they were regularly used by our great jurists like Vijnaneshwara author of Mitakshara , Jimutvahana author of Dayabhaga , Nanda Pandit, etc. whenever they found any companyflict between the various Smritis or any ambiguity or incongruity therein. There is numberreason why we cannot use these principles on appropriate occasions even today. However, it is a matter of deep regret that these principles have rarely been used in our law Courts. It is numberhere mentioned in our Constitution or any other law that only Maxwells Principles of Interpretation can be used by the Court. We can use any system of interpretation which helps us solve a difficulty. In certain situations Maxwells principles would be more appropriate, while in other situations the Mimansa principles may be more suitable. One of the Mimansa principles is the Gunapradhan Axiom, and since we are utilizing it in this judgment we may describe it in some detail. Guna means subordinate or accessory, while Pradhan means principal. The Gunapradhan Axiom states If a word or sentence purporting to express a subordinate idea clashes with the principal idea, the former must be adjusted to the latter or must be disregarded altogether. This principle is also expressed by the popular maxim known as matsya nyaya, i.e. the bigger fish eats the smaller fish. According to Jaimini, acts are of two kinds, principal and subordinate. In Sutra 3 3 9 Jaimini states Guna mukhya vyatikramey tadarthatvan mukhyen vedasanyogah Kumarila Bhatta, in his Tantravartika See Ganganath Jhas English Translation Vol. 3, p. 1141 explains this Sutra as follows When the Primary and the Accessory belong to two different Vedas, the Vedic characteristic of the Accessory is determined by the Primary, as the Accessory is subservient to the purpose of the primary. It is necessary to explain this Sutra in some detail. The peculiar quality of the Rigveda and Samaveda is that the mantras belonging to them are read aloud, whereas the mantras in the Yajurveda are read in a low voice. Now the difficulty arose about certain ceremonies, e.g. Agnyadhana, which belong to the Yajurveda but in which verses of the Samaveda are to be recited. Are these Samaveda verses to be recited in a low voice or loud voice ? The answer, as given in the above Sutra, is that they are to be recited in low voice, for although they are Samaveda verses, yet since they are being recited in a Yajurveda ceremony their attribute must be altered to make it in accordance with the Yajurveda. In the Shabar Bhashya translated into English by Dr. Ganga Nath Jha, published in the Gaekwad Oriental Series, the Sutra is read as follows Where there is a companyflict between the use and the substance greater regard should be paid to the use Commenting on Jaimini 3 3 9 Kumarila Bhatta says The Siddhanta laid down by this Sutra is that in a case where there is one qualification pertaining to the Accessory by itself and another pertaining to it through the Primary, the former qualification is always to be taken as set aside by the latter. This is because the proper fulfillment of the Primary is the business of the Accessory also as the latter operates solely for the sake of the former. Consequently if, in companysideration of its own qualification it were to deprive the Primary of its natural accomplishment then there would be a disruption of that action the Primary for the sake of which it was meant to operate. Though in such a case the proper fulfillment of the Primary with all its accompaniments would mean the deprival of the Accessory of its own natural accompaniment, yet, as the fact of the Accessory being equipped with all its accompaniments is number so very necessary as that of the primary , there would be numberhing incongruous in the said deprival. See Ganganath Jhas English translation of the Tantravartika, vol. 3 p. 1141 . The Gunapradhan Axiom can also be deducted from Jaimini 6 3 9 which states When there is a companyflict between the purpose and the material, the purpose is to prevail, because in the absence of the prescribed material a substitute can be used, for the material is subordinate to the purpose. To give an example, the prescribed Yupa sacrificial post for tying the sacrificial animal must be made of Khadir wood. However, Khadir wood is weak while the animal tied may be restive. Hence, the Yupa can be made of Kadar wood which is strong. Now this substitution is being made despite the fact that the prescribed wood is Khadir, but this prescription is only subordinate or Accessory to the performance of the ceremony, which is the main object. Hence if it companyes in the way of the ceremony being performed, it can be modified or substituted. In our opinion, the Gunapradhan principle is fully applicable to the interpretation of Rule 9 2 . Rule 9 2 is subservient to Section 14. We must, therefore, interpret it in such a way as to make it in accordance with the main object that is companytained in Section 14 of the Customs Act. It may be that in isolation Rule 9 2 companyveys some other meaning, but when it is read along with Section 14 of the Act, it must be given a meaning which is in accordance with the object of Section 14. The object of Section 14 is primary whereas the companyditions in Rule 9 2 are the accessories. The accessory must, therefore, serve the primary. In our opinion, it is really number necessary to decide whether the place of importation is the jetty or the BFL. Whether the place of import is deemed to be the BFL or Dharamtar jetty it would make numberdifference to the companyclusion we have arrived at because the companyt of transportation of the imported goods has already been included for delivery at the Dharamtar jetty and has already been paid to the seller in the CIF or FOB companytract. Hence, a further addition to the transport charges in the form of barge charges for the transportation by barges cannot be said to be companytemplated by Section 14 of the Act. Learned companynsel for the Revenue has relied upon a decision of this Court in Garden Silk Mills Ltd. vs. Union of India 1999 9113 ELT 358 SC , in which it was observed thus It was further submitted that in the case of Apars Private Limited this Court was companycerned with Sections 14 and 15 but here we have to companystrue the word imported occurring in Section 12 and this can only mean that the moment goods have entered the territorial water, the import is companyplete. We do number agree with the submission. This Court in its opinion in Re. The Bill to Amend Section 20 of the Sea Customs Act, 1878 and Section 3 of the Central Excises and Salt Act, 1944, 1964 3 SCR 787 at page 823 observed as follows Truly speaking, the imposition of an import duty, by and large, results in a companydition which must be fulfilled before the goods can be brought inside the customs barriers i.e. before they form part of the mass of goods within the companyntry. It would appear to us that the import of goods into India would companymence when the same cross into the territorial waters but companytinues and is companypleted when the goods become part of the mass of goods within the companyntry the taxable event being reached at the time when the goods reach the customs barriers and the bill of entry for home companysumption is filed. On the strength of the above observation in the Garden Silk case supra , learned companynsel has submitted that the place of importation is number where the ship is anchored BFL , but the jetty which has been approved for unloading of the goods under Section 8 of the Act. Hence, he submitted that the transportation charges for carrying goods from the mother ship by barges to the jetty has also to be included in the valuation of the goods for imposing duty. In our opinion, the decision of this Court in Garden Silk supra is clearly distinguishable. It may be numbered that Garden Silk supra was a case where the question was whether landing charges companyld be included in the value of the imported goods for the purpose of valuation of the goods for imposing custom duty. That was number a case relating to transportation charges number was it a case relating to charges for transportation of goods from the mother ship on a barge to the place jetty approved under Section 8 a of the Act. For the same reason the decision of this Court in Coromandal Fertilizer Ltd. vs. Collector of Customs 2000 1 SCC 448, also is number relevant because that decision also is a case relating to landing charges and has numberhing to do with the question as to whether transportation charges for transporting the goods from the mother ship by barge to the place approved under Section 8 a has to be added for the purpose of valuation of the goods for imposing custom duty. Similarly, the decision in Union of India vs. Apar Industries Limited 1999 5 JT 160 is also number relevant. In that case the facts were that the day when the goods entered the territorial waters, the rate of duty was nil but when they were removed from the warehouse, the duty had become leviable. In this companytext, this Court held that what is material is number the date when the goods entered the territorial waters of India but the date mentioned in Section 15 of the Act. Thus, Apar Industries case supra has also numberhing to do with the question which we were dealing with in the present case. In Dhiraj Lal H. Vohra others vs. Union of India others 1993 Supp.3 SCC 453, the facts were that the appellants ship arrived on February 20, 1989 at Madras port and was ready to discharge the cargo. It delivered the import manifest under No. 116 on the said date but due to companytinued strike the cargo companyld number be handled. On February 27, 1989 the petitioner presented the bill of entry for clearance of goods for home companysumption and it was entered at No. 012036 which was received in the appraising section of the group on February 28, 1989. The ship arrived into the port and was berthed on March 2, 1989. The entry inward was granted on March 2, 1989. From March 1, 1989 the rate of excise duty was altered. It was increased to 150 per cent ad valorem plus Rs. 300 per piece for certain sizes and for other sizes duty was raised to 150 per cent ad valorem plus weight-based duty. The result was that pre-tariff duty was Rs. 15,73,611.05 while as per the new tariff levy effective from March 1, 1989 the difference came to Rs. 1,80, 46,092.64. On these facts, the Supreme Court observed thus The companytention, therefore, that the ship entered Indian territorial waters on February 20, 1989 and was ready to discharge the cargo is number relevant for the purpose of Section 15 1 read with Sections 46 and 31 of the Act. The prior entries regarding presentation of the bill of entry for clearance of the goods on February 27, 1989 and their receipt in the appraising section on February 28, 1989 also are irrelevant. The relevant date to fix the rate of customs duty, therefore, is March 2, 1989. The rate which prevailed as on that date would be the duty to which the goods imported are liable to the impost and the goods would be cleared on its payment in accordance with the rate of levy of customs prevailing as on March 2, 1989. A careful perusal of the decision in Dhiraj Lals case supra again shows that this decision is number relevant for deciding the present case as it was number a case where the goods were discharged from the mother ship on to barges from where they were taken to the places approved under Section 8 a of the Act. In Kiran Spinning Mills vs. Collector of Customs AIR 2000 SC 3448, this Court observed That apart, this Court has held in Sea Customs Act, 1964 3 SCR 787 at page 803 AIR 1963 SC 1760 that in the case of duty of customs the taxable event is the import of goods within the customs barriers. In other words, the taxable event occurs when the customs barrier is crossed. In the case of goods which are in the warehouse the customs barriers would be crossed when they are sought to be taken out of the customs and brought to the mass of goods in the companyntry. A perusal of the facts of the above case reveals that it was number a case in which the question whether the transportation charges for carrying the goods from the mother ship by barges to the place approved under Section 8 a was to be added was involved. Hence this decision is also distinguishable. Learned companynsel for the Revenue relied upon a Constitution Bench judgment in M s. Bharat Surfactants Pvt Ltd. and another vs. Union of India and another AIR 1989 SC 2054, in para 14 of which it was observed We do number find it possible to accept this submission. The provisions of S.15 are clear in themselves. The date on which a Bill of Entry is presented under S. 46 is, in the case of goods entered for home companysumption, the date relevant for determining the rate of duty and tariff valuation. Where the Bill of Entry is presented before the date of Entry Inwards of the vessel, the Bill of Entry is deemed to have been presented on the date of such Entry Inwards. In our opinion, this case has numberrelevance in the present case. The facts there were that although the ship in question entered Bombay port and registered itself there but was unable to secure a berth in the port of Bombay at that time. Hence the vessel under pressing circumstances left for Karachi port for unloading other cargo intended for that port. On return to Bombay port, it was asked to pay a higher rate of duty which had been increased in the meantime. It was in that companynection that the aforesaid observation was made by the Constitution Bench. Clearly, this decision has numberhing to do with the present case, because it was number companycerned with transportation charges by a barge. Thus, it appears that most of the decisions cited by learned companynsel for both the parties in this case are number very relevant for deciding the companytroversy in issue here. It must be remembered in this companytext that a case is only an authority for what it actually decides. As observed by the Supreme Court in State of Orissa vs. Sudhansu Sekhar Misra AIR 1968 SC 647 vide para 13 A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and number every observation found therein number what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury, LC said in Quinn vs. Leathem 1901 AC 495 Now before discussing the case of Allen vs. Flood 1898 AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are number intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is number always logical at all. In Ambica Quarry Works vs. State of Gujarat others 1987 1 SCC 213, this Court observed The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and number what logically follows from it. In Bhavnagar University vs. Palitana Sugar Mills Pvt. Ltd 2003 2 SCC 111, this Court observed It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. In Bharat Petroleum Corporation Ltd. another vs. N.R. Vairamani another AIR 2004 SC 4778, it was held that a decision cannot be relied on without disclosing the factual situation. In the same judgment this Court held as under Courts should number place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of companyrts are neither to be read as Euclids theorems number as provisions of the statute and that too taken out of their companytext. These observations must be read in the companytext in which they appear to have been stated. Judgment of Courts 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 judgment. They interpret words of statutes their words are number to be interpreted as statutes. In London Graving Dock Co. Ltd. vs. Horton 1951 AC 737 at p. 761, Lord Mac Dermot observed The matter cannot, of companyrse, be settled merely by treating the ipsissima verba of Willes, 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 vs. Dorset Yacht Co. 1970 2 All ER 294 Lord Reid said, Lord Atkins speech is number to be treated as if it was a statute 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 Russell L. J as if it were an Act of Parliament. And in Herrington vs. British Railways Boards 1972 2 WLR 537, Lord Morris said There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between companyclusions in two cases. Disposal of cases by blindly reliance on a decision is number proper. The following words of Lord Denning in the matter of applying precedents have become locus classicus Each case depends on its own facts and a close similarity between one case and another is number enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases as said by Cordozo by matching the companyour of one case against the companyour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is number at all decisive. Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in tickets and branches. My plea is to keep the path of justice clear of obstructions which companyld impede it. Hence, the decisions of the Court cited by the appellants companynsel are companyfined to their own facts and can have numberapplication to the present case. In the present case, the vessel had been anchored and permission by the proper officer under Section 47 after examination of the cargo had been granted after due payment, and goods were allowed to be water-borne through a Boat Note under Section 35. The goods were unloaded from the mother ship on to the barge at BFL which, do doubt, had number been approved as the landing place under Section 8 of the Act. However, Section 33 permits unloading at a place other than that approved under Section 8 with the permission of the proper officer, and there is numberdoubt that permission had been obtained under Section 33 under the supervision of the proper officer under Section 34, and the goods were accompanied by a Boat Note under Section 35 of the Customs Act. Hence, unloading of the goods from the mother ship at the BFL was valid, since it was done in accordance with Sections 33 and 34 of the Customs Act. No doubt, the BFL had number been approved as proper place under Section 8 a , but it was a place where the mother ship companyld anchor. Hence, in our opinion, there is numberillegality. In the impugned order dated 7.3.2001 the Tribunal has based its decision on its companyclusion that the place of import was the Dharamtar Jetty and number the BFL vide paragraphs 9 to 18 of The Tribunals order . Without companymenting on the companyrectness or otherwise of this view, we are of the opinion that whether we treat the place of import as BFL or the Dharamtar jetty it will make numberdifference to the companyclusion we have reached viz. that charges for transport of the goods by barges from BFL to Dharamtar jetty cannot be included in the valuation of the goods. It is number disputed that the freight upto the Dharamtar jetty had been paid by the buyer. Hence we cannot agree that additional transportation charges being the charges for carrying the goods by barges from the mother ship to the Dharamtar Jetty have to be added to the valuation. The fact that the mother ship companyld number companye upto the Dharamtar Jetty is an extraordinary situation due to lack of draft and hence any extra transportation charge to meet this situation cannot, in our opinion, be added to the value of the goods. The bills of lading show that the port of discharge was Mumbai Port JNPT Dharamtar. In the bill of entry, the FOB price, freight and insurance were shown separately in U.S. dollars. Since Dharamtar was also shown as the port of discharge, the freight charges paid by the buyer to the shippers included the charges for freight number only upto BFL but also to Dharamtar. The view we are taking is in accordance with the view expressed in Halsburys Laws of England, Fourth Edition Vol.43 2 Shipping and Navigation para 1707 where it is stated 1707. Proceeding so near to port of discharge as ship can safely get. In practice, the companytract usually provides that the ship is to proceed to the port of discharge or so near to it as she can safely get. This provision is intended to benefit the ship owner, and its effect is to substitute another destination to which the ship may proceed. By proceeding to this other destination and delivering the cargo there, the ship owner equally companypletes the voyage in accordance with the terms of the companytract, and is thus entitled to be paid the full freight. For the reasons given above, this appeal is allowed and the impugned order of the Tribunal as well as of the Customs authorities are set aside, and it is held that the charges for transportation of the goods by barges from the mother ship at BFL to the Dharamtar Jetty cannot be added to the valuation of the imported goods for the purpose of levying customs duty. Any amount companylected by the revenue as duty on barge charges shall be refunded forthwith to the assessee with statutory interest from the date of payment to the date of refund, which must be within three months from today. No companyts.
CIVIL ORIGINAL JURISDICTION Writ Petition Civil NO. 194 of 1988. etc etc. Under Article 32 of the Constitution of India . D. Thakur, T.S. Krishnamurthi Iyer, Rajesh Mitra, Ms. Santosh Kalra, H.K. Puri, R.L. Roshan, S.S. Sabharwal, S.K. Sabharwal, and M.K.D. Namboodiri for the Petitioners. P. Rao, S.N. Kacker, G. Rath, Mrs. A. Mathur, A. Mariarputham, C.M. Nayyar, D.S. Narula, Kailash Vasudev, Mrs. Uma Jain and P.K. Mehta for the Respondents. The following Order of the Court was delivered O R D E R The writ application under Article 32 and the transferred writ petitions from the Delhi High Court relate to selection of medical graduates for undertaking post graduate study for the year 1988 under the Delhi University. In Dr. Dinesh Kumar v. Motilal Nehru College, Allahabad Ors., this Court emphasised the desirability of post graduate education in the Medical Faculty as far as possible to have uniformity throughout the companyntry. It, therefore, companymended to the educational institutions which followed the system of one year house job followed by two years postgraduate companyrse to switch over to the pattern of a three year post-graduate companyrse with house job in the first year. On September 25, 1987, in the very same matter, when the Court made an order reported in 1987 4 SCC 459, it was pointed out that in some States the post graduate companyrse is for a term of two years with one year housemanship while in the other States it is a full term of three years. This Court, therefore, directed with a view to bringing about uniformity on the basis of the principle accepted in the earlier decision that for admission beginning from 1993, there would be only one pattern, namely, a three year integrated companyrse without any separate housemanship. The University of Delhi decided to adopt the three year companyrse for the post-graduate degree and a two year companyrse for the diploma companymencing from the academic Session of 1988. With a view to mitigating hardship to candidates students who had already companypleted the house job and had become entitled to undergo the postgraduate companyrse in two years, as a transitory provision, the University decided to companytinue the practice prevailing prior to 1988 for a year. The University evolved a scheme where under the number of seats for the post-graduate companyrse and diploma companyrse available in the previous year for a student who had companypleted one years housemanship were left untouched. The number of such seats are 198 for the degree companyrse and 111 for the diploma companyrse. Out of these 25 being placed at the disposal of the Government of India to be filled-up on all India selection basis, the exact number available to be filled-up by the University worked out to 149 and 84 respectively. As a transitional provision intended for the 1988 Session only the University agreed to fix 75 quota representing 139 seats in the three-year degree companyrse and 66 seats in the two-year diploma companyrse . The following was specified a part of the Scheme Important Note Candidates who have done house job junior Residency for a period of one year are number eligible for admission to 3 years Post-Graduate Degree and 2 years PostGraduate Diploma Course. The prospectus, however, prescribed one companymon selection test. A set of writ petitions were filed before the Delhi High Court challenging the scheme of the University mainly on the basis that when there was one selection test, merit should prevail and classification in the manner indicated by the scheme was bad. Reliance was placed before the High Court on observations of this Court that for post graduate degree the test of excellence should prevail and the level of high proficiency should be maintained. The High Court made an interim order requiring the University to have the selection companypleted on the basis of merit adjudged in the companymon selection test. This is a dispute essentially between the University and the freshers who have number done housemanship on one side and the seniors who have already companypleted housemanship for one year on the other. There can be numberdispute that the seniors and the freshers belong to two separate categories and cannot be said to be equals. If the University had number prescribed a companymon selection test for these two categories, the question of test of companyparative merit would number have arisen. If that had number been done perhaps the High Court would number have made its direction and the difficulty which has arisen would number have cropped up. The classification of freshers and those who have companypleted a years housemanship, though a perceptible one, loses its importance in view of the traditional situation that in the system prevailing prior to 1987, both the groups were treated as qualified for appearing at the selection test for post graduate study. We are told by learned members at the Bar that after transitory Note extracted above disappears in the companying year, the old practice shall again revive. This is an unfortunate situation. There being numberlimit to participation in the selection test for post-graduate study candidates who become unsuccessful year after year, in the absence of any limit, keep on taking chances. This certainly is number a desirable feature and should be looked into by the appropriate authorities quickly. If the merit list of the selection examination is followed, more of seniors are entitled to admission and the scheme of reservation would number work. As we have already pointed out in the name of what companynsel calls companyvenience and how inconvenient it was is number known , the Delhi University made an initial mistake of having a companymon selection test for two categories of candidates. While we reiterate the view expressed by this Court on more than one occasion that selection in the higher companyrses should be on the basis of merit, in the peculiar facts and circumstances arising in this case purely companyfined to a transitory measure, the situation has to be handled number by first principles but by a somewhat informed pragmatic adhocism. This has to be so because the situation would number reoccur. Again the initial mistake of the Delhi University had brought some amount of companyfusion and it has mounted up following the intervention by the High Court. The time available is too short as under the Scheme intended to apply to the whole companyntry the companyrse has to begin on the 2nd of May, 1988. In this background we are of the view that the impasse created on account of the rival claims advanced by the freshers and the seniors has to have a rough and ready solution-yet number arbitrary and as acceptable and satisfying as possible. We find that the two-year degree companyrse speciality-wise has 149 seats while the three-year degree companyrse has 139 seats. For companyvenience we extract the particulars made available at page 4 of the Bulletine of Information. It may be pointed out that there are 1003 candidates as against total 270 vacancies degree and diploma companyrses together for the seniors and there are 331 candidates as against 205 vacancies for the two companyrses for the freshers. With a view to providing some more seats for seniors we suggested to Mr. Rao appearing for the University that the number of seats may be increased and he has on instructions agreed, provided the Union of India provides funds and the Medical Council agrees to accommodate. There are 21 specialities as indicated above. We direct that the University shall create one seat in every speciality and thus 21 additional seats will be available over and above the 149 seats fixed by the University representing the 75 quota. To this enhanced number of seats the 25 reservation of All India Selection shall number apply. From the reserved seats made for the freshers, 21 seats being one from every speciality shall be taken away and made available to the seniors. Thus 42 seats in all will be available for the seniors in the Post- Graduate companyrse to be filled up on the basis of inter se merit keeping the senior group apart. The creation of the 21 seats will involve additional funds to be provided by the Union of India. It will also require approval of the Medical Council of India and there will perhaps also be necessity for permitting the variation of guide-student ratio. Since it is for one year and there would be numberscope for recurrence and this has arisen in peculiar circumstances explained above, we direct the Government of India to take our order made without hearing it with a sense of understanding and make the necessary provisions. We also suggest to the Indian Medical Council to provide the necessary accommodation by relaxing the requirements. These may be done quickly so that the time schedule may number be affected.
CRIMINAL APPELLATE JURISDICTION Criminal Appeals Nos. 176 to 178 of 1961. Appeals by special leave from the judgment and order dated August 10, 1961, of the Patna High Court in Cr. A. No. 152 of 1961 and Death Reference No. 3 of 1961. Sushil Kumar Jha, Subodh Kumar Jha and C. Prashad, for the appellants. K. Daphtary, Solicitor General of India and S. P. Verma, for the respondents. 1962. April 26. The Judgment of the Court was delivered by MUDHOLKAR., J.-This judgment will govern Criminal Appeals number. 177 and 178 also. All these three appeals arise out of the same trial. The learned Additional Sessions Judge, Monghyr who companyducted the trial companyvicted the appellant, Ramchandra Chaudhary who is appellant in Criminal Appeal No. 177 of 1961 for an offence under s. 302 Indian Penal Code. He also companyvicted Baleshwar Rai alias Nepali Master, appellant in this appeal and Jogendra Chaudhary, appellant in Criminal Appeal No. 178 of 1961 of an offence under s. 302 read with s. 34, Indian Penal Code. He sentenced each of the three to death. Their appeals were dismissed by the High Court of Patna, and sentences of death passed against them were companyfirmed by it. They have companye up before this Court by special leave. The prosecution story is briefly as follows On March 17, 1959 at about 8.00 p.m. the chaukidars of the village Fateha had assembled,. as usual, in the crime centre of the village. Their names are Anandi Paswan, deceased , Misri Paswan P.W.2 , Baleshwar Paswan P.W.3 and Narain Paswan. Anandi Paswan and Misri Paswan were lying on a chouki. Anandi Paswan had a bhala and a muretha while Misri Paswan had a pharsa and a muretha. These weapons is well as the shirt of ,he deceased were kept on the chouki. The other two choukidars were lying on the ground. The crime centre is housed in the dalan of Tilak. Chaudhary P.W.6 . One other person, Srilal Chaudhary, P.W. 7 , the brother of Tilak Chaudhary, was also lying there on the khatia on the numberth-east of the said dalan. In an adjacent room were P.W.11 Nathuni Chaudhary alias Durga Das and P.W.12 Ramchander Jha. According to the prosecution a little before 9.00 p.m. someone from outside called out Darogaji. On hearing this, the deceased Anandi Paswan and Misri Paswan got up. It was a moonlit night and they saw Ramchander Chaudhary, Jogendra Chaudhary and another person, who was later identified to be Nepali Master, standing closeby. As soon as they went towards the appellants, Jogendra Chaudhary and Nepali Master caught the deceased while Ramchandra Chaudhary caught Misri Paswan. Both Ramchandra Chaudhary and Jogendra Chaudhary had guns with them which were slung across their shoulders. These three persons then took the deceased and Misri Paswan to the road to the East of the dalan, running numberth to south, and proceeded southward. Neither the deceased number Misri Paswan raised any cry, apparently because they were threatened that if they did so, they would be shot. When this party reached the place to the west of one Peare Saos house and to the east of the house of Rampratap Tanti P.W. 5 . the deceased called for Ramprataps help, and freeing himself from the clutches of his captors started running way westward., Upon this Ramehandra Chaudhary let go the hand of Misri Paswan and fired at the deceased. Misri Paswan then ran into the house of Peare Sao and took shelter there. While entering that house, he heard a second gun shot. His presence in the house was detected by.Mst. Ajo P.W. 8 , the wife. of Peare Sao who forced him to leave the house. Thereafter he came out into the lane and companycealed himself behind the door. After the moon had set and it became dark, he went to the house of Fakir Paswan W. 4 , which is to the east of the house of Peare Sao, and narrated the occurrence to him. He mentioned Ramchandra and Jogendra as the two persons who has taken part in the incident. In the early hours of the morning he went to the place where gun shots were fired, and found Anandi Paswan, chaukidar lying dead in a ditch by the side of the road, face downwards. He numbericed that Anandi Paswan had received two gun shot wounds on his back. Thereafter he went home and companytacted the other chaukidar, Narain Paswan and Baleswar Paswan. He placed them in charge of the dead body and then went to the police station along with Ramdeo, son of the deceased. He lodged the first information report at the police station. After recording it, the junior Sub-Inspector of police companymenced investigation and after companypleting it submitted a charge-sheet against the three appellants on March 15, 1959. It is the prosecution case that the appellants are veteran criminals and the chaukidars used to report about their movements and that this was the motive for the murder. It was further said that the deceased had helped the Dalsingsarai police in arresting one Motia Mushar, who was the ploughman of the appellant Ramchandra, in a dacoity case. All the appellants denied having participated in the incident. The defence is that a false case has been companycocted by the police. The main evidence against the appellant is that of P.W. 2, Misri Paswan. He has actually named Ramchandra Chaudhary and Jogendra Chandhary in the first information report. Regarding the third appellant, he stated that he was unknown. Ramchandra and Jogendra have been identified number only by Misri Paswan, but also by five other wit. nesses, Narain Paswan, Rampratap Tanti, Srilal Chaudhary, Nathuni Chaudhary and Ramchander Jha. All these, five persons had an opportunity to see the appellants because, it may be recalled, some of them were in the dalan and some in the adjacent room when the appellants came near there and one of them cried out Darogaji. Their evidence has been accepted as true and adequate number only by the learned Sessions Judge who had an opportunity to see and hear the witnesses depose but also by the High Court. Their evidence cannot be reappraised in their appeals by special leave. The learned companynsel, however, said that in so far as Jogendra Chaudhary is companycerned, companymon intention to companymit murder had number been established. The existence of companymon intention has always to be inferred from facts. Here it has been established that all the three appellants came together. Two of them, Ramchandra and Jogendra had guns, with them. The prosecution has established to the satisfaction of the learned Additional Sessions Judge and the High Court that as Anandi Paswan was giving information to the police about the movements of the appellants and had also taken the major part in getting one Motia Mushar arrested in a dacoity case, Ramchandra nursed a grievance against Anandi. The inference, therefore, must be that he had companye with the intention of taking revenge on Anandi Paswan by killing him and the other two appellants who accompanied him shared that intention. As the High Court has pointed out, this is made clearer by the statement of Misri Paswan to the effect that Ramchandra said at the time of the incident that his servant Motia was taken away forcibly and then Jogendra asked the deceased sarcastically, Where is your military today ? In the circumstances, therefore, there can he numberdoubt that companymon intention to companymit murder was established number only with respect to Jogendra but also with respect to Nepali Master who was all along with them. On behalf of Nepali Master the learned companynsel companytended that he has been identified at the test identification parade by one witness only and that the other persons did number turn up for identification and, therefore, it is number legally permissible to base the identification by only one person. It is sufficient to say that even the evidence of a single witness can sustain the companyviction of an accused person if the companyrt which saw and heard him depose regards him as a witness of truth. However, in this case, Nepali Master was identified number by one witness only but by two witnesses P. W. 7 Srilal Choudhary and P. W. 9 Dukhi Mahto. It was said that Srilal is an old man of 75 and has a weak eyesight and therefore his evidence should be kept out of account. He is evidence has been believed by the learned Sessions Judge as well as by the High Court and we cannot reassess it. It was companytended before the High Court and is also companytended before us that as the test identification was held long time after his arrest, the evidence of these two witnesses companyld number be believed. This circumstance was also companysidered by the High Court and it observed The companytention is attractive but, in view of Ex. 6, it is difficult to accept the same. Exhibit 6 is an anonymous letter written to Senior. Sub- Inspector, Kashi Nath P. W. 22 , of which the only portion which has been admitted in evidence reads thus The rascal Anandia Choukidar spoiled the life of that poor Mushar by instigating the S. 1 of Police of Dalsingsarai and subsequently he also spied against us for numberhing. This document along with ex. 3, dated June 9, 1959, which is admittedly in the handwriting of Nepali Master, was sent to the Government handwriting expert. Both the documents were examined by him. In his evidence he has stated. The Board of Experts companysisting of myself, Chatterjee and Srivastava examined these independently and our unanimous opinion was that Ex. 3, tallied with disputed writings Ext. 6 . This being so, the admission companytained in Ext. 6 as to the motive is clearly admissible under s. 21 of the Evidence Act. The High Court was, therefore, right in holding that Ext. 6 afforded companyroboration to the evidence of P. W. 7 Srilal Chaudhary and P. W. 9 Dukhi Mahto. It is then companytended that Ex. 6 is hit by s.162 of the Criminal Procedure Code because it was received by the Sub- Inspector during the companyrse of the investigation. Section 162 of the Criminal Procedure Code only bars proof of statements made to an investigating officer during the companyrse of investigation. Section 162 does number say that every statement made during the period of investigation is barred from being proved in evidence. For a statement to companye within the purview of s. 162, it must number merely be made during the period of investigation but also in the companyrse of investigation. The two things, that is, the period of investigation and companyrse of investigation are number synonymous. Section 162 is aimed at statements recorded by a police officer while investigating into an offence. This is clear from the opening words s. 162. They speak only of statements made to a police officer during the companyrse of investigation. This implies that the statement sought to be excluded from evidence must be ascribable to the enquiry companyducted by the investigating officer and number one which is de hors the enquiry. A companymunication like Ext. 6 will number fall within the ambit of such statements. In this view we hold that the document in question is number hit by s. 162 of the Criminal Procedure Code and the High Court was right in admitting it in evidence.
Leave granted. This appeal arises out of an order dated 26.8.2010 passed by the High Court of Madhya Pradesh at Indore, whereby First Appeal No.752 of 2008, filed by the respondent herein, has been allowed and the judgment of the Trial Court in O.S. No.9A/2008 reversed. It is number, in our opinion, necessary to recapitulate the factual backdrop in which the companytroversy arises, in detail. The order passed by the Trial Court as well as the Fist Appellate Court, sufficiently do that part. All that we need mention is that a suit seeking a decree for possession was filed by the plaintiff-appellant herein against the defendant-respondent on the ground that the defendant-respondent was in occupation of the suit property despite termination of his tenancy by the plaintiff-appellant. The defendantrespondent herein disputed the alleged tenancy pleaded by the appellant and set up his own title based on a certain oral sale in his favour. The Trial Court eventually came to the companyclusion that the jural relationship of landlord tenant was established between the parties and accordingly decreed the suit in favour of the appellant. Aggrieved by the decree passed by the Trial Court, the defendant-respondent preferred a regular first appeal before the High Court which, as numbericed above, was allowed by the High Court reversing the judgment and decree passed by the Trial Court. The High Court was of the view that the relationship of landlord and tenant had number been established by the plaintiff-appellant and the suit, on that basis, was number maintainable. The High Court went a step further and remanded the matter back to the Trial Court with a direction that the Trial Court would try the suit as a suit for possession based on title in which the defendant-respondent herein shall be free to raise all companytentions available to him, including a plea based on adverse possession. The present appeal assails the companyrectness of the judgment and order. Learned companynsel for the appellant submitted that the High Court was in error in directing that the defendant-respondent was entitled to set up a plea based on adverse possession or that the plaintiffs title companyld be disputed by the defendant-respondent on the basis of the oral sale set up by him.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1395 of 1970. Appeal from the Judgment and Order dated the 4th March 1969 of the Madras High Courtin Tax Case No. 215 of 1965 and Referred No. 109 of 1965. B. Ahuia and S. P. Nayyar, for the appellant. Swaminathan and S. Gopalakrishnan, for the respondent. The Judgment of the Court was delivered by KHANNA, J.-This appeal by the Control of Estate Duty on certificate is against the judgment of the Madras High Court whereby that companyrt answered the following question referred to it under section 64 1 of the Estate Duty Act, 1953 Act 34 of 1953 hereinafter referred to as the Act partly in favour of the assessee and partly in favour of the revenue Whether, on the facts and in the circumstances of the case, the entire value of the, property known as Mayavaram Lodge or any portion of its value is liable to be included in the principal value of the Estate of the deceased as property deemed to have passed on his death? The matter arises out of the estate duty case of Shri R. Venkateswara Iyer who died on April 6, 1957. The respondent, Smt. Parvathi Ammal who is the widow of the deceased and is an accountable person in the case, filed statement relating to the estate of the deceased before the Assistant Controller of Estate Duty. The Assistant Controller determined the principal value of the estate to be Rs. 2,50,374. In companyputing the principal value the Assistant Controller took into account a sum of Rs. 1,50,000 on account of the value of property known as Mayavaram Lodge. The Assistant Controller found that till March 11, 1955 the deceased, who was a self-made man, owned two buildings, including Mayavaram Lodge, besides some agricultural land. The deceased was carrying on the business of boarding and lodging in Mayavaram Lodge. He had also a small chit business. On March 11, 1955 the deceased executed a document described as a partition deed, whereby he gave Mayavaram Lodge, to his five sons in equal shares and retained for himself the other house and agricultural land. On June 25, 1955 the deceased entered into an agreement with his sons by which they leased to the deceased Mayavaram Lodge wherein as before he companytinued to carry on his boarding and lodging business. In the profit and loss account a sum of Rs. 15,000 was mentioned for payment of rent of Mayavaram Lodge. Later on, the deceased gave the boarding house on sub-lease to a third party. The respondent claimed that Mayavaram Lodge should be excluded from the estate duty assessment of the deceased on the ground that the said property was transferred on March 11, 1955 more than two years before his death. It was urged that the fact that the sons let out the building to the deceased should number be taken to be a special benefit derived by the deceased. The respondent also pointed out that Mayavaram Lodge was taken on lease long after the original transfer and the lease and the transfer companyld number be treated as associated transactions. Plea was also taken that the document of March 11, 1955 companystituted deed of partition of joint family properties. 3-L319Sup.CI/75 The Assistant Controller rejected these companytentions. He found that the property referred to in the deed dated March 11, 1955 was the self acquired property of the deceased and that there was numberevidence to show that the deceased treated it as joint family property. He accordingly held that the deed, though described as a partition deed, should be treated as a settlement. Although the settlement was found to have been made by the deceased more than two years before his death, the fact that the deceased took back the property from his sons shortly thereafter to companytinue his business therein showed, in the opinion of the Assistant Controller, that the deceased got a direct benefit in the property. The Assistant Controller in this companytext referred to the fact that there was number much interval of time between the settlement and lease and that the payment of rent was number in cash but by book entries. The Assistant Controller accordingly held that Mayavaram Lodge was liable to be taken into account for assessing the estate duty. He accordingly included a sum of Rs. 1,50,000 on that account. The respondent preferred an appeal to the Board of Direct Taxes against the order of the Assistant Controller. The only ground which was pressed before the Board related to the inclusion of the value of Mayavaram Lodge. It was urged on behalf of the respondent that the property owned by the deceased became the joint family property and that the deed of March 11, 1955 was a partition deed. In the alternative, it was urged on behalf of the respondent that even if the deed of March 11, 1955 was a deed of settlement and number of partition, the value of Mayavaram Lodge ought number to have been included inasmuch as the deceased had transferred his right, title and interest in the above property more than two years prior to his death. The Board found that the deed, though executed on March 11, 1955 more than two years prior to the death of the deceased, was registered only on June 29, 1955. According to the Board, the gift of Mayavaram Lodge became effective only on June 29, 1955, viz. the date of registration. As that date fell within the statutory period of two years before the death of the deceased, the Assistant Controller was held to be justified in view of section 9 of the Act in including the value of Mayavaram Lodge in the principal value of the estate of the deceased. In the alternative, the oBard found that the deceased companytinued to be in undisputed possession of Mayavaram Lodge. It was held that the donor had number been excluded from the enjoyment and possession of the property and. therefore, estate duty was payable in respect of that property under section 10 of the Act. The Board rejected the companytention that the document ,of March 11, 1955 companystituted partition deed. The appeal of the respondent was accordingly dismissed. On being moved by the respondent the Board referred the question reproduced above to the High Court. The High Court held that the subject matter of allotment to the sons by the deed of March 11, 1955 was the entirety of Mayavaram Lodge with all the rights that companyld possibly go into it and that the allotment was number subject to any claim to or right in that property. It was also held that on the execution of the deed the sons had assumed possession and enjoyment of the entirety of the house. The High Court then referred to its earlier decision in Y. S. Mani v. Controller of Estate Duty 1 wherein it had held that to the extent to which the donor retains an interest in the entirety of the property given away by him as gift, there will be pro tanto liability to estate duty. It was further observed by the High Court as under Mayavaram Lodge was certainly a bundle of rights of which possession and enjoyment formed a part which as we have observed, were number subsequently to their assumption retained by the sons of the deceased. To that extent, there was number-exclusion of the deceased. So far as the ownership of the property is companycerned, there can be numberquestion that the donees exclusively retained it. It follows that it is only the value of the right to possession and enjoyment in the hands of the deceased as a lessee that would pass on his death and would attract duty. For the Revenue it is urged that the entire premises being in the occupation and enjoyment of the deceased until his death, its entire value would pass. We are unable to accede to this view because it does number take numbere of the value of the other rights of the donees including the ownership of the property, which they retained to the exclusion of the deceased. Since we have held that only to the extent of the numberexclusion mentioned the proportionate property referable to it would pass, it would be necessary for the Revenue to apportion its value taking all the facts into account and revise the assessment. That is sufficient to dispose of the reference. In view of this, we, do number think it necessary to deal with the other point as to whether the transaction of March 11, 1955, amounted to a gift. We have proceeded on the basis that it was a gift. The question is answered partly in favour of the Revenue and partly in favour of the assessee. This is because , on the view we have expressed, the Revenue cannot charge estate duty on the entire value of the property, while at the same time the accountable person cannot escape duty to the extent of the number-exclusion we have indicated. In appeal before us Mr. Ahuja on behalf of the appellant has assailed the judgment and reasoning of the High Courtand has companytended that as subsequent to the deed of March 11, 1955, which as observed by the High Court would have to be assumed to be a deed of gift, the donor took the gifted property on lease, the donees cannot be said to have retained possession of that property to the entire exclusion of the donor or of any benefit to him by companytract or otherwise. As against that, Mr. Swaminathan on behalf of the respondent has canvassed for the companyrectness of the view taken by the High Court. 1 1966 601.T.R.810. Before dealings with the companytention of the parties, we may referring to section 2 16 , to the relevant provisions of the Act. According to section 2 16 property passing on the death includes property passing either immediately on the death or after any interval, either certainly or companytingently, and either originally or by way of substitutive limitation. Section 5 companytains the charging provision, and provides that in the case of every person dying after the companymencement of this Act, there shall, save as hereinafter expressly provided, be levied and paid upon the principal value ascertained as hereinafter provided, of all property, settled or number settled, including agricultural land which passes on the death of such person, a duty called estate duty at the rates fixed in accordance with section According to section 6, property which the deceased was at the time of his death companypetent to dispose of shall be deemed to pass on his death. Sub-section 1 of section 7 of the Act provides that subject to the provisions of that Section, property in which the deceased or any other person had an interest ceasing on the death of the deceased shall be deemed to pass on the deceaseds death to the extent to which a benefit accrues or arises by the ceaser of such interest, including in particular, a companyarcenary interest in the joint family property of a Hindu family governed by the Mitakshara, Marumakkattayam or Aliyasantana law. According to section 9, property taken under a disposition made by the deceased purporting to operate as an immediate gift inter vivos whether by way of transfer, delivery, declaration of trust, settlement upon persons in succession, or otherwise, which shall number have been bona fide made two years or more before the death of the deceased shall be deemed to pass on the death Provided that in the case of gifts made for public charitable purposes the period shall be six months. Section 10 of the Act reads as under Gifts whenever made where donor number entirely excluded.-Property taken under any gift, whenever made, shall be deemed to pass on the donors death to the extent that bona fide possession and enjoyment of it was number immediately assumed by the donee and thenceforward retained to the entire exclusion of the donor or of any benefit to him by companytract or otherwise Provided that the property shall number be deemed to pass by reason only that it was riot, as from the date of the gift, exclusively retained as aforesaid, if, by means of the surrender of the reserved benefit or otherwise, it is subsequently enjoyed to the entire exclusion of the donor or of any benefit to him for at least two years before the death. Provided further that a house or part thereof taken under any gift made to the spouse, son, daughter, brother or sister, shall number be deemed to pass on the donors death by reason only of the residence therein of the donor except where a right of residence therein is reserved or secured. directly or indirectly to the donor under the relevant disposition or under any companylateral disposition. it may be mentioned. that the period two years in subsection 1 of section 9 and the first proviso to section 10 was substituted for one year by the Finance Act, 1966 Act 13 of 1966 . The second proviso to section 10 was inserted by the Finance Act, 1965 Act 10 of 1965 . The amendment brought about by the Finance Act, 1965 by inserting second proviso to section 10, as observed by this Court in the case of George Da Costa v. Controller of Estate Duty Mysore 1 , was number retrospective. The said section would companysequently have to be companystrued for the purpose of this case which relates to, the estate, of the deceased who died on April 6, 1957, as it stood before the amendment. The intention of the legislature in enacting section 10 of the Act was to exclude from liability to estate duty certain categories of gifts. ,A gift of immovable property under section 10 will, however, be dutiable unless the donee assumes immediate exclusive and bona fide possession and enjoyment of the subject-matter of the gift, and there is numberbeneficial interest reserved to the donor by companytract or otherwise. The section must be grammatically companystrued as follows Property taken under any gift, whenever made, of which property bona fide possession and enjoyment shall number have been assumed by the donee immediately upon the gift, and of which property bona fide possession and enjoyment shall number have been thenceforward retained by the donee to the entire exclusion of the donor from such possession and enjoyment, or of any benefit to him, by companytract or otherwise. The crux of the section lies in two parts 1 the donee must bona fide have assumed possession and enjoyment of the property, which is the subject-matter of the gift, to the exclusion of the donor. immediately upon the gift, and 2 the donee must have retained such possession and enjoyment of the property to the entire exclusion of the donor or of any benefit to him, by companytract or otherwise. Both these companyditions are cumulative. Unless each of these companyditions is satisfied, the property would be liable to estate duty under section 10 of the Act see George Da Costa v. Controller of Estate Duty Mysore, supra . The second part of the section, as observed in the above mentioned case, has two limbs the deceased must be entirely excluded, i from the, property and ii from any benefit by companytract or otherwise. The word otherwise should be companystrued ejusdem generis and should be, interpreted to mean some kind of legal obligation or some transaction enforceable at law or in equity which though number in the form of a companytract, may companyfer a benefit on the donor. The words by companytract or otherwise in the second limb of the section do number companytrol the words to the entire exclusion of the donor in the first limb. In order to attract this section, it is companysequently number necessary that the possession of the donor of the gifted property must be referable to some companytractual or other arrangement enforceable at law or in equity. Even if the donor is companytent to rely upon the mere filial affection of his sons with a view to enable, him to companytinue to reside in the house, it cannot be said that be was entirely excluded 1 1967 63 I.T.R. 497. from possession and enjoyment within the meaning of the first limb of the section and, therefore, the property will be deemed to pass on the death of the donor and will be subject to levy of estate duty. The object underlying a provision like section 10 of the Act was explained by Issacs J. in the case of John Lang Ors. Thomas Prout Webb 1 decided by the High Court of Australia in 1912 in the following words The owner of property desiring to make a gift of it to another may do so in any manner known to the law. Apparent gifts may be genuine, or companyourable, and experience has shown that frequently the process of ascertaining their genuineness is attended with delay, expense and uncertainty all of which are extremely embarrassing from a public revenue standpoint. With a view to avoiding this inconvenience, the legislature has fixed two standards, both of them companysistent with actual genuineness, but prima facie indicating a companyourable attempt to escape probate duty. One is the standard of tent with the gift. The prima facie view is made by the twelve months before the donors death is for the purpose of duty regarded as number made. The other is companyduct which at first sight and in the absence of explanation is inconsistent with the gift. The prima facie view is made by the legislature companyclusive. If the parties to the transaction choose to act so as to be in apparent companyflict with its purport, they are to be held to their companyduct. The validity of the transaction itself is left untouched, because it companycerns themselves alone. But they are number to embarrass the public treasury by equivocal acts. The companyrt in that case was companycerned with the companystruction of section 11 of the Administration and Probate Act, 1903 which reads as under Every companyveyance or assignment gift delivery or transfer of any estate real or personal and whether made before or after the companymencement of this Act, Purporting to operate as an immediate gift inter vivos whether by way of transfer delivery declaration of trust or otherwise shall- a if made within twelve months immediately preceding the death of the person so dying or b if made at any time relating to any property of which property bona fide possession and enjoyment shall number have been assumed by the donee immediately upon the gift and thenceforward retained to the entire exclusion of the donor or of any benefit to him by companytract or otherwise 1 3 C.L.R. 593. be deemed to have, been, made the property to which the same relates chargeable with the payment of the duty payable under the Administration and Probate Acts as though part of the estate of the donor. In that case a testarix was the owner in fee of land in her actual possession and enjoyment, which she worked as a single property. More than twelve months before her death she gave to her three sons blocks of this land each of which was surrounded by other land of the testarix. The gift was made by companyveyances of so much of the land as was under the general law, and by transfers of so much of it as was under the Transfer of Land Acts. On the same day upon which the companyveyance and transfers were executed, each of the sons executed a lease for five years of the land given to him to the testarix at fair and reasonable rent. After the gifts the lands given companytinued to be in the actual physical occupation of the testarix and to be, worked by her with her other land in the same way as before the gifts. The testarix died before expiration of the leases. It was held that the land so given was chargeable with the payment of the duty payable under the Administration and Probate Acts as though part of the estate of the testarix. Issacs J. in this companytext observed The lease, however, gave to the donor possession and enjoyment of the land itself, which is a simple negation of exclusion, and brings the case within the statutory liability. It was argued that as the rent was full value, the lessees possession and occupation were number a benefit. The argument is unimportant because the lease, at whatsoever rent, prevents the entire exclusion of the donor.,, The Above reasoning of Issacs J. was approved by the Judicial Committee in the case of Clifford John Chick Anr. v. companymissioner of Stamp Duties 1 wherein the judicial Committee dealt with a case under section 102 of the New South Wales Stamp Duties Act, 192056. The aforesaid section Provided that for the purposes of the assessment and payment of death duty but subject as hereinafter provided the estate of a deceased person shall be deemed to include and companysist of the following classes of Property . . . . 2 d Any property companyprised in any gift made by the deceased at any time, whether before or after the passing of this Act of which bona fide, possession and enjoyment has number been assumed by the donee immediately upon the gift and thenceforth retained to the entire exclusion of the deceased or of any benefit to him of whatsoever kind or in any way whatsoever whether enforceable at law or in equity or number and whenever the deceased died.,, In that case a father transferred in 1934 by way of gift to one of his sons pastoral property. The gift was made without reservation or qualification or companydition. In 1935. some 17 months after the gift, the father, the donee son and another son entered into an agreement to carry on in partner-,hit the business of graziers and stock dealers. The agreement Provided, inter alia, that the father 1 1958 A. C. 435. should be the manager of the business and that his decision should be final and companyclusive in companynection with all matters relating to its companyduct that the capital of the business should companysist of the live stocks and plant then owned by the respective partners that the business should be companyducted on the respective holdings of the partners and such holdings should be used for the purposes of the partnership only that all lands held by any of the partners on the date of the agreement should be companyducted on the respective holdings of the partners and any companysideration be taken into account as or deemed to be an asset ,of the partnership, and any such partner should have the sole and free right to deal with it as he might think fit. Each of the three partners owned a property, that of the donee son being that which had father in 1934. Each partner brought into and plant, and their three properties were depasturing of the partnership stock. This to the death of the father in 1952. It was property given to the son in 1934 was. to the value of the fathers estate for the purposes of death duty. While it was number disputed that the son had assumed bona fide possession and enjoyment of the property immediately upon the gift to the entire exclusion of the father, it was found that he had number thenceforth retained it to the fathers entire exclusion, for under the partnership agreement the partners and each of them were in possession and enjoyment of the property so long as the partnership subsisted. The Judicial Committee had that where the question is whether the donor has been entirely excluded from the subject-matter of the gift, that is the single fact to be determined, and, if he has number been so eluded, the eye need look numberfurther to see whether his number-exclusion has been advantageous or otherwise to the donee. In the opinion of the Judicial Committee, it was irrelevant that, the father gave full companysideration for his rights as a member of the partnership to possession and enjoyment of the property that he had given to his son. Sir Garfield Barwick as he then was , who was the companynsel for the appellant in that case, pointed out that on the, respondents companystruction, if a father gave a house to his son, and later the son turned it into a hospital, and the father, having been taken ill, went into it as a paying patient, liability to duty would arise although it may be the only hospital in the area. The case, however, in view of the language of the statute was decided in favour of the Commissioner of Stamp Duties, who was the respondent in the, case. The following six points emerge from Chicks case The deceased was number in fact excluded from the property, but as a partner enjoyed rights over it. There was an initial outright gift of the property-not of the property shorn of certain rights. It was immaterial that the partnership agreement was later than the gift, since the Section required that possession and enjoyment should thenceforth be retained to the exclusion of the donor. It was also immaterial that the partnership was an independent companymercial transactions and that the donor gave full companysideration for his rights. If a donor gives a donee a freehold and the donee gives the donor a lease, even at a full rent, the donor is number excluded from the property. The question whether the partnership agreement was related or referable to the gift did number arise the question is relevant only to the second limb of the clause. It was immaterial that the donee companyld make numberbetter use of the property. Where the question is whether the donor has been entirely excluded from the subject matter of the gift that is the single fact to be determined. If be has number been so excluded, the eye need look numberfurther to see whether this numberexclusion has been advantageous or otherwise to the donee. see p. 276 of Dymonds Death Duties, 14th Ed. So far as point No. 4 is companycerned, the law was subsequently amended by section 35 2 of the Finance Act, 1959. Under that clause, the donors actual occupation of the land, enjoyment of an incorporeal right over the land or possession of the chattels is to be disregarded if for full companysideration, e.g., if he paid a full rent to the donee or occupied it under a lease for which he gave full value. There is one other principle and that relates to gift of property shorn of certain rights belonging to the partnership in which the donor is a partner. In such a case the benefit remaining in the donor is referable to the partnership agreement and number to the gift. This principle can be illustrated by reference to two cases, one decided by the Judicial Committee in 1933 and the other by this Court in 1973. The Judicial Committees decision is in the case of H. R. Munro ors. v. Commissioner of Stamp Duties, 1 while that of this Court is in the case of Controller of Estate Duty Madras v. C. R. RamaChandra Gounder. 2 In the case of H. R. Munro M who was the owner of 35.000 acres of land in New South Wales on which he carried on the business, of. a grazier, verbally agreed with his six children that thereafter the business should be carried on by him and them as partners under a partnership at will. The business was to be managed solely by M and each partner was to receive a specified share of the profits. In 1913, M transferred by way of gift by means of six registered deeds all his right title and interest in the portions of his land to each of his four sons and to trustees for each of his two daughters and t 1934 A. C. 61. 2 1973 88 I.T.R. 448. their children. The transfers were taken subject to the partnership agreement, and on the understanding that any partner companyld withdraw and work his land separately. In 1919 M and his children entered into a formal partnership agreement, which provided that during the lifetime of M numberpartner should withdraw from the partnership. On the death of M in 1929 the land transferred in, 1913 was included in assessing his estate to death duties under the Stamp Duties Act on the ground that they were gifts dutiable under section 102 of the New South Wales Stamp Duties Act, 1920. It was held that property companyprised in the transfers was the land separated from the rights therein belonging to the partnership and was excluded by the terms of section 102, sub-section 2 a , from being dutiable, because the donees had assumed and retained possession thereof, and any benefit remaining in the donor was referable to the partnership agreement of 1909 and number to the gifts. In the case of Ramachandra Gounder the deceased who was a partner in a firm owned a house property let to the firm as tenant-at-will. In August, 1953, he executed a deed of settlement under which he transferred the property let to the firm to his two sons absolutely and irrevocably and, thereafter, the firm paid the rent to the donees by crediting the amount in their accounts in equal shares. The deceased further directed the firm to transfer from his account a sum of Rs. 20,000 to the credit of each of his five sons in the firms books with effect from April 1, 1953 and he also informed them of this transfer. An amount of Rs. 20,000 was credited in each of the sons accounts with the firm. The sons did number withdraw any amount from their accounts in the firm and the amounts remained invested with the firm for which interest at 7-1/2 per cent was paid to them. The deceased companytinued to be a partner of the firm till April 13, 1957, when the firm was dissolved and thereafter he died on May 5, 1957. The question was whether the value of the house property and the sum of Rs. one lakh companyld be included in the principal value of the estate of the deceased as property deemed to pass under section 10 of the Estate Duty Act, 1953. This Court held that neither the house property number the sum of Rs. one lakh companyld be deemed to pass under section 10. The first two companyditions of the section were Satisfied because there was an unequivocal transfer of the property by a settlement deed and of the sum of Rs. one lakh by crediting the amount in each of the sons accounts with the firm which Thenceforward became liable to the sons for payment of that amount and the interest thereon. The possession which the donor companyld give was the legal possession with the circumstances and the nature of the property would admit and this the donor had given. The benefit the donor had as a member of the partnership was number a benefit referable in any way to the gift but was unconnected therewith. The present case, in our opinion, clearly falls within the purview of the dictum laid down by the High Court of Australia in the case of John Lang supra and of the Judicial Committee in the case of John Chick supra . As already mentioned, the High Court has found that the property which was the subject-matter of the gift under the deed of March 11, 1955 was the entirety of Mayavaram Lodge with all the rights and that the gift was number subject to any claim on reservation. It has also been found that on the execution of the aforesaid deed the donees assumed possession and enjoyment of the entirety of the house. On June 25, 1955 the donor took the aforesaid house on lease from the donees. These facts would show that the possession and enjoyment of Mayavaram Lodge was number subsequent to the gift retained by the donees to the entire exclusion of the donor or of any benefit to him by companytract or otherwise. Mayavaram Lodge as such shall be deemed to pass on the death of the deceased under section 10 of the Act. The case of Ramachandra Gounder supra upon which great reliance has been placed by Mr. Swaminathan can hardly be of much assistance to him because in that case the gifted property was subject to the tenancy-at-will granted to the firm Ramachandra Gounders case was thus companyered by the principle laid down in Munros case. The question of invoking that principle does number arise in the present case because the property which is the subject matter of the gift was the entirety of Mayavaram Lodge with all the rights and the same were number subject to any right in favour of a partnership. The principle to be kept in view in such cases is to examine the deed of gift and find out as to what is the subjectmatter of the gift. If the gift companyprises the full ownership of the property number shorn of any right including tenancy right in favour of third parties, in such an event in order to prevent the incidence of estate duty immediate bona fide physical possession and enjoyment of the gifted property must ordinarily be assumed by the donee and retained thereafter to the exclusion of the donor. In case, however, the subject-matter of the gift is property shorn of certain rights, in that case the residue of the rights in that property would be the subject matter of the gift. In such an event it may number sometimes in the very nature of things be possible for the donee to assume physical possession and enjoyment of the property. In such cases the possession and enjoyment of the gifted property which may be assumed by the donee would only be such as is possible under the circumstances. We may mention some of the other cases to which reference has been made by Mr. Swaminathan during the companyrse of arguments. The case of Commissioner for Stamp Duties of New South Wales v. Perpetual Trustees Company Ltd. 1 related to an indenture of settlement made between the settlor and five trustees, of whom the settlor himself was one. It was declared in that settlement that the trustees should hold certain companypany shares of which the settlor was the owner and registeredholder, and which were transferred to and registered in the names of the trustees, in trust, to apply during the minority of his son the whole or any part of the income or companypus as the trustees should think fit for the maintenance, advancement or benefit of the son. The shares and the accumulations of income were transferred to the son on his attaining the age of 21 years as his absolute property. From the date of settlement the settlor never exercised any voting power in respect of the shares. The son attained the age of 21 years in 1931, when the assets companyprised in the settlement were transferred 1 1943 A. C. 425. to him. On a claim by the revenue authorities that on the death in 1921 of the settlor the subject of the settlement had formed part of the settlors dutiable estate by virtue of section 102 of the New South Wales Stamp Duties Act, the Judicial Committee held that the interest of the son under the settlement in the shares and accumulations of income was number an absolute vested interest, but was companytingent on his attaining the age of 21 years. It was further held that the property companyprised in the gift was the equitable interest in the shares, and that bona fide possession and enjoyment of the property companyprised in the gift was assumed by the donee, viz., the son, immediately upon the gift and thenceforth retained to the entire exclusion of the deceased or of any benefit to him. The shares were accordingly held number to form part of the settlors dutiable estate. The above decision can hardly be of any assistance to the respondent. Lord Russell of Killowen in the above cited case after referring to the clauses of the settlement came to the companyclusion that there was numbergift of companypus to the son except in the direction to the trustees to transfer the shares to him ,on his attaining the age of 21 years. Until he attained that age, the shares, it was held, were number the absolute property of the son and that be had only a companytingent interest therein. He was entitled to the companypus of the shares if and when he attained the age of 21 years. The Judicial Committee accordingly affirmed the decision of the High Court of Australia that the subject-matter of the gift in favour of the son under the deed of settlement was only the equitable interest in the ,shares. As against that the subject-matter of the gift in the present ,case was the full ownership right in a house without any diminution. The case of St. Aubyn Ors. v. Attorney General 1 related to certain properties held on trusts and their dispositions. It is number necessary to set out the long chain of facts of that case suffice it to say that there is numberhing in that case which runs companynter to the view we are taking in the matter. In Controller of Estate Duty v. R. Kanakasabai Ors. 2 the ,deceased executed in June 1951 separate deeds in favour of his sons, grandsons, daughter and wife, settling properties thereby severally in favour of the respective beneficiaries absolutely and with full power of alienation. The deeds in favour of the sons and grandsons provided for payment of Rs. 1,000 per annum to the settlers while the deed in favour of the daughter provided for maintenance of the settlor and his wife during their lifetime. In the deed in favour of the wife the pressed the hope that she would maintain him during the lifetime. No charge was, however, created in respect of the amounts made payable by the sons and grandsons or in respect of daughters liability to maintain the settlor and his wife. The deceased died on February 5, 1959 and the question which arose for determination was whether the whole or any part of the properties companyprised in the deeds passed on the death of the deceased under section 10 of the Act. It was held that numberinterest in the properties settled was reserved to the deceased during his lifetime or for any period after the properties were settled. The deed in favour of the wife merely expressed 1 1952 A.C. 15. 2 1973 891.T.R.251. a hope or expectation and numberenforceable right was created thereby. It was further held that in order to attract section 10 the benefit to the donor by companytract or otherwise must be referable to the property gifted and it was number sufficient that the donor derived a benefit arising from the transaction resulting in the gift. As the provisions for annual payments and maintenance made in the deeds were number charged on the properties settled, the donor companyld number be said to have retained any interest or any benefit either in the, property settled or in respect of their possession. Neither the whole number any part of the properties companyprised in those deeds was companysequently liable to be included in companyputing the value of the estate, that passed on the death of the deceased. This case can equally lie of numberassistance to the respondent because the question which arose for Determination in that case was wholly different from that which arises in the present case. Mr. Swaminathan has then pointed out that section 10 of the Act companytains the words to the extent which are number there in the statutory provisions with which the High Court of Australia and the Judicial Committee were companycerned in the cases of John Lang and Chick respectively. It is urged that the words to the extent indicate that if possession and enjoyment of the gifted property is number assumed by the donee and thenceforward retained to the entire exclusion of the donor, it would be the right of possession and enjoyment of the gifted property which shall be taken to pass on the death of the donor. The learned companynsel accordingly companycludes that what is to be taken into account in determining the principal value of the estate is the value of the right to possess-ion and enjoyment of the gifted property and number the value of the property in its entirety. We are unable to accede to this submission. It is, numberdoubt true that the words to the extent do number find a mention in the statutory provisions which were companystrued in the cases of John Lang and Chick, but that fact would number materially affect our companyclusion. The words to the extent companynote that if the donee does number assume immediate bona fide possession and enjoyment of a part or fraction of the gifted property and therceforward retain it to the entire exclusion of the donor or of any benefit to him by companytract or otherwise, it shall be that part or fraction of the gifted property which shall be deemed to pass on the death of the donor. Those words thus seek to restrict the liability to pay estate duty in respect of only the aforesaid part or fraction of the property. They underline the intention of the legislature that in the event of the donee number assuming bona fide possession and enjoyment of a part or fraction of the gifted property and thenceforward retaining it to the entire exclusion of the donor or of any benefit to him by companytract or otherwise, the estate duty-shall be payable number in respect of the whole of the gifted property but only in respect of that part or fraction of the gifted property of which the donee did number assume bona fide possession and enjoyment and thenceforward retain to the entire exclusion of the donor or of any benefit to him by companytract or otherwise. An illustration of this is furnished by the case of Rash Mohan Chatterjee Ors. v. Controller of Estate Duty West Bengal. 1 1 1964 52 I.T.R. 1 Estate Duty part . In that ease the deceased settled on July 1, 1954 certain premises in trust for the absolute use and benefit of his two sons in equal shares during their lives and upon the death of one or both the sons for the use of the wife or wives of such son or sons with remainder to the, male children of the two sons in equal shares per stripes. The upper portion of the premises was leased to the deceased himself on a rent of Rs. 150 per month for a term of five years with effect from the date of settlement. The lease expired on June 30, 1959 but the, deceased companytinued to occupy that part of the premises for a few days thereafter, until his death on July 11, 1959. The question which arose for determination was whether and to what extent estate duty was chargeable in regard to those premises under section 10 of the Act. It was held that the lease gave to the donor possession and enjoyment of the property itself and the case fell within the statutory charge under section 10. As, however, section 10 provided that such property was chargeable only to the extent that the deceased was number excluded, estate. duty was payable by the accountable persons only on that portion of the premises which was in the occupation of the deceased as a lessee. The High, Court in the judgment under appeal mentioned that Mayavaram Lodge was a bundle of rights of which possession and enjoyment formed a part. We may in this companytext observe that it was the ownership of the above property which companystituted the bundle of rights. The view urged on behalf of the respondent and accepted by the High Court that the estate duty is payable only in respect of the value of the right to possession and enjoyment in the hand of the ,deceased as a lessee of Mayavaram Lodge runs, in our opinion, companynter to the plain language of section 10 of the Act. What the section companytemplates is that it would be the property taken under the gift which shall be deemed to pass on the donors death if the bona fide possession and enjoyment thereof was number immediately assumed by the donee and thenceforward retained to the entire exclusion of the donor or of any benefit to him by companytract or otherwise. There is numberhing in the section to indicate that if the donee does number immediately assume bona fide possession and enjoyment. of the gifted property and thenceforward retain it to the entire exclusion of the donor, in such an event the right only to possession or enjoyment of the property shall be deemed to pass on the death of the donor. Apart from the case of Rash Mohan Chatterjee supra to which we have already made a reference, the stand taken on behalf of the respondent cannot be accepted in the face of the decision of this Court in the case of George Da Costa supra . The deceased in that case had purchased a house in the joint names of himself and his wife in 1940. They made a gift of the house to their sons in October 1954. The document recited that the donees had accepted the gift and that they bad been put in possession. The deceased died on September 30, 1959. The Controller included the value of that house in the principal value of the estate that passed on the, deceaseds death under section 10 of the Estate Duty Act, 1953. The Board found that, though the deceased bad gifted the house for four years before his death, he still companytinued to stay in the house till his death as the head of the family and was also looking after the affairs of the house. It was further found that the property was purchased entirely out of the funds of the deceased.-and though the property stood in the joint names of the deceased and his wife, the wife was merely a name-lender and the entire property belonged to the deceased. It was held by this Court that the value of the property was companyrectly included in the estate of the deceased as property deemed to pass on his death under section 10. If the view propounded on behalf of the respondent were to be accepted, in that case the property which passed on the death of the deceased in the case of George Da Costa companyld only be the value of the right to possession. in our opinion, the stand taken on behalf of the respondent in this respect is clearly untenable. Lastly, it has been argued on behalf of the respondent that we should remand the case to find as to whether the deed of March 1 1, 1955 companystituted deed of partition. We are unable to accede to this submission. The High Court has proceeded upon the basis that the property in question was gifted by the deceased in favour of his sons as a result of that deed. The Board of Direct Taxes found on reference to the aforesaid deed that all the properties mentioned therein were the sell-acquired properties of the deceased and there was numberhing in any part of the deed to show an intention on the part of the deceased to treat them as properties belonging to the joint family. It was also found that there was numberevidence of any clear intention of the deceased to waive his separate rights. Accordingly, the Board came to the companyclusion that the said document was number a partition deed relating to the joint family property. In the circumstances, we find numbersufficient ground for remanding the case. As a result of the above we accept the appeal, discharge the answer given by the High Court to the question referred to it and answer that question in favour of the revenue and against the accountable person. Our answer is that on the facts and in the circumstances of the case the entire value of the property known as Mayavaram Lodge is liable to be included in the principal value of the estate of the deceased as property deemed to have passed on his death. The appellant shall be entitled to the companyts of the appeal.
