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Dipak Misra, J. The appellant, a septuagenarian, filed an application dated 4.2.2008 in the office of the Sub-Registrar, Bhopal, the third respondent herein, for cancellation of registered documents dated 9.8.2001, 21.4.2004 and 11.7.2006 which pertain to registration of immoveable property situated on Plot No. 7-B, Punjabi Bagh, Raisen Road, Bhopal. As put forth by the appellant in his application, the said plot was allotted to his mother, Smt. Veeravali Anand, by the Punjabi Housing Cooperative Society Ltd. for short, the Society , the fourth respondent herein, by entering into a sale deed dated 22.3.1962, registered on 30.03.1962. Smt. Veeravali Anand expired on 12.6.1988. After her death, the fourth respondent, through its office bearer executed a Deed of Extinguishment on 9.8.2001 unilaterally cancelling the said allotment and on the strength of such document, executed a registered sale deed dated 21.4.2004 in favour of Mrs. Manjit Kaur, the respondent number 5 herein. Mrs. Manjit Kaur in her turn executed another sale deed dated 11.7.2006 in favour of the respondent number. 6 and 7, Mrs. Meenakhsi and Mr. S.C. Sharma. As is evident, under these circumstances, the appellant moved the Sub- Registrar Registration seeking cancellation of the Deed of Extinguishment dated 9.8.2001. The Sub-Registrar rejected the said prayer on two companynts, namely, the dispute between the parties was pending before the companypetent authority under the M.P. Cooperative Societies Act, 1960 for short the 1960 Act and secondly, his jurisdiction was limited only to the extent of registering the documents and if any party desired its cancellation, then to verify that the cancellation deed is registered on appropriate stamp paper. Thereafter, the appellant filed an application under Section 69 of the Registration Act, 1908 for brevity, the Act , which was rejected by the Inspector General Registration stating that the powers companyferred on Inspector General Registration under Section 69 of the Act is limited to general superintendence of the registration office and making rules and number to provide hearing by any Sub-Registrar. The Inspector General further intimated him that against the order of Sub-Registrar, it was open to the appellant to initiate appropriate proceedings before a Court of companypetent jurisdiction. Being aggrieved by the aforesaid orders, the appellant preferred W.P. No. 13505 of 2008 before the High Court. The prayer in the writ petition was for declaring the Extinguishment Deed as well as the subsequent sale deeds as void ab initio with a further direction to the respondents to record the cancellation of such documents. It was companytended before the High Court that the Extinguishment Deed was registered companytrary to the provisions companytained in Section 17 1 b of the Act by the Sub-Registrar and, therefore, it was obligatory on the part of the higher authorities in exercise of powers under Section 69 of the Act to declare the said action as ab initio void and companysequently the subsequent sale deeds to be void. The said stand and stance of the appellant was resisted by the companytesting respondents companytending, inter alia, that as the initial allottee, Smt. Veeravali Anand, did number take any steps for 35 years to raise any companystruction on the plot in question, the respondent number 4 registered the Extinguishment Deed on 9.8.2001. On the strength of said deed, the respondent society executed and registered the sale deed dated 21.4.2004 in favour of Manjit Kaur. At that juncture, the appellant and the respondents, to avoid any companytroversy, entered into a deed of companypromise dated 6.7.2004 whereunder the appellant received companysideration of Rs.6,50,000/- rupees six lakhs fifty thousand only Rs. 4,50,000/- by demand draft and Rs.2,00,000/- lakhs by post dated cheques. Thereafter, the appellant filed an application under Section 64 of the 1960 Act before the Dy. Registrar, Cooperative Societies, forming the subject matter of Dispute No. 81 of 2005. Along with said application, an application under Section 57 1 of the 1960 Act was filed for ad interim injunction which was granted by the said authority on 1.2.2006 restraining the respondents to make any companystruction over the said property. The said order of injunction stood vacated by order dated 12.4.2006. The said order vacating the order of injunction was affirmed by the Joint Registrar and the Deputy Registrar was directed to finally adjudicate the dispute. As the factual matrix would unveil as the appellant instituted many a legal proceeding against the respondents, they issued a numberice on 12.7.2007 asking him to refund the companysideration amount of Rs.6 lakhs. Against various orders, the appellant preferred three special leave petitions, i.e. SLP C No. 34857 of 2010, SLP C No. 13255 of 2012 and the present appeal arising out of SLP C No. 9502 of 2012. The SLP C No. 34857 of 2010 was preferred assailing the maintainability of the revision petition and the said SLP is pending. SLP C No. 13255 of 2012 relates to appointment of receiver to protect his interest, which stood dismissed by order dated 17.7.2013. I shall refer to the said order in detail at the appropriate time. The High Court took numbere of the factual assertions, scanned the relevant provisions of the Act, took numbere of the authorities cited by the appellant and eventually came to hold that the companytroversy raised by the appellant companyld be adjudicated before the appropriate forum and number in the writ proceeding. The High Court further held that the authorities under the Act had companyrectly stated that they have numberjurisdiction to decide the soundness of registration of Extinguishment Deed or the sale deeds and declare them as null and void. I have heard Mr. Satya Pal Anand, appellant-in-person and Mr. S.K. Dubey, learned senior companynsel for respondent number. 1 to 3 and Mr. Satyajit Desai, learned companynsel for respondent number. 5 to 7. Though there are manifold assertions by the appellant and companynter asseverations companyering various arenas, the companye issue that arises for companysideration in the obtaining factual matrix is whether the Deed of Extinguishment and the subsequent sale deeds registered by the Sub- Registrar under the Act companyld be cancelled by the Sub-Registrar or by his superior authority in exercise of powers companyferred under the Act. There is numbercavil over the fact that Extinguishment Deed was registered on 9.8.2001 and subsequent sale deeds were registered thereafter. The stand of the respondents is that they had paid the amount to the appellant and there is a finding to that effect in the Special Leave Petition that has been dismissed by this Court. Presently, I shall deal with the scheme of the Act. Section 17 occurring in Part III of the Act deals with the documents of which registration is companypulsory. The companytroversy pertains to Section 17 1 b of the Act, as urged by the appellant. The said provision reads as follows- 17 1 b other number-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or companytingent, of the value of one hundred rupees and upwards, to or in immovable property Section 18 of the Act deals with the documents of which registration is optional. Section 20 of the Act deals with the documents companytaining interlineations, blanks, erasures or alterations. The said provision is reproduced below- Documents companytaining interlineations, blanks, erasures or alterations. The registering officer may in his discretion refuses to accept for registration any document in which any interlineation, blank, erasure or alteration appears, unless the persons executing the document attest with their signatures or initials such interlineation, blank, erasure or alteration. If the registering officer registers any such document, he shall, at the time of registering the same, make a numbere in the register of such interlineation, blank, erasure or alteration. Section 21 of the Act provides for description of property and maps or plans. The said provision is as under- Description of property and maps or plans. 1 No number-testamentary document relating to immovable property shall be accepted for registration unless it companytains a description of such property sufficient to identify the same. Houses in towns shall be described as situate on the numberth or other side of the street or road which should be specified to which they front, and by their existing and former occupancies, and by their numbers if the houses in such street or road are numbered. Other houses and land shall be described by their name, if any, and as being the territorial division in which they are situate, and by their superficial companytents, the roads and other properties on which they abut, and their existing occupancies, and also, whenever it is practicable, by reference to a government map or survey. No number-testamentary document companytaining a map or plan of any property companyprised therein shall be accepted for registration unless it is accompanied by a true companyy of the map or plan, or, in case such property is situate in several districts, by such number of true companyies of the map or plans as are equal to the number of such districts. Section 22 deals with the description of houses and land by reference to Government maps or surveys. The said provision is as follows- Description of houses and land by reference to government maps of surveys. 1 Where it is, in the opinion of the State Government, practicable to describe houses, number being houses in towns, and lands by reference to a government map or survey, the State Government may, by rule made under this Act, require that such houses and lands as aforesaid shall, for the purposes of section 21, be so described. Save as otherwise provided by any rule made under sub-section 1 , failure to companyply with the provisions of section 21, sub-section 2 or subsection 3 , shall number disentitle a document to be registered if the description of the property to which it relates is sufficient to identify that property. Section 32 of the Act, which occurs in Part VI provides for persons to present documents for registration. The said provision is reproduced below- Persons to present documents for registration Except in the cases mentioned in sections 31, 88 and 89, every document to be registered under this Act, whether such registration be companypulsory or optional, shall be presented at the proper registration office- a by some person executing or claiming under the same, or, in the case of a companyy of a decree or order, claiming under the decree or order, or b by the representative or assignee of such a person, or c by the agent of such a person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned. Section 32A of the Act which has been inserted w.e.f. 24.9.2001, lays down companypulsory affixing of photographs, etc. Section 33 of the Act stipulates the power of attorney recognizable for purposes of Section 32. Section 34 of the Act provides for enquiry before registration by the Registering Officer. I have referred to the aforesaid provisions to understand the scheme of registration and the role of the Registration Officer. It is urged by the appellant that the Extinguishment Deed was registered companytrary to the provisions companytained in Section 17 1 b of the Act and in a fraudulent manner. Section 17 1 b stipulates certain categories of documents which are required to be registered. It stipulates registration of numbertestamentary documents which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or companytingent, of the value of one hundred rupees and upwards, to or in immovable property. It is companytended by the appellant that authority, on the ground of fraud, can declare the deeds to be null and void. To bolster the said stand, he has drawn inspiration from the authority in Yanala Malleshwari v. Anantula Sayamma1 Full Bench . Before the Full Bench, the question arose whether a person can nullify the sale by executing and registering a cancellation deed and whether the Registering Officer like District Registrar and or Sub-Registrar appointed by the State Government, is bound to refuse registration when a cancellation deed is presented. Rao, J., adverting to the provisions of the Act and the Rules and dwelling upon the companycept of fraud held thus- The person, who has ex facie right whether such right is registered or number can always approach the registering authority, with a request to cancel a sale deed, which was registered earlier by such registering authority by showing that subsequent registration was obtained by fraud by a person who is number entitled to transfer the property or that such transfer was registered by playing fraud on the owner or on the stranger. In the present statutory dispensation, namely, Transfer of Property Act, Contract Act, Specific Relief Act and Registration Act, the Court does number see any prohibition operating on the exercise of inherent power by the registering authority to cancel the sale deed earlier registered, which is likely to cause prejudice to the true owner as well as to the entire public at large. Chandraiah, J., while companycurring with Rao, J. opined that- I would like to reiterate that there is numberspecific prohibition under the Registration Act, 1908 for short the Act to register a deed of cancellation. The Registering Officer can refuse registration in the situations arising under Sections 19 - 22, 32 and 35 and the relevant rules are Rules 26, 58 and 117. But in all other cases where the companyditions under the Act i.e., Sections 17 and 18 of the Act are fulfilled, the Registering Officer is bound to register the document and it is number in dispute that the cancellation deed fulfills the companyditions for the purpose of registration. However, the Act does number permit the Registering Officer to enquire into the title of the party presenting the document for registration and the situations mentioned in the above said provisions under which the registration can be refused are for different purpose and only under those companytingencies he can refuse. This Court cannot enlarge the scope of these provisions under the guise of interpretation of statute. Further when there is numberprohibition under the Act the Registering Officer has to register the documents presented for registration in accordance with law and this Court by judicial interpretation cannot impose the same into the statute. It is well settled that what has number been provided for in a statute cannot be supplied by Courts and to do so will amount to legislating which is number the function of the Courts. In the said case, the minority view is to the following effect- The purpose of numbering down these provisions of TP Act and the Registration Act is to companye to a companyclusion as to whether a vendor retains any interest in the property which he sold and of which a sale deed was executed and registered. The answer is emphatic number Therefore, in my view, when a person transfers all his rights, his rights in the properly get extinguished and if he tries to get back the property, it has to be done by challenging the sale deed which he has executed and which is registered by the Sub-Registrar. It is apt to numbere here that in the said case, the majority took the view that if a person is aggrieved by the cancellation deed, his remedy is to seek an appropriate relief in the civil companyrt and the writ petition is number the proper remedy. The High Court in the impugned order has also referred to a Division Bench decision of the Madras High Court in E.R. Kalaivan v. Inspector General of Registration, Chennai and Anr2. In the said case, the Division Bench took numbere of the decision in Yanala Malleshwari supra and the Rule 26 k of the Andhra Pradesh Registration Rules that was introduced after the verdict of the Full Bench. The Division Bench dealt with decision of the High Court of Andhra Pradesh and the companystitutional validity of the newly amended Rule, which provides for adherence to the principles of natural justice when there is presentation of unilateral cancellation deed. The Madras High Court observed that the situation is prevalent in Andhra because of rule position and thereafter proceeded to state thus- In this companytext, we may also usefully refer to the judgment of a learned single Judge of this Court in G.D. Subramaniam v. The Sub-Registrar, Konur3. The learned Judge has extensively companysidered the scope of registration of cancellation of sale deed and had ultimately held that such unilateral cancellation of deed cannot be made in the absence of any specific provision for the Registrar to do so. We are entirely in agreement with the said view taken by the learned single Judge. Be it numbered, after so stating, the Division Bench opined thus- That apart, on the facts of this case, our attention is number drawn to any of the specific provision under the Registration Act empowering the Registrar to entertain a document of cancellation for registration on the ground that the sale companysideration was number paid and companysequently, received by the vendor. Further, in our opinion, when the Registrar satisfies himself on the perusal of the document, wherein it is stated that the full sale companysideration is received and on such satisfaction, entertain the document for registration, cannot thereafter be companyferred with a power for cancellation of the deed on the ground that the full sale companysideration was number paid and received by the vendor. Conferring such power on the Registrar would tantamount to companyferring a power to decide the disputed questions. That apart, as already stated, in the absence of any provision specifically empowering the Registrar to entertain a document of cancellation for registration, without the signature of both the vendor and the purchaser, the deed cannot be entertained. For the said reason, we find numberinfirmity in the impugned circular issued by the Inspector General of Registration. In this regard, I may usefully refer to the judgment referred in M. Ramakrishna Reddy v. Sub Registrar, Bangalore and Another4, by a learned Single Judge of Karnataka High Court. In the said case, the petitioner therein claimed that he was the lawful owner of the property and the companycerned companyperative society had numberright over the said site number companyld it be sold by the said society in favour of the private respondents. It was companytended that the Sub-Registrar companyld number have registered the sale deed relating to the said site in favour of the second respondent. A numberice was sent to the Sub-Registrar by the petitioner calling upon to remove the name of the second respondent as purchaser of the site, but the said request was number companyplied with by the companycerned Sub-Registrar. Being dissatisfied with the said inaction, a writ petition was filed seeking appropriate direction to companysider the demand companytained in the numberice. The learned Single Judge while dealing with the companycept of registration of instruments under the Act, observed that- The object and intent of providing for registration of instruments under the Act is to create and maintain a public record of transactions relating to immovable properties, on which every person dealing with an immovable property can rely with companyfidence, for a full and companyplete account of the transactions by which his title to the immovable property, may be affected. Section 17 of the Act enumerates the documents of which the registration is companypulsory. All instruments except Wills which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or companytingent, in regard to an immovable property, the value of which is Rs. 100/- or more, and all Gift Deeds as also leases relating to immovable properties for any term exceeding one year, are companypulsory registrable. Thereafter, the learned Judge referred to various provisions of the Transfer of Property Act, 1885 and also of the Act and companycluded as followswhen a person who claims to be the owner or a person interested in an immovable property, finds that someone else has executed and registered a sale deed or other deed in regard to his property, claiming to be the owner or a person interested in the property, the appropriate companyrse for him is to file a suit for declaration and companysequential reliefs. If he is satisfied such sale deed is executed by a person without any title and that the deed is void ab initio, he may even choose to ignore the same and leave it to the person claiming title under such deed to establish his title in appropriate proceedings. A Court of Law has the jurisdiction to declare a document to be void or even cancel a document. But under numbercircumstances, a person claiming to be the owner of a property or a holder of a property, can require the Registering Authority to cancel the registration of a document. In this companytext, we may refer to a two-Judge Bench decision of this Court in Thota Ganga Laxmi and another v. Government of Andhra Pradesh and others5. In the said case, the High Court of Andhra Pradesh had dismissed the writ petition relying on the Full Bench decision in Yanala Malleshwari supra . The father of the appellants therein had purchased the plot in question from the 4th respondent by a registered sale deed dated 21.6.1983 and since then they were in possession and enjoyment of the said property. Subsequently, the fourth respondent unilaterally registered the cancellation deed without any numberice to the appellants. A writ petition was filed seeking declaration that the cancellation deed was illegal but the said writ petition was dismissed holding that the appellants should approach the civil companyrt. This Court, in the said factual matrix opined- In our opinion, there was numberneed for the appellants to approach the civil companyrt as the said cancellation deed dated 4-8-2005 as well as registration of the same was wholly void and number est and can be ignored altogether. For illustration, if A transfers a piece of land to B by a registered sale deed, then, if it is number disputed that A had the title to the land, that title passes to B on the registration of the sale deed retrospectively from the date of the execution of the same and B then becomes the owner of the land. If A wants to picsubsequently get that sale deed cancelled, he has to file a civil suit for cancellation or else he can request B to sell the land back to A but by numberstretch of imagination, can a cancellation deed be executed or registered. This is unheard of in law. Thereafter, the Court referred to Rule 26 k i of Andhra Pradesh Registration Rules framed under Section 69 of the Act which reads as follows- The registering officer shall ensure at the time of preparation for registration of cancellation deeds of previously registered deed of companyveyances on sale before him that such cancellation deeds are executed by all the executant and claimant parties to the previously registered companyveyance on sale and that such cancellation deed is accompanied by a declaration showing natural companysent or orders of a companypetent Civil or High Court or State or Central Government annulling the transaction companytained in the previously registered deed of companyveyance on sale Provided that the registering officer shall dispense with the execution of cancellation deeds by executant and claimant parties to the previously registered deeds of companyveyances on sale before him if the cancellation deed is executed by a Civil Judge or a government officer companypetent to execute government orders declaring the properties companytained in the previously registered companyveyance on sale to be government or assigned or endowment lands or properties number registerable by any provision of law. After reproducing the Rule, the Court proceeded to state- A reading of the above Rule also supports the observations we have made above. It is only when a sale deed is cancelled by a companypetent companyrt that the cancellation deed can be registered and that too after numberice to the parties companycerned. In this case, neither is there any declaration by a companypetent companyrt number was there any numberice to the parties. Hence, this Rule also makes it clear that both the cancellation deed as well as registration thereof were wholly void and number est and meaningless transactions. On a reading of the aforesaid judgment, two aspects are numbericed. It is evident from paragraph 4 of the judgment that the Court has opined that the cancellation deed cannot be executed or registered and in paragraph 5 of the said judgment, reference has been made to Rule 26 k i which has been framed by the State of Andhra Pradesh under Section 69 of the Act and on that basis, it has been ruled that the said Rule supports the observations made by the Court. It is apt to numbere here that the case had arisen from the State of Andhra Pradesh, where specific rule had companye into force after the pronouncement by the Full Bench in the case of Yanala Malleshwari supra . That apart the observations made in paragraph 4 of the decision is of general import. At this juncture, I think it apt to refer to Section 69 of the Act, which reads as follows- Power of Inspector-General to superintend registration offices and make rules 1 The Inspector-General shall exercise a general superintendence over all the registration offices in the territories under the 59 State Government, and shall have power from time to time to make rules companysistent with this Act a providing for the safe custody of books, papers and documents aa providing the manner in which and the safeguards subject to which the books may be kept in companyputer floppies or diskettes or in any other electronic form under sub-section 1 of section 16A b declaring what language shall be deemed to be companymonly used in each district c declaring what territorial divisions shall be recognized under section 21 d regulating the amount of fines imposed under sections 25 and 34, respectively e regulating the exercise of the discretion reposed in the registering officer by section 63 f regulating the form in which registering officers are to make memoranda of documents g regulating the authentication by Registrars and Sub-Registrars of the books kept in their respective offices under section 51 gg regulating the manner in which the instruments referred to in subsection 2 of section 88 may be presented for registration h declaring the particulars to be companytained in Indexes Nos. I, II, III and IV, respectively declaring the holidays that shall be observed in the registration offices and j generally, regulating the proceedings of the Registrars and Sub- Registrars. The rules so made shall be submitted to the State Government for approval, and, after they have been approved, they shall be published in the Official Gazette, and on publication shall have effect as if enacted in this Act. The Rule which I have reproduced has been framed under the aforesaid provision and has been incorporated as Rule 26 k i . The question that emerges for companysideration is whether in the absence of any specific rule in the State of Madhya Pradesh, the general principle laid down in the case of Thota Ganga Laxmi supra would be applicable. On a careful reading of the provisions of the Act, I do number find there is any prohibition to register a document of cancellation or deed of extinguishment. Section 35 of the Act which deals with procedure cannot be companystrued to companyfer a quasi-judicial power on the registering authority. The learned Single Judge of the High Court of Karnataka in M. Ramakrishna Reddy supra has observed that- If a duly stamped document is presented for registration with required registration fee with supporting enclosures required to satisfy the provisions relating to valuation and payment of stamp duty under the Karnataka Stamp Act, 1957 and the requirements of Section 230-A or 269-UL of Income Tax Act, 1961 and Section 22-A of the Registration Act and Section 26 of Urban Land Ceiling and Regulation Act, 1976 and any other relevant statutory provisions , the Sub-Registrar will proceed to register the document. Before registration, the Registering Officer will peruse the document to be registered and supporting documents like tax paid receipts, revenue register extracts and even companyies of earlier title deeds . But such incidental examination is number with the purpose of ascertaining or verifying the title of the executant, but only to ensure that there is numberviolation of Section 22-A of the Act and that there is companypliance with the statutory requirements under Stamp Laws, Taxation Laws, Land Ceiling and Land Reforms Laws etc. It is apt to numbere there that the learned Single Judge has referred to a decision of the Madras High Court in Park View Enterprises v. State of Tamil Nadu6, wherein it has been observed that function of the Sub- Registrar, for purposes of registration, are purely administrative and number quasi-judicial and, therefore, he cannot decide whether a document which is registered is executed by a person having title as recited in the instrument. Thus, in the absence of any power companyferred on the Registering Authority to adjudicate any aspect, it is difficult to agree with the view in Thota Ganga Laxmi supra that the Registering Authority cannot unilaterally register a deed of cancellation. In my companysidered opinion, in the absence of any rule like the one that is prevalent in the State of Andhra Pradesh, which companymands the Registering Officer to ensure at the time of preparation for registration of cancellation deeds of previously registered deed of companyveyances on sale before him that such cancellation deeds are executed by all the executant and claimant parties to the previously registered companyveyance on sale and that such cancellation deed is accompanied by declaration showing natural companysent, the Registering Authority or the superior authority cannot refuse to register a deed of cancellation solely on the ground that the claimant parties to the previously registered companyveyance are number present or they have number given companysent. Section 69 empowers the Inspector General to make rules companysistent with the Act. He has been allocated certain areas to frame rules. Rule 26 k i relating to Andhra Pradesh under Section 69 of the Act may companye under any such regulatory measure. I do number intend to express any opinion with regard to the validity of the Rule. The Rule actually provides the manner of verification of execution. It is a companydition precedent for the purpose of execution and registration. In the absence of any rule to opine that by numberstretch of imagination can a cancellation deed be accepted or registered by the Registering Authority does number appear to be companyrect. It seems to me that it has been broadly stated. Hence, I am of the view that general observations in Thota Ganga Laxmi supra requires to be companysidered by a larger Bench. Having said that, I would have directed the Registry to place the papers before the Honble the Chief Justice for companystitution of the larger Bench, but I am companystrained to refer to certain other facts which are imperative to be stated. In the case at hand the factual score that is evincible is that the Society had executed a sale deed in favour of the mother of the appellant on 22.2.1962. As the companystruction was number raised and there was violation, as claimed by the society, it executed the Extinguishment Deed dated 9.8.2001 and cancelled the sale deed dated 22.2.1962. On the strength of the Extinguishment Deed, the Society executed and registered a sale deed in favour of other private respondents and further transactions took place. As the factual matrix would reveal, the dispute raised by the appellant under Section 64 of the 1960 Act is still pending before the companypetent authority for adjudication. The said authority has the jurisdiction to hold whether cancellation of the allotment made in favour of the mother of the appellant was justified in law. The said order is further subject to appeal and other proceedings and, therefore, I refrain from adverting to the same. In this regard, I may refer with profit to the order dated July 17, 2013 on which reliance has been placed by the respondents, passed in Satya Pal Anand v. Punjabi Housing Cooperative Society Others7. In the said case, the Court has taken numbere of the dispute pending before the Registrar under Section 64 of the 1960 Act, questioning the legality of the execution of the Extinguishment Deed and allotment of the property in dispute in favour of other respondents. While dealing with the factum of appointment of receiver, the Court has observed thus- We must also mention herein that during the pendency of these proceedings, the second respondent sold the property in favour of respondent number. 4 and 5 by sale deed dated 11.7.2006. It appears that the Sub-Registrar on inspection of the disputed plot found that there were two companystructed duplex and two more near companypletion as on the date of inspection i.e. on 13.03.2007 of which one was occupied by respondent number4. It must be remembered that the instant proceedings arise out of the interlocutory proceedings seeking appointment of the receiver at the instance of the petitioner herein. Having regard to the fact that respondent number 4 was in possession of the property in dispute at least since 13.03.2007 admittedly and also having regard to the fact that the petitioner received an amount of Rs.6,50,000/- we do number see any justification for the appointment of the receiver. I have numbered this aspect as the companynsel for the respondent has highlighted the said aspect for two purposes, namely, a dispute before the appropriate forum is pending for adjudication and that the appellant had entered into a companypromise with the respondents. It is also urged that the companypromise was entered into to buy peace. Thus, the appellant has raised a dispute, accepted the money from the subsequent purchasers and moved the authority under the Act to cancel the deed of extinguishment. In such a situation, in my view, the writ companyrt has rightly declined to exercise the jurisdiction. In view of the foregoing analysis, while number finding any error on the factual score of the dismissal of the writ petition by the High Court, as stated earlier, I am of the view that the principle by way of general observations stated in Thota Ganga Laxmi supra requires companysideration by a larger Bench and, therefore, the papers be placed before the Honble the Chief Justice for companystitution of a larger Bench. J. Dipak Misra New Delhi August 25, 2015 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6673 OF 2014 Arising Out of SLP C No.9502 of 2012 SATYA PAL ANAND APPELLANT Vs. STATE OF M.P. AND ORS. RESPONDENTS J U D G M E N T GOPALA GOWDA, J. I have gone through the judgment of my learned brother Judge, Justice Dipak Misra, wherein certain relevant facts have been adverted to by my learned brother on the companytentious legal issues urged on behalf of the parties. My learned brother has also adverted to the relevant provisions under Sections 20, 21, 22 and 32 of the Indian Registration Act, 1908. My learned brother Judge has also referred to the full bench decision of the Andhra Pradesh High Court in the case of Yanala Malleshwari v. Anantula Sayamma8, the judgment of the Madras High Court in the case of E.R. Kalaivan v. Inspector General of Registration, Chennai Anr.9 and the judgment of the Karnataka High Court in the case of M. Ramakrishna Reddy v. Sub Registrar, Bangalore Anr.10 My learned brother judge has also referred the decision of this Court in the case of Thota Ganga Laxmi Anr. Government of Andhra Pradesh Ors.11, wherein the High Court of Andhra Pradesh dismissed the Writ Petition of the appellant therein, relying on the Full Bench decision of Yanala Malleshwari supra . I have also taken into companysideration the fact that the sale deed of the property in dispute was executed by the Society in favour of the mother of the appellant on 22.03.1962 in respect of the plot involved in this proceeding. The companytention urged on behalf of the Society is that as there was numberconstruction raised by the appellant or his deceased mother on the said plot of land and therefore, there has been a violation of the Bye-laws of the Society, as claimed by the Society and hence, it has executed the Extinguishment Deed dated 09.08.2001 with respect to the said plot of land and cancelled the already registered absolute sale deed in favour of the appellants mother dated 22.03.1962. On the basis of the registration of the Extinguishment Deed with respect to the said plot of land, the subsequent allotment of the said plot of land took place and the sale deed was registered by the society in favour of Mrs. Manjeet Kaur-respondent No.5, who further alienated the said plot and registered another sale deed in favour of the respondent Nos.6 and 7. My learned brother Judge has also referred to the order dated 17.07.2013 passed by this Court in SLP C No. 13255 of 2012 Satya Pal Anand v. Punjabi Housing Cooperative Society Ors. , arising out of the order dated 03.08.2011, passed in Writ Petition No. 14548 of 2008 by the High Court of P. at Jabalpur in relation to the appointment of receiver with respect to the said plot of land. This Court held that since the respondent No.5-Mrs. Manjeet Kaur was already in possession of the property in dispute and the appellant had received an amount of Rs.6,50,000/- by way of a companypromise deed, there was numberjustification for the appointment of the receiver in the light of the fact that there was a pending dispute between the parties under Section 69 of the M.P. Co-operative Societies Act, 1960, before the Registrar of Societies. Hence, the Special Leave Petition filed by the appellant was dismissed by this Court. My learned brother, in the present case has also based his findings on similar reasons. I respectfully dissent with the said view taken by my learned brother Judge by giving the following reasons. It is an undisputed fact that the respondent No.4-Punjabi Housing Cooperative Society Ltd. Bhopal for short the Society had allotted the said plot of land in favour of the appellants mother namely, Smt. Veeravali Anand and it had executed the absolute sale deed dated 22.03.1962 with regard to the said plot of land in her favour and the same was registered on 30.03.1962 before the jurisdictional Sub-Registrar. The mother of the appellant died on 12.06.1988, leaving behind the appellant and his sister as her legal heirs to succeed her intestate property companyprising of the said plot of land. Subsequent to the death of the appellants mother, the Society, represented by its office bearer has executed an extinguished deed dated 09.08.2001, unilaterally cancelling their already registered saledeed with regard to the said plot of land. Thereafter, on the strength of the extinguished deed, the Society executed a registered sale deed dated 21.04.2004 in favour of respondent No.5- Mrs. Manjit Kaur who in turn has executed another sale deed dated 11.07.2006 in favour of respondent Nos.6 and 7 Mrs. Minakshi and Mr. S.C. Sharma . The said documents have been fraudulently registered by them which is against the acquired legal rights of the appellant on the said plot of land, the same is void ab initio in law as it is impermissible under the provisions of the Indian Registration Act, 1908 read with Section 31 of the Specific Relief Act, 1963. There is also a reference with regard to the taking of the companysideration amount of Rs.6,50,000/- by the appellant from the respondent number5 vide the execution of the Deed of Compromise dated 06.07.2004. The appellant has also raised a dispute in that regard under Section 64 of the M.P. Cooperative Societies Act, 1960 before the Sub-Registrar, Co-operative Society, Bhopal which is pending in respect of the said plot of land. Besides this, some of the litigations between the parties are pending before different forum i.e. Joint Registrar, Co-operative Society, State Cooperative Tribunal and in the High Court. The appellant filed an application before the Sub-Registrar Registration , seeking the cancellation of the extinguishment deed dated 09.08.2001 executed by the Society against the appellants plot of land. By order dated 28.06.2008, the Sub-Registrar Registration dismissed the application of the appellant, holding that since the question of sustainability of the extinguished deed dated 09.08.2001 and interpretation of Clause 43 1 of the Bye-Laws of Society are still pending before Sub- Registrar, Co-operative Society and various other companypetent forum, the jurisdiction of the Sub-Registrar is limited only to the extent to register the document. The Sub-Registrar further held that if any of the parties want its cancellation, then the relevant party may file for the registration of the cancellation deed with regard to the said plot of land. The appellant filed an application under Section 69 of the M.P. Cooperative Societies Act, 1960, before the Inspector General, Registration and the same was dismissed on the ground that it is number maintainable and further directed the appellant to approach the companypetent companyrt in this regard. Therefore, the aforesaid Writ Petition was filed before the High Court by the appellant wherein he has questioned the companyrectness of the order dated 15.09.2008 passed by the Inspector General, Registration, Bhopal wherein it has been held that the Inspector General of Registration has the powers of only general superintendence over the registration officers and to make Rules in that regard. He is however, number empowered to hear any proceedings against the order of Sub-Registrar. The High Court after adverting to the aforesaid facts and numbering the decision of the Full Bench of the Andhra Pradesh High Court in the judgment of Yanala Malleshwari supra and the judgment of the Madras High Court in the case of E.R. Kalaivan v. Inspector General of Registration12 and further, referring to Section 17 1 b read with Rule 69 of the Registration Act, 1908 and Rules, and other judgments of this Court in the cases of Government of U.P. v. Raja Mohammad Amir Ahmad Khan13 and Government of Uttar Pradesh v. Khan, has held that as soon as the registering officer has registered the documents presented to him for registration, his function of performance for such document produced before him is over and therefore, he becomes a functus officio and does number have the power even to impound the document under Section 33 of the Registration Act, 1908. Further, the High Court has referred to the judgment of the Karnataka High Court in the case of M. Ramakrishna Reddy supra and dismissed the Writ Petition filed by the appellant in favour of the respondent Society. The companyrectness of the same is questioned in this Civil Appeal urging various legal grounds. Having regard to the facts, the rival legal companytentions and the grounds urged in the writ petition and in these proceedings on behalf of the parties, the following question of law would arise for my companysideration Whether the appellant is entitled to seek for the relief of cancellation of the registered documents dated 09.08.2001, 21.04.2004 and 11.07.2006, registered with respect to the immovable property, i.e. plot No.7-B, Punjabi Bagh, Raisen Road, Bhopal? The said point is required to be answered in favour of the appellant for the following reasons It is an undisputed fact that the Society had executed an absolute sale deed dated 22.03.1962 in favour of the deceased mother of the appellant, Smt. Veeravali which was registered on 30.03.1962. It is also number in dispute that she died on 12.06.1988, leaving behind the appellant and his sister to succeed her intestate property. The respondent-Society has also number disputed the fact that the appellant is the legal heir of the deceased Smt. Veeravali Anand, in whose favour the sale deed was executed for the said plot of land. The said sale deed was unilaterally cancelled by the Society by way of executing an extinguishment deed dated 09.08.2001, with regard to the said plot of land and thereafter, on the strength of such extinguished deed, the Society again executed a registered sale deed on 21.04.2004 in favour of respondent No.5 who in turn executed another sale deed dated 11.07.2006 in favour of respondent Nos. 6 and 7. The companytention urged by the appellant is that the action of the Society and the Sub-Registrar, who has cancelled the initially registered sale deed in favour of Smt. Veeravali Anand by registering the extinguished deed unilaterally, is companytrary to the statutory provisions of the Indian Registration Act, 1908. In this regard, the judgment of this Court in the case of Thota Ganga Laxmi Anr. supra has been relied upon, wherein this Court has held thus In our opinion, there was numberneed for the appellants to approach the civil companyrt as the said cancellation deed dated 04-08-2005 as well as registration of the same was wholly void and number est and can be ignored altogether. For illustration, if A transfers a piece of land to B by a registered sale deed, then, if it is number disputed that A had the title to the land, that title passes to B on the registration of the sale deed retrospectively from the date of the execution of the same and B then becomes the owner of the land. If A wants to picsubsequently get that sale deed cancelled, he has to file a civil suit for cancellation or else he can request B to sell the land back to A but by numberstretch of imagination, can a cancellation deed be executed or registered. This is unheard of in law. In this companynection, we may also refer to Rule 26 k i relating to Andhra Pradesh under Section 69 of the Registration Act, 1908, which states The registering officer shall ensure at the time of preparation for registration of cancellation deeds of previously registered deed of companyveyances on sale before him that such cancellation deeds are executed by all the executant and claimant parties to the previously registered companyveyance on sale and that such cancellation deed is accompanied by a declaration showing natural companysent or orders of a companypetent Civil or High Court or State or Central Government annulling the transaction companytained in the previously registered deed of companyveyance on sale Provided that the registering officer shall dispense with the execution of cancellation deeds by executant and claimant parties to the previously registered deeds of companyveyances on sale before him if the cancellation deed is executed by a Civil Judge or a government officer companypetent to execute government orders declaring the properties companytained in the previously registered companyveyance on sale to be government or assigned or endowment lands or properties number registerable by any provision of law. A reading of the above Rule also supports the observations we have made above. It is only when a sale deed is cancelled by a companypetent companyrt that the cancellation deed can be registered and that too after numberice to the parties companycerned. In this case, neither is there any declaration by a companypetent companyrt number was there any numberice to the parties. Hence, this Rule also makes it clear that both the cancellation deed as well as registration thereof were wholly void and number est and meaningless transactions. Further reliance has been placed upon the decision of the Madras High Court in the case of E.R. Kalaivan v. The Inspector General of Registration Chennai Anr. supra wherein the powers of the Registrar with regard to the cancellation of the document have been elaborately discussed. The relevant paras of the case read thus In this companytext, we may also refer to Section 32A of the Indian Registration Act providing that all such deeds shall be signed by the vendor as well as the purchaser and the same shall also bear the finger prints and photographs. Section 34 of the Act also needs a reference, whereby the Registering Authority is mandated to hold an enquiry in respect of the validity of the document presented for registration. Having regard to the above provisions, in our opinion, a registered sale deed, if sought to be cancelled, registration of such deed must be at the instance of both the parties viz., bilaterally and number unilaterally. Section 34A of the Act, whereby the Registering Authority is to enquire whether or number such document was executed by the persons by whom it purports to have been executed. A sale is essentially an executed companytract between two parties on mutual agreed companyditions. Question is as to whether such companytract can be unilaterally rescinded, particularly, in a case of sale deed. In this companytext, we may refer to Section 62 of the Indian Contract Act, 1872 which provides that companytract which need number be performed. By that provision, any numberation, rescission and alteration of a companytract can be made only bilaterally. A deed of cancellation will amount to rescission of companytract and if the issue in question is viewed from the application of Section 62 of the Indian Contract Act, any rescission must be only bilaterally. See City Bank N.A. v. Standard Chartered Bank and Ors. 2004 SCC 12 . XXX XXX XXX That apart, on the facts of this case, our attention is number drawn to any of the specific provision under the Registration Act empowering the Registrar to entertain a document of cancellation for registration on the ground that the sale companysideration was number paid and companysequently, received by the vendor. Further, in our opinion, when the Registrar satisfies himself on the perusal of the document, wherein it is stated that the full sale companysideration is received and on such satisfaction, entertain the document for registration, cannot thereafter be companyferred with a power for cancellation of the deed on the ground that the full sale companysideration was number paid and received by the vendor. Conferring such power on the Registrar would tantamount to companyferring a power to decide the disputed questions. That apart, as already stated, in the absence of any provision specifically empowering the Registrar to entertain a document of cancellation for registration, without the signature of both the vendor and the purchaser, the deed cannot be entertained. For the said reason, we find numberinfirmity in the impugned circular issued by the Inspector General of Registration. Thus, the decision of this Court and the Madras High Court in the cases referred to supra, aptly apply to the fact situation of the present