Leave granted. This appeal by special leave is directed against the judgment and order passed by the High Court of Judicature at Madras in Writ Petition No. 12996 of 2002 with W.P.M.P. Nos.17487 of 2002 and 1168 of 2007 dated 13.06.2007. It is essential to briefly outlay the facts that led to this appeal before us. The lis relates to the Legislative Assembly Elections held in the year 2001 for the State of Tamil Nadu. The Appellant had proposed to companytest as a candidate and filed her numberination forms in 4 Assembly Constituencies viz. Krishnagiri, Andipatti, Bhuvanagiri and Padukottai on 16.04.2001, 18.04.2001, 23.04.2001 and 23.04.2001, respectively. Therein, with each numberination form, she had given a declaration that she had number been and would number be numberinated as a candidate at the said elections from more than two Assembly Constituencies. However, she was disqualified to companytest the elections on the ground of her companyviction in a criminal case under the Prevention of Corruption Act, 1988. One Shri C. Kuppusamy the Respondent No.1 herein , Member of Parliament, had approached the High Court under Article 226 of the Constitution of India by way of Public Interest Litigation impleading the Chief Election Commissioner, Chief Electoral Officer and the Returning Officers of Bhuvanagiri, Padukottai, Andipatti and Dharmapuri Assembly Constituencies as Respondent Nos. 1 to 6, respectively. In the aforesaid Writ Petition, he sought for, inter alia, a writ or direction to the respondents therein to initiate appropriate action by launching prosecution against the Appellant in accordance with law for the offence alleged to have been companymitted by her under Section 177 of the Indian Penal Code IPC for short and to directly companytrol and monitor the same under their powers of the judicial superintendence. Strangely, Respondent No.1 had number impleaded the Appellant in the aforesaid Writ Petition. The Appellant had to implead herself by filing a separate W.P.M.P. No. 1168 of 2007, which was allowed by the High Court and, accordingly, she was impleaded as Respondent No.7 in the writ petition. The Respondent No.1 had submitted that the Appellant, by filing more than 2 numberination forms for candidature in elections, has acted in breach of Section 33 7 b of the Representation of the Peoples Act, 1951 the Act for short and by making a false declaration at the time of filing of numberination forms before Returning Officers of Bhuvanagiri the 3rd and Pudukkottai the 4th Assembly Constituencies, is liable to be prosecuted under Section 177 of IPC. He had further submitted, that the representations made by him before the Chief Election Commissioner the Commissioner for short and the Chief Electoral Officer to initiate criminal action against the Appellant have number yielded any results and numberaction under the aforesaid statutory provisions was initiated against the Appellant. The Commissioner and the Chief Electoral Officer had jointly opposed the allegation of inaction on their part and had further stated that the Commissioner had companyveyed its desire that the matter be examined by the Returning Officers of the 3rd and the 4th Assembly Constituencies in the light of the clarification issued by them. It was further submitted by them that companysequent to the aforesaid direction, it was for the said Returning Officers to apply their mind while companysidering the allegations of false declaration so made or suppression of facts by the Appellant. Respondent No.7 therein, i.e., the Appellant before us, had companytended that numberoffence, as alleged in the Writ Petition, has been companymitted by her. The High Court, after companysidering the case of the parties, companycluded that the Returning Officers of the 3rd and the 4th Assembly Constituencies were number justified in number initiating appropriate proceedings under the statutory provisions and therefore has directed the Respondent Nos. 1 to 4 therein to initiate appropriate action against the Appellant in accordance with law within a particular time frame. It is this judgment and order of the High Court which is the subject matter of this appeal. We have heard Shri U.U. Lalit, learned senior companynsel for the Appellant, Shri Altaf Ahmed, learned senior companynsel for Respondent No.1 and Smt. Meenakshi Arora, learned companynsel for the Commissioner. At the time of hearing of this appeal, two reports submitted by the Returning Officers of the 3rd and the 4th Assembly Constituencies, dated 10.11.2001 and 14.12.2001 respectively have been brought to our numberice.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 182-186 of 1963. Appeals by special leave from the judgment and order dated January 1961 of the Gujarat High Court in Second Appeals Nos. 105, 106, 107, 112 and 193 of 1960. K. Daphtary, Attorney-General, R. Ganapathy Iyer, R. K. Shankardass and R. H. Dhebar, for the appellant in all the appeals . Purshottam Trikamdas, B. Parthasarathy, J. B. Dadachanji O. Mathur and Ravinder Narain, for the resdondents in all the appeals . January 30, 1964. Hidayatullah J., Shah J., and Mudholkar J. delivered separate Judgments allowing the appeal. Raghubar Dayal J. agreed with the order proposed by Hidayatullah J. The dissenting opinion of Sinha C.J. and Rajagopala Ayyangar J. was delivered by Ayyangar J. Subba Rao J. delivered a separate dissenting opinion. AYYANGAR J.-In this batch of five analogous appeals, by special leave, the main question for determination is whether the rights which were in companytroversy between the parties in the companyrts below companyld be enforced by the Munici pal companyrts or in other words, whether or number Act of State pleaded by the State of Gujarat is an effective answer to the claims made by the respective respondents to the rights over forests claimed by them in the suits giving rise to these appeals. Vora Fiddali Badruddin Mithibarwala is the respondent in Civil Appeals Nos. 182 and 184 of 1963. Vora Hakimuddin Tayabali Amthaniwala is the respondent in Civil Appeal No. 183 of 1963. Mehta Kantilal Chandulal is the respondent in Civil Appeal No. 185 of 1963, and Pathan Abbaskhan Ahmedkhan is the respondent in Civil Appeal No. 186 of 1963. In all these Appeals the State of Gujarat is the appellant. The companyrse these litigations have taken in the companyrts below may briefly be stated as follows The respondent in Civil Appeal No. 182 of 1963, is the assignee of the rights of one Vora Hatimbhai Badruddin and was brought on a record as plaintiff during the pendency of the suit in the trial companyrt, namely, the companyrt of the Civil Judge Senior Division at Godhra, being Civil Suit No. 115 of 1950, for an injunction and ancillary reliefs to restrain the appellant and its officers from interfering with the plaintiffs alleged rights to cut and carry away timber etc., from the Gotimada jungle, rasing his rights under a companytract dated August 21, 1948, for a period of three years on payment of a companysideration of Rs. 9,501 to the Jagirdar of the village, Thakore Sardar Singh Gajesingh. Civil Suit No. 134 of 1950, giving rise to Civil Appeal No. 184 of 1963, was also instituted by the same plaintiff who claimed by virtue of an assignment of the rights under a similar companytract in respect of another forest in village Nanirath for a period of four years, the companysideration being the cash payment of Rs. 9,501. Civil Suit No. 106 of 1951, giving rise to Civil Appeal No. 183 of 1963. was instituted by Vora Hakimuddin Tayyabali Amthaniwalla. His claim was based on an agreement with the Jagirdar. dated December 7, 1948, for a period of four years for a companysideration of Rs. 6,501 in respect of the forest in village Rathda. All these three suits, in which the reliefs claimed were similar, were tried together and disposed of by a companymon judgment, delivered by the trial companyrt on January 3, 1956. All the suits were dismissed. The Court took the view that the rights of the plaintiffs, such as they were, companyld number be enforced by the companyrts. Civil Appeal No. 185 of 1963 arises out of Suit No. 80 of 1953, filed by Mehta Kantilal Chandulal. He owned the Inami villages Lalekapur and Narsingpur and alleged that he had given a companytract for cutting the trees in his villages for a companysideration of Rs. 11,000 on May 29, 1948, for a period of four years, and that his transferee had been prevented by the State from exercising those rights. He also prayed for a similar injunction, as in the other suits. This suit was also dismissed by the trial companyrt by its judgment, dated March 23, 1956. The last of the suits is Suit No. 90 of 1955, giving rise to Civil Appeal 186 of 1963. The plaintiff had claimed to have obtained similar right of felling trees in the forest belonging to the Jagirdar of Mayalapad on August 16, 1948 for Rs. 1,191 for a period of three years. This suit was decreed by a judgment dated August 6, 1956. The unsuccessful plaintiffs filed four appeals to the District Judge, Panch Mahals, at Godra, being appeals Nos. 17, 18, 19 and 48 of 1956. All the appeals were heard together and, by a companymon judgment, were dismissed on February 28, 1957, the judgment of the trial companyrt being companyfirmed. The 5th appeal, being appeal No. 74 of 1956, was filed by the State. Ile appeal was allowed by a separate judgement, dated September 30, 1957, dismissing the suit. The plaintiffsrespondents filed five second appeals, being Second Appeals Nos. 105, 106, 107, 112 and 193 of 1960 in the High Court of Gujarat. The appeals were heard together and were allowed on January 24, 1961 with the result that the suits were decreed and the appellant was restrained by an injunction from interfering with the plaintiffs enjoyment of the rights in the forests, as claimed by them. As the State failed to obtain the necessary certificate of fitness from the High Court, it moved this Court and obtained special leave to appeal. And that is how these appeals have companye up to this Court. These appeals were first heard by a Bench of five Judges, and it was directed that the matter be placed for hearing by a larger Bench, as the Bench was of the opinion that the decision of this Court in Virendra Singh v. The State of Uttar Pradesh 1 required reconsideration. That is how these appeals have been placed before this special Bench. Before dealing with the questions that arise for determination in these appeals, it is necessary and companyvenient at this stage to set out the companyrse of events leading up to the institution of the suits aforesaid, giving rise to these appeals. The several villages, the forest rights in which are in dispute in these cases, formed part of the State of Sant. The steps in the transition of this State under its ruler who was designated the Maharana into an integral part of the territory of the Union of India companyformed to the usual pattern. With the lapse of the paramountcy of the British Government on the enactment of the Indian Independence Act, the ruler achieved companyplete sovereignty. Soon thereafter by an instrument of accession executed by the ruler, the State acceded to the Dominion of India so as to vest in the latter power in relation to 3 subjects- Defence, External Affairs and Communications. On March 19, 1948 the ruler entered into a merger agreement with the Governor-General of India by which with a view to integrate the territory with the Province of Bombay at as early a date as possible, the full and exclusive authority and powers in relation to the administration of the State were ceded to the, Dominion Government. The agreement was to take effect from June 10, 1948. It is necessary to set out two of the Articles of this Agreement. Article 1 ran thus The Maharana of Sant hereby cedes to the Dominion Government full exclusive authority, jurisdiction and powers for and in relation to the governance of the State and agrees to transfer the administration of the State to the Dominion Government on the 10th day of June, 1948 hereinafter referred to as the said day . And from the said day the Dominion Government will be companypetent to exercise the said powers, 1 1955 1 S.C.R. 415. authority and jurisdiction in such manner and through such agency as it may think fit. Under Article 3 of the agreement, the ruler agreed to furnish to the Dominion Government before October 1, 1948 a list of all his private properties over which he was, under the terms of the agreement, to retain full ownership and enjoyment. After this agreement came in force on June 10, 1948, the Central Government delegated its functions to the Bombay Government by virtue of the powers vested in it by the Extra-Provincial Jurisdiction Act, 1947. Subsequently, Shri P. Menon, Secretary in the Ministry of State, wrote a letter to the Maharana of Sant on October 1, 1948 Ex. 194 . This letter was entitled a Letter of Guarantee and was to be treated as supplementary to the Agreement of Merger dated March 19, 1948. Amongst other matters. it provided by cl. No order passed or action taken by you before the date of making over the administration to the Dominion Government will be questioned unless the order was passed or action taken after the 1st day of April, 1948, and it is companysidered by the Government of India to be palpably unjust or unreasonable. The decision of the Government of India in their respect will be final. In view of the forthcoming integration of ,lie territory of Indian States into the Dominion of India, the Government of India Act, 1935, was amended and s. 290-A was inserted. In exercise of the powers companyferred by that section, the Governor-General of India promulgated the States Merger Governor Provinces Order, 1949, on July 27 1949 which came into force on August 1, 1949. As a result of that order the integration of Indian States, including the Sant State with that of the province of Bombay, was companypleted with effect from that date, namely August 1, 1949. In the meantime, the ruler of the Sant State passed or issued a resolution or Tharao on March 12, 1948, which has given rise to the present series of litigations. Under this instrument marked as Ex. 192, to use a neutral expression in view of the companytroversy as to its nature, called Tharao, an order was passed by the Maharana of Sant State whose terms will be referred to later and discussed in greater detail, granting forest rights to holders of certain specified tenures. The holders of such tenures in the Sant State entered into a number of agreements with the, parties, parting with their rights in the forest timber, e.tc., for a specified period, in companysideration of cash payments made by those third parties to the holders of the tenures. It is number necessary to set out in detail all those agreements it is enough to mention, by way of a sample the agreement dated August 21, 1948 Ex. 175 whereby the tenure-holder granted as briefly adverted to earlier to Vohra Hatimbhai Badruddin Mithiborwala the right to cut and remove timber and firewood from the forest of Mouja Gothimada for a companysideration of Rs. 9,501 for a period of three years. The written agreement companytains quite a number of clauses which it is number necessary to set out for the purposes of this case. After the aforesaid grants, companyrespondence started between the grantors and the grantees on the one hand, and the State Forest Department on the other. When the District Forest Officer was informed about the transactions aforesaid. and the grantees applied for authorisation to remove timber etc the Forest Authorities ordered that numberexport outside would be permitted, pending receipt of orders from Government. They also required an undertaking from the purchaser that he would abide by the decision and orders passed by the Government. Thereupon the grantor, Thakur Sardar Singh Gaje Singh gave an undertaking to abide by the decision and orders of the Government of Bombay in respect of the Gothimada forests rights over which were companyferred on me. by Santrampur State Government on March 12, 1948 in their resolution No. G. 371, dated March 12, 1948. The Divisional Forest Officer, by his order dated January 10, 1949, passed an order under the provisions of r. 4 of the Rules under s. 41 of the Indian Forest Act authorising the grantee to remove forest produce like timber firewood and charcoal from Gothimada forest. This was followed by a memorandum by the Conservator of Forests North Western Circle of the Bombay State by which the Divisional Forest Officers were directed to companytinue to issue authorisations to companytractors of Jagirdars who had obtained rights over the forests in the Sant State under the Tharao of the ruler, dated March 12, 1948. He, however, pointed out that until the question of the rights of the grantees over private forests was finally settled by the Government an undertaking should be taken from the, persons companycerned that they would abide by the orders passed by the Government in respect of their rights. This, as stated already had been obtained by the District Officers even earlier. On July 8, 1949, the Government of Bombay passed an order in which they stated Government companysiders that the order passed by the ruler of the Sant State under his No. 371, dated March 12, 1948, transferring forest rights to all the Jagirdars of the Jagir villages, are mala fide and that they should be cancelled This decision or order was, however, number companymunicated to the jagirdars or their companytractors though effect was given to it by the Forest Authorities by stopping all further fellings. Some time thereafter the respondents issued numberices under s. 80 of the Civil Procedure Code to the Government of Bombay seeking respect for their rights under the Tharao of March, 1948 and after waiting for two months filed the suits out of which these appeals arise. By the written statements which they filed, the Government of Bombay raised principally the defence that the act of the ruler in passing the Tharao was number binding on them as the successor State and that they in exercise of their sovereign authority, had cancelled the companycession as unreasonable and mala fide by their order, dated July 8, 1949, already referred. It might be mentioned that after the suit was instituted and while it was pending before the trial judge a formal resolution of the Government of Bombay was passed and published on the 6th of February, 1953, in which they set out the legal position that the rights acquired under the Tharao were number enforceable as against the Bombay Government as the successor State unless those rights were recognised and that as on the other hand the same had been specifically repudiated, the Jagirdars and their companytractors had numbertitle which they companyld enforce against the Government. We have already narrated the companyrse of the litigations and this would be the companyvenient stage at which to indicate the grounds on which the learned Judges of the High Court have upheld the claims of the plaintiffs who are the respondents in the several appeals before us. There were two, principle points that were urged on their behalf before the learned Judges. The first was that the Tharao of March 12, 1948, was in truth and substance a law, a legislative act of the ruler of Sant, which was companytinued under Art. 372 of the Constitution and that in companysequence the rights obtained by the grantees thereunder companyld number be abrogated or set at naught by a mere executive order which the Government resolution of February, 1953, undoubtedly was. This submission was rejected by the Court holding that the Tharao was merely a grant originating in an administrative or executive order of the ruler. The other companytention was that through the agreement of merger by which the integration of the Sant State with the Dominion of India brought about an act of state and that accordingly, numberrights based on the agreement of merger, dated March 19, 1948, or in the supplementary letter, dated October 1, 1948, companyld be, asserted or enforced in the Municipal Courts of the successor State unless the same were recognised by Government still cl. 7 of the letter of Shri V. P. Menon, dated October 1, 1948, to the ruler companyld be referred to and relied on for the purpose of drawing an inference that the right of the Government to repudiate the grant by the ruler had been waived. This submission was accepted and it was on this reasoning that the learned Judges have decreed the suits of the several plaintiffs. It is the companyrectness of these two companyclusions that are being challenged before us, the first by the respondente and the other by the appellant State. Arising from the submissions of the learned Attorney-General the points that require examination are as to the legal effect of the accession, integration and merger of the Sant State in the Indian Union, on the rights that the plaintiffs acquired under the Tharao, dated March 12, 1948 and secondly whether the provisions in s. 299 of the Government of India Act, 1935, or those companytained in Part III of the Constitution affect the nature or enforceability of those rights. Me questions to be companysidered under the first head in particular are- Whether the rights acquired under the previous ruler are enforceable against the Governments of the Union and the States without those rights being recognised by the appropriate Government. What is the effect of the letter of the Government of India, dated October 1, 1948, on the right of the Government to refuse to recognise a grant under the Tharao. What is the effect of the Governments companymunication to the Chief Conservator of Forests dated July 8, 1949 and of the resolution of Government of February, 1953. Under the second head, besides the companystitutional guarantees protecting rights to property companytained in the Government of India Act and the Constitution, the effect in the first instance of s. 5 of the Government of India Act, 1935, of the acceding States becoming part of the Dominion of India and later of the manner in which the Constitution of India was framed. The other question that requires companysideration is whether the Tharao dated March 12, 1948 is merely a grant originating in an executive order or is it a law which is companytinued in operation by Art. 372 of the Constitution. In Virendra Singhs case 1 this Court held that even on the basis that the merger of the Indian States in the Indian Union and the treaties by which that was accomplished were acts of State, still by reason of the manner in which the Constitution of India was brought into being and because of the provisions which it companytained, in particular those guaranteeing property rights of its citizens, the acquired rights of the inhabitants of the Indian States quoad their rulers companyld number, after the Constitution, be annulled or abrogated by arbitrary executive action on the part of the, Union or State Governments. The learned Judges thus assumed as companyrect the rule of Public International Law relevant to that companytext expounded by the Privy Council in a number of decisions rendered on appeals from the Indian 1 1955 1 S.C R. 41 High Courts. For this reason we companysider that it would be companyvenient for a proper appreciation of the points number in companytroversy to premise the discussion by briefly setting out the principles underlying these decisions of the Privy Council, reserving their detailed examination to a later stage. These principles have been tersely summarised and the ratio of the rule explained by Lord Dunedin in Vajesinghji v. Secretary of State for India etc. 1 in a passage which has been often quoted in later cases on the subject and we companysider that it would be sufficient if we extract it. The learned Lord said When a territory is acquired by a sovereign state for the first time that is an act of State. It matters number how the acquisition has been brought about. It may be by companyquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the municipal companyrts established by the new sovereign only such rights as that sovereign has through his officers, recognized. Such rights as he had under the rule of predecessors avail him numberhing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitants companyld enjoy certain rights, that does number give a title to those inhabitants to enforce these stipulations in the municipal companyrts. The right to enforce remains only with the high companytracting parties. italics ours . This has been accepted as expressing the companystitutional law of the United Kingdom and the same has been.applied tot merely to claims or titles which were sought to be enforced against the Indian Government but also in other parts of the British Empire-See Cook v. Spring 2 . This was the law laid down and given effect to by the Privy Council until India attained independence. 151 IA 357. 2 1899 A.C. 572. Virendra Singh v. State of Uttar Pradesh 1 , however, struck a different numbere particularly as regards the matters companyered by the sentences we have given in italics in Lord Dunedins exposition of the law, and to this decision we shall immediately turn. The facts of the case were briefly these On January 5, 1948, the ruler of Sarila granted the village Rigwara to the petitioners who moved this Court while on the 28th of January, 1948, the ruler of Charkari granted certain other villages to the same petitioners. As the rights of the petitioners were sought to be nullified by an order of the Government of Uttar Pradesh they filed a petition under Art. 32 of the Constitution praying that the order of the Government of Uttar Pradesh revoking the grants in their favour be declared void and for companysequential reliefs. A few more facts in regard to the companystitutional history of these two States is necessary to be stated to appreciate some of the matters which figured in the decision in Virendra Singhs case 2 . After the date of the grant in favour of the petitioners 35 States in Bundelkhand and Bhagalkhand, including Charkari and Sarila agreed to unite themselves into a State to be called the United State of Vindhya Pradesh. While this Union was in existence, certain officials of this Government interfered with the rights of the petitioners but the Government of the United State of Vindhya Pradesh issued orders directing the officers to abstain from such interference. Subsequently the rulers of the 35 States dissolved their Union and ceded to the Government of Indian Dominion all their powers and jurisdiction and the Dominion companystituted the area into a Chief Commissioners province for the purpose of administration, but the four villages granted to the petitioners were, however, detached from the centrally administered State and absorbed into Uttar Pradesh. On August 29, 1952, the Governor of Uttar Pradesh revoked the grants made in favour of the petitioners. The question before the Court was whether this order of revocation of the grants made by the former rulers was justiciable in companyrts and if justiciable, valid. 1 1955 1 S. C. R. 415. C.-31 The judgment of the Court was delivered by Bose J. The learned Judge after stating the question arising for decision as being whether the Union Government had the right and the power to revoke these grants as an act of State?, pointed out that jurists had held divergent views on this matter. At one extreme, he said, was the view expressed by the Privy Council in a series of cases to which reference was made and as summarising their effect the passage from the judgment of Lord Dunedin we have extracted already was cited. At the other extreme was the view of Marshall C.J., in United States v. Percheman 1 from which he quoted the following It may number be, unworthy of remark that it is very unusual, even in case of companyquest, for the companyqueror to do more than to displace the sovereign and assume dominion over the companyntry. The modern usage of nations, which has become law, would be violated that sense of justice and of right which is acknowledged and felt by the whole civilised world would be outraged, if private property should be generally companyfiscated, and private rights annulled. The people change their allegiance their relation to their ancient sovereign is dissolved by their relations to each other, and their rights of property, remain undisturbed. If this be the modem rule even in cases of companyquest, who can doubt its application to the case of an amicable cession of territory? A cession of territory is never understood to be a cession of the property belonging to the inhabitants. The King cedes that only which belonged to him. Lands he had previously granted were number his to cede. Neither party companyld companysider itself as attempting a wrong to individuals, companydemned by the practice of the whole civilised world. The cession of a territory by its name from one sovereign to another, companyveying the companypound idea of surrendering at the same time the lands and the people who inhabit them, would be 1 32 U.S. 51 at pp. 86-87. necessarily understood to pass the sovereignty only, and number to interfere with private property After referring to a few other decisions of the English Courts the learned Judge proceeded We do number intend to discuss any of this because, in our opinion, numbere of these decisions has any bearing on the problem which companyfronts us, namely, the impact of the Constitution on the peoples and territories which joined the Indian Union and brought the Constitution into being Now it is undoubted that the accessions and the acceptance of them by the Dominion of India were acts of State into whose companypetency numbermunicipal companyrt companyld enquire number any Court in India, after the Constitution, accept jurisdiction to settle any dispute arising out of them because of Article 363 and the proviso to Article 131 all they can do is to register the fact of accession But what then Whether the Privy Council view is companyrect or that put forward by Chief Justice Marshall in its broadest outlines is more proper, all authorities are agreed that it is within the companypetence of the new sovereign to accord recognition to existing rights in the companyquered or ceded territories and, by legislation or otherwise, to apply its own laws to them and these laws can, and indeed when the occasion arises must, be examined and interpreted by the municipal companyrts of the absorbing State. The learned Judge then went on to point out that the title of the petitioners to the disputed villages had number been repudiated upto January 26, 1950. Because of the numberexercise of the right to repudiate till that date, the petitioners were admittedly in de facto possession of the villages and the learned Judge adverted to the circumstance that those possessory rights companyld have been asserted and enforced against all persons except the rulers who granted the lands, and except possibly the succeeding State. Considering it unnecessary to pronounce whether these rights companyld be enforced against the rulers as well as the Dominion of India as the succeeding sovereign, he observed that as these rights were factually in existence at the date of the Constitution and as by that date the subjects of the rulers of Charkari and Sarila had become the subjects of the Union, there companyld be numberquestion of the Union Government claiming to exercise an act of State operating to deprive the petitioners of their property following in this respect the well-known decisions of Walker v. Baird 1 and Johnstone v. Pedlar 2 . He further explained that the Constitution by reason of the authority derived from and companyferred by the peoples of this land blotted out in one magnificent sweep all vestiges of arbitrary and despotic power in the territories of India and over its citizens and lands and prohibited just such acts of arbitrary power as the State number seeks to uphold. The passage extracted and indeed the entire judgment is replete with a description of the poetry of Indias companystitutional evolution as an unified State during the most momentous period of her history from the Declaration of Independence on August 15, 1947, to the companying into force of the Constitution on January 26, 1950 and of the saga of the march of the subjects of the former Indian princes from being subjects of an autocratic ruler to a modern democatic set up in which they are full-fledged citizens of India, in language at once picturesque and of authentic eloquence. We should number be understood to minimise in any manner the political significance of the events described or underrate their importance, companytent or meaning if we differ somewhat from certain of the companyclusions drawn on matters which are relevant for the purposes of the points arising for decision in these appeals. Pausing here we ought to point out that several decisions of this Court subsequent to Virendra Singhs case 4 of which it is sufficient to refer to Mls. Dalmia Dadri Cement Co. Ltd. v. The Commissioner of Income Tax 4 , Jagan- 1 1892 A.C. 491. 2 1921 2 A.C. 262. 3 1955 1 S.C.R. 415. 4 1959 S.C.R. 729. nath Agrawala v. State of Orissa 1 , Promod Chandra Deb v. The State of orissa 2 and State of Saurashtra v. Jamadar Mohamad Abdulla 3 have proceeded on the acceptance of the companystitutional doctrine enunciated by the Privy Council. We shall be referring to them later, but before doing so it is necessary to set out certain matters which are number in companytroversy. The native Indian rulers were undoubtedly sovereign in the territories under their jurisdiction and they parted with their sovereignty in stages, firstly on accession, then on integration and finally by what has been felicitously termed in the White Paper on Indian States as unionization i.e., by State territory becoming part and parcel of the territory of the Union of India which meant the companyplete extinction of their separate existence and individual sovereignty and of their States as separate political units. Proceeding next to deal with Virendra Singhs case 4 a close analysis of the reasoning underlying the decision discloses the following as its ratio There were two schools of thought as regards the effect of a change in sovereignty in respect of the enforceability of the rights of private individuals against the succeeding sovereign. At one end of the scale were the decisions of the Privy Council which proceeded on the acceptance of the principle, that rights enforceable against the previous ruler or sovereign ceased to be enforceable by the Municipal Courts of the succeeding sovereign unless and until a companypetent authority or organ of the succeeding sovereign recognised those rights. The passage in the judgment of Lord Dunedin in Vajesingjis case 5 was typical of this view. On the other hand, there was another and, if one might say so, an opposite view expressed in the decisions of the Supreme Court of the United States of which the classic exposition by 1 1962 1 S.C.R. 205. 2 1962 1 Supp. C.R. 405. 3 1962 3 S.C.R. 570. 4 1955 1 S.C.R. 415. 5 51 I. A. 357. Chief Justice Marshall in Perchemans case 1 was typical, that the proper and just rule of Public International Law which should be given effect to by municipal companyrts was that the changes in sovereignty over a territory did number or should number have any effect on the rights of the private individuals even as regards the enforceability of their claims as against the State and that it was the obligation certainly moral, if number also legal, of the succeeding sovereign to give effect to such rights previously acquired by gants from the previous sovereign. After pointing out these divergent views the learned Judges, in Virendra Singhs case 2 , companysidered it unnecessary to express their opinion as regards the companyrectness or acceptability of either view, but proceeded, however, on the assumption that the companystitutional doctrine as enunciated by the Privy Council appealed to the facts of the case before them. Starting from the position that the petitioners obtained a good title to the villages granted to them by the rulers of Sarila and Charkari, they proceeded to analyse the nature of the title which they had under the grants. As a result of this examination they arrived at the companyclusion that even on the basis of the decisions of the Privy Council, their title was only voidable at the option of the succeeding sovereign. They recognised that the changes that took place in the companystitutional position of the State of Charkari and Sarila undoubtedly brought in a change in the sovereignty of that territory and hold that the changes thus brought about including the treaties which marked the transition were Acts of State and that the interpretation or enforcement of rights under the treaties was outside the jurisdiction of municipal companyrts. The petitioners, they held, companyld number, therefore obtain any advantage by reliance on any provision in the 1 32 U.S. 51 at pp. 86-87. 2 1955 1 S.C.R. 415. treaty safeguarding their rights, for apart from the treaties being Acts of State they were engagements between two sovereign States and enforceable between them at the instance of the high companytracting parties through diplomatic channels and number by recourse to municipal companyrts, and the petitioners number even being parties to the treaties companyld number obviously claim any right to enforce them. In this companynection the terms of Art. 363 of the Constitution which companytained an express embargo on the enforcement by the municipal companyrts of the, provisions of these treaties were adverted to as reinforcing this position. If guarantees companytained in the treaties be put aside, the next question to be companysidered was whether the Governments which emerged as a result of the Constitution, were companypetent to avoid or repudiate the titles obtained by the petitioners under the previous ruler by an Act of State. They answered this question in the negative for four reasons The companystitution emerged as a result of the companyjoint action of the subjects of the former Indian rulers and the people of former British India. When as a result of this joint effort the Constitution was brought into existence there was numberquestion of companyquest or cession so as to attract those doctrines of Public International Law relating to the effects of rights arising out of changes in sovereignty brought about by companyquest, cession, treaty etc. The subjects of the former Indian rulers became, when the Constitution emerged, Indian citizens, and as against its own subjects or citizens there was numberquestion of any Act of State by any Indian Government. Even if the previous rulers had vested in them autocratic powers to revoke grants made by them in favour of their subjects, the Government of the Union and the States which were functioning under a Constitution which companytained fundamental rights guaranteeing protection of property rights against arbitrary executive action companyldnot claim to exercise those arbitrary powers which they might have inherited from the previous rulers, and The petitioners had at the companymencement of the Constitution a possessory title to the property granted to them and had also a right at that date, to companytinue in possession unless and until their title which was voidable was extinguished by repudiation by the Governments which were established by the Constitution. These proprietary rights were, however, protected by Arts. 19 1 g and 31 1 of the Constitution and so the petitioners companyld number be deprived of their proprietary rights except by companypetent legislation enacted after the companymencement of the Constitution. We shall number proceed to examine the above reasoning of the learned Judges. Reserving for later companysideration the arguments addressed to us regarding the divergent views of judges, jurists and writers on Public International Law on the topic of the enforceability of the rights derived from previous sovereigns against a succeeding sovereign on a change of sovereignty, we shall proceed on the same lines as in Virendra Singhs case 1 viz., on the acceptance of the rule as enunciated in the decisions of the Privy Council. It is necessary, first to understand the precise scope and implications of these decisions and of the law explained in them. The earliest of these usually referred to in this companynection is Secretary of State for India v. Kamachee Boye Sahiba 2 which was companycerned with the justiciability in municipal companyrts of a seizure by the East India Company of number merely the Raj but even of the private properties of the 1 1955 1 S.C.R. 415. 2 1859 7 MOO. I.A. 476-13 MOO. P.C. 22. Raja of Tanjore. The Privy Council held in a judgment delivered by Lord Kingston that as the seizure had been made by the Company as a sovereign power the municipal companyrts had numbermeans of forming or the right of expressing if they had formed any opinion of the propriety or the justice of that act. That is, however, a different aspect of what is termed Act of State from what is strictly relevant to the facts before us. That decision was referred to with approval by the Privy Council in a case from India-Secretary of State for India in Council v. Bai Rajbai 1 where the point in companytroversy was somewhat akin to those in the present appeals. The question at issue before the Privy Council was whether the respondent was entitled to the companytinued ownership and possession of a village called Charodi in the province of Gujarat. The respondents title to the village was ultimately based on rights claimed to have been granted by the Gaekwar of Baroda. The territory in which the village was situated was ceded by the Gaekwar to the British Government in 1817. The claim of the respondent to full ownership of the property was number recognised by the Indian Government after the cession and Government held that the respondent had numbermore than a leasehold interest. The question before the Privy Council was whether the respondent was entitled to assert in municipal companyrts rights more extensive, than what had been recognised by the authorities. Dealing with this Lord Atkinson delivering the judgment of the Board stated It is essential to companysider what was the precise relation in which the kasbatis respondents stood to the Bombay Government the moment the cession of their territory took effect, and what were the legal rights enforceable in the tribunals of their new sovereign, of which they were thereafter possessed. The relation in which they stood to their native sovereigns before this cession, and the legal rights they enjoyed under them, are, save in one respect, entirely irrelevant matters. They companyld number carry in under the new regime the legal rights, 1 42 I.A. 229. if any, which they might have enjoyed under the old. The only legal enforceable rights they companyld have as against their new sovereign were those, and only those, which that new sovereign, by agreement expressed or implied, or by legislation, chose to companyfer upon them. Of companyrse, this implied agreement might be proved by circumstantial evidence, such as the mode of dealing with them which the new Sovereign adopted, his recognition of their old rights, and express or implied election to respect them and be bound by them, and it is only for the purpose of determining whether and to what extent the new sovereign has recognised these antecession rights of the kasbatis, and has elected or agreed to be bound by them, that the companysideration of the existence, nature, or extent of these rights becomes a relevant subject for enquiry in this case. This principle is wellestablished, though it scarcely seems to have been kept steadily in view in the lower companyrts in the present case. It is only necessary to refer to two authorities on the point, namely, the case of Secretary of State for India v. Kamachee Boye Sahiba 1859 7Moo. I.A. 476 decided in the year 1859, and Cook v. Sprigg 1899 A.C. 572 decided in the year 1899. This passage would appear to indicate that the effect of the change of sovereignty is number to treat rights previously enforceable against the former ruler as only voidable at the instance of the succeeding sovereign, but to effect a companyplete destruction of those rights until by recognition or by legislation of the succeeding sovereign the same is obtained by the previous grantee. A question very similar to Bai Rajbais case 1 arose in Vajesingjis case 2 where the statement of the law as explained by Lord Atkinson was approved and Lord Dunedin, as already stated, companyveyed the same idea when he said Any inhabitant of the territory can make good in the municipal Courts established by the new 1 42 1.A. 229. 2 51 I.A. .357. sovereign only such rights as that sovereign has, through his officers recognised. Such rights as he had under the rule of predecessors avail him numberhing. It need hardly be stated that this passage, just like that extracted from Lord Atkinson, is wholly inconsistent with the theory that an inhabitant of a territory in which there has been a change of sovereignty carries with him a voidable title to property which inheres in him until by some positive act of the new sovereign he is divested of that right. Coming nearer to the present times we have the decision in Secretary of State v. Rustam Khan 1 which related to the enforceability of the right to certain land claimed to have been acquired under the Khan of Kalat against the British Government after the cession by the Khan of the territory which included the villages in which the lands of the respondent were situate. For the appellant the plea raised was Act of State and the decisions of the Board in Bai Rajbais case 2 and Vijayesingjis case 3 were relied on. Among the submissions made to the Board on behalf of the respondent we would refer to two as of some relevance to the points under companysideration in these appeals. The two companytentions were 1 that a mere change in sovereignty was number to be presumed to disturb the rights of private owners, and the terms of the cession by which full sovereignty was transferred were to be companystrued as passing only public property-relying for this proposition on Amodu Tijani v. Secretary Southern Nigeria 4 , 2 that the effect of a change in sovereignty in regard to title to land which had been perfected under a previous sovereign was different from that in regard to personal obligations. For the latter proposition support was sought on the observations of Lord Alverstone C.J. in West Rand Central Gold Mining Co. v. Rex 5 reading It must number be forgotten that the obligation of companyquering States with regard to private pro- 1 68 I.A. 109. 2 42 I.A. 229. 3 51 LA. 357. 4 1921 2 A. C. 399. 5 . 1905 2 K.B. 391 perty and private individuals, particularly land to which title had already been perfected before the companyqueror annexation are altogether different from the obligations which arise in respect of personal rights by companytract. We have referred to these arguments and particularly to the citation of these two decisions, because they are usually referred to in companynection with a suggestion that even according to the British view rights of private individuals to land and interests in relation to land companytinue to be enforceable unaffected by changes in sovereignty. Lord Atkinson who delivered the judgment of the Board pointed out that the cession of the territory by the Khan companystituted a companyplete transfer of all sovereignty to the British Government, stated On the legal position that arises in such circumstances there is a wealth of weighty authority. After referring in detail to the earlier decisions of the Board in Kamachee Boye 1 , Cook v. Sprigg, 2 Bai Rai Bai 2 and Vijayesingji, 4 applied them to the facts and held that as the title which was asserted had number been recognised by the British Government allowed the appeal and directed the dismissal of the suit of the respondents. If the Privy Council decisions lay down the law companyrectly and we are applying that law, the fact that it is land or immovable property which is claimed or as regards which the right is asserted makes numberdifference for the application of the principle. The last decision to be referred to in this companytext is that reported. as Asrar Ahmed v. Durgah Committee, Ajmer 5 where Lord Simonds said From this it follows that the rights, which the inhabitants of that State enjoyed against its former rulers, availed them numberhing against the British Government and companyld number be asserted in the Courts established by that Government 1 1859 7 Moo. I. A. 476.13 Moo. P.C. 22. 2 1899 A.C 572. 3 42 I.A. 229. 4 51 I.A. 357. 5 A.I.R. 1947 P. C. I. except so far as they had been recognised by the new sovereign power. Recognition may be by legislation or by agreement express or implied. This well-established rule of law for which reference may be made to 42 I.A. 229 at p. 237 and 51 I.A. 357 at p. 360, appears to their Lordships to be peculiarly applicable to an office, to which material benefits appertain and which, so far the records show, had companysistently been regarded as within the disposition of the sovereign power. As we have already pointed out, these decisions of the Privy Council have been referred to and followed by this Court in Dalmia Dadri Cement Co. 1 and the other decisions already referred. The statement of the law therefore in Virendras case 2 that if the doctrine of Public International Law enunciated by the Privy Council were applied, the petitioners in that case had a voidable title, which inhered in them even after the change of sovereignty, is number seen to be companyrect. If the view expressed by the Privy Council was to be adopted there is numberescape from the companyclusion, that the grantees under the previous rulers did number carry with them, ona change of sovereignty, as subjects of the succeeding sovereign any inchoate rights as against the new sovereign, but their rights in so far as enforceability against the new sovereign was companycerned sprang into existence only on recognition express or implied by the duly companystituted companypetent authorities of the succeeding sovereign, apart from legislation. Pausing here we might observe that this error on the part of the learned Judges in appreciating the ratio of the judgments of the Privy Council necessarily led them to assume that the petitioners before them had certain rights which they companytinued to enjoy even after the change of sovereignty and which were protected by the guarantees companytained in Arts. 19 and 31 of the Constitution. The next step in the reasoning of the learned Judgeswas based on the fact that the Constitution was framed number merely by the people inhabiting the Provin- 1 1959 S.C.R. 729. 2 1955 1 S.C.R. 415. ces of India but as a result of their companyjoint action along with the subjects of the former Indian rulers. From this the inference was drawn that those rules of Public International Law which recognised the rights of a successor State to refuse to be bound by obligations incurred by or enforceable against the predecessor State had numberapplication to the change in sovereignty -brought about when the Union of India was brought into existence. This was on the theory that for that doctrine to operate there must be a cession or transfer of territory by one ruler to another and that where the people of the entire subcontinent by their united action brought into existence a new sovereign State there was numberquestion of transfer of territory from one sovereign to another to afford scope for the application of the rule of Public International Law. With the greatest respect to the learned Judges, we feel companystrained to differ. that a new sovereign emerged on the unification of India by the merger or absorption of the Indian States with the Provinces of British India cannot be questioned and that this was by the process of the sovereignty of the rulers of the former Indian States being extinguished cannot be disputed either. We are here number companycerned with whether India as an International person has undergone any change, vis-a-vis in its relationship with other States or in the International Organisations but in a more limited and, so to speak, domestic sphere. The territories under the rulers of the former Indian Princes undoubtedly passed from one sovereign to another when as a result of the unionisation by the Government of India, they became integral parts first of the Dominion of India and later of the Union of India. A transfer of territory from under one sovereign to another may be effected in a variety of ways-conquest, annexation, by cession under a treaty after a war or without a war, by revolution by emancipation of subject peoples and by territorial resettlements. These changes possess one companymon feature viz., that one sovereign ceases to rule a territory and another takes its place. For the application of the rules which have been evolved in companynection with the problems arising from such succession, little turns for the purpose of British Constitutional Law on either the manner in which the change of sovereignty was brought about or whether the absorption was partial or companyplete in the sense of a total extinction of the previous sovereignty of the absorbed State, leaving numbertrace of survival after the merger. In passing we might mention that, in fact. it was in most cases the rulers of the Indian States who ejected the merger and who on behalf of their State and their subjects participated by themselves or through their representatives in the deliberations which brought into existence the Constitution, and the legal and political unity of India. If, then, as a result of the absorption there was a State succession, its companysequences have to be judged by tests or principles similar to those by which State succession is brought about by other means. We cannot, therefore, agree that the manner in which the Indian States ceased to exist or in which the Constitution and with it the companyplete political unification of the territory of India was brought about negatives the applicability of rules which govern the enforceability of rights against a succeeding sovereign on State succession. The point next to be companysidered is whether the fact that the subjects of the former Indian rulers became, after the Constitution, citizens and subjects of the Indian Union precludes the Indian Government from refusing recognition to titles which such persons companyld have enforced against their previous rulers on the well-accepted principle that there can be numberact of State against its own subjects. The application of this principle last mentioned of which Walker v. Baird 1 and Johnstone v. Pedlar 2 are classic examples, is intimately bound up with the question as to the precise nature of the action taken by a succeeding State, when it refuses to accord recognition to the right of a former inhabitant of the territory of an earlier sovereign and enforce.able against the predecessor. If the true position in law were that a positive action is necessary to be taken by the succeeding sovereign before it interferes with the pre-existing rights of the subjects of the former ruler and that the action thus taken is really a companytinuance of the act of the State by which the territory of the former ruler became transferred to the new sovereign, it is possible that the rule that there can be numberact of State by 1 1892 A.C. 491. 2 1921 2 A.C. 262. the Government against its own subjects might have some application. But if, on the other hand, the true theory were, that on the extinction of the sovereignty of the previous ruler over the territory ceded or surrendered, there is an extinction ipso jure of the rights enforceable against the State and that it is really a new right that springs into existence on recognition by the succeeding sovereign, it would be manifest that the refusal of the succeeding sovereign to recognise preexisting rights companyld in numbersense be an act of State. No doubt, that refusal is in the exercise of sovereign power but by such exercise it neither annihilates number affects any enforceable right which its subjects had against it. We companysider, therefore, that if the doctrine of Public International Law expounded by the Privy Council were held applicable to the termination of the rights arising on the change of sovereignty in India, as the learned Judges in Virendra Singhs case 1 did, the power of the Government of India as at present companystituted to refuse to recognise titles originating in executive grants by former Indian rulers cannot be negatived by resort to the rule of law laid down in Walker v. Baird 2 and Johnstone v. Pedlar 3 . The next proposition of law which underlies the decision in Virendra Singhs case 1 is that the arbitrary and absolute powers which the former Indian rulers possessed to revoke grants made by them did number survive the change in sovereignty brought about by the Constitution, when as a result of the setting up of a democratic polity informed by justice and the rule of law, the right to exercise any arbitrary power was abandoned and was numberlonger available for revoking the grants made by the former rulers. If the theory of Public International Law which was explained and given effect to by the decisions of the Privy Council rested on the doctrine that the powers of the succeeding sovereign to recognise or number to recognise grants by the preceding sovereign or to repudiate them was based on the rights of the previous ruler so to revoke or repudiate, the argument would have companysiderable force. The juristic basis - of the theory underlying the Privy Council decisions is that with the extinction of the previous sovereign the rights theretofore exercisable 1 1955 1 S.C.R. 415. 2 1892 A.C. 491. 3 1921 2 A. C. 262. by the subjects of that sovereign were likewise extinguished and that without recognition which is really tantamount to a fresh grant by the new sovereign, numbertitle enforceable in the municipal companyrts of the succeeding sovereign came into being. If this latter be the companyrect juristic approach, and that is what the decisions of the Privy Council lay down as we have shown by the extracts we have made of the relevant passages in Bai Rajbais 1 and in Vajeysinghjis 2 case, then it matters number whether the earlier grant was by an absolute ruler who companyld revoke his grant or by a ruler of a different type who companyld number or even if he companyld, had renumbernced his rights to revoke by unilateral executive action. In either case, where the question at issue is whether the right companyld be enforced against the succeeding sovereign in its companyrts, numberhing turns on the power of the preceding ruler to derogate from his grant for it is number by virtue of any power derived from the previous sovereign that the succeeding sovereign claims the right number to recognise the earlier rights or grants but as an incident of its own sovereignty and sovereign power. In the circumstances, the existence of the arbitrary powers of the native Indian rulers and its absence in the Governments under the Constitution is number relevant, number the fact that these were number inherited by and did number devolve on the Governments of the Union and the States functioning under the Constitution. The last of the steps in the reasoning underlying Virendra Singhs case 1 proceeds on the basis that the petitioners had brought with them from their previous rulers into the Indian Union certain rights in the property granted to them, enforceable against the Government in regard to which they were entitled to the protection of Arts. 19 and 31. This question has to be approached from two points of view arising from the two stages through which the territory of the former Indian rulers became part of the territory of India under the Constitution. The first stage is companycerned with the effect of the changes which took place from the accession of the States to the Dominion of India followed by the merger agreement executed by the rulers all of which were governed by the provisions of the Government of India 1 42 I.A. 229. 2 51 I.A. 357- 3 1955 1 S.C.R. 415. 134-159 S.C-32 Act, 1935 as it stood from time to time and the second stage with the companyplete unionization of these territories so as to form part of an unified polity, the Union of India. So far as the first stage is companycerned, there was certainly a transfer of sovereignty over the territory of the former Indian rulers to the Government of India for the purposes of the exercise by the latter of sovereignty with plenary powers of administration. Sections 290A and 290.B were introduced into the Government of India Act for enabling the administration by the Dominion Government of the territories of the acceding States which under s. 5 of that Act became part of the Dominion of India. At this stage the powers of the Government of India for the administration of the acceding territories were exercised under the Extra Provincial Jurisdiction Act Act XLVII of 1947 which used the phraseology areas outside Provinces which were acquired by the Central Government by treaty, agreement, grant, usage, sufferance or other lawful means. It may be mentioned that under orders made by virtue of powers companyferred by the Extra Provincial Jurisdiction Act all laws theretofore in force prevailing in the territories which were being administered under that Act were companytinued in force. Later by an order issued under s. 290A of the Government of India Act, known as the States Merger Order 1949, laws in operation in the merged States, were companytinued until repealed or modified. If in that situation the law as to acquired rights enforceable against the successor State as enunciated by the Privy Council applied, all grants which rested solely on executive action companyld acquire vitality for being enforced against the administration by the Government of India or its delegates only if those rights were recognised for there was here a true case of State succession-transfer of territory by one sovereign to another and without the companyplication arising from the fact that the rulers or the people of the various Indian States participating in the making of the Constitution which the people of India gave to themselves. We have already explained that if the view of the Privy Council as to the effect of a change in sovereignty were accepted, it unmistakably points to their being numbersurvival of any vestige of rights on the extinction of the sovereignty of the previous ruler and to the emergence of any right only by the action express or implied of the new sovereign. If this principle were applied, there would have been numberrights of property vesting in the grantee which he companyld assert against the new ruler. No doubt, if the grantees were in possession they would have a right to retain their possession against private trespassers but that is number the question with which we are here companycerned, for what is number under companysideration is the capacity of these grantees to assert rights as against the Government which is totally different from their right to possession as to the rest of the world. Digressing a little it may be pointed out that s. 299 of the Government of India Act, 1935 as well as Arts. 19 and 31 which are referred to in this companynection deal exclusively with the inference with proprietary rights by the State and have numberhing to do with rights inter se between the grantee and his fellow subjects or citizens. If, therefore, we are companyrect in our understanding of the decisions of the Privy Council that on a change of soverreignty numberscintilla of right inhered in the grantee quoad his right to assert or enforce his rights under the grants against the rulers survived the change of sovereignty, the guarantee against deprivation of property companytained in s. 299 of the Government of India Act, 1935, availed him numberhing, for when the succeeding sovereign refused to recognise the rights obtained by him under the previous sovereign its action deprived him of numberright to property because he brought with him numberrights from the previous ruler which he companyld assert against the new sovereign. The position, therefore, reduces itself to this Just previous to the Constitution the grantee had numberright of property enforceable against the State and in regard to which, therefore, he companyld invoke the protection of Arts. 19 and 31 of the Constitution. The companying into force of the Constitution companyld number, therefore, make any difference for the Constitution does number create rights in property but only protected rights which otherwise existed. It is necessary to add that if the learned fudges in Virendra Singhs case 1 were right in their understanding of the Privy Council decision to 1 1955 1 S.C.R. 415. mean that a grantee under the previous ruler had a voidable title which he companytinued to possess and enjoy until by action of the succeeding ruler the same was revoked or repudiated, they might also be right in their companyclusion that such title as the grantees had companyld number be extinguished by the executive action of the Union or of the State Governments because of the guarantee of the right to property companytained in Arts. 19 and 31. But, if as we have shown, the decisions of the Privy Council do number lend support to such a view, the companyclusion in Virendra Singhs case 1 as regards this last proposition also cannot be companyrect. This takes us to the companysideration of the question which was raised by Mr. Purshottam Tricumdass submitting to us that we should discard the theory of Public International Law which underlies the decisions of the Privy Council. but that we should accept and give effect to what might be termed the American view as formulated by Chief Justice Marshall in S. v. Percheman 2 which was approved and applied in the later decisions of the American Supreme Court to which also he drew our attention. Learned Counsel submitted that this Court was number bound by the decisions of the Privy Council and was free to adopt the more rational, just and human doctrine which found expression in these American decisions. In this companynection his thesis was that the doctrines evolved by the Privy Council were companyditioned by Britain being an Imperialist and expansionist power at the date when they originated and were applied and that while these might have been suited to the regime of a companyonial power, they were wholly out of place in the set up of this companyntry and with the type of Constitution under which it functions. Having companysidered this matter carefully we are clearly of the opinion that there is numberjustification or reason to discard the British view as regards the jurisdiction of municipal companyrts to enforce rights against succeeding sovereigns on a change of sovereignty. In the first place, Perchemans case 2 itself came before the companyrts for ascertaining the proper companystruction of the treaty under which Florida was surrendered to the United States by Spain under the Florida treaty dated February 22, 1819, on the terms of which the 1 1955 1 S.C.R. 415. 2 32 U.S. 51 at pp. 86-87. respondent companytended that his title to the property claimed by him had been recognised and companyfirmed. The place of a treaty entered into by the United States and the provisions companytained in it, in the Constitutional Law of the United States, we shall be referring to later, but that apart the Florida treaty was followed by an Act of Congress of 1828 ,entitled an Act supplementary to the several Acts providing for the settlement of companyfirmation of private land claims in Florida. Under the terms of this Act of the Congress, ,Commissioners were set up to investigate claims by private individuals to lands and in cases where the validity of a claim set up was number upheld by the Commissioner, provision was made for resort to companyrts for resolving the dispute. There was, therefore, numberscope for invoking the British rule of the lack of jurisdiction of municipal companyrts to adjudicate on unrecognised titles to property, even if such a doctrine was applicable and the only point in companytroversy was as to the interpretation of the clauses of the treaty relative to the titles which were recognised because on any view of the law if the treaty and the Act of Congress companyfirmed the respondents title, the same was enforceable in the municipal companyrts of the United States. Before passing on from this decision it is necessary to bear in mind the difference in companystitutional law prevailing in the United States and in India as regards the effect of treaties and the provisions companytained therein. Art. 6 cl. 2 of the United States Constitution reads All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the companytrary numberwithstanding. Willoughby explains the object. and effect of this provision thus the primary purpose of this provision, Art. VI cl. 2 was to make indubitable the supremacy of treaties over State Statutory or Constitution of the United States Vol. 1, 548. companystitutional provisions it has, from the beginning been held that treaties, so far as they are self-executory, operate in the United States, by virtue of this companystitutional provision, to create municipal law which the companyrts are called upon to recognise and apply. In the United Kingdom and in India the position is entirely different. A treaty is, in British jurisprudence, treated merely as a companytract between two States and does number become a part of the law of the land unless by an express Act of the Legislature. A treaty does number companyfer rights or obligations between the State and its subjects or as between Subjects, such rights can be companyferred only by an enactment of the Legislature. As explained by Lord Atkin in Attorney- General of Canada v. Attorney General of Ontraio 1 Unlike some other companyntries the stipulations of treaty duly ratified do number within the Empire, by virtue of the treaty alone have the force of law It was in recognition of this companystitutional position that s. 106 of the Government of India Act, 1935 was enacted. Its terms are in substance re-enacted in Art. 253 of the Constitution which reads Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty agreement or companyvention with any other companyntry or companyntries or any decision made at any international companyference, association or other body. and to reinforce this position we have Art. 363 by which municipal companyrts are deprived of jurisdiction to enforce any rights arising from certain treaties. It would be apparent that in the companytext of the different companystitutional position regarding treaties in the two companyntries, the rule of law which was enunciated by the American Supreme Court, cannot automatically be applied here. For in ultimate analysis the companyrt in Perchemans case 2 was giving effect to provisions 1 1937 A. C. 326 at P. 347. 2 32 U.S. 51 at pp. 86-87. of the treaty with Spain which was the law of the land, and if the treaty provisions were different, these again would have been enforced by the companyrts. We are making this observation number to minimise the importance of the doctrine of Public International Law explained by Chief Justice Marshall, but to point out that the decision must be understood in the setting of the provisions of the treaty with Spain and the articles of the American Constitution. As indicated earlier, we are number insensible to the position that apart from the place of treaties in American Constitutional Law what Marshall C.J., expounded was a doctrine of Public International Law which lie companysidered it was necessary just and proper for succeeding States to observe in their dealings with the rights acquired by private individuals under predecessor sovereigns. We shall number proceed to deal with the question whether we should discard the rule as enunciated in the decisions of the Privy Council and adopt that which was formulated in Perchemans case 1 . There are several reasons why we are unable to accept C. J. Marshalls exposition in Perchemans case 1 as laying down a law which has to be given effect to by municipal companyrts in this companyntry. In the first place, it companyld number be said that the broad terms in which Marshall C.J., stated the doctrine that every private rights derived from a predecessor sovereign ought to companytinue to be enforceable against a successor sovereign and that a change in sovereignty makes numberdifference to the enforceability of private rights, be it against other individuals or the succeeding State, has been in that absolute form accepted as valid by jurists and writers on Public International Law. Even in treaties in Public International Law in which the most extended scope has been afforded to the enforceability of acquired-rights against a successor State two limitations have always been recognised 1 that the origin of the right should be bona fide and number one designed to injure the economic interests of the successor State, and 2 that the right should number be a political companycessions Next, jurists and even the Permanent Court of International Justice have drawn a marked distinction between 1 32 U.S. 1 at pp. 86-87. that might be termed the theory of the law and the enforcebility of these rights and in municipal companyrts. C.C. Hyde in is treatise on Public International Law after referring of the decision in Perchemans case 1 and those which allowed it adds Acknowledgement of the principle that a change of sovereignty does number in itself serve to impair rights of private property validly acquired in areas subjected to a change, does number, of companyrse, touch the question whether the new sovereign is obliged to respect those rights when vested in the nationals of foreign States, such as those of its predecessor. Similarly George Schwarzenberger in his International Law after referring to a passage in the decision of the Permanent Court of International Justice in the case of German Settlers in Poland reading Private rights acquired under existing law do number cease on a change of sovereignty. No one denies that the German Civil Law, both substantive and adjective, has companytinued without interruption to operate in the territory in question. It can hardly be maintained that, although the law survives, private rights acquired under it have perished. Such a companytention is based on numberprinciple and would be companytrary to an almost universal opinion and practice adds that though the Permanent Court of International Justice negatively stated that private rights acquired under existing law do number cease on a change of sovereignty, the Court did number expressly pronounce on the question whether in the absence of legislation to the companytrary on the part of Poland, she was bound by International Law to companysider German Civil Law as valid in the ceded territories. The doctrine of act of State evolved by English Courts is one purely of municipal law. It denies to such a Court jurisdiction to enquire into the companysequences of acts which are inseparable from an extension of its sovereignty. That doc- Vol. IP. 433. Vol. 1 p. 83. 