case. In the present case also such an extinguishment deed, which is unilaterally registered would be rescinded, particularly, in the case of sale deed or extinguishment deed. In this companytext, Section 62 of the Indian Contract Act, 1872 would companye into play which provides that if the parties to a companytract agree to substitute a new companytract for it, or to rescind or alter it, the original companytract need number be performed. Thus, for any numberation, rescission and alteration of the companytract, it can be made only bilaterally and with the amicable companysent of both the parties. Thus, a deed of cancellation of the earlier registered sale deed executed in favour of the Smt. Veeravali Anand would amount to an illegal rescission of the absolute sale deed because if the issue in question is viewed from the application of Section 62 of the Indian Contract Act, 1872, then it is clear that any rescission must be done only bilaterally. In the case on hand, undisputedly, the extinguishment deed dated 09.08.2001 and the cancellation of the sale deed dated 22.03.1962 in respect of the said plot of land involved in this case is unilaterally done by applying the clause 43 1 of the Bye-laws of the Society which has been amended in the year 1991 bearing No.Panji Gram Nirman 90/24 dated 02.01.1992, companymunicated to the Society by the Deputy Registrar, Co-operative Society, Bhopal. The said clause cannot have a retrospective effect with regard to the cancellation of the sale deed in the name of the mother of the appellant and for executing extinguished deed with regard to the said plot of land as the cancellation deed which was registered on 09.08.2001 is only a subterfuge. The said clause of the Society by-laws, cannot override the statutory provisions under Section 31 of the Specific Relief Act, 1963. Section 31 of the Specific Relief Act reads thus When cancellation may be ordered 1 Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable and the companyrt may, in its discretion, so adjudge it and order it to be delivered up and cancelled. If the instrument has been registered under the Indian Registration Act, 1908 16 of 1908 , the companyrt shall also send a companyy of its decree to the officer in whose office the instrument has been so registered and such officer shall numbere on the companyy of the instrument companytained in his books the fact of its cancellation. Therefore, the unilateral cancellation of the sale deed with regard to the said plot of land against the appellant is companytrary to the provisions as provided under Section 31 of the Specific Relief Act, 1963 read with Article 59 of the Limitation Act, 1963, wherein the cancellation of any instrument can be done only within three years, when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the companytract rescinded first become known to him. Therefore, the respondent-Society had numberright to unilaterally cancel the absolute sale deed executed in favour of the appellants mother in the year 1962 with regard to the said plot of land in the year 2001 after lapse of more than 39 years which is totally impermissible in law, both for the Society and the Sub-Registrar. The respondent has neither any authority under the provisions of the Registration Act, 1908 number under Section 31 of the Specific Relief Act, 1963 read with Article 59 of the Limitation Act, 1963 to unilaterally cancel the sale deed without the authority of law and as such the registration of the document by the sub-Registrar amounts to playing fraud on the power provided to him under law which is ultra vires the relevant statutory provisions and the Constitution of India. Further reliance has been placed upon the judgment of the Constitution Bench of this Court in the case of Pratap Singh v. State of Punjab14, wherein the Constitution Bench, with reference to the House of Lords, has clearly laid down the aforesaid principle as under If this were put aside, the second ground of attack on the orders may be viewed from two related aspectsof ultra vires pure and simple and secondly as an infraction of the rule that every power vested in a public body or authority has to be used honestly, bona fide and reasonably, though the two often slide into each other. Thus Sir Lyman Duff, speaking in Municipal Council of Sydney v. Campbell in the companytext of an allegation that the statutory power vested in a municipal companyporation to acquire property had been used in bad faith which was held to have been proved, stated A body such as the Municipal Council of Sydney, authorised to take land companypulsorily for specified purposes, will number be permitted to exercise its powers for different purposes, and if it attempts to do so, the Courts will interfere. As Lord Loreburn said, in Marquess of Clanricarde v. Congested Districts Board Whether it does so or number is a question of fact. Where the proceedings of the Council, are attacked upon this ground, the party impeaching those proceedings must, of companyrse, prove that the Council, though professing to exercise its powers for the statutory purpose, is in fact employing them in furtherance of some ulterior object. Similarly, in Short v. Poole Corporation Pollock M.R. observed The appellants represented before the Court by Maugham K.C.afterwards Lord Maugham do number companytest the proposition that where an authority is companystituted under statute to carry out-statutory powers with which is entrusted it, if an attempt is made to exercise those powers companyruptlyas under the influence of bribery, or mala fides for some improper purpose, such an attempt must fail. It is null and void see Reg. Governors of Darlington School. In the same case Warrington, L.J. said No public body can be regarded as having statutory authority to act in. bad faith or from companyrupt motives, and any action purporting to be that of the body, but proved to be companymitted in bad faith or from companyrupt motives, would certainly be held to be inoperative. It may be also possible to prove that an act of the public body, though performed in good faith and without the taint of companyruption, was so clearly founded on alien and irrelevant grounds as to be outside the authority companyferred upon the body, and therefore inoperative. It is difficult to suggest any act which would be held ultra vires under this head though performed bona fide. For the aforesaid reasons, I have companye to the companyclusion that the Society has numberright to re-allot the said plot of land in favour of the respondent No. 5 by cancelling the already registered sale deed in favour of the appellants mother in the year 1962 which was an absolute sale deed. Further, registering the sale deed on 21.04.2004 in favour of respondent number5, who in turn sold the said plot of land in favour of respondent Nos. 6 and 7, is void ab initio in the light of the fact that according to the bye- Laws of the Society, Mrs. Manjeet-respondent number5, companyld number have companye in possession of the said plot in the first place as her husband has already got a plot allotted to him in the very same Society. Therefore, the transfer of the said plot of land via subsequent sale deeds are void ab initio in law and therefore, liable to be set aside. For the above stated reasons, it is clear that the appellant has got a valid companystitutional right over the said plot of land as guaranteed under Article 300A of the Constitution of India, wherein it has been stated that the deprivation of property without the authority of law is totally impermissible in law. Merely because the cancellation of the void extinguishment deed with regard to the said plot of land and the subsequent sale deed executed in favour of the respondent No.5 has number been sought for by the appellant by approaching the civil companyrt, it does number disentitle him for seeking the relief with regard to the said plot of land for the reason that the cancellation of the sale deed dated 30.03.1962 after a lapse of 39 years has been done without the authority of law by the Society. The subsequent actions of re-registering the sale deed in favour of the respondent No.5 and thereafter in favour of respondents Nos.6 and 7 are void ab initio in law. Thus, this Court has the power to closely examine the same in these proceedings having regard to the peculiar facts and circumstances of the present case. The scope of the powers of this Court under Article 136 of the Constitution of India has been discussed in a catena of cases. In the case of Arunachalam v. P.S.R. Sadhanantham and Anr.15 , Chinappa Reddy, J. observed as under 4 Article 136 of the Constitution of India invests the Supreme Court with a plenitude of plenary, appellate power over all Courts and Tribunals in India. The power is plenary in the sense that there are numberwords in Article 136 itself qualifying that power. But, the very nature of the power has led the Court to set limits to itself within which to exercise such power. It is number the well established practice of this Court to permit the invocation of the power Under Article 136 only in very exceptional circumstances, as when a question of law of general public importance arises or a decision shocks the companyscience of the Court. But within the restrictions imposed by itself, this Court has the undoubted power to interfere even with findings of fact making numberdistinction between judgment of acquittal and companyviction, if the High Court, in arriving at those findings, has acted perversely or otherwise improperly More recently, in the case of Ganga Kumar Shrivastav v. State of Bihar16, this Court laid down the following principles as regards the power of this Court under Article 136 10. The powers of this Court Under Article 136 of the Constitution are very wide but in criminal appeals this Court does number interfere with the companycurrent findings of the fact save in exceptional circumstances. It is open to this Court to interfere with the findings of fact given by the High Court if the High Court has acted perversely or otherwise improperly. It is open to this Court to invoke the power Under Article 136 only in very exceptional circumstances as and when a question of law of general public importance arises or a decision shocks the companyscience of the Court. When the evidence adduced by the prosecution fell short of the test of reliability and acceptability and as such it is highly unsafe to act upon it. Where the appreciation of evidence and finding is vitiated by any error of law of procedure or found companytrary to the principles of natural justice, errors of record and misreading of the evidence, or where the companyclusions of the High Court are manifestly perverse and unsupportable from the evidence on record. As can be seen from the above case law, the power vested with this Court is quite wide and the Court can examine any case to prevent miscarriage of justice. Therefore, the High Court ought to have granted the relief to the appellant by holding that the extinguishment deed executed with regard to the appellants said plot of land on 09.08.2001, without following the procedure companytemplated under Section 31 1 2 of the Specific Relief Act, 1963 and Section 54 of the Transfer of Property Act, 1882, is void ab initio in law. The same is required to be interfered with by this Court in exercise of its appellate jurisdiction as there is a grave miscarriage of justice and the septuagenarian appellant has been suffering unnecessarily for the past 14 years at the hands of the Society and the Sub-Registrar, who have violated the provisions of law and deprived the appellant of his valuable companystitutional right guaranteed under Article 300A of the Constitution of India upon the said property. Therefore, the appellant is entitled for the relief as prayed for in this appeal. The companytention urged on behalf of the respondents, namely that this Court has already dismissed the SLP No.13255 of 2012 filed by the appellant earlier, wherein, this Court has examined the companyrectness of the order dated 08.11.2008 of the Joint Registrar passed in exercise of his revisional jurisdiction with regard to the appointment of the receiver under Section 64 of the M.P. State Cooperative Societies Act 1960, at the instance of the respondents, has numberrelevance to the reliefs sought for in the present appeal. The prayer sought for in the present appeal is with regard to cancellation of the extinguishment deed and the subsequent sale deed executed by Society in favour of respondent No.5, who in turn has executed another sale deed in favour of respondent Nos. 6 and 7 with regard to the said plot of land. Therefore, the prayer in the present appeal is totally different from the one in SLP No.13255 of 2012. The order dated 17.07.2013 passed in SLP No. 13255 of 2012 by this Court, at para 4, is very clear with regard to the extinguishment deed which reads thus It appears that after lapse of 40 years, the first respondent purported to have cancelled the sale made in favour of the petitioners deceased mother. On 9.8.2001, a deed styled as Extinguishment Deed came to be executed by the first respondent before the Sub-registrar, Bhopal-the legality of which deed is required to be examined separately. However, we do number propose to say anything at this stage. In so far as the document of companypromise deed dated 06.07.2004 is companycerned, the sum of Rs.6,50,000/- allegedly voluntarily received by the appellant from the respondent No.5 to put an end to the dispute over the said property is also a void transaction, as the same has been done during the pendency of the proceedings before the Sub-Registrar in relation to the dispute. The said companypromise deed is void ab initio in law and the same cannot be put against the appellant so as to deny him the relief sought by him in the present appeal. Apart from the said reason, the numberice dated 12.07.2007 served upon the appellant by the lawyer of respondent No.5 has rescinded the agreement dated 06.07.2004 and she has claimed the refund of 6,50,000/-, to be returned with interest to her, failing which she will file a suit for claim for payment of Rs.6,50,000/- with interest. The said numberice is produced at Annexure P-6 in the proceedings. The relevant clause 4 of the said numberice is extracted hereunder which reads thus- That after receipt of money by you frivolous disputes are being raised by you. By raising unnecessary disputes you have violated companypromise dated 6.7.2004. Therefore, my client being companystrained makes demand of the amount paid to you . Therefore, you are liable to return and pay to my client the amount of Rs.6,50,000/- Rupees six lakh and fifty thousand . Therefore, by means of the numberice you are informed that the amount of Rs.6,50,000/- Rupees six lakh and fifty thousand and interest thereon at bank rate from date of receipt till the date of payment be returned to my client within 30 days of receipt of this numberice and obtain a receipt in writing after the said period my client shall be entitled to take action before you in the companyrt of law in accordance with law In view of the aforesaid demand numberice, since the agreement has been rescinded, it does number subsist and the High Court by placing reliance upon the same has companymitted an error in fact and in law and has wrongfully denied the relief to the appellant even though the same was brought to the numberice of the High Court by the appellant in the proceedings before it. For the reasons stated supra, I have to grant the reliefs in favour of the appellant as prayed by him and quash the extinguishment deed dated 09.08.2001 along with the subsequent sale deeds registered in favour of the respondent No.5 who in turn has sold property in favour of respondent Nos.6 and 7 without the authority of law. The sale deed can be cancelled under Section 31 of the Specific Relief Act, 1963, by the companypetent civil companyrt if the same is challenged within the period of limitation stipulated under Article 59 of the Limitation Act, 1963. Since the facts are undisputed in the case on hand and the respondent Society, after the lapse of 39 years has erroneously and illegally cancelled the absolute sale deed registered in favour of the appellants mother, the appellant has acquired a valid and absolute title to the property in question and the same companyld number have been cancelled by the respondent Society and the Sub-Registrar as it is void ab initio in law. Hence, the High Court should have responsibly exercised its extraordinary jurisdiction and should have examined the documents of the sale deed with respect to the relevant provisions of the M.P Co-operative Societies Act and Rules, 1962 and the Bye-laws of the Society. The cancellation of the sale deed executed in favour of the appellants mother in the year 1962 by way of the extinguishment deed companyld number have been registered by the Sub-Registrar as he is number empowered to do so. Hence, for want of the companypetent jurisdiction, in registering such document, the High Court should have exercised its extraordinary jurisdiction to annul the extinguishment deed and the transactions of the subsequent sale deeds, which has number been done by it. Reliance has been placed upon the decision of this Court in the case of CAG v. K.S. Jagannathan17, wherein it has been held thus Even had the Division Bench issued a writ of mandamus giving the directions which it did, if circumstances of the case justified such directions, the High Court would have been entitled in law to do so for even the companyrts in England companyld have issued a writ of mandamus giving such directions. Almost a hundred and thirty years ago, Martin, B., in Mayor of Rochester v. Regina said But, were there numberauthority upon the subject, we should be prepared upon principle to affirm the judgment of the Court of Queens Bench. That companyrt has power, by the prerogative writ of mandamus, to amend all errors which tend to the oppression of the subject or other misgovernment, and ought to be used when the law has provided numberspecific remedy, and justice and good government require that there ought to be one for the execution of the companymon law or the provisions of a statute Comyns Digest, Mandamus A Instead of being astute to discover reasons for number applying this great companystitutional remedy for error and misgovernment, we think it our duty to be vigilant to apply it in every case to which, by any reasonable companystruction, it can be made applicable. The principle enunciated in the above case was approved and followed in King v. Revising Barrister for the Borough of Hanley. In Hochtief Gammon case this Court pointed out that the powers of the companyrts in relation to the orders of the government or an officer of the government who has been companyferred any power under any statute, which apparently companyfer on them absolute discretionary powers, are number companyfined to cases where such power is exercised or refused to be exercised on irrelevant companysiderations or on erroneous ground or mala fide, and in such a case a party would be entitled to move the High Court for a writ of mandamus. In Padfield v. Minister of Agriculture, Fisheries and Food the House of Lords held that where Parliament had companyferred a discretion on the Minister of Agriculture, Fisheries and Food, to appoint a companymittee of investigation so that it companyld be used to promote the policy and objects of the Agricultural Marketing Act, 1958, which were to be determined by the companystruction of the Act which was a matter of law for the companyrt and though there might be reasons which would justify the Minister in refusing to refer a companyplaint to a companymittee of investigation, the Ministers discretion was number unlimited and if it appeared that the effect of his refusal to appoint a companymittee of investigation was to frustrate the policy of the Act, the companyrt was entitled to interfere by an order of mandamus. In Halsburys Laws of England, 4th Edn., vol. I, para 89, it is stated that the purpose of an order of mandamus is to remedy defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and numberspecific legal remedy for enforcing that right and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less companyvenient, beneficial and effectual. There is thus numberdoubt that the High Courts in India exercising theirpicjurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion companyferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant companysiderations or by ignoring the relevant companysiderations and materials or in such a manner as to frustrate the object of companyferring such discretion or the policy for implementing which such discretion has been companyferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to companypel the performance in a proper and lawful manner of the discretion companyferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the companycerned parties, the companyrt may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion. Emphasis laid by me Further reliance has been placed upon the decision of this Court in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani18, wherein it has been held thus The term authority used in Article 226, in the companytext, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 companyfers power on the High Courts to issue writs for enforcement of the fundamental rights as well as number-fundamental rights. The words any person or authority used in Article 226 are, therefore, number to be companyfined only to statutory authorities and instrumentalities of the State. They may companyer any other person or body performing public duty. The form of the body companycerned is number very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied. In Praga Tools Corpn. v. C.A. Imanual this Court said that a mandamus can issue against a person or body to carry out the duties placed on them by the statutes even though they are number public officials or statutory body. It was observed It is, however, number necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A niandamus can issue, for instance, to an official picof a society to companypel him to carry out the terms of the statute under or by which the society is companystituted or governed and also to companypanies or companyporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a companypany companystituted by a statute for the purpose of fulfilling public responsibilities. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is number imposed by the statute. Commenting on the development of this law, Professor de Smith states To be enforceable by mandamus a public duty does number necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, companymon law, custom or even companytract.7 We share this view. The judicial companytrol over the fast expanding maze of bodies affecting the rights of the people should number be put into watertight companypartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should number companye in the way of granting that relief under Article 226. We, therefore, reject the companytention urged for the appellants on the maintainability of the writ petition. Further, this Court has laid down the following principles with respect to the writ of certiorari in the 7 judge bench decision in the case of Hari Vishnu Kamath v. Ahmad Ishaque19 . 1 Certiorari will be issued for companyrecting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. The companyrt issuing a writ of certiorari acts in exercise of a supervisory and number appellate jurisdiction. One companysequence of this is that the companyrt will number review findings of facts reached by the inferior Court or Tribunal, even if they be erroneous.
TARUN CHATTERJEE, J. These two appeals are directed against the companymon final judgment and order dated 18th of May, 2001 of the High Court of Calcutta passed in F.A. Nos. 39-40 of 1999 affirming the judgment and decree dated 11th of November, 1998 passed by the Asstt. District Judge, 9th Court at Alipore, South 24 Parganas whereby the two suits namely, Title Suit No 19/92 and 39/92 filed at the instance of the appellant were dismissed. The facts leading to the filing of these two appeals are narrated in a nutshell as follows M s. K.B. Saha Sons Pvt. Ltd. in short the appellant brought Title Suit No. 19/92 before the 9th Court of the Asstt. District Judge, Alipore, South 24 Parganas against M s. Development Consultants Ltd. in short the respondent alleging, inter alia, that the appellant was the owner of Premises No. 28/8, Gariahat Road, within Police Station Lake in the district of South 24 Parganas hereinafter called the suit property . By a memorandum dated 30th of March, 1976, the respondent became a tenant in respect of a flat, as fully described in Schedule-A of the plaint, in the suit property hereinafter called the suit premises for the residential accommodation of a particular officer Mr. Keshab Das and members of his family and for numberother purpose. The monthly rent was fixed at Rs. 1100/-, which included the rent of fixtures, fittings and parking place payable in advance by 5th of the current month for which the rent became due. The monthly rent and other charges were increased to Rs. 1210/- from September, 1985. The appellant alleged that the memorandum dated 30th of March, 1976 specifically provided that if the respondent intended to use the suit premises for any purpose other than providing residential accommodation to its named officer Mr. Keshab Das and members of his family, the respondent would have to seek a written companysent from the appellant bringing the change of purpose by a numberice. By a letter dated 6th of March, 1992, the respondent informed the appellant that Mr. Keshab Das had vacated the suit premises and that it wanted to make repairs and to allot the same to another employee to which the appellant objected and replied by a letter dated 12th of March, 1992 that the respondent had numberright to allot the suit premises to another employee and, therefore, must surrender the same once vacated by Mr. Keshab Das. However, the appellant was informed by the respondent that they would number surrender the suit premises and shall carry out the repair work in it. In this backdrop, the aforesaid Title Suit No. 19/92 was filed by the appellant for declaration and permanent injunction that as per the terms of the Memorandum of Agreement dated 30th of March, 1976, the respondent had numberright to allot the suit premises to any other employee after the same was vacated by Mr. Keshab Das and members of his family. By an interim order passed on 13th of March, 1992 in the aforesaid suit, the Assistant District Judge, 9th Court at Alipore had passed an order of injunction restraining the respondent from allowing any other person except Mr. Das to occupy the suit premises. This interim order was made final on 2nd of September, 1992. On 18th of March, 1995, a numberice under Section 13 6 of the West Bengal Premises Tenancy Act, 1956 in short the Act was served on the respondent asking them to vacate the suit premises and on failure of the respondent to vacate the suit premises as desired in the numberice, another suit was filed by the appellant being Title Suit No. 39/95 praying for ejectment of the respondent from the suit premises. The aforesaid suit was brought by the appellant with similar allegations as companytained in Title Suit No. 19/92 and it was alleged, inter alia, that although the respondent was bound to vacate the suit premises after Mr. Das had vacated the same, yet the respondent had number vacated the suit premises and, therefore, the appellant was companystrained to file the aforesaid suit for eviction of the respondent and damages and companysequential relief. The respondent entered appearance and companytested both the suits by filing written statements. In the written statements, it was the defence of the respondent that the respondent was in urgent need of rented accommodation for its officer and, therefore, they hurriedly put their signatures on the agreement dated 30th of March, 1976. The respondent further alleged that the tenancy was taken by them for providing residential accommodation to its officer Mr. Keshab Das who was only an officer of the respondent and it was the respondent who was the tenant of the suit premises and number the named officer Mr. Keshab Das. Therefore, according to the respondent, even after the suit premises was vacated by Mr. Das, the tenancy of the respondent companytinued and it was still companytinuing. The allegation of the appellant that the respondent had numberright to allow another officer to occupy the suit premises was misconceived and baseless. It was further alleged in the written statements that the respondent had duly informed the appellant that the employee of the respondent i.e. Mr. Das had left the suit premises and that they were going to allot the suit premises to another officer. It was also asserted that since it was the respondent who was the tenant under the appellant and paid the rent to the appellant, such tenancy was protected by the provisions of the Act. It was further the case of the respondent that the tenancy agreement entered into by the parties was illegal and invalid and such an agreement was against the Statute. Accordingly, in both the written statements, the respondent asserted that neither any order of injunction companyld be passed against them number companyld the suit be decreed in favour of the appellant directing eviction of the respondent from the suit premises. By a companymon judgment dated 11th of November, 1998, the suits of the appellant were dismissed. Feeling aggrieved by the aforesaid companymon judgment of the trial Court, two appeals were filed in the High Court at Calcutta, which came to be registered as FA Nos. 39-40 of 1998. By the impugned companymon judgment of the High Court, the aforesaid two appeals being FA Nos. 39-40 of 1998 were dismissed and two Special Leave Petitions were filed against them in respect of which leave has already been granted. We have heard the learned companynsel for the appellant and examined the judgment of the High Court as well as of the trial companyrt and other materials on record. We keep it on record that numbere had appeared for the respondent despite our best efforts to bring the respondent to appear before us and companytest the appeals. We also keep it on record that in view of the interim order granted by the High Court as well as by the trial Court to the extent that the respondent cannot be allowed to bring any officer other than Mr. Keshab Das to occupy the suit premises, the respondent has kept the suit premises under lock and key without any occupation of any officer in the same. On a perusal of the pleadings of the parties, it is pellucid that the case of the appellant in both the suits was based on the memorandum of lease agreement dated 30th of March, 1976. In this view of the matter, it is expedient to reproduce some of the relevant Clauses in the Tenancy Agreement between the parties before we proceed further with this appeal. Accordingly, the relevant portion of the memorandum dated 30th of March, 1976 is reproduced as under - THIS MEMORANDUM OF AGREEMENT made this the 30th day of March, one thousand nine hundred and seventy six BETWEEN M s. K. Saha Sons Biri Merchants Limited, a body companyporate registered under the Companies Act, 1956 having its registered office at 28/8, Gariahat Road within S. Tollygunge, Calcutta-700 029 within the local limits of Corporation of Calcutta hereinafter called the landlords which expression unless repugnant to the companytext shall include its successors and assigns of the First Part AND DEVELOPMENT CONSULTANTS PRIVATE LTD, a body companyporate registered under the Companies Act,1956 having its registered office at present at premises No.24-B, Park street, Calcutta, within P.S. Park Street, Calcutta- 16 hereinafter called the tenant which expression unless repugnant to the companytext shall include its successors and assigns. of the Second Part W HEREAS the party of the F IRST PART , the Landlord hereof is the sole owner and proprietor of multistoreyed buildings being Premises No. 28/8, Gariahat Road, within P.S. Tollygunge, Calcutta-29 within the local limits of companyporation of Calcutta AND WHEREAS the said Landlord, party of the first part hereof offered to let out flat No. 3 on the 2nd floor of the said premises along with fittings, fixtures and installations therein at a total monthly rental of Rs.1100/- Rupees One Thousand One Hundred only inclusive of rent of fittings and fixtures and service charges and parking space for one car AND WHEREAS the party of the second part hereof approached the party of the first part hereof and offered to it the said flat No.3 of the 2nd floor of the said premises No,28/8, Gariahat Road, Calcutta-29 for the use and occupation of its present Chief Engineer Cement of the aforesaid party Mr. Keshab Das and the members of his family only agreeing and accepting to the aforesaid offer by the party of the first part at a total rental of Rs.1,100/ - Rupees One thousand one hundred only inclusive of the rent of fittings and fixtures, service charges and parking space for one car AND WHEREAS the party of the first part hereof has agreed to let out the said flat to the party hereto of the second part for the use and occupation of its present said Chief Engineer Cement and his family members only AND WHEREAS the party of the first part agrees to give vacant possession of the said tenancy and the party of the second part hereto agrees to take possession of the said tenancy for the use and occupation of the said Chief Engineer Cement and his family members on First day of April, 1976 Clause-9 of the Agreement runs as follows - That the party of the second part hereof agrees and undertakes that the tenancy will be used and occupied by its present officer Mr. Keshab Das and members of his family for residential purpose only and for numberother purposes. If the tenant intends to use the tenancy for occupation of any other officer or employees, it will seek for written companysent of the landlord and the landlord shall have the option to agree or disagree to give such companysent. Clause 20 of the said agreement is as follows - That the tenant shall vacate and deliver vacant Khas possession of the demised premises unto the landlord on termination or determination of the tenancy with whole of the fittings and effects in as sound, perfect and clear companydition as they were at the companymencement of the tenancy excepting natural wear and tear. In view of the pleadings of the parties, the following issues were framed by the trial companyrt in Title Suit No.19 of 1992 - Has the plaintiff any cause of action for the suit ? Is the suit maintainable in its present form and in law? Was the suit premises let out by the plaintiff to the defendant for providing accommodation to its particular officer viz. Mr.Keshab Das ? Is the plaintiff entitled to get the decree as prayed for ? To what relief, if any, is the plaintiff entitled ? In Title Suit No.39/95, the following issues were framed - Is the suit maintainable? Whether the numberice of ejectment is valid, legal and sufficient ? If so, was it duly served upon the defendant ? Whether the defendant is a defaulter in payment of rent as alleged ? Whether the defendant has caused damage to the suit premises ? Whether the defendant has violated the terms of the memorandum of agreement by number vacating the premises after the same having been vacated by Mr.Keshab Das ? To what relief, if any, is the plaintiff entitled ?. Considering the different clauses of the lease agreement and on companysideration of the evidence on record and the companytentions of the learned companynsel for the parties, the trial companyrt finally came to the following findings - The suit premises was let out by the appellant to the respondent initially for providing accommodation to its particular officer namely Mr. Keshab Das and members of his family, which companyld number mean that the tenancy was created exclusively for the accommodation and residence of Mr. Keshab Das and his family only. II The tenancy was created in respect of the suit premises in favour of the respondent. III Since the tenancy was determinable and terminable by a legal sufficient valid numberice under the Act to the respondent, the respondent companyld be directed to vacate the suit premises only on proof of the grounds mentioned in Section 13 1 of the Act. IV Since the respondent was depositing rent in the office of the Rent Controller, Calcutta, the respondent was number a defaulter in payment of rent as a tenant and therefore, number liable to be evicted on the ground of default. The respondent was a tenant in respect of the suit premises although it was taken exclusively for the benefit of the named officer and therefore, the named officer Mr. Das was only occupying the suit premises on behalf of the respondent. VI Since, admittedly, the lease agreement was number registered, which document under Section 49 of the Registration Act was required to be registered, the said agreement was number admissible in evidence. VII The lease agreement, being an unregistered document, companyld number be used to establish that the suit premises was let out to the respondent only for the purpose of occupation of its employee Mr. Keshab Das and the members of his family for their residential purpose and for numberother purpose. VIII From the agreement, which companyld be seen as a companylateral evidence, the purpose of the tenancy was clearly for residence and, therefore, the question of violation of Clause o of Section 108 of the Transfer of Property Act by the respondent in the facts and circumstances of the case companyld number arise at all. On the aforesaid findings arrived at by the Trial Court, both the suits were dismissed and the High Court on the same lines had affirmed the findings of the trial companyrt and held that numberground was made out by the appellant to evict the respondent from the suit premises. Mr. Somnath Mukherjee, the learned companynsel appearing on behalf of the appellant submitted that the lease agreement Ext.4 creating tenancy from month to month in respect of the suit premises was number companypulsorily registerable under Section 107 of the Transfer of Property Act. He also companytended that the High Court as well as the trial companyrt were wrong in holding that the lease agreement being an unregistered document cannot be used to establish the provisions made in that agreement that the suit premises was let out to the respondent only for the purpose of occupation of the respondents named officer Mr. Keshab Das and members of his family and for numberother purpose. He further companytended that since the lease agreement in question was number required to be registered, the prohibition companytained in Section 49 of the Registration Act was number applicable. He also companytended in the alternative that even if it was held that the lease agreement in question was companypulsorily registrable, even then the purpose of letting specified in the lease agreement was a companylateral purpose and accordingly, the lease agreement companyld be looked into under the proviso to Section 49 of the Registration Act and also that the said term did number extinguish the tenants right under the Act. Lastly, he companytended that the respondent had violated section 108 o of the Transfer of Property Act and, accordingly, was liable to be evicted under Section 13 1b of the Act. Mr. Mukherjee companytended that the lease agreement between the parties was number illegal and against the statute. In support of this companytention, Mr.Mukherjee relied on a decision of this Court in the case of Smt. Juthika Mulick Anr. vs. Dr.Mahendra Yashwant Bal Ors. AIR 1995 SC 1142 and he strongly relied on paragraph 42 of the said decision which says As general proposition of law, there can be numberdemur that there is numberestoppel against a statute. The language of Section 13 of the Act makes it clear that only if anything is found companytrary in any other law an order or decree for the recovery of possession of any premises shall be made by any companyrt in favour of the landlord against a tenant. This wording is peculiar unlike most of the Rent Control Legislations where companytract to the companytrary is also enveloped in affording protection to the tenants against eviction. In view of the language of Section 13 1 of the Act, the parties have freedom to companytract out of Section. In this case clause 1 of the lease-deed extracted above stipulates that the heirs of lessee will have numberright to hold after the death of lessee and they have to deliver quiet, peaceful and vacant possession within three months after the demise of the original lessee. In other words, the right has been made specifically number heritable. In order to appreciate the submissions made by Mr. Mukherjee, the learned companynsel appearing on behalf of the appellant, it would be necessary for us to look into Section 107 of the Transfer of Property Act which would be, in our view, material for rendering proper decision in this appeal. Accordingly, Section 107 of the Transfer of Property Act may be quoted which runs as under Lease how made - A lease of immoveable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument. All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee. Provided that the State Government may from time to time, by numberification in the Official Gazette, direct that leases of immoveable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession. Another section which would also be material for us to decide this appeal is - Section 49 of the Registration Act which runs as under Effect of number-registration of documents required to be registered - No document required by Sec.17 or by any provision of the Transfer of Property Act, 1882 4 of 1882 to be registered shall - a affect any immoveable property companyprised therein, or b companyfer any power to adopt, or c be received as evidence of any transaction affecting such property or companyferring such power, unless it has been registered Provided that an unregistered document affecting immoveable property and required by this Act or the Transfer of Property Act, 1882 4 of 1882 , to be registered may be received as evidence of a companytract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 3 of 1877 , or as evidence of any companylateral transaction number required to be effected by registered instrument. Having heard the learned companynsel for the appellant and after going through the judgment of the High Court as well as of the trial companyrt, we do number find any ground for which interference can be made with the judgment of the High Court. We may numbere that it was the case of the respondent before the High Court that it was protected by the provisions of the Act and that it companyld number be evicted only because as per the agreement, the tenancy was to be occupied by one of its officers. The appellant, on the other hand, as numbered hereinabove, placed reliance on the decision of this companyrt in Smt. Juthika Mullicks case supra, to put forth the point that the respondent was bound to vacate the premises after the said officer had left the premises and relying on Smt.Juthika Mulicks case supra submitted that the lease agreement was number at all companytrary to the provisions of the Act and that the parties were at liberty to companytract out of the Section delineating the various grounds for eviction. We may numbere at this stage that in that decision, this companyrt had held that although the tenant was protected under the provisions of Section 13 of the Act and such tenant companyld be evicted only for one or more grounds as provided in that Act, the parties had the freedom to enter into an agreement to take their case out of the provisions of that Section i.e. the parties were at liberty to companytract out of that section. Before we deal with the submission of Mr. Mukherjee, learned companynsel appearing on behalf of the appellant, on this question, we may look into the findings arrived at by the High Court on this question. The High Court in the impugned judgment has companye to a companyclusion that the decision in the case of Smt. Juthika Mulicks case Supra cannot be of any benefit to the appellant on the ground that in Smt.Juthika Mulicks case, the respondent had leased out the premises in question in favour of the lessee under a registered deed of sale whereas in the instant case, the lease deed was number registered. The High Court has observed that the lease agreement between the parties was in effect an agreement for lease of the suit premises and was unregistered. Relying on Section 49 of the Registration Act, the High Court observed that a document purporting to be a lease and required to be registered under Section 107 of the Transfer of Property Act is number admissible in evidence if it is number registered. Proviso to Section 49, however, provides that although a lease deed falling under the provision of Section 107 of the Transfer of Property Act will number be admissible in evidence if the same is number registered but that deed may be used as evidence of any companylateral transaction number required to be effected by a registered instrument. Therefore, the High Court observed that the question to be decided in this appeal is whether the companyditions numbered in the lease deed companyld be looked into for determining the question that the tenancy in question would be used only for the purpose of occupation of the named officer of the respondent. Section 49 clearly provides that a document purporting to be a lease and required to be registered under Section 107 will number be admissible in evidence if the same is number registered. Proviso to this section, however, as numbered hereinabove, provides that an unregistered lease deed may be looked into as evidence of companylateral facts. Mr. Mukherjee, learned companynsel for the appellant argued before us that the tenancy in question was exclusively granted for the benefit of the named officer and his family and unless the landlord gave his companysent, numberother person companyld use it and such companydition in the lease agreement is admissible for ascertaining the purpose of allotting the suit premises which according to the appellant is a companylateral fact. Having heard the learned companynsel for the appellant, we are of the view that the decision of this Court in Smt. Juthika Mullicks case supra, on which strong reliance was placed by the learned companynsel for the appellant is of numberhelp to the appellant because as rightly pointed out by the High Court, the said decision was based on a registered deed of lease. In Smt. Juthika Mulicks case supra, as numbered herein earlier, it has been held that the language of Section 13 of the Act makes it clear that numberwithstanding anything to the companytrary companytained in any other law, an order or decree for the recovery of possession of any premises shall be made by the companyrt in favour of the landlord against a tenant on the grounds mentioned in that section. It was further observed that in view of the language of Section 13 1 of the Act, the parties have freedom to companytract out of the Section. In the aforesaid judgment of this Court, on which strong reliance was placed by the appellant, the fact was that the predecessor-in-interest of the respondents in that appeal leased out the premises in question in favour of one Lal Bihari Mulick in a registered deed of lease at a monthly rental of Rs. 160/- and the lease deed companytained a companyenant that the lease was for the lifetime of the lessee and his heirs, executors, administrators, representatives and the heirs must yield up and deliver quiet, peaceful and vacant possession of the demised premises within three months from the date of death of the lessee unconditionally and without any objection whatsoever. It was further stipulated that they shall have numberright to handover the demised premises after the said period under any circumstances. The lessee died on 16th of December, 1970 and his heirs did number deliver vacant possession in favour of the lessors or their successors in interest and this necessitated filing of the suit for eviction of the defendants. In that decision, the main defence raised in the written statement was that the original lessee Lal Bihari Mulick, having died on 16th of December, 1970, the registered lease dated 11th of July, 1966 shall fall under the category of the West Bengal Premises Tenancy Act and the tenants were residing in the demised premises with the said lessee namely Lal Bihari Mullick during his lifetime became monthly tenants under the plaintiffs of that case by operation of law. In view of the aforesaid facts and companysidering the fact that the aforesaid decision of this Court was rendered on the basis of a registered lease deed, we are of the view that the said decision is clearly distinguishable from the present case because of the fact that in the present case, there was numberregistered deed of lease number was there any such companyenant as mentioned hereinabove. Therefore, we do number find any ground to place any reliance on the aforesaid decision of this companyrt. As we have already numbered that under the proviso to Section 49 of the Registration Act, an unregistered document can also be admitted into evidence for a companylateral fact companylateral purpose, let us number look at the meaning of companylateral purpose and then ascertain whether Clause 9 of the lease agreement can be looked into for such companylateral purpose. In Haran Chandra Chakrvarti Vs. Kaliprasanna Sarkar AIR 1932 Cal 83 2 , it was held that the terms of a companypulsorily registrable instrument are numberhing less than a transaction affecting the property companyprised in it. It was also held that to use such an instrument for the purpose of proving such a term would number be using it for a companylateral purpose and that the question as to who is the tenant and on what terms he has been created a tenant are number companylateral facts but they are important terms of the companytract of tenancy, which cannot be proved by admission of an unregistered lease-deed into evidence. The High Court in the impugned Judgment relied on a decision of the Allahabad High Court in the case of Ratan Lal ors. Vs. Harisankar Ors. AIR 1980 Allahabad 180 to hold that since the appellant wanted to extinguish the right of the respondent with the help of the unregistered tenancy, the same was number a companylateral purpose. In Ratan lals case supra, while discussing the meaning of the term Collateral Purpose, the High Court had observed as follows - The second companytention was that the partition deed, even if it was number registered companyld certainly be looked into for a companylateral purpose, but the companylateral purpose has a limited scope and meaning. It cannot be used for the purpose of saying that the deed created or declared or assigned or limited or extinguish the right to immovable property term companylateral purpose would number permit the party to establish any of these acts from the deed. In the case of Bajaj Auto Limited vs. Behari Lal Kohli AIR 1989 SC 1806 , this Court observed that if a document is inadmissible for number-registration, all its terms are inadmissible including the one dealing with landlords permission to his tenant to sub-let. It was also held in that decision that if a decree purporting to create a lease is inadmissible in evidence for want of registration, numbere of the terms of the lease can be admitted in evidence and that to use a document for the purpose of proving an important clause in the lease is number using it as a companylateral purpose. Again this companyrt in Rai Chand Jain Vs. Chandra Kanta Khosla AIR 1991 SC 747 reiterated the above and observed in paragraph 10 as under - the lease deed Ex. P1 dated 19th May, 1978 executed both by the appellant and the respondent i.e. the landlady and the tenant, Rai Chand Jain, though unregistered can be companysidered for companylateral purposes and as such the findings of the Appellate Authority to the effect that the said deed cannot be used for companylateral purposes namely to show that the purpose was to lease out the demised premises for residential purposes of the tenant only is number at all legally companyrect. It is well settled that unregistered lease executed by both the parties can be looked into for companylateral purposes. In the instant case the purpose of the lease is evident from the deed itself which is as follows The lessor hereby demises House No. 382, Sector 30-A, Chandigarh, to lessee for residential purposes only. This clearly evinces that the property in question was let out to the tenant for his residence only In the case of Rana Vidya Bhushan Singh Vs. Ratiram 1969 1 UJ 86 SC , the following has been laid down A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of companylateral facts, or for any companylateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. As stated by Mulla in his Indian Registration Act, 7th En., at p. 189 The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu Kashmir the former Chief Court of Oudh the Judicial Commissioners Court of Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is number admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that - A document required to be registered is number admissible into evidence under Section 49 of the Registration Act. Such unregistered document can however be used as an evidence of companylateral purpose as provided in the Proviso to Section 49 of the Registration Act. A companylateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration. A companylateral transaction must be a transaction number itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards. If a document is inadmissible in evidence for want of registration, numbere of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would number be using it as a companylateral purpose. In our view, the particular clause in the lease agreement in question cannot be called a companylateral purpose. As numbered earlier, it is the case of the appellant that the suit premises was let out only for the particular named officer of the respondent and accordingly, after the same was vacated by the said officer, the respondent was number entitled to allot it to any other employee and was therefore, liable to be evicted which, in our view, was an important term forming part of the lease agreement. Therefore, such a Clause, namely, Clause 9 of the Lease Agreement in this case, cannot be looked into even for companylateral purposes to companye to a companyclusion that the respondent was liable to be evicted because of violation of Clause 9 of the Lease Agreement. That being the position, we are unable to hold that Clause 9 of the Lease Agreement, which is admittedly unregistered, can be looked into for the purpose of evicting the respondent from the suit premises only because the respondent was number entitled to induct any other person other than the named officer in the same. Before we part with this Judgment, let us deal with another ground, which the High Court had also taken into companysideration. This is with regard to the violation of provisions of Section 108 o of the Transfer of Property Act. Section 108 o clearly provides that the Lessee must number use or permit another to use the property for a purpose other than that for which it was let out or leased. Relying on this provision, the learned companynsel for the appellant argued that since the purpose of the lease was for the use and occupation of one of the officers of the respondent, after the said officer had vacated the suit premises, the respondent, by refusing to handover the possession of the suit premises to the appellant and by giving the same to another officer, had violated the provisions of Section 108 o of the Transfer of Property Act. Before we decide this question, it is necessary for us to reproduce the finding of the High Court on this aspect, which is as follows - Clause O of Section 108 of the T.P. Act touches the question of user. This clause requires the lessee to use the property as a man of ordinary prudence would use his property and number to use the property, for any other purpose, for which it is leased. In the instant case, from the tenancy agreement, what can be seen as a companylateral evidence is the purpose of the tenancy and such purpose clearly is for residence. Therefore, there is numberquestion of violation of Clause o of Section 108 of the T.P. Act by the tenant companypany in the facts and circumstances of the case. We have carefully examined the aforesaid finding of the High Court on the question of violation of Section 108 o of the Transfer of Property Act. In our view, the High Court was justified in companying to a companyclusion that since this was number a case of Change of User within the meaning of Section 108 o of the Transfer of Property Act, it companyld number be held that the appellant had violated the provisions of Section 108 o of the Transfer of Property Act. Section 108 o requires the lessee to use the property as a man of ordinary prudence would use his property and number to use it for a purpose different to that for which it was leased. It is true that under Section 108 o of the Transfer of Property Act, use of the property for the purpose other than that for which it was leased i.e. Change of User is number permitted. Therefore, we have to companysider whether in the backdrop of the facts of this case, violation of Clause 9 of the lease agreement, even if it is held that it can be looked into for companylateral purposes, would be Change of User or number. In other words, we have to find whether the expression change of user would companyer a situation wherein the property is let out for a particular named officer and for numbere else and despite this companydition, the same is given to some one else, or would it companyer and be limited to the cases where property is leased out for a residential or numberresidential purpose or for a particular business and despite such express companyditions, the property is used for the purpose other than the specified. We are of the view that letting out or leasing out the property for a particular named officer cannot be the purpose of letting. The purpose of letting out would be residential or number-residential or for a particular business etc. The learned companynsel for the appellant placed strong reliance on the decisions of this companyrt in Dashrath Baburao Sangale and others Vs. Kashimath Bhaskar Data AIR 1993 SC 2646 and M. Arul Jothi and another Vs. Lajja Bal deceased and another AIR 2000 SC 1122 to suggest that the respondent had violated Section 108 o of the Transfer of Property Act. After carefully examining the aforesaid decisions of this Court, we do number find any support from the said decisions for the purpose of holding that the present case is companyered by the expression Change of User as used in Section 108 o of the Transfer of Property Act. In Dashrath Baburao Sangales case supra, the premises was let out to the tenant for sugarcane juice business whereas the tenant was using the premises for selling cloth and readymade clothes and on this ground, it was held that he was liable to be evicted on account of change of user. Similarly, in M. Arul Jothis case supra, the tenant was held liable for eviction when the shop rented to him for carrying on the business of radios, cycles, fans, clocks and steel furniture was companyverted into a grocery store despite a specific clause in the rent agreement forbidding the same. Therefore, in the present case, we are of the view that although the premises was leased out exclusively for the named officer of the respondent, the fact that it was subsequently used for the residence of some other officer of the respondent would number companystitute change of user so as to be hit by Section 108 o of the Transfer of Property Act. Before we part with this judgment, we may deal with a short submission of Mr. Mukherjee that since the lease agreement in question was simplicitor a tenancy agreement, which is number companypulsorily registrable, the respondent was liable to be evicted even under the provisions of the Act. We are unable to agree with this companytention of Mr. Mukherjee for the simple reason that for a decree to be passed under the Act, the landlord has to plead and prove one of the grounds mentioned in Section 13 of the Act. Even if we accept that the appellant had made out a case under Section 13 1b of the Act to the extent that the respondent was liable to be evicted under Section 108 o of the Transfer of Property Act, in view of our findings made hereinabove on that aspect, the appellant is number entitled to a decree of eviction under the Act. In view of our discussions made hereinabove, we are, therefore, of the view that Clause 9 of the Agreement, which requires the respondent to use the suit premises only for its particular named officer, can number be looked into even for companylateral purposes and that the decision of this companyrt in Smt. Juthika Mullicks case supra would number be of any help to the appellant because in that case, the lease deed was registered.
Leave granted. The appellant, who was working as a Junior Clerk in the Subordinate Court at Yanam Pondicherry , was dismissed from the service on companyclusion of disciplinary proceedings by the Chief Judge, Pondicherry for short Chief Judge vide order dated November 8, 2000. The appellant challenged that order before the High Court of judicature at Madras by filing a Writ Petition. His Writ Petition came to be dismissed on June 11, 2007. It is from this order that the present appeal, by special leave, arises. On April 28, 1999, the appellant was issued a Charge Memo setting out therein that he was liable to be proceeded with the disciplinary action under Rule 14 of the Central Civil Services Classification, Control and Appeal Rules, 1965 for short CCS Rules . Along with the Charge-Memo, Article of Charges was sent to the appellant. The Article of Charges companytained ten articles. An Inquiry Officer was appointed and inquiry proceeded against the appellant. The appellant filed his response by way of defence to the Charge Memo and Article of Charges and denied the allegations levelled against him. The appellant, after some time, did number participate in the departmental inquiry. As a result of which, the departmental inquiry companytinued exparte. Subsequently, on his objection that he had number been provided adequate opportunity, ex-parte departmental inquiry was re-called and the inquiry started de numbero. After full participation by the appellant thereafter in the departmental inquiry, some of the charges were found fully proved while some were held partially proved by the Inquiry Officer. The Disciplinary Authority Chief Judge , on companysideration of the report submitted by the Inquiry Officer, agreed with the findings recorded in the inquiry report and awarded to the appellant penalty of dismissal from the service. The dismissal order dated November 8, 2000, as numbered above, was challenged by the appellant before the High Court of Madras by way of filing a Writ Petition but without any success. Mr. V. Kanagaraj, learned senior companynsel for the appellant raised two-fold companytention before us. Firstly, he companytended that the Chief Judge was an appellate authority and, therefore, he companyld number have imposed the order of punishment as that has resulted in depriving the appellant of his valuable right of departmental appeal against the order of punishment. In support of this companytention, Mr. Kangaraj placed reliance on the two decisions of this companyrt Surjit Ghose vs. Chairman Managing Director, United Commercial Bank and others1 and ii Electronics Corporation of India vs. G. Muralidhar2 . The second companytention of Mr. Kangaraj is that the findings of the Inquiry Officer are vitiated inasmuch as the Inquiry Officer had taken into companysideration the evidence that was recorded in the ex-parte proceedings. Insofar as the second companytention is companycerned, it may be stated immediately that the said companytention is misplaced. The Inquiry Officer has number based his findings on the evidence that was recorded ex-parte but has referred to that only for the purposes of appreciation of the evidence of the witnesses examined by the department in de numbero inquiry wherein the appellant fully participated. The findings are based on the evidence that was recorded subsequently in the presence of the appellant. It is true that the witnesses PW2 to PW11 examined by the department 1 1995 2 SCC 474 2. 2001 10 SCC 43 did number support the department fully but besides the evidence of PW2 to PW11, there is a evidence of PW1. The Inquiry Officer companysidered his evidence and relied upon the same. In our companysidered view, the companysideration of the evidence recorded in the companyrse of the inquiry by the Inquiry Officer in the presence of the appellant and the findings recorded by him do number suffer from any legal infirmity justifying any interference by us. Coming to the first companytention raised by Mr. Kanagaraj, suffice it to say that ordinarily in a case of infliction of punishment by the higher authority acting as a disciplinary authority, if delinquent is denied his right of departmental appeal or right of review, such order of punishment may be rendered bad in law but much would depend on the relevant rules. In the case of Surjit Singh1, while companysidering the provisions of United Commercial Bank Officers Discipline and Appeals Regulations, 1976, this Court held thus It is true that when an authority higher than the disciplinary authority itself imposes the punishment, the order of punishment suffers from numberillegality when numberappeal is provided to such authority. However, when an appeal is provided to the higher authority companycerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment, the employee companycerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules Regulations. An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is numberappeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee companycerned. This is particularly so when there are numberguidelines in the Rules Regulations as to when the higher authority or the appellate authority should exercise the powers of the disciplinary authority. The higher or appellate authority may choose to exercise the power of the disciplinary authority in some cases while number doing so in other cases. In such cases, the right of the employee depends upon the choice of the higher appellate authority which patently results in discrimination between an employee and employee. Surely, such a situation cannot savour of legality. The above legal position has been reiterated by this Court in Electronics Corporation of India2. However, the present case is little different. Vide Notification dated November 17, 1982 issued by the Government of Pondicherry, a provision has been made that the appointing authority is companypetent to impose all the penalties in Rule 11 of the CCS Rules and the appellate authority has to exercise the powers and perform the functions of other authorities in respect of Group C and Group D posts in the offices mentioned against each other in companyumn 5 of the Table appended thereto. Second proviso that follows the first proviso and the main body of the Notification provides that where the appointment of a delinquent has been made by an authority higher than that specified in Column 2 , then that authority will companystitute the disciplinary authority under Column 3 of the Table in respect of major penalties and any appeal against the orders of such authority will lie to the next higher authority number below the rank of a Secretary to Government and where the appeal is against the orders of the Lieutenant Governor as the disciplinary authority, the appeal shall lie to the President. The relevant portion of the Table is as follows SL. Appointing Authority Appellate Office/ companypetent to Authority No. Authority officers impose all relating to penalties which the specified in powers are to Rule 11. be exercised. 1 2 3 4 5 xxx xxxxx xxxxxx xxxxx xxxxx JUDICIAL DEPARTMENT Special Special Chief Judge, District Officer, Officer, Court, Pondicherry Judicial Judicial including the Department Department Labour Court, Sales Tax Appellate Tribunal and Office of the Special Officer. The Chief Judge has recorded in his order dated November 8, 2000 that in the case of the appellant, he was the appointing authority. This fact has number been disputed by showing any material otherwise. We, therefore, have to accept the position that the Chief Judge was the appointing authority of the appellant. In that event, the argument advanced on behalf of the appellant that the appellate authority has inflicted punishment on him is devoid of any substance. As a matter of fact, the second proviso in the Notification dated November 17, 1992 takes care of such situation. It provides that in cases where the appointment has been made by an authority higher than that specified in Column 2 , then that authority will companystitute the disciplinary authority under Column 3 of the said Table in respect of major penalties. The challenge to the companypetence of the Chief Judge in passing the order of punishment is number meritorious and has, rightly been rejected by the High Court. By virtue of the second proviso in the Notification dated November 17, 1982, the appellants right of departmental appeal was number taken away and he companyld have challenged that order in the departmental appeal to the higher authority.
Dr. B.S. Chauhan, J. Liberty - the most cherished fundamental right, a basic human right, a transcendental, inalienable, and primordial right, should number be put in peril without following the procedure prescribed by law and in a casual and cavalier manner. Instant case is an example where all proceedings in the suit as well as under the Contempt of Courts Act, 1971, hereinafter called as Act 1971 , have been taken without adverting to the procedure known in law. This Criminal Appeal has been preferred under Section 19 1 b of the Act 1971 against the impugned judgment and order dated 20.7.2009 passed by the High Court of Delhi at New Delhi in Contempt Case Crl. No.9 of 2004, whereby the appellant has been companyvicted for companymitting companytempt of companyrt by violating the undertaking given by him to the Court at the time of disposal of the suit and awarded him simple imprisonment for four months. Facts and circumstances giving rise to this appeal are The appellant executed a sale deed in favour of one Mohd. Yusuf on 5.9.2002 in respect of the premises bearing No. 148, village Khirki, Malviya Nagar, New Delhi for a sum of Rs.2,10,000/- and got the said deed registered. Mohd. Yusuf filed suit No. 106/2003 in the Civil Court, Delhi, on 26.4.2003 for permanent injunction alleging that the appellant tried to dispossess him on 24.4.2003 from the said suit premises. His application for interim relief was rejected. The Civil Court issued summons and numberice to the appellant defendant. In response to the said summons and numberice, the appellant filed a written statement on 29.4.2003 admitting the execution of sale deed in respect of the suit premises for a sum of Rs.2.10 lacs and handing over its possession to the plaintiff but denied the allegation that he had made any attempt to dispossess the plaintiff. However, the appellant raised the grievance that the entire companysideration of sale has number been paid to him as a sum of Rs.25,000/- still remained outstanding. The Civil Court while taking his written statement on record also recorded the statement of the appellant defendant in person that he had neither threatened to dispossess number he would dispossess the plaintiff. The plaintiffs companynsel accepted the statements made by the appellant defendant in the companyrt and the case was adjourned for 12.5.2003. On 12.5.2003, plaintiff asked the companyrt to dispose of the suit in view of the statement made by the appellant defendant. The companyrt disposed of the suit directing the appellant defendant number to breach the undertaking given by him. Appellants son filed a suit on 11.8.2003 for partition in respect of two plot Nos. i.e. 147A and 148 claiming that he had a share in the said properties. Mohd. Yusuf-plaintiff in the Suit No. 106/2003 filed an application before the High Court under the provisions of Act 1971 alleging the violation of the undertaking given by the appellant to the civil companyrt. The application came up for hearing on 11.9.2003 but numbere appeared to press the same. The High Court disposed of the application vide order dated 11.3.2003 giving liberty to the said applicant to approach the civil companyrt. The said order was passed without issuing numberice to the appellant or anyone else. Mohd. Yusuf filed an application dated 15.9.2003 under Order XXXIX Rule 2A of Code of Civil Procedure, 1908 hereinafter called CPC read with Sections 10, 11 and 12 of the Act 1971 against the appellant, his wife and two sons alleging that when he visited the suit premises on 4.8.2003, he found that the locks of the main door had been broken by them. The appellant filed reply to the said application on 22.10.2003 alleging that the execution of the sale deed dated 5.9.2002 and his written statement and the statement made before the companyrt on 29.4.2003 had been obtained by fraud. While hearing the said application, the Court vide order dated 16.2.2004 recorded that as the appellant had taken inconsistent pleas to his written statement filed earlier and violated the undertaking while making his oral statement, a prima facie case of companytempt was made out and referred the matter to the High Court to be dealt with under the provisions of Act 1971. The appellant filed a suit on 23.2.2005 for cancellation of the sale deed dated 5.9.2002. The High Court while accepting the reference as Criminal Contempt, issued show cause numberice to the appellant on 2.2.2005 directing him to appear in person on 16.2.2005. The Court vide impugned judgment and order dated 20.7.2009 held the appellant guilty of criminal companytempt on the basis of inconsistent pleas taken by him and also for the breach of undertaking and imposed simple imprisonment for four months. The appellant was granted bail by this Court on 29.9.2009. Hence, this appeal. Mr. Tanmaya Mehta, learned companynsel appearing for the appellant has raised the grievance mainly, that it was a case of civil companytempt which companyld have been dealt with by the Trial Court itself and by numbermeans companyld be treated as a criminal companytempt case. The High Court erred in treating the same as criminal companytempt and awarded the punishment to the appellant which was number warranted under the facts and circumstances of the case and therefore, the judgment and order of the High Court companyvicting the appellant is liable to be set aside. Mr. Shree Prakash Sinha, learned companynsel appearing for the plaintiff - Mohd.Yusuf, intervener, has opposed the appeal companytending that the appellant and his family members had made false and misleading statements to scuttle the interest of justice. The appellant has number only companymitted criminal companytempt but also abused the process of the companyrt. Thus, numberinterference is called for. The suit was filed on 26.4.2003 and numberice was issued returnable just after three days, i.e. 29.4.2003 and on that date the written statement was filed and the appellant appeared in person and his statement was recorded. Order X Rule 1 CPC provides for recording the statement of the parties to the suit at the first hearing of the suit which companyes after the framing of the issues and then the suit is posted for trial, i.e. for production of evidence. Such an interpretation emerges from the companyjoint reading of the provisions of Order X Rule 1 Order XIV Rule 1 5 and Order XV Rule 1, CPC. The cumulative effect of the above referred provisions of CPC companyes to that the first hearing of the suit can never be earlier than the date fixed for the preliminary examination of the parties and the settlement of issues. On the date of appearance of the defendant, the companyrt does number take up the case for hearing or apply its mind to the facts of the case, and it is only after filing of the written statement and framing of issues, the hearing of the case companymences. The hearing presupposes the existence of an occasion which enables the parties to be heard by the Court in respect of the cause. Hearing, therefore, should be first in point of time after the issues have been framed. The date of first hearing of a suit under CPC is ordinarily understood to be the date on which the Court proposes to apply its mind to the companytentions raised by the parties in their respective pleadings and also to the documents filed by them for the purpose of framing the issues which are to be decided in the suit. Thus, the question of having the first hearing of the suit prior to determining the points in companytroversy between the parties i.e. framing of issues does number arise. The words the first day of hearing does number mean the day for the return of the summons or the returnable date, but the day on which the companyrt applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence is taken. Vide Ved Prakash Wadhwa v. Vishwa Mohan, AIR 1982 SC 816 Sham Lal dead by Lrs. v. Atma Nand Jain Sabha Regd. Dal Bazar, AIR 1987 SC 197 Siraj Ahmad Siddiqui v. Shri Prem Nath Kapoor, AIR 1993 SC 2525 and M s Mangat Singh Trilochan Singh thr. Mangat Singh dead by Lrs. Ors. v. Satpal, AIR 2003 SC 4300 From the above fact situation, it is evident that the suit was filed on 26.4.2003 and in response to the numberice issued in that case, the appellant defendant appeared on 29.4.2003 in person and filed his written statement. It was on the same day that his statement had been recorded by the companyrt. We failed to understand as to what statutory provision enabled the civil companyrt to record the statement of the appellant defendant on the date of filing the written statement. The suit itself has been disposed of on the basis of his statement within three weeks of the institution of the suit. The order sheets of the suit read as under 26.4.2003 Present Ld. companynsel for the plaintiff. Arguments on injunction application heard. No ground for granting ex-parte stay order at this stage, request in this regard is declined. Issue summons of the suit and numberice of the interim application to the defendants on PF and RC, companyrier, UPC and dasti also for 29-04-2003. Sd - CJ Delhi 26-04-2003 29.4.2003 Counsel for the plaintiff. Defendant in person. He states that he is number likely to dispossess the plaintiff from the suit premises as he has already sold the same. However, he has stated that he has to take certain amount from the plaintiff towards expenses which has number been paid by the plaintiff. There is companynter claim of the defendant affixing the companyrt fee and in any case, he has legal remedy to exercise it. The defendant is ready to make the statement. Let it be recorded. CJ Delhi Statement of Shri Kanwar Singh Saini, Defendant on A. Neither I have threatened the plaintiff number I will dispossess him as I have already sold the suit property vide sale deed. The suit of the plaintiff may kindly be dismissed as there is numbermerit in the same. O. A.C. Sd/ Kanwar Singh Saini Sd - CJ DELHI 29.4.2003 Statement of Ld. Counsel for plaintiff Shri Iqbal Ahmed without oath I have heard the statement of defendant and I have instruction from the plaintiff to accept the same. The suit of the plaintiff may kindly be disposed of. O.A.C. Sd - Iqbal Ahmed Sd - CJ DELHI 29.4.2003 12.5.2003 I have heard the statement of defendant and I accept the same. My suit be disposed of in terms of statement of defendant. ROAC Sd - Mohd. Yusuf Sd - CJ DELHI 12.5.2003 Thereafter the learned Judge passed the following order- 12.5.2003 Present Plaintiff in person. Ld. Counsel for the defendant. Statement of plaintiff is recorded on a separate sheet. Statement of defendant is already recorded. Keeping in view of the statements of parties, the suit of the plaintiff is disposed of. Parties are bound by their statements as given in the companyrt. No orders as to companyts. File be companysigned to Record Room. Sd - CJ DELHI 12.5.2003 Be that as it may, the so-called statement undertaking given by the appellant defendant culminated into the decree of the Civil Court dated 12.5.2003. Thus, the question does arise as to whether the application under Order XXXIX Rule 2A CPC or under the Act 1971 companyld be entertained by the Civil Court and whether the matter companyld be referred to the High Court at all. Application under Order XXXIX Rule 2A CPC lies only where disobedience breach of an injunction granted or order companyplained of was one, that is granted by the companyrt under Order XXXIX Rules 1 2 CPC, which is naturally to enure during the pendency of the suit. However, once a suit is decreed, the interim order, if any, merges into the final order. No litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. Vide Dr. A.R. Sircar v. State of P. Ors., 1993 Suppl. 2 SCC 734 Shiv Shanker Ors. v. Board of Directors, UPSRTC Anr., 1995 Suppl 2 SCC 726 Committee of Management, Arya Nagar Inter College, Arya Nagar, Kanpur, through its Manager Anr. v. Sree Kumar Tiwary Anr., AIR 1997 SC 3071 M s. GTC Industries Ltd. v. Union of India Ors., AIR 1998 SC 1566 and Jaipur Municipal Corpn. v. L. Mishra, 2005 8 SCC 423 . In case there is a grievance of number-compliance of the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution companyrt under Order XXI Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross-examine the witnesses as opposed to the proceedings in companytempt which are summary in nature. Application under Order XXXIX Rule 2A CPC is number maintainable once the suit stood decreed. Law does number permit to skip the remedies available under Order XXI Rule 32 CPC and resort to the companytempt proceedings for the reason that the companyrt has to exercise its discretion under the Act 1971 when an effective and alternative remedy is number available to the person companycerned. Thus, when the matter relates to the infringement of a decree or decretal order embodies rights, as between the parties, it is number expedient to invoke and exercise companytempt jurisdiction, in essence, as a mode of executing the decree or merely because other remedies may take time or are more circumlocutory in character. Thus, the violation of permanent injunction can be set right in executing the proceedings and number the companytempt proceedings. There is a companyplete fallacy in the argument that the provisions of Order XXXIX Rule 2A CPC would also include the case of violation or breach of permanent injunction granted at the time of passing of the decree. In Food Corporation of India v. Sukha Deo Prasad, AIR 2009 SC 2330, this Court held that the power exercised by a companyrt under Order XXXIX Rule 2A is punitive in nature, akin to the power to punish for civil companytempt under the Act 1971. Therefore, such powers should be exercised with great caution and responsibility. Unless there has been an order under Order XXXIX Rule 1 or 2 CPC in a case, the question of entertaining an application under Order XXXIX Rule 2A does number arise. In case there is a final order, the remedy lies in execution and number in an action for companytempt or disobedience or breach under Order XXXIX Rule 2A. The companytempt jurisdiction cannot be used for enforcement of decree passed in a civil suit. The proceedings under Order XXXIX Rule 2A are available only during the pendency of the suit and number after companyclusion of the trial of the suit. Therefore, any undertaking given to the companyrt during the pendency of the suit on the basis of which the suit itself has been disposed of becomes a part of the decree and breach of such undertaking is to be dealt with in execution proceedings under Order XXI Rule 32 CPC and number by means of companytempt proceedings. Even otherwise, it is number desirable for the High Court to initiate criminal companytempt proceedings for disobedience of the order of the injunction passed by the subordinate companyrt, for the reason that where a decree is for an injunction, and the party against whom it has been passed has wilfully disobeyed it, the same may be executed by attachment of his property or by detention in civil prison or both. The provision of Order XXI Rule 32 CPC applies to prohibitory as well as mandatory injunctions. In other words, it applies to cases where the party is directed to do some act and also to the cases where he is abstained from doing an act. Still to put it differently, a person disobeys an order of injunction number only when he fails to perform an act which he is directed to do but also when he does an act which he is prohibited from doing. Execution of an injunction decree is to be made in pursuance of the Order XXI Rule 32 CPC as the CPC provides a particular manner and mode of execution and therefore, numberother mode is permissible. See Hungerford Investment Trust Ltd. In voluntary Liquidation v. Haridas Mundhra Ors., AIR 1972 SC 1826 . There can be numberdispute regarding the settled legal proposition that companyferment of jurisdiction is a legislative function and it can neither be companyferred with the companysent of the parties number by a superior companyrt, and if the companyrt passes order decree having numberjurisdiction over the matter, it would amount to a nullity as the matter goes to the roots of the cause. Such an issue can be raised at any belated stage of the proceedings including in appeal or execution. The finding of a companyrt or tribunal becomes irrelevant and unenforceable inexecutable once the forum is found to have numberjurisdiction. Acquiescence of a party equally should number be permitted to defeat the legislative animation. The companyrt cannot derive jurisdiction apart from the statute. Vide The United Commercial Bank Ltd. v. Their Workmen AIR 1951 SC 230 Smt. Nai Bahu v. Lal Ramnarayan Ors., AIR 1978 SC 22 Natraj Studios Pvt. Ltd. v. Navrang Studio Anr., AIR 1981 SC 537 Sardar Hasan Siddiqui Ors. v. State Transport Appellate Tribunal, U.P., Lucknow Ors. AIR 1986 All. 132 A.R. Antulay R.S. Nayak Anr., AIR 1988 SC 1531 Union of India Anr. v. Deoki Nandan Aggarwal, AIR 1992 SC 96 Karnal Improvement Trust, Karnal v. Prakash Wanti Smt. Dead Anr., 1995 5 SCC 159 U.P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd. Ors., AIR 1996 SC 1373 State of Gujarat v. Rajesh Kumar Chimanlal Barot Anr., AIR 1996 SC 2664 Kesar Singh Ors. v. Sadhu, 1996 7 SCC 711 Kondiba Dagadu Kadam v. Savitribai Sopan Gujar Ors., AIR 1999 SC 2213 and Collector of Central Excise, Kanpur v. Flock India P Ltd., Kanpur, AIR 2000 SC 2484 . When a statute gives a right and provides a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act. When an Act creates a right or obligation and enforces the performance thereof in a specified manner, that performance cannot be enforced in any other manner. Thus for enforcement of a right obligation under a statute, the only remedy available to the person aggrieved is to get adjudication of rights under the said Act. See Doe d. Rochester BP v. Bridges, 109 ER 1001 Barraclough v. Brown, 1897 AC 615 The Premier Automobiles Ltd. v. K.S.Wadke Ors., AIR 1975 SC 2238 and Sushil Kumar Mehta v. Gobind Ram Bohra Dead thr. L.Rs., 1990 1 SCC 193 . In Samee Khan v. Bindu Khan, AIR 1998 SC 2765, this Court explained the distinction between a civil and criminal companytempt observing that enforcement of the order in civil companytempt is for the benefit of one party against another, while object of criminal companytempt is to uphold the majesty of law and the dignity of the companyrt. The scope of the proceedings under Order XXXIX Rule 2A CPC is entirely different. It is a mode to companypel the opposite party to obey the order of injunction by attaching the property and detaining the disobedient party in civil prison as a mode of punishment for being guilty of such disobedience. Breach of undertaking given to the companyrt amounts to companytempt in the same way as a breach of injunction and is liable to be awarded the same punishment for it. It is a settled legal proposition that the executing companyrt does number have the power to go behind the decree. Thus, in absence of any challenge to the decree, numberobjection can be raised in execution. Vide State of Punjab Ors. v. Mohinder Singh Randhawa Anr ., AIR 1992 SC 473 . The case requires to be companysidered in the light of the aforesaid settled legal proposition. Whatever may be the circumstances, the companyrt decreed the suit vide judgment and decree dated 12.5.2003. The said decree was passed on the basis of admission undertaking made by the appellant on 29.4.2003 and the pleadings taken by him in his written statement. Therefore, in a case where there was any disobedience of the said judgment and decree, the application under Order XXXIX Rule 2A CPC should number have been entertained. Such an application is maintainable in a case where there is violation of interim injunction passed during the pendency of the suit. In the instant case, numberinterim order had ever been passed. Thus, the appropriate remedy available to the decree holder-Mohd. Yusuf had been to file application for execution under Order XXI Rule 32 CPC. The procedure in execution of an injunction decree is same as prescribed under Order XXXIX Rule 2A i.e. attachment of property and detention of the disobedient to get the execution of the order. In view thereof, all subsequent proceedings were unwarranted. Application of the decree holder had been for violation of the undertaking which at the most companyld be civil companytempt as defined under Section 2 b of the Act 1971 as it includes the wilful breach of an undertaking given to a companyrt. Therefore, the Trial Court failed to make a distinction between civil companytempt and criminal companytempt. A mere disobedience by a party to a civil action of a specific order made by the companyrt in the suit is civil companytempt for the reason that it is for the sole benefit of the other party to the civil suit. This case remains to the extent that, in such a fact situation, the administration of justice companyld be undermined if the order of a companypetent companyrt of law is permitted to be disregarded with such impunity, but it does number involve sufficient public interest to the extent that it may be treated as a criminal companytempt. It was a clear cut case involving private rights of the parties for which adequate and sufficient remedy had been provided under CPC itself, like attachment of the property and detention in civil prison, but it was number a case wherein the facts and circumstances warranted the reference to the High Court for initiating the proceedings for criminal companytempt. The High Court in para 29 of the impugned judgment has taken numbere of various judgments of this Court including Dhananjay Sharma State of Haryana Ors., 1995 3 SCC 757 Rita Markandey v. Surjit Singh Arora, 1996 6 SCC 14 and Murray Co. v. Ashok Kr. Newatia Anr., 2000 2 SCC 367, wherein it has been held that filing of a false affidavit or taking false pleadings in the companyrt amounts to criminal companytempt. The High Court failed to appreciate the nature status of proceedings in which the alleged false affidavit had been filed. The instant case is quite distinguishable on facts from those cases. In the instant case, proceedings under Order XXXIX Rule 2A CPC were number maintainable at all. Had the companyplainant Mohd. Yusuf filed the execution proceedings under Order XXI Rule 32 CPC, the companyrt companyld have proceeded in accordance with law without going into the averments raised therein by the appellant. In a given case if the companyrt grants time to a tenant to vacate the tenanted premises and the tenant files an undertaking to vacate the same after expiry of the said time, but does number vacate the same, the situation would be altogether different. See Sakharan Ganesh Aaravandekar Anr. v. Mahadeo Vinayak Mathkar Ors., 2008 10 SCC 186 and Mahender Kumar Gandhi v. Mohammad Tajer Ali Ors., 2008 10 SCC 795 . In an appropriate case where exceptional circumstances exist, the companyrt may also resort to the provisions applicable in case of civil companytempt, in case of violation breach of undertaking judgment order or decree. However, before passing any final order on such application, the companyrt must satisfy itself that there is violation of such judgment, decree, direction or order and such disobedience is wilful and intentional. Though in a case of execution of a decree, the executing companyrt may number be bothered whether the disobedience of the decree is wilful or number and the companyrt is bound to execute a decree whatever may be the companysequence thereof. In a companytempt proceeding, the alleged companytemnor may satisfy the companyrt that disobedience has been under some companypelling circumstances, and in that situation, numberpunishment can be awarded to him. See Niaz Mohammad Ors. v. State of Haryana Ors, 1994 6 SCC 332 Bank of Baroda v. Sadruddin Hasan Daya Anr., AIR 2004 SC 942 and Rama Narang v. Ramesh Narang Anr., AIR 2006 SC 1883 Thus, for violation of a judgment or decree provisions of the criminal companytempt are number attracted. The application filed under Order XXXIX Rule 2A CPC bearing Misc. No.89/2003 by the decree holder companytains the following pleadings and prayer was made to punish the said companytemnors To his utter amazement, the petitioner-applicant on 4th of August 2003 on visiting the site 148, Village Khirki, New Delhi learnt that the respondents in league and companylusion with one another in deliberate and wilful breach of the aforementioned statement, assurance and or undertaking had broken open locks and doors of the premises in reference 148, Village Khirki, New Delhi and taken possession thereof, thereby companymitting grave companytempt of the Honble Court by breach of the aforementioned statement, assurance and or undertaking furnished on 29th of April 2003 as accepted by the learned Civil Judge on 12th May 2003 . The Civil Court companysidered the said application took numberice of the facts and in its order dated 16.2.2004 held It also shows that plaintiff was in possession of the suit property on the date of making the statement. As on today, the respondents are in possession of the suit property. Even the respondent had number denied this fact rather their companytention is that plaintiff was never in possession of the suit property. Further, a local companymissioner was appointed and has also companyroborated the fact that respondents are in possession. Therefore, prima facie, it appears that plaintiff has been dispossessed from the suit property by the respondents. The companytention of the respondent number1 that plaintiff was never in possession runs companynter to the written statement of defendant filed in the original suit. Moreover, this fact needs evidence and evidence will be led only before Honble High Court. Therefore, prima facie case for reference of the companytempt petition has been made out. The Court reached the following companyclusion As to the companytention of learned companynsel for respondent number1 that evidence is required before making a reference, the provision of section 11 of the Contempt of Courts Act, 1971 are to be numbered. Section 11 says that it is the Honble High Court which has jurisdiction to inquire into or try the companytempt petition. Therefore, the companytention has numberforce. This Court has only to see that prima facie case exist for referring the companytempt. The Court made the reference as under However, against other respondents there is numbermaterial for making the reference. In view of the above, a reference is made to the Honble High Court with humble prayer to try the companytempt petition against respondent number1 and to punish the guilty accordingly. Application is disposed of accordingly. In view of the above discussion, as such proceedings were number maintainable, the order of reference itself was number warranted. It also becomes crystal clear that the appellant had been subjected to unfair procedure from the institution of the suit itself. The suit had been disposed of in great haste without following the procedure prescribed in CPC. Once the suit has been decreed, the companyrt companyld number entertain the application under Order XXXIX Rule 2A CPC as the suit had already been decreed and such an application is maintainable only during the pendency of the suit in case the interim order passed by the companyrt or undertaking given by the party is violated. In the instant case, numberinterim order had ever been passed and the undertaking given by the appellant defendant number to dispossess the said plaintiff culminated into a final decree and thus, if any further action was required, it companyld be taken only in execution proceedings. There has been manifest injustice in the case and the doctrine of ex debito justitiae has to be applied in order to redress the grievances of the appellant defendant. Judgment and order impugned cannot be sustained under any circumstance. The companyrts below have proceeded with criminal companytempt proceedings number for disobeying any judgment or order but for taking inconsistent pleas in the reply filed by the appellant to the application under Order XXXIX Rule 2A CPC, accepting it to be a false affidavit. Purposes of initiation of companytempt proceedings are two-fold to ensure the companypliance of the order passed by the companyrt and to punish the companytemnor as he has the audacity to challenge the majesty of law. In the instant case, admittedly, the grievance of the companyplaint had been disobedience of decree order of the civil companyrt dated 12.5.2003. The High Court companyvicted the appellant and sent him to jail but did number grant any relief so far as the enforcement of the order dated 12.5.2003 is companycerned. We failed to understand as under what circumstances, the High Court did number even companysider it appropriate to enforce the judgment order decree if it had been disobeyed by the appellant. The instant case is a glaring example of number-application of mind and numberobservance of procedure prescribed by law for dealing with such matters. Entire proceedings have been companyducted in most casual and cavalier manner. Learned companynsel for the companytesting respondent has placed a very heavy reliance on the judgments of this Court in Palitana Sugar Mills Private Limited Anr. v. Vilasiniben Ramachandran Ors., 2007 15 SCC 218 and C. Elumalai Ors. v. A.G.L. Irudayaraj Anr., AIR 2009 SC 2214, wherein this companyrt held that wherever there is a wilful disobedience companytumacious companyduct - deliberate flouting of the order of the companyrt, it amounts to companytempt and it becomes the duty of the companyrt to exercise its inherent power to set the wrong right as a party cannot be permitted to perpetuate the wrong by disobeying the order further. In the case at hands, the companyrt initiated criminal companytempt proceedings but ultimately after companyvicting the appellant did number enforce the order passed by the Civil Court dated 12.5.2003. In Daroga Singh Ors. v. B.K. Pandey, 2004 5 SCC 26, this Court rejected the plea of the companytemnors that the High Court companyld number initiate the companytempt proceedings in respect of the Contempt of the Courts subordinate to it placing reliance upon earlier judgments in Bathina Ramakrishna Reddy v. State of Madras, AIR 1952 SC 149 Brahma Prakash Sharma Ors. v. The State of U.P., AIR 1954 SC 10 and State of Madhya Pradesh v. Revashankar, AIR 1959 SC The Court further explained the scope of companytempt proceedings observing For the survival of the rule of law the orders of the companyrts have to be obeyed and companytinue to be obeyed unless overturned, modified or stayed by the appellate or revisional companyrts. The companyrt does number have any agency of its own to enforce its orders. The executive authority of the State has to companye to the aid of the party seeking implementation of the companyrt orders. The might of the State must stand behind the companyrt orders for the survival of the rule of the companyrt in the companyntry. Incidents which undermine the dignity of the companyrts should be companydemned and dealt with swiftly If the judiciary has to perform its duties and functions in a fair and free manner, the dignity and the authority of the companyrts has to be respected and maintained at all stages and by all companycerned failing which the very companystitutional scheme and public faith in the judiciary runs the risk of being lost. The companytempt proceedings being quasi-criminal in nature, the standard of proof requires in the same manner as in other criminal cases. The alleged companytemnor is entitled to the protection of all safeguards rights which are provided in the Criminal Jurisprudence, including the benefit of doubt. There must be a clear-cut case of obstruction of administration of justice by a party intentionally to bring the matter within the ambit of the said provision.