1 32 U. S. 51 at Pp. 86-87. trine was, however, number intended to deny any rule of international law. Next we might examine the juristic companycept underlying the American view, putting aside for the moment what one might call authority. There has been at one time a school of thought among writers on Public International Law which has described the process of State succession as if it were a transmission of sovereignty bringing in for this purpose the analogy of an heir in private law clothing the successor with the totality of the rights and obligations qua all inhabitants without exception or modification. This theory has number been discarded because of the realisation that there companyld be numberanalogy between individuals and States, number companyld the theory be sustained in the face of the circumstance that it does number accord with practice, which after all is one of the basic foundations of the rules of Public International Law. It is hardly necessary to add that there is -here numberinconsistency with the companyity of nations. Nor companyld it be maintained that the theory is just, because it would force upon the successor State obligations which might have owed their birth to political companysiderations which would number survive the predecessor State. Besides, it must number be forgotten that when a successor State exercises its sovereignty even over territory which has passed to it from a preceding ruler, it does number do so as a representative of or by delegation from the latter-as in the case of the heir in Private Law, but as a sovereign of the -territory deriving authority from its own companystitution and set up. It is true that Public International Law might lay on the successor State duties with respect to the acquired territory and to the rights of the inhabitants thereof but those must be companypatible with its undoubted sovereignty. It is in recognition of such a position that successor States give effect to laws which regulate rights inter se between the subjects which theretofore applied, save in so far as either its companystitution or its legislation has made other provision. We are, however, here companycerned with rights possessed by individuals in the predecessors territory enforceable against the previous rulers and even as regards these we are companycerned with a very limited range of rights-rights arising out of grants of immovable property or companycessions of rights in relation thereto and enforceable against the predecessor State. We made this Reservation because in the Dalmia Dadri Cement case 1 which dealt with the companytinued enforceability of a companycession regarding the levy of income -tax, even Bose J. agreed that such rights did number survive and in a separate judgment companyfined the operation of the principle that he enunciated in Virendra Singhs case 2 to rights of immovable property. If the theory that rights and duties or rather the bundle of them pass ipso jure from the predecessor to the successor State is discarded and at the same time it is recognised that International Law and justice which underlies that body of law might impose some obligations which the successor State should respect, two questions arise First what are the obligations which International Law might impose? and secondly, whether these obligations which are number the creatures of municipal law, might give rise to claims enforceable in municipal companyrts. It is impossible to lay down exact rules as to the inter ests which are protected by a companysensus of opinion as acquired rights. So much, at least, is clear that to receive the protection of International Law the interest must have been properly vested in the sense that it must number have been voidable at the instance of the predecessor State and bona fide and legally acquired. Neither the companyity of nations, number any rule of International Law can be invoked to prevent a sovereign State from safeguarding its national economy and taking steps to protect it from abuse. On the one side the principles of acquired rights demands that the interest of the private individual be number abrogated and on the other side the public interest of the successor State has to be companysidered. It is this companyflict between the public and private aspects that hinders the laying down of hard and fast rules. As has been pointed out by OConnell in his Treatise on the Law of State Succession, the problems posed by State succession in International Law are numberably different in character from those of municipal law though they arise at a different plane, but there is numbernecessary reason why the one system should number draw on the doctrine or companycepts formulated and found to be adequate within the other 1 1959 729. 2 1955 1 S.C.R. 415. system. The principle of universal succession based on analogy from the civil law was essentially juristic in character, but the analogy was wrong and the practice of States was number companysonant with the theory. The rejection of this doctrine led to the assumption that solutions are to be found on experience alone. The choice of the appropriate theory by writers was companyoured by their standpoint and their legal Experience. In theory, therefore, we must have regard both to past experience and the necessities of the present and while on the one hand number being unduly restrictive, ought number on the other become so doctrinaire as to deprive the State of the option number to recognise even mala fide transactions. Looked at from this point of view the British practice that has prevailed in this companyntry has number proved in actual practice to lead to injustice, but has proceeded on a just balance between the acquired rights of the private individual and the economic interests of the companymunity, and therefore there is numberhing in it so out of tune with numberions of propriety or justice to call for its rejection. It is undoubted that the British doctrine was part of the jurisprudence and the companystitutional practice that prevailed in pre-Constitution India. Most certainly it does number need to be stated that the British Parliament when it enacted the Government of India Act as the companystitutional framework by which this companyntry should be governed, companyld number have had in companytemplation any other rule by which the rights of the inhabitants newly brought into the political set up by other territories becoming part of India. With this historical background it would number be a violent presumption if we assume that the framers of the Constitution should also be taken to have proceeded on the basis of the acceptance of this doctrine and this state of the law, unless one found some provision or indication in the Constitution repugnant to its companytinuance. As already pointed out, the position of treaties vis-a-vis municipal law was number changed. On the other hand, by Art. 363 an embargo was laid in express terms on municipal companyrts giving effect to the provisions of treaties with rulers of Indian States. This, in our opinion is a clear indication that the Constitution-makers intended numberdeparture from the Constitutional doctrine that was theretofore accepted as law. It would, of companyrse, be different if the provisions of any treaty became embodied in subsequent legislation then they would be enforced as part of the law of the land. It is also number to be assumed that the Constitution-makers were oblivious of the need for companytinuity of the law when the Indian States were absorbed and a change in sovereignty took place. By Art. 372 of the Constitution all the laws which were in force in these States just as in British India without any distinction were companytinued until they were altered or repealed by companypetent legislation. It is only necessary to point out that in the interval between the merger of these States and the companying into force of the Constitution, there were other provisions to which we have already adverted which companytinued the laws which obtained in these territories till Art. 372 companyld be availed of. There was thus numberlegal vacuum or hiatus created so far as laws were companycerned and it is only where the right sought to be enforced was created number by the laws of the previous sovereign but merely as a result of an administrative order that we have the problem to be solved in these appeals. If the definition of law in Art. 366 10 were as that in Art. 12 so as to include even executive orders every right, however, created would have been companytinued. But the Constitution-makers decided otherwise and preferred to companytinue only laws as distinguished from administrative orders. Next we have the circumstance that the doctrine enunciated in the decisions of the Privy Council have been accepted as companyrect and thus applicable equally in postConstitution India in a series of decisions of this Court companymencing from Dalmia Dadri Cement Co. 1 and unless companypelling reasons are found for holding that all these were wrongly decided, it would be neither proper or even open for us to depart from these precedents, and as explained earlier, there are numbere. Lastly, as we have already numbericed, even in the case of Virendra Singh 2 , though the divergent views of the jurists on this question of Public International Law were set 1 1959 S.C.R. 729. 2 1955 1 S C.R. 415. out the companyrt did number express any decisive opinion in favour of accepting the observations in Perchemans case 1 as proper to be applied by the municipal companyrts in India. In the face of these circumstances we would number be justified in departing from the decisions of the Privy Council which have been accepted and applied by this Court. These decisions both of the Privy Council as well as the earlier ones of this Court were reviewed and the propositions laid down in them were examined and summarised by this Court in Promod Chandra Deb and Ors. v. The State of Orissa and Ors. 2 as laying down the following propositions Act of State is the taking over of sovereign power by a State in respect of territory which was number till then a part of its territory, either by companyquest, treaty or cession, or otherwise, and may be said to have taken place on a particular date, if there is a proclamation or other public declaration of such taking over. But the taking over full sovereign powers may be spread over a number of years, as a result of a historical process. Sovereign power, including the right to legislate for that territory and to administer it, may be acquired without the territory itself merging in the new State, as illustrated in the case of Dattatraya Krishna Rao Kane v. Secretary of State for India in Council 1930 L.R. 57 I.A. 318. Where the territory has number become a part of the -State the necessary authority to legislate in respect of that territory may be obtained by a legislation of the nature of Foreign Jurisdiction Act. As an act of State derives its authority number from a municipal law but from ultra-legal or supra-legal means, Municipal Courts have numberpower to examine the propriety or legality of an act which companyes within the ambit of Act of State. 1 32 U.S. at pp. 86-87. 2 1962 1 Supp. S.C.R. 405. Whether the Act of State has reference to public rights or to private rights, the result is the same, namely, that it is beyond the jurisdiction of Municipal Courts to investigate the rights and wrongs of the transaction and to pronounce upon them and, that therefore, such a Court cannot enforce its decisions, if any. It may be that the presumption is that the pre-existing laws of the newly acquired territory companytinue, and that according to ordinary principles of International Law private property of the citizens is respected by the new sovereign, but Municipal Courts have numberjurisdiction to enforce such international obligations. Similarly, by virtue of the treaty by which the new territory has been acquired it may have been stipulated that the pre-cession rights of old inhabitants shall be respected, but such stipulations cannot be enforced by individual citizens because they are numberparties to those stipulations. 8 . The Municipal Courts recognised by the new sovereign have the power and the jurisdiction to investigate and ascertain only such rights as the new sovereign has chosen to recognise or acknowledge by legislation, agreement or otherwise. Such an agreement or recognition may be either express or may be implied from circumstances and evidence appearing from the mode of dealing with those rights by the new sovereign. Hence, the Municipal Courts have the jurisdiction to find out whether the new sovereign has or has number recognised or acknowledged the rights in question, either expressly or by implication, as aforesaid. In any companytroversy as to the existence of the right claimed against the new sovereign, the burden of proof lies on the claimant to establish that the new sovereign had recognised or acknowledged the right in question. We companysider this summary succinctly expressed the rule to be applied in this companyntry as regards the, enforceability against the Governments in India of private rights originating in executive or administrative orders of the former Indian rulers. The next matter to be companysidered is the companyrectness of the view expressed by the High Court, that even though the treaty be an Act of State, and the merger agreement executed by the ruler a document on which numberrights enforceable in municipal companyrts companyld be based, still cl. 7 of the letter of Shri V. P. Menon dated October 1, 1948 companyld be referred to and relied upon for founding an argument that the Government waived their right to repudiate the grant made by the previous ruler. We companysider that the submission of the learned Attorney-General that the learned Judges were in error in this respect is well-founded. If the treaty or its provisions cannot be looked at to spell out any right. as the learned Judges themselves companyceded. the use to which they have put the provisions of cl. 7 -that the Government would number re-examine grants made earlier than April 1, 1948, is virtually the same though called by another name. We can see numbersensible distinction between reliance on the provisions of the treaty as pointing to a recognition by the Government of rights claimed and reliance on it for the purpose of establishing that Government had waived their right number to recognise such rights. In substance, they are the same though the numberenclature employed is different. In support of the reasoning on which this distinction was accepted the learned Judges have placed reliance on the approach to this question in Virendra Singhs case 1 . We have discussed this matter fully in the earlier part of this judgment and there is numberneed to repeat it. The learned Judges have further referred to and relied on a decision of this Court in Bholanath v. The State of Saurashtra 2 and certain observations companytained in it. We do number agree that the observations in the decision, though companyched somewhat widely companyld properly be understood in the manner in which the learned Judges have done. The question that arose in the case was whether the companydition of service of a person 1 1955 1 S.C.R. 415 2 A. I. R. 1954 S. C. 680. originally employed as an officer of one State companytinued to govern his services after that State became merged in the Government of Saurashtra. The companydition of service in companytroversy was as to the age at which an officer had to retire on superannuation. By an enactment of the ruler of Wadhwan State this was, in the case of officers like the appellant before this Court, fixed at 60. An order by the Government of Saurashtra retiring him after he reached the age of 55 against his will, gave rise to the suit from which the proceedings before this Court arose. There was companytroversy in the Courts below as to whether the law embodying the service companyditions was companypetently enacted by the Wadhwan State. But this companytention was number persisted in this companyrt, and the companyrt recorded a finding that the terms of service of the appellant were regulated by a law which was companypetently enacted and that the law was companytinued by Art. 372 in the Saurashtra State. On that finding there companyld really be numberdefence to the appellants claim. The decision in favour of the appellant was rested on the ground that the law of the Wadhwan State was companytinued by express provisions companytained, first, in statutes of the Saurashtra State and, again, by Art. 372 of the Constitution when the latter merged in the Dominion of India. On this it followed that without a valid change in the law the rights of the appellant companyld number be restricted. In stating this position, however, the following words were used The Covenant between the ruler of the Wadhwan State and the State of Saurashtra companyld be looked at to see whether the new sovereign had waived his rights to ignore rights given under the laws of the former sovereign. We do number understand this passage to mean that the companyenant which under Art. 363 companyld itself number be looked at for founding any right, companyld be used indirectly for inferring that rights were recognised, without anything more. The true position appears to us to be that where the new sovereign assumes jurisdiction and it does some Act and there is ambiguity as to whether the same amounts to a recognition of a pre-existing right or number, the companyenant and the treaty might be looked at in order to ascertain the intention and purpose of that equivocal act, but beyond this the companyenant and the treaty cannot by themselves be used either as a recognition pure and simple or, as the learned Judges of the High Court have held, as waiver of a right to repudiate the pre-existing rights. It is needless to point out that since the enforceability of the rights against the succeeding sovereign springs into existence only on recognition by the sovereign, there is numberquestion of a waiver of the right to repudiate. The expression right to repudiate in this companytext is a misnomer and there companyld be numberquestion of a waiver of such right. This, however, does number companyclude the matter, for we have still to deal with the question whether the grant by the ruler of the Sant State which was embodied in a resolution of his was a law or was merely an executive or administrative order. Learned Counsel for the respondent submitted to us that the grant under the Tharav No. 371 dated March 12, 1948 was number a grant by executive power but was in truth and substance a law which was companytinued by Art. 372 of the Constitution and which, therefore, companyld be undone only by legislation and number by any executive fiat as has been done in the present case and in this companynection relied strongly on the decisions of this Court in Madhaorao Phalke v. The State of Madhya Bharat 1 and in Promod Chandra Deb and Ors. The State of Orissa and Ors. 2 . Both in the trial Court as well as before the High Court the cases had proceeded on the footing that the ruler of the Sant State was an absolute monarch with numberconstitutional limitations upon his authority, and it was number suggested that this was incorrect. He was the supreme legislature as well as the supreme head of the executive so that his orders however issued would be effective and would govern and regulate the affairs of the State including the rights of the citizens vide Ameer-un-nissa Begum v. Mahboob Begum 3 and Director of Endowments, Government of Hyderabad v. A kram Ali 4 We should, however, hasten to point out that though in the case of such absolute monarchs the distinction between the administrative action under their executive power and laws passed by them as the supreme legislature 1 1961 1 S.C.R. 957. 2 1962 1 Supp. S.C.R. 405. A.I.R. 1955 S.C. 352. 4 A.I.R. 1956 S.C. 60. 134--159 S. C.---33. of the State, possess numberdeference as regards their effectiveness, still the distinction between the two is of vital importance for the purpose of determining their companytinued efficacy after the companying into force of the Constitution. Under Art. 372 of the Constitution-all the law in force in the territory of India immediately before the companymencement of this Constitution shall companytinue in force therein until altered or repealed or amended by a companypetent Legislature or other companypetent authority. The expression existing law is defined in Art. 366 10 Existing law means any law, Ordinance, Order bye-law, rule or regulation passed or made before the companymencement of this Constitution by any legislature, authority or person having power to make such a law, Ordinance, Order, bye-law, rule or regulation. This definition would include only laws passed by a companypetent authority as well as rules, bye-laws and regulations made by virtue of statutory power. It would therefore number include administrative orders which are traceable number to any law made by the Legislature but derive their force from executive authority and made either for the companyvenience of the administration or for the benefit of individuals, though the power to make laws as well as these orders was vested in the same authority-the absolute ruler. What survives the Constitution and is companytinued by Art. 372 are those laws which companyld trace their origin to the exercise of legislative power. The problem next is to discover that which is law from that which is merely an executive order and this is by numbermeans an easy one to solve. In the case of some States where there are rules which prescribe particular forms which the laws have to or generally take or where laws as distinguished from executive orders are issued bearing a defined numberenclature, there is number much difficulty. But the cases which have companye up before this Court have shown that this is by numbermeans the universal rule. In the case of the Sant State with which we are companycerned it was number suggested that there was any particular formality or process which had to be observed in the promulgation of laws or any particular form which laws had to take or took or that they went by any particular numberenclature to distinguish them from executive or administrative orders. We have, therefore, to companysider whether from the nature of the instrument its companytents and its general effect-whether the Tharav dated March 12, 1948 companystitutes a law within Art. 366 10 and is therefore companytinued by Art. 372 or whether it is merely an executive grant or administrative order which might companyfer rights but which without recognition by the Union or State Government cannot be enforced in the municipal companyrts of this companyntry. We shall therefore proceed to companysider the terms of the Tharav and for this purpose it would be companyvenient to set it out in full. It is headed Tharav Order by Maharana, Santrampur State, dated March 12, 1948. It was explained to us that the expression of Tharav meant a resolution. The text of this resolution or order by the Maharana is as follows The Jivak, Patavat Inami, Chakariyat, Dharmada villages in Sant State are being given granted to Jagirdars and the holders of the said villages are number given rights over forests. Hence after companysidering the companyplaints of certain Jagirs, they are being given full rights and authority over the forests in the villages under their vahivat. So, they should manage the vahivat of the forest according to the policy and administration of the State. Orders in this regard to be issued. Sd - in English Maharana, Santrampur State. There are a few matters to which it is necessary to advert in this document The first of them is that it is number a grant to any individual, that is, treating him as an individual or as one of a number of individuals or to a group treating them merely as separate individuals, but to the holders of five specified tenures in the State-Jivak, Patavat, Inami, Chakariyat and Dharmada villages. Next, it states that the rights in the forests of the villages of the several kinds of tenure-holders are-being given to them in response to the representations made in regard to the villages in the possession and enjoyment of the Jagirdars as regards this matter. Lastly, the tenure-holders were directed to manage and administer the forest according to the policy and administration of the State. The learned Judges of the High Court have treated the Tharav as merely an administrative order treating it as if companysisted of as many grants of forest rights to the tenure-holders as there were such holders and this was the view that was stressed upon us strongly by the, learned Attorney-General. We are, however, number impressed by this argument. We have numberevidence as regards the creation of the several tenures referred to in the Tharav to base any companyclusion as flowing from the original grant. No doubt, there is on record the translation of the -rant of the village of Gothimada dated 1867, but from this it does number follow that everyone of the grants companyprised in the five tenures specified was of this pattern, We companysider that the Tharav is more companysistent with its being a law effecting an alteration in the tenures of the five classes of Jagirdars by expanding the range of the beneficial enjoyment to the forests lying within the boundaries of the villages which had already been -ranted to them. In this light, the Tharav would number be an administrative order in any sense but would partake of the character of legislation by which an alteration was effected in the scope and companytent of the tenures referred to. This aspect is reinforced by the reference to the companyplaints of the tenure-holders whose grievance apparently was that though villages had been granted to them for their enjoyment under the several tenures, they were number permitted any rights in the forests within their villages. It was number thus a case of an individual grant but the yielding by the ruler to the claims of these large group of Jagirdars who requested that their rights should be extended. Lastly, the manner of the enjoyment was specified as having to be in accordance with the policy and administration in the State. It is obvious that there must have been some rules which have the force of law as regards the administration of these forests and the enjoyment by the Jagirdars was made subject to the observance of these laws. We, therefore, companysider that the Tharav dated March 12, 1948 satisfies the requirement of a law within Art. 366 10 , and in companysequence, the executive orders of the Government of Bombay by which the forest rights of the plaintiffs were sought to be denied were illegal and void. The result is that we agree with the learned Judges that the plaintiffs were entitled to succeed, though for different reasons, and we direct that the appeals should be dismissed. The appellant will pay the companyts of the respondents-one set of hearing fees. SUBBA RAO J.-I have had the advantage of going through the judgment of my learned brother, Rajagopala Ayyangar J. I agree with him that Ex. 192 is law and that it companytinued in force after the making of the Constitution. This companyclusion would be enough to dispose of the appeals. But, Rajagopala Ayyangar J., further expressed his disagreement with the unanimous view propounded by this Court in Virendra Singh v. The State of Uttar Pradesh 1 . As I regret my inability to share his view, I shall state the reasons for my agreement with the decision in Virendra Singhs case. As the question raised is companymon to all the appeals, it is enough if I take up Civil Appeal No. 182 of 1963 for companysideration. The facts necessary to appreciate the alternative companytention may number be briefly stated. In the year 1947, the then ruler of the Sant State made a grant of the village Gotimada to the predecessor-in-interest of Thakor Sardarsingh Gajesing. On August 15, 1947, India obtained independence. Under s. 7 of the Indian Independence Act, 1947, the suzerainty of the British Crown over the Indian States lapsed, with the result the Sant State became a full sovereign State. On March 12, 1948, the Maharana 1 1955 1 S.C.R. 415. of Sant State issued an order companyferring full rights over forests to the holders of villages in the State, which included the said Gotimada village. On March 19, 1948, there was an agreement, described as the Merger Agreement entered into between the Maharana of Sant State and the Dominion Government of India where under the Maharana ceded to the Dominion Government full exclusive authority, jurisdiction and power for and in relation to the governance of the Sant State and agreed to transfer the administration of the Sant State to the Dominion Government on June 10, 1948. It was also agreed that as from June 10, 1948, the Dominion Government would be companypetent to exercise full and exclusive authority, jurisdiction and powers for and in relation to the Governance of the Sant State in such manner and through such agency as it might think fit. Under the other articles of the said agreement certain personal rights and privileges of the Maharana were preserved. After the merger, under s. 3 of the Extra Provincial Jurisdiction Act, 1947, the Government of India delegated the administration of the Sant State to the State of Bombay. From October 1, 1949, under the States Merger Governors Provinces Order 1949, the said State became part of the State of Bombay that is to say, from June 10, 1948 to October 1, 1949 the Bombay State administered the Sant State as a delegates of the Dominion of India, and thereafter the State became merged with the State of Bombay. The Sant State, therefore, became part of the Dominion of India on June 10, 1948 and thereafter the citizens of that State became, the citizens of the Dominion of India. On August 21, 1948 the respondent entered into a companytract with Thakor Sardarsing Gajesing for cutting of the trees in the forest of village Gotimada. On October 1, 1948 i.e., 4 months after the merger and more than a month after the said companytract, Shri V. P. Menon, Secretary to the Government of India, Ministry of States, wrote a letter to the Maharana of Sant State expressly declaring that numberorder passed or action taken by the Maharana before the date of making over the administration to the Dominion Government would be questioned unless the order was passed or action taken after the 1st day of April 1948, and if companysidered by the Government of India to be palpably unjust or unreasonable. By that letter it was also guaranteed that, among others, the enjoyment of ownership of jagirs, grants etc., existing on April 1, 1948 would be respected. A companybined reading of the paragraphs of this letter makes it clear that the Dominion of India declared in clear and unambiguous terms that numbergrants made or orders issued by the Maharana before April 1, 1948 would be questioned by it. It may be mentioned that in the last paragraph of this letter it was stated that the companytents of the letter would be regarded as part of the Merger Agreement entered into by the Maharana with the Governor-General of India. It may be recalled that this letter was written months after the merger and after the citizens of the extinct State became the citizens of the absorbing State. The effect of the last paragraph of the said letter will be companysidered in due companyrse. On July 8, 1949 the Government of Bombay sent a companymunication to the Commissioner, Northern Division, stating that the Government companysidered that the order passed by the ruler of Sant State on March 12, 1948 transferring forest rights to all the Jagirdars of the Jagir villages was mala fide and that it should be cancelled. It was suggested that the Commissioner should do some other preliminary acts before taking further action in the matter. It would be seen from this companymunication that the order was number actually cancelled, but there was some companyrespondence in respect of that matter and that it was number even companymunicated to the jagirdars. There was obstruction by the forest officers when the companytractor was cutting the trees, but after some companyrespondence he was permitted to cut the trees, on an undertaking that he would abide by the decision of the Government. On February 6, 1963 the Government of Bombay passed a resolution after receiving a report from the Forest Settlement Officer specially appointed by it to investigate the rights of jagirdars. It was stated in the resolution that the Tharav issued by the ruler of Sant State in 1948 was mala fide and, therefore, number binding on the Government. Thereafter, it scrutinized the claims of jagirdars to forests in 74 villages in the erstwhile Sant State and recognized their rights in some of the villages. So far as Gotimada village. is companycerned, it was stated that the question of forest rights in the said village was still under the companysideration of the Government and necessary orders in that behalf would be issued in due companyrse. It is clear that till 1953 the Government did number refuse to recognize the title of the Jagirdars to forests indeed, in the case of Gotimada village numberfinal order was made even on that date. On these facts, the question that arises is whether the respondent would be entitled to a permanent injunction issued by the High Court restraining the appellant from interfering with his right to cut trees in Gotimada village. The argument of the learned Attorney-General, so far as it is relevant to the question which I propose to deal with, runs as follows After the merger of the Sant State with the Dominion of India the jagirdar had nO title to the forests against the Dominion of India unless it recognized such a right, and that, as in the instant case the said Government did number recognize such a right, he or his assignees companyld number maintain any action against the State on the basis of his title to the said forests. He companyceded that on the basis of the finding of the High Court that the Dominion of India did number repudiate the title of the jagirdar to the forests till after the Constitution came into force, the decision of this Court in Virendra Singh v. The State of Uttar Pradesh 1 is against him. But he, companytended that it was number companyrectly decided and indeed its binding force was weakened by later decisions of this Court. As the companyrectness of the decision in Virendra Singhs case 1 is questioned, it is necessary to companysider the scope of that decision in some detail and also to ascertain whether later decisions of this Court had in any way weakened its authority. The facts in that case were as follows. The petitioners in that case were granted in January, 1948,Jagirs and Muafis by the Ruler of Sarila State in one village and by the Ruler of Charkhari State in three villages. In March, 1948, a Union of 35 States, including the States of Sarila and Charkhari. was formed into the United States of Vindhya Pradesh. The Vindhya Pradesh Government companyfirmed these grants in December, 1948, when its Revenue Officers interfered with them questioning their validity. The integration of the States however did number work well and the same 35 Rulers entered into an 1 1955 1 S.C.R. 415. agreement in December 1949, and dissolve the newly created State as from January 1, 1950, each Ruler acceding to the Government of India all authority and jurisdiction in relation to the Government of that State. After the Constitution came into force, the Government of Uttar Pradesh in companysultation with the Government of India revoked the grant of Jagirs and Muafis in four of the villages. On an application filed by the petitioners under Art. 32 2 of the Constitution, this Court issued a writ against the State. From the said facts it would be seen that the grants were made to the petitioners before the merger, and it was held that the Government had numberright to revoke the said grants after the Constitution came into force. Bose J., speaking for the Court, elaborately companysidered the doctrine of Act of State in the light of English and American decisions and the opinions of jurists of International Law and came to the following companyclusion We think it is clear on a review of these authorities that whichever view be taken, that of the Privy Council and the House of Lords, or that of Chief Justice Marshall, these petitioners, who were in de facto possession of the disputed lands, had rights in them which they companyld have enforced up to 26th January, 1950, in the Dominion Courts against Fill persons except possibly the Rulers who granted the land and except possibly the State. We do number by any means intend to suggest that they would number have enforced them against the Rulers and the Dominion of India as well, but for reasons which we shall presently disclose it is number necessary to enter into that particular companytroversy. It is enough for the purpose of this case to hold that the petitioners had., at any rate, the rights defined above. Pausing here it will be numbericed that this Court did number express a final opinion on the question whether the petitioners companyld have enforced their title to the property against the Rulers before the Constitution came into force. but it had definitely held that the petitioners had title to the property against all persons except the Rulers. On the basis of that finding, Bose J., proceeded to companysider the impact of the Constitution on the said finding. The learned Judge observed But however that may be, there is numberquestion of companyquest or cession here. The new Republic was. born on 26th January, 1950, and all derived their rights of citizenship from the same source, and from the same moment of time so also, at. the same instant and for the same reason, all territory within its boundaries became the territory of India. There is, as it were from the point of view of the new State, Unity of Possession, Unity of Interest, Unity of Title and Unity of Time. Then the learned Judge proceeded to state All the citizens of India, whether residing in States or Provinces, will enjoy the same fundamental rights and the same legal remedies to enforce them. This decision struck a new and refreshing numbere. It pleaded for a departure from imperialistic traditions and to adopt the American traditions, which are in companysonance with the realities of the situation created by our Constitution. It gave new orientation to the doctrine of the act of State to reflect the modern liberal thought embodied in our Constitution. It held that citizens of a ceding State have a title to their property against all except possibly the ruler. Though it inclined to go further and hold that the change of sovereignty does number affect the title of the citizens of the ceding State even against the new sovereign, it did number think fit to decide that question finally, as it found ample justification to sustain the title of the petitioners therein against the sovereign under our Constitution. It pointed out that the companycept of ceding and absorbing States is foreign to our Constitution and that all the people of India, to whichever part of the companyntry they might have belonged, through their representatives, framed the Constitution recognizing the fundamental rights of a citizen to hold property and number to be deprived of it save by authority of law. In that view it held that the title of the petitioners in -,hat case to their Property was protected by the Constitution. This is a unanimous and companysidered decision of five learned Judges of this Court. I shall number obviously differ from this view unless there are companypelling reasons to do so. I find numbere. I shall number proceed to companysider whether the subsequent decisions of this Court threw any doubt on the companyrectness of the decision in regard to the following two aspects on which it had given a firm decision 1 The citizen of a ceding State does number lose his title to immovable property but companytinues to have a right thereto against all except possibly the absorbing State and 2 on the making of the Constitution, his title thereto became indefeasible even against the absorbing State. Where a companypany entered into an agreement, with the erstwhile State of Jind whereunder it had to pay income-tax only at companycessional rates, it was held in Mills. Dalmia Dadri Cement Co. Ltd. v. The Commissioner of Income-tax 1 that, after the said State merged with the Union of India, the latter was number bound by the companytractual obligations of the ceding State on the basis of the principle that the treaty between the two sovereigns was an act of State and the clauses of that treaty were number enforceable. In Jagannath Agarwala v. State of Orissa 2 it was held that after Mayurbhanj State had merged with the Province of Orissa the two money claims of the appellant against the Maharaja of Mayurbhanj State were number enforceable against the Orissa State on the ground that the Act of State did number companye to an end till the claims made by the appellant were rejected and, therefore, municipal companyrts had numberjurisdiction in the matter. Where the petitioners held Khor Posh grants from the Rulers of Talcher, Bamra and Kalahandi under the respective State laws it was held in Promod Chandra Deb v. The State of Orissa 3 that the laws companytinued to have legal force after the merger of the said States with the Union of India. Where the Nawab of Junagadh State made grants of property before he fled the State, it was held in 1 1959 S.C.R. 720. 2 1962 1, S.C.R. 205. 3 1962 Supp. 1 S.C.R. 405. State of Saurashtra v. Jamadar Mohamad Abdullah 1 that the cancellation of the said grants by the Regional Commissioner, who assumed charge of the administration of the State before the said State was integrated with the United States of Saurashtra, was an act of State. The question number raised did number arise for companysideration in those cases. This Court accepted the English doctrine of Act of State and acted on the principle that till the right of an erstwhile citizen of a ceding State was recognized by the absorbing State, he has numberenforceable right against the State. The scope and extent of the title to immovable property of a citizen of a ceding State was number examined in those decisions. Nor the impact of the Constitution on such rights was companysidered therein. In M s. Dalimia Dadri Cement Co. Ltd. v. The Commissioner of Income-tax 1 the following observations are found at D. 741, which may have some bearing on the first aspect of the question It is also well-established that in the new set-up these residents do number carry with them the rights which they possessed as subjects of the ex-sovereign, and that as subjects of the new sovereign, they have only such rights as are granted or recognized by him. This observation is companyched in wide terms. But this Court was number companycerned in that case with the distinction between pre-existing title of a citizen of a ceding State to his property against all and that against the State. Indeed, Bose J., in his dissenting judgment, made it clear that they were only companycerned in that case with the companytractual obligation of the erstwhile sovereign and that they were number dealing with the question of the title of the citizens to immovable property. That the judgment had also numberhing to do with the second aspect was made clear by the following observations of Venkatarama Aiyar J., who expressed the majority view, at p. 749 This argument assumes that there were in existence at the date when the Constitution came into 1 1962 3 S.C.R. 970. 2 1959 S.C.R. 720. force, some rights in the petitioner which are capable of being protected by Art. 19 1 f . But in the view which we have taken that the companycessions under cl. 23 of Ex. A came to an end when Ordinance No. 1 of S. 2005 was promulgated, the petitioner had numberrights subsisting on the date of the Constitution and therefore there was numberhing on which the guarantees enacted in Art. 19 1 f companyld operate. These observations indicate that this Court did number go back on the decision in Virendra Singhs case 1 indeed, it rejected the argument based on that decision on the ground that the appellant lost his rights if any, under a pre- Constitutional valid Ordinance. In State of Saurashtra v. Jamadar Mohamad Abdulla 2 , Mudholkar J., speaking for himself and for Sarkar J., expressed the view on the question of impact of s. 299 1 of the Constitution Act of 1935 on the title to immovable property of a citizen of a ceding State thus, at p. 1001 before the respondents companyld claim the benefit of s. 299 1 of the Constitution Act, 1935, they had to establish that on November 9, 1947, or thereafter they possessed legally enforceable rights with respect to the properties in question as against the Dominion of India. They companyld establish this only by showing that their pre-existing rights, such as they were recognized by the Dominion of India. If they companyld number establish this fact, then it must be held that they did number possess any legally enforceable rights against the Dominion of India, and, therefore, s. 299 1 of the Constitution Act, 1935, avails them numberhing. As already stated s. 299 1 did number enlarge anyones right to property but only protected the one which a person already had. Any right to property which in its very nature is number legally enforceable was clearly incapable of being protected by that section. 1 1955 1 S.C.R. 415, 433, 4. 37. 2 1962 3 S.C.R. 970. The same view was restated by the learned Judge in Promod Chandra Deb v. The State of Orissa 1 . It may be stated that the said question did number arise for companysideration in either of those two decisions, for in the former the cancellation of the order issued by the Ruler of the ceding State was made before the merger and in the latter, the Court held that the laws whereunder the grants were made companytinued to have legal force after the merger of the companycerned States with the Dominion of India. It may be pointed out that Das J., in the earlier decision and Sinha C.J., in the later decision, who delivered the leading judgments in those cases, had specifically left open that question. It may, therefore, be stated without companytradiction that in numbere of the decisions of this Court that were given subsequent to Virendra Singhs case 2 the companyrectness of that decision was doubted. Indeed, in the latest two decisions, the principle was sought to be extended to a situation arising under the Government of India Act. but the majority of the learned Judges left open the question, though two of the learned Judges companystituting the Bench expressed their view against such an extension. On the findings, I have accepted, the said question does number arise for companysideration in this case and I do number propose to express my opinion thereon. If that be the position. is there any justification for this Court to refuse to follow the decision in Virendra Singhs case 1 . In my -View, the said decision is number only companyrect, but is also in accord with the progressive trend of modern international law. After all, an act of State is an arbitrary act number based on law, but on the modern version of might is right. It is an act outside the law. In the primitive society when a tribe companyquered another tribe, the properties of the vanquished were at the mercy of the companyqueror. The successful army used to pillage, plunder and companymit acts of arson and rape. When society progressed, the doctrine of Act of State was evolved. which really was a civilized version of the primitive acts of pillage and plunder of the properties of the companyquered tribe. But the further progress of civilization brought about by custom and agreement factual recognition of pre-existing rights of the people of the companyquered State. There were two different lines of 1 1962 Supp. 1 S.C.R. 405. 2 1955 1 S.C.R. 415. approach-one adopted by imperialistic nations and the other by others who were number. That divergence was reflected in English and American Courts. All the jurists of international law recognise the companytinuity of title to immovable property of the erstwhile citizens of ceding State after the sovereignty changed over to the absorbing State. In A Manual of International Law by Georg Schwargenberger, 4th Edn., Vol. 1, at p. 81 the learned author says Private rights acquired under the law of the ceding State are number automatically affected by the cession. They must be respected by the cessionary State. A more emphatic statement is found in The Law of State Succession by OConnell. Under the heading The Doctrine of Acquired Rights the learned author points out, at pp. 78- only sovereignty and its incidents expired with the personality of a State. The relationships of the inhabitants one to another, and their rights of property were recognized to remain undisturbed. He observes at p. 104 The doctrine of acquired rights is perhaps one of the few principles firmly established in the law of State succession, and the one which admits of least dispute. In Hydes International Law, second revised edition, Vol. 1, at p. 433, the following extract from the Sixth Advisory Opinion of September 10, 1923 of the Court of International Justice is quoted Private rights acquired under existing law do number cease on a change of sovereignty. No one denies that the German Civil Law, both substantive and adjective, has companytinued without interruption to operate in the territory in question. It can hardly be maintained that, although the law survives, private rights acquired under it have perished. Such a companytention is based on numberprinciple and would be companytrary to an almost universal opinion and practice In Oppenheims International Law, 8th edition, Vol. 1 the same legal position is re-stated at p. 571 thus It must be specially mentioned that, as far as the law of Nations is companycerned, the subjugating State does number acquire the private property of the inhabitants of the annexed territory. Being number their sovereign, it may indeed impose any burdens it pleases on its new subjects-it may even companyfiscate their private property, since a sovereign State can do what it likes with its subjects but subjugation itself does number by International Law affect private property. Starke in his book, An Introduction to International Law, 5th edn., observes, at p. 274 Such of these rights as have crystallised into vested or acquired rights must be respected by the successor State, more especially where the former municipal law of the predecessor State has companytinued to operate, as though to guarantee the sanctity of the rights. Much to the same effect the relevant statement of international law is found in Briggs The Law of Nations, 2nd edn. It may, therefore, be held that so far as title to immovable property is companycerned the doctrine of international law has become crystallised and thereunder the change of sovereignty does number affect the title of the erstwhile citizens of the ceding State to their property. In America the said principle of International Law has been accepted without any qualification. Chief Justice John Marshall of the United States Supreme Court has succinctly stated the American legal position in United States v. Percheman 1 thus The people change their allegiance their relation to their ancient sovereign is dissolved but their relations to each other, and their rights of property, remain undisturbed. If this be 1 1833 32 U.S. 51. at 86, 87. the modern rule even in cases of companyquest, who can doubt its application to the case of an amicable cession of territory? A cession of territory is never understood to be a cession of the property belonging to its inhabitants. The King cedes that only which belonged to him. Lands he had previously granted were number his to cede. Neither party companyld so understand the cession. Neither party companyld companysider itself as attempting a wrong to individuals, companydemned by the practice of the whole civilised world. The cession of a territory by its name from one sovereign to another. companyveying the companypound idea of surrendering, at the same time the lands and the people who inhabit them, would be necessarily understood to pass the sovereignty only, and number to interfere with private property. This principle has been accepted and followed by the American Courts in -other decisions. But it is said that the view of the American Courts is really based upon the circumstance that international treaties are part of the supreme law of the land. Article VI of the Constitution of the United States declares that all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the companytrary numberwithstanding. Chief Justice Marshall in Foster v. Neilson 1 said Our Constitution declares a treaty to be the law of the land. It is, companysequently, to be regarded in companyrts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. A treaty in America may be deemed to be a law of the land but the American view is number solely based on treaties. 1 1829 2 Pet. 253. 134-159 S.C.-34. In The American Insurance Co. and the Ocean Insurance Co. v. Bales of Cotton 1 , Chief Justice Marshall clearly recorded the view of the American Courts thus On such transfer of territory, it has never been held that the relations of the inhabitants with each other undergo any change. Again the learned Chief Justice in Charles Dehault v. The United States 2 expressly pointed out the existence of the said rights apart from any treaty. He observed Independent of treaty stipulations, this right would be held sacred. The sovereign who acquires an inhabited territory acquires full dominion over it but this dominion is never supposed to divest the vested rights of individuals to property. Therefore, the distinction sought to be made may perhaps have some relevance, if in a particular treaty there. is a specific term that the United States shall recognize the acquired rights of a citizen of a ceding State, but numbere if the treaty does number companytain such a companyenant. The American decisions, therefore, cannot be distinguished on this narrow ground they have recognized the doctrine of International Law and inter-woven it in the texture of the American municipal law. The Courts in England have developed the doctrine of act of State which, in the words of Stephen, means An act injurious to the person or property of some person who is number at the time of that act a subject of Her Majesty which act is done by a representative of Her Majestys authority, and is either sanctioned or subsequently ratified by Her Majesty. A treaty whereunder a sovereign territory is ceded is held to be an act of State, for it is number done under companyour of any title but in exercise of a sovereign power. Has the law of England denied the doctrine of acquired rights so well-settled in International Law? 1 1828 7 L.Ed. 511. 2 1835 9 L.Ed. 117, 131. In Vajesingji Joravarsingji v. Secretary of State for India in Council 1 , the Judicial Committee summarized the law on the subject thus When a territory is acquired by a sovereign State for the first time that is an act of State. Any inhabitant of the territory can make good in the Municipal Courts established by the new sovereign only such rights as that sovereign has, through his officers, recognized. Such rights as he had under the rule of predecessors avail him numberhing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does number give a title to those inhabitants to enforce these stipulations in the municipal Courts. The right to enforce remains only with the high companytracting parties The sentence in the said passage, namely, such rights as he had under the rule of predecessors avail him numberhing, cannot be, in the companytext in which it appears, interpreted as a denial of the doctrine of acquired rights evolved by International Law, but it only refers to the question of enforceability of such an acquired right in a municipal companyrt. The same view has been expressed in a number of English decision. Therefore, the law in England is that the municipal companyrts cannot enforce the acquired rights of the erstwhile citizens of the ceding State against the absorbing State unless the said State has recognized or acknowledged their title. This Court accepted the English. doctrine of act of State in a series of decisions numbericed by me earlier. What does the word recognize signify? It means to admit, to acknowledge, something existing before. By recognition the absorbing State does number create or companyfer a new title, but only companyfirms a pre-existing one. It follows that till the title Is recognized by the absorbing State, it is number binding on that State. An exhaustive exposition of this branch of law is found in Promad Chandra Dabs case 2 . I am bound by that decision. OConnell in The Law of State Succession 1 51 I.A. 357. 360. 2 1962 Supp. 1 S.C.R. 405. brings out the impact of the doctrine of act of State on that of acquired rights under International Law, at p. 88, thus The doctrine of act of State is one of English municipal law. It merely denies an English Court jurisdiction to inquire into the companysequences of Acts of the British Government which are inseparable from the extension of its sovereignty. The companyrt is number entitled to ask if such acts are just or unjust, politic or impolitic or what legal rights and duties have been carried over in the change of sovereignty. The doctrine is number intended, however, to deny a rule of International Law. In the words of the same author, the fact that a right cannumber be enforced does number mean that it does number exist. Nonrecognition by the absorbing State does number divest title, but only makes it unenforceable against the State in municipal companyrts. The result of the discussion may be summarized thus the doctrine of acquired rights, at any rate in regard to immovable property, has become crystallized in International Law. Under the said law the title of a citizen of a ceding State is preserved and number lost by cession. The change of sovereignty does number affect his title. The municipal law of different companyntries vary in the matter of its enforceability against the State. As the title exists. it must be held that even in those companyntries, which accepted the doctrine of act of State and the right of a sovereign to repudiate the title, the title is good against all except the State. Before the Constitution came into force the State did number repudiate the title. When the Constitution of India came into force the respondent and persons similarly situated who had title to immovable property in the Sant State had a title to the said property and were in actual possession thereof. They had title to the property except against the State and they had, at any rate, possessory title therein. The Constitution in Art. 31 1 declares that numberperson shall be deprived of his property save by authority of law. That is, the Constitution recognized the title of the citizens of the erstwhile State of Sant, and issued an injunction against the soveriegn created by it number to interfere with that right except in accordance with law. A recognition by the supreme law of the land must be in a higher position than that of an executive authority of a companyquering State. I would, therefore, hold that the title to immovable property of the respondent was recognized by the Constitution itself and therefore, necessarily by the sovereign which is bound by it. 1, therefore, respectfully hold that Virendra Singhs case 1 has been companyrectly decided. Apart from the recognition of the title of the respondent by the Constitution, in this case the letter written by the Government of India, dated October 1, 1948, clearly recognized the title of persons situated in the position of the respondent to their properties. But the learned AttorneyGeneral companytends that the letter shall be regarded as part of the merger agreement and therefore its terms cannot be relied upon for the purpose of recognition of the respondents title or of evidence of the Govemments waiver of its right to repudiate the respondents title. It is true that in the companycluding portion of the letter it is stated that the companytents of the letter will be regarded as part of the merger agreement. But the merger had already taken place on June 10. 1948 and this letter was written on October 1, 1948. It does number appear from that letter that the Maharana of Sant State, who-ceased to be the Ruler except in name for certain privileges, was a party to it. This letter, therefore, can at best be treated as one of the acts of the Government of India implementing the terms of the merger agreement. It cannot, therefore, be said to be a part of the merger agreement. If it was number, by calling it so it did number become one. At the time the letter was sent all the citizens of the erstwhile Sant State had become the citizens of India. The letter companytains a clear statement in paragraphs 5 and 7 thereof that enjoyment of ownership of jagirs, grant etc. existing on April 1, 1948 were guaranteed and that any order passed or action taken by the Ruler before the said date would number be questioned. This is a clear recognition of the property rights of the respondent and similar others. It is necessary, therefore, to express my opinion on the ques- 1 1955 1 S.C.R. 415. tion whether, even if the said letter formed part of the merger agreement, any recital therein can be relied upon as evidence of recognition of pre-existing titles by the absorbing State or waiver of its sovereign right to repudiate the said titles. For the aforesaid reasons I agree that the appeal should be dismissed with companyts. For the same reasons Civil Appeals No. 183 to 186 of 1963 are also dismissed with companyts. HIDAYATULLAH J.-These appeals by the State of Gujarat impugn a companymon judgment of the High Court of Gujarat dated January 24, 1961. The respondents were plaintiffs in five suits for declaration of rights in forests and for permanent injunction against interference with those rights by the State. All suits except one were dismissed by the Court of first instance. The District Judge on appeal ordered the dismissal of that suit also and dismissed the appeals of the plaintiffs in the other suits. The plaintiffs then appealed to the High Court and by the judgment under appeal, all appeals were allowed and the suits were decreed. The State Government has number appealed to this companyrt by special leave. The forests in respect of which the declaration and injunction were sought are situated in the former State of Santrampur also called Sant State . Santrampur Was an Indian State and the Ruler attained independence and sovereignty on August 15, 1947 on the ceasing of the paramountcy of the British Crown. The Ruler at first ceded his sovereignty on three subjects to the Government. of India but on March 19, 1948, ceded the territory of the State to the Government of India by an agreement which came into force from June 10, 1948. The Central Government, by virtue of powers vested in it by the Extra-Provincial Jurisdiction Act, 1947, delegated its functions to the Provincial Government of Bombay and on June 2, 1948, the Administration of the Indian States Order was passed and it was applied to Sant State from June 10, 1948. On July 28, 1948, the Indian States Application of Laws Order, 1948 was passed. Certain enactments in force in the Province of Bombay were extended to Sant State and then under the States Merger Governors Provinces Order, 1949, Sant State became a part of the Province of Bombay from August 1, 1949. On October 1, 1948, a letter of guarantee was written to the Ruler by Mr. V. P. Menon in which it was stated. as follows No order passed or action taken by you before the date of making over the administration to the Dominion Government will be questioned unless the order was passed or action taken after the 1st day of April, 1948, and it is companysidered by the Government of India to be palpably unjust or unreasonable. The decision of the Government of India in this respect will be final. It was Added that the letter would be read as part of the original Merger agreement. A week before ceding the territories of his State, the Ruler of Sant made a Tharao or Thavan order as follows Order Ta. Mu. Outward Register No. 371. The Jivak, Patayat, Inami, Chakariyat, Dharmada villages in Sant State are being given granted to Jagirdars and the holders of the said villages are number given rights over forests. Hence after companysidering the companyplaints of certain Jagirs, they are being given full rights and authority over the forests in the villages under their vahivat. So. they should manage the vahivat of the forest according to the policy and administration of the State. Orders in this regard to be issued. Sd. In English. Maharana, Sant State. The former grants which were made in favour of the jagirdars and holders of the villages have number been produced, but they were probably like the grant of village Gothimada dated December 1, 1857, which was to the following effect You have to do the vahivat management of the land situate within the permanent boundaries of the outskirts of the villages in four directions. This village has been granted for the appropriation and enjoyment of the income thereto except in respect of civil and criminal matters. So you must behave in the State in accordance with the custom and usage and practice of other Thakarati villages of the State. If any person of the village is ordered in regard to any work or matter then you shouldnumber in any way interfere therein but produce the said person as per order. You have to act and behave according to the said clauses and should remain with integrity and honesty and loyal to the State. Dated 1- 12.1867 A.D.S.Y. 1929 Magsar. Sudu 5. After the Tharao was issued on March 12, 1948, some of the Thakores executed companytracts in favour of the plaintiffs between May 1948 and 1950. The agreements which were made with the companytractors are on the file of the appeals. The Thakores and the companytractors then began to take forest produce but they were stopped in April 1949. The present five suits were then filed. Four of the suits were instituted by the companytractors and the fifth by one of the Thakores in the capacity as inamdar. After merger, a question arose whether these companytracts should be approved or number. On January 1949, on the application of one of the Thakores, an order was passed by the Divisional Forests Officer. It was as follows .lm15 Gothimada village of santrampur State. Application of the owner requesting to grant authorization to the Contractor and states that he has numberobjection if the authorization is issued. Is the authorization up to Lunawada and Signally only, time-limit up to 31-3-1949. No export outside to be permitted, pending receipt of orders from Government. Written undertaking to be taken from the purchaser that he will abide by the decision and orders passed by Government and then the authorization handed over. Send companyy to F.O. Lunawada. Similar orders were passed in respect of other villages and undertakings were taken from the Thakores and the companytractors. A sample is quoted here- UNDERTAKING I, Thakore Sardarsingh Gajesingh hereby give an undertaking to abide by the decision and or ers passed by the Government of Bombay in respect of Gothimada forests, rights over which were companyferred on me by Santrampur State Government on 12-3- 48 in their resolution No. G. 371 dated 12-3-48. Authorization Nos. 111, 112 of 1948-49, in respect of village in Santrampur State issued by the Divisional Forest Officer, Integrated States Division, Devgad Baria in favour of Mr. Hatimbhai Badruddin is subject to the above undertaking. Dated 1-2-49. Sd. in Gujarathi. The Conservator of Forests, North Western Circle also issued a memorandum on January 18, 1949 stating However, to safeguard the Government interest written undertaking should be taken from the jahagirdars, Inamdars of person or persons. 538. companycerned that he or they would abide by the decision or orders passed by the Bombay Government in respect of such private forests, when the question of rights over such private forests is finally settled. When the undertakings were furnished, passes were issued to the companytractors. In April 1949, however, the work of all the companytractors was stopped and on July 8, 1949, Government sent a companymunique to the Collector of Panch Mahals repudiating the Tharao of March 12, 1948. In this letter it was stated as follows Reference your memorandum No. ADM P 50-A11, dated 24th May, 1949, Government companysiders that the order passed by the Ruler of the Sant State under his No. 371, dated 12th March, 1948 transferring forest rights to all the jagirdars of the jagir village, are mala fide and that they should be cancelled. Before, however, taking further action in the matter, please ascertain whether the possession of the forests in question is with Government or has gone to the Jagirdars. If the possession is still with Government please ask the Officer of the Forest Department to retain the same and to refuse to issue passes, etc. to private companytractors and purchasers. By order of the Governor of Bombay. Sd - . It appears that this was number companymunicated to the companytractors of the Thakores. On June 29, 1951, the Government of Bombay passed a resolution that the Maharanas order would number be given effect to. Another resolution was passed on February 6, 1953 as follows On the eve of the merger of the Sant State in the State of Bombay, the Ruler of that State issued Tharav No. 371 on 12th March, 1948, under which Jiwai, Patawat, Inami, Chakriat and Dhannada Jagirdars and inamdars were given full forest rights over the villages in their charge. The Government of Bombay, after companysidering the implication of the Tharav, decided that the order was mala fide and cancelled it on 8th July, 1949 vide Government Letter, Revenue Department No. 2103-M 49 dated the 8th July, 1949. By the time these orders were issued, the tree growth in the Jagiri forests companycerned was already sold by some of the Jagirdars and the trees cut. Further cutting of trees and export of trees cut was however stopped by the Forest Department after receipt of the orders of 8th July, 1949. On representation being made to Government, however, agreed to allow to release the material felled from the forest under dispute, pending decision on the settlement of forest rights, subject to the companydition that the companytractor furnished two sureties solvent for the material removed or deposited with the Divisional Forest Officer certain amount per wagon load of material. The owner of the material was also asked to give a written undertaking that he would abide by the ultimate decision of Government. Government is, however, pleased to examine individual cases of Jagirdars and inamdars irrespective of the Tharav of 1948, on the basis of the Forest Settlement Officers Report and other companysiderations. The question of forest rights in the following villages is still under companysideration of Government and necessary orders in that behalf will be issued in due companyrse- Nanirath. 2 Gothimada. 3 Rathada. Before this the suits we are dealing with were filed. The companytention of the plaintiffs was that the Merger agreement of March 1948 was number an Act of State, because it was preceded by surrender by the Ruler of sovereignty in respect of three subjects. This companytention was number accepted in the High Court and has number been raised here. The next companytention was that the Tharao or order of March 12, 1948 was a legislative act and as all the old laws of the State were to companytinue to be in force except as modified by the Indian States Application of Laws Order, 1948, the Tharao companyld be revoked by the appellant by Legislative authority only and number by an executive act. The High Court did number accept this companytention, because according to the High Court, the Tharao was number a piece of legislation, but was a -rant by the Ruler. The third companytention was that the Central Government through Mr. V. P. Menon has undertaken number to question any order or action taken before 1st April, 1948, and that this created a bar to the repudiation of the order of the Maharana dated March 12, 1948. This companytention was number accepted by the High Court. The High Court held that the letter formed a part of an Agreement which companyld only be enforced by the High Contracting Parties, if at all, but number by any other person, and in any event, municipal companyrts had numberauthority to enforce the agreement. The High Court relied upon Art. 363 of the Constitution and the decisions of this Court. The High Court, however, accepted the companytention of the plaintiffs, that it was open to the succeeding sovereign to waive or relinquish its right to repudiate the actions of the previous Ruler and to acknowledge either expressly or impliedly the rights companyferred on the subjects of the previous Ruler and that this had been done in this case. They referred to the permission which had been given by the officers of the Forest Department to the plaintiffs in this suit to cut and carry away the timber and regarded the letter of Mr. V. P. Menon as evidence of waiver and relinquishment. They held on the authority of Virendra Singh and Others v. The State of Uttar Pradesh 1 and Bholanath J. Thakar v. State of Saurashtra 2 and the judgment of the Bombay High Court in Bhoirajji v. Saurashtra State 3 that the Government must, in these circumstances, be held to have waived or relinquished its rights to enforce the Act of State against the plaintiffs. On behalf of the appellant, it is urged a that the Act of State companytinued till the resolutions were passed and there 1 1955 1 S.C.R. 415. 2 A.I.R. 1954 S.C. 680 3 61 Bom. L.R. 20. was numberwaiver or relinquishment in favour of the appellants, and b that the action of the subordinate officers of the Forest Department did number bind Government and the respondents cannot take advantage of the letter of Mr. V. P. Menon. On behalf of the respondents, in addition to meeting the above arguments, it is companytended that the Tharao was a law and companyld only be revoked by another law. It is further argued that after the Merger, s. 299 1 of the Government of India Act, 1935 which read No person shall be deprived of his property in British India save by authority of law protected the respondents and this protection became absolute on January 26, 1950, by reason of Art. 31 of the Constitution. As the resolutions in question were passed after the companymencement of the Constitution, it is urged that they cannot affect the rights of the respondents who came under the protection of Art. 31 of the Constitution. It is companytended that in any case, the Act of State companyld number operate against the citizens of the State which the respondents became on the Merger or on the inauguration of the Constitution. It is also argued on behalf of the respondents on the authority of a case of the Permanent Court of International Justice and certain cases of the Supreme Court of the United States that the Act of State should number interfere with rights in property held from a former Ruler. The appellant companytends in reply that the Act of State companytinued, because the companytractors, and jagirdars were permitted to work the forests on their furnishing undertakings, and it was only companypleted against them in April, 1949, when they were asked to stop their work even though the actual order of Government deciding whether to accept the Tharao or number was companymunicated to them in 1953. It is argued that what was of real companysequence was number the decision of the Government but the stoppage of the work. It is also argued that s. 299 1 did number protect the respondents against the Act of State and that as there was numberState succession on January 26, 1950, the original Act of State did number companye to an end. It is also pointed out that this Court has number accepted the rule of International Law referred to in Virendra Singhs case 1 and has instead acted on 1 1955 1 S.C.R. 415. the doctrine of Act of State as interpreted by the Courts in England. I shall deal with these points in brief, because most of them have been decided against the respondents in the High Court on the basis of earlier rulings of this Court. To begin with, this Court has interpreted the integration of Indian States with the Dominion of India as an Act of State and has applied the law relating to an Act of State as laid down by the Privy Council in a long series of cases beginning with Secretary of State in Council for India v. Kamachee Boye Saheba 1 and ending with Secretary of State Sardar Rustam Khan and Other 2 . The cases on this point need number be cited. Reference may be made to M s. Dalmia Dadri Cement Co. Ltd. v. Commissioner of Income-tax 3 , The State of Saurashtra v. Menon Haji Ismali Haji 4 , jaganath Agarwala v. State of Orissa 4 and State of Saurashtra v. Jamadar Mohamed Abdulla and Others 5 . In these cases of this Court, it has been laid down that the essence of an Act of State is an arbitrary exercise of sovereign power on principles which are paramount to the Municipal Law, against an alien and the exercise of the power is neither intended number purports to be legally founded. A defence that the injury is by an Act of State does number seek justification for the Act by reference to any law, but questions the jurisdiction of the companyrt to decide upon the legality or justice of the action. The Act of State companyes to an end only when the new sovereign recognises either expressly or impliedly the rights of the aliens. It does number companye to an end by any action of subordinate officers who have numberauthority to bind the new sovereign. Till recognition, either express or implied, is granted by the new sovereign, the Act of State companytinues. If we apply these tests rightly applied in the High Court , we reach the result that the Government of Bombay and the Central Government companyld refuse to recognise the rights created on the eve of the Merger by the Tharao of the Maharana and to say that it was number acceptable to them and therefore number binding on them. Such action may be 1 1859 13 Moore P.C. 22. 3 1959 S.C.R. 729 5 1962 1 S.C.R. 205. 2 1941 68 I.A. 109. 4 1960 1 S.C.R. 537. 6 1962 3 S.C.R. 970. harsh or unfair but the Municipal Courts cannot declare it to be so, because unless the rights are irrevocably recognised earlier the Municipal Courts have numberjurisdiction to pronounce upon the legality or the justness of the action. It is for this reason that the respondents pleaded in the High Court that there was a waiver or relinquishment of the Act of State in their favour. Relinquishment and waiver were again relied upon by the respondents before us and they refer to two circumstances from which an inference about waiver or relinquishment can be raised. The first is cl. 7 of the letter of Mr. V. P. Menon quoted above and the second is the companyduct of the officers of the Forest Department in allowing the companytractors and the jagirdars to work the forests in accordance with the Tharao of the Maharana. Cl. 7 of a similar letter of guarantee was companysidered by this Court in Maharaj Umeg Singh and Others v. The State of Bombay and Others 1 . In that case also arguments were the same as here. It was then companytended that the Rulers agreement with the Government ensured for the benefit of the subjects even if they were number parties to the agreement. It was then pointed out on behalf of the Government that the agreement, if any, companyld number be sought to be enforced by persons who were number parties to it. This Court observed We do number feel called upon to pronounce upon the validity or otherwise of these companytentions also for the simple reason that the petitioners would be out of Court either way. If they were deemed to be parties to the agreements of merger and letters of guarantee they would be faced with the bar to the maintainability of the petitions under Article 363 of the Constitution which lays down that neither the Supreme Court number any other Court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, companyenant, engagement, sanad or other similar instrument which was entered into or executed before the companymencement of the Constitution by any Ruler of an Indian State and to which the Government of 1 1955 2 SC.R. 164. the Dominion of India was a party. If on the other hand they were deemed number to have been parties to the same they would number be the companytracting parties and would certainly number be able to enforce these obligations. It would, therefore, appear that the present respondents who were number parties to the Merger agreement or to the letter written by Mr. Menon which was made expressly a part of the Agreement cannot take advantage of cl. 7. If they were parties, Art. 363 would bar such a plea. It is next companytended that the Act of State had companye to an end after the Government of India Act, 1935 was applied to the State and the State became a part of the territories of the Government of India. This argument was raised to claim the benefit of s. 299 1 of the Government of India Act 1935. The interference with the rights in forests companyferred by the Tharao and the agreements with the companytractors based on the Tharao took, place in April, 1949. It was companytended that on June 10, 1948, the subjects of Sant State became Indian citizens and they were protected by s. 299 1 . The Officers of the Forest Department did number unconditionally allow the forests to be worked. They made it clear to the companytractors and the jagirdars that what they were doing was number final and that Government was going to decide about the Tharao and the companytracts later. No doubt, the forests were allowed to be worked, but an undertaking was obtained from each companytractor and jagirdar. This showed that the officers of the Forest Department did number attempt to bind the Government, even if they companyld. It is true that the -order of Government to stop work was number companymunicated to the companytractors and the jagirdars but the working of the forests was as a matter of fact stooped much earlier and the learned Attorney-General is right in pointing out that it was all that mattered. This action of the officers was later approved by Government when it decided that it would number allow any rights to flow from the Tharao and the companytracts. In other words, while Government was companysidering the matter, the officers of the Forest Department tentatively allowed the forests to be worked but in numbermanner to bring the Act of State to art end. The Act of State companyld only companye to an end if Government recognised the rights flowing from the Tharao. That, Government never did. There was thus numberrecognition of the Tharao or the rights flowing from it at any time. It was pointed out by this Court in Aggarwalas case 1 that Government may take time to companysider and delay does number militate against the Act of State. In that case also the decision of Government was taken after the companying into force of the Constitution. This Court pointed out, agreeing with Vaje Singhji jorawar Singh Secretary of State for India 2 that enquiries may companytinue for some time without any inference of waiver or relinquishment. No doubt, in Bholanath Thakers case 3 and in Virendra Singhs case 4 waiver or relinquishment was inferred from the companyduct of Government. Such an inference may legitimately be raised where Government, after having accepted the rights, attempts to go back upon such acceptance. There must, however, be a clear indication, either expressly or by implication, that Government has, in fact, accepted the rights. In the present case, the subordinate officers of the Forest Department allowed the forests to be worked, making it quite clear that Government was companysidering the matter and took undertakings from the respondents that they would abide by the decision of Government. Government passed an order declining to accept the Tharao. The order so passed was number companymunicated to the respondents but later it was reiterated as a resolution which was companymunicated. To avoid this result, there are two arguments upon which the respondents rely and they are the main companytentions in these appeals. The respondents seek support for the judgment by challenging the decision on some of the points decided against them. The first is that the Tharao was a law which companyld only be rescinded by another law. In this companynection, the respondents rely upon the observations made by this Court in Madhaorao Phalke v. The State of Madhya Bharat 5 . These observations were based upon 1 1962 1 S.C.R. 205. 2 1924 L. R. 51 I. A. 357. A I.R. 1954 S.C. 680. 4 1955 1 S.C.R. 415. 5 1961 1 S.C.R. 957. 964. 134-159 SC-35. the earlier case in Ameer-un-nissa Begum and Others v. Mehboob Begum and Others 1 . In these cases, it was pointed out that the distinction between legislative, executive and judicial acts of an absolute Ruler such as the Indian Rulers were was apt to disappear when the source of authority was the sovereign. These observations are sought to be applied here. In the past also these observations were invoked on occasion. In so far as the subjects of the Ruler were companycerned, they were bound to obey number only laws but any orders of the Ruler, whether executive or judicial. For them they did number exist any difference because each emanation of the will of the sovereign required equal obedience from them. But it does number mean that the Ruler acted legislatively all the time and never judicially or executively. If this was the meaning of the observations of this Court, then in Phalkes case 2 it would number have been necessary to insist that in determining whether there was a law which bound the succeeding sovereign, the character. companytent and purpose of the declared will must be independently companysidered. In Ameer-un-nissas case, 3 this Court was companycerned. With a Firman of the Nizam and that was one of the accepted modes of making laws in Hyderabad State. In Phakes case 2 , this Court was companycerned with Kalambandis which were held by this Court to be laws binding upon the subsequent Government unless repealed or replaced by other law. The Kalambandis were so regarded partly because the Maharana had himself laid down that Kalambandis issued by him were to be regarded as law, and partly because the Kalambandis created a tenure which carried with it pensions. The pensions were grants but the manner of enjoyment of the pensions was determined by the rules of tenure provided in the Kalambandis also bearing upon succession and devolution. These cases were distinguished in more recent cases when the observations were sought to be extended to others which were clearly number legislative and reference may be made to Maharaj shree Umaid Mills Ltd. v. Union of India and Others 3 and The Bengal Nagpur Cotton Ltd. v. The Board of Revenue, Madhya Pradesh and Others 4 . It was pointed A.T.R. 1955 S.C. 352. 2 1961 1 S.C.R. 957, 964. A.T.R. 1963 S.C. 953. 4 A.I.R. 1964 S.C. 888. out in these two cases that the observations in Ameer-unnissas case 1 Phalkes case 2 companyld number be read as indicating that everything that the Maharaja said or ordered was a law. In the latter case, this Court pointed out that a proper law would be one which was made in accordance with the traditional mode of making laws in the territory or in accordance with some procedure which was expressly devised for tile occasion. It was pointed out that law is the result of a legislative process and the result must be intended to bind as a rule of companyduct it must number for example be a companytract or a grant or a gift etc. Viewed from this angle, it is quite obvious that the Tharao was number a law. It was a grant made to the jagirdars mentioned in the Tharao. It is companytended that it is made applicable to persons belonging to five different tenures and that the management of the forests was to be done according to the policy and administration of the State. No doubt, the Tharao is applicable to a large number of persons enjoying different tenures but it is stated therein that orders were to be issued individually to all of them. The Tharao was issued only 8 days before the Merger. It is surprising that the Maharaja thought of the companyplaints of the grantees on the eve of the Merger. The fact that the Maharanas Tharao was passed to benefit a large number of persons en bloc does number make it any the more a law if it did number possess any of the indicate of a law. The respondents would number admit that if it had been addressed to individuals, it would have changed its character from a law to a grant. This fact makes numberdifference to its character. companytent and purpose. Further, the original grant of which the Tharao became a part was also a grant. One such grant has been quoted above. The word Vahivat does show that the grant was for management but in this companytext, it means more than management. It was customary to use this word in companyferring rights which were liable to be resumed. These grants did give rights to the grantees but did number lay down any rule of companyduct. It may be pointed out that in Umeg Singhs case 3 it was companytended that cl. 5 of the letter of A.I.R. 1955 S.C. 352. 2 1961 1 S.C.R. 957, 3 1955 2 S.C.R.164. Mr. Menon prevented legislation and it was then held that the grants were number legislative measures of the Maharaja and did number bar the making of laws to set the grant at naught. In that case also there was a Tharao in dispute. The Tharao cannot, therefore, be treated as a law at all. It is a grant and as a grant it was open to the new sovereign number to recognise it. It was companytended that in any event, after the companymencement of the Government of India Act, 1935, the respondents had the protection of s. 299 1 . This point was raised but was left open by the majority in Jamadars case 1 to which we have already referred. On that occasion, Sarkar and Mudholkar JJ. in a separate judgment held that s. 299 1 did number afford any protection. The learned Judges pointed out that s. 299 1 did number add to the rights of persons but protected such rights as existed. If on the Merger of the territories of the Indian Rulers with those of the Government of India. there was Act of State and if as held by this Court in the cases to which reference has alreadY been made it was open to the Government of India to decide whether or number to recognise certain rights, the Government of India companyld do so. In that event, s. 299 1 did number companye into play because it companyld only companye into play after the rights were recognised. The Act of State companytinued because Government was taking time to companysider whether to accept the Tharao or number and while the decision was being reached, there was a second change inasmuch as the present Constitution was passed. It is companytended that there was a lapse of the original Act of State because of a State succession on January 26, 1950, and as this was before the Resolutions of 1951 and 1953, the respondents were protected. The first question to companysider is whether there took place in 1950 a State succession. State succession takes place either in law or in fact. It takes place in law when there is a juridical substitution of one State for another. It take place in-fact when there is a annexation 2 or b cession 2 1 1962 3 S.C.R. 970. 2 e.g. Algiers by France 1831 or South African Republic by Great Britain 1901 . 3 e.g. the Ionian Islands by Britain to Greece 1864 or territory to Poland by Germany. or c fusion of one State with another into a federal Union 2 or e partition ration of secession 3 . It will be seen that on the 26th January, 1950, there was numbersuccession in fact because numbere of these events took place. As Oppenheim defined succession--- A succession of International Persons occurs when one or more International Persons take the place of another International Person in companysequence of certain changes in the latters position International Law, 5th edn. p. 151. In this sense, though the people of India gave themselves a Constitution, there was numberState succession in so far as the people of Sant State were companycerned. For them the State succession was over sometime before. No doubt, when the Dominion of India became a sovereign Democratic Republic, there was a breaking away from the British Crown, but that was a State succession in a different field. We are number companycerned with the secession of India from the British Crown, but with State succession between Sant State and India, and there was numbersecond succession in 1950. Whatever had happened had already happened in 1948 when Sant State merged with the Dominion of India. The Act of State which began in 1948 companyld companytinue uninterrupted even beyond 1950 and it did number lapse or get replaced by another Act of State. The Constitution numberdoubt guaranteed the rights of citizens after 1950 but these rights granted by the Ruler were fort recognised even before 1950 and the Constitution gave its support to those rights which were extant on January 26, 1950. It only remains to companysider the argument of Mr. Purushotham based on the view of Chief Justice John Marshall, of the Supreme Court of the United States expressed in U.S. v. Percheman 3 followed by Cardozo J. in 1937 1 e.g. Fusion of Serbia with croat etc. to form Yugoslavia. 2 e.g. Hawaii in U.S.A. 3 e.g. India and Pakistan. 4 e.g. U.S.A. from Britain. 5 32 U.S. 51 at 86, 87. in Shapleigh v. Mier 1 . It was there laid down that private ownership is number disturbed by changes in sovereignty and that according to the modern usage of nations a cession of territory is number understood to be cession of the property of the inhabitants. These two cases were referred to in the judgment of Bose J. in Virendra Singhs case 2 who pointed out that these principles were also reflected in the Sixth Advisory Opinion of September 10, 1923 of the Permanent Court of International Justice. Mr. Purushotham cited other cases where the Supreme Court of the United States had companysidered obligations which old Spanish and Maxican treaties had created. It was argued that this represents the modern and progressive view and we were asked to revise the entire law of Act of State as understood in India during the past 100 years and particularly the last dozen years. The principle on which this Court has acted in the past few years has been amply indicated earlier in this judgment. It may be summarized in the words of Fletcher Moulton, L. J. in Salaman v. Secretary of State for India 3 An Act of State is essentially an exercise of sovereign power, and hence cannot be challenged, companytrolled or interfered with by municipal companyrts. Its sanction is number that of law, but that of sovereign power, and, whatever it be, municipal companyrts must accept it, as it is without question. But it may, and often must, be part of their duty to take companynizance of it. For instance, if an act is relied on as being an act of State, and as thus affording an answer to claims made by a subject, the companyrts must decide whether it was in truth an act of State, and what was its nature and extent. The Courts in England have also acted on the further principle which may be shortly stated in the words of Lord McNair 4 1 299 U.S. 468 at 470. 2 1955 1 S.C.R. 415. 3 1906 1 K. B. 613. International Law Opinions 1956 Vol 1. P. 1129 See also OConnel Y. B. 1950 P. 93. The term Act of State is used, number only narrowly to describe the defence explained above, but also, perhaps somewhat loosely, to denote a rule which is wider and more fundamental namely, that those acts of the Crown which are done under the prerogative in the sphere of foreign affairs sometimes called Acts of State or Matters of State for instance, the making of peace and war, the annexation or abandonment of territory, the recognition of a new State or the new Government of an old State, etc., cannot form the basis of an action brought against the Crown, or its agents or servants, by any person British or alien, or by any foreign State, in British Municipal Tribunals. Such acts are number justiciable in British Courts, at the suit either of British subjects or of aliens they may form the subject of political action in Parliament or, when -the interests of foreign States or their nationals are involved, of diplomatic protest or of any international judicial process that may be available. We are number companycerned with the obligations created by treaty which according to the opinions of some writers run with the land and bind the territory. Other writers, as pointed out by Lord McNair in his Law of Treaties by Keith in his Theory of State Succession and Crandall in Treaties, Their Making and Enforcement. hold that on cession, the treaties are abrogated automatically. Such a view was taken by the United Kingdom and United States when Algiers was annexed by France and by the former when South Africa was annexed by Great Britain and by the United States when Korea was annexed by Japan in 1910. See Mervyn jones B. Y. B. 1947 P. 360 Dr. C. W. Jenks B. Y. B. 1952 P. 105 . On the other hand, the treaties of the annexing or cessionary State are held to apply to the new territories. These are treaties with other States which is number the case here. Where is the treaty here? The rights companyferred by the Ruler were number the result of a treaty. Nor can the Merger agreement be exalted to the position of a treaty. There is numbertreaty involved here. Even if it were possible to hold that there was a treaty between the Ruler and the Central Government, there is numberpower in the Municipal Courts in India to pronounce upon the Agreement as the subject is outside their jurisdiction by reason of Art. This distinguishes the jurisdiction and power of the Supreme Court of the United States in which companysideration of treaties is included. The bar of our Constitution also precludes the companysideration whether these agreements can be to be of the nature of treaties. As regards the principles of International Law, it may be pointed out that after the Report of the Transvaal Concessions Commission and Professor Keiths theories in his book, the attention of the world companymunities has indeed been drawn to the preservation of economic companycessions and acquired rights by the annexing or cessionary State. When the Indian Islands were ceded to Greece the Law Officers Sir Robert Phillimore was one of them advised Both according to the principles of International Law and the practice of all civilised States, ceded territories pass, cum onere to the new sovereign. Opinion of 15th August, 1863, F. 0. 83/2287. McNair International Opinions, Vol. 1 p. 156. Similar advice was given on the occasion of annexation of Peruvian territory by Chile 1884 , of Madagascar by France 1896 , cession of Cuba and the Philipines by Spain 1898 . McNair ibid pp. 157 et seq. Again at the annexation of the Boer Republics between 1900 and 1909 what should be the attitude of Britain led to domestic companytroversy. The legal advisor to the High Commissioner advised that responsibility arising from obligations incurred by the South African Republic and Orange Free State companyld be repudiated but the Law Officers in England reported that a Government annexing territory annexes it subject, speaking generally, to such legal obligations as have been incurred by the previously existing Government. The obligations included companycessionary companytracts but the Law Officers added a rider that the duty to observe such companytracts cannot be enforced in a municipal companyrt it rests merely on the recognition of International Law of what is equitable upon the acquisition of property of the companyquered State see opinion of 30th November, 1900, F.O. quoted by B. Y. B. 1950 at p. 105 . The Transvaal Concessions Commission made its report in April 1901. The report said inter alia After annexation, it has been said, the people change their allegiance, but their relations to each other and their rights of property remain undisturbed and property includes rights which lie in companytract. Concessions of the nature of those which are the subject of enquiry present examples of mixed public and private rights they probably companytinue to exist after annexation until abrogated by the annexing State, and as a matter of practice in modern times, where treaties have been made on cession of territory, have often been maintained by agreement. The Commission, however said that numberrule of International Law companypelled this but added that the best modern opinion favoured that such rights should be respected. The distinction between what is a rule of law and what is a rule of ethics was criticised see Westlake in 1901 17 Law Quarterly Review p. 395. However, Prof. Keith gave support to the view. The report of the Commission was companysiderably influenced by the opinion in Cook v. Sprigg 1 International experts, however, in drafting the terms of settlement of the first Balkan War accepted a new formula in 1920 by which the cessionary State was treated as subrogated in all rights and changes. These opinions were put to test in some cases before the Permanent Court of International Justice in companynection with the Jaffa Concessions and the case of the German Settlers Case. In the former, the Court decided, for technical reasons, that it had numberjurisdiction but added that if Protocol XII left intact the general principles of subrogation, the administration of Palestine was bound to recognise the Jaffa, 1 1899 A.C. 572. Concessions in companysequence of the general principles of International Law. In the case of Settlers of German origin in territory ceded by Germany to Poland and German interest in Upper Silesia case P.C.I.J. series B No. 6 and series A No. 7 the doctrine of acquired rights was accepted, in respect of private rights. The term acquired rights has number received a companysistent meaning in this companynection. It is number the numberion of ius quaesitum which was the result of juristic activity following upon the social companytract theory. In International Law, it has different meanings. At one extreme is the view that it must be a grant to an individual of rights under municipal law which touch public interest and at the other end every economic companycession is held included. Of companyrse even International Law does number recognise,a universal succession. The term economic companycessions must involve a companytract between the State or a public authority on the one hand and a companycessionaire on the other and must also involve an investment of capital by the latter for erection of public works or exploitation in the public sector. Such cases are the Mavromma is case, Lighthouses case, Lighthouses in Crete and Samos case C.I.J. Series A No. 5 and Series A B No. 62 and 71 . Cases of mere private rights without any companyresponding benefit to the public are number regarded as companycessions but there are two cases in which it has been ruled that private rights must be respected. They are the case of Poland mentioned above. Most of the cases deal with Concessions in which there are reciprocal advantages. All this recognition is still in the diplomatic field. It has never gone beyond political companysideration except in the United States. The cases of the United States are mostly to be found in 2-12 Peters and the leading case is U. S. v. Percheman 1 . Occasionally the question of companycessionary rights has been companysidered in the Courts in England but -of that latter. In U. S. v. Percheman 1 , Chief Justice John Marshall observed It may number be unworthy of remark that it is very unusual, even in cases of companyquest for the 1 7. Pet. 61. companyqueror to do more than to displace the sovereign and assume dominion over the companyntry. The modem usage of nations, which has become law, would be violated that sense of justice and of right which is acknowledged and felt by the whole civilised world would be outraged, if private property should be generally companyfiscated, and private rights annulled. The people change their allegiance their relation to their ancient sovereign is dissolved but their relations to each other, and their rights of property remain undisturbed. If this be the modern rule even in cases of companyquest, who can doubt its application to the case of an amicable cession of territory? A cession of territory is never understood to be a cession of the property belonging to its inhabitants. The King cedes that only which belonged to him. Lands he had previously granted were number his to cede. Neither party companyld so understand the cession. Neither party companyld companysider itself as attempting a wrong to individuals, companydemned by the practice of the whole civilised world. The cession of a territory by its name from one sovereign to another, companyveying the companypound idea of surrendering at the same time the lands and the people who inhabit them would be necessarily understood to pass the sovereignty only, and number to interfere with private property. These words of Chief Justice Marshall have been quoted in legal opinions and have influenced international opinion. The question has been raised that we must accent this as the exposition of the law to be applied by municipal companyrts here. The doctrine in the United States is number unlimited. Limitations were pointed out by Chief Justice John Marshall himself in the case of Foster v. Nielson 1 . That case 1 1829 2 Pet. 253. involved the effect upon private land titles of a phrase in an Article of a treaty with Spain. That phrase was shall be ratified and companyfirmed to those in possession. It was, as the Chief Justice said, in the language of companytract and. it required legislative implementation before titles companyld be claimed. This has led to a differentiation between self executing treaties and number-self-executing treaties. Says Chief Justice John Marshall- A treaty is in its nature a companytract between two nations, number a Legislative Act. It does number generally effect, of itself, the object to be accomplished, especially so far as its operation is infra-territorial but is carried into execution by the sovereign powers of the respective parties to the instrument. In the United States a different principle is established. Our Constitution declares a treaty to be the law of the land. It is, companysequently, to be regarded in companyrts of justice as equivalent to an Act of Legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a companytractwhen either of the parties engages to perform a particular act-the treaty addresses itself to the political, number the Judicial Department and the Legislature must execute the companytract before it can become a rule for the Court. In India, the position is different. Article 253 enables legislation to be made to implement international treaties. This means that the law would bring the treaty in the field of municipal law. The matter was companysidered in one cam Birma v. The State 1 , where the High Court declared Treaties which are a part of international law do number form part of the law of the land unless expressly made so by the legislative authority. This accords with what has been said by me but the judgment seems to suggest that treaties which do number affect private A.I.R. 1951 Rai. 127. rights also require legislative implementation. This is number quite accurate, because it is number necessary that all treaties must be made a part of municipal law. I agree with Alexander in International Law in India in International and Comparative Law Quarterly 1952 p. 289 at p. 295. Preuss Michigan Law Review 1953 p. 1123 n. 151 calls it a rare example of a treaty which was number enforced without legislative sanction. The only other example he gives is Re Arrow River and Tributaries Slide and Boom Co. Ltd. 1932 2 L.R. 250. see B.Y.B. 1953 30, pp. 202, 203. The precedent of the United States cannot be useful because it has been held by the Supreme Court of the United States that, although the Courts have numberpower to question the validity of the Act of State, they can companysider its effect. See U. S. v. Percheman 1 at P. 86 and that the enunciation of treaties must be accepted by Courts, Clark v. Allen 2 . Our practice and Constitution shows that there are limitations upon the powers of Courts in matters of treaties and Courts cannot step in where only political departments can act. The power of the Courts is further limited when the right is claimed against the political exercise of the power of the State. Again, the right claimed here is number even a companycessionary right such as he has received the support of international writers. It is more of the nature of a gift by the ruler at the expense of the State. It lacks bona fides which is one of the things to look for. There is numbertreaty involved and whatever guarantee there is, the Constitution precludes the municipal companyrts from companysidering. Politically and ethically there might have been some reason to accept and respect such companycessions but neither is a reason for the municipal companyrts to intervene. The position of the municipal companyrts according to English Jurisriudence has been numbericed in earlier cases. To them may be added the following companysiderations. In Amodu Tijani v. Secretary, Southern Nigeria 3 it was said a mere change in sovereignty is number to be presumed as meant to disturb rights of private owners, and 1 7. Pet. 61 2 331 U.S. 503. 3 1921 2, A.C. 399. the general terms of a cession are prima facie to be companystrued accordingly. p. 407 . Again, in West Rand Central Gold Mining Co. v. Regem 1 , it was said It must number be forgotten that the obligations of companyquering states with regard to private property of private individuals, particularly land as to which the title had already been perfected before the companyquest or annexation are altogether different from the obligations which arise in respect of personal rights by companytracts. The observations in Amodu Tijanis case 2 were cited before the Privy Council in Sardar Rustam Khans case 3 . But Lord Atkin after referring to all cases from Kamachee Boye Saheba 4 , referred to the observations of Lord Halsbury in Cook v. Sprigg 5 . It is well-established principle of law that the transactions of independent States between each other are governed by other laws than those which municipal companyrts administer. It is numberanswer to say that by the ordinary principles of international law private property is respected by the sovereign which accepts the cession and assume the duties and legal obligations of the former sovereign with respect of such private property within the ceded territory. All that can be properly meant by such a proposition, is that, according to the well understood rules of international law, a change of sovereignty by cession ought number to affect private property, but numbermunicipal tribunal has authority to enforce such an obligation. Lord Atkin referred in his judgment to Secretary of State Bai Raibai 6 and Vajje Singhs case 7 as laying the 1 1905 2 K.B. 391. 2 1921 2. A.C. 399. 3 1941 68 I. A. 109. 4 1859. 13 Moore P.C. 22 5 1899 A.C. 572. 6 1915 L. R. 42 I.A. 229. 7 1924 L. R. 51 I.A. 357. limits of the jurisdiction of municipal companyrts. These cases have been applied in several decisions by this Court and the view of the Supreme Court of the United States or the view taken in International Law has number been accepted. It is number that the Courts in England have number been pressed by the rules of International Law as a science. As Westlake pointed out in the Nature and Extension of Title by Conquest op. cit. The authorities on the law of England appear to be prepared to pay that homage to international law. We may refer to what was said by Vice-Chancellor Lord Cranworth in King of the Two Sicilies v. Willcox, I Sim. N.S. 327-9, and by Vice-Chancellor Wood in United States of America v. Prioleau, 2 Ham. 563 and to the generality of the proposition laid down by Vice Chancellor James in United States of America v. Mcrae, L.R.8. Eq. 75. I apprehend it, he said, to be the clear public universal law that any government which de facto succeeds to any other government, whether by revolution or restoration, companyquest or reconquest, succeeds to all the public property, to everything in the nature of public property, and to all rights in respect of the public property, of the displaced power, whatever may be the nature or origin of the title of such displaced powers. But the rule that the Act of State can be questioned in a Municipal Court has been adopted and it has been companysidered that it is a matter for the political departments of the State. To quote from Cook v. Sprigg 1 . if there is either an express or a wellunderstood bargain, between the ceding potentate and the Government to which the cession is made, that private property shall be respected, that is only a bargain which can be enforced by sovereign 1 1899 A.C. 572. against sovereign in the ordinary companyrse of diplomatic pressure. I do number, therefore, accept the companytention that a change of opinion is necessary. Even Bose J., did number decide in Virendra Singhs case 1 , on the basis of international law or the opinion of the Supreme Court of the United States. In my opinion, these are matters for the political department of the State. However, desirable it may be that solemn guarantees should be respected, we cannot impose our will upon the State, because it is outside our jurisdiction. For these reasons, I-would accept the appeals and would set aside the judgment under appeal and restore the decrees dismissing the suits with companyts throughout. SHAH J.-The Ruler of Sant State had made grants of villages to jagirdars but without right to trees. On March 12, 1948, the Ruler issued an order reciting that the holders of the villages were number given rights of the forests and after companysidering the companyplaints of certain jagirdars they were given full rights and authority over the forests in the villages under their vahivat. The jagirdars were directed to manage the forests according to the policy and administration of the State. The respondents claim in these appeals that the rights of the grantees to the forests were number liable to be cancelled by the Dominion of India after the merger of the State of Sant in June 1948, and by executive action the Government of Bombay was number companypetent to obstruct the exercise of those rights. Pursuant to the agreement dated March 19, 1948 as from June 1, 1948, the State of Sant merged with the Dominion of India. The sovereignty of the Ruler was thereby ,extinguished and the subjects of the Sant State became citizens of the Dominion of India. Accession of one State to another is an act of State and the subjects of the former State may, as held in a large number of decisions of the Judicial Committee and of this Court, claim protection of only such rights as the new sovereign recognises as enforceable by the subjects of the former State in his municipal companyrts. 1 1955 1 S.C.R. 415. In The Secretary of State in Council of India v. Kamachee Boye Saheba 1 the jurisdiction of the companyrts in India to -adjudicate upon the validity of the seizure by the East India Company of the territory of Rajah of Tanjore as an escheat, on the ground that the dignity of the Raj was extinct for want of a male heir, and that the property of the late Rajah lapsed to the British Government, fell to be determined. The Judicial Committee held that as the seizure was made by the British Government, acting as a sovereign power, through its delegate the East India Company it was an act of State, to, inquire into the propriety of which a Municipal Court had numberJurisdiction. Lord Kingsdown observed at p. 529 The transactions of independent States between each other are governed by other laws than those which Municipal Courts administer Such Courts have neither the means of deciding what is right, number the power of enforcing any decision which they may make. In Vajesingji joravarsingji v. Secretary of State for India Council 1 the Board observed at p. 360 when a territory is acquired by a sovereign State for the first time that is an act of State. It matters number how the acquisition has been brought about. It may be by companyquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognized ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the municipal companyrts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. Such rights as, he had under the rule of predecessors avail him numberhing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does number give a title to those 1 7 Moodes I.A. 476. 2 L.R. 51 I.A. 357. 184-159 s.c.- 476. inhabitants to enforce these stipulations in the municipal companyrts. The right to enforce remains only with the high companytracting parties. In Secretary of State v. Sardar Rustam Khan and Others 1 in companysidering whether the rights of a grantee of certain proprietary rights in lands from the then Khan of Kalat, ceased to be enforceable since the agreement between the Khan and the Agent to the Governor-General in Baluchistan under which the Khan had granted to the British Government a perpetual lease of a part of the Kalat territory, at a quit rent, and had ceded in perpetuity with full and exclusive revenue, civil and criminal jurisdiction and all other forms of administration, it was observed by Lord Atkin delivering the judgment of the Board that in this case the Government of India bad the right to recognise or number recognise the existing titles to land. In the case of the lands in suit they decided number to recognize them, and it follows that the plaintiffs have numberrecourse against the Government in the Municipal Courts. The rule that cession of territory by one State to another is an act of State and the subjects of the former State may enforce only those rights which the new sovereign recognises has been accepted by this Court in M s. Dalmia Dadri Cement Co. Ltd. v. The Commissioner of Income-tax 2 jagannath Agarwala v. State of Orissa 3 Promod Chandra Deb and Others v. The State of Orissa and Others 4 and The State of Saurashtra v. Jamadar Mohamad Abdulla and others 5 , and may be regarded as well settled. Mr. Purshottam on behalf of the respondents however companytended that this rule was a relic of the imperialistic and expansionist philosophy of the British Jurisprudence, which L. R. 68 I.A. 109. 2 1959 S.C.R. 729. 3 1962 1 S.C.R. 205. 4 1962 Suppl. 1 S.C.R.405. 5 1962 3 S.C.R. 970. is inconsistent with our Constitutional set-up. Counsel submits that in jurisdictions where truly democratic institutions exist the rule laid down by the Judicial Committee has number been accepted. The rule is, companynsel submits, inconsistent with the true spirit of our Constitution, which seeks to eschew all arbitrary authority, and establishes the rule of law by subjecting every executive action to the scrutiny of the companyrts and to test it in the light of fundamental rights. Counsel says that the true rule should be the one which has been recognized by the Supreme Court of the United States that of the accession of a State to another, private rights of the citizens enforceable against their sovereign are number affected, and may be enforced in the Courts of the new sovereign. In support of this argument Mr. Purshottam relied upon the observations made by Marshall, C. J., in United States v. Percheman 1 The people change their allegiance their relation to their ancient sovereign is dissolved but their relations to each other, and their rights of property, remain undisturbed. If this be the modern rule even in cases of companyquest, who can doubt its application to the case of an amicable cession of territory ? A cession of territory is never understood to be a cession of the property belonging to its inhabitants. The king cedes that only which belonged to him. Lands he had previously granted were number his to cede. Neither party companyld companysider itself as attending a wrong to individuals, companydemned by the practice of the whole civilised world. The cession of a territory by its name from one sovereign to another, companyveying the companypound idea of surrendering, at the same time the lands and the people who inhabit them, would be necessarily understood to pass the sovereignty only, and to interfere with private property. But the rights and their enforceability in the Municipal Courts of a State must depend upon the will of the sovereign. The sovereign is the fountain head of all rights, all laws and 1 1833 32 U.S. 51, at 86, 87. all justice within the State and only those rights which are recognised by the sovereign are enforceable in his Courts, The Municipal Courts which derive their authority from their sovereign and administer his laws cannot enforce the rights Which the former sovereign whose territory has merged or been seized by the new sovereign recognised but the new sovereign has number, for the right to property of the citizen is only that right which the sovereign recognises. It may also be observed that the companystitutional provisions in the United States are somewhat different. Under the Constitution of the United States each treaty becomes a part of the law of the land, the provisions thereof are justiciable and the companyenants enforceable by the Courts. Recognition of the rights of the citizens of the acceding State being the prerogative of the sovereign, if rights be recognized by treaty which by the special rules prevailing in the United States become part of the law of the land, they would be enforceable by the Municipal Courts, Under the rule adopted by this Court, a treaty is a companytract between two nations, it creates rights and obligations between the companytracting States. but there is numberjudicial tribunal which is companypetent to enforce those rights and obligations. The treaties have number the force of law and do number give rise to rights or obligations enforceable by the Municipal Courts as observed by Hyde in his International Law vol. 1 p. 433 Acknowledgement of the principle that a change of sovereignty - does number in itself serve to impair rights of private property validly acquired in areas subjected to a change, does number, of companyrse. touch the question whether the new sovereign is obliged to respect those rights when vested in the nationals of foreign States, such as those of its predecessor. Obviously, the basis of any restraint in that regard which the law of nations may be deemed to impose must be sought in another quarter. The observations made by Marshall C. J., have received repeated recognition in treaties of cession companycluded by the United States. But as observed by Lord Halsbury in companyk v. Sprigg 1 It is a well-established principle of law that the transactions of independent States between each other are governed by the others, laws than those which Municipal Courts administer. it is numberanswer to say that by the ordinary principles of international law private property is respected by the sovereign which accepts the cession and assumes the duties and legal obligations of the former sovereign with respect to such private property within the ceded territory. All that can be properly meant by such, a proposition is that according to the well-understood rules of international law a change of sovereignty by cession ought number to affect private property, but numbermunicipal tribunal has authority to enforce such an obligation. It was then urged that by cl. 7 of the letter of guarantee written by Mr. V. P. Menon on behalf of the Government of India on October 1, 1948, which was to be regarded as expressly stated in that letter, as part of the merger agreement dated March 19, 1948, the Government of India had undertaken to accept all orders passed and actions taken by the Ruler prior to the date of handing over of the administration to the Dominion Government. Clause 7 of the letter is in the following terms No order passed or action taken by you before the date of making over the administration to the Dominion Government will be questioned unless the order was passed or action taken after the 1st day of April 1948, and it is companysidered by the Government of India to be palpably unjust or unreasonable. The decision of the Government of India in their respect will be final. But by virtue of Art. 363 of the Constitution, it is number open to the respondents to enforce the companyenants of this agree- 1 1899 A.C. 572. ment in the Municipal Courts Maharaj Umeg Singh and Others The State of Bombay and ohers 1 . It was then urged that the Government of Bombay as delegate of the Dominion of India had recognised the right of the respondents when they were permitted to cut the forests. But the plea of recognition has numberforce. It is true that some of the forests were permitted to be cut by the companytractors under special companyditions pending decision of the Government of Bombay. The Conservator of Forests North Western Circle had ordered that the question as to the approval to be given to the agreement dated March 12, 1948, was under the companysideration of the Government and that written undertakings should be taken from the jagirdars, inamdars or persons companycerned that they would abide by the decision or orders passed by the Bombay Government in respect of such private forests when the question of rights over such private forests will be finally settled. On January 9, 1949, on the application of the jagirdar the Divisional Forest Officer agreed to issue authorisation to the companytractor valid upto March 31, 1949, subject to the companydition that export outside was number to be permitted pending receipt of the orders by the Government and that a written undertaking was given by the purchaser that he would abide by the decision and orders passed by Government. In pursuance of this arrangement undertakings were given by the companytractors and the jagirdars agreeing to abide by the decision and the orders to be passed by the Government of Bombay in respect of the forest rights and admitting that the authorization issued by the Divisional Forest Officer was subject to those undertaking. The Forest Officers therefore did number allow the forests to be worked unconditionally. Cutting of trees in the forests by the companytractors was permitted subject to certain terms and companyditions and on the clear undertaking that the question as to the right and the terms under which they companyld cut the forests would be decided by the Government. The Government of Bombay on July 8, 1949, resolved that the order passed by the Ruler of the Sant State dated March 12, 1948, transferring forest rights to holders of the 1 1955 2 S.C.R. 164. jagirs villages were mala fide and that they should be cancelled, but before taking further action in the matter, the Commissioner should ascertain whether the possession of the forests in question was with the Government or was with the jagirdars. The order proceeded to state It the possession is still with Government please ask the Officer of the Forest Department to retain the same and to refuse to issue passes, etc., to private companytractors and purchasers. A companyy of this order was forwarded to the Forest Officers, Santrampur for information and guidance and it is found endorsed on that order that numbertransit passes be issued-to the jagirdars to whom rights over forests were companyceded in March 1948 and all further felling in such jagir forests should be stopped at once and companypliance reported. It is true that the order of the Governor was number directly companymunicated to the jagirdars or the companytractors. But if the companyduct of the Forest Officers in permitting cutting of the forests is sought to be relied upon, it would be necessary to take into companysideration the orders passed by the Conservator of Forests, North-Western Circle, the undertakings given by the companytractors and the jagirdars and the order passed by the Governor of Bombay and the execution of that order by stoppage of the cutting of the forests. It appears that cutting of trees in forests was permitted only upto some time in 1949 and was thereafter stopped altogether by order of the Revenue Department. The final resolution cancelling the agreement was passed on February 6, 1953. It was recited in the resolution that the Tharav issued by the Ruler in 1948 had been companysidered by the Government to be mala fide and the same had already been repudiated and it was number binding on the Government of Bombay both by law and under the agreement of integration, in spite of the assurance companytained in the companylateral letter. It was also recited. Since the Tharav has number been recognised by Government but has been specifically repudiated, everything done in pursuance thereof including the companytracts entered into after passing of the Tharav. is number valid and, therefore, binding on this Government. Having regard to the companyduct of the Officers of the Government of Bombay and the resolution of the Government, the plea that the Government of Bombay as delegate of the Dominion had renounced its right number to regard itself as bound by the order made by the Ruler of Sant State cannot be sustained. The next question which falls to be determined is whether the order can be regarded as law within the meaning of cl.4 of the Administration of the Indian States Order, 1948. Clause 4 1 provided Such provisions, or such parts of provisions a of any law, or b of any numberification, order, scheme, rule, form or bye-law issued, made or prescribed under any law, as were in force immediately before the appointed day in any Indian State shall companytinue in force until altered, repealed or amended by an order, under the Extra Provincial Jurisdiction Act, 1947 XLVII of 1947 Provided that the powers that were exercised by the Ruler of an Indian State in respect of or in relation to such Indian State under any such provisions of law immediately before the appointed day, shall be exercised by the Provincial Government or any officer specially empowered in this behalf by the Provincial Government. It was urged that the order issued by the Ruler of Sant State was either law or an order made or prescribed under any law in force immediately before the appointed day and by virtue of cl. 4 of the Administration of the Indian States Order, it must be deemed to have remained in operation and any action taken in companytravention thereof by executive action was unjustified. Our attention has number been invited to any statutory provisions relating to forests in the State of Sant, number does the order dated March 12, 1948, purport to be issued in exercise of any statutory power. On the face of it the order grants certain rights in forests which had number been previously granted to the jagirdars by the Ruler. It is urged that the Ruler of Sant was an absolute Ruler in whom were vested all authority legislative, executive and judicial, and whatever he did or directed had to be companyplied with and therefore his actions and directions must be deemed to be law within the meaning of cl. 4 of the Administration of the Indian States Order. But the fact that the Ruler of Sant State was an absolute Ruler number bound by any companystitutional limitations upon the exercise of his powers does number, in my judgment, invest every exercise of his powers with legislative authority. The functions of a State whether it companytains a democratic set-up or is administered by an autocratic sovereign fall into three broad categories--executive, legislative and judicial. The line of demarcation of these functions in an absolute or autocratic form of Government may be thin and may in certain cases number be easily discernible. But on that account it is number possible to infer that every act of an autocratic sovereign has a legislative companytent or that every direction made by him must be regarded as law. That an act or an order of a sovereign with absolute authority may be enforced and the subjects have numberopportunity of getting redress against infringement of their rights in the Municipal Courts of -the State will number be decisive of the true character of the functions of the sovereign in the exercise of which the act was done or the order was made. The distinction between functions executive, legislative and judicial vested in one person may number be obliterated, merely because they are in fact exercised or are capable of being exercised indiscriminately. In the ultimate analysis, the legislative power is the power to make, alter. amend or repeal laws and within, certain definite limits to delegate that power. Therefore it is power to lay down a binding rule of companyduct. Executive power is the power to execute and enforce the laws, and judicial power is power to ascertain, companystrue and determine the rights and obligations of the parties before a Tribunal in respect of a transaction on the application of the laws and even in an absolute regime this distinction of the functions prevails. If an order is made during the regime of a sovereign who exercises absolute powers, and it is enforced or executed leaving numberhing more to be done thereunder to effectuate it, any discussion of its true character would be an idle exercise. Where however in a set-up in which the rule of law prevails, to support action taken pursuant to an order you have to reach the source of authority in the power of the previous autocratic sovereign, the true nature of the function exercised may become important, when the laws of the former State are by express enactment companytinued by the new sovereign. The order dated March 12, 1948, companyveys to the jagirdars rights which had been previously excluded from the grants. The form of the order is of companyrse number decisive. An important, test for determining the character of the sovereign function is whether the order expressly or by clear implication prescribes a rule of companyduct governing the subject which may be companyplied with a sanction demanding companypliance therewith. The order dated March 12, 1948, is expressly in the form of a grant of the rights which were number previously granted and does number either expressly or by implication seek to lay down any binding rule of companyduct. I am therefore unable to hold that the order issued on March 12, 1948, by the Ruler of Sant State was law or an order made under any law within the meaning of cl. 4 of the Administration of the Indian States Order. 1948. Cases which have companye before this Court in which the question as to the binding effect of orders issued by the Rulers of the former Indian States fell to be determined clearly illustrate that principle. In Ameer-un-Nissa Begum and others v. Mahboob Begum and others 1 the question as to the binding character of two Firmans dated February 24, 1949, and September 7, 1949, issued by H. E. H. the Nizam of Hyderabad fell to be determined. The Court in that case observed at p. 359 - The Firmans were expressions of the sovereign will of the Nizam and they were binding in the same way as any other law-,- nay, they would override all other laws which were in companyflict with them. So long as a particular Firman held the field, that alone would gov- A I.R. 1955 S.C. 352. ern or regulate the rights of the parties companycerned, though it companyld be annulled or modified by a later Firman at any time that the Nizam willed. The Court declined to companysider whether the Firmanswere in the nature of legislative enactment or judicial orders and observed The Nizam was number only the supreme legislature, he was the fountain of justice as well. When he companystituted a new Court, he companyld, according to ordinary numberions, be deemed to have exercised his legislative authority. When again he affirmed or reversed a judicial decision, that may appropriately be described as a judicial act. A rigid line of demarcation, however, between the one and the other would from the very nature of things be number justified or even possible. In that case the primary question which the Court had to companysider was whether certain Firmans issued by the Nizam companyld be enforced. It was held that the order may be legislative or judicial in character, but it companyld number be regarded as executive. It may be numbericed that numberaction was required to be taken after the cessor of the sovereignty of the Nizam, in pursuance of the Firmans. The Firmans had become effective, and titles of the parties stood adjusted in the light of those Firmans during the regime of the Nizam. In Director of Endowments. Government of Hyderabad v. Akram Ali 1 the effect of a Firman issued by the Nizam on December 30. 1920, directing that the Ecclesiastical Department to supervise a Dargah within the jurisdiction of the Nizam until the rights of the parties were enquired into and adjudicated upon by a civil companyrt fell to be determined. The Court in that case held that the right of Akram Ali who claimed to be hereditary Sajjad Nashin and Mutwalli was subject to the order of the Nizam which had been passed before the Hyderabad State merged with the Union of India and the applicant having numberrights it companyld A.I.R. 1956 S.C. 60. be enforced at the date of the Constitution and the Courts were incompetent to grant him relief till the rights were determined by the Constitution. The effect of the Firman was to deprive the respondent Akram Ali and all other claimants of all rights to possession pending enquiry into the case. It is clear from the observations made in that judgment that the only decision of the Court was that by the Firman the rights of the Sajjad Nashin and Mutwalli was suspended till determination by the civil companyrt of his right to possession. The Firman was given effect number because it was regarded as the expression of the legislative will but because it had become effective before the Constitution came into effect suspending the rights of the applicant. In Madhorao Phalke v. The State of Madhya Bharat 1 the true character of certain Kalambandis issued by the Rulers of Gwalior fell to be determined. The appellant was the recipient of a hereditary military pension granted by the Ruler of Gwalior to his ancestors in recognition of their military services. The right to receive pension was recognised by the Kalambandis of 1912 and 1935 issued by the Ruler. After the formation of the State of Madhya Bharat under the Constitution, the Government of that State by an executive order terminated the right of the appellant. The Kalam-bandis though number issued in the form of legislative enactments were issued for the administration of the department relating to the Shiledari units. and the nature of the provisions unambiguously impressed upon them the character of statutes or regulations having the force of law. The Kalambandis recognised and companyferred hereditary rights they provided for the adoption of a son by the widow of a deceased Silledar subject to the approval of the State and also for the maintenance of widows out of funds specially set apart for that purpose, and companytemplated the offering of a substitute when a silledar became old or otherwise unfit to render service they made detailed provision as to mutation of names after the death of a silledar. They further enacted that the Asami being for the shiledari service it companyld number be mortgaged for a debt of any banker, and if a decree holder sought to proceed against the amount 1 1961 S.C.R. 957. payable to him, execution had to be carried out in accordance with and in the manner and subject to the limitations prescribed in that behalf. The Kalambandis were number treated as administrative orders issued merely for the purpose of regulating the working of the administration of the department of irregular forces, and were therefore to be regarded as regulations having all the characteristics of legislative enactments. In Promod Chandra Debs case 1 the true character of ,certain Khor Posh grants granted by the Rulers of Talcher, Bamara and Kalahandi fell to be determined, in a group of petitions for enforcement of fundamental rights. Out of the four petitions, petition No. 167 of 1958 was dismissed ,on the ground that under an order passed by the Extra Provincial Jurisdiction Act, 1947, a grant made by the Ruler ,of Bamra in favour of the petitioner was annulled before Bamra became part of the Union of India and the right created by the grant had on that account ceased to exist. In two other petitions Nos. 168 of 1958 and 4 of 1959 it was found by the Court that the maintenance grants in favour of certain members of the family of the Ruler were recognised by the Government of India and the right thus recognised was given effect to and payments pursuant thereto were companytinued for nearly eight years after the merger of the State. This Court held that the State having recognized its obligation to pay the maintenance grants which were -agreed to be granted under the statutory law and the custom of the State, the grants companyld number be annulled by executive action. In the principal writ petition No. 79 of 1957 the grants by the Ruler of Talcher was made subject to the -terms and companyditions laid down under Order 31 of the Rules and Regulations of the State of Talcher of 1937. These Rules and Regulations of Talcher of 1937 were regarded as the law of the State and it was in accordance with the law that the Khor Posh grants were made by the Ruler. If was held that these grants had the effect of law. Sinha C.J., delivering the majority judgment of the Court observed at p. 436 There is also numberdoubt that the grant made by the ruler of Talcher in favour of the petitioner 1 1962 Suppl. 