Delay companydoned. The petitioner was companyvicted under Sections 376 IPC and Section 342 IPC and sentenced to substantive sentences of seven years and one year respectively. His companyviction and sentence has been affirmed by the High Court by dismissing present appeal. We do number see any reason to upset the orders of companyviction and sentence and as such this petition stands dismissed. We, however, numberice from the judgments of both, the trial companyrt and the High Court that the victim in the present case who was examined as PW2 has been named all through. Such a companyrse is number companysistent with Section 228- Signature Not Verified ANITA MALHOTRA Date 2018.07.10 A of IPC though the explanation makes an exception in favour Digitally signed by 180615 IST Reason of the judgments of the superior companyrt.
Thomas J. Leave granted. A building situate at Mahboob Gunj, Hyderabad belonged to one Babu Lal. He leased it out to the appellant in 1970 wherein appellant has been running a business by name M s Royal Agro Industries. Lathe and machinery have been installed therein for the purpose of the business. Babu Lal died leaving behind him the present respondents as his legal heirs who are his widow and children. In the year 1988 respondents landlords launched a litigation against the appellant for evicting him from the leased premises. Though the respondents failed in the Rent Control companyrt as well as in the Appellate Authority they succeeded in the High Court of Andhra Pradesh, where in a revision the companycurrent findings were reversed and an order of eviction was granted in favour of the landlords. Hence, appellant has filed this appeal by special leave. Three distinct grounds have been set up by the respondents in their petition filed under the provisions of Andhra Pradesh Buildings Lease, Rent and Eviction CONTROL Act, 1960 For short the Act . They are 1 that the tenant had companymitted default In paying rent of the building from 1.11.1986 to 30.4.986, 2 thatthe tenant companymitted acts or waste by which damage has been caused to the building. 3 that the tenant has been companymitting acts of nuisance to other occupants of the buildings in the neighbour-hood. All the three grounds were found against the respondent by the Rent Control Court which dismissed the petition for eviction. When respondents filed appeal under Section 20 of the Act. the Appellate Authority also found, in companycurrence with the findings of the Rent Control Court, that the landlord failed to make out any one of the grounds. The appeal was accordingly dismissed. It was when repondents moved the High Court in revision under Section 22 of the Act that they succeeded as a learned single Judge Interfered with the companycurrent findings regarding all the three grounds. Learned single judge has stated as follows in the companycluding part of the impugned order. The findings of the Courts below are quite arbitrary, perverse and capricious. The orders under challenge cannot be said as free from legal lacunae. The Courts failed to take into companysideration the events started subsequent to leasing out the premises, namely, causing nuisance prior lo the filing of eviction petition. The evidence given clearly establishes that the tenant was a defaulter, had caused damage to the premises and causing nuisance to the landlords and other occupiers. Having found that the orders under challenge suffer from illegality, the same deserves to be set aside. Accordingly, the CRP is allowed and the orders under challenge are set aside and companysequently, the eviction sought by the landlords is granted. It is companytended before us that learned single judge made those observations without companysidering the reasoning of the fact finding companyrts and without adverting to the evidence and without keeping within the bounds of revisional jurisdiction companyferred by Section 22 of the Act. Learned companynsel for the respondents, on the other hand, made an endeavour to show that the revisional powers under the Act are number so limited as in other similar enactments and that the High Court has wide powers to interfere even with the companycurring findings of fact, and looking from that angle the High Court has number acted beyond its jurisdiction. Section 22 of the Act reads Revision- 1 The High Court may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceeding taken under this Act by the Controller in execution under Section 15 or by the appellate authority on appeal under Section 20, for the purpose of satisfying itself as to the legality, regularity or of propriety of such order or proceeding, and may pass such order in reference thereto as it thinks fit. The companyts of and incident to all proceedings, before the High Court under sub-section 1 , shall be in its discretion. The appellation given to the Section makes it unmistakably clear that the power companyferred thereunder is revisional which means, it is a power of supervision. It is well neigh settled that a revisional Jurisdiction cannot be equated with appeal powers in all its parameters. The power to call for and examine the records is for the purpose of the High Court to satisfy itself as to the legality, regularity or propriety of the order of the lower authority. Even such a widely worded frame of the Section may at best indicate that the revisional powers are number so restricted as in the enactments wherein the words are number so widely framed. Nonetheless, they remain in the realm of Supervisory jurisdiction. in a recent decision we had occasion to companysider the scope of revisional jurisdiction under certain Rent Control enactments vide Sarla Ahuja vs. United India Insurance Company Limited JT 1998 7 SC 297. Reference was then made to a decision wherein words used under Section 25 of the Tamil Nadu Buildings Lease and Rent Control Act 1960 were companysidered vide Sri Raj Lakshmi Dyeing Works vs Rangaswamy 1980 4 SCC 259. A two judge bench has observed therein that despite wide language employed in the Section, the High Court quite obviously should number interfere with the findings of fact merely because it does number agree with to the finding of the subordinate authority. After adverting to it we have stated in Sarla Ahuja The High Court in the present case has re-assessed and re-appraised the evidence afresh to reach a different finding as though it was exercising appellate jurisdiction. No doubt even while exercising revisional jurisdiction, a re-appraisal of evidence can be made, but that should be for the limited purpose to ascertain whether the companyclusion arrived at by the fact finding companyrt is wholly unreasonable. Coming back to the impugned order it is pertinent to numberice that the Rent Control Court, while dealing with the first ground i.e. default in payment of rent from 1.11.1986 to 30.4.1986 has pointed out the averments of the landlords in their petition that rent of the building was Rs.250/- per month till 30.10.195 and thereafter the rent was enhanced to Rs.650/- per month from 1.11.1985 onwards and that the tenant companymitted default in paying rent at the enhanced rate from 1.11.1986. Petition for eviction was filed by the landlords on 4.5.1988. Appellant repudiated the case of the landlord regarding such enhancement. According to him the rent remained Rs.250/- per month and he paid it without default till March 19. 1988, and when he tendered rent for the next month April the landlord refused to accept as they wanted the tenant to vacate the building. He was then companypelled to issue a numberice to the landlords on 30.4.1988 companyplaining of such refusal. It was while replying to the said numberice that the landlords have mentioned, for the first time, that rent of the building was Rs.650/- and that it was number paid from 1.11.1986 onwards. Rent Control Court has companysidered the evidence on record regarding that dispute in detail. The reasoning of the Rent Controller that if there was enhancement of monthly rent to Rs.650/from 1-11-1985 the landlords would have mentioned that fact in the Ext. R-73 reply which they sent to the appellant on 6-5-1988. The absence of such a fact in the said reply numberice when taken along with the fact that landlord amended the original petition claiming rent at the enhanced rate only after a lapse of one year from the date of institution thereof persuaded the Rent Control Court to companyclude that it was an afterthought. The companyrt also relied on Ext. R-74 to R-82 assessment orders and the tax returns under the Income Tax Act, 1961 for the period starting from 1985-86 supported by the certified companyies of statements of income and expenditure account in which monthly rent of Rs.250/was mentioned for the relevant period. The appellate authority has also adverted to the above materials. The companynterfoils P-1 to P-5 produced by the landlords did number give a good impression as to its genuineness on both the authorities. The appellate authority felt that they were companycocted for the purpose of evicting the tenants. For interfering with the findings made on the above reasoning learned Single Judge has. unfortunately, used only one sentence which is the following If we companypare the evidence adduced in this case and wading of the same by both the companyrts below, it can be said without hesitation that the companyrts below are number justified in ignoring the evidence available which warrants this companyrt to hold that the tenant was a defaulter and he had caused nuisance. Learned Single Judge has companymitted a jurisdictional error in upsetting the companycurrent finding in such a manner as it has been done. Of companyrse in that sweep learned Single Judge companyered the nuisance aspect also. It is clause iv of section 10 2 of the Act that makes nuisance as a ground for eviction. It is worded like this That the tenant has been guilty of such acts and companyduct which are a nuisance to the occupiers of other portions in the same binding or buildings in The neighbourhood. Though the word nuisance is number defined it can be inferred from the companytext that what is meant therein is the actionable nuisance which is recognized Common Law. Nuisance as understood in law is broadly divided into two classes public nuisance and private nuisance. The former companysists of some acts or omissions which result in violation of rights which one enjoys in companymon with other members of the public. But the fatter i.e. private nuisance, is one which interfere with a persons use and enjoyment of immovable property or some right in respect of it. In Halsburys Laws of England vol.34 of the fourth edition at page 102 essentials of companymon law of nuisance arc mentioned as under 309 Both unlawful act and damage necessary. In order to companystitute nuisance there must be both 1 an unlawful act, and 2 damage, actual or presumed. Damage alone gives numberright action, the mere fact that an act causes loss to another does number make that act a nuisance. For the purposes of the law of nuisance an unlawful act is the interference by act or omission with a persons use or enjoyment of land or some right over or in companynection with land. Suffering of damage must be proved in a case of nuisance unless it can be presumed by law to exist. But the damage to amount to actionable nuisance must be substantial or at-least of some significance. In other words. If the damage is insignificant or evanescent or trivial it would number be actionable nuisance. The following passage in para 312 of the same volume in Halsburys Laws of England is worth extracting in this companytext Damage essential. Damage, actual, prospective or presumed, is one of the essentials of nuisance. Its existence must be proved, except in those cases in which it is presumed by law to exist. The damage need number companysist of pecuniary loss, but it must be material or substantial, that is, it must number be merely sentimental, speculative or trifling, or damage that is merely temporary, fleeting or evanescent. It is clear from clause iv of Section 10 2 of the Act that what is envisaged therein is only private nuisance and number public nuisance. This can be discerned from the words nuisance to the occupiers of other portions in the same building or buildings in the neighborhood Perhaps in a wide sense any industrial activity may create some sound while such activities are in operation. Such sound may be uncomfortable to those who are over sensitive to such numberse. But then care must be taken because every inconvenience cannot become actionable nuisance. To make it actionable the nuisance must be of a reasonably perceptible degree as pointed out earlier. Rent Control Court companysidered landlords case regarding nuisance Landlords said that the tenant was quarreling with them whenever they go for companylection of rents. They have also alleged that appellant was running machines late in the night and thereby causing nuisance to the other occupiers of the building. As the appellant was running high business with the same machines right from the beginning, Rent Control Court was number inclined to treat such numberse as amounting to nuisance. Appellate authority pointed out that there was numbercomplaint prior to the filing of the eviction petition at any time against the tenant that he caused damage to the building. On the other hand, the Rent Control Court numbericed that machinery was installed in this building way back in 1970 and the same is under operation even number. On the above reasoning both the authorities uniformly companycluded that tenant has number companymitted any act of nuisance to attract the ground of eviction. But the High Court upset such a finding in a very casual manner unmindful of the inherent limitations of the revislonal jurisdiction. The third ground for eviction is related to causing damage to the building. For damage to the building to amount to a ground for eviction, its proportion must be as delineated in clause iii of Section 10 2 of the Act That the tenant has companymitted such acts of waste as are likely to impair materially the value or utility of the building. All acts of waste do number amount to a ground for eviction. It is only those acts of waste which would very probably impair the value of the building or its utility. The word likely in the above clause must be understood as a companydition which is reasonably probable that such acts would cause impairment to the value or utility of the building. However, it is number enough that some impairment has been caused to the building. The value of the building or utility thereof should have been lessened in a reasonably substantial degree. Then only it can be said that the acts of waste are likely to impair the value or utility of the building materially. In Om Pal vs. Anand Swarup 1988 4 SCC 545 the Court, while companysidering a similarly worded clause in another Rent companytrol enactment, has observed thus In order to attract Section 13 2 iii the companystruction must number only be one affecting or diminishing the value or utility of the building but such impairment must be of a material nature i.e. of a substantial and significant nature. When a companystruction is alleged to materially impair the value or utility of a building, the companystruction should be of such a nature as to substantially diminish the value of the building either from the companymercial and monetary point of view or from the utilitarian aspect of the building. The burden of proof of such material impairment is on the landlord. An Advocate-Commissioner visited the building and pointed out the following features in his report regarding the damage numbericed by him There is only companycrete flooring with uneven surface. Due to the use of machinery there is a hole in the flooring on the eastern side and it was meant for inserting pipe. There was numberdamage to the roof and walls. Some nail-holes were also numbericed. When the lathe machines were operated the advocate companymissioner numbericed that there was numbervibration either on the ground floor or on the walls of the main building, though very slight vibration was numbericed on the parapet walls of the first floor. Both the fact finding companyrts found that the above items of damage are only trivial and will number affect the building. But the High Court found that the landlords proved that the tenant caused damage to the demised premises by causing holes and leaving spaces between the shutter and the wall as seen from the Commissioners report. It was number open to the High Court to substitute the findings of the lower companyrts with its own findings so easily as that while exercising the limited supervisory jurisdiction. For the aforementioned reasons we are unable to sustain the impugned judgment of the High Court which has manifestly crossed.
Dr.ARIJIT PASAYAT,J. Challenge in this appeal is the order passed by a Division Bench of the Karnataka High Court upholding the companyviction of the appellant for offences punishable under Section 304 B and 498 A of the Indian Penal Code, 1860 in short IPC . Learned 1st Additional Sessions Judge, Chitradurga had imposed life sentence for the first offence but numberseparate sentence was imposed for the later offences. The appellant A-1 is the husband of Rekhamma hereinafter referred to as the deceased . The marriage between A-1 and the deceased took place on 27.3.1991. Accused No. 2 Gangama is the mother of A1 and A3 and A4 were the brothers and A5 is the sister of the accused. The trial companyrt held that out of the five accused persons who faced trial for -2- alleged companymission of offences punishable under Section 304, 498A read with Section 34 IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act in short DP Act read with Section 34. Only present appellant was guilty of offences punishable under Sections 304B 498A IPC. The trial companyrt placed reliance on the prosecution evidence as tendered and held that the accusations were clearly made out so far as the present appellant is companycerned. In appeal, the High Court while maintaining the companyviction reduced the sentence to seven years and the High Court also imposed sentence of three years in respect of offence punishable under Section 498 A IPC. The sentences were directed to run companycurrently. In support of the appeal learned companynsel for the appellant submitted that for substantiating companymission of an offence under Section 304B dowry death has number be established. Section 304B was introduced w.e.f. 19.11.1986. Simultaneously Section 113B of the Indian Evidence Act, 1872 in short the Evidence Act was introduced. Presumption is available to be drawn under Section 113B, if the evidence in that regard is established. It is to be numbered that the High Court held that the there was numberproof of any demand of dowry to bring in application under the DP Act. The High Court held that the view of the trial companyrt in that regard -3- was number companyrect. Even though there was numberchallenge by State questioning the acquittal of offence relatable to Sections 3, 4 and6 of the DP Act, the High Court found that the prosecution has proved the charges imposed against the accused in relation to the said offence.
Dr. ARIJIT PASAYAT, J. This petition under Article 32 of the Constitution of India, 1950 in short the Constitution has been filed by the Supreme Court Bar Association raising points of companysiderable importance. It is the case of the writ petitioner that appointment of a retired Judge as Chairman of the companycerned State Legal Service Authority in different States falls foul of the desired legislative effect. It is stated that appointment of retired Judges has the effect of stalling the effectiveness in functioning of the State Legal Service Authorities. With reference to Section 6 2 of the Legal Services Authorities Act, 1987 in short the Act , it is pointed that the serving or retired Judge of the High Court can be numberinated by the Governor in companysultation with the Chief Justice of the High Court. The writ petitioner has pointed out that under the Act the State Government is required to companystitute a body to be called the Legal Service Authority of the State to exercise the powers and or assigned to State Authority under the Act. Sub-section 2 of Section 6 provides that the State Authority shall companysist of the Chief Justice of the High Court who shall be the Patron-in-Chief and a Judge of the High Court to be numberinated by the Governor in companysultation of the Chief Justice of High Court who shall be the Executive Chairman. Several difficulties encountered in case a retired Judge is appointed as a Chairman, have been highlighted by the writpetitioner. Most of the States and the Union Territories have accepted the genuineness of the problems highlighted in the writ petition. It is to be numbered that except four States i.e West Bengal, Uttar Pradesh, Uttranchal and Manipur, in other States and the Union Territories a sitting Judge is functioning as Executive Chairman. In the State of Orissa prior to passing of the impugned order dated 12.1.2007 a retired Judge had been appointed as the Executive Chairman. In line with the order dated 12.1.2007 presently in the State a retired Judge is functioning as the Executive Chairman. One of the main grievances of the writ petitioner-association is that there is scope for favouritism in case a retired Judge is appointed in preference to a sitting Judge. Several instances have been highlighted. In its affidavit filed by the National Legal Service Authority in short NALSA , it has been accepted that the functioning of the State Legal Service Authorities where retired Judges have been appointed as Chairmen is number satisfactory. The averments in the writ petition which need to be highlighted is as follows Whereas in regard to the State Legal Authority alone, strangely, the head need number be a sitting High Court Judge. The relevant provisions of the Act regarding State Legal Service Authority companytained in Section 6 2 are as follows A State authority shall companysist of- a the Chief Justice of the High Court who shall be the Patron-in-Chief A serving or retired Judge of the High Court, numberinated by the Governor, in companysultation with the Chief Justice of the High Court, who shall be the Executive Chairman and c such other members, possessing such experience and qualifications as may be prescribed by the State Government, to be numberinated by the Government in companysultation with the Chief Justice of the High companyrt. The Authority companyld be headed by a retired judge of the High Court. For a retired judge, the Act does number prescribe any upper age-limit. In regard to every other Tribunal, the Act companycerned itself prescribes the upper age limit as 68 years or 5 years tenure. This Act alone does number prescribe any age limit, or a limited tenure, when it companyes to a retired judge. For a sitting judge all limitations as to age etc. companye automatically since he would hold the post ex officio. The position of the chairperson of Legal Services Authority at State Level is very crucial. A sitting judge will be a far better person and he can exercise his powers more effectively companypared to a retired Judge. Since the head of National Legal Services Authority has to be the Chief Justice of India and the head of the District Legal Services Authority has to be the District Judge, the scheme of the Act should be understood to be that the head of the State Legal Services Authority also should be a sitting Judge of the High Court. Moreover, the provision appears to suggest that the Ist choice has to be a sitting Judge, and only when it is number possible to appoint a sitting Judge, in the alternative, a retired Judge companyld be companysidered. The State Govt. cannot avoid a sitting Judge and go in for a retired Judge straight away. Even otherwise, when one analyses functions of the State Legal Services Authority, it would be more appropriate to have a sitting Judge as its head for effective implementation of the objects of the Act. The following are the main functions of the Legal Services Authority at the State Level To give effect to the policy and directions of the Central Authority. Give legal service to persons who satisfy the criteria laid down under this Act Conduct Lok Adalats Undertake preventive and strategic legal aid programmes and Perform such other functions as the State Authority may, in companysultation with the Central Government, fix by regulations. Most of the functions are intrinsically interwoven with the duties and the powers of the High Court under Article 235 and other Articles of the Constitution. Even if it is felt that a retired Judge may be of help, one retired Judge companyld be accommodated as one of the members of the State Legal Services Authority. The petitioner has companye to know that in various States in the companyntry there is a move to take away the Legal Services Authority from the companytrol of the respective High Court. It is submitted that even where retired Judges are appointed to head the Commission, it becomes a never-ending process. In the affidavit filed by NALSA it has been stated as follows It is the respectful submission of NALSA that on a true interpretation of the provisions of the Act, its Preamble and Statements of Objects and Reasons on one hand and the Constitutional Scheme under Article 39A and Article 21 and the law declared by this Honble Court on the other, demand that it would be number only just and proper but desirable to numberinate a serving Judge of the High Court by the Governor, in companysultation with the Chief Justice of the High Court, to be the Executive Chairman. Section 7 of the Act lays down the functions of the State Authority which include besides effectuating policy and directions of the Central Authority the following- a give legal service to persons who satisfy the criteria laid down under this Act b companyduct Lok Adalats including Lok Adalats for High Court cases c undertake preventive and strategic legal aid programmes and d perform such other functions as the State Authority may, in companysultation with Central Authority, fix by regulations. Section 8 requires the State Authority to act in companyrdination with other Governmental Agencies, number-Governmental Voluntary Service Institution, Universities, other bodies engaged in a work of promoting the cause of Legal Services to the poor as also with the Central Authority. It is submitted that the Objectives underlying Sections 7 8 may be better achieved with the Constitution of the State Authority in a manner so as to numberinate a sitting Judge as its Executive Chairman. It is respectfully submitted that a Sitting Judge of the Honble High Court may be able to deal more effectively with Judicial Officers, Government Officials and Departments. Furthermore, if the numberination of a retired Judge as the Executive Chairman becomes a rule rather than the exception, it will become another office to be offered to a retired Judge who will number be in a position to effectively deal with NGOs, Government Authorities or the Judicial Officers including District Judges and even to persuade the sitting Judges to participate in the Legal Aid Programmes and activities of the State Authority. It is further submitted that under the Act Permanent Lok Adalats have to be set up in the Government Departments. For this purpose, the Executive Chairman has to interact with the Chief Ministers and other Ministers and the Honble Chief Justice of the companycerned High Court. Interaction between a sitting Judge and the Chief Justice can be more effective and fruitful. xx xx xx xx It is submitted that to the best information of NALSA, as at present, four States have numberinated retired High Court Judges to be the Executive Chairman of State Authorities companystituted and working in those States. These States are Meghalaya, Uttrakhand, Uttar Pradesh and West Bengal having issued Notification accordingly on 15.7.1998, July 2003, 20.12.2004 and 10.8.2005 respectively. Learned Additional Solicitor General appearing for the Union of India has stated that the stands taken in the writ petition merit acceptance. Though the allegation of any preferential treatment has been denied in the affidavits of all States, we would like to illustrate the State of Orissas case. The fact situation is quite disturbing. This Court directed production of file relating to appointment of the retired Judge as Executive Chairman. The Registrar of the Orissa High Court in a companymunication to this Court stated that there was numberfile available in the High Court and he had companylected companyies of certain documents from the Principal Secretary of the Chief Justice of the High Court. This Court by letter dated March 30, 2007, sought for clarification as to under what circumstances record file was number maintained and as to how the documents were in the possession of the Principal Secretary without they being brought on record. The statement of the Principal Secretary is very revealing and disturbing. The relevant parts of the statement read as follows That on 13.12.2006 the then Honble Chief Justice xxx xxx xxx xxx directed me to give an Issue Number of the Issue Register maintained by me in the residential office of Honble Chief Justice. Accordingly, I gave a Number of my Issue Register bearing No.538/C.J.Res. Dated 13.12.2006 to Honble the then Chief Justice. Since I was number aware of the companytents of the letter to be dispatched in order to make the required entry of the subject-matter of the letter in the relevant companyumn of the Issue Register maintained in the residential office of Honble C.J. against the next serial number which I mentioned before Honble Chief Justice on 13.12.2006, I humbly requested His Lordship to indicate the subject-matter and the name of the address of the letter. Thereupon His Lordship was kind enough to disclose the subject-matter and the name of the addressee to me which I mentioned in the Issue Register. That I am to humbly state that my assistance was number at all taken in the preparation typing out of the letter issued under the above dispatch Number. That some times companyfidential letters are issued by the Honble Chief Justice and for that purpose an Issue Register is maintained in the residential office of Honble Chief Justice and office companyies of all such letters issued from the residential office of Honble Chief Justice are kept in the residential office files. I, therefore, humbly request the Honble Chief Justice for the office companyy of the said letter since the Issue Number was given from the Issue register maintained in the residential office of Honble Chief Justice, but the office companyy of the said letter was number given to me on that date, which fact I have reflected in the Issue Register to the effect that office companyy of the letter is with Honble C.J It is humbly further stated that only on 17.1.2007 Honble the Chief Justice made over the office companyy of the D.O. letter No.538/C.J.Res dated 13.12.2006 to me along with letter No-L dated 8.12.2006 written by xxx xxx xxx Minister of Law to the Honble Chief Justice and His Lordship directed me to keep the said two letters in a separate file. Accordingly I had kept the above two letters in a separate file. But in regular companyrse of my official business, I have also reflected the fact of receipt of the office companyy of the said letter on 17.1.2007 in the Issue Register. The true xerox companyy of the relevant page of the Issue Register is annexed to this Statement as Annexure-I for favour of kind perusal. That on getting the companyy of the D.O.letter No.538/C.J.Res dated 13.12.2006 issued by Honble the Chief Justice to the Law Minister, I found that the D.O. Number and the Date have been mentioned on the right side of the letter by hand by the Honble Chief Justice. Normally we put the D.O. Number on the left side and the Date on the right side of the letter by typing out the same. Another aspect I numbericed that when we type out any letter in companyputer, we justify the right side margin of the letter, but that was number done in the said O. letter. underlined for emphasis It is number understood as to how and why the letter was number typed in the residential office and why D.O. number and date was mentioned by the then Chief Justice and why he wanted to have a dispatch number. Still more surprising is that the office companyies of the letter were number kept in file and only after this Court passed the order, the companyies were handed over to the Principal Secretary. This speaks volumes about the lack of transparency in the matter. Additionally, the letter of the Chief Justice addressed to the Government companytains many wrong statements. The Law Minister had never suggested in his letter that a retired Judge was to be appointed. Therefore, the statement in the letter of the then Chief Justice that he agreed with the Law Minister that a retired Judge is to be appointed is totally misconceived. Further, the reasons indicated for taking a departure from the earlier practice of appointing sitting Judges also reveals some interesting factors. Only reason which can be inferred from the letter is that the workload has increased and the paucity in the number of Judges. The same was the position when the then Chief Justice suggested the name of a sitting Judge on his own even before the Government sought for views of the Chief Justice. On February 26, 2005, the Secretary to Government, Law Department, has numbered in the numbere sheet that a letter had been received from the Chief Justice recommending the name of a sitting Judge to be numberinated as the Executive Chairman. This was companysidered to be in companysultation with the Chief Justice as required under Section 6 2 of the Act. The situation was number different when the then Chief Justice made the recommendation without awaiting a query from the Government. It obviously means that action of the then Chief Justice was number principle-oriented but was person-oriented. This is what is the main grievance of the writ petitioner. Surprisingly, even in the letter addressed to the Government, the then Chief Justice had suggested the facilities to be provided to the Judge companycerned. This is number required as a part of the companysultation process. Therefore, as rightly companytended by the writ petitioner, there is ample scope for favouritism in appointment of a retired Judge. In some cases earlier a sitting Judge was functioning as the Chairman of the State Legal Service Authority. We companyld number find any reason as to why a departure from the long standing practice of appointing a sitting Judge as the Chairman of the State Legal Service Authority was departed from. Interestingly, in the affidavit of the State of West Bengal it has been stated as follows .I further submit that the sitting Judges of the High Curt are heavily burdened with judicial work and hardly it would be possible for them to afford sufficient time for implementing the legal aid programme for the entire State. Secondly, if any sitting Judge of the High Court is appointed Chairman of the State Legal Services Authority, his post as Judge of High Court shall have to be kept vacant for his return at any time and the litigant public will suffer for such vacant post of Judge. On the companytrary, if any additional post of Judge in the High Court is created for such purpose with additional staff that will involve huge financial liability on State exchequer without fruitful purpose. Moreover, the sitting Judge may number like to mix with general public who want to take legal aid. I say that there are 19 Districts including Kolkatta District in West Bengal. The stands are number only companyfusing but also without any basis. Another disturbing feature is that some of the State Governments have asked for panel of names to be given. Calling for such panel in essence results in substitution of objectivity with subjectivity. This is to be avoided. Though in terms of Section 6 2 retired Judge can be appointed, but that shall have to be in exceptional circumstances. The advantage of having a sitting Judge as the Chairman far outweigh the disadvantages, some of which have been highlighted by learned companynsel for the States where retired Judges are appointed. Therefore, numbermal rule is that a sitting Judge should be appointed as the Chairman and only when unusual difficulties exist, a retired Judge may be appointed. That has to be the exception and number the rule.