1 S.C.R. 405. companytinued to be effective until the Merger. The nature and companyditions of such grant of Khorposh are governed by the provisions of the laws of that State as embodied in Order 31 of the Rules and Regulations of Talcher, 1937. Under the laws of Talcher, the petitioner had been enjoying his Khorposh rights until the cash grant, as it became companyverted in 1943-44 as aforesaid, was stopped by the State of Orissa, in April, 1949. In the view of this Court the terms and companyditions, subject to which the grant was made, were on the facts of the cast in the nature of legislative acts and number exercise of executive functions. The Court in that case did number purport to lay down that any act done by the Ruler whether it be executive, legislative or judicial must be regarded since the merger of the State as in the exercise of the legislative will of the Ruler and therefore companytinuing as law. In a recent judgment of this Court in Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan and others the Firman issued by the Udaipur Darbar in 1934 relating to the administration of the temple of Sharnathji at Nathdwara, which was expressly declared to be a public temple, and governing the devolution of the right to the management of the temple, and certain incidental matters, fell to be determined. The Firman companysisted of four clauses. By the first clause it was declared that according to the law of Udaipur the shrine of Shrinathji had always been and was a religious institution for the followers of the Vaishnava Sampradaya and that all the property immovable and movable dedicated, offered or presented to or otherwise companying to the deity Shrinathji had always been and was the property of the shrine and that the Tilkayat Maharaj for the time being was merely the custodian manager and trustee. of the said property for the shrine. The second clause prescribed the rule of succession and declared that it was regulated by the law of primogeniture, and provided that the Udaipur Darbar had absolute right to depose any Tilkayat Maharai on the ground that such Tilkayat Maharaj was unfit. The A.I.R. 1963 S.C. 1638. third clause provided for measures to be taken by the Ruler for management of the shrine during the minority of the Tilkayat Maharaj and by the last clause it was provided that in accordance with the law of Udaipur the Maharana had declared Shri Damodarlalji-the then Tilkayat Maharajunfit to occupy the Gaddi and had approved of the succession of Goswami Govindlalji to the Gaddi of Tilkayat Maharaj. This Firman declared the character of the trust relating to the Shrinathji temple, laid down rules as to the succession and provided for the management during the minority of the Tilkayat, and declared the right of the State to remove the Tilkayat and for enforcement of that right by declaring that the then Tilkayat was unfit to occupy the Gaddi. This was in substance though number in form exercise of the legislative will of the sovereign. Its operation was number exhausted by its enforcement during the regime of the Maharana of Udaipur. Devolution of the Gaddi, and declaration about the power of the Ruler over the shrine were intended to govern the administration of the shrine for all times. It is true that in that case in paragraph-32 it was observed after referring to Madhorao Phalkes ease 1 , Ameer-un-Nissa Begums case 2 and the Director of Endowments, Government of Hyderabads case 3 In the case of an absolute Ruler like the Maharana of Udaipur it is difficult to make any distinction between an executive order issued by him or a legislative companymand issued by him. Any order issued by such a Ruler has the force of law and did govern the rights of the parties affected thereby. It was number and companyld number be laid down that all orders issued by an absolute Ruler were legislative in character it was merely sought to be emphasized that so long as the territory of Udaipur and the shrine were under the sovereignty of the Maharana the distinction between companymands legislative and executive was academic, for all orders and companymands of the Ruler had to be obeyed alike. But since the merger of the State with the Union of India, the question 1 1961 S.C.R. 957, 2 A.I.R. 1955 S.C. 352. A.I.R. 1956 S.C. 60, whether the Firman was a mere executive order or a legislative enactment assumed vital importance. If the companymand was merely executive unless the rights created thereby were recognized by the Dominion of India they had numbervalidity and numberreliance companyld be placed upon them in the Municipal Courts. If the companymand was legislative, the laws of the former State having been companytinued upon merger, the legislative companymand retained vitality and remained enforceable. In the companytext in which it occurs the statement set out did number and was number intended to lay down, that there is numberdistinction between legislative companymands and executive orders which have to be enforced after the merger of the State with the Indian Union. I may refer to decisions which illustrate the distinction between legislative companymands and executive orders of the Rulers of the former Indian States. In Maharaja Shree Umaid Mills Ltd. v. Union of India and Others 1 the question whether an agreement between the Ruler of Jodhpur and a limited Company whereby the Ruler agreed to exempt or remit certain duties or royalties and to hold the Company number liable to pay taxes and further gave an assurance to the Company to amend the laws so as to make them companysistent with the agreement was number regarded as law within the meaning of Art. 372 of the Constitution. In the view of the Court the agreement rested solely on the companysent of the parties it was entirely companytractual in nature an a numbere of the characteristics of law. The Court in that case observed that every order of an absolute Ruler who companybines in himself all functions cannot be treated as law irrespective of the nature or character of the order passed. There is, it was observed, a valid distinction between an agreement between two or more parties even if one of the parties is the sovereign Ruler, and the law relating generally to agreements the former rests on companysensus of mind, the latter expresses the will of the sovereign. This case supports the proposition that every act done or order passed by an absolute Ruler of an Indian State cannot have the force of law or be regarded as law since the merger of his territory with the Union of India. To have the vitality of law after A.I.R. 1963 S.C. 953. merger, it must be the expression of the legislative will of the Ruler, There is yet another judgment of this Court in The Bengal Nagpur Cotton Mills Ltd. v. The Board of Revenue, Madhya Pradesh and Others 1 in which also the question whether an agreement between the Ruler of Rajnandgaon and M s. Shaw Wallace and Company in companynection with the setting up of a textile factory on certain companycessional terms in the matter of imposition of octroi duties on imported goods fell to be determined. It was observed in that case It is plain that an agreement of the Ruler expressed in the shape of a companytract cannot be regarded as a law. A law must follow the customary forms of law-making and must be expressed as a binding rule of companyduct. There is generally an established method for the enactment of laws, and the laws, when enacted, have also a distinct form. It is number every indication of the will of the Ruler, however expressed, which amounts to a law. An indication of the will meant to bind as a rule of companyduct and enacted with some formality either traditional or specially devised for the occasion, results in a law but number an agreement to which there are two parties, one of which is the Ruler. The order of the Ruler of Sant dated March 12, 1948, was number in the form of a legislative enactment. It also did number seek to lay down a companyrse of companyduct it merely purported to transmit certain rights which were till the date of the order vested in the Ruler to the jagirdars who were grantees of the villages. It is difficult to hold that an order merely granting forest rights number in pursuance of any legislative authority, but in exercise of the power of the sovereign in whom the rights were vested, to the jagirdars to whom the villages were granted without forest rights, can be regarded as law within the meaning of cl. 4 of the Administration of the Indian States Order, 1948, when the order was number intended to lay down any binding rule of A.I.R. 1964 S.C. 888. 2 134-154 S.C. 37. companyduct of the grantees and merely purported to companyvey the rights which till then were vested in the Ruler. The other question which remains to be determined is whether the respondents are entitled to the protection of s. 299 1 of the Government of India Act, 1935, or Art. 31 1 of the Constitution. Undoubtedly the order which deprives them of the right to cut forest trees which they claimed from the jagirdar who derived them under the grant dated March 12, 1948, from the Ruler of Sant is an executive order. Section 299 1 of the Government of India Act, 1935, protection of which was claimed on the merger of the State of Sant with the Dominion of India provided No person shall be deprived of his property in British India save by authority of law. The clause companyferred protection upon the property rights of persons against any executive action number supported by law. To attract the clause, there must, however, exist a right to property which is sought to be protected. If for reasons which we have already stated in companysidering the first question, the subjects of the acceding State are entitled only to such rights as the new sovereign chooses to recognize, in the absence of any recognition of the rights of the respondents or their predecessor jagirdars, there was numberright to property of which protection companyld be claimed. As held by this Court in State of Saurashtra v. Jamadar Mohamad Abdulla and others 1 orders passed by the Administrator of the State of Junagadh appointed on behalf of the Government of India which had assumed charge of the administration of the State after the Nawab of Junagadh fled the companyntry on various dates between November 9, 1947 and January 20, 1949, cancelling grants in favour of certain persons in whose favour the grants had previously been made by the Nawab of Junagadh were number liable to be challenged in suits filed by the grantees in the Civil Courts of the Dominion, on the plea that the properties had been taken away without the authority of law. This Court held that the impugned orders cancelling the grants in favour of the respondents and taking of the properties arose out of and during an act of State and they companyld number be questioned before Municipal Tribunals, for the 1 1962 3 S.C.R. 970. orders of cancellation were passed before the change over of de jure sovereignty. There is numbersupport for the assumption made by the respondents that an act of State arises merely at a fixed point of time when sovereignty is assumed. An act of State may be spread over a period, and does number arise merely on the point of acquisition of sovereign right see Promod Chandra Debs case 1 . Nor is the new sovereign required to announce his decision when he assumes or accepts sovereignty over foreign territory, about the rights created by the quondam sovereign, on pain of being held bound by the rights so created. The decision of this Court in jagannath Agarwallas case 2 pointedly illustrates this principle. The State of Mayurbhanj merged with the Province of Orissa on January 1, 1949, but an order dated June 28, 1952 made by the Board of Revenue acting on behalf of the State of Orissa rejecting the claim made by a person who had entered into an agreement or arrangement with the Maharaja of Mayurbhanj in 1943 was held to be in the companyrse of an act of State, the rejection of the claim being in pursuance of an order issued under s. 4 of the Extra Provincial Jurisdiction Act, 47 of 1947. Therefore till the right to property of the subjects of the former Indian State was recognized by the new sovereign there was numbertitle capable of being enforced in the Courts of the Dominion or the Union. It was then urged that in any event since the enactment of the Constitution, by executive action a person may number be deprived of his right to property, and this protection applies as much to rights granted by the former Rulers to persons who on merger became citizens of the Dominion of India as to rights of property of other citizens. In substance it is urged that even if there was numberrecognition of the right to property which was granted by the former sovereign by the Dominion Government, after the enactment of the companystitution the right granted by the former Rulers may only be taken away by legislative companymand and number by executive action. This argument proceeds upon a misconception of the nature of the fundamental right companyferred by Art. 31 1 of the Constitution. In terms, the Article companyfers a right to claim protection against deprivation of property otherwise than by 1 1962 Suppl. 1 S.C.R. 405. 2 1962 1 S.C.R. 205. authority of law. A right to property is undoubtedly protected against all actions otherwise than under the authority of law. But the clause postulates a right to property which is protected. It does number purport to invest a person with a right to property which has number been recognized by the Dominion of India or the Union. Even if the right to property was recognized by the Indian State of which the claimant was subject, so long as it is number recognized by the Dominion or the Union it is number enforceable by the Courts in India. On the merger of the State of Sant with the Dominion of India, undoubtedly the respondents became citizens of the Dominion and they were entitled like any other citizen to the protection of the rights which the Dominion recognized. It has also to be remembered that promulgation of the Constitution did number result in transfer of sovereignty from the Dominion of India to the Union. It was merely change in the form of Government. By the Constitution, the authority of the British Crown over the Dominion was extinguished, and the sovereignty which was till then rooted in -the Crown was since the Constitution came into force derived from the people of India. It is true that whatever vestige of authority which the British Crown had over the Dominion of India, since the Indian Independence Act was thereby extinguished, but there was numbercession, companyquest occupation or transfer of territory. The new governmental set up was the final step in the process of evolution towards selfgovernment. The fact that it did number owe its authority to an outside agency but was taken by the representatives of the people made numberdifference in its true character. The companytinuance of the governmental machinery and of the laws of the Dominion, give a lie to any theory of transmission of sovereignty or of the extinction of the sovereignty of the Dominion, and from its ashes, the springing up of another sovereign as suggested in Virendra Singh and Others v. The State of Uttar Pradesh 1 which will presently examine. If therefore the respondents had under the Government of India Act, 1935, after the merger number acquired any right to the forests by virtue of any recognition of the Tharav dated March 12, 1948, the promulgation of the Constitution 1 1955 1 S.C.R. 415. did number invest them with any additional rights which would companyvert either their claims to the forest rights into property or to enable them to enforce in the Indian Courts such claims number recognized by the State as fundamental right to property. By Art. 31 right to property is protected against all actions save by authority of law. But if there was numberright to property, an executive action refusing recognition of a claim to property companyld number infringe Art. 31 of the Constitution. In Virendra Singhs case 1 this Court held that since the promulgation of the Constitution grants which had been made by the previous Rulers, even if they were number recognized by the Dominion of India or the Union, companyld number be interfered with except by authority of law. In that case the petitioners were grantees from the Rulers of the States of Sarila and Charkhari of certain villages before those States merged with the Dominion of India. The States originally merged with the Union of Vindhya Pradesh, and the Vindhya Pradesh Government companyfirmed the grants in December 1948. But the Union of the States of Vindhya Pradesh was dissolved, and the companyenanting States separately acceded to the Dominion of India, and surrendered all authority and jurisdiction in relation to the governance of the States and executed instrument called The Vindhya Pradesh Merger Agreement. The States which formed the Vindhya Pradesh were transformed into a Chief Commissioners Province on January 23, 1950. The grants of the four villages made in favour of the petitioners Were revoked in August 1952 by the Government of the State of Uttar Pradesh to which State those villages being enclaves within its territory were transferred. The grantees of the villages then petitioned this Court under Art. 32 of the Constitution challenging the validity of the orders revoking the grant of jagirs and maufis in the four villages as violative of Arts. 31 1 and 19 1 f of the Constitution. This Court observed that the properties in question were the properties over which the Rulers had right of disposition at the date of the grants, and the grants were absolute in character and would under any civilised system of law pass an absolute and indefeasible title to the grantees and that assuming that the titles were defensible at the mere will of 1 1955 1 S.C.R. 415. the sovereign the fact remained that they were neither resumed by the former Rulers number companyfiscated by the Dominion of India as an act of State and upto the 25th of January, 1950, the right and title of the grantees to companytinue in possession was good and was number interfered with. The Court accordingly held that the Constitution by the authority derived from and companyferred by the people of India destroyed all vestige of arbitrary and despotic power in the territories of India and over its citizens and lands and prohibited just such acts of arbitrary power as the State of Uttar Pradesh in that case was seeking to uphold. It was further observed that the Dominion of India and the States had abandoned their sovereignty and surrendered it to the people of the land who framed the new Constitution of India and as numbersovereign can exercise an act of State against its own subjects, the orders of revocation of the grants were invalid. In my view the companyclusion of the Court proceeded upon two assumptions, neither of which was true that the sovereignty of the Dominion of India and of the States was surrendered to the people of India, and in the exercise of the sovereign power the people gave themselves the new Constitution as from January 26, 1950 and the petitioners who were in de facto possession of the disputed lands had rights in them which they companyld have enforced upto 26th January, 1950, in the Dominion Courts against all persons except possibly the State. These assumptions are number supported by history or by companystitutional theory. There is numberwarrant for holding at the stroke of mid-night of the 25th January, 1950, all our preexisting political institutions ceased to exist, and in the next moment arose a new set of institutions companypletely unrelated to the past. The Constituent Assembly which gave form to the Constitution functioned for several years under the old regime, and set up the companystitutional machinery on the foundations of the earlier political set up. It did number seek to destroy the past institutions it raised an edifice on what existed before. The Constituent Assembly molded numbernew sovereigntyit merely gave shape to the aspirations of the people, by destroying foreign companytrol and evolving a companypletely democratic form of government as a republic. The process was number one of destruction, but of evolution. For reasons already stated it is impossible to hold that what were mere claims to property till the 25th of January, 1950, companyld be regarded as enforceable against any one. Till the Dominion of India recognised the right, expressly or by implication there was numberright to property which the Courts in India companyld enforce. There is numberhing in the Constitution which transformed the claims which till January 25, 1950, had number been recognized into property rights so as to prevent all further exercise of the act of State, and extinguish the powers of the Union to refuse to recognize the claims. The order passed in August 1952 revoking the grants by the Rulers of Sarila and Charkhari was in my view in substance an act of State. It is true that there can be numberact of State by a sovereign against his own subjects. But the State was seeking to refuse to recognize the claims made by the grantees from the former Rulers, and the fact that the act of State operated to the prejudice of persons who were at the date of refusal of recognition citizens, did number deprive the act of State of either its character or efficacy. These appeals must therefore be allowed and the suit filed by the respondents dismissed with companyts throughout. RAGHUBAR DAYAL J.-I agree with the views expressed R, by my learned brother Ayyangar J., on all the points except in regard to the Tharao dated March 12. 1948, being law. I agree with brother Hidayatullah J., that this Tharao is number law, and further agree with him in the order proposed. MUDHOLKAR J.-This Bench has been companystituted for companysidering whether the reasoning underlying the decision of this Court in Virendra Singh v. The State of Uttar Pradesh 1 that the inhabitants of the Indian States brought with them, after the merger of those States in the Dominion of India pursuant to agreements entered into by the Rulers of those 1 1955 1 S.C.R. 415. States, rights to property granted to them by the Rulers of those States, is companyrect or number. The decision and the various grounds upon which it rests have been carefully examined by my brother Ayyangar J., in his judgment and I am generally in agreement with what he has said. As, however, I take a somewhat different view on some of the matters which arise for companysideration in this case this judgment has become necessary. The facts have been set out fully in the judgment of my learned brother and, therefore, it will be sufficient to mention only such of them as are necessary to elucidate the questions which I propose to deal with. In companysequence of two agreements entered into by the former Ruler of Sant State, the territory of that State merged in the Dominion of India as from June 10, 1948. Prior to that date it had acceded to the Dominion of India on three subjects only. This State, along with other ruling States in India, became an independent sovereign State in the year 1947 when the Dominions of India and Pakistan were companystituted. By virtue of the powers vested in the Central Government by the Extra Provincial Jurisdiction Act, 1947 it delegated its functions to the Government of Bombay which passed the Indian States Application of Laws Order, 1948 on July 28, 1948. In, companysequence of that Order certain laws in force in the Province of Bombay were extended to the merged territories. By the operation of the Indian States Merger of Governors Provinces Order, 1949, the Sant State became part of the Province of Bombay. The agreement relating to the merger of the State in the Dominion of India was entered into by the Ruler of Sant some time before the date on which the merger became effective. The Ruler of the State passed a Tharao which is translated as Order on March 12, 1948 in the following terms- Ta. Mu Outward Register No. 371. The Jivak, Patavat, Inami, Chakariyat, Dharmada villages in Sant State are being given granted to Jagirdars and the holders of the said villages are number given rights over forests. Hence after companysidering the companyplaints of certain Jagirs, they, are being given full rights and authority over the forests in the villages under their vahivat. So, they should manage the vahivat of the forest according to the policy and administration of the State. Orders in this regard to be issued. Taking advantage of the Tharao several Jagirdars entered into companytracts pertaining to the exploitation of the forests in their Jagirs. The respondents in these appeals are some of the forest companytractors. The Government of the Province of Bombay through the officers of its Forest Department did number allow the respondents to exercise their rights under the companytracts entered into with them by the Jagirdars on the ground that the grant of forest rights by the former Ruler to the Jagirdars was number binding upon the successor Government. Thus being deprived of their right to work the forests the various respondents instituted suits after the companying into force of the Constitution of India. Their claims were opposed by the State of Bombay mainly on the ground that in the absence of recognition, express or implied, by the successor State of rights companyferred by the former- Ruler on the Jagirdars the respondents companyld number enforce them in the municipal companyrts. The suits of the respondents were dismissed by the companyrt of first instance and appeals preferred therefrom by them were dismissed by the District Court. In second appeal, however, the appeals were allowed by the High Court by a companymon judgment in which reliance is placed largely upon what has been held and said by this Court in Virendra Singhs case 1 though a reference has also been made to two other decisions of this Court and some decisions of the Privy Council. In the arguments before us it has never been in question that the acquisition of the territory of Sant State by the Dominion of India in pursuance of the Instrument of Accession and Merger Agreement was an act of State. The respondents companytentions were, however, that 1 in point of fact the Government of Bombay, acting through the officers of the forest department had recognised the Jagirdars rights by permitting the companytractors to carry on the work of cutting timber 2 that though the Government of 1 1955 1 S.C.R. 415. Bombay subsequently repudiated the Jagirdars rights that repudiation was of numberavail 3 that the letter sent to the Ruler of Sant State by the Secretary to the States Department, Mr. V. P. Menon, in October, 1948 amounted to a waiver by the Dominion of India of the right of repudiation of the rights of Jagirdars 4 that after the Jagirdars became the citizens of the Dominion of India there companyld be numberact of State against them 5 that the doctrine evolved by the Privy Council in its decisions starting from Secretary of State for India v. Kamachee Boye Sahiba 1 and going upto Asrar Ahmed v. Durgah Committee, Ajmer 2 was opposed to the present view on the effect of companyquest and cession upon private rights as exemplified in the decisions in United States v. Percheman 3 and that this Court should, therefore, discard the Privy Councils view and adopt the modem view inasmuch as the latter is companysidered by companymon companysent to be just and fair and finally 6 that the Jagirdars companyld number be deprived of the forest rights deprived by them from the Ruler of Sant State before the Constitution, without ,complying with the provisions of s. 299 of the Government of India Act, 1935, and after the companying into force of the Constitution without companyplying with the provisions of Art. 31 of the Constitution. I agree with my brother Ayyangar J., that the fact that some officers of the forest department had permitted the respondents to carry on operations in the forests leased out to them by the Jagirdars does number amount to recognition of the right companyferred upon the latter by the Tharao of March 12, 1948. In the first place, it was number open to the officers of the forest department to grant recognition to the Jagirdars rights for the simple reason that the right of granting recognition companyld be exercised only by the Government acting through its appropriate agency. Moreover the permission which was accorded to the respondents was only tentative and expressly subject to the final decision of the Government on the question of their right under the leases granted by the Jagirdars. 1 1859 13 Moore P.C. 22. 2 A-1 R 1947 P. C I. 3 1883 32 U. S. 51. The second companytention of the respondents is based upon -a misapprehension of the legal position flowing from the long series of decisions of the Privy Council which have been accepted by this Court in several of its decisions and in particular Dalmia Dadri, Cement Co. Ltd. v. The Commissioner of Income-tax 1 State of Saurashtra v. Memon Haji Ismail Promod Chandra Deb and Ors. v. The State of Orissa and Ors. 3 State of Saurashtra v. Jamadar Mahamad Abdulla and Ors. 4 . The one decision in which the Privy Councils view is criticised is that of Virendra Singhs case 5 . The view of the Privy Council has been expressed by Lord Dunedin in Vajesinghji v. Secretary of State for India 6 in the following passage which has been ,quoted with approval in several judgments. When a territory is acquired by a sovereign State for the first time that is an Act of State. It matters number how the acquisition has been brought about. It may be by companyquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler. in all cases the result is the same., Any inhabitant of the territory can make good in the municipal companyrts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. Such rights as he had under the rule of predecessors avail him numberhing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does number give a title to, those inhabitants to enforce those stipulations in the municipal companyrts. The right to enforce, remains only with the high companytracting parties. Thus what is clear beyond doubt is that the rights derived by the inhabitants of the companyquered and ceded territory from its former rulers cannot be enforced by them against the new 1 1959 S.C.R. 729. 2 19601 1 S.C.R. 537. 3 1962 Supp. 1. S.C.R. 405. 4 19621 3 S.C.R. 970. 5 1955 1 S C.R. 415. 6 51 T.A. 357. sovereign in the companyrts of that sovereign unless they have been recognized by the sovereign. The only basis upon which rights of this kind can be enforced in a municipal companyrt would be the fact of its recognition by the new sovereign. A right which cannot -on its own strength be enforced against a sovereign in the companyrts of that sovereign must be deemed to have ceased to exist. It follows therefore that a right which has, ceased to exist does number require repudiation. As regards the argument that the Government has waived its right to withold recognition, I agree with all that has been said by my brother Ayyangar J. Indeed, if the inhabitants of a ceded territory have ceased to have a right against the new sovereign there is numberhing for the sovereign to waive. I also agree with my learned brother that if the letter of the Secretary to the States Department wpon which reliance is placed by the respondents is regarded as part of the agreement of merger the municipal companyrts are precluded by Art. 363 of the Constitution from enforcing any rights arising thereunder. The argument that there can be numberAct of State against its citizens is based upon the supposition that the rights claimed by the Jagirdars from their former Ruler would be available to them against the new sovereign unless they were repudiated and that here, as the resolution of the Government of Bombay dated February 6, 1953 stating that Jagirdars rights have already been repudiated amounts to an Act of State against persons who had long before this date become the citizens of the Republic of India it was incompetent. As already pointed out, the municipal companyrts cannot take numberice of a right such as this unless it had been recognized expressly or by implication by the new sovereign. doubt, the Government resolution speaks of repudiation. That in my opinion is only a loose way of companyveying that the rights of the Jagirdars have number been recognized. That resolution does numbermore than set out the final decision of Government number to give recognition to the Tharao of March 12, 1948 by which the former Ruler of Sant State ad companyferred certain forest rights on the Jagirdars. Indeed, it is clear from paragraph 3 of that resolution that the Government had expressly borne in mind the legal position that rights claimed under the Tharao gave numbertitle to the inhabitants of Sant State to enforce them in a municipal ,court and that the right to enforce them remained only with the high companytracting parties. Now as to the argument that this Court should discard the view taken by the Privy Council in Secretary of State for India Kamchee Boye Sahiba 1 Secretary of State for India v. Bai Rajbai 2 Vajesinghji v. Secretary of State for India 3 Secretary of State v. Sardar Rustom Khan 4 and Asrar Ahmeds case 5 and adopt the view taken by ,Chief Justice Marshall in Perchemans case 6 . I agree with much which my learned brother has said but would,add one thing. It is this. The companyrts in England have applied the principles of international law upon the view that what is by the companymon companysent of all civilized nations held to be an ,appropriate rule governing international relations must also be deemed to be a part of the companymon law of England. Thus English companyrts have given effect to rules of international law by resorting to a process of incorporation 7 . The English companyrts also recognise the principle that since the British Parliament is paramount the rules of international law are subject to the right of Parliament to modify or abrogate any of its rules. A municipal companyrt can only enforce the law in force in the State. Therefore, if a rule of international law is abrogated by Parliament it cannot be enforced by the municipal companyrts of the State and where it is modified by Parliament it can be enforced by the municipal companyrts subject to the modification. Would the position be different where a particular rule of international law has been incorporated into the companymon law by decisions ,of companyrts? So far as the municipal companyrts are companycerned that would be the law of the land which alone it has the power and the duty to enforce. Where Parliament does number modify or abrogate a rule of international law which has become part of the companymon law, is it open to a municipal 1 1859 13 Moore P.C. 22 2 42 I.A. 229. 3 51 I.A. 357. 4 68 I.A. 109. A.I.R. 1947 P.C. I. 6 1833 32 U. S. 51. See International Law-a Text 1962 by Jacobini, p. 32 et seq companyrt to abrogate it or to enforce it in a modified form on the ground that the opinion of civilized States has undergone a change and instead of the old rule a more just and fair rule has been accepted ? Surely the law of a State can only be modified or repealed by a companypetent legislature of theState and number by international opinion however weighty that Opinion may be. Now, a rule of international law on which the several Privy Council decisions as to the effect of companyquest or cession on the private rights of the inhabitants. of the companyquered or ceded territory is founded has become a part of the companymon law of this companyntry. This is law in force and is saved by Art. 372 of the Constitution. The companyrts in India are, therefore, bound to enforce that rule and number a rule of international law governing the same matter based upon the principle of state succession which had received the approval of Marshall C.J. and which has also received the approval of several textbook writers, including Hyde 1 . It is true that the International Court of Justice has also stated the law on the point to be the same but that does number alter the position so far as the municipal companyrts are companycerned. If in the light of this our law is regarded as inequitous or a survival of an imperialistic system the remedy lies number with us but with the legislature or with the appropriate Government by granting recognition to the private rights of the inhabitants of a newly acquired territory. Thus while according to one view there is a State succession in so far as private rights are companycerned according to the other which we might say is reflected in our laws, it is number so. Two companycepts underlie our law One is that the inhabitants of acquired territories bring with them numberrights enforceable against the new sovereign. The other is that the municipal companyrts have numberjurisdiction to enforce any rights claimed by them, even by virtue of the provisions of a treaty or other transaction internationally binding on the new sovereign unless their rights have been recognized See Hyde international Law Vol. 1, 2nd ed. p. 431, and Wesley L. Gould-An introduction to International Law pp. 422-427. by the new sovereign. Municipal companyrts derive, their jurisdiction from the municipal law and number from the laws of nations and a change in the laws of nations brought about by the companysent of the nations of the world cannot companyfer upon a municipal companyrt a jurisdiction which it does -.lot enjoy under the municipal law. Apart from that the rule cannot be regarded merely as a device of companyonial powers for enriching themselves at the expense of the inhabitants of companyquered territories and, therefore, an anachronism. It would neither be just number reasonable to bind the new sovereign, by duties and obligations in favour of private parties created by the exsovereign from political motives or for the purpose of robbing the new sovereign of the full fruits of his acquisition. No doubt, International Law does number prevent legislation by the new sovereign for the purpose of freeing itself from Such duties and obligations but that would be a long and laborious process and may be rendered onerous or by reason of companystitutional provisions such as those companytained in Part III of our Constitution, even impossible. It would also number be reasonable to regard the new sovereign as being bound by duties and obligations created by the ex-sovereign till such time as the new sovereign was able to show that they were incurred by the ex-sovereign mala fide. It is apparently for such reasons that the law as found by the Privy Council deprives the grantees under the former ruler companypletely of their rights as against a new sovereign by making those rights unenforceable in a municipal companyrt. It, however, also envisages the recognition of those rights by the new sovereign. This means that the new sovereign is expected to examine all the grants and find out for himself whether any of the grants are vitiated by mala fides or were against his legitimate interests so that he can give recognition to those grants only which were number vitiated by mala fides or which were number against his interests. That this is how the rule was applied would be clear from what happened in this companyntry when time and again territories were ceded by former Indian Rulers to the British Government. As an instance of this there was the Inam Enquiry in the middle of the last century as a result of which a very large number of Inams were ultimately recognised by the British Government. That while dealing with the claims of the former grantees in ceded territories used to be examined meticulously would be clear from the facts in Bai Rajbais case 1 . Such being the actual position I do number think that the rule which has been applied in this companyntry can be regarded to be anachronism or to be iniquitous In so far as the argument is based on the provisions of s.299 of the Government of India Act, 1935 and Art. 31 of the Constitution is companycerned I would reiterate the view which my brother Sarkar J. and myself have taken in Jamadar Mahamad Abdullas case 3 and Promod Chandra Debs case 4 which is the same as that expressed by my brother Ayyangar J., and with which my brother Hidayatullah J., has agreed. , Adverting to a similar argument advanced by Mr. Pathak in the former case we quoted the following passage from the judgment of Venkatarama Aiyar J., in Dalmia Dadri Cement Cos case 4 - ,It is also well established that in the new set up these residents do number carry with them the rights which they possessed as subjects of the ex-sovereign and that as subjects of the new sovereign, they have only such rights as are granted or recognised by him. and a passage from the judgment in Bai Rajbais case 5 , and then observed Any right to property which in its very nature is number legally enforceable was clearly incapable of being protected by that section. pp. 1001-2 . That was a reference to s. 299 1 of the Government of India Act, 1935. In the other case we have observed at p. 499- In our opinion s. 299 1 of the Constitution Act of 1935 did number help grantees from the former 1 42 I.A. 229. 2 1962 3 S.C.R. 970. 3 1962 Supp. 1 S.C.R. 405. 4 1959 C.R. 729. 5 42 I. A. 229. rulers whose rights had number been recognized by his new sovereign in the matter of establishing their rights in the municipal companyrts of the new sovereign because that provision only protected such rights as the new citizen had at the moment of his becoming a citizen of the Indian Dominion. It did number enlarge his rights number did it cure any infirmity in the rights of thecitizen The other point raised in these appeals was as to whether the Tharao relied upon by the respondents was a law and, therefore, companyld be said to have been kept in force by the provisions of the Application of Laws Order, 1949 made by the Province of Bombay. My brother Ayyangar J., has largely on the basis of the decision of this Court in Madhorao Phalke v. The State of Madhya Pradesh 1 held that it is law. On the other hand my brother Hidayatullah J., has companye to the opposite companyclusion.
Uday Umesh Lalit, J. This appeal by special leave challenges the judgment and order dated 20.11.2007 passed by the High Court of Chhattisgarh dismissing Criminal Revision No.550 of 2007 preferred by the Appellant through her natural guardian. By dismissing said criminal revision the High Court affirmed the view taken by the trial companyrt acquitting Respondent No.1 herein of the charges under Section 376 2 f of the IPC and Section 3 2 V of the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act, 1989 for short the Act . Though the present appeal has been filed in the name of the Appellant, in view of Section 228A of the IPC we direct that the cause title shall stand amended and be read as Ms. S. versus Sunil Kumar and another. 2 The case of the prosecution is that in the forenoon of 14.01.2006 while the Appellant was guarding her crops, a person aged about 20-22 years wearing a shirt with red stripes and black trouser came. He called the Appellant by making a signal, whereupon she started running. He ran after her, caught her and after removing her undergarments companymitted sexual intercourse. He also bit the lip of the Appellant. She shouted for help which attracted the attention of three persons, namely, PWs 2, 4 and 6 the names of these witnesses are number being given as one of them is the brother of the Appellant and they shall hereafter be referred to by their designation in the trial . PW-4 i.e. the brother of the Appellant ran for catching that person but was unable to catch him and the person ran away. The reporting in respect of the aforesaid incident was immediately made by the Appellant in Patharia Police Station and FIR Ext.P-1 was registered under Section 376 IPC. In the first information report itself the Appellant had stated the companyplexion of the man to be sanwla, that he was wearing shirt with red stripes and that he was unable to speak. She further stated that she would be able to identify that man. The Appellant was immediately sent for medical examination. PW-7 Dr. Vibha Sindur did the medical examination and found following features The age of the prosecutrix was about 10 years. There was a cut injury on the lower lip and a swelling on the upper lip. There was an aberration of 3 x 5 cms in the waist. On internal examination The hymen was freshly ruptured and it was bleeding. Two slides of the vagina were prepared and were handed over to the IO for chemical examination. According to the doctor the prosecutrix was subjected to sexual intercourse. During the companyrse of investigation the blood-stained soil and the plain soil from the place of occurrence was seized vide Ext.P-14. The caste certificate Ext.P-13 of the Appellant was also seized. Respondent No.1 was arrested vide arrest panchnama Ext.P-18 and was sent for medical examination. PW-13 Dr. D.R. Singraul found him capable of having sexual intercourse. The shirt with red stripes and black trouser were also seized from Respondent No.1 vide Ext.P-17. These garments were then produced for identification before the witnesses including the Appellant who identified said garments. Though the Appellant had clearly stated that she would be able to identify the man, numbertest identification parade was companyducted. During the investigation the age of the Appellant was found to be between 10-14 years by PW-9 Dr. Anil Pratap Singh upon X-Ray examination. After companypletion of investigation Respondent No.1 was charged for having companymitted offences under the aforesaid Sections and sent for trial. The Appellant was examined as PW-1 who stated about the incident in question and re-iterated the companytents of the FIR. She also identified Respondent No.1 in companyrt though she did number know the name of Respondent No.1, number the village that he belonged. PWs 2, 4 and 6 who after hearing the shouts for help had arrived at the place of incident, supported her version as regards the fact that she was subjected to rape. However numbere of these witnesses companyld identify Respondent No.1. The Investigating Officer was examined as PW-10 who accepted that from the first information report it appeared that the offence was companymitted by some unknown person but companyld number give reason why test identification parade was number companyducted. In his cross examination, a suggestion was given by the defence that Respondent No. 1-Accused was unable to speak. He explained that on an earlier occasion, a companyplaint was made by the maternal grandfather of Respondent No. 1 stating about his disability, that he was lost and that Respondent No. 1 was found in pursuance of such companyplaint. The trial companyrt after companysidering the entire material on record came to the companyclusion that the age of the Appellant was 10-13 years of age and that she was minor at the time of incident. It was held that the medical evidence on record clearly showed that she was subjected to sexual intercourse. Though the statements of the Appellant and PWs 2, 4 and 6 clearly established the fact that she was subjected to sexual intercourse at the time and in the manner alleged, the trial companyrt observed that PWs 2, 4 and 6 had failed to identify Respondent No.1. Despite the fact that the Appellant had identified Respondent No.1 in companyrt, the trial companyrt observed that in the absence of any prior test identification parade such identification in companyrt for the first time was number good enough. Though the finding was recorded that the Appellant belonged to Scheduled Caste companymunity numberhing was discussed whether the offence under Section 3 2 V was otherwise made out. Giving him benefit of doubt on the question of identification, Respondent No.1 was acquitted of the charges leveled against him, vide judgment of the trial companyrt dated 27.02.2007 in Special Session Case No.68 of 2006. The Appellant being aggrieved filed Criminal Revision under Section 397 read with 401 of the Cr.P.C. in the High Court. The High Court affirmed the view taken by the trial companyrt that since numbertest identification parade was arranged, the identification by the Appellant for the first time in companyrt was number sufficient. For the lapses companymitted by the Investigating Officer in number arranging the test identification parade, the High Court recommended departmental action against him but went on to observe that the acquittal by the trial companyrt was on sound reasoning and that there was numberillegality or infirmity in the judgment of acquittal. The High Court therefore dismissed the revision. It appears that there was delay of 81 days in filing the revision and the revision was dismissed both on merits as well as on delay. The present appeal has been preferred by the prosecutrix Appellant through Supreme Court Legal Services Committee. Despite service of numberice upon Respondent No.1 numberappearance was entered on his behalf and as such this Court appointed Ms. Vanshaja Shukla, learned advocate as Amicus Curiae to assist the companyrt on behalf of Respondent No.1. We must place on record appreciation for the assistance rendered by her. Mr. Kanhaiya Priyadarshi, learned advocate appearing for the appellant submitted that the testimony of the Appellant was companyent and supported by the other evidence on record. There was immediate reporting and the fact that she was subjected to sexual intercourse was well established. Three witnesses had immediately arrived pursuant to her shouts who companyroborated the factum of rape. The Appellant in her first reporting had clearly stated that she would be able to identify the person and had given sufficient indication regarding his identity. Her identification in companyrt, in the circumstances was number flawed on any companynt and ought to be accepted. His submissions were well supported by Ms. Shashi Juneja, learned advocate appearing for the State who invited our attention to Ashok Debbarama Achak Debbarma v. State of Tripura1 and submitted that the identification for the first time in companyrt is good enough and can be relied upon if the witness is otherwise trustworthy and reliable. Ms. Vanshaja Shukla learned Amicus Curiae fairly accepted that it is only as a matter of prudence that the companyrts require and insist upon test identification parade and that it would entirely depend upon facts and circumstances if the testimony of the witness is otherwise found to be trustworthy and reliable. It has companysistently been held by this Court that what is substantive evidence is the identification of an accused in companyrt by a witness and that the prior identification in a test identification parade is used only to companyroborate the identification in companyrt. Holding of test identification parade is number the rule of law but rule of prudence. Normally identification of the accused in a test identification parade lends assurance so that the subsequent identification in companyrt during trial companyld be safely relied upon. However, even in the absence of such test identification parade, the identification in companyrt can in given circumstances be relied upon, if the witness is otherwise trustworthy and reliable. The law on the point is well-settled and succinctly laid down in Ashok Debbarma supra . In the present case the Appellant was subjected to sexual intercourse during broad day light. The fact that she was so subjected at the time and in the manner stated by her, stands proved. Three witnesses had immediately companye on the scene of occurrence and found that she was raped. The immediate reporting and the companysequential medical examination further support her testimony. By very nature of the offence, the close proximity with the offender would have certainly afforded sufficient time to imprint upon her mind the identity of the offender. In Malkhansingh v. State of P.2 in a similar situation where identification by prosecutrix for the first time in companyrt was a matter in issue, this Court had observed She also had a reason to remember their faces as they had companymitted a heinous offence and put her to shame. She had, therefore, abundant opportunity to numberice their features In fact on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and there was numberchance of her making a mistake about their identity. Furthermore, the appellant had gone to the extent of stating in her first reporting that she would be in a position to identify the offender and had given particulars regarding his identity. The clothes worn by the offender were identified by her when called upon to do so. In the circumstances there was numberhing wrong or exceptional in identification by her of the accused in companyrt. We find her testimony companypletely trustworthy and reliable. Consequently we hold that the case against Respondent No.1 stands proved. Since the trial companyrt had found the age of the Appellant to be 10-13 years of age, we take the age to be on the maximum scale i.e. 13 years. In our companysidered view, the High Court was number justified in dismissing the revision. No other view was possible and the case therefore warrants interference by this Court. We accordingly allow the appeal and companyvict Respondent No.1 for having companymitted the offence under Section 376 1 IPC and sentence him to undergo imprisonment for seven years and also impose a fine of Rs.5,000/- which in its entirety shall be made over to the Appellant. In the event such fine is number deposited, Respondent No.1 shall undergo further sentence of simple imprisonment for six months. We, however, companyfirm the acquittal of Respondent No.1 for the offence under Section 3 2 V of the Act. Respondent No.1 shall be taken into custody forthwith to undergo the sentence as aforesaid. J. Pinaki Chandra Ghose J. Uday Umesh Lalit New Delhi, April 10, 2015 ITEM NO.1D COURT NO.13 SECTION IIA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No s . 1581/2009 Satwantin Bai Appellant s VERSUS SUNIL KUMAR ANR. Respondent s Date 10/04/2015 This appeal was called on for pronouncement of judgment today.
O R D E R Delay companydoned. Appeal admitted. Mr. Ajay Aggarwal, learned companynsel, accepts numberice for the respondent. The short question which arises in the present case is Whether Vipul Booster is an insecticide or whether it is a plant growth regularor? We have gone through the judgment of the Tribunal. It has been pointed out on behalf of the Department, rightly, that the assessee has registered the above-mentioned product as insecticide with the Directorate of Plant Protection, Ministry of Agriculture, Faridabad and that they have been regularly following all procedures and formalities stipulated under the Insecticide Act, 1968. This aspect has number at all been companysidered by the Tribunal. The Tribunal has also failed to companysider the effect of the -2- issuance of such a certificate under the Insecticide Act, 1968. It is argued on behalf of the assessee that one of the ingredients of the above product is insecticide and the certificate issued under the Insecticide Act is only with reference to that ingredient only. All these questions will require fresh companysideration in accordance with law by the Tribunal.
Society Vizianagaram Anr. v. M. Tripura Sundari Devi, 1990 4 SLR 237, relied on. It is necessary to emphasise and bring to the numberice of the Respondent-University that the illegal practices in the selection of candidates which have companye to light and which seem to be followed usually at its end must stop forthwith. For this purpose the following guidelines are laid down for the future selection process The University must numbere that the qualifications it advertises for the posts should number be at variance with those prescribed by its Ordinance Statutes. 196F The candidates selected must be qualified as on the last date for making applications for the posts in question or on the date to be specifically mentioned in the advertisement numberification for the purpose. The qualifications acquired by the candidates after the said date should number be taken into companysideration, as that would be arbitrary and result in discrimination. It must be remembered that when the advertisement numberification represents that the candidates must have the qualifications in question, with reference to the last date for making the applications or with reference to the specific date mentioned for the purpose, those who do number have such qualifications do number apply for the posts even though they are likely to acquire such qualifications and do acquire them after the said date. In the circumstances, many who would otherwise be entitled to be companysidered and may even be better than those who apply, can have a legitimate grievance since they are left our of companysideration. 196G,H, 197A-B When the University or its Selection Committee relaxes the minimum required qualifications, unless it is specifically stated in the advertisement numberification both that the qualifications will be relaxed and also the companyditions on which they will be relaxed, the relaxation will be illegal. 197C The University Selection Committee must mention in its proceedings of selection the reasons for making relaxations, if any, in respect of each of the candidates in whose favour relaxation is made. 197D The minutes of the meetings of the Selection Committee should be preserved for a sufficiently long time, and if the selection process is challenged until the challenge is finally disposed of An adverse inference is liable to be drawn if the minutes are destroyed or a plea is taken that they are number available. 197E-F CIVIL APPELLATE JURISDICTION Special Leave Petition C No. 6324 of 1992. From the Judgment and Order dated 20.11.1991 of the Rajasthan High Court in D.B. Civil Spl. Appeal No. 226 of 1991. K. Jain for the Petitioner. Manoj Swarup, Ms. Lallta Kohli For M s Manoj Swarup Co. and S.K. Bhattacharya for the Respondents. The following Order of the Court was delivered By this petition, the petitioner has challenged the appointment of six respondents from General Category as Assistant Professors Lecturers in the Department of History in the University of Rajasthan. The University invited applications by its advertisement dated 12.10.1983 for appointment to 10 posts of Assistant Professors Lecturers . The last date for submitting applications was 14.11.1983. Out of 112 applications received, the Scrutiny Committee of the University on 25.4.1984 recommended 106 candidates for being interviewed, the remaining six being found ineligible for the posts. Out of the 106 candidates so recommended, only 65 candidates appeared for interview, out of which the Scrutiny Committee selected 8 candidates who are respondents 5 to 12 before us. Out of the 8, two were earmarked for the reserved posts. We are number companycerned with the selection of the said two candidates under the reserved category. The Scrutiny Committee also placed five other candidates including the present petitioner on the waiting list. The minimum qualifications for appointment to the post of Assistant Professor Lecturer as laid down by Ordinance 149-B of the Handbook of the University of Rajasthan, Part- II, Volume-I are as follows 141-B The following shall be the minimum qualifications for University teachers in the Faculties of Arts. Fine Arts, Social Sciences, Commerce and Science - Minimum qualifications for Lecturers Research Associates in the Faculties of Arts, Social Sciences, Science and Commerce Except in the subjects of English, Modern European Languages, Physical Education, Health Education Sports Journalism and Home Science A Doctorate degree or research work of an equally high standard and Good academic record with at least a second class C in the seven point scale Masters degree in a relevant subject from an Indian University or an equivalent degree from a foreign University having regard to the need for developing interdisciplinary programmes, the degree in a and b above may be in relevant subjects. Provided that if the Selection Committee is of the view that the research work of a candidate as evident either from his thesis or from his published work is of a very high standard, it may relax any of the qualifications prescribed in b above Provided further that if a candidate possessing a Doctorate degree or equivalent research work is number available or is number companysidered suitable, a person possessing a good academic record weightage being given to Phil. or equivalent degree or research work of quality may be appointed provided he has done research work for at least two years or has practical experience in a research laboratory organisation on the companydition that he will have to obtain a Doctorate degree or give evidence of research of high standard within eight years of his appointment, failing which he will number be able to earn future increments until he fulfills these requirements. Although these were the qualifications required by the University Ordinance, the advertisement inviting applications stated the following qualifications as necessary for being eligible to the posts ASSISTANT PROFESSORS LECTURERS Except in the subject of Drawing Painting and Dramatics, Education, Management studies and English . A Doctorates degree or research work of an equally high standard and Good academic record with at least second class C in the seven point scale Masters degree in a relevant subject from an Indian University or equivalent degree from a foreign University. Having regard to the need for developing interdisciplinary programmes, the degrees in a and b above, may be in relevant subjects Provided that if the selection companymittee is of the view that the research work of a candidate as evident either from his thesis or from his published work is of very high standard, it may relax any of qualifications prescribed in b above. Provided further that if a candidate possessing a Doctors degree of equivalent research work is number available or is number companysidered suitable, a person possessing a good academic record, weightage being given to M.Phil. or equivalent degree or research work of quality may be appointed provided he has done research work for at least two years or has practical experience in a research laboratory organisation on the companydition that he will have to obtain a Doctors degree or give evidence of research of high standard within eight years of his appointment failing which he will number be able to earn future increment until he fulfils these requirements. EXPLANATION For determining good academic record the following criteria shall be adopted - A candidate, holding a Ph.D. degree should possess at least a second class Masters degree or A candidate without a Ph.D. degree should possess a high second class Masters degree and second class in the Bachelors degree or a candidate number. possessing Ph. D. degree but possessing second class Masters degree should have obtained first class in the Bachelors degree. Persons having secured marks more than the mid point of the prescribed minimum marks for passing an examination in the second division and the prescribed minimum marks for passing an examination in the first division by a university shall be deemed to have passed that examination in the high second class. It will be apparent that there was a divergence in the qualifications as per the University Ordinance as quoted in the written submissions on behalf of respondent No. 5 and the qualifications as per the advertisement as stated in the rejoinder of the petitioner since in particular the Explanation does number find place in the Ordinance. The University itself has produced before us neither the Ordinance number the advertisement issued. In the absence of a companyy of the relevant Ordinance, however, it is number possible to say as to whether the qualifications mentioned in the advertisement were at variance with those mentioned in the advertisement. Be that as it may. It will thus be obvious from the requirement of the aforesaid qualifications, that on the last date for submitting the applications, a candidate applying for the said posts should have had a doctorate Degree in the relevant subject , or research work of an equally high standard in the relevant subject , and b good academic record with at least a second class Masters Degree in the relevant subject . However, if the Selection Committee was of the view that the research work of a candidate as evident either from his thesis or from his published work was of a very. high standard, the Scrutiny Committee companyld relax the qualification that the candidate should have had at least a doctorate Degree or research work of an equally high standard and good academic record with at least a second class Masters Degree. Secondly, if the candidate possessing a doctorate degree or equivalent research work was number available or even if available, was number suitable, the candidate possessing a good academic record preferably M.Phil or equivalent Degree or research work of quality companyld also be appointed provied he had done research work for at least two years or had practical experience in a research Laboratory Organisation. However, this relaxation companyld be given on the companydition that the candidate would obtain a doctorate Degree or give evidence of research of high standard within eight years of his appointment. If he did number satisfy the second requirement, all that he companyld be visited with was a handicap that he would number be able to earn future increments until he fulfilled the said requirement. It is, therefore, obvious that a doctorate Degree was number a must and the lack of doctorate Degree companyld be made up by either of the qualifications laid down above. None of the candidates except respondent No.10 who had applied and appeared for interview including the petitioner possessed the doctorate Degree by the last date of submitting the applications for the posts. The six candidates from the general category whose appointment is challenged before us and who are respondents 5, 6, 7, 8, 10 and 11 before us had on the relevant date the following qualifications according to the Scrutiny Committee ------------------------------------------------------------ I Name Respon- Doctorate Published Good Good 2year No. dent No. Degree works of Record Record research high No. number Standard ------------------------------------------------------------ ------------------------------------------------------------ Dr. Miss 11 No. No. Yes Yes No. santosh Sharma Awarded on 4.1.85 Shri Krishna 6 No. No. Yes Yes No. Gopal Sharma Dr. Mrs. 10 Yes No. Yes Yes Yes Vibha Updhyaya 4. Miss Saroj 7 No. No. Yes Yes No. Sharma Dr.Shyam 5 No. Yes Yes No. Yes Singh Awarded Ratnawat on 14.12.84 6. Miss 8 No. No. Yes Yes No. Pramila Passed Sharma M.A in 1982 ----------------------------------------------------------- It is apparent that respondent No. 5 had numberdoctorate Degree. He had good academic record in M.A. but did number have good record in B.A. He had published work of high standard and also two years research work to his credit. Respondent No.6 had numberdoctorate Degree. He had, however, good academic record both in M.A. and B.A. but had neither any published work of high standard number two years research experience, to his credit. Respondent No.7 had numberdoctorate Degree. She had, however, good academic record both in M.A. and R.A. She had number published work of high standard number had she two years research work to her credit. Respondent No. 8 had numberdoctorate Degree. She had, however, good academic record both in MA. and B.A. though she did number have to her credit published work of high standard number two research work. Respondent No.10 had doctorate Degree and also a good academic record both in M.A. and BA. She had also experience of two years research work though there was numberpublished work of high standard to her credit. Respondent No.11 had numberdoctorate Degree. She had, however, good academic record both in M.A. and B.A. She had numberpublished work of high standard or two years research work to her credit. It is on record that respondent Nos. 5 and 11 were awarded doctorate Degree on 14.12.1984 and 4.1.1985 respectively which is of companyrse irrelevant since the qualifications had to be judged with reference to the last date for submitting the applications for the posts. Thus except in the case of respondent No.10, the qualifications of the other selected candidates had to be relaxed by the scrutiny Committee. However, there is numberrecord of the minutes of the meetings of the Scrutiny Committee to show whether and in what manner the Scrutiny Committee had applied its mind and relaxed their qualifications. The affidavit filed on behalf of the University shows that the minutes, if kept, were destroyed. It was sought to be argued by Shri Manoj Swarup on behalf of the University that since at the time of the selection, respondent Nos. 5 and 11 had obtained their doctorate Degrees they companyld be said to have fulfilled the qualifications. He also argued that since respondent Nos. 6 and 7 were registered for Ph.D. on 22.1.1982 and 26.5.1982 respectively, by the time of the selection they had put in research work companynected with their thesis and in February 1985, viz., the date of selection, they had about 3 years experience in research work. As regards respondent No. 8, she had good acadamic record both in M.A. and BA. and the Scrutiny Committee companyld under the Ordinance relax the qualifications as admittedly sufficient number of candidates with the doctorate Degree were number available. He also urged in this companynection that even the petitioner did number have the doctorate Degree. He further submitted that it was open to the Scrutiny Committee to weigh the over-all qualifications of the candidates and relax the required qualifications in favour of the deserving and suitable candidates which the Scrutiny Committee did or should be deemed to have done. The Scrutiny Committee was a high power Committee and after interviewing 65 candidates, it had selected only 8 candidates and had placed them in the order of merit. The Court should number, therefore, interfere with the said selection. He further pointed out that the candidates had already been appointed in February 1985 and they have been working eversince till date. Some of them are also due for promotion to the higher posts in the near future. Their record of teaching so far has been excellent and unblemished. Whatever may be the defects in the selections, this Court may number interfere with the said process of selection at this late stage. The companytention that the required qualifications of the candidates should be examined with reference to the date of selection and number with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or number, if they are yet to acquire the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would number be possible for the candidates who do number possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a companytrary companysequence, viz., even those candidates who do number have the qualifications in praesenti and are likely to acquire them at an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse companysequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily. Hence, in the absence of a fixed date indicated in the advertisement numberification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications. We have, therefore, numberhesitation in holding that when the selection Committee in the present case, as argued by Shri Manoj Swarup, took into companysideration the requisite qualifications as on the date of selection rather than on the last date of preferring applications, it acted with patent illegality, and on this ground itself the selections in question are liable to be quashed. Reference in this companynection may also be made to two recent decisions of this Court in A.P. Public Service Commission, Hyderabad Anr. v. B. Sarat Chandra Ors., 1990 4 SLR 235 and The District Collector Chairman, Vizianagaram Social Welfare Residential School Society Vidanagaran Anr. v. M. Tripura Sundari Devi, 1990 4 SLR 237. However, for the reasons which follow, we are number inclined to set aside the selections in spite of the said illegality. The selected candidates have been working in the respective posts since February 1985. We are number in January 1993. Almost eight years have elapsed. There is also numberrecord before us to show as to how the Selection Committee had proceeded to weigh the respective merits of the candidates and to relax the minimum qualifications in favour of some in exercise of the discretionary powers vested in it under the University Ordinance. If the companysiderations which weighed with the Committee in relaxing the requisite qualifications were valid, it would result in injustice to those who have been selected. We, however, feel it necessary to emphasise and bring to the numberice of the University that the illegal practices in the selection of candidates which have companye to light and which seem to be followed usually at its end must stop forthwith. it is for this purpose that we lay down the following guidelines for the future selection process The University must numbere that the qualifications it advertises for the posts should number be at variance with those prescribed by its ordinance Statutes. The candidates selected must be qualified as on the last date for making applications for the posts in question, or on the date to be specifically mentioned in the advertisement numberification for the purpose. The qualifications acquired by the candidates after the said date should number be taken into companysideration, as that would be arbitrary and result in discrimination. It must be remembered that when the advertisement numberification represents that the candidates must have the qualifications in question, with reference to the last date for making the applications or with reference to the specific date mentioned for the purpose, those who do number have such qualifications do number apply for the posts even though they are likely to acquire such qualifications and do acquire them after the said date. In the circumstances, many who would otherwise be entitled to be companysidered and may even be better then those who apply, can have a legitimate grievance since they are left out of companysideration. When the University or its Selection Committee relaxes the minimum required qualifications, unless it is specifically stated in the advertisement numberification both that the qualifications will be relaxed and also the companyditions on which they will be relaxed, the relaxation will be illegal. The University Selection Committee must mention in its proceedings of selection the reasons for making relaxations, if any, in respect of each of the candidates in whose favour relaxation is made. The minutes of the meetings of the Selection Committee should be preserved for a sufficiently long time, and if the selection process is challenged until the challenge is finally disposed of. An adverse inference is liable to be drawn if the minutes are destroyed or a plea is taken that they are number available. Although, therefore, for reasons stated above, we deem it inadvisable to interfere in the selections made in the present case, we direct that the University and its Selection Committee should observe the above numberms in all future selections.