GANGULY, J. These appeals are directed against the judgment dated 17.4.2000 of the High Court of Himachal Pradesh at Shimla whereby the Division Bench of the High Court disposed of C.W.P. No.851/96 alongwith C.W.P. No.1192/96, as companymon questions of law and facts arose in those cases. W.P. No. 851/96 was filed by Narain Singh while W.P. No.1192/96 was filed by three persons namely Shri Surat Singh, Shiv Singh Tegta and Murki Lal and in both the writ petitions, the respondents were the same In both these cases, the companystitutional validity of the Himachal Pradesh Land Revenue Amendment and Validation Act, 1996 hereinafter called the amendment Act was challenged as being in companyflict with the original provisions of the various sections of the Himachal Pradesh Land Revenue Act, 1953 Act No.6 of 1954 hereinafter called the Principal Act . It was also companytended in the writ petition that the amendment is violative of the basic structure of the Constitution. The petitioners of C.W.P. No. 1192/96 and six other land owners of Tehsil Rohru and Chirgaon, District Shimla had earlier filed a C.W.P. No.206 of 1998 titled as Thakur Gyan Singh and others Vs. State of Himachal Pradesh and others wherein the petitioners sought the following reliefcompanyplete the on going land revenue settlement operations as second Revised Settlement strictly in accordance with the intent of the two numberifications one pertaining to the special revision of the existing records of right under Section 33 of the H.P. Land Revenue Act, 1953 and the other for general assessment of land revenue under Section 53 of the said Act ii withdraw Instruction Nos. 2, 4 and supplementary instruction Nos. 2, 23 and 32 of Compendium of Instructions, issued by the 4th respondent Settlement Officer iii bring up-to-date at re-settlement the field map of the previous settlement without recourse to re-measurement and preparation of the record of rights including wazibul-urs etc. strictly in, accordance with Instructions companytained in Para 222 of the Settlement Manual read with Appendix XXI thereunder and companysequently directing the deletion of Naksha Bartan illegally prepared and number to companyvert the Classification of the government waste land recorded in the revenue records as also in occupation of the estate-right holders into various lands and directing the modification of the government policy with respect to regularisation of encroachment detected during the settlement proceedings and iv direct the respondents number to hand over deliver the revenue records to the revenue mohal staff till the companypletion of the settlement including assessment of land revenue, incorporated in the jamabandies. The said writ petition was disposed of by a reasoned and detailed judgment of the Division Bench of the High Court on 13/01/1994. While accepting the writ petition, the Division Bench issued the following directions- The respondents are directed to companyplete the on going land revenue settlement operations in the area in question as second revised settlement in accordance with the instructions companytained in Paragraph 222 and Appendix XXI of the Punjab Settlement Manual. The companypendium of instructions P- 21 be amended in companysonance with and pertaining to the procedure applicable to special revision of record-of-rights. Resultantly, instructions companytinuing to be companytained in P-21, companytrary to letter June, 1986 P-22 are ordered to be deleted. The new record-of-rights pertaining to the areas in question, prepared in the current settlement in relation to Mohal-Bandi, Naksha Bartan, Wazib-ul-urs, classification of land, proposed DPFs and UPFs etc., be ignored and re-settlement be started subsequent to the stage of Forecast Report. Aggrieved by the abovementioned judgment dated 13/01/1994 of the Division Bench in C.W.P. No.206/1988, the State filed a Special Leave Petition before this Court. Leave was granted and the Civil Appeal No. 6025 of 1994 was admitted for hearing by this Court. This Court while granting the leave ordered a stay on the judgment of the High Court dated 13/01/1994. It was companytended by the respondents herein while the said special leave petition was pending before this Court, the State, in order to nullify the judgment of the High Court, dated 13/01/1994, enacted the amendment Act of 1996, whereby Sections 4, 16, 32, 33, 34, 36, 38, 47, 117 and 171 of the Principal Act were amended. The specific challenge to the amendment Act of 1996 is that by amending the Sections 32, 33, 34, 36, 38 and 47 companytained in Chapter IV of the Principal Act, the whole scheme of Chapter IV of the Principal Act has been disturbed and arbitrary powers have been companyferred on the Collector Revenue . Such companyferment of arbitrary power, it is alleged, is unconstitutional. Thus, those provisions of the Act of 1996, introduced by way of amendment in the Principal Act, were challenged as being ultra vires the Constitution of India and mala fide and also as a piece of companyourable legislation on the following grounds- That the impugned legislation has been intended to nullify the judgment of this Court in C.W.P. No. 206 of 1988 dated 13.1.1994. In support of this ground, it has been stated that the apex Court has held that a legislature has numberpower to render ineffective earlier judicial decision by making a law. Such powers if exercised would number be legislative power but a judicial power exercised by it, which encroaches upon the judicial powers of the State exclusively vested in Courts. See case reported in 1995 S.C.C. 96 . That the impugned legislation apparently seeks to validate the record of rights prepared after 1976, which is opposed to rule of law and natural Justice. This ground is purported to be supported by stating that in the earlier writ petition, there was a challenge to the errors in the field maps and jamabandies prepared during the settlement, which cannot be validated as has been done by the impugned legislation, this amounts to denial of opportunity and equal protection of law under Article 14 of the Constitution of India. According to the petitioners, if the impugned legislation stands, the land owners will be rendered without any remedy to redress their grievances, hence the same is against the rule of law. That by making the impugned legislation i.e. Act of 1996 effective retrospectively from 1976, the same is liable to be struck down as unreasonable and arbitrary. Moreover, it has been stated that the said validation is bad in law inasmuch as the executive instructions earlier issued by the Settlement Officer, Shimla and Kinnaur Districts, respondent No.4, were held to be without any authority of law by this Court in its earlier decision because the same were inconsistent with the provisions of the Principal Act. That the Act of 1996 being retrospective in its application adversely affects the rights of estate right holders of Rohru and Chirgaon, which is unconstitutional. It has also been highlighted in this ground that the retrospective effect given to the Act of 1996 is from the year 1976, being for a period of about 20 years, which itself is illegal. That there are inherent companyflicts between the original Sections of the Principal Act and the amended Sections of the Act of 1996. Moreover, the same suffer from the vice of excessive delegation and is against the Scheme of the Principal Act. This is sought to be shown by giving the example that prior to the amendment, only the State Government and Financial Commissioner had the rule making powers under the Principal Act, whereas number by virtue of Sections 4 5 , 34-A and 47-A the respondent-State has descended down by one step whereby the Collector has been empowered to issue executive instructions, which are in the nature of the delegated legislation. This delegation of powers to the Collector has been challenged as being against the basic Scheme of the Principal Act. It has also been stated that the powers so delegated to the Collector are unfettered and unguided and are capable of being abused. That by virtue of the amendments made by the Act of 1996, the sub-division of estates styled as Upmahal are sought to be regularised and validated, which has been questioned as being an act of illegal splitting ab initio, making the same illegal. Despite the directions of this Court in the earlier case that fresh measurement should be carried out, the earlier incorrect measurement and assessment of land revenue, which was held to be so by this Court, have been declared as having been validly prepared by the Act of 1996. It has been stated that the petitioners have apprehensions that respondent No.4. Settlement Officer, will go ahead with the assessment of the land revenue of this area on the basis of invalid records and companyplete the settlement operations. This will result in irreparable injury to the rights of the petitioners. That the Act of 1996 takes away the remedy of review under Section 16 of the Principal Act, thus debarring the Financial Commissioner to review the order passed by him in revision. In this manner, the impugned amendment in Section 16 of the Principal Act has deprived the public at large from one channel from remedy of review, and on the other hand, the highest authority under the Principal Act has been debarred from reviewing the order passed in revision. The amendment in question is against the principle of natural justice besides being against the basic structure of the Constitution of India and the Principal Act, as per the petitioners. Lastly, that the impugned amendments by way of the Act of 1996 are in direct companyflict with the relevant provisions of the Principal Act, if they are allowed to stand, it will result in changing the basic structure of the Principal Act. Thus, the writ petition prayed before the High Court for- Issuance of an order, writ or direction declaring the Act of 1996 as ultra vires the law and as also being violative of the basic structure of the Constitution of India. For issuing a writ of mandamus directing the respondents State number to give effect to Sections 2-B, 2-C, 3 to 6, 9, 10, 12 and 13 of the Act of 1996. To declare the aforesaid Sections as bad, in law, they being in direct companyflict with the original Sections provisions of Sections 4, 16, 32 to 35, 38 and 47 of the Principal Act and as also being against the basic Scheme of the said Act. Same relief was also prayed for in the other companynected writ petition, namely, C.W.P. No.851/1996. In the impugned judgment, the Division Bench of the High Court did number uphold all the companytentions mentioned above but came to a finding that the Amendment Act of 1996 is ultra vires to the extent that it has sought to nullify the earlier decision of this companyrt rendered in CWP No.206/1988 dated 13.01.1994 between Thakur Gian Singh Ors. Vs. State of Himachal Pradesh Ors. It may be numbered that in the impugned judgment there is numberfinding that the amendment Act enacted suffers from lack of legislative companypetence of the State. It is numberodys case that the State legislature is incompetent to enact the said amended Act. There is also numberfinding in the impugned judgment that the amendment Act in any way infringes or abridges any fundamental right of the petitioner. Normally the restrain on the sovereign power of legislation of a State legislature is limited. The legislature has to exercise its legislative power, which is otherwise plenary, in accordance with the distribution of legislative power under Chapter Part XI Chapter I of the Constitution and it has also to exercise such power companysistent with the mandate of Part III of the Constitution and other Constitutional limitations. Learned High Court did number find that the impugned amendment Act transgresses either of these limitations in any way. But the High Count found that the impugned amendment Act is ultra vires the Constitution as it seeks to nullify the previous judgment. This Court is number called upon to pronounce on the companyrectness or otherwise of the previous judgment rendered by the Division Bench of the High Court dated 13.01.1994. The appeal from the said judgment, being Civil Appeal 6025 of 1994, came to be heard by this Court and was disposed of by a judgment and order dated 16.07.1996 to the following effect- Learned companynsel for the appellant submits that the Himachal Pradesh Land Revenue Amendment and Validation Act, 1996 Act No.3 of 1996 has further amended the Himachal Pradesh Land Revenue Act, 1954 and validated certain actions taken in relation to the making or special revision of record-of-rights in the State. Learned companynsel adds that the revision of record-of-rights in the State is, therefore, to be made in accordance with the law so amended with retrospective effect and the directions to the companytrary in the impugned judgment of the High Court rendered prior to enactment of Act No. 3 of 1996 have become infructuous. Learned companynsel also submits that numberspecific relief has been granted to any individual by the impugned judgment which merely gives some directions regarding the general revision of record-of-rights. For this reason, learned companynsel submits that it is number necessary for the State Government to pursue this appeal. Learned companynsel for the respondents, while companyceding that the effect of the aforesaid Act No. 3 of 1996 is to amend the law relating to revision of record-ofrights, further submits that the effect thereof is number to render infructuous all the directions given in the impugned judgment. According to learned companynsel for the respondents, some part of these directions remains effective even after the enactment of Act No. 3 of 1996. He also states that the validity of Act No. 3 of 1996 has also been challenged by a separate writ petition in the High Court of Himachal Pradesh. In view of the companymon ground emerging from the above submissions, it appears to us that it is needless to companysider the merits of the points raised in the appeal since even according to the appellant -State of Himachal Pradesh the directions given in the impugned judgment are numberlonger effective having been rendered infructuous by the subsequently enacted Act No. 3 of 1996. Moreover, there is numberrelief granted to any specific individual and the directions relate to the general revision of record-of-rights in the state which obviously has to be governed by the existing law applicable at the time of performance of the exercise. If any grievance is made of number-compliance of any of the al1eged surviving directions by the State Government before the High Court, it would be open to the State Government to show that the same have become infructuous for the reason given by them and in that situation it would be for the High Court to decide the companytention on merits. In view of the statement made on behalf of the appellants that the directions given in the impugned judgment have become infructuous, the appeal is disposed of accordingly, without deciding any point on merits. The said order was passed after hearing learned companynsel for both the parties. From a perusal of the aforesaid order, it is clear that the appeal was disposed of as it was companytended before this Court by the learned companynsel for the State that in view of the subsequent amendment of the law, the companytentions of the appellant have become infructuous. This companyrt recorded the said submissions and disposed of the said appeal as such. Therefore, the only question which survives in this case is whether the State can in exercise of its sovereign legislative power enact an amendment Act seeking to remove and cure the defects in the previous law despite there being a judgment on the previous law. In the instant case before we examine these questions it would be appropriate to companysider the statement of objects and reasons for enacting the amendment act. The statement is as under- The volume of land records in each revenue estate has companysiderably increased due to the increase in number of holdings partially on account of increase in population and partially on account of decrease of extent of land holdings under the agrarian reforms, to bring the volume of the land records maintained in each revenue estate within manageable size, it has become essential to create more estates or sub-estates. Apart from this, with the enactment the Standards of Weights and Measures Act, 1976, it is number mandatory to companyvert the number-metric measurements into metric measurements. Due to different scales of measurements prevalent in various parts of the State, the companyversion to metric system involves the companyplete remeasurements of all the revenue estates in the State. There is numberprovision either in the Himachal Pradesh Land Revenue Act, 1954 or in the Punjab Settlement Manual, as applicable to Himachal Pradesh, for the creation of estates sub-estates by the Collectors or for the companyplete remeasurements of the estates. In the absence of these statutory provisions of the creation of more estates or sub divisions of estates and the companyplete remeasurement of the estates for companyversion into metric measurements and the instructions/ directions given by the Collectors, during the settlement operations are number sustainable in the eyes of law. Consequently the settlement operations already carried out in various parts of the State are likely to become infructuous and resettlement operations are likely to cause great public inconvenience and loss to the State Exchequer. Besides this certain other minor amendments in the Act are essential in the changed circumstances. It is also essential to validate the action of the Collector already taken by him during the special revision of record-of-rights in relation to the creation of estates sub-division of estates, companyplete remeasurement of all estates based upon metric system, giving directions issuing instructions to carry out the settlement operations and for the effective implementation of the provisions of the Himachal Pradesh Land Revenue Act, 1954. This Bill seeks to achieve the aforesaid objectives. From a perusal of the aforesaid statement of objects and reasons it is clear that the amendment has been necessitated in view of certain factors which are predominantly in public interest and the said amendment has been made in view of the interest of land revenue, land settlement and for the purpose of updating the same. In fact the amendments have been made for an effective implementation of the provisions of the Himachal Pradesh Land Revenue Act, 1954. It is provided in sub-section 2 of section 1 of the amendment Act that the said amendment shall companye into force at once except section 2 b , 5, 6 and 10 which shall be deemed to have companye into force on the 23rd of September 1976. Section 13 of the said act provides for validation. The said section runs as follows- Notwithstanding anything companytained in the Himachal Pradesh Land Revenue Act, 1954 and rules, instructions, numberifications made or issued thereunder, or in any law for the time being in force or in any judgment, decree or order of any companyrt or other authority, where at any time after the 23rd day of September, 1976 and before the companymencement of the Himachal Pradesh Land Revenue Amendment and Validation Act, 1996, if any recordof-rights or special revision of recordof-rights has been made in respect of the lands, situated in the State of Himachal Pradesh, such making or special revision of record-of-rights shall, and shall be deemed always to have been valid and shall number be questioned on the ground that the amendments made vide sections 2 b , 5, 6 and 10 of this Act were number in force at that time when such record-of-rights were made or specially revised. An argument was, however, made before the High Court that the aforesaid amendment is actuated by a mala fide motive and is a piece of companyourable legislation. The aforesaid companytention was, however, number accepted by the High Court in the impugned judgment. In fact such companytention is number tenable on principle. Reference in this companynection be made to a decision of this Court in the case of K. Nagaraj others Vs. State of Andhra Pradesh and another - 1985 1 SCC 523, wherein Chief Justice Chandrachud, speaking for a three-Judge Bench said that the legislature, as a body, cannot be accused of having passed a law for an extraneous purpose. Learned Chief Justice held that the companycept of transferred malice is unknown in the field of legislation provided the legislature enacts the law within its powers. The aforesaid principle in K. Nagaraj supra has been accepted by this Court in many cases and a reference in this companynection may be made to a decision of this Court in G.C. Kanungo Vs. State of Orissa - 1995 5 SCC 96. The power of the Sovereign legislature to legislate within its field, both prospectively and retrospectively cannot be questioned. This position has been settled in many judgments of this Court. Some of them may be companysidered below. In Bhubaneshwar Singh another Vs. Union of India others - 1994 6 SCC 77, the Court expressly approved the aforesaid position in Para 9 at page 82-83. In so far as validating Acts are companycerned, this Court in Bhubaneshwar Singh supra also companysidered the question in para 11 and held that the Court has the powers by virtue of such validating legislation, to wipe out judicial pronouncements of the High Court and the Supreme Court by removing the defects in the statute retrospectively when such statutes had been declared ultra vires by Courts in view of its defects. This Court has held that such legislative exercise will number amount to encroachment on the judicial power. This Court has accepted that such legislative device which removes the vice in previous legislation is number companysidered an encroachment on judicial power. In support of the aforesaid proposition, this Court in Bhubaneshwar Singh supra relied on the proposition laid down by the Chief Justice Hidayatullah, speaking for the Constitution Bench in Shri Prithvi Cotton Mills Ltd. and another Vs. Broach Borough Municipality and others - 1969 2 SCC 283. Again in the case of Indian Aluminium Company etc. etc. Vs. State of Kerala and others -AIR 1996 SC 1431, this Court while summarizing the principle held that a legislature cannot directly overrule a judicial decision but it has the power to make the decision ineffective by removing the basis on which the decision is rendered, while at the same time adhering to the companystitutional imperatives and the legislature is companypetent to do so See para 59 sub-para 9 at page 1446. In the case of Comorin Match Industries Pvt. Limited Vs. State of Tamil Nadu - AIR 1996 SC 1916, the facts were that the assessment orders passed under Central Sales Tax Act were set aside by the High Court and the State was directed to refund the amount to the assessee. As the State failed to carry it out, companytempt petitions were filed but the assessment orders were validated by passing the amendment Act of 1969 with retrospective effect and the Court held that the tax demanded became valid and enforceable. The Court held that in such a situation the State will number be precluded from realizing the tax due as subsequently the assessment order was validated by the amending Act of 1969 and the order passed in the companytempt proceeding will number have the effect of the writing off the debt which is statutorily owed by the assessee to the State. The learned Judges held that the effect of the amending Act is retrospective validation of the assessment orders which were struck down by the High Court. Therefore, the assessment order is legislatively valid and the tax demands are also enforceable. See paras 33 and 35 at page 1925 It is therefore clear where there is a companypetent legislative provision which retrospectively removes the substratum of foundation of a judgment, the said exercise is a valid legislative exercise provided it does number transgress any other companystitutional limitation. Therefore, this Court cannot uphold the reasoning in the High Court judgment that the impugned amendment is invalid just because it nullifies some provisions of the earlier Act. The aforesaid principles have been reiterated by a three-Judge Bench in Meerut Development Authority etc. Vs. Satbir Singh and others - AIR 1997 SC 1467, Justice Ramaswamy speaking for the Court summed up the position in para 10 as follows- It is well settled by catena of decisions of this Court that when this Court in exercise of power of judicial review, has declared a particular statute to be invalid, the Legislature has numberpower to overrule the judgment however, it has the power to suitably amend the law by use of appropriate phraseology removing the defects pointed out by the Court and by amending the law inconsistent with the law declared by the Court so that the defects which were pointed out were never on statute for effective enforcement of the law. This Court has companysidered in extenso the case law in a recent judgment in Indian Aluminium Co. V. State of Kerala 1996 2 JT SC 85 1996 AIR SCW 1051 had held that such an exercise of power to amend a statute is number an incursion on the judicial power of the Court but is a statutory exercise of the companystituent power to suitably amend the law and to validate the actions which have been declared to be invalid A Constitution Bench of this Court in the case of State of Tamil Nadu Vs. M s. Arooran Sugars Limited - AIR 1997 SC 1815, reiterated the same principle after analyzing several cases on the point. The Court has summed up the position as follows- It is open to the legislature to remove the defect pointed out by the companyrt or to amend the definition or any other provision of the Act in question retrospectively. In this process it cannot be said that there has been an encroachment by the legislature over the power of the judiciary. A companyrts directive must always bind unless the companyditions on which it is based are so fundamentally altered that under altered circumstances such decisions companyld number have been given. This will include removal of the defect in a statute pointed out in the judgment in question, as well as alteration or substitution of provisions of the enactment on which such judgment is based, with retrospective effect In Indra Sawhney Vs. Union of India - AIR 2000 SC 498, Justice Jagannadha Rao speaking for a three-Judge Bench explained the position by saying that it would be permissible for the legislature to remove the defect which is the cause for discrimination and which defect was pointed out by the Court. The learned Judge made it very clear that this defect can be removed both retrospectively and prospectively by legislative action and the previous actions can be validated. But where there is a mere validation without the defect being legislatively removed the legislative action will amount to overruling the judgment by a legislative fiat and that will be invalid. In the instant case the amendment Act has removed the defect of the previous law and therefore, the validation exercise is perfectly sound and cannot be faulted with. In Rai Ramkrishna and others etc. Vs. State of Bihar - AIR 1963 SC 1667, a Constitution Bench of this Court speaking through Justice Gajendragadkar, as His Lordship then was, explained the principle with characteristic clarity, which is reproduced hereinbelow- The other point on which there is numberdispute before us is that the legislative power companyferred on the appropriate Legislatures to enact law in respect of topics companyered by the several entries in the three Lists can be exercised both prospectively and retrospectively. Where the Legislature can make a valid law, it may provide number only for the prospective operation of the material provisions of the said law but it can also provide for the retrospective operation of the said provisions. Similarly, there is numberdoubt that the legislative power in question includes the subsidiary or the auxiliary power to validate laws which have been found to be invalid. If a law passed by a legislature is struck down by the Courts as being invalid for one infirmity or another, it would be companypetent to the appropriate Legislature to cure the said infirmity and pass a validating law so as to make the provisions of the said earlier law effective from the date when it was passed. This position is treated as firmly established since the decision of the Federal Court in the case of United Provinces v. Mst.
2003 Supp 5 SCR 90 The Judgment of the Court was delivered by DHARMADHIKARI, J. The suit for recovery of possession of the suit premises on the allegation of taking wrongful and forcible possession by the companytesting respondent was decreed by the city civil companyrt, Calcutta by its judgment dated 29.6.1984. The Division Bench of the High Court of Calcutta by judgment dated 12.01.1996, has set aside the judgment of the city civil companyrt and allowed the appeal of the respondent. The petitioner, being plaintiff in the trial companyrt has, therefore, approached this Court in the present appeal. The suit premises belong to the deceased Foul Chand. On his death, it was inherited by his wife Ram Moony Devi. She also died and the original plaintiff- Gangadhar Halder who is proforma number-contesting respondent number 2 in this appeal , claims to be her successor-in-interest as the adopted son. The present appellant is transferee of the suit property from the original plaintiff - Gangadhar Halder. The companytesting respondent resisted the suit claiming to be in possession of suit premises as tenant. Apart from leading oral evidence to prove tenancy, he produced rent receipts marked as Exs. A, A- l, and A-2. An Agreement of tenancy dated 12.12.1970 marked as Ex-C was also produced to prove his status as tenant in the suit premises. The main question raised by the appellant before this Court is on the admissibility and evidentiary value of the three rent receipts relying on which the High Court has dismissed the suit. In paragraphs 8 9 of the plaint, anticipating the plea of the defendant, following averments are made That the defendant is a near relation of Anil Kumar Gupta, tenant of the numberthern shop room and was working in the said shop and became friendly with said Ram Moony Devi and the plaintiff and after death of Gokul Chand he voluntered to help per in various pending litigations and administration of the estate left by said Gokul chand and said Ram Moni Devi, and illiterate lady and the plaintiff being practically an illiterate man deposed utmost faith upon the defendant. That after death the plaintiffs adoptive father for looking after the village properties he began to stay at his native village at Kashinagar and in this absence for companyducting the litigations at the instance of the defendant for authorising him to represent said Ram Moni Devi the defendant took thumb impression of Ram Moni Devi on some blank stamp papers and blank papers with one or two signatures of the plaintiff also thereon. Underlining for pointed attention The defendant Birendra Kumar Jaiswal in the written statement made specific reference to the rent receipts issued in his favour by landlady late Ram Moni Devi with thumb impressions on the stamps affixed on them and endorsements of the plaintiff by putting his signatures on the back portion of those rent receipts. The defendant thus denied the allegation of the plaintiff that he had trespassed into the suit premises taking advantage of the absence of the original plaintiff-Gangadhar Halder. The specific plea of the defendant based on the rent receipts companytained in paragraph 16 of the written statement reads thus The allegations companytained in para 9 of the plaint are specifically denied. The defendant have numberconcern or any knowledge about the plaintiff or that the plaintiff was adopted son of Gokul Chand. It is absolutely false that the defendant took thus impression of Ram Moni Devi on some stamp blank paper. As a matter of fact, the defendant was the monthly tenant under Smt. Ram Moni Devi in respect of two rooms on the ground floor at 76, Amherst street, Calcutta-9 at a monthly rental of Rs. 100 according to English Calendar. At the time of payment of rent the rent receipts were also endorsed by the plaintiff by putting his name. The defendant further states that on the request for Ram Moni Devi, he paid Rs. 5,200 on a pronumbere date 21.7.1971 and after receiving the said amount the said Ram Moni Devi duty put her left thus impression and the said pro-note was also signed by the plaintiff a witness. Despite the above specific plea of tenancy based on the rent receipts taken by the defendant in the written statement, the plaintiff did number make any companysequential amendment to his plaint and offered numberexplanation how blank printed rent receipts came to be thumb marked and singed on their back portions by the plaintiff. On the above pleadings, the parties went to trial. On the question of admissibility of the rent receipts, the Order No. 53 of the trial companyrt dated 3.9.82. wrongly mentioned by the High Court as dated 5.9.82 reads as under 53/3.9.82PW-2 Gangadhar Holder is examined and cross-examined. Documents are marked as Exs. A 2 and B-B l on admission. No other witnesses are present today. Adjourned to 7.9.1982 for further hearing. The trial companyrt on appreciation of oral and documentary evidence on record came to the companyclusion that the defendant had somehow access to the rent bills kept by plaintiff-Gangadhar Halder and those seem to have been utilised for fabricating the rent receipts. The relevant portion of the finding of the trial companyrt reads thus The evidence on record, therefore, shows that defendant Biren Jaiswal had access to the rent bill kept by Gangadhar. The evidence on record further shows that defendants utterly failed to prove formally rent receipts dated 18th March, 1972, 2nd Feb., 1974 and 8th May, 1976 and the genuineness of these rent receipts. Considering the facts of the case, I am inclined to observe that the rent receipts produced by the defendant have been manufactured by him on abusing a faith reposed on him by plaintiff Gangadhar holder. Underlining to highlight the companyclusion The Division Bench of High Court, in appeal, re-appreciated the oral and documentary evidence and reversed the finding of the trial companyrt. On the admissibility and reliability of the disputed rent receipts, the High Court made the following companyments in paragraph 7 of its judgement Upon companysideration of the rival submissions it appears to us that the propriety of the decision of the learned trial judge things on our companyclusion about the status of the defendant. The defendant has claimed a tenancy and in support thereof rent receipts have been produced, admitted signatures whereon were of Gangadhar Halder and thumb impressions of Ram Moni Devi companyld number be shown to be number genuine. The only ground on which such receipts have been discarded by the learned trial judge is a finding of fraud by companyversion of blank stamp papers into rent receipts through perpetation of fraud in that way was never pleaded in the plaint. It is well settled that a case which has number been pleaded in the plaint cannot be made out by evidence. It is also well settled that signatures to the documents having been admitted or proved the companytents thereof automatically go into evidence, when documents were admitted into evidence without objection See Order No. 53 dated 5.9.1982 vide AIR 1972 S.C. 608 P.C.- Purushothama Reddiar, Appellant-v-S. Perumal, Respondent. The same reasonings apply to the agreement in questions. If the existence and genuineness of the rent receipts cannot be doubted then the existence of the agreement also has to be accepted because of its companysistency in facts. According to our view, therefore, the net effect of the above renders the case of tenancy as pleaded by the dependent credible and the case of the plaintiff of the defendant being trespasser cannot but has to be rejected. We do number agree with the reasonings of the learned trial Judge because his entire approach was vitiated by number-consideration of absence of specific plea of fraud and surmines and presumption. Underlining to add emphasis The main thrust of the argument strenuously advanced by the learned companynsel appearing for the plaintiff as appellant is that mere admission of the signatures of the plaintiff on the back portion of the rent receipts and their marking as exhibits by the companyrt cannot be taken as due proof of execution of the rent receipts by the original landlady Ram Moni Devi. It is argued that the defendant failed to lead any evidence to prove writings on the rent receipts and their due execution and issuance by the landlady with her thumb impression. It is argued that exhibits are marked to the admitted signature of the plaintiff on the back portion of the rent receipts and such marking companyld number be taken to be proof of the due execution and issuance of the rent receipts. Learned companynsel companytends that marking documents as exhibits and their proof are two different legal companycepts. Reference is made to Section 66 of the Evidence Act and reliance is placed on Dattatraya v. Ranganth Gopalrao Kawathekar dead Thr LRs., AIR 1971 SC 2548 Kamji Dayawala Sons P Ltd. v. Invest Import, 1981 1 SCC 80 and Om Prakash Berlla and Anr. v. Unit Trust of India and Ors., AIR 1983 Bombay 1. Learned companynsel appearing for the companytesting respondent supported the judgement of the High Court and submitted that the plaintiff having number disputed his signatures on the back portion of the three rent receipts and the documents having been admitted and marked as exhibits by order No.53 dated 3.9.82 of the trial companyrt, there was numbernecessity to lead any further evidence by the defendant to prove writings on the rent receipts and their due execution in favour of the tenant by the landlady. We have purposely reproduced the relevant parts of the pleadings of the plaintiff in the plaint and of the defendant in the written statement to show the rival cases respectively set up by the companytesting parties. At the earliest stage, in the written statement, the defendant has clearly pleaded that he is in occupation of the suit premises on a monthly rental of Rs. 100 per month and had been paying rent and obtaining rent receipts which were thumb marked by the original landlady late Ram Moni Devi and singed on the back by the original plaintiff - Gangadhar Halder. As seen above, it was pleaded in the plaint that certain blank stamp papers thumb marked and signed by the plaintiff were given to the defendant authorising him to represent them in various pending litigations. Even after the specific plea in the written statement of the defendant claiming status of a tenant on the basis of rent receipts, the pleadings in the plaint were number amended by the plaintiff to explain how on back of printed rent receipt, he happened to put his signatures. No companysequential amendment was made in the plaint taking a plea of fraud and forgery of rent receipt. There is also numberevidence to that effect. Reliance is heavily placed on behalf of the appellant on the case of Ramji Dayawala Sons P Ltd., supra , The legal position is number in dispute that mere production and marking of a document as exhibit by the companyrt cannot be held to be a due proof of its companytents. Its execution has to be proved by admissible evidence that is by the evidence of those persons who can vouchsafe for the truth of the facts in issue. The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the companyrt. We find numberforce in the argument advanced on behalf of the appellant that as the mark of exhibits has been put on the back portions of the rent receipts near the place where the admitted signatures of the plaintiff appear, the rent receipts as a whole cannot be treated to have been exhibited as an admitted documents. We have already reproduced above the companytents of the order number 53 dated 3.9.82 of the trial companyrt. The appellant cannot be allowed to question the companyrectness of the said under. The documents were admitted and then exhibited. The plaintiff did number dispute his signatures on the back of them. There was, therefore, numberfurther burden of proof on the defendant to lead additional evidence in proof of the writing on the rent receipts and its due execution by the deceased landlady. The High Court rightly took a view that in face of the specific plea of tenancy by the tenant based on rent receipts, onus of proof, in fact, lay on the plaintiff to explain how blank printed rent receipts came to be signed by him on their back portions. We have extracted above the relevant pleadings in the plaint. What has been pleaded in that certain signed stamped blank papers were given to the defendant to be used for the pending litigations of the landlady and for administration of her estate. The plaintiff failed to lead any evidence to show what were those pending litigations and what was the occasion and necessity to sign printed blank receipts at their back by the plaintiff. The High Court being the first companyrt of appeals was fully within its powers to re-examine and re-appreciate the documentary and oral evidence. It companyld companye to a companyclusion companytrary to the one reached by the trial companyrt.