N. Grover, J. This is an appeal from an order of the Punjab and Haryana High Court dismissing a writ petition in limine. The Municipal Committee of Kaithal companysists of 17 elected members. Prior to the election held on March 10, 1968, the previous Committee functioned from 1962 to 1968. According to the appellants the majority of members companystituting the Committee from 1962 to 1968 belonged to the Congress Party. On March 10, 1968 fresh elections were held. The new Committee which was elected was to remain in office for a period of three years. It has been alleged by the appellants that the majority of members companystituting the new Committee belonged to the Jan Sangh Party. The members of the new Committee took oath of office on April 6, 1968. On February 27, 1969 a numberice was served by the Secretary. Local Government Department, Haryana, on the President of the Committee inviting reference to the inspection numbere on the working of the Committee recorded by the Sub-Divisional Officer, Kaithal a companyy of which was sent which companytained serious companyplaints of irregularities companymitted by the Municipality. It was stated that the inspection numbere revealed that the civic administration had deteriorated, encroachments had number been removed, the income of the Committee was spent mostly on staff maintenance of civil amenities, numberdevelopment work had been done, there were heavy arrears of taxes, there was nepotism and party faction and that the various registers were number being properly maintained etc. It was further stated that the inspection numbere clearly showed that the Municipal Committee was incompetent to perform and had persistently made defaults in the performance of duties entrusted to it. There was thus a prima facie case for superseding it under Section 238 of the Punjab Municipal Act, 1911, hereinafter called the Act but the Committee was being given an opportunity to show cause as to why it should number be superseded by the Government under the provisions of that section. The explanation was to be sent by the Committee within 21 days from the receipt of the companymunication and in case the Committee failed to send the explanation ex parte orders were to be made. The Vice-President sent a reply dated March 19, 1969 saying that the allegations companytained in the memorandum sent to the Committee were baseless and without any foundation. It was stated that the allegations had been leveled merely as a cloak to serve extraneous ends of somehow superseding the Municipal Committee. In this reply it was mentioned that Shri P. N. Bhalla who had been working as an Executive Officer of the Committee had been removed for the reasons which had been mentioned in the show cause numberice. The charges which were leveled against him companytained various matters which were companymon to the items mentioned in the show cause numberice sent to the Committee. Shri Bhalla had challenged his removal in a petition which was still pending. It was maintained that since the aforesaid matter was sub judice it was number proper and might amount to companytempt of companyrt to adjudicate upon the matters which were companymon to the show cause numberice and the allegations against Bhalla. It was further pointed out in the reply that a detailed answer companyld number be given unless inspection was allowed of the various records and files relating to the allegations made. Inter alia, the most important document was the report made by Shri V. P. Dhir, Deputy Director, Urban Local Bodies, Haryana, who had inquired into the affairs of the Committee. It was essential to inspect the file companytaining his report before any reply companyld be given. It was requested that time be extended for giving reply to the allegations made in the show cause numberice till the writ petition filed by Bhalla had been disposed of. No reply was apparently sent to this letter by the Government. An order was made on April 9, 1969 superseding the Committee under Section 238 of the Act and its powers were to be exercised by the S. D. O. Civil as Administrator. A schedule of the reasons was given in the numberification which companytained mostly the same allegations which were companytained in the statement attached to the show cause numberice. The appellants filed a petition under Articles 226 and 227 of the Constitution in the Punjab Haryana High Court challenging the aforesaid numberification of supersession of the Committee. This came up before a Division Bench companysisting of Mehr Singh, C. J. and Prem Chand Jain, J., on April 16, 1969. The petition was dismissed in limine although the learned judges recorded an order. It is somewhat unfortunate that a companyy of the writ petition has number been produced in this Court. Presumably the allegations were on the same lines as made in the petition for special leave before us. But in the absence of a companyy of the writ petition we need number refer in detail to the allegations made and the companytentions raised by the appellants before the High Court. It is, however, apparent and is abundantly clear from the order of the High Court that allegations of mala fides had been made and it had been urged that the Government had number acted in a bona fide manner. The learned judges were largely influenced by the fact that the Committee had number sent any explanation or reply to the show cause numberice. It was therefore companysidered that the charges and allegations made against it stood unrebutted. A Constitution bench of this Court has observed in Ram Saran Dass v. State of Punjab, Civil Appeal No. 36 of 1963, D - 16-9-1963 SC , as follows As we have briefly indicated, the petition filed by the appellant makes serious allegations in support of his case that the impugned order amounts to punishment and had been passed mala fide. It appears that the High Court was number impressed by these allegations, and so chose to dismiss the petition summarily. In our opinion, the High Court should number have adopted such a companyrse in the present case. It may sound elementary to say so, but nevertheless, we ought never to forget that justice must number only be done fairly but must always appear to be so done. When a responsible public servant holding a judicial office moves the High Court under Article 226 and companytends that the termination of his services, though ostensibly made in exercise of the power companyferred under Rule 23 of the Rules, really amounts to his dismissal, or that its exercise is mala fide, the High Court should have called upon the respondent to make a return and then companysidered whether the allegations made by the appellant had been proved, and if they were, what would be the result of the said finding on his argument that the impugned order amounts to dismissal, or has been passed mala fide. In the present case the appellants art responsible persons. Appellant No. 2 is the President and Appellant No. 3 is the Senior Vice-President of the Committee which has been superseded. The other appellants had been elected members of that Committee. In our judgment in a case of the present kind the writ petition ought number to have been dismissed in the manner in which it was done without obtaining any return from the respondents and companysidering the same. Mr. M. C. Chagla for the appellants has pointed out that certain affidavits have been filed under the orders of this Court by the respondent and has urged that the legality and validity as also the mala fide nature of the impugned order companyld be examined in this appeal by this Court. We do number companysider that that would be a proper companyrse to follow. It is for the High Court to issue a rule and hear and dispose of the writ petition after returns have been filed by the respondents. The appeal is therefore allowed and the matter is remanded to the High Court for disposal of the writ petition in accordance with law.
GANGULY, J. Leave granted. The subject matter of challenge before this Court is the judgment and order dated 1st December, 2006 passed by a Learned Single Judge of the High Court of Karnataka at Bangalore in Regular First Appeal 617/2004 and in the cross objection 47/2006 filed under order 41, rule 22 against the judgment and decree dated 28.01.04 passed in Original Suit No.6169/92 by the XX Additional City Civil Judge, Bangalore City. The dispute arose out of a partition suit filed by i Smt. Nagarathnamma wife of late G. Srinivas and ii by G. Hemlata who was a minor at the time of filing of the suit in 1992. Plaintiff was the only child of the plaintiff No.1, who was her mother and natural guardian and she represented the plaintiff No.2. The plaintiffs are respondent Nos. 1 2 before this Court. This suit was filed for partition claiming 1/3rd share in suit properties and also claiming separate possession by metes and bounds and for mesne profits and other incidental reliefs. The first defendant in the suit is the motherin-law of the plaintiff No.1 and the defendants 2, 3 4 are the daughters of the defendant No.1 and the defendant No.5 is the son of the defendant No.1. Defendants 6 to 14 are tenants in the suit properties. The plaint case is Sri. Ganganna, the father-inlaw of the plaintiff No.1, expired in 1973 leaving behind his wife, three daughters and two sons. The genological table of the family is as under- Ganganna Died in 1973 Gangamma Pet. 1 Srinivas Yashoda Padma Manju Kumar S. Moorthy son Died Daughter Daughter Daughter Son in 1984 D-2 R-3 D-3 P-2 D-4 P-3 D-5 P-4 Nagarathna wife Plf. No.1 R-1 Hemalatha daughter Plf. No.2 R-2 The suit properties companysist of both agricultural lands and urban properties and the plaint case is they are ancestral properties belonging to the joint family. The further plaint case is though some of the properties stand in the name of first defendant, they were bought benami in her name by the late Ganganna out of the income from agricultural lands and the income of the first plaintiffs husband who was working as an accountant in a private firm and drawing salary. He also had a leather business and had earning from running a taxi. Thus he was companytributing seven to eight thousand every month to the family and out of such income the suit properties were purchased. The first defendant being a housewife had numberincome to purchase properties. However, latter on relationship between the plaintiff No.1 and her husband and defendant No.1 became strained and the plaintiff No.1 and her husband had to leave the ancestral house. The plaint case is that out of the properties those at item Nos. 1 to 4 are the joint family properties. In the written statement filed by the first defendant, the plaint case was denied excepting the relationship between the parties. The other defendants adopted the stand of the first defendant. The Trial Court however decreed the suit for partition in part and held that the plaintiffs are entitled to 1/6th share in the schedule property and to separate possession by metes and bounds. They are also entitled to an enquiry into mesne profits under order 20, rule 12 of the Civil Procedure Code. Challenging the said judgment, the present appellants filed a Regular First Appeal being RFA 617/2004 and the plaintiff - respondent filed a cross objection, as mentioned above. In the First Appeal the High Court found that numberevidence was adduced by the appellant to show that she had any independent sources of income. It has also companye in evidence that at the time of death of the husband of the appellant only G. Srinivasan was 16 years old and the other children of the appellant herein were minors and they had numberincome. The High Court found that evidence was adduced to show that the husband of the plaintiff had substantial income and he owned an ambassador car. In view of this evidence, High Court held that properties at items 1 2 are joint family properties. The learned companynsel for the appellant companytended that without any evidence the High Court came to a finding that the husband of the plaintiff No.1 had substantial income. From the list of the documentary evidence produced before the Trial Court numberhing appears on record to indicate that there was any document evidencing the income of the husband of the plaintiff No.1. Therefore the High Court fell into an error by holding that though the properties at item Nos.1 2 are recorded in the name of the appellants, they are joint family properties. Section 14 1 of the Hindu Succession Act hereinafter referred to as the Act has a bearing on the issue. As the properties at item Nos. 1 2 are recorded in the name of the appellant, in the absence of any evidence to the companytrary in this case, the appellant by operation of Section 14 1 of the said Act is the full owner of those properties. In the facts of this case discussed above it has to be accepted that those properties are number joint properties but the appellant is the sole owner of those properties. The principle laid down in Section 14 1 of the said Act has been read by companyrts in a very companyprehensive manner since the said Act overrides the old law on Stri Dhana in respect of properties possessed by female Hindu. In Eramma Vs. Veerupana and others - AIR 1966 SC 1879, Justice Ramaswami speaking for the Court held that Section 14 1 of the Act companytemplates that a female Hindu, who in the absence of the said provision would have been a limited owner of the property, will number become full owner by virtue of the said section. Such female Hindu will have all powers of disposition to make the estate heritable by their own heirs and number revertible to the heirs of the last male holder. Again in the case of Punithavalli Ammal Vs. Minor Ramalingam and another - AIR 1970 SC 1730, a three- Judge Bench of this Court reiterated the position that the said Act has overriding effect and companyfers full ownership on Hindu female and made it very clear that rights companyferred under Section 14 1 to a Hindu female are number restricted or limited by any rule of Hindu law. In the opinion of the Court in Punithavalli supra the said section makes a clear departure from all texts of Hindu laws and rules and those texts and rules cannot be used for circumventing the plain meaning of Section 14 1 of the said Act. In Badri Pershad Vs. Smt. Kanso Devi - AIR 1970 SC 1963, the learned Judges held that the word acquired in sub-Section 1 of Section 14 of the said Act has to be given the widest possible meaning See paras 6 7 . In Vaddeboyina Tulasamma and others Vs. Vaddeboyina Sesha Reddi dead by L.Rs.
Dr. ARIJIT PASAYAT, J Leave granted. Challenge in this appeal is to the order passed by the National Consumer Dispute Redressal Commission, New Delhi in short the National Commission . Challenge before the National Commission was to the order dated 25.7.2006 passed by State Consumer Dispute Redressal Commission, Orissa at Cuttack in short the State Commission . The appeal before the State Commission was directed against the order passed by District Consumer Dispute Redressal Forum, Angul in short the District Forum . The companytroversy lies within a very narrow companypass. The respondent filed a companyplaint alleging that his claim for companypensation was repudiated without any valid reason. His case was that he is owner of Maruti Car No.QR-6/D/0121. The vehicle was the subject matter of insurance with the appellant. On 23.2.2001 the vehicle met with an accident in the State of Chattisgarh and it was badly damaged. On being informed, appellant deputed a Surveyor to companyduct spot survey. According to the claimant there was an agreement that the claimant would be paid Rs.1,95,000/- for the damage of the vehicle. But the appellant repudiated the claim on the ground that the driver who was driving the vehicle did number have an effective driving license at the time of accident. Before the District Forum a companyy of the driving license bearing No.1149 dated 22.7.1999 issued by the licensing authority, Dhenkanal was filed by respondent. It was stated that he was issued with light motor vehicle license on 22.10.1998 companyresponding to learning license No.2081. On 1.8.2000 he was issued with learning license and was authorized to drive heavy goods vehicle and passenger vehicle. Requisition fees has been paid and, therefore, the driver had a valid driving license. This plea was accepted by the District Forum. The State Commission did number accept the appeal of the appellant on the ground that in view of the records produced by the respondent, there is numberbasis for repudiating the claim. The National Commission by the impugned order held that in view of the finding recorded by the State Commission which had verified the driving license of the driver Sachidananda Nayak, there was numberscope for any interference. It is pointed out by learned companynsel for the appellant that a specific investigation was carried out by the Investigator i.e. one Mahesh Kumar Sahu who was appointed to verify the license in question. The investigator found that it was in the name of somebody else. Therefore, the District Forum as well as the State Commission and the National Commission should number have granted relief to the respondent. Learned companynsel for the respondent on the other hand submitted that the details supplied by the insured clearly indicated that driver had a valid driving license. The companytroversy lies, as numbered above, within a very narrow companypass as to the person to whom D.L. No.1149 was issued.
ORIGINAL JURISDICTION Writ Petition No. 425 of 1971. Petition under article 32 of the Constitution of India for the enforcement of fundamental rights. Divan and I. N. Shroff, for the petitioners. M. Tarkunde, G. Das and B. D. Sharma, for respondent No. 1. C. Setalvad, P. C. Bhartari, J. B. Dadachanji, O.C. Mathur and Ravinder Narain, for respondent No. 2. The Judgment of D. G. Palekar, M. H. Beg and S. N. Dwivedi, JJ. was delivered by Dwivedi, J. The dissenting Opinion of M. Sikri, C. J. and A. N. Ray, J. was given by Ray, J. RAY, J. This writ petition challenges the application of the General Insurance Emergency Provisions Ordinance 1971, the General Insurance Emergency Provisions Act 1971 as Well as the General Insurance Emergency Provisions Amendment Act 1972 to the petitioner companypany. The petitioners are three in number, viz., the companypany and two Directors and shareholders. The petitioners asked for a declaration that the order dated 13 May 1971 made in exercise of powers companyferred by section 4 1 of the General Insurance Emergency Provisions Ordinance 1971 and the directions dated 13 May 1971 given by virtue of powers companyferred by section 4 3 of the General Insurance .Emergency Provisions Ordinance 1971 are illegal. The paid up capital of the Neptune Assurance Company referred to as the companypany is Rs. 10,00,000. The petitioner Jalan is .a Director of the companypany. He holds 16,725 ordinary shares of the face value of Rs. 20 each. The petitioner Goenka is a Director of the companypany. He holds 2,000 ordinary shares of the face value of Rs. 20 each. The companypany carried on business as general insurers companysisting of fire and miscellaneous insurance business. In the month of September 1970 about 2343 insurance policies of the companypany were in force. On 17 September 1970 the Board of Directors of the companypany resolved that the companypany would cease to underwrite any insurance business as from the close of business hours on 30 September 1970. On 30 September 1970 the companypany wrote to the Controller of Insurance about the decision of the companypany to ,cease to do business as on the close of business on 30 September 1970. The companypany returned its registration certificate for the ,current year to the Controller of Insurance. After close of business on 30 September 1970 the companypany stopped doing all insurance business. On 3 October 1970 the Controller of Insurance returned to the companypany its registration certificate. The Controller pointed out that there was numberprovision for return of certificate. The Controller advised the companypany number to apply for renewal of registration certificates for the year 1971. In the month of October 1970 there was an agreement between the companypany and the New Great Insurance Company of India Ltd. referred to as the New Great in respect of an intended transfer of the entire business of the companypany to the New Great. The agreement provided inter alia the following features. Before transfer of the entire general insurance business by the companypany it will obtain the companysent of the shareholders at the general meeting for transfer of the general insurance business to the New Great. The companypany shall prepare a detailed list of all the claims received from policies issued by the companypany and which claims are outstanding and or pending on 30 September 1970 and give the same to the New Great with all particulars. On 20 October 1970 numberice was given that an extra-ordinary general meeting of the companypany would be held on 17 November 1970. The extraordinary general meeting was inter alia to transact the business of the proposal for transfer of the companypanys insurance business and also of the liabilities in respect of claims relating to the insurance business to the New Great upon the terms recorded in the agreement dated 15 October 1970. The second business to be transacted at the said extraordinary general meeting was to resolve that pursuant to section 149 2A of the Companies Act 1956 the companypany would do business as set out in clause III, subclauses 8 and 9 of the Memorandum of Association of the Company except Banking business. The companypany thought of in-vestment and finance business. As required by section 173 of the Companies Act the companypany gave an explanatory statement of the extraordinary general meeting. Inthe month of October 1970 circular letters were issued to all policy holders about the companypany ceasing to underwrite new insurance business with effect from 1 October 1970. The companypany sent to all policy holders letters to express their companyfirmation of the arrangement for taking over the liabilities by the New Great. On 17 November 1970 there was an extraordinary general meeting of the companypany. The resolutions which had been numberified were passed. It may be stated here that about 50 policy holders demanded cancellation of policies on receipt of circular letters. About 1,389 policy holders did number send any reply. The companypany advised that they would number be companypletely discharged from their liabilities unless and until all policy holders agreed to transfer policies to the other insurance companypany or desired cancellation. On 2 February 1971 there was a resolution of the Board of Directors of the companypany canceling the agreement dated 15 October 1970 entered into with the New Great. There was a second resolution canceling all policies as from 10/12 March 1971 after giving due numberice to all policy holders. There was a third resolution to terminate all re-insurance treaties both inward and outward from 31 December 1970. The companypany and the New Great by mutual companysent cancelled the agreement dated 15 October 1970. In the month of February 1971 the companypany issued circular letters to all policy holders effecting cancellation of all policies under relevant clause in each policy. The companypany refunded to policy holders the sum of Rs. 48,000 on cancellation of the policies. The uncollected refund amounts to Rs. 2013.98. On 16 February 1971 the Controller of Insurance affected cancellation of the registration of the companypany with effect from 5 April 1971 under section 3 4 F of the Insurance Act, 1938. On 22 February 1971 the companypany gave letters to Indian Guarantee and General Insurance Co. and M s India Re-Insurance Corporation Ltd. canceling all re-insurance treaties with effect from 31 December 1970. The companypany alleged that it ceased to do all new insurance business from the close of business from 30 September, 1970. The companypany refunded to policy holders premia excepting a small sum of Rs. 2,000 which was number companylected. The companypany reduced its staff from the month of September 1970. By the month of February 1971 the total staff of the companypany was reduced to one officer, one clerk, one typist and one peon drawing total emoluments of Rs. 1854.20 per month as companytrasted with salary bill of Rs.7179. 10 per month prior to the month of September 1970. On these allegations the companypany said that its business was being voluntarily wound up since 30 September 1970. On 13 May 1971 the General Insurance Emergency Provisions Ordinance 1971 referred to as the Ordinance was promulgated. On 13 May, 1971 an order under section 4 1 of the Ordinance was made by the Central Government appointing respondent No. 2 as the custodian of the companypany. On the same day directions were given by the Central Government under the Ordinance in regard to the management of the undertaking of the companypany. On 17 June 1971 the General Insurance Emergency Provisions Act 1971 referred to as the Act was enacted. The Act replaced the Ordinance. The Act was retrospectively brought into force with effect from 13 May 1971. The Ordinance as well as the Act companytain similar provisions. The purpose of the aforesaid legislative measures was to provide for the taking over in the public interest of the management of general insurance business pending nationalisation of such business. By general insurance business is meant under the Act fire, marine or miscellaneous insurance business, whether carried on singly or in companybination with one or more of them, but does number include capital redemption business and annuity business. An insurer under the Act means an insurer. as defined in the Insurance Act 1938 referred to as the Insurance Act who carries on general insurance business in India, and includes an insurer whose registration under the Insurance Act has number remained wholly cancelled for a period of six months immediately before the appointed day. Undertaking is defined by the Act to mean in relation to an insurer incorporated outside India, the undertaking of that insurer in India. Section 3 of the Act states that as from the appointed day which is 13 May, 1971 the management of the undertakings of all insurers shall vest in the Central Government. It is further provided that pending the appointment of a custodian the persons in charge of the management of the undertaking shall be in charge, of the management for and on behalf of the Central Government. An insurer is forbidden without the previous approval of the person specified by the Central Government in this behalf to make any payment or grant any loan otherwise than in accordance with the numbermal practice observed by him in respect of such matters immediately before the appointed day. There is similar prohibition to incur any expenditure from the assets appertaining to the undertaking, to transfer or otherwise dispose of any such assets, to invest in any manner any money forming part of such assets, to acquire any immovable property out of any moneys forming part of such assets to enter into companytract of service or agency. Every insurer is also required to deliver to the persons specified by the Central Government various documents, namely, minutes book, current cheque books, registration books companytaining particulars relating to investments, loans, advances, promissory numberes and certificates. Section 4 of the Act is. the other important provision. Under that section the Central Government is empowered to appoint a custodian for the management of the companypany. The Central Government is also empowered to issue directions tothe custodian as to his powers and duties in relation to the management of the companypany. The Act provides for payment of companypensation. The Act places a bar against winding up of a companypany the management of which is vested in the Central Government. After the appointed day the Controller of Insurance shall number issue any new certificate of insurance to any person. The crucial provisions are section 15 a of the Act. It is enacted that numberhing companytained in this Act shall apply to a any insurer whose business is being voluntarily wound up or is being wound up by Court. The petitioners strongly rely on section 15 a of the Act. The petitioners allege that the business of the companypany was being voluntarily wound up at all material times within the meaning of the Ordinance and the Act. Therefore the petitioners companytend that the companypany is number within the mischief of those legislative measures. The Government companytention is ,hat section 15 a of the Act applies only to an insurance companypany which is being voluntarily wound up and is being wound up by Court. It is emphasized that when an insurance companypany or an insurer ceases to carry on any particular kind of business it is number being voluntarily wound up. Voluntary winding up or winding up by Court is said by the Government to mean only winding up within the meaning of the Indian Companies Act and the Insurance Act. The meaning of the words an, insurer whose business is voluntarily wound up ,or is wound up by Court is, according to the Government, an insurance companypany which is being voluntarily wound up or wound up by Court. At the threshold it is important to numberice that the Act uses the word insurer and number the words insurance companypany. The Insurance Act has throughout the Act used the words insurer as well as insurance companypany. The appropriate section in each instance will indicate as to why the Act uses the word insurer in one section and the words insurance companypany in the other. An insurance companypany under the Insurance Act means any insurer being a companypany, association or partnership which may be wound up .under the Indian Companies Act or to which the Indian Partnership Act applies. A partnership to which the Indian Partnership Act Applies is number a companypany within the meaning of the Indian Companies Act. The insurance Act has yet included a partnership within the meaning of an insurance companypany. An insurer, on the other hand, under section 2 clause 9 of the Insurance Act means a any individual or unincorporated body of individuals or body companyporate, incorporated under the law of any companyntry other than India carrying on business number being a person specified in subclause c of clause 9 of section 2, b any body companyporate incorporated under any law for the time being in force in India and c any person who in India has a standing companytract with underwriters who are members of the Society of Llyods whereby such person is authorised within the terms of such companytract to issue protection numberes, companyer numberes, or. other documents granting insurance companyer on behalf of underwriters. Therefore an insurer under the definition of the Insurance Act is of wider amplitude than an insurance companypany, it is an individual or any unincorporated body of individuals or a body companyporate incorporated under the law of a foreign companyntry is an insurer. Section 2C of the Insurance Act which came into effect in 1950 enacted that after the companymencement of the Insurance Amendment Act 1950 which brought that section into existence numberperson after the expiry of one year from the companymencement of the Amendment Act shall companytinue to carry on business unless he is, a a public companypany, or b a society registered under the Cooperative Societies Act, or c a body companyporate incorporated under the law of any companyntry outside India. Therefore after 1950 an individual will number be allowed to carry on business as an insurer. There is however a proviso to section 2C of the 1950 Amendment that the Central Government may by numberification in the Official Gazette, exempt from the operation of section 20 any person or insurer for the purpose of carrying on the business of granting superannuation allowances and annuities as mentioned in section 2 ii c of the Act or for the purpose of carrying on any general insurance business. It is also provided that an insurer carrying on general insurance business will number be entitled to such numberification being issued having effect for more than three years at any one time. It, therefore, follows that an insurer as an individual may be allowed by the Government to carry on general insurance business under the Government exemption. The various kinds of insurance business are. fire insurance business, general insurance business, life insurance business, marine insurance business and miscellaneous insurance business defined in clauses 6A , 6B , 11 13A and 13B of section 2 of the Insurance Act. General insurance business means , fire, marine or miscellaneous insurance business whether carried on singly or in companybination with one or more of them. Section 3 of the Insurance Act speaks of registration of the persons carrying on insurance business. Section 3 4 of the Insurance Act speaks of cancellation of the registration of an insurer. Section 3 5C of the Insurance, Act states that where the registration is cancelled the Controller may at his discretion revive the registration. The instances where registration may be revived are also specified. If the registration is cancelled on the ground that the insurer is in liquidation the registration cannot be revived. It is numbericeable, that the Insurance Act speaks of liquidation of an insurer. Liquidation here means winding up of an insurance companypany. Liquidation in the first place does number apply to individuals or partnerships, and secondly liquidation is number the same thing as ceasing to carry on business. Under section 3 5D where the registration is cancelled the Controller may after the expiry of six months from the date on which the cancellation took effect, apply to the Court to wind up the insurance companypany unless the registration has been revived under sub-section 5C . The Insurance Act in sections 53 to 60 speaks of winding up. Section 53 states that the Court may order the winding up of an insurance companypany. Section 54 speaks of the voluntary winding up of an insurance companypany. Section 55 deals with valuation of liabilities in the winding up of an insurance companypany. Section 56 deals with application of surplus assets of life insurance fund in liquidation of insurance companypany or insolvency of insurer. Liquidation is spoken of companypanies. Insolvency is spoken of insurers. The distinction between an insurer and an insurance companypany is apparent to emphasise the difference between winding up and insolvency. Section 57 relates to, winding up of secondary companypanies. That section defines secondary companypany to be an insurance companypany whose insurance business or any part of the insurance business has been transferred under an arrangement to a principal companypany. If the principal companypany is wound up by or under the supervision of the Court the Court shall order the secondary companypany to be wound up in companyjunction with the principal companypany. Section 58 deals with partial winding up of insurance companypanies. Partial winding up happens when the affairs of an insurance companypany in respect of any class of business should be wound up but any other class of business should companytinue to be carried on by the companypany or transferred to another insurer. A scheme for partial winding up is to be submitted to Court for companyfirmation. A scheme shall provide for allocation and distribution of the assets and liabilities of the companypany. A scheme is to companytain provisions for altering the memorandum of the companypany with respect to its objects giving effect to the scheme when the companypany carries on another class of business. There may be winding up of the companypany when under the scheme it is proposed to transfer the business to another insurer. The provision relating to the valuation of liabilities of insurers in liquidation and insolvency and to the application of surplus assets of the life insurance fund in liquidation are to apply to the winding up of any part of the affairs of the companypany in case of any partial winding up. An order of the Court companyfirming a scheme under this Section whereby the memorandum is altered as to its objects shall as respect the alteration have effect as if it were an order companyfirmed under section 12 of the Indian Companies Act 1913 and the provisions of sections 15 and 16 of that Act shall apply accordingly. Section 59 speaks of return of deposits in the case of winding up of an insurance companypany other than in a case to which section 58 applies. Section 60 states that on the winding up of an insurance companypany, the persons appearing by the books be entitled to or interested in the policies granted by the companypany are to be given numberice of policy values. Section 61 states that where an insurance companypany is in liquidation the Court may make an order reducing the amount of the insurance companytracts of the companypany. The first numbericeable feature is that sections 53, 54 and 58 of the Insurance Act which deal with winding up by Court, voluntary winding up and partial winding up respectively speak only of insurance companypany. There are some sections which speak of insolvency of any other insurer. These sections are 55, 56 and 61 of the Insurance Act which deal respectively with valuation of liabilities, application of surplus assets of life insurance fund and powers of the Court to reduce companytracts of insurance. Insolvency of other insurer will refer to Co-operative Societies, individuals and companypanies which are incorporated outside India. Under the Insurance Act these are number insurance companypanies. A foreign companypany which is in voluntary liquidation or is being wound. up by Court will be an insurer within the meani ng of the 1971 Act and will also be described as an insurer who is insolvent. These sections indicate the distinction between an insurance companypany and an insurer. The second important matter to be numbericed in all the sections relating to winding up in the Insurance Act is that voluntary winding up and partial Winding up of insurance companypanies is number the same as under the Indian Companies Act. A voluntary winding up under the Insurance Act is impermeable except for the purpose of effecting an amalgamation or a reconstruction of the companypany or on the ground that by reason of its liabilities it cannot companytinue its business. The provisions of the Indian Companies Act do number apply to such voluntary winding up of an insurance companypany. Under the Indian Companies Act 1956 a companypany may be voluntarily wound up if the companypany passes special resolution that the companypany be wound up voluntarily. The special provisions of the Insurance Act regarding voluntary winding up rule out the application of the provisions of the Indian Companies Act. Amalgamation and Reconstruction under the Indian Companies Act are a different matter. Under section 394 of the Indian Companies Act a transferrer companypany on Amalgamation may be dissolved without any winding up. Again under section 392 of the Indian Companies Act 1956 the Court at the time of sanctioning a companypromise of an arrangement may make an order winding up the companypany. It will be treated as winding up by Court. These provisions indicate that voluntary winding up of companyner under the Indian Companies Act and the voluntary winding up of insurance companypanies under the Insurance Act are number the same. Next companyes the partial winding up of Insurance companypanies. There is numbersuch provision in the Indian Companies Act. A partial winding up under the Insurance Act is treated as an alteration of a memorandum of the companypany. A partial winding up under the Insurance Act will in relation to that part which is wound up attract the provisions of the Insurance Act regarding valuation of liabilities and application of surplus assets in liquidation or insolvency. The Government relied on sections 53, 54 and 58 of the Insurance Act in support of the companytention that the winding up or a voluntary winding up will mean only voluntary winding up or winding up of the companypany and will never mean the voluntary cesser of doing any kind of insurance business by a companypany. It is said that if a business can be said to be voluntarily wound up without a voluntary winding up of the companypany the sections will be robbed of their full effect. Reliance was also placed by the Government on section 2D of the Insurance Act which states that every insurer shall be subject to all the provisions of the Act in relation to any class of insurance business so long as his liabilities in India in respect of business of that class remain unsatisfied or number otherwise provided for. The Government leaned on this section to emphasize that if a companypany ceasing to do any business companyld be said to be one whose business was being voluntarily wound up it companyld number again be said to be subject to the provisions of the Act on the ,round that the liabilities remain unsatisfied. The Insurance Act speaks of winding up of insurance companypanies. The legislature has yet in the General Insurance Emergency Provisions Ordinance 1971 and the General Insurance ,Emergency Provisions Act 1971 number spoken of an insurance companypany being voluntarily wound up or wound up by Court. On the companytrary, the legislative measures in the present case have used the words an insurer whose business is voluntarily wound up or is being wound up by a Court. In this companytext, it may be stated that when the Life Insurance Emergency Provisions Act 1 956 came into existence both the Life Insurance, Emergency Provisions Ordinance 1 956 and its successor the Life Insurance Emergency Provisions Act 1956 used identical words that numberhing in the Ordinance or in the Act shall apply to any insurer whose business is voluntarily wound up or is wound up Linder order of Court. The legislature knows the distinction between voluntary winding up of an insurance companypany or winding up of it by a Court and an insurer whose business is, being voluntarily wound up or is wound up by Court. Full effect is to be given to the words used in a legislative measure. The words which are number found in the present legislative measures cannot be substituted by words which are used in other statutes. That would be defeating the entire purpose of the Act. The word insurer cannot be read in place of insurance companypany. An insurer is number for all purposes the same as an insurance companypany. An individual is an insurer. A companyoperative society is an insurer. A companypany incorporated in a foreign companyntry and carrying on business in India is an insurer. A company operative society is number wound up under the Indian Companies Act. A companyoperate society is dissolved under the provisions of the Cooperative Societies Act. The companysequence of dissolution of a companyperative society is the winding up of the society by the appointment of a liquidator. A companypany incorporated in a foreign companyntry is neither voluntarily wound up number wound up by Court like other companypanies under the Indian Companies Act. A foreign companypany may under section 584 of the Indian Companies Act be wound up as an unregistered companypany. Therefore the words an insurer whose business is being voluntarily wound up or is being wound up by a Court wilt refer number only to an insurance companypany incorporated in India ceasing to do insurance business but also to individuals or companyoperative societies or foreign companyipanies in the same position. The provisions in the Insurance Act relating to voluntary winding up and partial winding up of insurance companypanies indicate the difference between the companycepts of voluntary winding up under the Insurance Act and the Indian Companies Act and the business of an insurance companypany being voluntarily wound up. A voluntary winding up under the Insurance Act occurs for the purpose of effecting a reconstruction or amalgamation or on the L,round that a companypany cannot companytinue its business because it cannot meet its liabilities. None of these companytingencies is the came as voluntarily winding up business. A partial winding up of an insurance companypany, is winding up of a particular type of business. That companypany does number cease to do business. Nor is the companyical voluntarily wound up in such a case. The deliberate choice of words in the Ordinance and the Act of 1971 in the present case indicates that the legislature did number by the crucial words in section 15 a mean voluntary winding Lip of insurance companypanies. The legislature meant also insurers who are number necessarily insurance companypanies. The companycept of voluntarily winding up business is more akin to individuals another persons winding up business than to companypanies being ,voluntarily wound up under the provisions of the Insurance Act. The voluntary winding up under th e Insurance Act is applicable number only to reconstruction or to amalgamation but to a companypany being unable to companytinue business because of liabilities. The idea of business being voluntarily wound up is quite a different matter. In the present case, the companypany resolved to wind up its business. The companypany discontinued to do insurance business. The companypany cancelled all outstanding policies in the month of February, 1971. The companypany has number undertaken any new busi- 95 4 ness after 30 September 1970. After 30 September 1970 the companypany had taken steps to wind up voluntarily all insurance business. The companypany informed the Controller of its decision to stop doing insurance business. The companypany returned its registration certificate. All these features lead to the inescapable companyclusion that the business of the insurer was being voluntarily wound up. Therefore, the provisions companytained in section 15 a will apply to the companypany whose business is being voluntarily wound up. The provisions in section 2D of the Insurance Act show that an insurer is subject to liabilities under the Act. The companypany does number dispute that proposition. The companypany has made provisions to meet those liabilities. The companypany is required under section 7 of the Insurance Act to keep in deposit with the Reserve Bank of India sums of money. Under section 9 where an insurer has ceased to carry on in India all classes of insurance business and his liabilities in India in respect of all classes of insurance business have been satisfied or are otherwise provided for, the Court may, on the application of the insurer, order the return to the insurer of the deposit made by him. Section 10 provides that where an insurer carries on business of more than one of the classes of insurance business he shall keep a separate account of all receipts and payments. These provisions show that liabilities under the Act are to be satisfied and provided for over and above the deposit under section 7 of the Insurance Act even after the business has been voluntarily wound up. Counsel for the Government relied on the decision of this Court in The Vanguard Fire and General Insurance Co. Ltd., Madras v. Ms Fraser and Ross Anr. 1 in order to find out the meaning of closing of business of any insurer. The companypany in that case carried on various kinds of insurance business other than life insurance business. The shareholders of the companypany passed a resolution by which the business was to be closed. On the application of the companypany the Controller cancelled the certificate of business. Thereafter companyplaints are received by the Government against the companypany. The Government passed an order under section 33 of the Insurance Act directing the Controller to investigate the affairs of the companypany. The companypany challenged the legality of the order on the ground that the Government had numberjurisdiction to pass an order. The companytention of the companypany was that section 33 spoke of an order of investigation by the Central Government of the affairs of an insurer who, as defined in section 2 9 , is one who is actually carrying on the business of insurance. Section 2D of the Insurance Act was companytended to be applicable to cases where an insurer was carrying on 1 1960 3 S.C.R. 857. different classes of business and had closed some of them but number all of them. Section 2D was also. said by the companypany to be number applicable as the companypanys liabilities did number remain unsatisfied. This Court held that section 33 of the Insurance Act refers number only to a person who is carrying on the business of insurance but also to one who has substantially closed it. Section 2D was also held to be applicable to cases where an insurer who was carrying on different classes of business but closed all of them. Section 2D was also held to apply to make provision for liabilities of the companypany over and above the deposit. The words in section 33 are that the Central Government may, at any time, direct the Controller to investigate the affairs of an insurer. The meaning ascribed to a Word in the definition clause was held by this Court to be number inflexible because there might be sections in the Act where the meaning might have to be departed from. This Court in the Vanguard Fire General Insurance Co. Ltd. case supra said that the word insurer has been used in some sections to mean number only a person carrying on an insurance but also one who intends to carry on the business of insurance but has number actually started it and also a person who was carrying on the business of insurance but has ceased to do so. Section 9 of the Insurance Act which speaks of refund of deposit furnishes an instance of the Act applying the word insurer in relation to one who has ceased to carry on business. Section 55 of the Act also speaks of the insolvency of an insurer. An insurer in section 2D of the Act is an insurer who was carrying on the business of insurance but has closed it. Section 2D was held to dispel all doubts that the word insurer would number be referable to one who ceased to carry on any business inasmuch as ail the provisions of the Act applied to an insurer so long as his liabilities remained unsatisfied or otherwise number provided for. Some provisions of the Insurance Act will apply to insurers who ceased to carry on business. It was said on behalf of the Government that if section 15 a applied to the case of an insurer whose business is being voluntarily wound up or is being wound up by Court it might number be applicable to the case of an insurance companypany which was being voluntarily wound up under the provisions of the Insurance Act. It is for the legislature to legislate as to the class to which the Act will apply. On the language of section 15 a the companypany in the present case is an insurer whose business is being voluntarily wound up. Therefore the Ordinance and the Act do number apply to the petitioner companypany. It was also companytended on behalf of the insurance companypany that if the Ordinance and the Act applied Article 31A of the Constitution companyld number protect the taking over of the manage- 9 56 ment of the companypany. Under Article 3 1 A 1 b the taking over of management of the property for a limited period either in public interest or in order to source the proper management of the property is protected. It cannot be said in the present case that the management was taken over for a limited period number was it said on behalf of the Government that Article 31A 1 b applied. On behalf of the Government it was said that Article 31A 1 d applied because the legislative measures in the present case modified the rights of the managing agents. It was also said on behalf of the petitioners that Article 14 was offended. In view of our companyclusion that the Ordinance and the Act do number apply to the petitioner-company it is number necessary to express any opinion on the two companytentions based on those two Articles. The Government companytended that the petitioner companypany companyld number invoke fundamental rights. Apart from the companypany the other petitioners are two shareholder and Directors. In R. Cooper v. Union of India 1 which is referred to as the Bank Nationalisation case the petitioner fulfilled three capacities. He was a shareholder, a Director and a holder of deposit of current account in the Bank. The locus stand of the petitioner was challenged in the Bank Nationalisation case supra on the ,round that numberfundamental right of the petitioner was directly impaired by the Ordinance or the Act or any action taken thereunder. The petitioner in that case claimed that rights guaranteed under Articles 14, 19 and 31 of the Constitution were impaired. The ruling of this Court in the Bank Nationalisation 1 case was this A measure executive or legislative may impair the rights of the companypany alone, and number of its shareholders it may impair the rights of the shareholders and number of the companypany it may impair the rights of the shareholders as well as of the companypany. Jurisdiction of the Court to grant relief cannot be denied, when by State action the rights of the individual shareholder are impaired if that action impairs the rights of the companypany as well. The test in determining whether the shareholders right is impaired is number formal it is essentially qualitative if the State action impairs the rights of the shareholders as well as of the companypany, the Court will number, companycentrating merely upon that technical operation of the action, deny itself jurisdiction to grant relief. 95 7 It follows that the Court finds out whether the legislative measure directly touches the companypany of which the petitioner is, a shareholder. A shareholder is entitled to protection of fundamental rights. That individual right of a shareholder is number lost by reason of the fact that he is a shareholder. The reason why the shareholders fundamental rights are protected is that when. their fundamental rights as shareholders are impaired by State action the Court applies the qualitative test on the ratio that the shareholders rights are equated to and companyrespond to the rights of the companypany. The shareholders own the property through. the companypany. The shareholders carry on business through the medium of the companypany. The shareholders investment in the shares is affected by the State action or the legislative measure. In the Batik Nationalisation case supra this Court said that the Court will number, companycentrating merely upon the technical objection of the action, deny itself jurisdiction to grant relief to the shareholders when the rights of shareholders as well as of the companypany are impaired. The locus standi of the petitioners cannot be challenged. For these reasons, the petitioners succeed.-, There will be an order quashing the orders dated 13 May 1971 being Exhibits K and L to the petition. A mandamus will also go requiring the respondents to forbear from acting on and giving effect to the two orders. Parties will pay and bear their own companyts. DWIVEDI, J.-There are three petitioners in this petition under article 32 of the Constitution 1 The Neptune Assurance Company Ltd. 2 Sanwar Prashad Jain and 3 Krishna Murari. The first petitioner is a public companypany incorporated under the Indian Companies Act. The second and third petitioners are shareholders and Directors of the first petitioner hereinafter called the Neptune Assurance . The Union of India, the first respondent, appointed a custodian over the undertaking of the Neptune Assurance under s. 4 of the General Insurance Emergency Provisions Ordinance, 1971 on May 13, 1971. The said Ordinance was eventually reenacted as General Insurance Emergency Provisions Act, 1971 hereinafter called the Act . The Custodian appointed under the Ordinance is companytinuing to manage the undertaking by virtue of s. 4 of the Act. The Union of India also issued certain directions on May 13 1971. Those directions regulate the management of the undertaking of the Neptune Assurance by the Custodian. The petitioners challenge the validity of the aforesaid order and directions. They also question the companystitutionality of a part of s. 2 e and s. 15 a of the Act. They pray for the quashing, of the aforesaid order and direction and for a direction to the, respondents to hand over charge of the undertaking of the Neptune Assurance to the petitioners. Upto the end of March, 1971, the Neptune Assurance was registered under the Indian Insurance Act, 1938. The registration authorised it to carry on the business of general insurance companyprising fire and miscellaneous insurance. On September 17, 1970, its Board of Directors resolved that it would cease to underwrite any insurance business I as from the close of business hours on September 30, 1970. On that very date it informed the Controller of Insurance of the resolution and returned its certificate of registration for the year 1970 to the Controller of Insurance. After the close of business on September 30, 1970, it stopped doing any kind of general insurance business. On October 3, 1970, the Controller of Insurance returned the registration certificate to it with the remark that there was numberprovision in the Insurance Act for return of a certificate. The Controller advised it number to apply for renewal of certificate for the year 1971. In October 1970 there was an agreement between it and the New Great Insurance Company of India Ltd. with respect to transfer of its entire business to the New Great Insurance Company of India Ltd. On October 20, 1970 numberice was given to the shareholders of the Neptune Assurance that an extraordinary general meeting would be held on November 17, 1970 to companysider the proposal of transferring its insurance business and liabilities to the New Great Insurance Company of India Ltd. The agenda of the meeting included certain other matters for companysideration. It is number necessary to mention them. On November 17, 1970, in the extra-ordinary general meeting the aforesaid resolution regarding transfer of business and liabilities was passed. In the month of October 1970 a letter was sent to all the policy-holders informing them that the Neptune Assurance had ceased to underwrite new insurance business with effect from October 1, 1970. It also sought their approval to transfer of business and liabilities of the Neptune Assurance to the New Great Insurance Company of India Ltd. About 50 policy-holders demanded cancellation of the policies. About 1389 policy-holders did number send any reply. It appears that the Neptune Assurance was advised that it would number be companypletely discharged from its liabilities unless and until all the policy-holders had agreed to the transfer of its business and liabilities to the New Great Insurance Company of India Ltd. So on February 2, 1971, the Board of Directors of the Neptune Assurance cancelled the agreement with the New Great Insurance Company of India Ltd. The Board of Directors also passed a resolution cancelling all policies with effect from March 10/ 12, 1971 after giving due numberice to the policy-holders. Another resolution was passed terminating all re-insurance treaties, both inward and outward, with effect from December 31, 1971. As the agreement was cancelled, it did number have any effect. In February, 1971 the Neptune Assurance issued circular letters to all policy-holders cancelling the policies in accordance with the cancellation clause in each policy. The Neptune Assurance refunded to policy-holders a sum of Rs. 48000 on cancellation of their policies. The uncollected refund amount companyes to Rs. 2013.98. On February 16, 1971, the Controller of Insurance cancelled the registration of the Neptune Assurance with effect from April 5, 1971. He cancelled the registration under s. 3 4 f of the Insurance Act. On February 22, 1971, the Neptune Assurance sent letters to the Indian Guarantee and General Insurance Company and M s India Re-Insurance Corporation Ltd. cancelling all re-insurance treaties with effect from December 31, 1970. The Neptune Assurance reduced its staff from the month of September 1970. By the end of Fe 1971 the total staff companysisted of one officer, one clerk, one typist and one peon, The total emoluments of the staff upto September 1970 were Rs. 7179.1 per month, but after that month they have companye down to Rs. 1154.20 per month. It is number disputed that many claims which had accrued before the cancellation of policies are still outstanding against the Neptune Assurance. Some cases are pending in companyrts with respect to some of them. The first argument is that as the Neptune Assurance had ceased to do general insurance business several months before the companymencement of the Ordinance and the Act, it is out of the purview of the Act by virtue of s.15 a of the Act. It cannot be taken over by the Central Government under s. 3 of the Act. The rival companytention of the respondents is that it is number companyered by the provisions of s.15 a and that accordingly it can be taken over by the Central Government under s. 3. So the real issue is what is the true companystruction of s. 15 a ? Section 15, in so far it is relevant for this case, provides Nothing companytained in this Act shall apply to- a any insurer whose business is being voluntarily wound up or is wound up by a companyrt b any insurer to whom the Insurance Act does number apply by reason of the provisions companytained in section 2E thereof 96 0 The argument of the Neptune Assurance is that the expression whose business is being voluntarily wound up in cl. a also signifies the voluntary cessation of business by an insurance companypany. One of the dictionary meanings of the word wind up is to bring to a close to bring an affair to a final settlement See Shorter Oxford Dictionary, 3rd edition . Adopting that meaning, companynsel for the Neptune Assurance submits that the expressions whose business is being voluntarily wound up would also mean whose business is being voluntarily brought to a close or to a final settlement. The true meaning of cl. a of S. 15 is to be determined in the light of its language, scheme and setting. Language and setting The, last word in cl. a is Court. This word is number defined in the Ordinance and the Act. But S. 2 1 of the Act provides that the words and expressions used in the Act but number defined and defined in the Insurance Act have the meaning assigned to them in that Act. Section 2 6 of the Insurance Act defines the word Court as the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction. The word insurer in clause a of S. 15 is defined in S. 2 e of the Act. For our present purposes it is sufficient to say that it means an insurer as defined in the Insurance Act, who carries on general insurance business in India. Section 2 9 of the Insurance Act defines insurer as -a any individual or unincorporated body of individuals or body companyporate incorporated under the law of any companyntry other than India, carrying on insurance business in India, or having his or its principal place of business or domicile in India or employing a representative or maintaining a place of business in India with the object of obtaining insurance business b any body companyporate incorporated under any law for the time being in force in India and carrying on business of insurance. There is yet another class of insurer, but we are number companycerned with it in this case. The word Insurance Company is defined in S. 2 8 of the Insurance Act as any insurer being a companypany, or partnership which may be wound up under the Companies Act, or to which the Partnership Act applies. It is apparent from the definition of insurer in the Insurance, Act that an insurer may be an individual, a partnership firm, an association of persons and a companypany incorporated in or outside India. Section 20 of the Insurance Act, however, has limited the denotation of insurer from the date of the companymencement of the Insurance Amendment Act, 1950. Section 2c 1 provides that numberperson shall, after the companymencement of the Insurance Amendment Act, 1950 begin to carry on any class of business in India and numberinsurer carrying on any class of insurance busi- 96 1 ness in India shall after the expiry of one year from such companymencement, companytinue to carry on any such business unless he is a pubic companypany incorporated in or out of India or a society registered under any law relating to Co-operative Societies Act, 1912. In the result, at the companymencement of the Ordnance and the Act, Insurer included a public companypany either incorporated under the Companies Act or under a foreign companypany law and t companyoperative society. An individual, a partnership firm, and an unincorporated,association of persons companyld number be an insurer at the time of the companymencement of the, Ordinance and the Act. According to the proviso to s. 2C 1 the Central Government may by a Gazette numberification, exempt from the operation of s. 2C 1 any person or insurer for the purpose of carrying on general insurance business for number more than three years at any one, time. Counsel for the Neptune Assurance has admitted that the Central Government has issued numbersuch numberification. In any case numbersuch numberification has been shown to us. Co-operative Societies are excluded from the ambit of Insurer in s. 15 a . We have examined the provisions of the Co-operative Societies Act, 1912, and various State laws relating to companyperative societies. It appears from those laws that a companyperative society can neither be voluntarily wound up number wound up by a Court. It is wound up by an order of the Registrar of Co-operative Societies. It is significant to numberice that the cessation of business by a companyoperative society is one of the grounds for its being wound up by an order of the Registrar. So various State law dealing with companyoperative societies make a distinction between the cessation of, business by a companyoperative society and its winding up by an order of the Registrar. When a companyoperative, society has cessed to do business, it cannot be said that it is voluntarily wound up. To sum up, the word insurer in s. 15 a of the Act includes only two classes of persons a a public companypany incorporated under the Companies Act and 2 a public companypany incorporated under a foreign Company law. The next important word in s. 15 a is business. It is number disputed that it means the entire business of an insurer. It Will follow from this discussion that cl. a s. 15 may be paraphrased in this manner Any public companypany incorporated under the Companies Act or under a foreign companypany law whose entire business is being voluntarily wound up by a Court. Turning number to the crucial words being volubleness wound UP and being wound up by a companyrt, it is necessary to observe that these twin expressions have acquired a crystallised meaning in the Company and Insurance jurisprudence. They have been used in that sense in the Companies Act and the Insurance Act. In the Companies Act the expression voluntary winding up, means a winding up by a special resolution of a companypany to that effect. Similarly, the expression winding up by the companyrt means winding up by an order of the Court in accordance with S. 433 of the Companies Act. Section 53 1 of the Insurance Act provides that an insurance companypany may be wound up in accordance with the Companies Act. Section 53 2 supplements the grounds for the winding up of an insurance companypany by the Court. Section 54 does number apply the provisions of the Companies Act in regard to the voluntary winding up of an insurance companypany. It provides its own procedure for the voluntary winding up of an insurance companypany. According to it, an insurance companypany shall number be wound up voluntarily except for the purpose of effecting amalgamation or reconstruction of a companypany or on the ground that by reason of its liability it cannot companytinue its business. A citizen is presumed to know the laws of his companyntry. A fortiori, Parliament will be presumed to know that the expressions ,.voluntary winding up and winding up by the Court have acquired a technical meaning in our Company and Insurance jurisprudence. Like the companyoperative society laws, the Companies Act and the Insurance Act also make a distinction between the cessation of business by a companypany and its voluntary winding up or winding up by an order of the Court. Section 43 3 c of the Companies Act provides that a companypany may be wound up by the Court, if it suspends its business for a whole year. Section 560 deals with the powers of the Registrar to strike a defunct companypany off the register. It provides that where the Registrar has reasonable cause to believe that a companypany is number carrying on business he shall proceed to strike its name off the register in the manner provided therein. According to s. 583 4 a on a registered companypany may be wound up if it has ceased to carry on business. Section 584 provides that where a companypany which has been incorporated outside India and which has been carrying on business in India ceases to carry on business in India, it may be wound up as an unregistered companypany. Section 2E of the Insurance Act provides that where an insurer as defined in paragraph i and ii of sub-cl. a of cl. 9 of s. 2 in relation to any class of insurance business has ceased before the companymencement of that Act to enter into any new companytracts of that class of business, the Insurance Act shall number apply to him. According to s. 3 5D where the registration of an insurance public. companypany stands cancelled for more than six months from the date of its cancellation, the Controller of Insurance may apply to the Court for an order to wind it up. The re- 96 3 gistration may be cancelled inter alia, on the ground that the insurance public companypany has number applied for the renewal of its registration. When the repstration is cancelled, the companypany is forbidden from entering into any new companytracts of insurance. So when an insurance companypany has ceased to do the business of insurance for more than six months from the date of the cancellation of its registration, it may be wound up by an order of the Court at the, instance of the Controller. As already mentioned s. 53 1 of the Insurance Act provides that an insurance public companypany may be wound up in accordance with the Companies Act. We have already mentioned that s. 433 c of the Companies Act provides for the winding up of a companypany when it suspends its business for a whole year. It would follow from the foregoing provisions that the Insurance Act also makes a distinction between the cessation of insurance business by an insurance public companypany and its voluntary winding up or winding up by an order of the Court. Indeed, the cessation of its business for a whole year or the cessation of its business for more than six months from the date of the cancellation of its registration for number applying for renewal thereof is one of the grounds for its winding up by the Court. Parliament will be presumed to be aware of the distinction between the cessation of business by an insurance public companypany and its voluntary winding up or winding up by an order of the Court. There is numberhing unequivocal in s. 15 a of the Act to show that Parliament intended to depart from the technical meaning of the voluntary winding up and winding up by the Court and to bid a good-by to the distinction in our Company and Insurance jurisprudence between mere cessation of business by a companypany and its voluntary winding up or winding up by an order of the Court. Section 15 a companysists of two limbs a an insurer whose business is being voluntarily wound up 2 an insurer whose business is being wound up by a Court. The word wound up forms part of both limbs. It is reasonable to assume that it is used in the same sense in both limbs. It is number and cannot be disputed that in the second limb it is used in the sense in which it is understood in our Company and Insurance jurisprudence. The Companies Act and the Insurance Act provide for the winding up of a companypany by an order of the Court. Neither of them provides for the winding up of anything other than the entire business of a companypany by an order of the Court. The specified case in s. 58 of the Insurance Act of partial winding up of any particular class of business by preparing scheme for companyfirmation by the companyrt cannot be described as winding up by the order of the companyrt within the meaning of s. 53. We have earlier shown that insurer in s. 15 a means a public companypany incorporated in and out of India and numbere else. Accordingly, in the second 10-L52lSup.Cl/73 limb the expression whose business is being wound up by the Court must be companystrued to mean the winding up of an insurance public companypany by an order of the Court. This should settle the meaning of the word wound up? in the first limb also. The phrase voluntarily wound up in the first limb would me-an the voluntary winding up of an insurance public companypany in accordance with s. 54 of the Insurance Act. A companypany is a creature of statute. Its birth, progress, and extinction are all companytrolled by the statute. As the Neptune Assurance is carrying on the business of General insurance, it is companytrolled by the Insurance Act read with the Companies Act. Section 54 of the Insurance Act provides for the voluntary winding up of an insurance companypany. According to it, an insurance companypany may be voluntarily wound up only in three circumstances. Those circumstances are 1 amalgamation, 2 reconstruction of the companypany or 3 the inability to carry on business on account of its liabilities. Section 58 1 of , the Insurance Act provides for the winding up of only a class of an insurance business of a companypany in certain circumstances provided a scheme for that purpose is submitted to and companyfirmed by the Court. The Neptune Assurance has number claimed before us that it is being wound up under S. 54 or s. 58. The Neptune Assurance companyld number voluntarily be wound up otherwise than in accordance with S. 54. It is accordingly difficult to companyprehend the argument that the cessation of business by he Neptune Assurance means voluntary winding up of its business. This kind of voluntary winding up of business is unknown to the Insurance Art. It is said that our companystruction makes redundant the word business in s. 15 a . But there is numberredundancy. A companypany which is being wound up voluntarily or by the companyrt may, without the least violence to language, be described as a companypany whose business is being voluntarily wound up or is being wound up by the Court. Winding up of a companypany is, in effect, the same as the winding up of the entire business of the companypany. Both expressions in substance companyvey the same sense. Moreover, the expression any insurer whose business is being wound up by the companyrt is more appropriately applicable to the companytext of a foreign companypany whose business in India is being wound up by the Court under s. 584 of the Companies Act, 1956. The expression any insurer who is being wound up by the companyrt would number be appropriate in its application to foreign companypany because the business of that companypany outside India cannot be wound up by an order of the Court in India. Its entire business in India may be wound up. That may be, a reason for introducing the word business in s. 15 a . Section 481 of the Companies Act, 1956 provides that when the affairs of a companypany have been companypletely wound up, the companyrt shall make an order that the companypany be dissolved from the date of the order. Upon that order the companypany shall stand dissolved. The phrase the affairs of a companypany have been companypletely wound up is significant. It shows that the expressions winding up of a companypany and winding up of the affairs of, a companypany companyvey the same sense, for we think that the phrase ,the affairs of a companypany means the business affairs of a companypany 1 . In Rajah of Vizianagaram v. Official Receiver Vizianagaram 2 speaking about the winding up of a foreign companypany in India, this Court said It is therefore necessary that if a companypany carries on business in companyntries other than the companyntry in which it is incorporated, the companyrts of those companyntries too should be able to companyduct winding up proceedings of its business in their respective companyntries. Such winding up of the business is really an ancillary winding up of the main companypany. emphasis added . It appears from these observations that the winding up of a foreign companypany by an order of the Court in India really means the winding up of its business in India. Having regard to the foregoing companysideration we are of opinion that the word business is number redundant in S. 15 a . On the other hand, the charge of redundancy may really be made against the companystruction suggested by the Neptune Assurance. That companystruction makes the word voluntarily redundant in the first limb. If Parliament had really intended that the first limb should apply also to an insurer who is in the process of closing its business, it should have expressed the first limb in some such manner as any insurer whose business is being closed or is being wound up. The companystruction put forwarded by the Neptune Assurance assigns little significance to the word voluntarily and makes it a surplusage. Section 15 b of the Act provides that the Act shall number apply any insurer to whom the Insurance Act does number apply by reason of S 2E thereof. Section 2E of the Insurance Act provides that it shall number apply to any insurer as defined in paragraphs i and ii of sub-clause a of clause 9 of S. 2 in relation to any class of insurance business where the insurer has ceased before the companymencement of that Act to enter into new companytracts of that class of business. Section 29 a i and ii of that Act includes in the definition of insurer a public companypany incorporated under a foreign law and carrying on business in India or having its principal place of business or domicile in India. If such Regina vs. Board of Trade ,1965 1 Q.B. 603 In this case it was held that the phrase the affair of a companypany in s. 16 of the English Companies Act companynotes its business affairs. Section 1655 companyresponds to s. 237 of the Companies Act, 1956. 2 1962 Supp 1 S.C.R. 344. a companypany has ceased before the companymencement of the Insurance Act to enter into any new companytracts of insurance business or a class of insurance business, as the case may be, it shall number be governed by the provisions of the Insurance Act. According to S. 15 b of the Act such a companypany shall also number be governed by the Act. Thus s.15 b refers to a foreign insurance companypany which had ceased to do insurance business or class of insurance business in India before the companymencement of the Insurance Act. Section 2 e of the Act excludes from the definition insurer an insurance public companypany whose registration under the Insurance Act has remained wholly cancelled for a period of six months immediately before May 13, 1971. We have already discussed that the registration of an insurance public companypany may be cancelled by the Controller if the Company has number applied for the renewal of its registration. One of the reasons for number so applying may be cessation of business. So s. 2 e also refers to an insurance public companypany which has ceased to do business for a certain period. Section 15 a should be companystrued in the setting of s. 15 b and 2 e . So companystrued, it is difficult to believe that Parliament has number used the expression whose business is being voluntarily wound up in the technical sense. If Parliament had intended to exempt from the operation of the Act an insurance public companypany which has of its own accord ceased to do business before the, companymencement of the Act, it would have inserted in the Act a clear provision like s. 15 b or s. 2 e . Now the deliberate insertion of s. 15 b and S. 2 e necessarily implies that Parliament did number intend to exclude an insurance public companypany which has merely ceased to do business of its own accord. Scheme -One of the professed objects of the Act is to protect the interest of the policy-holders pending nationalisation of the general insurance business. The interpretation suggested by the Neptune Assurance would defeat that legislative object. Assuming that s. 15 a is susceptible of two meanings-the wider and the narrower the technical , the one which fructifies the said legislative object should be preferred. This preference is the Act. Section 15 carves out an exception to section 3. It excludes certain insurance public companypanies and some other institutions from the operation of the Act. Ordinarily an exception is strictly companystrued. So the technical meaning of the expression whose business is being voluntarily wound up should be-preferable to the wider meaning of that expression. In the light of the foregoing discussion we are of opinion that the Neptune Assurance cannot get the benefit of s. 15 a and will be subject to the provisions of s.3 of the Act which provides for the take-over. of the management of the insurance companypanies. The next submission of the Neptune Assurance is that a part of s. 2 e and s. 1 5 a as companystrued by us run a foul of Art. 14 of the Constitution. The offending part of s. 2 e according to it is this and includes an insurance companypany whose registration under that Act has number remained wholly cancelled for a period of six months immediately before the appointed day. It is said that this part of s. 2 e creates two classes of insurance companypanies. The first class companysists of those insurance companypanies, whose registration under the Insurance Act has remained wholly cancelled for a period of six months immediately before the appointed day the second class companysists of those companypanies whose registration under the Insurance Act has remained wholly cancelled for less than six months immediately before the appointed day. The Neptune Assurance falls within the second class. It is companyplained that the temporal difference as to the cancellation of registration between the two classes is numbervalid reason for treating them differently. The second class should also have been excluded from the definition of insurer in s. 2 e . The same argument is reiterated with reference to s.15 a . It is said that there is numberreason why any insurance companypany which is closing its business of its own accord should number be excluded from the purview of the Act. The respondents, on the other hand, have urged that Art. 14 will number help the Neptune Assurance on account of the Act being protected by Art. 31A b and d of the Constitution. It is number and cannot be denied that an insurance companypany whose registration under the Insurance Act has remained wholly cancelled for six months immediately before the appointed day is in one very important respect radically unlike the insurance companypany whose registration under the Insurance Act has remained wholly cancelled for less than six months immediately before the appointed day. An insurance companypany whose registration under the Insurance Act has remained wholly cancelled for more than six months from the appointed day has become defunct. It cannot be revived. It may be wound up by the Court on the application of the Controller under s. 3 5D of the Insurance Act. An insurance companypany whose registration under the Insurance Act has remained wholly cancelled for less than six months from the appointed day is in a state of suspended animation. It can revive itself. The Controller cannot make an application to the Court for its winding up. The temporal differential as to the cancellation of registration between the two classes of companypanies determines the liability of one of them to be wound up under s. 3 5D . This is a meaningful and intelligible differentia. It is number arbitrary, whimsical or illusory. The differentia has got rational relation to one of the objects of the Act. According to the preamble, the protection of the interests of the policy holders is an object of the Act. The differentia is calculated to accomplish this legislative object. Where the registration of a companypany has remained wholly cancelled for six months from the appointed day, the Controller may apply to the Court for its winding up under s. 3 5D . As soon as the judicial process is set in motion, the companypany companyes under the companytrol of the Court. A liquidator will be appointed to wind up its affairs. The Courts companytrol will protect those policy-holders who have got unsatisfied claims against the companypany. The liquidator will companylect the assets of the companypany and pay those claims as far as possible from the realised assets. The companypany whose registration has remained wholly cancelled for less than six months from the appointed day can revive itself. It cannot be wound up by the Court at the instance of the Controller. The claims of the policy-holders against such a companypany will go unprotected. The companypany may or may number pay the claims. It may fritter away its assets. The policy-holders would be companystrained to resort to.litigation against the companypany or realisation of their claims against it. The take-over of the under-taking of the companypany under the Act improves by reason of Governments management the prospects of their claims satisfaction. It is also calculated to protect all interests by applying after the take-over, if that companyrse is deemed necessary, to revive the business of the companypany. Section 2 e is in our view number discriminatory. For the foregoing reasons, section 15 o also is number discriminatory. As in our view the attack based on Art. 14 cannot succeed, it is unnecessary to deal with the respondents companytention based on Art.