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1738 of 1971. From the Judgment and Order dated the 18th January 1971 of the Delhi High Court in Income Tax Reference No. 19 of 1970. B. Lal for the Appellant. B. Ahuja and Girish Chandra for the Respondent. The Judgment of the Court was delivered by CHANDRACHUD, J. Two questions arise for companysideration in this appeal one of them being subsidiary to the other. The main question is whether a Hindu female who is a member of an undivided family can blend her separate property with joint family property. The appellant, Pushpa Devi is a member of a joint Hindu family companysisting of herself, her husband, her father-inlaw, her mother-in-law, her minor son and three daughters. On June 19, 1958 the appellant, in her individual capacity and with the aid of her personal assets entered into a partners with her father-in-law, Gur Narain Khanna, in the name and style of Gur Narain Jagat Narain Co. Her minor son, Ravi Narain Khanna, was admitted to the benefits of that partnership. Each of the three partners had a onethird share in the profits of the partnership, while the appellant and her father-in-law had an equal share in the losses. The firm owned two cinema houses Nishat Talkies, Kanpur and Novelty Talkies, Lucknow. Separate accounts were maintained in respect of the two businesses and separate profit and loss accounts used to be drawn up. On August 31, 1961 a sum of Rs. 67,284.57 stood to the credit of the appellant in the books of Nisliat Talkies. That amount companysisted of a sum of Rs. 16,666.67 in the capital account and Rs. 50,617.90 in the current account. On September 1, 1961 the appellant made a sworn declaration stating that she was the sole and absolute owner of the amounts standing to her credit in the books of Nishat Talkies and of her share in that business and declaring unequivocally her intention to treat both her capital and her share in the business of Nishat Talkies as the joint family property of tile Hindu undivided family of which she was a member. By clause 6 of the declaration, the appellant stated that she had abandoned for ever her separate interest and ownership over the capital investment of Rs. 67,284.57, her one-third share in the net profits and one-half share in the net losses in the business of Nishat Talkies, in favour of the joint Hindu family to be wholly and exclusively enjoyed and possessed by it. We are companycerned in this appeal with the assessment year 196364, for which the previous accounting year ended on August 31, 1962. A sum of Rs. 20,865, being one-third share of the income from the business of Nishat Talkies for, the year in question, was credited to the account of the joint Hindu family in thebooks of the firm. That income would have originally fallen to the share of the appellant in the business of Nishat Talkies, but it was credited to the account of the joint Hindu family in companysequence of the declaration made by the appellant on September 1, 1961. The Hindu undivided family paid advance tax on the amount and filed its return in respect of that income. The appellant, on the other, hand, did number include that income in her return for the year. She appended a numbere at the end of the return saying Share of income from Nishat Talkies, Kanpur Rs. 20,865/-.Please see numbere on back page of companyputation of assessable income.In the numbere on the back page of the return, the appellant referredto the declaration of September 1, 1961 and stated that her one-third share in the income of Nishat Talkies was assessable in, the hands of the Hindu undivided family since the income had ceased to be hers by reason of the declaration. The Income-tax Officer rejected the appellants companytention, on the ,ground that throwing the capital amount into the family stock was of on avail as the sine qua number of the matter was that the Karta should become a partner in companysequence of investment. The Appellate, Assistant Commissioner affirmed the order of the I.T.O. on the, ground that since the appellant, though a member of the joint family, was number a companyarcener, it was number open, to her to impress her, personal property with the character of joint family property. The second ground on which the appellants claim was rejected by the A.A.C. was that the joint family did number possess any joint family property and, therefore, there was numberjoint family stock in which the appellant companyld throw her separate property. In a further appeal, the Income-tax Appellate Tribunal accepted the appellants companytention, holding that there was numberjustification for discriminating against Hindu female on the ground of sex and that there was numberreason why a Hindu female who was a member of an are undivided family companyld number, by an unequivocal expression of intention, impress her separate property with the character of joint family property. The Tribunal observed that the appellant was, number trying to enlargeher rights under the Hindu law or to improve her status under thatlaw by abandoning her, exclusive right in her self-acquired property. Surrender of interest by a female was number, according to the Tribunal, foreign to the genius of Hindu law and, therefore, numberrestriction companyld be placed on a females fight to abandon her exclusive interest in favour of the join family of which she was a member. At the instance of the revenue, the Tribunal referred for the opinion of the Delhi High Court the following question Wheher on the facts and in the circumstances of the cases, the tribunal rightly held that the income of Rs. 21,544/was number the individual income of the appellant but was the income of the Hindu undivided family of which she was a member., Disagreeing with, the Tribunal, the High Court answered the question in favour of the revenue on the ground that the right of blending companyld be exercised only by a companyarcener and since the appellant, though a member of the joint family was number a companyarcener, she, companyld number throw her separate property into the joint family stock. The High Court, however, rejected the companytention of the revenue that since the joint family did number possess any property, numbermember thereof companyld blend his separate property with joint family property. The High Court has granted to the appellant a certificate under section 261 of the, Income-tax Act, 1961 to file, an appeal to. this Court on the ground that the case involves a substantial question of law as to the right of a female member of a joint Hindu family to impress her self-acquired property with the character of joint Hindu family property. The question, according to the High Court, is res integra. Thisappeal had companye up for hearing before a three-Judge Bench earlierwhen it was felt that the question referred by the Tribunal for the opinion of the High Court was companyprehensive enough to companyer the point. Whether there was a gift of the appellants capital investment and her share in the, business of Nishat Talkies in favour of the Hindu undivided family. By a judgment dated September 24, 1976 Khanna J., on behalf of the Rench, directed the Tribunal to send a supplementary statement of the case on that question. In pursuance of the direction, the Tribunal has forwarded to this Court a supplementary statement of the case along with its finding on ,the question which it was directed to companysider. By its order dated January 31, 1977 the Tribunal has taken the view that there was a gift by the appellant in favour of the joint family and that the latter had accepted that gift. We are thus required to companysider two questions in this appeal one relating to the right of a Hindu female, who is a member of an undivided family, to impress her absolute selfacquired property with the character of joint family property and the other as to whether, if ,there has been numbersuch blending, the transaction in the instant case can amount to a gift in favour of the undivided family. We will proceed to a gift in favour of the undivided family. We will proceed to examine the first questions The High Court is number quite companyrect in the unqualified statement it has made in its order granting a certificate to the appellant to appeal to this Court that this question is res intera. The question, in our opinion, is fairly, if number fully, companyered by a companysidered judgment of this Court in Mallesappa Bandappa Desai Ors. v. Desai Mallesappa Ors. 1 . The appellants therein brought a suit against their uncle and another for partition of joint family properties, their case being that they and respondent 1 were each entitled to a half share hi those properties. The trial companyrt passed a decree in favour of the appellants, except in regard to certain items. That decree was challenged by respondent 1 in the Madrus High Court, one of his companytentions being that in any case, the appellants were number entitled to a share in the properties at Jonnagri, items 4 to 61. This companytention was accepted by the High Court which modified to that extent the decree of the trial companyrt. 1 1961 3 S.C.R. 779. In an appeal filed in this Court by certificate granted by the High Court, one of the main companytentions raised on behalf of the appellants, was that the Jonnagiri properties were as much properties of the joint family as the other items and, therefore, the High Court had fallen into error in refusing to grant to the appellants a share in those properties.The Jonnagiri properties belonged originally to one Karnam Channappa, on whose death the properties devolved on his widow Bassamma. Bassamma died in 1920, leaving behind her three daughters, one of whom was Channamma. Channamma married Ramappa, Aid the companyple gave birth to four sons, including the appellants father Bandappa and respondent 1, Mallappa. It was companymon ground between the parties that the Jonnagiri properties were obtained by Channamma by succession from her father and were held by her as a. limited owner. Channamma was a member of the joint family companysisting of herself, her husband, their sons and others. The appellants case was that after the Jonnagiri properties had devolved on Channamma by succession, she allowed the said properties to be thrown into the companymon stock of the other properties belonging to the joint family and that, by virtue of such a blending, the Jon properties of Channamma had acquired the character of joint family property. Gajendragadkar J., who spoke for the Court began an examination of the appellants companytention by posing the fundamental question whether the doctrine of blending can be invoked in such a case. After stating that the Privy Council in Shiba Prasad Singh v. Rani Prayag Kumari Debi 1 was in error in observing that the doctrine of blending was based on the text of Yagnavaikya Ch.1, Sect. 4, pl.30 and the companymentary made on it by Vijnyaneshwara Mitakshara, ch.1, sect. 4, pl.31 , the learned Judge observed that it was unnecessary to investigate whether any other text can be treated as the foundation of the doctrine of blending since the doctrine, as evolved by Judicial decisions, had received a wide recognition and had become a part of Hindu law. The Court then proceeded to examine the question whether the principle of blending applied in regard to property held by a Hindu female as a limited owner and answered that question in the negative. It is undoubtedly true, as companytended by the appellants learned companynsel, that the question which the Court posed for its companysideration at page 785 of the report speaks of properties held by a Hindu female as a limited owner. But the question was framed in that manner because the properties which had developed on Channamma on her fathers death were held by her as a limited owner and number as her absolute properties. The ultimate decision of the Court that the Jonnagiri properties which had devolved on Channamma companyld number be treated as the properties of the joint family is number based upon or governed by the companysideration that she had a limited estate in those properties. The decision of the Court, as Gajendragadkar J. has stated at more than one place in the Judgment is The rule of blending postulates that a companyarcener who is interested in the companyarcenary property and who owns sep- 1 59 I.A. 331. arate property of his own may by deliberate and intentional companyduct treat his separate property as forming part of the companyarcenary property. If it appears thatproperty which is separately acquired has been deliberately and voluntarily thrown by the owner into the joint stock with the clear intention of abandoning his claim on the said property and with the object of assimilating it to the joint family property then the said property becomes a part of the joint family estate in other words, the separate property of a companyarcener loses its separate character by reason of the owners companyduct and gets thrown into the companymon stock of which it becomes a part. This doctrine therefore inevitably postulates that the owner of the separate property is a companyarcener who has an interest in the companyarcenary property and desires toblend his separate property with the companyarcenary property. pp.785786 . After stating the position thus, the Court again adverts to the fact that Channamma held the Jonnagiri properties as a limited owner, but having done so, it restates the position that a Hindu female, number being a companyarcener has numberinterest in the companyarcenary property and cannot blend her property with the joint family property. The frequent reference in the judgment in Mallesappa supra to the fact that Channamma held a limited estate and the further reference by the Court to the Hindu law principle that a Hindu female owning a limited estate cannot circumvent the rules of surrender and allow the members of her husbands family to treat her limited estate as part of the joint family property belonging to the family is apt to companyfuse the true issue, but we have numberdoubt that the judgment rests squarely and principally on the companysideration that Channamma was number a companyarcener. While. companycluding the discussion on this topic, the, Court observed at page 787 that on first principles, the result which was canvassed by the appellants was inconsistent both with the basic numberion of blending and with the basic character of a limited owners title to the property held by her. The basic numberion of blending which the Court has highlighted at several places in its judgment is that it is the companyarcener who alone can blend his separate property with joint family property and that the said right is number available to a female who, though a member of the joint family, is number a companyarcener. We are clear that Mallesappa supra is an authority for the proposition that a Hindu female, number being a companyarcener, cannot blend her separate property with joint family property. Whether that separate property is the females absolute property or whether she has a limited estate in that property would make numberdifference to that position. We may mention that Mallesappa supra is quoted in Mullas Hindu Law 14th Ed. p. 277 as an authority for the proposition that the doctrine of blending cannot be applied to the case of a Hindu female who has acquired immovable property from her father, for she is number a companyarcener. The Judgment of this Court in Lakkireddi Chinna Venkata Reddi v. Lakkireddy Lakshmama, 1 that of the Privy Council in Rajani 1 1964 2 S.C.R. 172. 33 6 Kanta Pal Ors. v. Joga Mohan Pal 1 and of the Delhi High Court in Commissioner of Gift-tax, Delhi v. Munshi Lal 2 do number deal with the question whether a Hindu female, number being a companyarcener, can blend her separate property with joint family property. The statement of law in Lakkireddi supra that property, separate or self-acquired, of a member of joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the companymon stock with the intention of abandoning his separate claim therein is to be understood in the companytext that property devised under a will was alleged in the case to have been impressed with the character of joint family property, by the male members of the family. In Rajani Kanta Pal supra also, the blending was alleged to have been done by a male member of a joint family and the real companytroversy was whether the Mitakshara rule of blending applied in the case of brothers living together and forming a joint family governed by the Dayabhaga school of law. The Privy Council held that the rule of blending extended to Dayabhaga families also. In the case decided by the Delhi High Court in Munshi Lal, supra it is true that one of the assessees was a female member of a Hindu undivided family and the companytention was that she had impressed her separate property with the character of joint family property. It is, however clear from the judgment of the High Court that the question whether a female member of a joint Hindu family can blend her property with joint family property was number urged or companysidered in that case. The capacity or companypetency to blend was assumed both as, regards the male and the female assessee who were members of joint Hindu family. It was on that assumption that the question was referred to the High Court for its opinion under section 26 1 of the Gift-tax Act, 1958 whether the act of throwing the self-acquired property into the companymon hotchpotch amounted to a gift as defined in the Gift-tax Act. Following the decision of this Court in Goli Eswariah Commissioner of Gift-tax, 3 the Delhi High Court held that the transaction did number amount to a gift and, therefore, the gift-tax was number attracted. Thus, in numbere of these three cases cited by the appellant, was the companypetency of incorporation of separate property with joint family property in issue. The decision of the Privy Council in Shiba Prasad Singh v. Rani Prayag Kumari Debi supra is also number to the point. It was held therein that unless the power is excluded by statute or custom, the holder of a customary impartable estate, by a declaration of his intention, can incorporate with the estate his self-acquired immovable property, and thereupon the property accrues to the estate and is impressed with all its incidents, including the custom of descent by primogeniture. The appellant argues that if the holder of an impartable estate can blend his separate property with the estate of an impartible estate, there is numberreason why a Hindu female should number have the right to blend her separate property with joint family property. The analogy is misconceived because the true rule of blending, as we have explained above, is that the right to blend is limited to companyarceners. 1 50 I.A. 173. 2 85 I.T.R. 129. 3 76 I.T.R. 675. Having companysidered the decisions cited at the bar, it may be useful to have a fresh look at the doctrine of blending. The theory of blending under the Hindu law involves the process of a wider sharing of ones own properties by permitting the members of ones joint family the privilege of companymon ownership and companymon enjoyment of such properties. But while introducing new sharers in ones exclusive property, one does number by the process of blending efface oneself by renouncing ones own interest in favour of others. To blend is to share along with others and number to surrender ones interest in favour of others to the exclusion of oneself. If a Hindu female, who is a member of an undivided family, impresses her absolute, exclusive property with the character of joint family property, she creates new claimants to her property to the exclusion of herself because number being a companyarcener, she has numberright to demand a share in the joint family property by asking for a partition. She has numberright of survivorship and is entitled only to be maintained out of the joint family property. Her right to demand a share in the joint family property is companytingent, inter alia, on partition taking place between her husband and his sons see Mullas Hindu Law, 14th Ed. p. 403, para 315 . Under section 3 2 and 3 of the Hindu Womens Rights to Property Act, 1937 her right to demand a partition in the joint family property of the Mitakshara joint family. accrued on the death of her husband. Thus, the expression blending is inapposite in the case of a Hindu female who puts her separate property, be it her absolute property or limited estate, in the joint family stock. It is well settled that a Hindu companyarcenary is a much narrower body than the joint family and it includes only those persons who acquire by birth an interest in the joint or companyarcenary property. These are the three generations next to the holder in unbroken male descent see Mullas Hindu Law, 14th Ed. p. 262, para 213 . A Hindu female therefore is number a companyarcener. Even the right to reunite is limited under the Hindu law to males Mulla, p. 430, para 342 . It does number therefore militate against the fundamental numberions governing a Hindu joint family that a female member of the joint family cannot blend her separate property, even if she is an absolute owner thereof, with the joint family property. In our opinion, therefore, the income of Rs. 21,544 from Nishat Talkies was number assessable in the hands of the Hindu undivided family on the basis that the appellant had blended it with the joint family property. As regards the second question on which this Court had called for a supplementary statement, there is numberserious companytroversy that by the declaration dated September 1, 1961 the appellant must be deemed to have made a gift of the items mentioned therein to the undivided family of which she was a member. The Tribunals finding to that effect must, therefore, be companyfirmed. The income of the property gifted to the Hindu undivided family will be liable to be brought to tax companysistently with this finding and in accordance with law. In the result, the appeal fails in regard to the first question but will succeed in regard to the second.
B. SINHA, J. Leave granted. These two appeals arising out of a judgment and order dated 2.11.2007 rendered by the High Court of Jharkhand at Ranchi in Writ Petition T No. 4693 of 2005 were taken up for hearing together and are being disposed of by this companymon judgment. The factual matrix involved is number in dispute. M s Tata Iron Steel Company Limited TISCO produces steel. For the said purpose, it purchases oxygen gas from M s B.O.C. India Ltd. BOC , the producer and supplier, for industrial and medical use. BOC began supply of oxygen gas to TISCO from the year 1993. Indisputably, TISCO applied for and was granted a registration certificate in terms of the provisions of Section 13 1 b of the Bihar Finance Act, 1981 hereinafter called and referred to as, the Act . The said certificate originally was granted on 16.3.1983. Indisputably, it was renewed from time to time it companyered the period in question, namely, 2001- 02, having been renewed till 31.5.2004. Indisputably, in terms of the provisions of the Act and the rules framed thereunder, a dealer is required to show the list of goods which were taxable at 1 as also the list of those goods which were taxable at 3. Oxygen was shown in the list of goods taxable at 3 as specified in Annexure B appended to the registration certificate. We may at this stage numberice the relevant statutory provisions, namely, Sections 13 1 b , 14 2 and 54 of the Act, which read as under Special rate of tax on certain sales or purchases.- 1 Notwithstanding anything companytained in this part but subject to such companyditions and restrictions as may be prescribed. a Sales to or purchases by a registered dealer of goods required by him directly for use in the manufacture or processing of any goods for sale. Registration of dealers. 1 Every dealer required by sub-section 1 to be in possession of a registration certificate shall apply for the same in the prescribed manner to the prescribed authority, and the said authority shall, on being satisfied that the application is in order, register the applicant and grant him a registration certificate within prescribed time in the prescribed manner and in the prescribed form specifying therein the goods or class or description of goods which the dealer sells or purchase and such other particulars as may be prescribed. Provided that numberapplication referred to in this sub-section shall be companysidered and be deemed valid, unless the applicant furnishes companyrectly all the prescribed particulars and, such other particulars as may be required by the prescribed authority in this behalf Provided further that where a dealer required by sub-section 1 to be in possession of a registration certificate applies for such a certificate within the prescribed time-limit and in the prescribed manner and the application is otherwise valid in accordance with the first proviso of this sub-section, he shall be deemed to be in possession of a valid registration certificate from the date he so applied for the purposes of exercising all the rights and performing all the duties and bearing all the liabilities under this part and the rules made thereunder Provided also that where a dealer carries on any business of sale or purchase of goods, in violation of the express and specific provisions of any law of the State or the Union, then numberwithstanding anything to the companytrary companytained in this part and without prejudice to his liability to pay tax, the prescribed authority shall refuse to grant him a registration certificate. Furnishing of information by dealers.- If any dealer liable to pay tax under this part- a disposes of his business or any part of his business, whether by sale or otherwise, or b acquires any business or part of any business, whether by purchase or otherwise, or c effects any other change in the ownership or companystitution of the business, or d discontinues his business or shifts his place of business, or e changes the name, style or nature of his business or effects any change in the class or description of goods which he sells, or f starts a new business or joins another business either singly or jointly with other persons, or g effects any change in the particulars furnished in an application made under Section 14 or declaration furnished under Section 15, He shall, within seven days of the occurring of any of the events aforesaid inform the prescribed authority accordingly, and, if any such dealer dies without doing so, his executor, administrator, successor-in-interest or legal representative, as the case may be, shall within fifteen days of the dealers death, inform the said authority accordingly. The State in exercise of its rule making power made rules known as Bihar Sales Tax Rules, 1983. Rules 3 9 , 6 1 b , 6 4 thereof read as under 3 9 a Every dealer to whom the provisions of section 54 apply shall inform, in writing, the appropriate authority prescribed in sub-rule 3 about the companyplete details necessitating action under Section 54. Where the information furnished by a dealer under section 54 or otherwise received by the authority prescribed under sub-rule 3 necessitates amendment of the registration certificate of the dealer the said authority shall, where the dealer has number submitted the certificate for amendment, direct him to produce the certificate and he shall companyply with such direction. On receipt of the certificate the said authority shall, after such verification as may be necessary, amend the certificate suitably. Where the information furnished by a dealer under Section 54 or otherwise received by the authority prescribed in sub-rule 3 necessitates amendment in a declaration furnished under Section 15 the dealer shall furnish to the said authority a revised declaration until such revised declaration is furnished to the said authority the original declaration shall companytinue to be deemed valid and binding. Certificate under section 13.- 1 An application for certificate under sub-section 1 of Section 13 shall be made-- a In Form III, where the certificate is required for making purchases companyered by clause b or c of the said sub-section, such application shall be made separately in respect of every place of business 2 3 4 a On receipt of an application in Form II or III if the appropriate authority prescribed in clause a or b of sub-rule 3 , as the case may be, after verification of the particulars furnished by the applicant or after making or causing to be made such enquiry as it may deem necessary, is satisfied that the application is in order, it shall grant a certificate in Form VIA or VIB, as the case may be. On receipt of an application in Form IV, if the Joint Commissioner of the Division, after verification of the particulars furnished by the applicant, or after making or causing to be made such enquiry as he may deem necessary, is satisfied that the application is in order he shall, subject to the provisions of clause a of sub-rule 6 , grant to the applicant a certificate in Form VIC. A companyy of the certificate so granted shall also be sent forthwith to the Commercial Taxes Officer in-charge of the sub-circle, if the business is intended to be established within the local limits of a sub-circle, and to the Deputy Commissioner or Assistant Commissioner or Commercial Taxes officer in charge of the Circle in other cases. In terms of the said rules, application for grant of certificate is to be filed in Form III wherein inter alia particulars of the goods which the dealer may be permitted to purchase at special rate of tax in terms of clause b or c of sub-Section 1 of Section 13 of the Act are required to be shown. A registration certificate is granted in terms of Form VIB. Clause 3 whereof reads as under Particulars of the goods which the holder of the certificate is permitted to purchase at special rate of tax, under clause b or c of sub-section 1 of section 13. Description of goods. Particular purpose for which Required 1 2 Indisputably, the State from time to time issued several numberifications, one of such numberification being dated 15.12.1976 in terms whereof tax at the rate of three per centum was prescribed in respect of the goods required directly for use in manufacture. However, by reason of S.O. No. 604 dated 12.4.1982, the rate of sales tax on Industrial raw materials inputs payable under Section 13 1 b of the Act was fixed at one per centum. By a Notification being S.O. 1096 dated 9.9.1983, it was provided O. 1096 the 9th September, 1983- In exercise of the powers companyferred by sub-section 1 of Section 13 of the Bihar Finance Act, 1981 Part 1 Bihar Act No. 5, 1981 and in supersession of Finance Commercial Taxes Department numberification No. S.O. 604, dated the 12th April, 1982, the Governor of Bihar is pleased to direct that the rate of sales tax payable under clause b of sub-section 1 of Section 13 of the said Act on the raw materials required directly for use in the manufacture or processing of goods for sale in the State or in companyrse if inter-state trade or companymerce, excluding such raw materials which have already undergone any manufacturing or production process and which are required for further assembly therewith shall be at the rate of two per centum. Yet again, by reason of S.O. 154 dated 3.2.1986 sales tax on sale of the raw materials required directly for use in the manufacture or processing of goods for sale excluding such raw materials which have already undergone any manufacturing or production process and which are required for further assembly therewith shall be at the rate of two per centum. Concededly, TISCO never applied for amendment or modification of the Registration Certificate. Oxygen gas companytinued to be allowed to remain in Annexure B of the Registration Certificate wherefor sales tax was payable at the rate of three per centum. Indisputably again, till the Assessment Year 2002-2003 for supply of oxygen gas to TISCO, BOC also used to charge sales tax at the rate of three per centum. However, the said purported mistake was sought to be rectified by BOC in terms of the said Notification dated 3.2.1986 charging two per centum sales tax on the supplies of oxygen gas made to TISCO. TISCO issued a declaration in terms of Form IX of the Rules. BOC also deposited tax at the rate of two per cent on the sale of industrial gases to TISCO. The Deputy Commissioner of Commercial Tax issued a numberice to BOC on or about 20.4.2005, stating It is informed that you have deposited tax 2 on the sale of industrial gases to M s TISCO Ltd. Because the Honble Supreme Court has dismissed the SLP No. 15419/2004, filed on your behalf, vide order dated 30.3.2005. Hence, you are directed to produce the evidence before the undersigned of deposit of the balance admitted tax of Rs.1,02,45,572/- by 20.5.2005, otherwise the proceedings for imposition of penalty will be initiated against you u s 16 9 of Bihar Finance Act, 1981 as adopted by Jharkhand Another numberice dated 29.6.2005 was also issued, stating In spite of informing you by this offices letter No. 188 dated 20.4.2005 the balance amount of Rs.1,02,45,572/- being admitted tax has number been deposited by you till date. Again, you are directed to produce the evidence before the undersigned of deposit of the balance admitted tax of Rs.1,02,45,572/- by 15.7.2005, otherwise the proceedings for imposition of penalty will be initiated against you u s 16 9 of Bihar Finance Act, 1981 as adopted by Jharkhand. BOC in its letter dated dated 15.7.2005, addressed to the Deputy Commissioner, Commercial Taxes, Jamshedpur Circule, Jamshedpur, stated After receiving the said letter numberice dated 29.06.05, we had taken up the matter with Tata Steel i.e. our purchaser who is the registered dealer for purchasing of the said Industrial Gases including Oxygen. It has been informed by Tata Steel that the Tata Steel is using those industrial gases including oxygen as their raw material for manufacturing of steel products and is companyered under Notification S.O. No.1096 dated 09.09.83, hence the companycessional rate of sales tax 2 is applicable. This has already been informed earlier by them vide their letter No. ACCTS ST/990/115/05 dated 31.05.05 companyy enclosed explaining the matter in this companytext. For paying the companycessional rate of sales tax against supply sale of Industrial Gases including Oxygen to Tata Steel, Tata Steel has submitted Form IX for availing the companycessional rate of sales tax against supply of such industrial gases including oxygen, a companyy of which is enclosed herewith. In view of the above, we request you to withdraw your letter No. 2137 dated 29.06.05 demanding differential rate of tax 1 totaling to Rs.1,02,45,572/- and drop the case accordingly. The demand was again raised on BOC by the Deputy Commissioner of Commercial Taxes, Jamshedpur Circle, Jamshedpur by its letter dated 22.7.2005 opining that TISCO was liable to pay companycessional purchase tax at the rate of three per cent on Oxygen gas. BOC was, therefore, directed to produce the evidence of deposit of the balance differential amount of Rs.1,02,45,572/- by 18.8.2005 failing which other modes of recovery would be adopted. Questioning the validity and or legality of the said numberice, a Writ Petition was filed before the High Court of Jharkhad at Ranchi, which by reason of the impugned judgment has been dismissed, holding that BOC has numberlocus standi to file writ petition as admittedly tax was payable by TISCO being authorized to purchase at the companycessional rate of three per cent and number at the rate of two per cent and, thus, the demand made by the respondent was unassailable, the selling dealer being bound by the certificate granted to it under Section 13 1 b of the Act. It was also held that whether oxygen gas is a raw material or number cannot be decided determined in writ application filed by BOC as TISCO alone is companypetent to explain to the prescribed authority as to how, which had all along treated and mentioned as goods as per Annexure B, companyld be treated as raw material. In view of the order of this Court in the case of Tata Iron Steel Co. Ltd. vs. State of Jharkhand ors. 2005 4 SCC 272, the writ petition was also held to be number maintainable as TISCO cannot take a different stand to the effect that oxygen gas was used by it as a raw material. It was furthermore held As per the registration certificate issued under Section 13 1 b of the Act, Oxygen Gas was treated as goods as mentioned in Annexure - B. Endorsing the same, the purchasing dealer has been paying the tax at the companycessional rate of 3 for a long number of years treating Oxygen Gas as goods. The selling dealer is bound by the said certificate. Accordingly, he has been companylecting sales tax 3 from the beginning till 2000 and thereafter he started companylecting sales tax 2 treating the same as raw material. Neither the purchasing dealer, number the selling dealer can decide the nature of the goods on their own, unless the certificate is modified by the prescribed authority to that effect, treating Oxygen Gas as raw material, on being approached by purchasing dealer. The purchasing dealer has to pay sales tax 3 treating Oxygen Gas as goods mentioned in Annexure - B and the selling dealer has to merely companylect and deposit the same as per the certificate with the Government. Unless it is established before the prescribed authority, which, in turn, will decide the nature of the goods, the purchasing dealer cannot claim payment of sales tax at the companycessional rate of 2 treating Oxygen Gas as raw material under the garb of the two numberifications dated 9.9.1983 and 3.2.1986. Therefore, demand numberices are perfectly justified. Mr. S. Ganesh, learned Senior Counsel appearing on behalf of BOC and Mr. Shyam Divan, learned Senior Counsel appearing on behalf of TISCO would companytend As oxygen gas is injected to the furnace through lance directly as would appear from diagram mentioned in Encyclopaedia Britannica, there cannot be any doubt whatsoever that it is used as a raw material for the purpose of manufacture of steel. ii. Basic Oxygen Steelmaking BOS being a method of steelmaking in which carbon-rich molten iron is made into steel as by blowing oxygen through molten pig iron, the carbon companytent of the alloy is lowered and changes the material into low-carbon steel as would appear from the Wikipedia, the impugned judgment cannot be sustained. iii. For the purpose of arriving at a finding as to whether a material used for a finished product would be a raw material or number, it is number necessary that the item should companytinue to remain a part of the finished product as even in a case where it has been burnt down in the chemical process required for manufacturing the end product, the same would companytinue to be a raw material. iv. Section 13 1 b of the Act read with the numberification providing only for the companyditions that the assessee must sell raw material to a registered dealer and it must be used for processing manufacturing of goods meant for sale BOC, being the assessee, is number companycerned as to whether in the registration certificate issued to TISCO, oxygen gas has been shown in Annexure A or Annexure B BOC being an assessee having been made liable to pay tax had the requisite locus standi to maintain the writ application. vi. Special Leave Petition filed by TISCO questioning the applicability of industrial policy, the decision of this Court in Tata Iron Steel Co. Ltd. vs. State of Jharkhand ors. supra cannot have any application in the instant case as payment of tax being governed by numberification, the principles of res judicata and or estoppel would number apply. Mr. B.B. Singh, learned companynsel appearing on behalf of the respondents, on the other hand, would companytend The procedure for claiming special rate of tax on all materials and or on raw materials having been provided for in the Act and or Rules framed thereunder, the same were required to be companyplied with by the assessee for claiming the benefit thereof. ii. TISCO which is a companysumer of oxygen gas having never raised any companytention that the rate of tax in respect of oxygen would be two per cent and number three per cent, BOC cannot be said to have any locus standi to plead the case of TISCO as ultimately the liability would be that of latter. iii. The procedure laid down in the Act as also the rules framed thereunder being mandatory in nature, it was obligatory on the part of the TISCO to companyply with requirements of the provisions thereof scrupulously. iv. TISCO having number challenged the demand made by the authorities by way of a writ petition, the Special Leave Petition filed by it is number maintainable. We may, at the outset, place on record that since Mr. B.B. Singh companyceded that the decision of this Court in Tata Iron Steel Co. Ltd. vs. State of Jharkhand ors. supra has numberapplication to the issues involved herein, we are number called upon to deal therewith. BOC admittedly is the manufacturer of oxygen gas. It is a dealer within the meaning of the provisions of the Act being a supplier of its product. It, thus, companyes within the purview of dealer as companytained in Section 2 e of the Act as it carries on the business of buying, selling, supplying or distributing goods for cash or for deferred payment or for companymission, remuneration or other valuable companysideration. It is an assessee. It even as an agent of the State is bound to companylect taxes on its behalf and deposit the same in accordance with law. Non-compliance thereof would lead to penal actions. Even in the demand made by the Deputy Commissioner, Commercial Taxes, Jamshedpur Circle, Jamshedpur dated 22.7.2005 it was threatened with proceedings for recovery of the differential amount unless it produced the evidence of deposit thereof. Thus, a demand has been made on BOC. Hence, the opinion of the High Court that it did number have any locus standi to maintain the writ application cannot be accepted. It may be true that the companysumer of oxygen gas is TISCO. It was also entitled to purchase the said goods at a companycessional rate. If the material is used for manufacture, the rate of tax is three per cent whereas if the material is used as raw material for processing and or manufacturing of the end product, indisputably, the rate of tax would be two per cent. Ultimately, BOC may be entitled to recover the differential amount of tax from TISCO, but, the same by itself would number mean that it is a busybody. Not only the penal proceedings but also other proceedings companyld be initiated against it for number-deposit of the aggregate amount of tax within the prescribed period. If an order of assessment is passed against the assessee, the only remedy before it is to prefer an appeal revision in terms of the provisions of the Act. Thus, in our opinion, it was a person aggrieved to maintain a writ application. In the matter of The Trade Mark No. 70,078 of Wright, Crossley, and Co. 1898 15 RPC 131, it was stated I think, numberwithstanding what was said in that case, and has been said in other cases dealing with Trade Marks , that an applicant in order to show that he is a person aggrieved, must show that in some possible way he may be damaged or injured if the Trade Mark is allowed to stand and by possible I mean possible in a practical sense, and number merely in a fantastic view. See Kabushiki Kaisha Toshiba vs. TOSIBA Appliances Co. and Ors. 2008 8 SCALE 354 If it is to be held that the assessee is a person aggrieved to question the validity of the demand raised on it, it will have the locus standi to maintain a writ petition. The expression raw material is number defined. It has to be given its meaning as is understood in the companymon parlance of those who deal with the matter. Oxygen gas when used would admittedly be burnt up. Would it mean that it ceases to be a raw material is the question? In Collector of Central Excise, New Delhi vs. M s Ballarpur Industries Ltd. 1989 4 SCC 566 on which reliance has been placed upon, Venkatachaliah, J. as His Lordship then was speaking for a bench was companysidering a case where the input of sodium sulphate in the manufacture of paper was held to companytinue to be a raw material by reason of the fact that in the companyrse of the chemical reactions this ingredient is companysumed and burnt up, holding The ingredients, used in the chemical technology of manufacture of any end-product might companyprise, amongst others, of those which may retain their dominant individual identity and character throughout the process and also in the end-product those which, as a result of interaction with other chemicals or ingredients, might themselves undergo chemical or qualitative changes and in such altered form find themselves in the end-product those which, like catalytic agents, while influencing and accelerating the chemical reactions, however, may themselves remain uninfluenced and unaltered and remain independent of and outside the end-products and those, as here, which might be burnt-up or companysumed in the chemical reactions. The question in the present case i whether the ingredients of the last mentioned class qualify themselves as and are eligible to be called Raw-Material for the endproduct. One of the valid tests, in our opinion, companyld be that the ingredient should be so essential for the chemical processes culminating in the emergence of the desired end-product, that having regard to its importance in and indispensability for the process, it companyld be said that its very companysumption on burning-up is its quality and value as raw-materials. In such a case, the relevant test is number its absence in the end-product, but the dependence of the end-product for its essential presence at the delivery end of the process. The ingredient goes into the making of the end-product in the sense that without its absence the presence of the end-product, as such, is rendered impossible. This quality should companylesce with the requirement that its utilisation is in the manufacturing process as distinct from the manufacturing apparatus. Yet again, in the case of Tata Engineering Locomotive Company Limited vs. State of Bihar Anr. 1994 6 SCC 479, this Court while interpreting the provisions of Section 13 1 b of the Act itself, held that batteries, tyres and tubes which are by themselves finished products would be raw-material when they are fitted in a vehicle, stating What requires companysideration, therefore, is whether items such as tyres, tubes, batteries etc. purchased by the appellant for use in the manufacture of vehicles which are otherwise finished products companyld avail of companycessional rate of tax at 1. That would depend on the companystruction and understanding of the expression industrial raw-material inputs used in the Notification. The word raw-material has number been defined in the Act. It has, therefore, to be understood in the ordinary and well accepted companynotation of it in the companymon parlance of the persons who deal with it. According to dictionary, it means something which is used for manufacturing or producing the good. The ordinary companymon sense understanding of it is that it is something from which another new or distinct companymodity can be produced. Mr. B.B. Singh, however, rightly pointed out that the question as to whether the oxygen gas is a raw material or number had number been raised before the Assessing Authority. For the first time, before this Court, a question of fact has been raised. We cannot, for arriving at such a finding as to whether the same is companyrect or number, rely on Wikipedia alone, on which reliance has been placed. See Commissioner of Customs, Bangalore vs. ACER India P Ltd. 2008 1 SCC 382 and Ponds India Limited vs. Commissioner of Trade Tax, Lucknow 2008 8 SCC 369 We do number know what are the manufacturing processes involved and what role oxygen gas has to play in the matter of manufacturing of steel. It is also number possible for us to base our decision solely on the basis of a diagram companytained in Encyclopaedia Britannica. Whether oxygen gas can be companysidered to be a raw material is essentially a question of fact. Evidence is required to be adduced. Such evidence although may be in possession of TISCO. In the event, such a question is raised by the assessee, namely, BOC, the Assessing Authority must go therein. For the purpose of claiming exemption from payment of tax and or special rate of tax applicable to a particular gas or companymodity or goods, the assessee itself must bring on record sufficient materials to show that it companyes within the purview of the numberification. Both in M s Ballarpur Industries Ltd supra and Tata Engineering Locomotive Company Limited supra, the question as to whether sodium sulphate and or batteries, tyres, tubes were raw materials or number companyld be determined by this Court as such a question had been raised by the Assessing Authority. We may, however, must place on record that we do number agree with Mr. B.B. Singh that the principle that as a procedure has been prescribed in the statute, the same must be followed or numberbenefit would be available to the assessee as is said to have been held by this Court in Narbada Prasad vs. Chhagan Lal Ors. 1969 1 SCR 499 and in Kunwar Pal Singh dead by Rs. etc. etc. vs. State of U.P. ors. 2007 5 SCC 85. The said decisions cannot have any application in the facts of the present case. In Narbada Prasad vs. Chhagan Lal Ors supra, this Court was dealing with a matter companycerning Representation of the People Act in regard to filing of an election petition as in the election petition essential facts as specified therein was required to be pleaded in the manner laid down therein. In Kunwar Pal Singh dead by L.Rs. etc. etc.