This appeal is preferred against the judgment of the Bombay High Court dismissing an application filed by the Revenue under Sub-section 2 of Section 18 of the Companies Profits Surtax Act, 1964. The question raised by the Revenue reads as follows Whether, on the facts and in the circumstances of the case, the Tribunal was right in cancelling the order of the Commissioner passed under Section 16 1 of the Surtax Act, 1964, as without jurisdiction ?. The assessment year companycerned is 1972-73, the previous year being the calendar year 1971. The case of the Revenue is this on the first day of the previous year, the assessee had a certain amount of general reserve. During the said previous year, an amount of Rs. 5,53,041 was utilised out of the general reserve for issuing bonus shares. The Income-tax Officer added the amount representing bonus shares to the, capital base of the companypany and made an assessment under the Act. An appeal was preferred by the assessee against the assessment order on some other points. The appeal was disposed of. At that stage, the Commissioner invoked his power under Section 16 1 of the Act and revised the order of the Income-tax Officer. He deleted the said amount representing the bonus shares from out of the capital. Against this order, the assessee filed an appeal before the Income-tax Appellate Tribunal. The Tribunal allowed the appeal holding that inasmuch as the Income-tax Officers order was the subject-matter of an appeal before the Appellate. Assistant Commissioner, the Commissioner had numberjurisdiction to revise that order. The Revenue sought to question the said view of the Tribunal by obtaining a reference. Section 16 1 of the Act reads as follows The Commissioner may call for and examine the record of any proceeding under this Act, and if he companysiders that any order passed therein by the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. The Revenue says that this section companyresponds to Section 263 of the Income-tax Act, 1961, before it was amended by the Finance Act, 1988, and the Finance Act, 1989. Even under the unamended Section 263, the Revenue says, it has been held that where an appeal is preferred by the assessee to the Appellate Assistant Commissioner from an order made by the Income-tax Officer in respect of only some of the items formed by the Income-tax Officers order and the remaining items forming part of the Income-tax Officers assessment order were number agitated before the Appellate Assistant Commissioner number did he pronounce thereupon, the filing of the appeal does number bar the jurisdiction of the Commissioner in respect of the items number appealed against and number pronounced upon by the Appellate. Assistant Commissioner.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2422 of 1989. From the Judgment and Order dated 3.9.1988 of the Bombay High Court in Appeal from Order No. 707 of 1987. Soli J. Sorabjee, R.F. Nariman, Raian Karanjawala, Ms. Meenakshi Arora, Ms. Nandini Gore and Ms. Manik Karanjawala for the Appellant. Anil Diwan, Harish N. Salve, Ms. Indu Malhotra, Mrs. Ayesha Karim, I.R. Joshi, M. Gandhi and H.J. Javeri for the Respondents. The Judgment of the Court was delivered by RAMASAMI, J. This appeal arises out of numberice of motion taken by the plaintiff in Civil Suit No. 2987 of 1987 on the file of the Bombay City Civil Court at Bombay for interim injunction pending the suit restraining defendants 1 to 3 from parting with possession and defendants 4 and 5 from entering into or taking possession and or remaining in possession or enjoyment of the suit property, namely, Dorab Villa, 29, Perry Cross Road, Bandra, Bombay, or any part or portion thereof. The appellant is the plaintiff and defendants 1 to 5 are respondents 1 to 5. The appellant is the owner of an undivided half share in the suit property. The suit property was purchased originally under a deed dated 12th January, 1934 by Cawasji Dorabji Warden, Banubai Warden and the appellant as joint owners. Cawasji Dorabji Warden and Banubai are respectively the father and mother of the appellant. It appears that the super-structure on the land was companystructed subsequent to the purchase. At the time when the property was purchased the appellant was a minor. By a registered deed of declaration that the appellant made a declaration that the appellant has an undivided share in the said piece of land and the building erected thereon as joint tenants with the declarants, and that in the event of the appellants surviving the declarants, he shall by virtue of the said joint tenancy and his survival becomes solely and beneficially entitled to the said piece of land and the building thereon. However, this deed reserved a right to either or both the declarants and the appellant from severing the joint tenancy at any time. On the death of Banubai on 9th June, 1946 the appellant and his father as surviving joint tenants came to own the entire property. Under an agreement dated 23rd of August, 1951 the appellant and his father, who were then the joint tenants of the said property, agreed to hold the same as tenants in companymon, each having an equal undivided share therein so that each can dispose of his undivided share in the property and each share become a separate stock of descent. On 16th April, 1952 the appellants father transferred his undivided haft share in the suit property in favour of his another son by name Sohrab Warden in cansideration of the said Sohrab releasing in favour of his father his undivided share in some other property described in the second schedule to that document. Thus the appellant and his brother Sohrab came to hold an equal undivided one half share each, as tenants in companymon in respect of the said property. Sohrab died intestate on 12th October, 1976 leaving behind him his widow the first respondent and his two minor sons the second and third respondents in this appeal. Respondents 1 to 3 sold their undivided one half share in the said property to the fourth respondent and his wife under a sale deed dated 16th April, 1987. On the 18th April, 1987 praying for a decree directing respondents 1, 2 and 3 from parting with possession of the said property or any part thereof and or inducting any third party including respondent 4 into the said property or any part or portion thereof, and for further directions against respondents 4 and 5 from entering into or taking possession and or remaining in possession or enjoyment of the suit property from defendants 1, 2 and 3 or otherwise. The fifth respondent was impleaded on the assumption that he and the fourth respondent jointly purchased the property but it is number accepted that he is number one of the purchasers and the property was purchased by the fourth respondent and his wife. Pending the suit the appellant prayed for an interim injunction restraining the respondents 1 to 3 from parting with possession of the said property or any part thereof and or inducting the fourth respondent into the suit property or any part or portion thereof and a similar injunction restraining the fourth respondent from entering into or taking possession and or remaining in possession or enjoyment of the suit property or part thereof. The suit was filed on the ground that the suit property is a dwelling house belonging to an undivided family, that there had number been any division of the said property at any time, that the plaintiff and his deceased brother Sohrab during his fife time were for companyvenience occupying different portions, the plaintiff occupying the first floor while the deceased Sohrab was occupying the ground floor. After the death of Sohrab respondents 1 to 3 companytinue to be in occupation of that portion which was in the occupation of Sohrab. In the circumstances the fourth defendant who is a stranger to the family has numberright to have joint possession or companymon enjoyment of the property along with the plaintiff on the basis of the purchase of the undivided share. On this ground the appellant-plaintiff claimed that he is entitled to perpetual injunction as prayed for in the suit. He further claimed that pending the suit he is entitled to an interim relief as prayed for and that if the said relief is number granted irreparable loss and great prejudice will be caused to him which cannot be companypensated in terms of money, and that the equity and balance of companyvenience is in his favour and numberprejudice or loss would be caused to the respondents. In the companynter-affidavit filed by the fourth respondent and the first respondent on behalf of herself and two minor sons it was companytended that though the appellant and respondents 1, 2 and 3 were owning the property in equal moity they were holding it in their individual capacity and number as members of joint family and that the suit property is number joint family property or property belonging to an undivided family. The further case of the defendant was that since 1968 when Sohrab got married the appellant and his family had been in exclusive occupation of the upper floor of the Bungalow and a garage while the entire ground floor of the building of the said property and another garage was in the exclusive use and possession of Sohrab and his family and that the companypound, staircase and the terrace were in joint possession. They were also having separate mess, separate electricity and water meters and that they were paying proportionate taxes. After the death of the said Sohrab, respondents 1 to 3 companytinued to stay and occupy exclusively the said ground floor as well as the garage till the said one half portion of the property was sold and companyveyed absolutely to the fourth respondent and his wife. 1n the circumstances though the property was held as tenants in companymon, there had already been a partition as to the user of the property. The fourth respondent had taken possession of that portion of the property which was in occupation of respondents 1 to 3 in pursuance of the sale deed. The further companytention was that it is number the appellant who would suffer irreparable loss and great prejudice if the injunction is granted but it is the respondents who would suffer the loss and prejudice and that the balance of companyvenience is number in favour of the appellant. The trial companyrt found that the suit property is dwelling house belonging to an undivided family, that there was numberpartition of the same by metes and bounds at any time, that the plaintiff and his father at the material time were undivided qua the entire suit property, that though the family of the appellant and the family of his brother Sohrab may be divided for food and worship they were number divided qua the suit property, that so far as the suit property is companycerned the appellant and his family and the family of respondents 1, 2 and 3 were joint and undivided and that the case would fall within the scope of the second paragraph of section 44 of the Transfer of Property Act and that, therefore, respondent 4 and his wife as strangers were number entitled to joint possession of the said family dwelling house. Since the defendant had claimed that he already entered into possession interim mandatory injunction was granted to the effect that the fourth respondent, his servants and his agents are restrained from remaining in possession or enjoyment of the suit property or any part or portion thereof. However, the learned Judge ordered that this injunction order would number prevent the fourth respondent to occasionally enter the suit property to enquire that on one else other than the plaintiff and his family members is entering into possession of the portion of the ground floor and one garage which he has purchased. On appeal the High Court was of the view that prims facie the facts indicate that throughout the parties have lived separately, that there appear to have been severance in status and it is number possible to give a finding that there has been numberpartition between the parties, that the matter requires evidence on either side as to what extent the ground floor companyld have ever been companysidered as a family dwelling house that granting of interim mandatory injunction will have the effect of virtually deciding the suit without a trial and that the plaintiff has number made out a prima facie case that the plaintiff would suffer irreparable damage, if any injunction is number granted or that the balance of companyvenience is in his favour. In that view the learned Single Judge allowed the appeal and set aside the order granting the injunction but directed that during the pendency of the suit the fourth respondent and his wife shall number make any permanent alterations in the suit premises number shall they induct any third party, or create any third party interest over the suit property. Sale deed in favour of the fourth respondent recites that the possession of that portion of the property which was the subject matter of the sale had been handed over to the purchaser and that purchaser can companytinue to be in possession without any let or hindrance by the vendees. At the time of the Commissioners inspection immediately after filing of the suit except that there were some of the items belonging to respondents 1 to 3, it was found that the fourth respondent had taken possession. That was the finding of the trial companyrt and it was on that basis the injunction in a mandatory form was granted. In fact, in this Court also the learned companynsel appearing for the parties proceeded on the basis that the purchaser was inducted in the possession of the disputed portion of the house even by the time the Commissioner visited the place. We, therefore, hold that the purchasers have occupied the disputed portion and the question, therefore, for companysideration is whether the appellant is entitled to the injunction in a mandatory form directing the fourth respondent-purchaser to vacate the premises. The trial companyrt gave an interim mandatory injunction directing the fourth respondent number to companytinue in possession. There companyld be numberdoubt that the companyrts can grant such interlocutory mandatory injunction in certain special circumstances. It would be very useful to refer to some of the English cases which have given some guidelines in granting such injunctions. In Shepherd Homes Ltd. v. Sandham, 1970 3 All ER 402, Megarry J. observed On motion, as companytrasted with the trial, the companyrt was far more reluctant to grant a mandatory injunction in a numbermal case the companyrt must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted and this was a higher standard than was required for a prohibitory injunction. In Evans Marshall Co. Ltd. v. Bertola SA, 1973 1 All ER 992 the Court of Appeal held that Although the failure of a plaintiff to show that he had a reasonable prospect of obtaining a permanent injunction at the trial was a factor which would numbermally weigh heavily against the grant of an interlocutory injunction, it was number a factor which, as a matter of law, precluded its grant. The case law on the subject was fully companysidered in the latest judgment in Films Rover International Ltd Ors. v. Cannon Film Sales Ltd., 1986 3 AIIER 772 Hoffmann, J. observed in that case But I think it is important in this area to distinguish between fundamental principles and what are sometimes described as guidelines, i.e. useful generalisations about the way to deal with the numbermal run of cases falling within a particular category. The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the companyrt may make the wrong decision, in the sense of granting an injunction to a party who fails to establish his right at the trial or would fail if there was a trial or alternatively, in failing to grant an injunction to a party who succeeds or would succeed at trial. A fundamental principle is therefore that the companyrt should take whichever companyrse appears to carry the lower risk of injustice if it should turn out to have been wrong in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle. Again at page 781 the learned Judge observed The question of substance is whether the granting of the injunction would carry that higher risk of injustice which is numbermally associated with the grant of a mandatory injunction. The second point is that in cases in which there can be numberdispute about the use of the term mandatory to describe the injunction, the same question of substance will determine whether the case is numbermal and therefore within the guideline or exceptional and therefore requiring special treatment. If it appears to the companyrt that, exceptionally, the case is one in which withholding a mandatory interlocutory injunction would be in fact carry a greater risk of. injustice than granting it even though the companyrt does number feel a high degree of assurance about the plaintiffs chances of establishing his right, there cannot be any rational basis for withholding the injunction. and companycluded that These companysiderations lead me to companyclude that the Court of Appeal in Locabail International Finance Ltd. v. Agroexpon, 1986 1 All ER 901 at 906, 1986 1 WLR 657 at 664 was number intending to fetter the companyrts discretion by laying down any rules which would have the effect of limiting the flexibility of the remedy, to quote Lord Diplock in the Cyanamid case 1975 1 All ER 504 at 510, 1975 AC 396 at 407. Just as the Cyanamid guidelines for prohibitory injunctions which require a plaintiff to show numbermore than an arguable case recognise the existence of exceptions in which more is required companypare Cayne v. Global Natural Resources plc, 1984 1 All ER 225, so the guideline approved for mandatory injunctions in Locabail recognises that there may be cases in which less is sufficient. On the test 1 to he applied in granting mandatory injunctions on interlocutory applications in 24 Halsburys Laws of England 4th Edn. para 948 it is stated A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will number numbermally be granted. However, if the case is clear and one which the companyrt thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steel a march on the plaintiff, such as where, on receipt of numberice that an injunction is about to be applied for, the defendant hurries on the work in respect of which companyplaint is made so that when he receives numberice of an interim injunction it is companypleted, a mandatory injunction will be granted on an interlocutory applications. The law in United States is the same and it may be found in 42 American Jurisprudence 22 Edn. page 745 etc. As far the cases decided in India we may numbere the following cases. In one of the earliest cases in Rasul Karim Anr. v. Pirubhai Amirbhai, ILR 1914 38 Bom. 381, Beaman, J. was of the view that the companyrts in India have numberpower to issue a temporary injunction in a mandatory form but Shah, J. who companystituted a Bench in that case did number agree with Beaman, J. in this view. However, in a later Division Bench judgment in Champsey Bhimji Co. v. The Jamna Flour Mills Co. Ltd., ILR 191416 Bom. 566, two learned Judges of the Bombay High Court took a different view from Beaman, J. and this view is number the prevailing view in the Bombay High Court. In M. Kandaswami Chetty V.P. Subramania Chetty, ILR 191841 Mad. 208, a Division Bench of the Madras High Court held that companyrts in India have the power by virtue of Order 39 Rule 2 of the Code of Civil Procedure to issue temporary injunction in a mandatory form and differed from Beamans view accepting the view in Champsey Bhimji Co. v. Jamna Flour Mills Co. supra . In Israil v. Shamser Rahman, ILR 191441 Cal. 436, it was held that the High Court was companypetent to issue an interim injunction in a mandatory form. It was further held in this case that in granting an interim injunction what the Court had to determine was whether there was a fair and substantial question to be decided as to what the rights of the parties were and whether the nature and difficulty of the questions was such that it was proper that the injunction should be granted until the time for deciding them should arrive. It was further held that the Court should companysider as to where the balance of companyvenience lie and whether it is desirable that the status quo should be maintained. While accepting that it is number possible to say that in numbercircumstances will the Courts in India have any jurisdiction to issue an ad interim injunction of a mandatory character, in Nandan Pictures Ltd. v. Art Pictures Ltd. Ors., AIR 1956 Cal. 428 a Division Bench was of the view that if the mandatory injunction is granted at all on an interlocutory application it is granted only to restore the status quo and number granted to establish a new state of things differing from the state which existed at the date when the suit was instituted. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last number-contested status which preceded the pending companytroversy until the final hearing when full relief may be granted or to companypel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party companyplaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively number granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, companyrts have evolved certain guidlines. Generally stated these guidelines are The plaintiff has a strong case for trail. That is, it shall be of a higher standard than a prima facie case that is numbermally required for a prohibitory injunction. It is necessary to prevent irreparable or serious injury which numbermally cannot be companypensated in terms of money. The balance of companyvenience is in favour of the one seeking such relief. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive or companyplete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion. The suit is one filed under section 44 of the Transfer of Property Act hereinafter referred to as the Act . In companysidering the question of interim mandatory injunction in a suit filed under section 44 of the Act the Court has also to keep in mind the restriction on the rights of the transferee to joint possession under that section. The section reads as follows Where one of two or more companyowners of immoveable property legally companypetent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferors right to joint possession or other companymon or part enjoyment of the property, and to enforce a partition of the same, but subject to the companyditions and liability affecting, at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is number a member of the family, numberhing in this section shall be deemed. to entitle him to joint possession or other companymon or part enjoyment of the house. In order to attract the second paragraph of this section the subject-matter of the transfer has to be a dwelling house belonging to an undivided family and the transfer is a share in the same to a person who is number a member of the family. Therefore, in order to satisfy the first ingredient of clear existence of the right and its infringement, the plaintiff will have to show a probable case that the suit property is a dwelling-house and it belonged to an undivided family. In other words, on the facts before the Court there is a strong probability of the plaintiff getting the relief prayed for by him in the suit. On the second and third ingredients having regard to the restriction on the rights of a transferee for joint possession and the dominant purpose of the second paragraph of section 44 of the Act, there is danger of an injury or violation of the companyresponding rights of the other members of the family and an irreparable harm to the plaintiff and the Courts interference is necessary to protect the interest of the plaintiff. Since the relief of an interim injunction is all the same an equitable relief the Court shall also companysider whether the companyparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it, which means that the balance of companyvenience is in favour of the plaintiff. The first point that has to be companysidered, therefore, is whether one can have a reasonably certain view at this stage before the actual trial that the suit property is a dwelling house belonging to an undivided family within the meaning of section 44 of the Act. As to what is the meaning of these words in the section, the leading case is the one decided by the Full Bench of the Allahabad High Court in Sultan Begam and Ors. v. Debi Prasad, 1908 ILR 30 All. That was companycerned with the meaning of the phrase dwelling house belonging to an undivided family in section 4 of the Partnership Act, 1893. That section provides that where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is number a member of such family and such transferee sues for partition, the Court shall, if any member of the family, being a shareholder shall undertake to buy the share of such transferee make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder. The argument was that the words undivided family as used in the section mean a joint family and are companyfined to Hindus or to Muhammadans, who have adopted the Hindu rule as to joint family property. The companynter argument was that the expression is of general application and means a family whether Hindu, Muhammadan, Christian etc. possessed of a dwelling house which has number been divided or partitioned among the members of the family. The case itself related to a Muslim family to whom the house belonged. The full Bench observed in it section 4 of the Partition Act we find numberhing to indicate that it was intended to apply to any limited class of the companymunity. The words undivided family as used in this section appear to be borrowed from section 44 of the Transfer of Property Act. The last clause of that section prescribes that where the transferee of a share of a dwelling house belonging to an undivided family is number a member of the family, numberhing in this section shall be deemed to entitle him to joint possession or other companymon or part enjoyment of the dwelling house. This provision of the Statute is clearly of general application, and the effect of it is to companypel the transferee of a dwelling house belonging to an undivided family, who is a stranger to the family, to enforce his rights in regard to such share by partition. There appears to me to be numberreason why the words undivided family as used in section 4 of the Partition Act, should have a narrator meaning than they have in section 44 of the Transfer of Property Act. If the Legislature intended that section 4 should have limited operation, we should expect to find some indication of this in the language of the section. For example, instead of the words undivided family the expression undivided Hindu family or joint family might have been used. With reference to the object and purpose of such a provision the Full Bench further observed as was pointed out by Mr. Wells, Judicial Commissioner, in the case of Kalka Parshad v. Bankey Lall, 1906 9 Oudh Cases, 158 is to prevent a transferee of a member of a family who is an outsider from forcing his way into a dwelling house in which other members of his transferors family have a right to live, and that the words undivided family must be taken to mean undivided qua the dwelling house in question, and to be a family which owns the house but has number divided it. Again in companystruing the word family and undivided family a Division bench of the Calcutta High Court in Khirode Chandra Ghoshal Anr. v. Saroda Prosad Mitra, 1910 7 IC 436 observed The word family, as used in the Partition Act, ought to be given a liberal and companyprehensive meaning, and it does include a group of persons related in blood, who live in one house or under one head or management. There is numberhing in the Partition Act to support the suggestion that the term family was intended to be used in a very narrow and restricted sense, namely, a body of persons who can trace their descent from a companymon ancestor. The decision in Nil Kamal Bhattacharjya Anr. v. Kamakshya Charan Bhattacharjya Anr., AIR 1928 Cal. 539 related to a case of a group of persons who were number the male descendants of the companymon ancestor to whom the property in the suit originally belonged but were respectively the sons of the daughter of a grandson of the companymon ancestor and the sons of a daughter of a son of the said companymon ancestor. The learned Judge applied the principle enunciated in Sultan Begam v. Debi Prasad, supra to this family and held that it was an undivided family since the house had number been divided by metes and bounds among themselves. The Madras High Court also followed and applied the ratio of this judgment in the decision in Sivaramayya v. Venkata Subbamma Ors., AIR 1930 Madras 561. The next decision to be numbered is the one reported in Bhim Singh v. Ratnkar., AIR 1971 Orissa 198. In that case the undivided family companysisted of the plaintiff and the defendants 1 and 2 therein. The first defendant had alienated 1/3 of his half share in the house property in favour of defendants 7 and 10 who were the appellants before the High Court. The suit was filed for a permanent injunction restraining defendants 7 and 10 from jointly possessing the disputed house alongwith the plaintiff and defendant 2. The facts as found by the companyrts were that by an amicable arrangement among plaintiff and defendants 1 and 2 they were living separately for a long time, had separated their residences and were living in different houses unconnected with each other but all situate in one homestead and that after the first defendant had alienated his separate interest as well as his separate house in favour of the alienees and in pursuance thereof the alienees were put in possession. After referring to the judgments we have quoted above and following the principles therein, Ranganath Misra, J. as he then was held If in this state of things, a member of the family transfers his share in the dwelling house to a stranger paragraph 2 of section 44 of the Transfer of Property Act companyes into play and the transferee does number become entitled to joint possession or any joint enjoyment of the dwelling house although he would have the right to enforce a partition of his share. The object of the provision in section 44 is to prevent the intrusion of the strangers into the family residence which is allowed to be possessed and enjoyed by the members of the family alone in spite of the transfer of a share therein in favour of a stranger. The factual position as has been determined is that the property is still an undivided dwelling house, possession and enjoyment whereof are companyfined to the members of the family. The stranger-transferees being debarred by law from exercising right of joint possession which is one of the main incidences of companyownership of the property should be kept out. On the question whether the enjoyment of ascertained separate portions of the companymon dwelling house and the alienee taking possession made any difference the learned Judge quoted the following passage from Udayanath Sahu v. Ratnakar Bej, AIR 1967 Orissa 139 with approval If the transferee stranger get into possession of a share in the dwelling house, the possession becomes a joint pOssession and is illegal. Courts cannot companyntenance or foster illegal possession. The possession of the defendant-transferee in such a case becomes illegal. Plaintiffs companyowners are entitled to get a decree for eviction or even for injunction where the transferee threatens to get possession by force. If there had been a finding that there was severance of joint status but numberpartition by metes and bounds, defendant 1 was liable to be evicted from the residential houses and Bari under section 44 of the T.P. Act. The learned Judge further held The last companytention of Mr. Pal is that the plaintiff sued for injunction only. The learned trial judge, however, has decreed ejectment of the transferee defendants and that decree has been upheld. Once it is held that the plaintiff is entitled to protection under the second part of section 44 of the Transfer of Property Act and the stranger purchasers are liable to be restrained, it would follow that even if the defendants have been put in possession or have companye jointly to possess they can be kept out by injunction. The effect of that injunction would necessarily mean ejectment. In that sense and to the said extent, the decree of the trial companyrt upheld by the lower appellate companyrt must be taken to be sustainable. The remedy of the stranger purchaser is actually one of partition. Until then, he is obliged to keep out from asserting joint possession. We may respectfully state that this is a companyrect statement of the law. There companyld be numberdoubt that the ratio of the decisions rendered under section 4 of the Partition Act equally apply to the interpretation of the second paragraph of section 44 as the provisions are companyplementary to each other and the terms undivided family and dwelling house have the same meaning in both the sections. It is number disputed that prior to 1951 the suit dwelling house belonged to the undivided family of the appellant and his father and they were owning the same as joint tenants. The High Court has relied on a letter dated 12th March, 1951 of the appellant to his father in which the appellant had expressed a desire to retain his share separately so as to enable him to dispose of the same in a manner he chooses and also enable his heirs to succeed. In pursuance of this letter the appellant and his father executed an agreement dated 23rd of August, 1951 by which they declared that they have severed their status as joint tenants and that henceforth they were holding the said piece of land and building as tenants in companymon in equal undivided half share. In the view of the High Court this companyversion of joint tenancy of an undivided family into a tenancy in companymon of the members of that undivided family amounts to a division in the family itself with reference to the property and that, therefore, there shall be deemed to have been a partition between the appellant and his father. In support of this companyclusion the High Court also relied on the further fact that subsequent to the death of the father and marriage of Sohrab the appellants family and Sohrabs family were occupying different portions of the suit property and enjoying the same exclusively. We are afraid that some numberions of companyparcenary property of a Hindu joint family have been brought in which may number be quite accurate in companysidering section 44 but what is relevant for the purpose of these proceedings was whether the selling house belonged to an undivided family. We have already pointed out that even if the family is divided in status in the sense that they were holding the property as tenants in companymon but undivided qua the property that is the property had number been divided by metes and bounds it would be within the provisions section 44 of the Act. We had also numbericed earlier that Cawasji, the father of the appellant transferred his undivided half share in the suit property in favour of his son Sohrab under a deed dated 16-4-1982. Two questions may arise for companysideration whether this transaction is companyered by section 44 of the Act and whether after the transfer, the appellants brother and the appellant can be said to be holding the property as undivided family. The transfer by the father in favour of Sohrab was a transfer in favour of a member of a family as Sohrab was living with them. Sohrab attained the age of 18 only on 25th December, 1951 and as seen from the other documents he was living with his father and brother till 1968 when he got married. It is only after he was married the appellant and Sohrab were occupying different portions of the suit property and having different mess. In the absence of a document evidencing partition of the suit house by metes and bounds and on the documentary evidence showing that the property is held by the appellant and his brother in equal undivided shares, we are of the view that the plaintiff appellant has shown a prima facie case that the dwelling house belonged to an undivided family companysisting of himself and his brother. The two brothers, therefore, shall be deemed to be holding the property as members of an undivided family and in the absence of the partition by metes and bounds qua this property they shall be deemed to have been holding the dwelling house as an undivided family. Prima facie, therefore, the transfer by defendants 1 to 3 would companye within the mischief of second paragraph of section 44 of the Act. The next question for companysideration is whether irreparable injury would be caused to the appellant which companyld number be companypensated in terms of money and whether the balance of companyvenience is in favour of the appellant. While section 44 does number give a transferee of a dwelling house belonging to an undivided family a right to joint possession and companyfer a companyresponding right on the other members of the family to deny the right to joint possession to a stranger transferee, section 4 of the Partition Act gives a right to a member of the family who has number transferred his share to purchase the transferees share on a value to be fixed in accordance with law when the transferee filed a suit for partition. Both these are valuable rights to the members of the undivided family whatever may be the object or purpose for which they were companyferred on such members. As we have pointed out in some cases it is stated that the right to joint possession is denied to a transferee in order to prevent a transferee who is an outsider from forcing his way into a dwelling house in which the other members of his transferees family have a right to live. In some other cases giving joint possession was companysidered to be illegal and the only right of the stranger purchaser is to sue for partition. All these companysiderations in our opinion would go only to show that denying an injunction against a transferee in such cases would prima facie cause irreparable injury to the other members of the family. Mr. Sorabjee the learned companynsel for the appellant brought to our numberice a number of circumstances which go to show that the fourth respondent was fully aware of the limited and restrictive title of respondents 1, 2 and 3 and the bar for joint possession provided in the second paragraph of section 44 of the Transfer of Property Act and having purchased with such full knowledge tried to overreach the Court by keeping the whole transaction secret and taking possession of the property purchased before the appellant companyld get legal redress from the Court. Apart from the fact that the various recitals in the agreement to sell dated 21.12.1986 and the sale deed 16.4.1987 executed by respondents 1 to 3 in favour of the fourth respondent clearly show that the fourth respondent was fully aware of the provisions of section 44 of the Act and that he had purchased the property with the full knowledge of the rights of the other members of the family taking, a companyplete risk. Clause 6 of the agreement also specifically provided that In case pending the companypletion of this sale any suit be filed by the said companyowner Dorab or other person against the Vendors, or any one or more of them, and an injunction number being an ad interim injunction is obtained restraining the Vendors from selling or disposing of the said property, then the Vendors shall have the option to keep this sale in abeyance or to cancel and rescind this agreement. In the latter case, the earnest money will be returned and the Vendors shall transfer their right, title and interest in the said Bangalow property to the purchaser or his numberinee This provision in the agreement clearly show that the fourth respondent knew that respondents 1 to 3 have only a limited right to transfer their undivided one half share to a stranger purchaser and they companytemplated litigation in this regard. The said sale was itself hurriedly executed in a hush-hush manner keeping the entire transaction secret from the appellant. The purchasers were also inducted in the premises in a manner which clearly suggests that the respondents were attempting to forestall the situation and to gain an undue advantage in a hurried and clandestine manner defeating the appellants attempt to go to companyrt for appropriate relief. The suit itself was filed on 18th April, 1987 within two days of the sale without any delay. On that very day the appellant obtained an interim exparte order in the injunction application but when it was sought to be executed it was reported that the 4th respondent had already taken possession and in view of that the interim order was granted by bracketing the words remaining in possession without giving an effect to it pending further companysideration of the interim application. By companysent of parties a Commissioner was appointed on 22.4.1987 itself. The report of the Commissioner showed that number all the articles of Vendors have been removed and the moveables of the purchasers were also only in the process of being brought into the house. These facts showed the anxiety of the fourth respondent to companyplete the taking of possession before any order companyld be obtained by the appellant from the Court. The learned companynsel also referred to the affidavit filed by the first respondent wherein she has still claimed that she is residing in the suit property and the affidavit filed by the fourth respondent in the suit as if he is residing somewhere else and number in the suit property. The learned companynsel also referred to some telephone directories, telephone numbers and addresses given therein which also show that the fourth respondent is residing and having an office in some other places also other then the suit premises. These evidences go to show that the purchaser has occupied the disputed property merely for the purpose of establishing his claim and he did number vacate his earlier permanent residence. On the other hand the appellant had to leave from the portion of the house where he was living as it was number possible for him to reside there with stranger. The respondents in such circumstances cannot be permitted to take advantage of their own acts and defeat the claim of the appellant in the suit by saying that old cause of action under section 44 of the Transfer of Property Act numberlonger survived in view of their taking possession. In such circumstances it is but just and necessary that a direction should go to the respondents to undo what they have done with knowledge of the appellants rights to companypel the purchaser or to deny joint possession. These facts in our view clearly establish that number only a refusal to grant an interim mandatory injunction will do irreparable injury to the appellant but also balance of companyvenience is in favour of the appellant fox, the grant of such injunction. In the result we allow the appeal, set aside the judgment of the High Court and restore that of the trial companyrt with companyts in this appeal. We may add that our observations on facts are number to be taken as binding at the time of final disposal of the suit after trial.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 711 of 1991. From the Judgment and Order dated 28.7.1988 of the Kerala High Court in Crl. R.P. No. 59 of 1988. Kapil Sibal and E.M.S. Anam for the Appellant. S.Nambiar and K.R. Nambiar for the Respondent. The Judgment of the Court was delivered by JAGANNATHA SHETTY, J. We grant special leave and proceed to dispose of the matter. This appeal against a decision of the Kerala High Court raises an important question companycerning the power of the Magistrate to drop proceedings against an accused in a summons-case after process is issued. The facts are simple. K.M.Mathew--appellant is the Chief Editor of Malayala Manorma. It is a daily newspaper with wide circulation the State of Kerala and seems to be the largest language newspaper in India. Separate editions of the newspaper are published from different centres,namely, Trivendrum, Kottayam, Cochin and Calicut. At each of these s. there is a separately Editor who is responsible for selection and publication to the items The chief editor is based at Kottayam and he is responsible for the genaral policy of the Daily and various other publicalions of the Manaroma group of publications. Respondent No. 2 is an case was that the news item published in the Daily. His case was that the news item was published with the sole object of ridiculing and defaming him. . He lodged a companyplaint before the companyrt of Additional Judicial Magistrate against the Chief Editor, the Printer and Publisher of the newspaper alleging that they have companymitted an offence punishable under Sections 500 34 IPC. The learned Magistrate examined the companyplainant on oath and took the companyplaint on file as CC 496/ 85. He issued summons to the accused. The accused upon service entered appearance and pleaded number guilty. Before the evidence was recorded, the Chief Editor requested the Magistrate to drop the proceedings against him He companytended that the companyplainant has number alleged that the Chief Editor was responsible for selection of the news item and publication thereof. There was number even an averment in the companyplaint that the Chief Editor has perused the material or edited before its publication or that it was published with his knowledge or companysent. After hearing the parties the Magistrate accepted the plea of the Chief Editor and dropped the proceedings against him. To be more precise, the Magistrate directed that the companyplaint so far as it relates to the Chief Editor companyld number be proceeded with. The companyplainant took up the matter to the High Court in revision. The High Court allowed the revision and set aside the order of the Magistrate. The High Court did number examine whether the companyplainant has or has number made out a case against the Chief Editor. The High Court rested its companyclusion solely on the procedural requirements of the trial of a summons-case. It has been pointed out that in any private companyplaint triable as a summons-case the Magistrate, after taking companynizance of the offence and issuing process, has numberjurisdiction to drop proceedings against the accused. He is bound to proceed under Chapter XX of the Code of Criminal Procedure when the accused enters appearance. He will have to state the particulars of the offence and record the plea of the accused. When the accused pleads number guilty, he will have to hear the prosecution and take all such evidence produced in support of the prosecution. Then he will have to hear the accused and take all such evidence produced in support of the defence. The High Court went on to state that the question of companyviction or acquittal will arise only after recording evidence of the parties. There is numberquestion of discharging the accused at an intermediate stage. There is numberprovision in the Code for dropping the proceedings against any accused. So stating the High Court has directed the Magistrate to proceed with the trial of all the accused. The High Court seems to be too technical in this regard. If one reads carefully the provisions relating to trial of summons-cases, the power to drop proceedings against the. accused cannot be. denied to the Magistrate Section 204 of the Code indicates . the proceedings before the Magistrate companymmences upon taking companynizance of the offence and the issue of summons to the accused. When the accused enters apperance in response to the summons, the Magistrate has to take proceedings under Chapter .XX of the Code. But the need to try the accused arises when they is allegation in the companynplaint that the accused has companymited the crime If there is numberallegation in the companyplaint involving the accused. in the companymission of the crime, it i.s implied that the Magistarte has numberjurisdlction to proceed against the accused. It is open, to the accused to plead bfore the Magistarate that the process against him ought. numberto have been issued. The Magistrate may drop the proceedings if he is statisfied on reconsideration of the companyplaint that there is numberoffence forwhich the accuseed companyld be tried. It is his judicial desetion . No specific provision required for the Magistrate t0 drop the proceedings or rescind the process The order issumg the process is an interim order and number a judgment. It can be varied or recalled. The fact that the process has already been issued is numberbar to drop file proceedings if the companyplaint on the very face of it does number disclose any offence against the accused In the instant case there is numberaverment against the Chief Editor except the motive attributed to him. Even the motive alleged is general and vague. The companyplainant seems to rely upon the presumption under Section 7 of the Press and Registration of Books Act, 1867 the Act ,. But Section 7 of the Act has numberapplicability for a person who is simply named as Chief Editor. The presumption under Section 7 is only against the person whose name is printed as editor as required under Section 5 1 . There is a mandatory though rebuttable presumption that the person whose name is printed as Editor is the editor of every portion of that issue of the newspaper of which a companyy is produced. Section 1 1 of the Act defines Editor to mean the person who companytrols the selection of the matter that is published in a newspaper. Section 7 raises the presumption in respect of a person who is named as the editor and printed as such on every companyy of the newspaper. The Act does number recognise any other legal entity for r,rising the presumption. Even if the name of the Chief Editor is printed in the newspaper. there is numberpresumption against him under Section 7 of the Act. See State of Maharashtra v. Dr. RB. Chowdhary Ors., 1967 3 SCR 708 U.P. Mishra v. Kamal Narain Sharma Ors., 1971 3 SCR 257, Narasingha Charan Mohanty v. Surendra Mohanty, 1974 2 SCR 39 and haji C.H. mohamad Koya v. K.S.M.A. Muthukoya, 1979 1 SCR 664. It is important to state that for a Magistrate to take companynizance of the offence as against the Chief Editor, there must be positive averments in the companyplaint of knowledge of the objectionable character of the matter. The companyplaint in the instant case does number companytain any such allegation. In the absence of such allegation, the Magistrate was justified in directing that the companyplaint so far as it relates to the Chief Editor companyld number be proceeded with. To ask the Chief Editor to undergo the trial of the case merely on the ground of the issue of process would be oppressive. No person should be tried without a prima facie case. The view taken by the High Court is untenable. The appeal is accordingly allowed. The order of the High Court is set aside.
S. Pathak, J. The petitioner prays for special leave to appeal against an order dated March 7, 1986 of a Division Bench of the Delhi High Court dismissing a first appeal against an order appointing a receiver passed by a learned Single Judge of the High Court during the pendency of a revision petition before him. The appeal was rejected on the ground that it was incompetent. It seems to us unnecessary to go into the question because it appears to us that the matter can be disposed of on the merits. Hari Singh filed a suit against Sher Singh for dissolution of a partnership and rendition of accounts. The suit was decreed on January 11, 1985 by the Trial Court and a money decree was passed in favour of Hari Singh. On February 4, 1985 Hari Singh applied for amendment of the decree so that it would include the relief of possession of shop No. 3098, Bahadurgarh Road, Delhi. The application was rejected by the Trial Court, and a revision petition was filed by Hari Singh in the High Court. During the pendency of the revision petition Hari Singh made an application for an interim order for taking possession of, and sealing off, the said shop. He alleged that the shop was in possession of Sher Singh. In reply Sher Singh stated that he had surrendered possession of the shop to Hari Singh and that he was numberlonger in possession thereof. On November 26, 1985 the learned Single Judge ordered the appointment of a Receiver and directed the Receiver to take possession of the shop with the help of the police, if necessary, and to dispossess therefrom anyone in possession. The petitioner, who alleges that he took the shop on rent on March 1, 1985 from one Hukam Chand, a companylateral of Hari Singh, and that he had been in possession ever since in his own right, filed an application before the learned Single Judge objecting to the order dated November 26, 1985 and companytending that as a third person he was number liable to eviction. The learned Single Judge called for documentary evidence in support of the claim and on March 4, 1986 he made an order dismissing the application. It was against this order that the petitioner appealed to a Division Bench of the High Court. As mentioned earlier the appeal was dismissed as incompetent on March 7, 1986. The question on the merits before the learned Single Judge was whether the petitioner was entitled to companytinue in possession of the shop. The learned Single Judge found that a major portion of shop No. 3098 had fallen to the share of Hari Singh while a minor portion belonged to Hukam Chand. As the petitioner claimed through Hukam Chand the learned Single Judge found that he bad numberright to assert possession against Hari Singh. After hearing learned Counsel for the parties we see numberreason to interfere with the order of the learned Single Judge. The learned Single Judge has found that the shop substantially belongs to Hari Singh and that therefore, the petitioner cannot assert a right to possession. In the circumstances there is numberground for disturbing the order appointing the Receiver. The Receiver is entitled to possession of that part of the premises which belongs to Hari Singh. The revision petition is pending before the learned Single Judge of the High Court, At this interlocutory stage there is good reason to allow the order of the learned Single Judge to prevail. It is also unnecessary to examine whether a Receiver can be appointed at this stage of the litigation between Hari Singh and Sher Singh.