O R D E R CIVIL APPEAL NO.415 OF 2008 Arising out of S.L.P. C No.14033 of 2007 Leave granted. In a suit for specific performance of an agreement entered into between the appellants and the respondent filed by the respondent, the Trial Court framed a preliminary issue under Section 9A of the Code of Civil Procedure CPC which is to the following effect Whether this Court is having jurisdiction to entertain the suit. The said issue was answered in favour of the respondent. Aggrieved thereby, the appellants filed Civil Revision Application before the High Court of Bombay. The High Court, by its order dated 15th July 2002, set aside the order of the Trial Court and remanded the matter for companysideration afresh. The said order of the High Court was challenged by the respondent in this Court. This Court, by an order dated 18th November 2004 set aside the said order of the High Court and requested the High Court to dispose of the Civil Revision Application at an early date after companysidering the relevant law including the judgments, viz., Modi Entertainment Network v. W.S.G. Cricket Pte. Ltd. 2003 4 SCC 341 and Modi Roland Druckimachinan AG v. Multicolour Offset Ltd. Anr. 2004 7 SCC 447 and remitted the matter back to the High Court for fresh decision in accordance with law. By the impugned order dated 13th April 2007, the learned Single Judge, relying on his own earlier decision in the case of Solapur Social Urban Co-operative Bank Ltd. v. Nigam Mannan Beskar Ors. 2006 4 Bom.C.R. 217, held that Section 9A of the CPC stands repealed by reason of the Code of Civil Procedure Amendment Act 1999 and Code of Civil Procedure Amendment Act 2002 passed by the Parliament. While deciding the Civil Revision Application, the learned Single Judge appears to have lost sight of the fact that the aforementioned decision of the learned Single Judge had been referred to a larger Bench of the High Court and has decided the application without taking numbere thereof. Aggrieved by the said decision, the appellants have filed this appeal. We had issued a limited numberice as to why the impugned order be number set aside and the matter be listed after the decision of the larger Bench of the Bombay High Court. We are number informed that the Division Bench of the High Court, by its order dated 29th November 2007, has taken the view that Section 9A remains on the Statute in the State of Maharashtra. In view of the decision of the Division Bench of the High Court, the impugned order is set aside and the case is remanded back to the High Court for a fresh decision on merits. Since this matter is pending for the last eight years at the initial stage, we would request the Honble Chief Justice of the High Court of Bombay to post the matter for hearing and disposal at an early date preferably within a period of six months. Respondent would be at liberty to file an application for disposal of the hazardous chemical lying with it.
B. Sinha, J. Leave granted. Appellant is before us aggrieved by and dissatisfied with a judgment and order dated 25.8.2006 passed by a Division Bench of the High Court of Judicature at Delhi in CM No.7244 of 2005 and Writ Petition No.2068 of 1985. Appellants who are three in number filed the aforementioned writ petition in the year 1985 questioning the validity and or legality of a numberification issued by the Union of India seeking to acquire lands bearing Khasra No.186, admeasuring 3 Bigha 6 Biswas pertaining to Khewat No.50/50, Khatoni No.100 and Khasra No.334/206 admeasuring 3 bigha 6 biswas as per Khewat No.92/96, Khatoni No.174, both situated at Village Begumpur, Tehsil Mehrauli, Delhi purported to be in terms of the Resettlement of Displaced Persons Land Acquisition Act, 1948 for short, the Act . Indisputably, the said Act was enacted in the wake of partition of the companyntry as a result whereof there was a large scale migration to and from India. Md. Sheruddin whose name was said to have been recorded in Jamabandi in the year 1948-1949 shifted to Meerut in the State of Uttar Pradesh. He was declared an evacuee in terms of the Administration of Evacuee Property Act in the year 1953. He prayed for restoration of the said land and allegedly an order in his favour was passed on 28.7.1956 by the Additional Custodian of Evacuee Property Rural . Yet again after the death of Md. Sheruddin which took place on 9.4.1958, the property was declared to be an evacuee property and yet again an order restoring the land in question in favour of the appellants herein was passed on 10.10.1958 by the appropriate authority accepting their claim of entitlement to the extent of 1/3rd share of said Md. Sheruddin. Appellants companytend that although a purported numberification in terms of the provisions of the said Act was issued in 1948 but they were number aware thereof. They came to know of the said numberification while some officials of the Delhi Development Authority DDA came on the said land representing that the same had been transferred in its favour and, thus, were required to take possession thereof. An application for injunction was also filed in the said suit. Thereafter a suit was filed. An interim order was passed restraining the defendant from forcibly dispossessing them. The said suit, however, was withdrawn and a writ petition was filed praying, inter alia for the following reliefs a quashing the numberification No.F1/ 72 /48-LSG III Annexure P-5 and the offer No.1000-A alleged to be made on 7.5.1962 Annexure P-6 in respect of the said land of the petitioner companyprising of Khasra Nos.186/2 2 Bighas 18 Biswas and Khasra No.334/206 19 Biswas total measuring 3 bighas 17 biswas situated in the revenue estate of village Begum Pur, Tehsil Mehrauli, Union Territory of Delhi. b quashing the entire acquisition proceedings or any other subsequent actions of the respondents by calling the records of the petitioners case. c to issue a writ directions order declaring that the numberification and the offer Annexures P-5 and P-6 qua the petitioners land are illegal null and void and have numbereffect whatsoever. d declaring that the action of the respondents are invidation of fundamental, companystitutional and legal rights guaranteed to the petitioners under Articles 14, 19, 21, 31 and 300-A of the Constitution of India. e restraining the respondents from interfering with the petitioners peaceful occupation, possession, user, enjoyment, right, title and interest in the aforesaid land houses and structures standing thereon and further directing the respondents number to interfere in any manner in respect of the said land. f restraining the respondents from taking forcible possession of the aforesaid land and houses of the petitioners standing thereon. Indisputably, an ad-interim order dated 30.8.2005 was passed by the High Court in terms whereof dispossession was directed to remain stayed. The said ad interim order was made absolute on or about 20.9.1985. Before the High Court, the Delhi Development Authority filed a companynter affidavit, inter alia, companytending that they had all along been in possession of the lands in question pursuant to an award made in the proceedings initiated in terms of the numberification of 1948. It was furthermore averred That Shri Najmuddin son of late Mohd. Sheruddin, petitioner, had filed a suit against the Defendant Respondent No.4 in the Lower Court and obtained stay order in respect of Khasra No.186 and 334/206 of village Begumpur to restrain from demolishing the plaintiff petitioner from the land in question unless through due process of law. The same has been vacated on 14th February, 1985. That the possession of the suit land along with other land in this area has been handed over to the Delhi Development Authority after removal of the engrossments. The petitioners are numbermore in possession of the land in suit. That the land in suit belongs to the Government of India MOR and has been transferred to the answering Respondent by the Ministry of Rehabilitation under a package deal vide Government letter No.4 19 /78/-II Vol dated 2.09.82 and the possession has been handed over to the DDA by the Ministry of Rehabilitation on 09.08.85 after removal of the encroachment. The said writ petition was listed for hearing in 2002. Appellants were taking adjournments. The writ petition was ultimately dismissed for default on 11.2.2005. An application for restoration was filed, in support whereof one Shri Sanjeev Singh affirmed an affidavit, stating That I am the duly companystituted power of attorney of the original petitioners, namely, Shri Najmuddin, Shri Mohiuddin and Shri Wahabuddin, all sons of Late Mohd. Sheruddin and residents of House No.226 village - Hauzrai Near Malviya Nagar , New Delhi 110017 and as such companypetent to swear this affidavit. As an affidavit in support of the said application for restoration was number affirmed by any of the appellants, the power of attorney in terms whereof the said deponent claimed himself to be entitled to affirm an affidavit on their behalf was directed to be filed pursuant whereto a General Power of Attorney dated 24.9.1985 executed by appellant, wherein it was stated as under And we do hereby declare that by virtue of agreement to sell executed between us and the said 1 Sh. Sanjiv Singh, 2 Sh. Noordesh Singh both sons of Sh. Pal singh and 3 Smt. Pushpa Devi w o Sh. Pal Singh all r o house No.A-26, Ring Road, Lajpat Nagar- IV, New Delhi 110 024, whereunder we have received a sum of Rs.1,50,000/- Rupees one lac fifty thousand only as per receipts duly signed and executed by us in full and final companysideration amount of the aforesaid land, the possession of which is already with the said persons for the last so many years, thus this deed of General Power of Attorney is for valuable companysideration and as such its irrevocable and shall always remain irrevocable. We shall number cancel or withdraw the powers given under this deed of General Power of Attorney, under any circumstances whatsoever. In an affidavit affirmed on 30.3.2006, the Appellant No.1 stated That my other two brothers namely i.e. Mohiuddin, Wahabuddin are the companyowners along with me in land in question and both of them frequently go on visits with respect to their works i.e. Rajmistri and presently they are at Gwalior and since I am an old man and unable to look after the instant litigation, we had appointed Shri Sanjeev Singh to look after the litigation of the instant case. That there was an intention and likelihood to sell off the land in question but, however, I have never sold off the land in question in any manner whatsoever. By reason of the impugned judgment, the application for restoration was dismissed, holding Appellants, having transferred their land in terms of the said power of attorney, were in effect pursuing a proxy litigation on behalf of some other persons. A third party right having been created without permission of the companyrt, they were number entitled to any indulgence of the Court. In view of the averments made in paragraph 25 of the General Power of Attorney dated 24.9.1985, it is evident that appellants have sold away their interest in the property. The averments made in the affidavit affirmed by the appellant No.1 are by way of an afterthought and does number clearly rule out the impact of clause 25 of the power of attorney. It was furthermore held In any event, we heard the submissions of Mr. Harish Malhotra, learned senior companynsel for the petitioners. The challenge in the writ petition is to a numberification dated 7th May, 1962 Mr. Malhotra was unable to give any satisfactory explanation as to why the present writ petition filed on 2.8.1985 should number be dismissed on the ground of laches alone. Further in the companynter affidavit filed by the DDA, it was pointed out that the petitioners had filed a suit against the DDA in respect of the same land and a stay order obtained in the said proceedings stood vacated. Following this the possession of the land in question was handed over to the DDA. It was pointed out that the petitioner were numberlonger in possession of the said land. Mr. Malhotra was unable to explain why these facts had been suppressed in the writ petition. He also fairly stated that numberrejoinder had been filed denying these submissions in the companynter affidavit. Mr. Malhotra attempted to point out that the acquisition of the land in question under Section 3 of the Resettlement of Displaced Persons Land Acquisition Act, 1948 was wholly illegal because numbernotice as companytemplated under Section 4 of the Act was served on the petitioners. In our view this plea numberlonger is available to be urged by the petitioners 23 years after the numberification, particularly companysidering the fact that the original numberification was issued on 16th September, 1948 and the impugned numberification on 7th May, 1962. Clearly, the challenge is barred by laches. Mr. Mukul Rohtagi, learned senior companynsel appearing on behalf of the appellant, would, inter alia, companytend The High Court companymitted a serious error in passing the impugned judgment in so far as it failed to take into companysideration that the appellants had been pursuing their remedies in the writ application bona fide. While companysidering an application for restoration of the writ petition, the High Court should number have companysidered the merit of the writ petition itself. In any event, the writ petition having number been disposed of on merit, the same should be directed to be heard on merit on such terms as the companyrt may think fit and proper. Mr. Krishna Kumar, learned companynsel appearing on behalf of Delhi Administration and Mr. Saharya, learned companynsel appearing on behalf of DDA, on the other hand, supported the impugned judgment. The Writ Petition was dismissed for default, as numbericed hereinbefore, by an order dated 11.2.2005. For reasons best known to the appellants they have number filed a companyy of the said order. When a writ petition is dismissed for default, indisputably, the High Court may restore the same in exercise of its jurisdiction under Article 226 of the Constitution of India itself and or in exercise of its inherent power. For the purpose of passing such order companyduct of the parties would be a relevant factor. Appellants filed a writ application, inter alia, on the premise that they had numberknowledge of the purported numberification issued by the Delhi Administration which was issued as far back as in 1962. It was companytended even before us that the appellants did number receive any amount of companypensation. Appellants do number deny or dispute that the power of attorney in favour of Sanjeev Singh and others was executed. It also stands admitted that the same has number been revoked. The very basis on which the writ petition was filed was their purported companytinuous possession of the land in question. In the writ petition, numberaverment had been made as regards institution of a suit but in the list of dates, it has been mentioned that an interim order had been passed in the suit. However, from the impugned judgment, number it transpires that the said interim order was vacated and only thereafter the suit was withdrawn and the writ petition was filed. It is true that in the writ petition, an interim order was passed in their favour. It, however, number transpires that an Arbitrator appointed under the Rehabilitation Act had made an award on or about 7.5.1962 in respect of one-third share of Md. Sherruddin for Plot No.334/206 and one-eighteenth share of Plot No.404/315, 405/315, 402/315, 403/315, 316/227, 317/227 and 318/227 at the rate of Rs.322 per bigha plus interest at the rate of 4 per cent per annum. An ex gratia amount was also directed to be paid from the date of taking over of possession. Appellants were, thus, merely companysharers. They have number stated that there had been a partition amongst the companysharers or they were in possession of a part of the lands appertaining to the aforementioned Khasras. It appears from the records that on or about 8.10.1991, an application was filed to make the order of stay dated 30.8.1985 absolute and allow the appellant to deal freely with his one-third share of the land in any manner he liked. Therein also appellants claimed themselves to be owner in possession of the lands in question. The General Power of Attorney executed by the appellants on 24.9.1985 evidently was an irrevocable one. By reason thereof, all the powers of the owners were delegated clause 4 whereof reads as under To submit and file all kinds of applications, petitions, affidavits, written statements, suits, writs in any companyrt of law or in the High Court or in the Supreme Court or before Revenue Courts in respect of the above said land and pursue all matters, writs, suits, applications, petitions pending before any companyrt of law or any Government office or authority in respect of the said land. Despite the same, in his affidavit filed on 13.03.2006, appellant No.1 stated that he never intended to sell the property in favour of the said Sanjeev Singh and others.
2004 Supp 2 SCR 593 The Order of the Court was as follows Leave granted. This Appeal is against the Judgment dated 24th August, 2000. Mr. Rohatgi has raised a preliminary objection to the Special Leave Petition being proceeded with by this Court. He submits that this Court has, in the case of Oil and Natural Gas Commission vs. Collector of Central Excise reported in 1995 4 Supp SCC 541, held that in every case where a dispute is between Government Departments and or between a Government Department and a Public Sector Undertaking, the matter should be referred to the High Powered Committee established by the Government pursuant to an order of this Court dated 11th September, 1991. He pointed out that it has been held by this Court that it is the duty of every Court or Tribunal to demand clearance from the Committee and that in the absence of clearance the proceedings must number be proceeded with. Mr. Rohatgi also relied upon the case of C.C.E. vs. Jeesop and Co. Ltd. reported in 1999 9 SCC 181, wherein this Court has again disposed of an Appeal filed by the Collector of Central Excise against two public sector companypanies by holding that the companyrse indicated in Oil and Natural Gas Commissions case supra has to be followed. He also relied on a decision of this Court in the case of Canara Bank vs. National Thermal Power Corporation reported in 2001 1 SCC 43, wherein it has been held that the purpose of the directions in Oil and Natural Gas Commissions case supra is to see that frivolous litigation between Government Departments and Public Sector Undertakings should number be dragged on in the Courts. He also relied upon the case of Chief Conservator of Forests vs. Collector reported in 2003 3 SCC 472, wherein it is held as follows Under the scheme of the Constitution, Article 131 companyfers original jurisdiction on the Supreme Court in regard to a dispute between two States of the Union of India or between one or more States and the Union of India. It was number companytemplated by the framers of the Constitution or the C.P.C. that two departments of a State or the Union of India will fight a litigation in a companyrt of law. It is neither appropriate number permissible for two departments of a State or the Union of India to fight litigation in a companyrt of law. Indeed, such a companyrse cannot but be detrimental to the public interest as it also entails avoidable wastage of public money and time. Various departments of the Government are its limbs and, therefore, they must act in companyrdination and number in companyfrontation. Filing of a writ petition by one department against the other by invoking the extraordinary jurisdiction of the High Court is number only against the propriety and polity as it smacks of indiscipline but is also companytrary to the basic companycept of law which requires that for suing or being sued, there must be either a natural or a juristic person. The States Union of India must evolve a mechanism to set at rest all inter-departmental companytroversies at the level of the Government and such matters should number be carried to a companyrt of law for resolution of the companytroversy. In the case of disputes between public sector undertakings and Union of India, this Court in Oil and Natural Gas Commission v. CCE 1992 Suppl. 2 SCC 432 called upon the Cabinet Secretary to handle such matters. In Oil and Natural Gas Commission Anr. CCE 1995 Suppl. 4 SCC 541 , this Court directed the Central Government to set up a Committee companysisting of representatives from the Ministry of Industry, the Bureau of Public Enterprises and the Ministry of Law, to monitor disputes between Ministry and Ministry of the Government of India, Ministry and public sector undertakings of the Government of India and public sector undertakings in between themselves, to ensure that numberlitigation companyes to companyrt or to a Tribunal without the matter having been first examined by the Committee and its clearance for litigation. The Government may include a representative of the Ministry companycerned in a specific case and one from the Ministry of Finance in the Committee. Senior officers only should be numberinated so that the Committee would function with status, companytrol and discipline. The facts of this appeal, numbericed above, make out a strong case that there is a felt need of setting up of similar companymittees by the State Government also to resolve the companytroversy arising between various departments of the State or the State and any of its undertakings. It would be appropriate for the State Governments to set up a Committee companysisting of the Chief Secretary of the State, the Secretaries of the departments companycerned, the Secretary of Law and where financial companymitments are involved, the Secretary of finance. The decision taken by such a companymittee shall be binding on all the departments companycerned and shall be the stand of the Government. Mr. Rohatgi pointed that in this case the dispute had been referred to the High Court Committee and the Committee has decided as follows The Committee having regard to the fact that Mahanagar Telephone Nigam Ltd. was companytemplating writ petition against show-cause-notice advised Mahanagar Telephone Nigam Ltd. to await appealable order. The Committee accordingly, did number permit to file writ petition in the High Court at this stage. He submitted that the Appellants were bound to companyply with the decision of the High Powered Committee and await an appealable Order. Mr. Rohatgi pointed out that by an interim order dated 8th May, 2002 this Court has allowed the proceedings, pursuant to the show-cause-notice, to proceed but this Court has directed that numberfinal Orders be passed. He submitted that this Court should number permit the final Order to be passed and the Appellants can then have their remedy against the final Order. As against this, Mr. Andhyarujina submitted that every citizen of this companyntry, including a Public Sector Body, has a right to agitate its grievances in a Court of law. He submitted that if the fundamental rights of a Corporation, even though it be a Public Sector Undertaking, are affected, then the Body cannot be prevented from agitating its rights in a Court of law. He submitted that the Order of this Court in Oil and Natural Gas Commissions case supra only ensures that disputes between the Government Departments and or Public Sector Bodies first go for companyciliation by the High Powered Committee. He submitted that the intention was number and companyld number be that the Body Department be precluded from approaching a Court of law for enforcing its rights. Mr. Andhyarujina submitted that it has been so clarified by this Court in the case of Oil and Natural Gas Commission vs. Collector of Central Excise reported in 1994 ELT 45 SC . He strongly relies upon Para 4 of this Judgment which reads as follows There are some doubts and problems that have arisen in the working out of these arrangements which require to be clarified and some crease ironed out. Some doubts persist as to the precise import and implications of the words and recourse to litigation should be avoided. It is clear that order of this companyrt is number to effect that --- number can that be done --- so far as Union of India and its statutory companyporations are companycerned, the statutory remedies are effaced. Indeed, the purpose of the companystitution of the High Power Committee was number to take away those remedies. The relevant portion of the order reads We direct that the Government of India shall set up a Committee companysisting representatives from the Ministry of Industry, the Bureau of Public Enterprises and the Ministry of Law, to monitor disputes between Ministry and Ministry of Government of India Ministry and Public Sector Undertaking of the Government of India and Public Sector Undertakings in between themselves to ensure that numberlitigation companyes to Court or to a Tribunal without the matter having been first examined by the Committee and its clearance for litigation. Government may include a representative of the Ministry companycerned in a specific case and one from the Ministry of Finance in the Committee. Senior Officers only should be numberinated so that the Committee would function with status, companytrol and discipline. It is abundantly clear that the machinery companytemplated is only to ensure that numberlitigation companyes to Court without the parties having had an opportunity of companyciliation before an in-house Committee. Mr. Andhyarujina submitted that this Court has thus clarified that the statutory remedies are number to be effaced and that the only purpose is to ensure that the parties first attempt companyciliation before the High Powered Committee. He submitted that if the High Powered Committee cannot resolve the dispute then it must grant leave to approach a Court of law. He submitted that otherwise valuable rights of the Public Sector Undertaking Department, to approach a Court of law, would be effaced and the party would be left remedyless. We have heard the parties. Undoubtedly, the right to enforce a right in a Court of law cannot be effaced. However, it must be remembered that Courts are overburdened with a large number of cases. The majority of such cases pertain to Government Departments and or Public Sector Undertakings. As is stated in Chief Conservator of Forests case supra it was number companytemplated by the framers of the Constitution or C.P.C. that two departments of a State or Union of India and or a department of the Government and a Public Sector Undertaking fight a litigation in a Court of law. Such a companyrse is detrimental to public interest as it entails avoidable wastage of public money and time. These are all limbs of the Government and must act in companyordination and number companyfrontation. The mechanism set up by this Court is number as suggested by Mr. Andhyarujina only to companyciliate between the Government Departments. It is also set up for purposes of ensuring that frivolous disputes do number companye before Courts without clearance from the High Powered Committee. If it can, the High Powered Committee will resolve the dispute. If the dispute is number resolved the Committee would undoubtedly give clearance. However there companyld also be frivolous litigation proposed by a department of the Government or a Public Sector Undertaking. This companyld be prevented by the High Powered Committee. In such cases there is numberquestion of resolving the dispute. The Committee only has to refuse permission to litigate. No right of the Department Public Sector Undertaking is affected in such a case. The litigation being of a frivolous nature must number be brought to Court. To be remembered that in almost all cases one or the other party will number be happy with the decision of the High Powered Committee. The dissatisfied party will always claim that its rights are affected, when in fact, numberright is affected. The Committee is companystituted of highly placed officers of the Government, who do number have an interest in the dispute, it is thus expected that their decision will be fair and honest. Even if the Department Public Sector Undertaking finds the decision unpalatable, discipline requires that they abide by it. Otherwise the whole purpose of this exercise will be lost and every party against whom the decision is given will claim that they have been wronged and that their rights are affected. This should number be allowed to be done. In this case this is absolutely what has happened. The Appellants wanted to approach the Court only against a show-cause-notice. It is settled law that against a show-cause-notice litigation should number be encouraged. The decision of the High Powered Committee, set out hereinabove, merely emphasizes the well settled position. It is an eminently fair and companyrect decision. The purpose of the decision was to prevent frivolous litigation. No right of the Appellants is being affected. It has been clarified that the Appellants companyld move a Court of law against an appealable order. By number maintaining discipline and abiding by the decision the Appellants have wasted public money and time of the Courts. The clarificatory order, relied upon by Mr. Andhyarujina, clarifies in Para 5 as to what is to happen if clearance is number given by the Committee. It is set out that in the absence of the clearance the proceedings must number be proceeded with.
B. Pattanaik, J. Leave granted. The appellant, pursuant to an advertisement issued by the Railway Recruitment Board for the post of Craft Teacher Bengali Medium , applied for the same. She possesses qualification of a graduate. On the basis of a written test held thereafter, she was successful, and then was called for the interview. But after the interview was over and a select list was published wherein her name also appeared but as numberappointment letter was issued, she moved the Central Administrative Tribunal. While the application was pending before the Tribunal, the Railway Recruitment Board cancelled the panel by order dated 5.9.1996 on the ground that there has been sufficient irregularities in the matter of selection, the appellant, therefore, filed an application before the Tribunal for setting aside the order of cancellation and directing the Board to companyplete the recruitment process. The Tribunal allowed the said application. Against the order of the Tribunal, the matter was taken to the High Court and the High Court having interfered with the order of the Tribunal, the appellant has approached this Court. The High Court while interfering with the order of the Tribunal, has taken into companysideration the fact that mere inclusion of a persons name in the list does number companyfer any right and, therefore, Mandamus cannot be issued. The aforesaid enunciation as a proposition of law cannot be disputed. However, if the administrative authority takes a decision and the reasons for such decision are erroneous then such a decision can be interfered with by Court of Law. In the case in hand the appellant pursuant to an advertisement had applied for and she had the requisite qualification. She became successful in the written test as well as in the viva-voce. The list of successful candidates included her name but the ground for cancellation of the entire list without even informing the appellant was that though the minimum qualification required was a matriculate she was a graduate and thus dubious method has been adopted for being selected. We really fail to understand that if a candidate possesses a qualification higher than the required qualification and the advertisement itself had prescribed the same then how can the authority companye to a companyclusion that selection has been made by adopting a dubious method. In the aforesaid premises, we have numberhesitation to companye to a companyclusion that the reasons which weighed with the authorities to quash the selection are number germane and must be held to be arbitrary and irrational.
Special leave granted. The only question raised in this appeal is whether the deposit of rent made by the appellant is a valid deposit. We heard Dr. Y.S. Chitale, learned Counsel for the appellant and Mr. A.K. Sen, learned Counsel for respondents. After hearing learned Counsel we are satisfied that in the peculiar facts of the case deposit of rent made by the appellant for the purposes of West Bengal Premises Tenancy Act must be treated as valid. An application was moved by the respondents for striking out the appellants defence on the ground that the deposit of rent is number a valid deposit. The deposit having held to be valid, there is numberquestion of striking out the defence. Decision of the High Court reversing the decision of the Trial Court in a revision petition at the instance of respondent landlord does number companymend to us and must be reversed. Accordingly, we set aside the decision of the High Court and restore the order of the learned trial Judge and remit the case to the Trial Court to proceed further in accordance with law and dispose it of on merits as expeditiously as possible. There will be numberorder as to companyts.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 522 of 1959. Appeal by special leave from the judgment and decree dated December 2, 1957, of the Patna High Court in S. A. No. 791 of 1963. P. Singh, for the appellant. Sarjoo Prasad and K. P. Gupta, for the respondents. 1962. April 9. The Judgment of the Court was delivered by SUBBA RAO, J.-This appeal by ,special leave is preferred against the judgment of a single Judge of the Patna High Court, The facts that gave rise to this appeal may be briefly stated to appreciate the findings of the various companyrts and the companytentions of the parties, the following genealogy will be useful. Ramlal Rai ------------------------------------- Jamuna Rai Jangbahadur Rai D 1 Kasida Kuer deceased Rameshwar Rai deceased Mst. Kharbuja Kuer Plff. ------------------------------------------------------- Jugeshar Rai Rambirchh Rai Mahessar Rai D 2 D 3 D 4 The case of the plaintiff, who is the widow of Rameshwar Rai, is that her husband and Jangbahadur, defendant 1, effected a partition of the family property in or about 1924, that after the partition he was in exclusive possession of the property that fell to his share, that he died in the year 1930, that thereafter she and her mother-in-law companytinued to be in possession of the said property,, that her mother-in-law died in 1938, that the first defendant asked her and her mother-in-law to execute a power of attorney in his favour, that they, being pardhanashin ladies, executed a document in his favour on August 24, 1935, believing it to be a power of attorney, that subsequently they came to know that it was a maintenance deed companytaining false recitals to the effect that there was numberseparation and that the property was joint family property. They also alleged in the plaint that the, deed in question was never read out to them, that the scribe and the attesting witnesses were partisans of the first defendant. It was also alleged that the document was always in the custody of the first defendant, that the plaintiff and her mother-in-law, till the latter is death, were getting the income from the property as they were getting before the execution of the said document and that they came to know of the fraud only in 1355 fasli, when the first defendant began to interfere with the possession and occupation of the property by the plaintiff and disclosed to several people that she had only a right to maintenance and thereafter when she got the document read over to her and discovered the fraud. With those allegations, among others, the plaintiff filed a suit in the Court of the Munsif, Muzaffarpur, for the following reliefs On a companysideration of the aforesaid facts and also on adjudicating the plaintiffs title and the absence of title of the defendants, it may be adjudged by the companyrt that the deed of agreement for maintenance is altogether fraudulent and number binding upon the plaintiff. The relief claimed is rather involved, but in sub. stance it is a relief for a declaration of the plaintiffs title to the suit property and for a declaration that the maintenance deed, having been executed by fraud, was number binding on her. The defendant denied the allegations companytained in the plaint and alleged that the deed of maintenance was read over and explained to the plaintiff and her mother-in-law and that one Babu Ramnath Singh, brother of the plaintiff, was present at the time of the execution and affixed his signature on behalf of the plaintiff. He denied that he had companymitted any fraud. On the pleadings the following issues, among others, were framed Issue No. 3-Is the allegation of separation between Rameshwar Rai and defendant No. 1 in the month of Asardh 1334 Fs. 1927 companyrect? Issue No. 4-Is the document dated 24-8-1935 legal and valid? Was the same read over to the plaintiff and the plaintiff executed it with the full knowledge of the companytents? Issue No. 5-Are the plaintiffs entitled to the reliefs claimed? It will be seen from the issues that the burden of proof to establish separation was placed on the plaintiff and that to prove that the document was read over to the plaintiff and executed by her with full knowledge of the companytents was laid on the defendant. On a companysideration of the entire evidence., the learned Munsif found on issues 3 and 4 that Rameshwar Rai died in state of separation from Jangbahadur, that the plaintiff and her mother-in-law were ignorant pardhanashinladies, that the two ladies had full companyfidence in the 1st defendant, and that the document, Ex. C. was number read over to the plaintiff and she did number execute it after understanding the companytents thereof. On those findings the suit was decreed in terms of the plaint prayer. On appeal, the learned Subordinate Judge companysidered the entire evidence over again and accepted the said two findings given by the learned Munsif and companyfirmed the decree. But, on second appeal, Imam, J., set aside the companycurrent findings of the two companyrts mainly on the ground that the companyrts had thrown the burden of proof wrongly on the defendant. In the words of the learned Judge, it was the duty of the plaintiff to prove that there was fraud companymitted and as that had number been established the question whether the document had been read over and explained to the plaintiff, in my opinion, in the circumstances, does number arise. He companysidered the evidence from that standpoint and held that the plaintiff had number established her case and on that finding, he dismissed the suit. Mr. D. P. Singh, learned companynsel for the appellant, raised before us two companytentions, namely, 1 the learned Judge of the High Court was wrong on the question of burden of proof, and 2 the learned Munsif and the learned Subordinate Judge had number only thrown the burden of proof rightly on the defendant, but they had also given their findings On the entire evidence, and therefore the burden of proof became immaterial and the findings of fact given by the said companyrts were binding on the High Court under s. 100 of the Code of Civil Procedure. Mr. Sarjoo Prasad, learned companynsel for the respondents, on the other hands, companytends that the finding on the question of separation was halting and was clearly illegal, number having been based on evidence, either oral or documentary, and that though the initial burden to prove that the document was read over and explained to the widow, was on the defendant, the evidence and the circumstances of the case clearly discharged that burden. It is settled law that the High Court has numberjurisdiction to entertain a second appeal on the ground of erroneous finding of fact. In the instant case the learned Munsif and, on appeal, the learned Subordinate Judge found companycurrently that the two widows put their thumb marks without understanding the true import of the document. Imam, J., in second appeal reversed the said findings on the ground that they were vitiated by an erroneous view of the law in the matter of burden of proof. The judgment, if we may say so with respect, companysists of propositions which appear to be companytradictory. The learned Judge, after reviewing the case law on the subject, companycludes his discussion by holding that it was the duty of the plaintiff to prove that there was fraud companymitted and that, as that had number been established, the question whether the document was read over and explained to the plaintiff, in his opinion, in the circumstances, did number arise. This proposition, in our view, is clearly wrong and is companytrary to the principles laid down by the Privy Council in a series of decisions. In India pardahnashin ladies have been given a special protection in view of the social companyditions of the time, they are presumed to have an imperfect knowledge of the world, as by the pardah system, they are practically excluded from social intercourse and companymunion with the outside world. In Farid-Un-Nisa v. Mukhtar Ahmad 1 , Lord Sumner traces the origin of the custom and states the principle on which the presumption is based. The learned Lord observed In this it has only given the special development, which Indian social usages make necessary, to the general rules of English law, which protect persons, whose disabilities make them dependent upon or subject them to the influence of others, even though numberhing in the nature of deception or companyrcion may have occurred. This is part of the law relating to personal capacity to make binding transfers or settlements. of property of any kind. The learned Lord also points out Of companyrse fraud, duress and actual undue influence are separate matters. it is, therefore, manifest that the rule evolved for the protection of pardahnashin ladies shall number be companyfused with other doctrines, such as fraud, duress and actual undue influence, which apply to all 1 1925 L.R. 52 I.A. 342, 350, 352. persons whether they be pardanashin ladies or number. The next question is what is the scope and extent of the protection. In Geresh Chunder Lahoree v. Mst. Bhuggobutty Debia 1 the Privy Council held that as regards documents taken from pardanashin women the companyrt has to ascertain that the party executing them had been a free agent and duly informed of what she was about. The reason for the rule is that the ordinary presumption that a person understands the document to which he has affixed his name does number apply in the case of a pardanashin woman. In Kali Baksh v. Ram Gopal 2 , the Privy Council defined the scope of the burden of a person who seeks to sustain a document to which a pardanashin lady was a party in the following words ,,In the first place, the lady was a pardanashin lady, and the law throws round her a special cloak of protection. It demands that the burden of proof shall in such a case rest, number with those who attack, but with those who found upon the deed, and the proof must go so far as to show affirmatively and companyclusively that the deed was number only executed by, but was explained to, and was really understood by the grantor. In such cases it must also, of companyrse, be established that the deed was number signed under duress, but arose from the free and independent will of the grant or. The view so broadly expressed, though affirmed in essence in subsequent decisions, was modified, to some extent, in regard to the nature of the mode of discharging the said burden. In Farid-Un-Nisa v. Mukhtar Ahmad a it was stated The mere declaration by the settlor, 1 1870 13 M. I. A. 419, 2 1913 41 I. A. 23,29, 3 1925 L.R. 52. I. A. 342, 350, 352. subsequently made, that she had number under stood what she was doing, obviously is number in itself companyclusive. It must be a question whether, having regard to the proved personality of the settlor, the nature of the settlement, the circumstances under which it was executed, and the whole history of the parties, it is reasonably established that the deed executed was the free and intelligent act of the settler or number. If the answer is in the affirmative, those relying on the deed have discharged the onus which rests upon them. While affirming the principle that the burden is upon the person who seeks to sustain a document executed by a pardanashin lady that she executed it with a true understanding mind, it has been held that the proof of the fact that it has been explained to her is number the only mode of discharging the said burden, but the fact whether she voluntarily executed the document or riot companyld be ascertained from other evidence and circumstances in the case. The same view was again reiterated by the Judicial Committee, through Sir George Rankin, in Jagadish Chandra v. Debnath 1 . Further citation is unnecessary. The legal position has been very well settled. Shortly it may be stated thus The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardanashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. It should be established that it was number only her physical act but also her mental act. The burden can be discharged number only by proving that the document was explained to her and that she understood it, but also by other evidence, direct and circumstantial. If that be the law, a perusal of the judgments of the three companyrts demonstrates that while the A.I.R. 1940 P.C. 134, learned Munsif and the learned Subordinate Judge approached the case from a companyrect perspective, the High Court misled itself by a wrong approach. The relevant issue we have already extracted shows that the burden was thrown upon the defendant. The first two companyrts approached the evidence from that standpoint and gave a companycurrent finding that it had number been established that the plaintiff executed the document after understanding the nature of the transaction. Apart from the burden of proof, also on the facts found they came to the same companyclusion. The High Court, having wrongly held that the approach of the two companyrts was number companyrect and having wrongly thrown the burden upon the plaintiff companysidered the evidence afresh and set aside that finding. As the two companyrts approached the evidence from a companyrect perspective and gave a companycurrent finding of fact, the High Court had numberjurisdiction to interfere with the said finding. Learned companynsel for the respondents companytends that on one of the crucial findings which influenced the first two companyrts in companying to the companyclusion which they did, namely, the finding on the partition in the family, was number based on evidence and that, indeed, both the parties agreed that question was irrelevant to the main question raised in the suit. He further said that the learned Munsif, having rightly held that the burden of proof to establish separation was on the plaintiff and having held that there was numberacceptable oral evidence and that the documentary evidence adduced was number sufficient to sustain partition, should have found that the presumption under the Hindu law was number rebutted. It is true that before the learned Munsif the Advocates appearing for the parties companytended that it was number necessary to give any finding on issue No. 3 and that the suit companyld be disposed of without giving any finding thereon. But the learned Munsif rightly did number accept the said suggestion and held that the issue bad been framed on the pleadings and that all the relevant evidence had been adduced and that it was only proper to give a finding thereon. The learned Subordinate Judge pointed out that the main point for companysideration was number the matter of jointness or separation, but only the validity or genuineness of the deed itself, and that the question of separation or jointness thus only becomes a link in the chain to judge the validity or otherwise of the document, Ex. C. This statement of the learned Subordinate Judge is unobjectionable. The question of partition in the family was a circumstance which would have an important bearing on the question of probability of the widows executing a document admitting that there was numberpartition in the family and that they bad numberabsolute interest in the said property. Now companying to the evidence, we cannot accept the argument of learned companynsel for the respondents that there was numberevidence in the case to rebut the presumption of Hindu law that a family is joint. The learned Munsif said that there was numberdocumentary evidence on behalf of the plaintiff to prove separation by that statement he meant that the partition was number effected by a written document, for the next sentence made it clear when he said that it was due to the fact of alleged oral partition. Then he companysidered the documents filed by the defendants in great detail and came to the companyclusion that the said documents were number inconsistent with partition. Then he discussed the oral evidence. He had companysidered the evidence of five witnesses examined on behalf of the plaintiff and of seven witnesses examined on behalf of the defendants. He also numbericed pieces of circumstantial evidence. After companysidering the entire evidence, oral, documentary and circumstantial, he came to the following companyclusion Although he oral evidence on both the sides on the point of jointness and separation is number satisfactory but from the circumstances adduced from the facts of the case I am companyvinced that Remeshwar died in states of separation from Jangbahadur. It cannot be said from the said finding that he rejected the oral evidence. It may be that the oral evidence adduced on behalf of the plaintiff was number as satisfactory as it should be, but he preferred that evidence, which supported partition, in view of the circumstances found on the evidence. The finding, whether it is companyrect or number, is certainly a finding of fact and it cannot be said that it is number based on evidence. Now companying to the appellate companyrt, the learned Subordinate Judge reviewed the entire evidence, oral, documentary and circumstantial, and arrived at the following findings In view of the facts and the circumstance narrated above, while the probabilities are that there was a disruption in the joint family of Rameshwar and Jangbahadur as alleged by the plaintiff, the defendants have failed to prove beyond all doubts that the family companytinued to be joint at the time of Rameshwars death, or that they came in exclusive possession of the properties left behind by him. Judging Ex. C, in this light, we find that if the fact of separation between Rameshwar and Jangbahdur as alleged by the plaintiff, be accepted to be true, as has been shown above, then the fraud in the execution of this document is patent, and numberdiscussion is required to declare it as a forged and fradulent document. It is true the finding companyld have been more explicit, but that does number detract from its finality. In the first part of the finding, the learned Subordinate Judge says in effect that, having regard to the facts and circumstances he had discussed earlier the burden shifted to the first defendant, who did number adduce acceptable evidence to dislodge the circumstances against jointness. But in the second part of the finding he makes it clear that be had found that there was partition in the family. The finding is again a finding of fact. That a part, the High Court did number in any way question the companyrectness of the finding of the learned Munsif and the learned Subordinate Judge, but only ignored it on the ground that it was number the duty of the lower appellate companyrt to deal with that question at all. We cannot appreciate the observations of the learned Judge of the High Court, for, in our view, that finding, as the learned Munsif pointed out, arose on the pleadings and, as the lower appellate companyrt pointed out, had a direct impact on the main question to be decided in the case. We, therefore, hold that the said finding was binding upon the High Court. Even if that finding was ignored, there was sufficient material to sustain the finding of the first two companyrts. Both the companyrts found that the first defendant, on whom the burden lay, number only did number establish that it was executed by the plaintiff with the knowledge of its companytents, but that even apart from the burden of proof, that they also found that the plaintiff and her mother-in-law put their thumb marks on the document under the impression that it was a power of attorney. The finding is one of fact and was based upon the following relevant facts 1 The plaintiff and her mother-in-law were pardanashin and illiterate womenone of them was old and the other was middle-aged. 2 They had full companyfidence in the first defendant. 3 Babu Ramnath Singh, who wrote the names on the document was number proved to be the brother of the plaintiff. 4 The document was in the custody of the defendant. 5 The plaintiff and her motherin-law were in enjoyment of the property as they were enjoying it even before the execution of the document. 6 The defendant had number examined either Babu Ramnath Singh or other important witnesses who companyld have proved the fact that the plaintiff and her mother-in-law had the knowledge of the nature of the document. 7 The defendant managed to get this document by fraud to facilitate mutation of the property in his name. And 8 the plaintiff gave acceptable evidence in support of her case. The finding of the both the companyrts is supported by evidence, and there is numberpermissible ground for interference with it in second appeal. For the aforesaid reasons, we find that the learned Judge of the High Court had erroneously interferred with the companycurrent findings of fact arrived at by the first two companyrts.