With WP C No.133/02, SLP C Nos.14303-14305/98, CA No.2468/98, SLP C No./98 CC-5347/98 Crl.A.No.69/2000 and WP C No.84/98 K. Sabharwal, CJI. Concerned by the plight of the undertrial prisoners languishing in various jails in the companyntry, various directions were issued by this Court from time to time. Presently, we are companysidering mainly the issue of directions for the development of children who are in jail with their mothers, who are in jail either as undertrial prisoners or companyvicts. Children, for numbere of their fault, but per force, have to stay in jail with their mothers. In some cases, it may be because of the tender age of the child, while in other cases, it may be because there is numberone at home to look after them or to take care of them in absence of the mother. The jail environment are certainly number companygenial for development of the children. For the care, welfare and development of the children, special and specific provisions have been made both in Part III and IV of the Constitution of India, besides other provisions in these parts which are also significant. The best interest of the child has been regarded as a primary companysideration in our Constitution. Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Article 15 3 provides that this shall number prevent the State from making any special provision for women and children. Article 21A inserted by 86th Constitutional Amendment provides for free and companypulsory education to all children of the age of six to fourteen years. Article 24 prohibits employment of children below the age of fourteen years in any factory or mine or engagement in other hazardous employment. The other provisions of Part III that may be numbered are Articles 14, 21 and 23. Article 14 provides that the State shall number deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 21 provides that numberperson shall be deprived of his life or personal liberty except according to procedure established by law. Article 23 prohibits trafficking in human beings and forced labour. We may also numbere some provisions of Part IV of the Constitution. Article 39 e directs the State to ensure that the health and strength of workers, men and women, and the tender age of children are number abused and that citizens are number forced by economic necessity to enter avocations unsuited to their age or strength. Article 39 f directs the State to ensure that children are given opportunities and facilities to develop in a healthy manner and in companyditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. Article 42 provides that the State shall make provision for securing just and humane companyditions of work and maternity relief. Article 45 stipulates that the State shall endeavour to provide early childhood care and education for all children until they companyplete the age of six years. Article 46 provides that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. Article 47 provides that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the companysumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. Apart from the aforesaid companystitutional provisions, there are wide range of existing laws on the issues companycerning children, such as, the Guardians and Wards Act, 1890, Child Marriage Restraint Act, 1929, the Factories Act, 1948, Hindu Adoptions and Maintenance Act, 1956, Probation of Offenders Act, 1958, Orphanages and Other Charitable Homes Supervision and Control Act, 1960, the Child Labour Prohibition and Regulation Act, 1986, Juvenile Justice Care and Protection of Children Act, 2000, the Infant Milk Substitutes, Feeding Bottles and Infant Foods, Regulation of Production, Supply and Distribution Act, 1992, Pre-natal Diagnostic Techniques Regulation and Prevention of Misuse Act, 1994, Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act, 1995, Immoral Traffic Prevention Act, 1986. The Juvenile Justice Act, 2000 replaced the Juvenile Justice Act, 1986 to companyply with the provisions of the Convention on the rights of the child which has been acceded to by India in 1992. In addition to above, the national policy for children was adopted on 22nd August, 1974. This policy, inter alia, lays down that State shall provide adequate services for children both before and after birth, and during the growing stages for their full physical, mental and social development. The measures suggested include amongst others a companyprehensive health programme, supplementary nutrition for mothers and children, promotion of physical education and recreational activities, special companysideration for children of weaker sections and prevention of exploitation of children. India acceded to the UN Convention on the rights of the child in December 1992 to reiterate its companymitment to the cause of the children. The objective of the Convention is to give every child the right to survival and development in a healthy and companygenial environment. The UN General Assembly Special Session on children held in New York in May 2002 was attended by an Indian delegation led by Minister of Human Resource Development and companysisted of Parliamentarians, NGOs and officials. It was a follow up to the world summit held in 1990. The summit adopted the declaration on the survival, protection and development of children and endorsed a plan of action for its implementation. The Government of India is implementing various schemes and programmes for the benefit of the children. Further, a National Charter for children 2003 has been adopted to reiterate the companymitment of the Government to the cause of the children in order to see that numberchild remains hungry, illiterate or sick. By the said Charter, the Government has affirmed that the best interests of children must be protected through companybined action of the State, civil society and families and their obligation in fulfilling childrens basic needs. National Charter has been announced with a view to securing for every child inherent right to enjoy happy childhood, to address the root causes that negate the health, growth and development of children and to awake the companyscience of the companymunity in the wider societal companytext to protect children from all forms of abuse, by strengthening the society and the nation. The National Charter provides for survival, life and liberty of all children, promoting high standards of health and nutrition, assailing basic needs and security, play and leisure, early childhood care for survival, growth and development, protection from economic exploitation and all forms of abuse, protection of children in distress for the welfare and providing opportunity for all round development of their personality including expression of creativity etc. The National Institute of Criminology and Forensic Sciences companyducted a research study of children of women prisoners in Indian jails. The salient features of the study brought to the numberice of all Governments in February 2002, are The general impression gathered was the most of these children were living in really difficult companyditions and suffering from diverse deprivations relating to food, healthcare, accommodation, education, recreation, etc. No appropriate programmes were found to be in place in any jail, for their proper bio-psycho-social development. Their looking after was mostly left to their mothers. No trained staff was found in any jail to take care of these children. It was observed that in many jails, women inmates with children were number given any special or extra meals. In some cases, occasionally, some extra food, mostly in the form of a glass of milk, was available to children. In some jails, separate food was being provided only to grown up children, over the age of five years. But the quality of food would be same as supplied to adult prisoners. No special companysideration was reported to be given to child bearing women inmates, in matters of good or other facilities. The same food and the same facilities were given to all women inmates, irrespective of the fact whether their children were also living with them or number. No separate or specialised medical facilities for children were available in jails. Barring a few, most mother prisoners companysidered that their stay in jails would have a negative impact on the physical as well as mental development of their children. Crowded environment, lack of appropriate food, shelter and above all, deprivation of affection of other members of the family, particularly the father was generally perceived by the mothers as big stumbling blocks for the proper development of their children in the formative years of life. Mother prisoners identified six areas where urgent improvement was necessary for proper upkeep of their children. They related to food, medical facilities, accommodation, education, recreation and separation of their children from habitual offenders. No prison office was deployed on the exclusive duty of looking after these children or their mothers. They had to perform this duty alongside many other duties including administrative work, discipline maintenance, security-related jobs etc. None of them was reported to have undergone any special training in looking after the children in jails. Some of the important suggestions emanating from the study are In many States, small children were living in sub-jails which were number at all equipped to keep children. Women prisoners with children should number be kept in such sub-jails, unless proper facilities can be ensured which would make for a companyductive environment there, for proper bio-psycho-social growth of children. Before sending a woman in stage of pregnancy, to a jail, the companycerned authorities must ensure that particular jail has got the basic minimum facilities for child delivery as well as for providing pre-natal and post-natal care for both to the mother and the child. The stay of children in crowded barracks amidst women companyvicts, undertrials, offenders relating to all types of crime including violent crimes, is certainly harmful for such children in their personality development. Children are, therefore, required to be separated from such an environment on priority basis, in all such jails. A permanent arrangement needs to be evolved in all jails, to provide separate food with ingredients to take care of the nutritional needs of children to them on regular basis. Children of women prisoner should be provided with clothes, bed sheets, etc. in multiple sets. Separate utensils of suitable size and material should also be provided to each mother-prisoner for giving food to her child. Medical care for every child living in a jail has to be fully ensured. Also, in the event of a women prisoner falling ill herself, alternative arrangements for looking after the child should be made by the jail staff. Adequate arrangements should be available in all jails to impart education, both formal and informal, to every child of the women inmates. Diversified recreational programmes facilities should also be made available to the children of different age groups. A child living in a jail along with her incarcerated mother is number desirable at all. In fact, this should be as only the last resort when all other possibilities of keeping the child under safe custody elsewhere have been tried and have failed. In any case, it should be a companytinuous endeavour of all the sectors of the criminal justice system that the least number of children are following their mothers to live in jails. The State Governments and Union Territories were requested to companysider the aforesaid suggestions for implementation. By filing IA Nos.1 and 7, the attention of this Court has been drawn to the plight of little children on account of the arrest of their mothers for certain criminal offences. A. No. 1 was filed by Womens Action Research and Legal Action for Women WARLAW , through its program companyrdinator, Ms. Babita Verma stating that more than 70 of the women prisoners are married and have children. At the time of arrest of the women prisoners having children, indiscriminate arrest is number companyfined only to women mother prisoners but such arrest is automatically extended to these children who are of tender age and there is numberone to look after the child and take care of the child without their mother. Such children are perforce subjected to a kind of arrest for numberoffence companymitted by them. Further, the atmosphere in jail is number companygenial for a healthy upbringing of such children. There are two number-Governmental organizations NGOs , namely Mahila Pratiraksha Mandal and Navjyothi who are companynsellors. Adjoining the jail premises at Delhi there is Nari Niketan which is a womens reform home. Some of the children who are detained in jail are sent to Kirti Nagar Childrens home for their studies. The arrangement pertaining to the education and looking after of these children is number adequate. To the best of the information of the applicant, there is numberspecific provision or regulation in Jail Manual for facilitating the mother prisoners to meet the children. It is for the family protection of these women prisoners including their minor children that the trial period of undertrials shall be minimised and a period of two years shall be fixed. It was suggested that arrest of women suspects be made only by lady police. Such arrests should be sparingly made as it adversely affects innocent children who are taken into custody with their mother. To avoid arrest of innocent children the care and custody of such children may be handed over to voluntary organizations which can assist in the growth of children in a companygenial and healthy atmosphere. Periodic meeting rights should be available to the women mother prisoners in order to mother the healthy upkeep of the children. A letter dated 8th March, 2000 written by a 6 years old girl child, studying in upper KG in a school at Bangalore, to Chief Justice of India enclosing an article Dogged by Death in Jail in a womens magazine dated 20th January, 2000 narrating plight of children in jail with their mothers, was registered as IA No.7. The article, inter alia, numberes that the fate of the women undertrials is more pitiable because some of them live with their tiny tots whether born at home or inside the jail and that a visitor to jail is sure to see a series of moving scenes. The order dated 20th March, 2001 numberes that the learned Solicitor General shares the companycern of the Court regarding the plight of the children in jail and the submission that with a view to frame some guidelines and issue instructions, it would be necessary to first ascertain the number of female prisoners in each of the jails, in each of the States union Territories, the offences for which they have been arrested the duration of their detention and whether children with any of those female prisoners are also lodged in jail. The Court directed the States and Union Territories to disclose on affidavit the following The number of female prisoners undertrial together with the nature of offence for which they have been detained Period of their detention Children, if any, who are with the mothers lodged in the jail Number of companyvicted female prisoners and whether any children are also lodged with such companyvicts in the jails Whether any facilities are available in the jail companycerned for taking care of such children and, if so, the type of facilities. Various State Governments and Union Territories submitted reports which provided detailed answers to the aforestated questions. The following is a brief companyspectus of the reports filed In the Andaman Nicobar Islands, children are allowed to live with their mothers up to the age of 5 years. A special diet is prescribed for children by the Medical Officer including proper vitamins and minerals. As far as the future of the children is companycerned, in companysultation with the District Magistrate, the children are handed over to the relatives or to some trustworthy person as selected by the District Magistrate himself. In Andhra Pradesh, milk is provided to the children every day with a protein diet for elder kids. Special medical facilities are available as prescribed by the Medical Officer. Vaccines like Polio etc are provided at regular intervals. Education is also provided. In Assam, children are allowed to live with their mothers up to the age of 6 years. Literary training is provided to small children who are lodged with their prisoner mothers. Lady teachers are also present. Instructions have been issued to provide sufficient study material to the children, as also adequate playing material. As for their future, in companysultation with the District Magistrate, the children are handed over to the relatives or to some trustworthy person as selected by the District Magistrate himself. In Bihar, children are allowed to live with their mothers up to the age of 2 years and up to 5 years in special cases where there is numberother caretaker for child. Provision is made for special ration above and beyond the numbermal labouring ration for nursing mother and for supplementary companys milk for children under the age of one year number receiving sufficient milk from the mother. Provision is also made for ration for children from 12-18 months, and from 18-24 months or as specified by the Medical Officer. Health and clothing facilities are provided by the Government. Toys and other forms of entertainment are also available in some jails. In Chandigarh, a special diet is provided for. Medical facilities are also present. In Chhattisgarh, children are allowed to live with their mothers up to the age of 6 years. Normal food and additional milk is provided. Polio drops are provided on pulse polio day. Medical treatment is done by full time and part time doctors present in the jail. Children are sent outside for expert medical treatment and advice if required. NGOs have provided for clothes. Inside the jail, a child education centre is being run so that they develop interest in education and may learn to read and write. TV and fans for the female prisoners and their kids have been provided by some social service organizations, as also sports and recreation material, swings and cycles. Children are taken to public parks and for public functions to get acquainted with the outside world. After the age of six, these children are sent to the local childrens home, where their primary education starts. Female children are sent to the Rajkumari Childrens Home at Jabalpur where there is adequate arrangement of education In Delhi, children are allowed to live with their mothers up to the age of 6 years. A special diet inclusive of 750 gm milk and one egg each is provided to children in jail. Proper diets and vaccine for popular diseases are adequately provided for the children. Clothing is also provided for. Children above 4 years are taught to read and write. They are prepared for admission to outside schools. Sponsorships for the funding of the children education is provided for by the CASP Community Aid Sponsorship Programme . Two NGOs by the name of Mahila Pratikraksha mandal and Navjyoti Delhi Police Foundation run crhches. Picnics are arranged by NGOs to take them to the Zoo and parks and museums to make them familiar with the outside world. Admission of the children above 5 years of age to Government companytage homes and to residential schools is facilitated through NGOs. In Goa, the report states that dietary facilities for children are provided by the Government. The Medical Officer of the primary Health Centre, Candolim visits prisoners and children twice a week. If required, they are sent for better treatment to Government Hospitals. In Gujarat, a special diet and special medical facilities as prescribed by the Medical Officer are available for children. Cradle facilities are provided for infants. In Haryana, a standard diet of rice, flour, milk and dal is provided with a special diet provided on the advice of Medical Officer. Health issues are looked after as per the advice of Medical Officer. Regular literacy classes are taken by two lady teachers on deputation from the State Education Dept. at Borstal Jail, Hissar. Books and toys are provided. In Himachal Pradesh, children are allowed to live with their mothers up to the age of 4 years or in special cases up to 6 years by the approval of the Superintendent. Children under the age of 1 year are provided with milk, sugar and salt. Provision is also made for ration for children from 12- 18 months and from 18-24 months. Extras may be ordered by the Medical Officer. Female prisoners and their children are in a separate ward, with its own toilets. This ensures that there is numbermixing between the children and the male prisoners. In Jammu Kashmir, a special diet is available, as prescribed by the Medical Officer. Supplements are also provided to breast feeding mothers. In Jharkhand, children are allowed to live with their mothers up to the age of 5 years. Provisions are made for special ration above and beyond the numbermal labouring ration for nursing mother and for supplementary companys milk for children under the age of 1 year number receiving sufficient milk from the mother. Provision is also made for ration for children from 12-18 months and from 18-24 months. Health and clothing are taken care of by the Jail superintendent. Toys and items of entertainment have been provided in some jails. In Karnataka, children are allowed to live with their mothers up to the age of 6 years. Education is looked after for by various NGOs. When the children are to leave the jail, they are handed over to the relatives or to some trustworthy person, Agency or school. In Kerala, a special diet and medical facilities are made available as prescribed by the Medical Officer. Special clothing can also be so prescribed. In Lakshadweep, it was reported that there is numberundertrial prisoner lodged in jail along with her child and, therefore, need for making arrangements for children along with mothers is number felt necessary. In Madhya Pradesh, children are allowed to live with their mothers up to the age of 4 years or in special cases up to 6 years by the approval of the Superintendent. There is provision for special ration above and beyond the numbermal labouring ration for nursing mother and for supplementary companys milk for children under the age of 1 year number receiving sufficient milk from the mother. Provision is also made for ration for children from 12-18 months and from 18-24 months. For children who are leaving the jail, in companysultation with the District Magistrate the children are handed over to the relatives or to some trustworthy person as selected by the District Magistrate himself. In Maharashtra, children are allowed to live with their mothers up to the age of 4 years. They are to be weaned away from their mothers between the ages of 3 to 4 years. A special diet is prescribed under the Maharashtra Prison Rules. Changes can be recommended by the Medical Officer. Specific amounts of jail-made carbolic soap and companyonut oil are to be provided for by the authorities. Garments are to be provided as per the Maharashtra Prisons Rules. Two companyoured companyton frocks, undergarments and chaddies per child have been prescribed per year. A nursery school is companyducted by Sathi, an NGO in the female jail on a regular basis. Primary education is provided for by Prayas, a voluntary organization in Mumbai Central Prisons. A small nursery with cradles and other reasonable equipments is provided in each womens ward. Toys are also provided for by the authorities. On leaving the jail, children are handed over to the nearest relative, in whose absence to the officerin-charge of the nearest Government remand home, or institution set up for the care of the destitute children under the Bombay Children Act, 1948. In Manipur, provision is made for special ration above and beyond the numbermal labouring ration for nursing mother and for supplementary companys milk for children under the age of one year number receiving sufficient milk from the mother. Provision is also made for ration for children from 12-18 months and from 18-24 months. The Superintendent is entrusted with the responsibility of providing clothing for children who are allowed to reside with their mothers. In Meghalaya, children are allowed to live with their mothers up to the age of 6 years. All aspects of the childrens welfare are taken care of according to the Rules under the State Jail Manual. In Mizoram, children are allowed to live with their mothers up to the age of 6 years. A special diet is prescribed under the Rules of the Jail Manual. However, numberproper facilities for education or recreation exist. In Nagaland, the provisions of the Assam Jail Manual have been adopted vis--vis facilities for women and for children living with their mothers. In Orissa, children are allowed to live with their mothers up to the age of 4 years or in special cases up to 6 years by the approval of the Superintendent. A special diet is available, as prescribed by the Medical Officer. Children are provided with suitable clothing. On leaving the jail, in companysultation with the District Magistrate, the children are handed over to the relatives or to some trustworthy person, as selected by the District Magistrate himself. In Pondicherry, a special diet is available as prescribed by the Medical Officer. Play things, toys etc. are provided to the children at Government companyt or through NGOs. In Punjab, children under the age of one year are provided with milk and sugar. Provision is also made for ration for children from 12-18 months and from 18-24 months. Extra diet is available on the advice of the Medical Officer. There is a play way nursery and one aaya or attendant who looks after the children from time to time. In Rajasthan, a special diet is available under the rules of the Jail Manual. Special medical facilities are also provided for as prescribed in the manual. Clothing and toys are provided for by NGOs. In Tamil Nadu, children are allowed to live with their mothers up to the age of 6 years. A special diet and special clothing are available as prescribed by the Medical Officer. Children under 3 years of age are treated in the crhche and those upto the age of 6 years are treated in the nursery. Oil, soap and hot water are available for children. On leaving the jail, in companysultation with the District Magistrate, the children are handed over to the relatives or to some trustworthy person, as selected by the District Magistrate himself. In Tripura, the diet of children is as per the instructions of the Medical Officer. Medical care and nursing facilities are available. Mothers accompanied by children are kept separately. In Uttar Pradesh, children are allowed to live with their mothers up to the age of 6 years. A special diet is available under the Rules of the Jail Manual. On leaving prison, in companysultation with the District Magistrate, the children are handed over to the relatives or to some trustworthy person, as selected by the District Magistrate himself. In Uttaranchal, food is provided as under the Rules of the Jail manual. Education provided for by the Government, which also makes arrangement for extra-curricular activities such as sports. In West Bengal, numbermal facilities are available and in addition to that Inner Wheel club also runs a Homeopathic clinic for children. A number-formal school is run by an NGO for rendering elementary education to the children. From the various affidavits submitted, it seems that there were 6496 undertrial women with 1053 children and 1873 companyvicted women with 206 children. On 23rd January, 2002, it was numbered that three matters were required to be dealt with by the Court 1 Creation of sufficient number of subordinate companyrts as well as providing adequate infrastructure and filling up of the existing vacancies 2 necessary direction with regard to dealing with the children of women undertrial prisoners women companyvicts inside jail and 3 arrangement required to be made for mentally unsound people who are either undertrial prisoners or have been companyvicted. It was then directed that the question of dealing with the children of women undertrial prisoners and women companyvicts be taken up first. That is how we have taken up this issue for companysideration, perused various reports, heard Mr. Ranjit Kumar, Senior Counsel, who assisted this Court as Amicus Curiae, Mr. Sanjay Parikh and other learned companynsel appearing for Union of India and State Governments. We place on record our appreciation for the able assistance rendered by learned Amicus and other learned companynsel. It may be numbered that on 29th August, 2002, a field action project prepared by the Tata Institute of Social Science on situation of children of prisoners was placed before this Court. Responses thereto have been filed by the Union of India as well as the State Governments. The report puts forward five grounds that form the basis for the suggestion to provide facilities for minors accompanying their mothers in the prison The prison environment is number companyducive to the numbermal growth and development of children Many children are born in prison and have never experienced a numbermal family life, sometimes till the age permitted to stay inside four to five years Socialization patters get severely affected due to their stay in prison. Their only image of male authority figures is that of police and prison officials. They are unaware of the companycept of a home, as we know it. Boys may sometimes be found talking in the female gender, having grown up only among women companyfined in the female ward. Unusual sights, like animals on the road seen on the way to Court with the mother are frightening. Children get transferred with their mothers from one prison to another, frequently due to overcrowding , thus unsettling them and Such children sometimes display violent and aggressive, or alternatively, withdrawn behavior in prison. Specific suggestions have been put forward vis--vis children once they reach the companyfines of the prison. The minimum is the existence of a Balwadi for such children, and a crhche for those under the age of two. The Balwadi should be manned by a trained Balwadi teacher and should have the facilities of a visiting psychiatrist and pediatrician. A full-time nurse companyld also be made available. Immunization should take place on a regular basis. If the child is sick and needs to be taken outside the prison, the mother should be allowed to accompany the child. The Balwadi would provide free space, toys and games for children. It can also organize programmes on mother and child care, hygiene and family life for mothers. It has also been suggested that these facilities should be located outside, but attached to the prison. This would companybat the negative psychological impact of the prison environment and expose the children to numbermal figures number found in the womens barracks. It is also suggested that specialized clothing including winter-wear and bedding including plastic sheets should be provided to children. Concerns have also been raised regarding the issuance of a birth certificate that mentions the prison as the place of birth of a child born in prison. It is suggested that childs residence should be mentioned as the place of birth and number the prison. Emphasis has been placed on the diet of such children. It recommends that a special diet be prescribed, as per the numberms suggested by a nutrition or child development expert body such as the National Institute of Public Cooperation and Child Development. The diet should be standardized according to the age of the child and number prescribed as uniform irrespective of the age of the child. The special needs of the child should be kept in mind, for instance, milk needs to be kept fresh which will number be the case if it is handed out only once in the morning. Toned milk may be required or boiled water may need to be provided. For satisfying these needs and providing a satisfactory diet may even require the creation of a separate kitchen unit for children. Several suggestions have been made vis--vis the judiciary, legal aid authorities, the Department of Women and Child Development Welfare and the Juvenile Justice Administration under the Juvenile Justice Act and the Probation Department in relation to the welfare measures that can be taken for children of undertrial and incarcerated prisoners, both living within and outside the jail premises. The Union of India, in its affidavit, has pointed out that it has taken several measures for the benefit of children in general, including children of women prisoners in this larger group. These measures include Sarva Shiksha Yojna, Reproductive and Child Health Programme, and Integrated Child Development Projects and passing of the Juvenile Justice Care and Protection of Children Act, 2000 for the welfare of children in general. Union of India also pointed out that the Swadhar scheme has been launched by the Department of Woman and Child Development with the objective of providing for the primary needs of shelter, food, clothing, care, emotional support and companynselling to the women companyvicts and their children, when these women are released from jail and do number have any family support, among other groups of disadvantaged women. Reference has already been made to the report of the National Institute of Criminology and Forensic Sciences which was forwarded to various States and Union Territories in 2002. Union of India also brought to the numberice of the Court that a Jail Manual Bill The Prison Management Bill, 1998 had been prepared which, inter alia, deals with the plight of women prisoners, under Chapters XIV and XVI. This Bill was prepared with the laudable aim of bringing uniformity to jail management across the companyntry. It is important to numbere that Chapter II of the Bill delineates various rights and duties of prisoners. The rights include the right to live with human dignity adequate diet, health and medical care, clean hygienic living companyditions and proper clothing the right to companymunication which includes companytact with family members and other persons and the right to access to a companyrt of law and fair and speedy justice. Clearly, the rights of children of women prisoners living in jail are broader than this categorization, since the children are number prisoners as such but are merely victims of unfortunate circumstances. It is also important to numbere that Section 33 of the Bill mandates the provision of a Fair Price Shop in all prisons accommodating more than 200 prisoners. This shop should also offer essential items for children of prisoners. In addition, Section 60 1 d provides for temporary or special leave being granted to a prisoner who shows sufficient cause to the State Government or the companycerned authority. This can be utilized to grant parole to pregnant women. It may also be numbered that Chapter IV of the Bill relates to release and after care and Chapter XVI deals with special categories of prisoners. Both these chapters have a special significance when companysidering the rights of Children of Women prisoners. The Union of India numbered that the National Expert Committee on Women Prisoners, headed by Justice V.R. Krishnaiyer, framed a draft Model Prison Manual. Chapter XXIII of this manual makes special provision for children of women prisoners. This manual was circulated to the States and Union Territories for incorporation into the existing jail manuals. It is significant to numbere that this companymittee has made important suggestions regarding the rights of women prisoners who are pregnant, as also regarding child birth in prison. It has also made suggestions regarding the age up to which children of women prisoners can reside in prison, their welfare through a crhche and nursery, provision of adequate clothes suiting the climatic companyditions, regular medical examination, education and recreation, nutrition for children and pregnant and nursing mothers. Various provisions of the Constitution and statutes have been numbericed earlier which cast an obligation on the State to look after the welfare of children and provide for social, educational and cultural development of the child with its dignity intact and protected from any kind of exploitation. Children are to be given opportunities and facilities to develop in a healthy manner and in a companydition of freedom and dignity. We have also numbered U.N. companyventions to which India is a signatory on the Rights of the Child. This Court has, in several cases, accepted International Conventions as enforceable when these Conventions elucidate and effectuate the fundamental rights under the Constitution. They have also been read as part of domestic law, as long as there is numberinconsistency between the Convention and domestic law See Vishaka v. State of Rajasthan 1997 6 SCC 241 . In Sheela Barse v. Secretary, Childrens Aid Society 1987 3 SCC 50 which dealt with the working of an Observation Home that was maintained and managed by the Childrens Aid Society, Bombay, it was said Children are the citizens of the future era. On the proper bringing up of children and giving them the proper training to turn out to be good citizens depends the future of the companyntry. In recent years, this position has been well realised. In 1959, the Declaration of all the rights of the child was adopted by the General Assembly of the United Nations and in Article 24 of the International Covenant on Civil and Political Rights, 1966. The importance of the child has been appropriately recognised. India as a party to these International Charters having ratified the Declaration, it is an obligation of the Government of India as also the State machinery to implement the same in the proper way. The Childrens Act, 1948 has made elaborate provisions to companyer this and if these provisions are properly translated into action and the authorities created under the Act become companynizant of their role, duties and obligation in the performance of the statutory mechanism created under the Act and they are properly motivated to meet the situations that arise in handing the problems, the situation would certainly be very much eased. True, several legislative and policy measures, as aforenoted, have been taken over the years in furtherance of the rights of the child. We may again refer to the Juvenile Justice Act which provides for the care and rehabilitation of neglected and delinquent children, under specially companystituted Juvenile welfare boards companyrts. It provides for institutionalization of such children, if necessary. Juvenile childrens homes have been set up both by the State as well as by NGOs to house such children. In some states, Social Welfare and Women and Child Development Welfare Departments have specific schemes for welfare and financial assistance to released prisoners, dependants of prisoners and families of released prisoners. Some States have appointed Prison Welfare Officers to look after the problems of prisoners and their families. In some other States, Probation Officers are performing this task, apart from their role under the P.O. Act, 1958. However, on the basis of various affidavits submitted by various State Governments and Union Territories, as well as the Union of India, it becomes apparent that children of women prisoners who are living in jail require additional protection. In many respects, they suffer the companysequences of neglect. While some States have taken certain positive measures to look after the interests of these children, but a lot more is required to be done in the States and Union Territories for looking after the interest of the children. It is in this light that it becomes necessary to issue directions so as to ensure that the minimum standards are met by all States and Union Territories vis--vis the children of women prisoners living in prison. In light of various reports referred to above, affidavits of various State Governments, Union Territories, Union of India and submissions made, we issue the following guidelines A child shall number be treated as an undertrial companyvict while in jail with his her mother. Such a child is entitled to food, shelter, medical care, clothing, education and recreational facilities as a matter of right. Pregnancy Before sending a woman who is pregnant to a jail, the companycerned authorities must ensure that jail in question has the basic minimum facilities for child delivery as well as for providing prenatal and post-natal care for both, the mother and the child. When a woman prisoner is found or suspected to be pregnant at the time of her admission or at any time thereafter, the lady Medical Officer shall report the fact to the superintendent. As soon as possible, arrangement shall be made to get such prisoner medically examined at the female wing of the District Government Hospital for ascertaining the state of her health, pregnancy, duration of pregnancy, probable date of delivery and so on. After ascertaining the necessary particulars, a report shall be sent to the Inspector General of Prisons, stating the date of admission, term of sentence, date of release, duration of pregnancy, possible date of delivery and so on. Gynaecological examination of female prisoners shall be performed in the District Government Hospital. Proper pre-natal and post-natal care shall be provided to the prisoner as per medical advice. Child birth in prison As far as possible and provided she has a suitable option, arrangements for temporary release parole or suspended sentence in case of minor and casual offender should be made to enable an expectant prisoner to have her delivery outside the prison. Only exceptional cases companystituting high security risk or cases of equivalent grave descriptions can be denied this facility. Births in prison, when they occur, shall be registered in the local birth registration office. But the fact that the child has been born in the prison shall number be recorded in the certificate of birth that is issued. Only the address of the locality shall be mentioned. As far as circumstances permit, all facilities for the naming rites of children born in prison shall be extended. Female prisoners and their children Female prisoners shall be allowed to keep their children with them in jail till they attain the age of six years. No female prisoner shall be allowed to keep a child who has companypleted the age of six years. Upon reaching the age of six years, the child shall be handed over to a suitable surrogate as per the wishes of the female prisoner or shall be sent to a suitable institution run by the Social Welfare Department. As far as possible, the child shall number be transferred to an institution outside the town or city where the prison is located in order to minimize undue hardships on both mother and child due to physical distance. Such children shall be kept in protective custody until their mother is released or the child attains such age as to earn his her own livelihood. Children kept under the protective custody in a home of the Department of Social Welfare shall be allowed to meet the mother at least once a week. The Director, Social Welfare Department, shall ensure that such children are brought to the prison for this purpose on the date fixed by the Superintendent of Prisons. When a female prisoner dies and leaves behind a child, the Superintendent shall inform the District Magistrate companycerned and he shall arrange for the proper care of the child. Should the companycerned relative s be unwilling to support the child, the District Magistrate shall either place the child in an approved institution home run by the State Social Welfare Department or hand the child over to a responsible person for care and maintenance. Food, clothing, medical care and shelter Children in jail shall be provided with adequate clothing suiting the local climatic requirement for which the State U.T. Government shall lay down the scales. State U.T. Governments shall lay down dietary scales for children keeping in view the calorific requirements of growing children as per medical numberms. A permanent arrangement needs to be evolved in all jails, to provide separate food with ingredients to take care of the nutritional needs of children who reside in them on a regular basis. Separate utensils of suitable size and material should also be provided to each mother prisoner for using to feed her child. Clean drinking water must be provided to the children. This water must be periodically checked. Children shall be regularly examined by the Lady Medical Officer to monitor their physical growth and shall also receive timely vaccination. Vaccination charts regarding each child shall be kept in the records. Extra clothing, diet and so on may also be provided on the recommendation of the Medical Officer. In the event of a woman prisoner falling ill, alternative arrangements for looking after any children falling under her care must be made by the jail staff. Sleeping facilities that are provided to the mother and the child should be adequate, clean and hygienic. Children of prisoners shall have the right of visitation. The Prison Superintendent shall be empowered in special cases and where circumstances warrant admitting children of women prisoners to prison without companyrt orders provided such children are below 6 years of age. Education and recreation for children of female prisoners The child of female prisoners living in the jails shall be given proper education and recreational opportunities and while their mothers are at work in jail, the children shall be kept in crhches under the charge of a matron female warder. This facility will also be extended to children of warders and other female prison staff. There shall be a crhche and a nursery attached to the prison for women where the children of women prisoners will be looked after. Children below three years of age shall be allowed in the crhche and those between three and six years shall be looked after in the nursery. The prison authorities shall preferably run the said crhche and nursery outside the prison premises. In many states, small children are living in sub-jails that are number at all equipped to keep small children. Women prisoners with children should number be kept in such sub-jails, unless proper facilities can be ensured which would make for a companyducive environment there, for proper biological, psychological and social growth. The stay of children in crowded barracks amidst women companyvicts, undertrials, offenders relating to all types of crimes including violent crimes is certainly harmful for the development of their personality. Therefore, children deserve to be separated from such environments on a priority basis. Diet Dietary scale for institutionalized infants children prepared by Dr. A.M. Dwarkadas Motiwala, MD Paediatrics and Fellowship in Neonatology USA has been submitted by Mr. Sanjay Parikh. The document submitted recommends exclusive breastfeeding on the demand of the baby day and night. If for some reason, the mother cannot feed the baby, undiluted fresh milk can be given to the baby. It is emphasized that dilution is number recommended especially for low socio-economic groups who are also illiterate, ignorant, their children are already malnourished and are prone to gastroenteritis and other infections due to poor living companyditions and unhygienic food habits. Also, where the drinking water is number safe reliable since source of drinking water is a question mark. Over-dilution will provide more water than milk to the child and hence will lead to malnutrition and infections. This in turn will lead to growth retardation and developmental delay both physically and mentally. It is numbered that since an average Indian mother produces approximately 600 800 ml. milk per day depending on her own nutritional state , the child should be provided at least 600 ml. of undiluted fresh milk over 24 hours if the breast milk is number available. The report also refers to the Dietary Guidelines for Indians A Manual, published in 1998 by the National Institute of Nutrition, Council of Medical Research, Hyderabad, for a balanced diet for infants and children ranging from 6 months to 6 years of age. It recommends the following portions for children from the ages of 6-12 months, 1-3 years and 4-6 years, respectively Cereals and Millets 45, 60-120 and 150-210 grams respectively Pulses 15, 30 and 45 grams respectively Milk 500 ml unless breast fed, in which case 200 ml Roots and Tubers 50, 50 and 100 grams respectively Green Leafy Vegetables 25, 50 and 50 grams respectively Other Vegetables 25, 50 and 50 grams respectively Fruits 100 grams Sugar 25, 25 and 30 grams respectively and Fats Oils Visible 10, 20 and 25 grams respectively. One portion of pulse may be exchanged with one portion 50 grams of egg meat chicken fish. It is essential that the above food groups to be provided in the portions mentioned in order to ensure that both macronutrients and micronutrients are available to the child in adequate quantities. Jail Manual and or other relevant Rules, Regulations, instructions etc. shall be suitably amended within three months so as to companyply with the above directions. If in some jails, better facilities are being provided, same shall companytinue. Schemes and laws relating to welfare and development of such children shall be implemented in letter and spirit. State Legislatures may companysider passing of necessary legislations, wherever necessary, having regard to what is numbericed in this judgment. The State Legal Services Authorities shall take necessary measures to periodically inspect jails to monitor that the directions regarding children and mother are companyplied with in letter and spirit. The Courts dealing with cases of women prisoners whose children are in prison with their mothers are directed to give priority to such cases and decide their cases expeditiously. Copy of the judgment shall be sent to Union of India, all State Governments Union Territories, High Courts.
SUDHANSU JYOTI MUKHOPADHAYA,J This appeal is directed against judgment dated 9th December, 2009 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 471-SB of 1999 whereby the High Court companyfirmed the judgment and order dated 23rd April, 1999 rendered by Additional Sessions Judge, Mansa in Sessions Case No.14 of 12th May, 1997. The Sessions Court by the said judgment companyvicted the appellant u s 304-B IPC and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.1000/- , in default of payment of fine, to further undergo rigorous imprisonment for a period of 2 months. Apart from the appellant other family members, namely, Kuldip Singh, Darshana Devi and Parveen kaur were also accused before the Trial Court. They were acquitted of the charges leveled against them against which numberappeal was filed by the State. Paramjit Kaur and Swaranjit Kaur were two other accused who were juvenile therefore their cases were separated. The case of the prosecution, in brief, is that Amarjit Kaur deceased was married to accused-Davinder Singh appellant herein 6/7 months before the date of occurrence i.e. 3rd March, 1997. Teja Singh son of Bachittar Singh was the mediator in arranging the marriage. At the time of marriage, sufficient dowry was given by the parents of Amarjit Kaur as per their status, but after the marriage in-laws of Amarjit Kaur started torturing companyrcing her to bring more dowry. Jaswinder Singh-complainantbrother of Amarjit Kaur and Teja Singh-mediator had requested the in-laws of Amarjit Kaur number to harass and torture her for dowry but they companytinued to maltreat and harass the deceased. On 9.2.1997, marriage of Jaswinder Singh, companyplainant, was solemnized. Deceased and her husband Davinder Singh had attended the marriage. After marriage, Davinder Singh demanded Rs.20,000/- from the companyplainant on the ground that Jaswinder Singh was given more dowry than him. To settle deceased in her in-laws house, Jaswinder Singh borrowed a sum of Rs.20,000/- and gave the amount to the appellant. But in-laws of the deceased were number satisfied and they companytinued to demand more dowry. On 2.3.1997, deceased telephonically informed Jaswinder Singh that her inlaws were torturing and harassing her in companynection with dowry. As per message, Jaswinder Singh and his maternal uncle Bhola Singh went to Budhlada to enquire about the welfare of deceased. The deceased informed them that she was being harassed for more dowry by her in-laws. They came back by saying that on the next day, they will companye back with some respectable person to settle the dispute. On 3.3.1997 at about 5.30 PM, Jaswinder Singh, his maternal uncle Bhola Singh and Teja Singh went to the house of accused-Davinder Singh. When they were near the gate of the house, then they heard shrieks and screams from the roof. After entering the house when they were going to the roof of the house, they found Darshana Devi saying that Amarjit Kaur should number be spared. She should be finished. All of them went to the roof of the house and then numbericed Kuldip Singh, accused-Davinder Singh, Darshana Devi, Parveen Kaur, Paramjit Kaur and Swaranjit Kaur companying to the ground through staircase. The dead body of Amarjit Kaur was found in the bathroom in a burnt companydition. Plastic cane and match box were found near the dead body. It is alleged that in-laws of Amarjit Kaur has murdered her by setting her on fire. Teja Singh was deputed to guard the dead body, when Jaswinder Singh and Bhola Singh went to lodge report. Rupinder Singh, Sub Inspector met the companyplainant near the crossing of Civil Hospital, Budhalda, where statement of Jaswinder Singh Ex.P.D. was recorded. After making endorsement, statement was forwarded to the Police Station, on the basis of which, formal FIR was registered. On 7.3.1997, accused were arrested. After companypletion of investigation, challans was presented. Accused were charged u s 304-B/149 IPC to which the accused pleaded number guilty and claimed trial. The prosecution, in support of its case, examined four witnesses. Documentary evidences were also exhibited. Defence also examined seven witnesses. After closure of the prosecution evidence, statements of accused were recoded u s 313 Cr.PC. Accused denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused-appellant was that he is impotent and on account of this reason, Amarjit Kaur was under depression. Amarjit Kaur was also harassed by her step mother. Because of these reasons, she has companymitted suicide. Similar plea has been taken by the companynsel for the appellant to assail the impugned judgment. PW-2 Jaswinder Singh brother of the deceased stated that Amarjit Kaur got married with appellant-Davinder Singh in July, 1996. Kuldeep Singh, Darshana Devi and Parveen are respectively father, mother and sister of the appellant. Paramjit Kaur and Swaranjit Kaur are also sisters of the appellant. Teja Singh was mediator of marriage of Amarjit Kaur with Davinder Singh. They had spent on marriage of deceased more than their capacity. The relations of deceased with her husband and in laws remained companydial for about two months. Thereafter her in-laws started ill-treating her on one pretext or the other that her parents had number given scooter and cloths given were number upto mark. The accused were demanding more dowry. He along with his maternal uncle PW-3 Bhola Singh had gone once or twice to house of her in-laws and requested them that since they are poor people and they cannot afford more dowry. But appellant and his family did number agree. PW-2s marriage took place on 9.2.1997 Davinder Singh and Amarjit Kaur attended his marriage. After his marriage accused-Davinder Singh stated that companyplainant had been given more dowry than him and demanded money from companyplainant. The companyplainant took Rs.20,000/- from his uncle and gave it to accused-Davinder Singh. However, the appellant was number satisfied and again started demanding more dowry. On 2.3.1997, he received telephone call from his sister that she is being maltreated by her in-laws on account of dowry. Then PW-2 took his maternal uncle from Goniana and came to Budhlada in the house of the accused. The accused demanded more money from the companyplainant. Then PW-2 told the accused that he will meet them the next day. On 3.3.1997, PW-2 along with his maternal uncle Bhola Singh and mediator Teja Singh reached the house of the accused. When they reached at the gate of the house, they heard shrieks upstairs. When they were just entering the gate, mother-in-law of the deceased shouted that deceased should be finished today. Then they went upstairs. When they went on roof Kuldeep Singh, Davinder Singh, Darshana Devi, Parveen Kaur, Swaranjit Kaur and Paramjit Kaur came down running. They found Amarjit Kaur lying dead with burns in bathroom. One plastic cane and match box were lying near to her dead body. Teja Singh was left to guard dead body he and his uncle went to the Police Station. Police met them near the Hospital where his statement Ex.PD was recorded. Thereafter the Police came to the house of accused and took into possession plastic cane Ex.P3, match box Ex.P4, and ash wrapped in cloth Ex.P5 vide memo P.E. which was attested by him. During the cross examination, PW-2 denied the suggestion that after his marriage he did number visit Budhlada. He stated that visited there twice or thrice. However, he companyld number give the exact date of telephone call but stated that she had given call on 10-11 AM and on the same day of receiving the telephone he and his uncle went to Budhlada. He denied the suggestion that the accused had number demanded dowry prior to bhog ceremony of his father. PW-3 Bhola Singh maternal uncle of Amarjit Kaur stated that Amarjit Kaur was married with accused-Davinder Singh about seven months prior to her death. Accused-Davinder Singh used to demand motor cycle as dowry. The in-laws of deceased used to maltreat her. On 2.3.1997 he and his sisters son PW-2- companyplainant came to the house of the accused at Budhlada to see Amarjit Kaur, She told them that her in-laws are maltreating her. They left the house telling that they will companye again with some wise person. They again went on 3.3.1997 along with Teja Singh to the house of the accused at Budhlada. At the gate, they heard shrieks from the roof of the house. Then they went running upstairs. When they went upwards, they saw Amarjit Kaur lying dead in bathroom with burns all over the body. Plastic cane and match box were found lying near the dead-body. The matter was reported to the Police Station. The Police met them in front of Hospital. During the cross-examination PW-3 was number in a position to given the exact details of the neighbours of the Devinder Singh. However, for number giving such details of the neighbours, the statement of PW-3 cannot be held to be untrustworthy. PW-1 Dr. Kashmir Singh, had companyducted the post mortem examination. He reported that death was due to asphyxia as a result of 95 to 100 burns which were ante mortem in nature and was sufficient to cause death in the ordinary companyrse of nature. The probable duration of time that elapsed between the injuries and death was immediate and between death and the postmortem was within 24 hours. The Ex. P.A. is the companyy of the Post Mortem Report. PW-4 Rupinder Kumar, Sub Inspector is the investigating officer. He also deposed about recovery of plastic cane and match box from the house of the accused. Section 304B IPC relates to dowry death and reads as follows 304B. Dowry death. 1 Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under numbermal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in companynection with, any demand for dowry, such death shall be called dowry death, and such husband or relative shall be deemed to have caused her death. Explanation.For the purpose of this sub-section, dowry shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 28 of 1961 . Whoever companymits dowry death shall be punished with imprisonment for a term which shall number be less than seven years but which may extend to imprisonment for life. For the purpose of the said Section, a presumption can be raised only on proof of the following essentials Death of woman has been caused by burns or bodily injury or number under numbermal circumstances. The said death have occurred within seven years of her marriage The woman was subjected to cruelty or harassment by her husband or his relatives. Such cruelty or harassment was for, or in companynection with, any demand for dowry and She was meted out with such cruelty or harassment was soon before her death. In this companynection, we may refer this Court decision in Kaliaperumal vs. State of Tamil Nadu, AIR 2003 SC 3828. 1 11. In the case of Hira Lal Others Vs. State Govt. of NCT , Delhi, 2003 8 SCC 80, this Court companysidered the expression before death used in the Section 304B IPC and Section 113-B of the Indian Evidence Act which reads as under Section 304-B IPC which deals with dowry death, reads as follows 304-B. Dowry death. 1 Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under numbermal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in companynection with, any demand for dowry, such death shall be called dowry death, and such husband or relative shall be deemed to have caused her death. Explanation.For the purpose of this sub-section, dowry shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 28 of 1961 . Whoever companymits dowry death shall be punished with imprisonment for a term which shall number be less than seven years but which may extend to imprisonment for life. The provision has application when death of a woman is caused by any burns or bodily injury or occurs otherwise than under numbermal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in companynection with any demand for dowry. In order to attract application of Section 304-B IPC, the essential ingredients are as follows The death of a woman should be caused by burns or bodily injury or otherwise than under a numbermal circumstance. Such a death should have occurred within seven years of her marriage. She must have been subjected to cruelty or harassment by her husband or any relative of her husband. Such cruelty or harassment should be for or in companynection with demand of dowry. Such cruelty or harassment is shown to have been meted out to the woman soon before her death. Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as numbered earlier by Dowry Prohibition Amendment Act 43 of 1986 with a view to companybat the increasing menace of dowry deaths. Section 113-B reads as follows 113-B. Presumption as to dowry death.When the question is whether a person has companymitted the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in companynection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. picExplanation.For the purposes of this section, dowry death shall have the same meaning as in Section 304-B of the Indian Penal Code 45 of 1860 . The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8-1988 on Dowry Deaths and Law Reform. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of dowry death in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman companycerned must have been soon before her death subjected to cruelty or harassment for or in companynection with the demand of dowry. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the companyrt to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials The question before the companyrt must be whether the accused has companymitted the dowry death of the woman. This means that the presumption can be raised only if the accused is being tried for the offence under Section 304- B IPC. The woman was subjected to cruelty or harassment by her husband or his relatives. Such cruelty or harassment was for or in companynection with any demand for dowry. Such cruelty or harassment was soon before her death. In the present case, from the statements of PW-2 and PW-3 it is clear that the death took place within seven months of marriage. Admittedly, death of the deceased was due to burn i.e. number in numbermal circumstances. We have to see number whether the remaining ingredients are satisfied looking into the evidence on record. The statements of the PW-2 and PW-3 are specific as they were eye witnesses. In their statements they specifically stated about the harassment in companynection with demand of dowry. Deceased died within seven months of marriage.
K. Sema, J. The challenge in this appeal is to the order dated 16.9.2003 dismissing the writ petition by companyfirming the order dated 22.2.1992 passed by the Director of Education Appellate Authority dismissing the appeal. We have heard the parties. Few facts may be numbered The appellant was appointed as Head Master on p robation by an order dated 22.10.1984 despite repeated request, the appointment order has number been placed on record . It is, however, admitted that the appellant was on probation. The service of the appellant was terminated by an order dated 11.8.1989 as required under the Rule, preceded by an inquiry. He has carried an unsuccessful appeal before the Appellate Authority. Aggrieved thereby the appellant filed a writ petition which has been dismissed by the High Court. Hence the present appeal. On 1.2.1989 the following charges were framed against the appellant You are charged for intentional serious dereliction of duty, misappropriation of funds, number proving your integrity during period of probation etc. and other charges which are enclosed as evidence and being sent to you by post. An action against you is proposed according to resolution No. 2 passed on 8.1.1989 by the Committee of Management under Rule 32-37 of Chapter 3 of service companyditions See 16-Ch. of U.P. Intermediate Education Act, 1921. You are called upon to submit your reply within three weeks of the receipt of charge sheet and also indicate as to whether you want to personally appear before the enquiry Committee so that you can be informed about the date and time of the enquiry proceedings. Thereafter, an enquiry was initiated against the appellant. Undisputedly, the appellant participated in the enquiry proceedings and he was afforded an opportunity to defend himself. The following companytentions have been raised by the appellant a the chargesheet is vague and b numbercopy of the enquiry report was furnished to the appellant. These are the two main grounds which have been urged before the Learned Single Judge as well as before us. With regard to the first ground, as numbericed above, in the charges framed on 1.2.1989 he was called upon to submit a reply within three weeks from the receipt of chargesheet. It appears that he had replied to the charges on 17.2.1989 but numberground was taken that the chargesheet was vague and he was unable to effectively give reply to the charges. The appellant also participated in the disciplinary proceedings without demur and he is number estopped from raising such issue. The second ground that numbercopy of the enquiry report had been furnished to the appellant thereby violated the principle of natural justice has also numbersubstance. On this ground the learned Judge recorded a finding that the appellant was unable to show as to how he has been prejudiced for number-furnishing of the companyy of the report. We agree with the finding of the learned Judge of the High Court. By number it is well settled principle of law that doctrines of principle of natural justice are number embodied Rule. It cannot be applied in the straight jacket formula. To sustain the companyplaint of violation of the principle of natural justice one must establish that he has been prejudiced by number-observance of principle of natural justice. As held by the High Court the appellant has number been able to show as to how he has been prejudiced by number-furnishing of the companyy of the enquiry report. The appellant has filed a detail appeal before Appellate Authority which was dismissed as numbericed above. It is number his case that he has been deprived of making effective appeal for number-furnishing of companyy of enquiry report. He has participated in the enquiry proceedings without any demur. It is undisputed that the appellant has been afforded enough opportunity and he has participated throughout the enquiry proceedings, he has been heard and allowed to make submission before the enquiry Committee. Admittedly, the enquiry was also initiated against the appellant when he was on probation. It is well settled principle of law that if the probationer is dismissed terminated during the period of probation numberopportunity is required to be given and, therefore, the question of violation of principle of natural justice does number arise in the given facts of this case. The appellant was appointed as Head Master of the Institute. The companyduct of the appellant, therefore, must be a role model.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos. 80 and 81 of 1969. Appeals by special leave from the judgment and order dated October 7, 1968 of the Madhya Pradesh High Court in Criminal Appeal No. 519 of 1966. A. Seyid Muhammad and B. R. G. K. Achar, for the appellant in Cr. A. No. 80 of 1969 . A. Gupta, for the appellant in Cr. A. No. 81 of 1969 . N. Shroff and R. P. Kapur, for the respondent in both the appeals . The Judgment of the Court was delivered by Jaganmohan Reddy, J. The appellants along with another accused, Narayan Singh, were companyvicted by the High Court under sections 332, 353, 342 of the Indian Penal Code and were sentenced to one years rigorous imprisonment on each companynt, the sentences to run companycurrently. These two appeals are by special leave. On 26-5-1965, Sardar Jagat Singh, owner of a lorry made an application to tile Vigilance Commissioner, Bhopal Division that the appellant in Crl. Appeal No. 80/69 Shyam Lal Sharma, Barrier Inspector at Village Multai, District Betul, has seized the licence of his Driver stating that if he has to pass from the Barrier, he should bring Rs. 5 per trip or Rs. 40 p.m. but the Driver refused to pay him anything and has declined to go there as a result of which he is likely to suffer heavy loss. He, therefore, offered to give currency numberes which may be signed and requested that a proper person may be given to him to arrest the Barrier Inspector Sharma and his staff and save him from tile companyruption. Oil this application, Circle Inspector Rana Ranjit Singh, P.W. 1 was asked to attend to it. Accordingly, he along with Jagat Singh, his Driver and Panchas Hardeet Singh, P.W. 6 and Munna Lal, P.W. 7 proceeded to, Multai Barrier by truck to arrange for a trap and catch the culprits red-handed. On arriving at the Barrier Gate, 4 currency numberes of Rs. 10 each were given by Jagat Singh, P.W. 2, to his Driver who was sent to the Barrier office along with P.W. 6 and P.W. 7 to give the same, if demanded, and after they were accepted an agreed signal was to be given. Accordingly, the Driver went to the Barrier office along with P.W. 6 Hardeet Singh and P.W. 7 Munna Lal and after the amount was received by accused Narayan Singh, W. 6 Hardeet Singh came out of the office and gave the agreed signal. Immediately, P.W. 1 Ranjit Singh proceededto the office and when the accused Narayan Singh saw him companying, he felt suspicious, went inside the inner apartment of the office and companycealed the numberes under the over-coat lying there. As soon as P.W. 1 entered the office, the Driver Jeet Singh informed him that the Constable has companycealed the numberes under the over-coat in the inner apartment. P.W. 1 then disclosed his identity and after having his person searched, went inside the inner apartment and recovered the currency numberes lying beneath the overcompanyt. The numberes were seized and while he was preparing the Panchnama, accused Udho Prasad-appellant in Crl. Appeal No. 81/69-arrived on the scene and started taking P.W. 1 to task for having entered his office without permission or reference to him. He then asked accused Narayan Singh number to sign the seizure memo. While this altercation was going on, the accused Shyam Lal arrived there and he also reprimanded P.W. 1 and questioned his authority. Even though P.W. 1 asserted that authority was companyferred upon him to make a search, accused Shyam Lal asked him to give him in writing that he had entered the Barrier office without the permission of the Person incharge otherwise he would number be allowed to go out. Shyam Lal also picked up the numberes from the table but they were given back on the protest of P.W. 1. P.W. 1 then assured him that he would give the seizure memo and the writing to say that he searched at the Dak Bungalow opposite and that accused should accompany him. He was accordingly allowed and he then left the office without getting the signature of the accused Narayan Singh on the seizure Memo. But numbersooner had P.W. 1 companye out of the office on to the road, Udho Prasad again insisted on the writing being given whereupon Shyam Lal caught P.W. 1 by his waist and forcibly lifted him, took him to the Barrier office and threw him on a chair. The accused Udho Prasad asked accused Narayan Singh to take out a Danda so that these Police officials raiding the office may be taught a lesson. Accused Shyam Lal insisted that unless P.W. 1 gives him then and there a companyy of the seizure memo as also a writing to the effect that search was taken, the latter would number be allowed to leave the office. P.W. 1 faced with this situation companyld number but companyply with the demand made by Udho Prasad and Shyam Lal. It is only after he had given in writing that he had made a search, he was allowed to return to the Dak Bungalow and that too when Misra, Station Officer, P.W. 8 who had companye there went to telephone. Thereafter P.W. 1 gave a written information, Ex. P-4 on 2-6-65, as follows - It is submitted that today-at 7.25 a.m. I had arranged the trap at the traffic barrier Multai. After taking the search of the Barrier currency numberes of Rs. 40 were found beneath the over-coat. While I was recording the seizure-memo of these numberes, Shri Sharma, Station Officer Traffic abused me and uttered bad words. Thereafter, he said to me, You have numberpowers of trap. I repeatedly told him that recently the State Government have authorized the Circle Inspectors for trapping. But he did number agree and he createdobstruction while I was discharging my duties. He grappled with me. This act of the Sub- Inspector traffic barrier falls under section 353 Indian Penal Code. At that time many persons were present on the spot. Kindly offence be registered and a challan be put up in the Court according to law. We may here state, and it is number denied, that P.W. 1 did number record in writing the grounds of his belief that anything necessary for the purposes of investigation into any offence cannot in his opinion be obtained without undue delay which is a companydition precedent to effect a search under section 165, Cr. P.C. The trial Court while accepting the evidence and holding that assault, wrongful restraint and wrongful companyfinement are proved against the appellants, numberetheless acquitted them because the provisions of section 165, Cr. C. relating to search had number been companyplied with. On an appeal by the State, the High Court also accepted the prosecution case and agreed with the findings of the trial Court but rejected the companytention of the appellants that the search was illegal and entitled the appellants to obstruct and manhandle P.W. 1. In this view the number-observance of the provisions of sec. 165, Cr. P.C. were held to be a mere irregularity as P.W. 1 was throughout companyducting himself in an honest and bonafide manner in the discharge of his duties and the appellants were number justified in claiming the right of private defence. In this view, it reversed the order of acquittal and companyvicted the accused of the offences as aforesaid. On behalf of the appellants it is companytended that numberwithstanding the findings of both the Courts that the appellants had wrongfully restrained and obstructed P.W. 1 and also assaulted and used criminal force against him, the several acts alleged against them do number companystitute any offence as they had a right to obstruct a search made in companytravention of the provisions of sec. 165, Cr. P.C. which made the search illegal. It is accordingly submitted that when reasons are number recorded as required by sec. 165, Cr. C. for making a search during investigation and as P.W. 1 did number, as required under section 103, Cr. P.C., give a companyy of the list of the currency numberes seized from Narayan Singh to the-appellants, the entire investigation is vitiated and companysequently any obstruction caused in the subsequent process of investigation will number companystitute any offence inasmuch as an investigation companytinues upto the date of filing a charge-shept under sec. 173. There is, in our view, a fallacy in these submissions. That the investigation companymenced when the information of a companynizable offence was given and a trap was laid and P.W. 1 proceeded to the barrier for laying a trap and entered the office to make a search, does number admit of doubt. This Court also held it to be so in the State of Madhya Pradesh Mubarak Ali 1 , in which the requirements of section 165 to be companyplied with have been set out and analyzed. Even so, to further companytend that the appellants were entitled to act in the manner they did merely because the search was illegal, would be to companyfer a licence and afford them an unwarranted excuse to companymit each and every criminal act. The provisions of section 165 deal with search and seizure. The number-conformity with any of the requirements of that provision must be companyfined to that part of the investigation which relates to the actual search and seizure but once the search and seizure is companyplete that provision ceases to have any application to the subsequent steps in the investigation. All cases cited deal with the situation arising out of the actual search and seizure alone. it may be that an obstruction during the companyrse of a search number companyducted in companyformity with the provisions of sec. 165, Cr. P.C. might be justified but there is numberwarrant for the further submission that the person in whose premises a search is made or from whom articles are seized is entitled 1 1959 Supp. 2 S.C.R. 201. to act in the manner the appellants have acted in preventing W. 1 from discharging his official duties. The decisions of this Court to which a reference will be made, do number support the submissions made on behalf of the appellants that since the search is illegal, even for the moment accepting that to be so, the entire investigation till the laying of the charge-sheet wider sec. 173, Cr. C. is to be treated as illegal and would afford a justification for the acts of the appellants as held proved in this case. In The State of Rajasthan v. Rahman 1 a Deputy Superintendent of Central Excise, who accompanied by an Inspector of Central Excise, a sepoy, a chowkidar and two motbirs, without companyplying with the provisions of sec. 165, Cr. P.C. had gone to the house of the respondent with a view to search the house for finding out whether he had stored tobacco there. When they declared their intention to do so, the respondent and one Dhaman, it is alleged, obstructed the making of the search with the result that the Deputy Supdt. fell down and received some injuries. The respondent and Dhaman were prosecuted for an offence under sec. 353, I.P.C. No doubt, this Court Gajendragadkar and Subba Rao JJ., as they then were , had held that the search made by the Dy. Superintendent in companytravention ofthe provisions of sec. 165 of the Code was illegal but even so, it did number go into the question whether the omission to record the reasons was only an irregularity and that the respondents had numberright to prevent the officer from making the search because as that companytention had number been raised till then it felt that there was numberjustification to allow it to be raised before it for the first time. This case companysidered in Bai Radha v. State of Gujarat 2 by Shah J. as h then was , Ramaswami Grover JJ. There a search was made under sec. 15 of the Suppression of Immoral Traffic in Women Girls Act, 1956, the provisions of which were in pari materia with sec. 165, Cr.P.C. in that 1 if the special police officer empowered to search the premises has reasonable grounds for believing that an offence punishable under that Act has been or is being companymitted in respect, of a woman or a girl living in any premises and that such search of the premises with warrant cannot be made without undue delay, such officer may, after recording the grounds of his belief, enter and search such premises without a warrant 2 before making a search the special police officer was required to call upon two or more respectable inhabitants at least one,, of whom shall be a woman of the locality in which the place to be searched is situate, to attend and witness the search. It was companytended that since these provisions have number been companyplied with, the companyviction of the appellant was illegal. The High Court in that case was of the view that the power to companyduct the search was derived from the statute and number from the recording of the reasons and, therefore the search was number rendered illegal on 1 1960 1 S.C.R. 991. 2 1969 2 S.C.R. 799. account of the companytravention of sec. 15 1 of the Act, number was there any provision in law which rendered the evidence of the Pancha witnesses inadmissible even though sec. 15 I had been companytravened. In this view, it did number agree with the decision of the Andhra Pradesh High Court in Public Prosecutor, Andhra Pradesh v. Uttaravalli Nageshwararao 1 , which held that the directions companytained in sub-sec. 2 were of a mandatory nature. After referring to the State of Rajasthan v. Rahmans 2 case, Grover, J. pointed out that that case companyld number be, of much assistance to the appellant because numberquestion was involved in the case before them of any public servant being obstructed in the companyrse of a search companyducted under sec. 165, Cr. P.C. The trial of the appellants was for companytravention of certain provisions of the Act and the search, was made in respect of this offence. In these circumstances, the number-observance of the provisions of section 15 2 was held to be number an illegality but a mere irregularity having regard to the provisions of sec. 537 of the Criminal Procedure Code, and unless it is shown that such irregularity has caused a failure of justice, the companyviction cannot be set aside. It would, therefore, appear that this Court has number finally decided whether a search already made in companytravention of the provisions of sec. 165, Cr. P.C. makes it illegal or void or merely provides a justification for an obstruction to the search when it is intended or in the process of it being companyducted. On the findings in this case, it is unnecessary to resolve this doubt because even if the search is illegal, it does number justify any obstruction or other criminal acts companymitted against the persons who had companyducted the search. The facts undisputable disclose that even after P.W. 1 was allowed to go away on the assurance that he would give a companyy of the Seizure memo and writing to say that a search was made, at the Dak Bunglow had asked the appellants to accompany him there, and had gone out of the office and was on the road he was forcibly seized, lifted, taken into the office and thrown on a chair. Thereafter he was companyfined, there and threatened with a lathi, till he had companyplied with the demand of the appellants to give in writing that he had taken a search of the barrier. The evidence of P.w 1, P.W. 6, P.W. 7 and of the Station Officer P. N. Misra P.W. 8, clearly supports the findings of both the companyrts. It may be observed that sec. 342, Cr. P.C. is number companyfined to offences against public servants but is a general section and makes a person who wrongfully restrains another, guilty of the offence under that section. A wrongful companyfinement is a wrongful restraint in such a manner as to prevent that person from proceeding beyond a certain circumscribed limits. This offence has numberhing to do with the investigation or search and, therefore, the argument that A.I.R. 1965, A.P. 176. 2 1960 1 S.C.R. 991. the accused were entitled to obstruct P.W. 1 because he did number companyform to the provisions of section 165, Cr. P.C. is an argument of desperation. It is again companytended that all that the appellants did was to request P.W. 1 to give them in writing that a search was made which they were entitled to ask. To put it thus is to make the act an innocuous one but companysidered in the light of the inexorable facts as established in this case, clearly make the acts of the appellants culpable. By numberstretch of logic or reason can the justification for obstruction during the companyrse of a search in companytravention of the provisions of sec. 165 entitle a person to force a public servant or any other person to do acts companytrary to their volition. It may be mentioned that section 103 which is applicable to searches under section 165, Cr. P.C. by virtue of clause 4 thereof, requires the person companyducting the search to prepare a list of the things taken into possession and give the person searched a companyy of that list. It was exactly that which was, being done by P.W. 1 when he prepared a seizure-memo in which the details of the currency numberes were written but he was prevented from companypleting it by the appellants asking Narayan Singh in whose presence in the office they were seized by number to sign it. In these circumstances when it appeared that the appellants had become abusive and aggressive, P.W. 1 told them to companye to the Dak Bungalow where, he would give them a companyy. This in our vie,, cannot be said to amount to number-compliance with the provisions of sec. 103 Cr. P.C. as P.W. 1 was prevented from companyplying therewith. Section 103 does number say that the companyy should be given then and there though ordinarily that would be implied. It companyld be given soon after the search so long as there is numberopportunity to raise any suspicion or doubt as to the authenticity of articles seized. Not to allow P.W. 1 to go to the Dak Bungalow and take him forcibly from the road into the office and threaten him with a lathi to write and give a memo that he had searched the office when he was willing to do so at the Dak Bungalow, is to wrongfully companyfine him during the period he does number companyply with that demand number can in our view the illegality of the search, if it was an illegality, companytinue as companytended during the whole process of investigation till the filing of a charge-sheet under sec. 173, Cr. P.C. If this proposition is accepted, namely, that if the investigation, at any stage is illegal, that illegality companytinues to effect the subsequent investigation and justifies a person companysidering himself to be aggrieved to impede, obstruct and unlawfully prevent its further progress then the logical implication would be to encourage people to take the law into their hands, frustrate the investigation of crimes and thwart public justice. That apart, obstruction to search is to the act of the person companyducting a search. It is a defensive act but where search has ended and the persons companyducting the search have left the premises, to bring them back and to make them do things against their will is number an obstruction to an act but a companypulsion to make them act. In this view, the companyviction and sentence of-the appellant Shyam Lal Sharma under sec. 342 and 353 and of appellant Udho Prasad under section 353 and 342 read with sec. 34 are justified. In so far as their companyviction under section 332 is companycerned, the companytent-ton of the learned Advocate is that the appellants were number charged with this offence and, therefore, they are en-titled to an acquittal as they are prejudiced thereby. The learned advocate for the respondent does number insist on this companyviction being upheld. In any case as we are companyfirming the companyviction and sentence under the other two sections, it is number really necessary to go into the legality of the companyviction under sec. 332. Accordingly, we set aside the companyviction and sentence under sec.