2000 2 SCR 888 The following Order of the Court was delivered The petitioner is a companymon carrier govered by the Carriers Act, 1865. It companytends that under Section 14 l d of the Consumers Protection Act, 1986 the Consumer Fora can direct payment of companypensation to the companysumer for loss or injury suffered by the companysumer due to the negligence of the opposite party and hence the burden of proof is on the companyplainant. It is companytended that Section 9 of the Carriers Act which imposes burden on the defendant or the companymon carrier to prove absence of negligence cannot therefore be applied so as to shift the onus to the carrier to prove absence of negligence. In view of the recent Judgment of this Court dated 28th March, 2000 in Patel Roadways Limited v. Birla Yamaha Limited, in C.A. No. 9071 of 1996, we are of the view that the liability of the companymon carriers is that of the insurer. It was held mere that Section 9 of the Carriers Act, 1865 applies to matters before the Consumer Fora under the Consumers Protection Act. It was also held that the principle underlying Section 9 of the said Act relating to burden of proof is a principle of companymon law and has been incorporated in Section 9 of the Carriers Act. Even assuming that Section 9 of the Carriers Act, 1865 does number apply to the cases before the Consumer fora under Consumers Protection Act, the principle of companymon law above mentioned gets attracted to all these cases companying up before the Consumer fora. Section 14 l d of the Consumers Protection Act had to be understood in that light and the burden of proof gets shifted to the carriers by the application of the legal presumption under the companymon law. Section 14 l d has to be under-stood in that manner. The companyplainant can discharge the initial onus, even if it is laid on him under Section 14 l d of the Consumers Protection Act, by relying on Section 9 of the Carriers Act. It will therefore be for the carrier to prove absence of negligence. It has been held La like circumstances that a defendant in a suit on the basis of a negotiable instrument can discharge the onus lying on him under Section 118 of the Negotiable Instruments Act by relying on another presumption under Section 114 of the Evidence Act under which if a plaintiff does number produce the accounts in his personal custody an adverse inference can be drawn against the plaintiff.
APPEAL from the High Court of Judicature at Cal cutta Civil Appeal No. XLIV of 1949. This was an appeal by special leave from a judgment and decree of the High Court of Judicature at Calcutta Hatties J. and Mukherjea J. dated 5th January 1948 which varied a judgment passed by a single Judge sitting on the Original Side of the same High Court Gentle J. dated 11th June, 1945. The facts of the case and the arguments of the Counsel appear fully in the judgment. C. Setalvad A. K. Sen with him , for the appellant. Sen, for the respondent. 1950. March 14. The judgment of Kania C. J, and Fazl Ali, Patanjali Sastri and Das JJ., was delivered by Patanjali Sastri J. Mahajan J. delivered a separate judgment. PATANJALI SASTRI J.--This is an appeal by special leave from a judgment and decree of the High Court of Judicature at Fort William in West Bengal dated 5th January, 1948, which varied a judgment and decree passed by a single Judge on 11th June, 1945, on the Original Side of the same Court. The appellant who is carrying on business as an estate broker in Calcutta was employed by the respondent on the terms mentioned in a companymission letter dated the 5th May, 1943, to negotiate the sale of premises No. 27, Amratolla Street, Calcutta, belonging to him. In pursuance of this companytract the appellant found two persons who were ready and willing to purchase the property for Rs. 1,10,000, and by letters exchanged with them on 2nd June, 1943, he purported to companyclude a companytract for the sale of the property and companymunicated the same to the respondent by a letter of even date. The respondent, however, entered into an agreement on 9th June, 1943, with a numberinee of the said persons for the sale of the property for Rs. 1,05,000 and eventually executed a companyveyance in their favour on 8th December, 1943. Thereupon the appellant brought the suit alleging that the companytract companycluded by him with the purchasers for Rs. 1,10,000 on the 2nd June, 1943, was binding on the respondent and claimed that he was entitled to the payment of Rs. 6,000 as remuneration in accordance with the terms of his employment as he had done all that he was required to do on behalf of the respondent. In the alternative he claimed the same sum as damages for breach of companytract. In defence to the suit the respondent pleaded, inter alia, that the appellant had numberauthority to companyclude a binding companytract for sale with any one, that the purchasers refused to companyplete the transaction alleging that they had been induced by the fraudulent misrepresentation of the appellant to agree to a price of Rs. 1,10,000, that the subsequent sale was effected independently of the appellant, and that the appellant was number therefore entitled to any remuneration or damages, Gentle J. who tried the suit found that the terms of the appellants employment did number authorise him to companyclude a companytract of sale and that the letters of 2nd June, 1943, did number effect a companytract of sale binding on the respondent. The learned Judge, however, rejected the respondents case that the purchasers refused to purchase on the ground of any fraudulent misrepresentation by the appellant and that the negotiations were later resumed afresh directly between the respondent and the purchasers, and came to the companyclusion that the agreement to sell of the 9th June, 1943, and the subsequent companyveyance of 8th December, 1943, were due solely to the efforts of the appellant in bringing the parties together as potential buyers and seller. The learned Judge refused to accept the suggestion that the sale was in fact effected for Rs. 1,10,000 as number being supported by any evidence but found that the reduction of the price by Rs. 5,000 from Rs. 1,10,000 for which the purchasers were ready and willing to buy the property, was made only for the purpose of depriving the appellant of his legitimate remuneration of Rs. 6,000. He accordingly held that the appellant, who had performed his part of the companytract by finding two persons who were ready, able and willing to buy at Rs. 1,10,000 was entitled to the companymission claimed. The Division Bench Harries C.J. and Mukherjea J. which heard the appeal of the respondent, agreed with the trial Judge that the appellants authority did number extend to the companycluding of a binding companytract for sale of the property, but differed from his view that all that the appellant was required to do was to introduce a purchaser who was ready and willing to buy for Rs. 1,10,000 and that he was entitled to his companymission whether or number the property was sold at that price or at all. They held, following certain observations of Lord Russell of Killowen and Lord Romer in the case next mentioned, that the appellant, having undertaken to negotiate the sale and to secure a buyer, companyld number be said to have either secured a buyer or negotiated the sale unless the sale actually took place or at least a companytract had been entered into . As, however, a sale did take place between the persons in produced by the plaintiff and the defendant, and as that sale, in the view also of the learned Judges, was the direct result of the plaintiffs negotiations, they held that the appellant was entitled to companymission but only on the price mentioned in the sale deed, namely,Rs. 1,05,000 which, they found was the price actually received by the respondent. As to why the respondent accepted a reduced price, Harries J., who delivered the judgment of the Court, observed All that is known is that persons who undoubtedly made a firm offer of Rs. 1,10,000 for this property eventually bought it for Rs. 5,000 less. I strongly suspect that the price was reduced at the defendants instance but I cannot find it as a fact . In support of their view that the appellant was number entitled to any companymision above that payable on a purchase price of Rs. 1,05,000 the learned Judges relied on the decision of the House of Lords in Luxor Eastbourne Ltd. v.Cooper 1 , where it was held that, in a companytract to pay companymission upon the companypletion of the transaction which the agent was asked to bring about, there was numberroom for implying a term that the principal shall number without just cause prevent the agent from earning his companymission, and that it was open to the principal to break off negotiations and refuse to sell even after the agent had produced a customer who was ready and willing to purchase on the principals terms. Applying what they companyceived to be the principle of that decision, the Appellate Bench varied the decree of the trial Judge by reducing the amount payable to the appellant to a sum of Rs. 1,000. The companymission letter runs as follows I, Animendra Kissen Mitter of No. 20-B, Nilmoni Mitter Street, Calcutta, do hereby authorise you to negotiate the sale of my property, 27, Amratolla Street, free from all encumbrances at a price number less than Rs. 1,00,000. I shall make out a good title to the property. If you succeed in securing a buyer for Rs. 1,00,000 I shall pay you Rs. 1,000 as your remuneration. If the price exceeds Rs. 1,05,000 and does number 1 1941 A.C. 108. exceed Rs. 1,10,000 I shall pay you the whole of the excess over Rs. 1,05,000 in addition to your remuneration of Rs. 1,000 as stated above. In case you can secure a buyer at a price exceeding Rs. 1,10,000 I shall pay you twenty-five per cent. of the excess amount over Rs. 1,10,000 in addition to Rs. 6,000 as stated above. This authority will remain in force for one month from date. In the absence of clear words expressing the intention of the parties it is possible to companystrue these terms in three different ways companyresponding to the three patterns into which companymission companytracts with real estate brokers may broadly be said to fall. In the first place, the letter may be read as authorising the appellant number only to find a purchaser ready and willing to purchase the property at the price required but also to companyclude a binding companytract with him for the purchase and sale of the property on behalf of the respondent. Secondly, the companytract may be companystrued as promising to reward the appellant for merely introducing a potential buyer who is ready, able and willing to buy at or above the price named, whether or number the deal goes through. And lastly, the companymission numbere may be understood as requiring the appellant to find such a purchaser without authorising him to companyclude a binding companytract of sale but making companymission companytingent upon the companysummation of the transaction. As stated already, the first of these interpretations was rejected by the learned trial Judge as well as by the Appellate Bench, but it was pressed upon us by Mr. Setalvad on behalf of the appellant. We are unable to accept that view. The companytract specifies only the price required by the respondent but does number furnish the broker with other terms such as those relating to the payment of the price, the investigation and approval of title, the execution of the companyveyance, the parties who are to join in such companyveyance, the companyts incidental thereto and so on. In fact, theagreement of sale dated the 9th June 1943 entered into by the respondent with the purchasers companytains detailed stipulations on all these and other matters. Mr. Setalvad laid stress on the statement in the companymission numbere that the sale was to be free from encumbrances and that a good title would be made out, but this is numbermore than a general indication of the nature of the bargain proposed and is perfectly companysistent with an understanding that further details will be subject to negotiation between the respondent and the purchaser when found. As pointed out by Kekewich J. in Chadburn v. Moore 1 a house or estate agent is in a different position from a broker at the stock exchange owing to the peculiarities of the property with which he is to deal which does number pass by a short instrument as stocks and shares do but has to be transferred after investigation of title as to which various special stipulations, which might be of particular companycern to the owner, may have to be inserted in a companycluded companytract relating to such property. The parties therefore do number ordinarily companytemplate that the agent should have the authority to companyplete the transaction in such cases. That is why it has been held, both in England and here, that authority given to a broker to negotiate a sale and find a purchaser, without furnishing him with all the terms, means to find a man willing to become a purchaser and number to find him and make him a purchaser see Rosenbaum v. Belson 2 and Durga Charan Mitra v. Rajendra Narayan Sinha 3 . Mr. Setalvad next suggested, in the alternative, that the second interpretation referred to above, which was favoured by the trial Judge, should be adopted, and that, inasmuchs, in that view also, the appellant had done all that he was required to do when he introduced to the respondent two prospective buyers who were ready and willing to buy the premises for Rs. 1,10,000, he was entitled to companymission on that basis. Learned companynsel criticised the view of the Appellate Bench, who adopted the third companystruction, as illogical and inconsistent, and argued that, if authority to secure a buyer were to be taken to mean authority to find one who is number only ready and willing to buy but also becomes eventually a buyer in order to entitle the agent to his companymission, then such authority must of necessity 1 67 L.T. 257. 2 1900 2 Oh. 267. 8 86 C.L.J. 467. extend to the companycluding of a companytract of sale, as otherwise the agent companyld number possibly accomplish the task assigned to him. We do number see much force in this criticism. As already indicated there are companyent reasons why an owner employing an estate agent to secure a purchaser should number, in the absence of clear words to that effect, be taken to have authorised him to companyclude a companytract of sale, and we cannot see how the lack of such authority is inconsistent with an understanding that the agent is number to be entitled to his companymission unless the owner and the purchaser introduced by the agent carried the transaction to companypletion. In the present case, however, it is number necessary to decide whether or number the companymission numbere imports such an understanding, for a sale was in fact companycluded with the purchasers introduced by the appellant who has thus, in any view, earned his companymission, both the trial Judge and the Appellate Bench having found that the appellants efforts were the effective cause of that sale. The only question is whether the companymission is payable on the basis of Rs. 1,10,000 for which the appellant brought a firm offer from the purchasers, or on the basis of Rs. 1,05,000 which is the price mentioned in the companyveyance. As already stated, the Appellate Bench based their decision on the ruling in the Luxor case. The learned Judges reasoned thus In that case the principal had refused to sell in circumstances which afforded numberreasonable excuse. Nevertheless, the House of Lords, reversing the Court of Appeal, held that numbercommission was payable. It appears to me that the principle is applicable to this case. Though the agent introduced a purchaser ready and willing to buy for Rs. 1,10,000 the sale for some reason took place at a lower figure. Even if the defendant unreasonably or without just cause refused to companyclude the sale at the higher figure, nevertheless the plaintiff has numberright to companymission based on that higher figure . We are unable to agree with this reasoning and companyclusion. The ground of decision in the Luxor case was that, where companymission was made payable on the companypletion of the transaction, the agents right to companymission was a purely companytingent right and arose only when the purchase materialised. As Lord Simon put it The agent is promised a reward in return for an event and the event has number happened . But the position is different where the principal, availing himself of the efforts of the agent, companycludes the sale with the purchaser introduced by him, as the respondent did in the present case. As observed by Lord Russell of Killowen in the same case, where a companytract is companycluded with the purchaser, the event has happened upon the occurrence of which a right to the promised companymission has become vested in the agent. From that moment numberact or omission by the principal can deprive the agent of his vested right. Applying that principle, even if the companymission numbere in the present case were to be companystrued as making payment of companymission companyditional on the companypletion of the transaction, as it was in the English case the appellant, having negotiated the sale and, secured buyers who made a firm offer to buy for Rs. 1,10,000 had done everything he was required by the respondent to do and acquired a right to the payment of companymission on the basis of that price which he had successfully negotiated, subject only to the companydition that the buyers should companyplete the transaction of purchase and sale. The companydition was fulfilled when those buyers eventually purchased the property in question, and the appellants right to companymission on that basis became absolute and companyld number be affected by the circumstance that the respondent for some reason of his own sold the property at a lower price. We accordingly hold that the appellant is entitled to the full companymission of Rs. 6,000. The appeal is allowed, the decree passed on appeal in the Court below is set aside and that of the trial Judge restored. The appellant will have the companyts of this appeal including the companyts incurred in the lower companyrt as well as his companyts of the appeal in that companyrt. MAHAJAN J.--This is an appeal by special leave from a judgment and decree of the High Court at Calcutta, dated 5th January 1948. By that judgment the High Court varied the judgment and decree of Gentle J. dated 11th June 1945 made in exercise of his original jurisdiction, decreeing the plaintiffs suit for recovery of a sum of Rs. 6,000. The appellant is a broker by profession residing at No. 81/1 Phear Lane, Calcutta, and carries on the business of a house agent. The respondent, Animendra Kissen Mitter, resides in No. 20B, Nilmony Mitter Street, Calcutta. The appellant was employed by the respondent to negotiate the sale of the respondents premises, No. 27, Amratolla Street, Calcutta, on certain terms and companyditions on companymission and the question raised by this appeal is whether the appellant is entitled to his companymission under the circumstances hereinafter mentioned. The facts are substantially admitted. By a letter dated 5th May, 1943, the appellant was employed by the respondent for arranging a sale of the premises above mentioned. This letter is in the following terms -- I, Animendra Kissen Mitter of No. 20B, Nilmoni Mitter Street, Calcutta, do hereby authorize you to negotiate the sale of my above property free from all encumbrances at a price number less than Rs. 1,00,000. I shall make out a good title to the property. If you succeed in securing a buyer for Rs. 1,00,000 I shall pay you Rs. 1,000 as your remuneration. If the price exceeds Rs. 1,05,000 and does number exceed Rs. 1,10,000 I shall pay you the whole of the excess over Rs. 1,05,000 in addition to your remuneration of Rs. 1,000 as stated above. In case you can secure a buyer at a price exceeding Rs. 1,10,000. I shall pay you twenty-five per cent. of the excess amount over Rs. 1,10,000 in addition to Rs. 6,000 as stated above. This authority will remain in force for one month from date. As recited in the letter, the authority given to the appellant was to remain in force for one month from 5th May 1943. Three days before the termination of the appellants authority, on 2nd June 1943 the plaintiff appellant obtained an offer from two persons namely, Kishorilal Mahawar and Ramkumar Mahor, for the purchase of the premises regarding which the plaintiff had been authorized to arrange a sale. This letter is in these terms - We are willing to purchase the above house, land and premises at and for the price of Rs. 1,10,000 only free from all encumbrances. We hereby authorize you to accept the offer for sale of the above premises from Mr. A.K. Mitter for Rs. 1,10,000 on our behalf and send the companyfirmation to the vendor Mr. A.K. Mitter on our behalf. On the same date the plaintiff gave a reply which runs thus -- I am in receipt of your letter of date and under authority from the owner Mr. A.K. Mitter, I hereby companyfirm your offer for the purchase of the above premises at and for the price of Rs. 1,10,000 free from all encumbrances. Simultaneously with the issue of this letter he gave intimation of this companytract to the respondent in the following terms -- Under the authority given to me by you I made an offer for the sale of the above premises to Messrs. Kishorilal Mahawar and Ram Kumar Mahor of No. 27, Amratolla Street, Calcutta, for rupees one lakh and ten thousand only and they have accepted the offer and they have authorized me to send a companyfirmation to you of the said offer. I accordingly companyfirm the offer made by you for the sale of the above premises for rupees one lakh and ten thousand only. The draft agreement for sale will be sent to you in the usual companyrse. A companyy of the letter of Messrs. Kishori Lal Mahawar and Ram Kumar Mahor accepting your offer is enclosed herewith. The letter was received by Mitter on 3rd June 1943, two days before the termination of the plaintiffs authority. The respondent made numberreply and kept silent. He did number question the agents authority in effecting a binding companytract of sale with the purchasers. He did number repudiate the transaction number did he expressly ratify it. It was the plaintiffs case that he had accepted the purchasers offer after getting express instructions from the respondent. That case, however, was number accepted in the two companyrts below. On 3rd June, 1943, the solicitor for the purchasers wrote to the solicitor for the agent that as the offer of his client for the purchase of 27, Amratolla Street had already been accepted and acceptance companymunicated to him, the title deeds should be sent so that a companyveyance may be prepared. At his request inspection of the letter of authority was offered by the plaintiff and a companyy of the letter was sent to him by post. On receipt of this companyy the purchasers solicitor assumed a curious attitude. He said that the companyy of the letter sent companytained different terms as to companymission than those companytained in the letter of authority originally shown to his client. The plaintiff was charged with making a secret illegal gain. In spite of these allegations it was asserted that the companytract was a companycluded one and that being so, the plaintiff was bound to refund to the purchasers whatever moneys he would receive from the vendor. It appears that the purchasers attorney did number like the idea of the plaintiff pocketing a sum of Rs. 6,000 out of the purchase price, and this dislike on the part of the purchasers for the brokers companymission has led to further companyplications resulting in this litigation. On 9th June, 1943, the purchasers solicitor wrote to the plaintiffs solicitor that his client had cancelled the agreement of purchase. Immediately on receipt of this companymunication the plaintiffs solicitor replied expressing surprise at this attitude and accused the other party of a change of front with an ulterior motive. It was said that further instructions would be given after getting instructions from Mitter to whom these letters were forwarded. It seems that the plaintiff was in the dark while writing the letter of 9th June, 1943, of the negotiations that were going on behind the scene directly between the purchasers and the vendor who had kept absolutely silent all this time. On 9th June the date of the alleged cancellation of the bargain already made, an agreement was executed between Animendra Kissen Mitter, the vendor, and Makkanlal, a benamidar of Kishorilal Mahawar and Ramkumar Mahor the purchasers for sale of the premises for a sum of Rs. 1,05,000. The sale deed in pursuance of this agreement was actually executed on 8th December, 1943, in favour of the original purchasers and number in favour of the benamidar. As pointed out by the learned Chief Justice who delivered the judgment of the appellate Bench, possibly some arrangement was made whereby both the defendant and the purchasers benefited by the insertion of a lower price in. the companytract of sale and the transfer deed. It seems obvious enough that the defendant having received a firm offer of Rs. 1,10,000 for this property companyld number have parted with it for Rs. 5000 less except on the basis of some arrangement between himself and the purchasers under which both of them shared the companymission instead of paying it to the broker. It was to the advantage of both of them. On 14th August, 1943, the appellant filed the suit out of which this appeal arises for recovery of Rs. 6,000, brokerage payable under the companymission numbere. He also claimed relief by way of damages in the alternative. The defendant resisted the suit and denied the appellants claim. Gentle J. who heard the suit, gave judgment for the plaintiff and passed a decree for a sum of Rs. 6,000, with interest and companyts in his favour. He held that on a true companystruction of the companymission numbere the appellants authority was to find a purchaser, namely, a man ready, able and willing to buy at a price acceptable to the respondent and that the appellant had accomplished this when he introduced to the respondent the purchasers and that he had done all that was required of him. It was held that the appellant had numberauthority to companyclude a companytract of sale and numberbinding companytract of sale was made on 2nd and 3rd June, 1943, that the transaction effected numberinally in the name of Makkanlal and companypleted on 8th December, 1943, in favour of Kishorilal Mahawar and Ramkumar Mahor, was effected solely through the intervention of the appellant who brought the parties together in the capacity at least of a potential buyer and seller, that the reduction of the price by Rs. 5000 from Rs. 1,10,000 was more than peculiar and that this reduction was made for one purpose and that was to deprive the plaintiff of his remuneration. The respondent preferred an appeal against this decree. This was partially allowed by the learned Chief Justice and Mukherjea J. on the following findingsthat the appellant procured two persons, viz. Kishorilal Mahawar and Ram kumar Mahor, on 2nd June, 1943, who were willing to buy the property for Rs. 1,10,000, that on.a true companystruction of the companytract of agency numbercommission was payable until at least a binding companytract had been entered into between the appellant and the respondent, that the agent companyld only be said to have negotiated the sale if he introduced a person willing to buy who eventually bought, that the sale took place between the persons introduced by the appellant and the respondent and it was the direct result of the appellants agency, that the companymission numbere gave numberauthority to the appellant to companyclude a companytract of sale, that Makkanlal with whom the sale agreement dated 9th June was entered into was a benamidar of Kishorilal Mahawar and Ramkumar Mahor, that the appellant had numberright to companymission on a higher price than for which the sale was actually made and as the sale was actually made for Rs. 1,05,000, his remuneration companyld number exceed a sum larger than Rs. 1,000. On the basis of these findings the appeal was allowed and the decree granted by Gentle J. was modified and the plaintiffs suit was decreed in the sum of Rs. 1000. order for companyts was made in the appeal. In this appeal Mr. Setalvad for the plaintiff raised three companytentions 1 That the finding of the companyrt below that on a true companystruction of the companymission numbere the plaintiff had numberauthority to make a binding companytract regarding the sale of this property with the purchasers was erroneous 2 That even if that finding was companyrect, the plaintiff was entitled to a decree for the sum of Rs. 6,000, because he had done all that he had promised to do for the respondent, viz., he had secured a purchaser for Rs. 1,10,000, who was ready, able and willing to buy the property and that if by reason of his own caprice or in companylusion with the purchasers, the respondent did number sell the property for Rs. 1,10,000 but chose to receive instead Rs. 1,05,0O0, the plaintiff companyld number be made to suffer. 3 That on the evidence it should have been held that the sale was made for a price of Rs. 1,10,000 and that the amount entered in the sale deed was fictitious. The first thing to see is what the parties have expressed in the companymission numbere and what is the true effect of the language employed in it, read in the light of the material facts. As pointed out by Viscount Simon, Lord Chancellor, in Luxor Eastbourne , Ltd. v. Cooper 1 , companytracts with companymission agents do number follow a single pattern and the primary necessity in each instance is to ascertain with precision -what are the express terms of the particular companytract under discussion. I have very carefully companysidered the terms of this companytract in the light of the material circumstances and with great respect to the Judges who decided this case in the High Court, I am of the opinion that the authority given by the principal to the agent authorized him to enter into a binding companytract to sale on his behalf. It was number a mere authority authorizing him to find a purchaser willing, able and ready to buy the premises for a price mentioned in the document. The numbere, to begin with, companyfers authority on the plaintiff to negotiate a sale free from all encumbrances at a price number less than Rs. 1,00,000. Then it proceeds to say that the principal undertakes to make out a good title to the property. It further provides that if the agent succeeds in securing a buyer for Rs. 1,00,000, he will be paid a sum of Rs. 1,000 as remuneration. In the companycluding part of the numbere a scale of companymission proportionate to the price has been promised in case a price higher than Rs. 1,00,000 was secured. In express words it is said that if the price exceeds Rs. 1,05,000 and does number exceed Rs. 1,10,000, 1 1941 A .C . 108. I shall pay you the whole of the excess over Rs. 1,05,000 in addition to your remuneration of Rs. 1,000, that if a buyer is secured at a price exceeding Rs. 1,10,000, he will be paid 25 per cent of the excess amount over Rs. 1,10,000 in addition to Rs. 6,000. The authority of the agent was to remain in force for one month. In my opinion, the terms of the numbere as regards the property being free from encumbrances and in respect of the guarantee about title indicate that the agent was given authority to make a binding companytract. In a bare authority companyferring power on a broker for introducing a customer, these stipulations would ordinarily find numberplace. The words to negotiate a sale standing by themselves may number authorize an agent to make a companytract of sale. But here they do number stand by themselves. They are followed by two important companyditions adverted to above. The agreement further lays down that if the broker succeeds in securing a buyer, he will get a certain remuneration. Gentle J. observed that the word securing here had the meaning of obtaining a buyer. I have companysulted the same dictionary as the learned Judge did and I find that the true meaning of the expression securing a buyer is to obtain a buyer firmly . It is number possible in business sense to secure a buyer firmly unless he is bound by an offer and an acceptance. Otherwise, he is entitled to withdraw the offer at any time before acceptance and it cannot in this situation be said that a buyer has been secured firmly. The word secure has number the same meaning as the word find or procure. It gives an idea of safety and certainty. If a buyer is ensured, he is said to be secured and numberbuyer can be said to be ensured till he is bound by his offer and that cannot happen unless it stands accepted. The agent companyld only secure a buyer in the strict sense of the term if he had authority to enter into a binding companytract. The word buyer when used in a strict sense also means a person who has actually made the purchase The authority given to an agent to secure a buyer therefore gives him authority to enter into a binding companytract of sale with him. Without such an authority it was number possible to secure a buyer. I am further supported in this view by the language employed in the document in respect of the payment of the companymission. When the price secured was Rs. 1,10,000, the broker was entitled to 25 per cent. of the excess. It is difficult to think of an excess in relation to price in a stipulation for companymission unless the agent has been given an authority to make a companytract of sale. If the scope of the authority is only to introduce a customer ready, able and willing to buy the property with an option to the principal to accept or to refuse the offer, then it would have been drawn up in a different language. The subsequent companyduct of both the parties to the . agreement very strongly supports this view. The evidence of such companyduct is relevant in this case because, as pointed out by Viscount Simon, L.C., in the case already referred to, the phrase finding a purchaser is itself number without ambiguity. Here the phrase is securing a purchaser . This phrase similarly is number without ambiguity. The evidence of companyduct of the parties in this situation as to how they understood the words to mean can be companysidered in determining the true effect of the companytract made between the parties. Extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning. Evidence of the acts done under it is a guide to the intention of the parties in such a case and particularly when acts are done shortly after the date of the instrument. Vide para. 343 of Hailsham Edn. of Halsbury, Vol. 10, p. 274 . So far as the companyduct of the agent is companycerned, he accepted the offer and under his own signature sent the letter of acceptance to the purchasers. In the letter written by him to his principal he specifically refers to his authority. The companyrespondence above mentioned clearly shows that both the purchasers and the agent thought that a companycluded companytract had been made. Information of this was given to the vendor and though he did number speak, his silence in the circumstances of the case seems as eloquent as speech would have been. He never repudiated the companytract made by the agent but behind his back entered into a fresh companytract with the same persons who had been secured by the agent in a surreptitious manner. In the witness box he assumed a dishonest and untruthful attitude. The learned trial Judge pronounced him a liar and rightly too. He asserted companyplete ignorance about the subsequent companytract of sale and fixed all blame on to his son When asked about the sale price on the companytract of 9th June, 1943, his answer was that he knew numberhing about this and said that because his son asked him to sign the deed he did sign it and that was all that he knew. When faced with the sale deed, he said that he did number know what his son had told him as to what was written in the deed. He added that he did number know what companysideration was paid to him for the sale. He further professed number to know whether the sale price went into his banking account or was even entered in the account books. After a great deal of prevarication he was made to accept the document of 5th May, 1948, and its terms. He admitted that on 3rd June he had a companyversation with the purchasers and was informed by them that they had entered into a bargain with the broker and that the broker had deceived them about the companymission and therefore they would number buy the house. He admitted that he got the letter sent by the plaintiff, but gave numberexplanation as to why he sent numberreply to that letter. With great difficulty he was made to accept his signature on the postal acknowledgment about the receipt of the letter sent by the broker to him informing him of the companycluded bargain made with the purchasers, and he had to admit that he got that letter from the broker. He also admitted that he took numberobjection to the letter written by the broker before Kishoribabu had told him the story about the companymission of two per cent. In further cross-examination he admitted that what was stated by the broker in the letter of the 2nd June was companyrect. The whole evidence given by the defendant companysists of evasive statements and his ultimate resort was in lapses of memory. It is quite clear from his deposition that the respondent accepted the companytract made by the agent and was clearly under the belief that the agent had number exceeded his authority in entering into a binding companytract with the purchasers. I am therefore of the opinion that the authority given to the agent in this case was an authority to enter into a binding companytract of sale and this he did and he was therefore entitled to his companymission of Rs. 6,000. The learned single Judge and the learned Judges of the Court of Appeal found otherwise on this part of the case in view of certain decisions of English Courts and a decision of a Division Bench of the Calcutta High Court. In my opinion, numbere of those cases touch the present case. Unless the language of two documents is identical, an interpretation placed on one document is numberauthority for the proposition that a document differently drafted, though using partially similar language, should be similarly interpreted. In Hamer v. Sharp 1 Sir Charles Hall, V.C., companysidered the case of an authority of an agent for sale appointed by the owner of an estate. The document in that case was in these terms -- I request you to procure a purchaser for the following freehold property, and to insert particulars of the same in your Monthly Estate Circular till further numberice, viz., my beer house and shop No. 4 and No. 6 Manchester Road, Tenant No. 4, William Galloway, gilder, and No. 6, Albert Vaults, Henry Holmes, beer retailer, and work rooms above. Present net rent, pound 150, price pound 2800, when I will pay you a companymission and expenses of fifty pounds. About six years lease unexpired. The Vice-Chancellor observed as follows -- The question is whether, when an owner of an estate puts it into the hands of an estate agent for sale, stating a price for and giving particulars of the property to enable him to inform intending purchasers, but giving numberinstructions as to the absolute disposal, and numbere as to the title of the property, and mentioning numbere of those special stipulations which it might be proper to insert in companyditions in reference to the title, L.R. 19 Eq. 108, that is sufficient authority to the agent to sign a companytract for the sale of the property for the price stated in the instructions, without making any provision whatsoever as to title. In companysidering whether the instructions of October, 1872, were a sufficient authority to the agent for that purpose, I cannot help expressing an opinion that such an authority to an agent on the part of a vendor would be highly imprudent, as the purchaser would then be entitled to require, on companypletion, attested companyies of all documents of title, and the expense of them would swallow up, to a great extent, the purchase money. This estate agent must have known that if this property had been offered for sale by public auction there would have been companyditions to guard the vendor against being subject to certain expenses, and to prevent the companytract becoming abortive by reason of a purchaser requiring a strictly marketable title. Could he suppose that he was invested with authority to sign a companytract without companysidering what it should companytain as regards title ? As an intelligent and well informed person, he companyld number suppose that he was properly discharging his duty to his principal when he signed the companytract which he signed such a companytract was number one within the scope of his authority to sign. The case therefore stood decided on the companystruction of the document. It was remarked that in those circumstances it was number necessary to decide what words would companyfer such an authority. Having said so, the learned Vice-Chancellor proceeded to observe as follows -- but I nevertheless state my opinion to be, that when instructions are given to an agent to find a purchaser of landed property, he, number being instructed as to the companyditions to be inserted in the companytract as to title, is number authorized to sign a companytract on the part of the vendor. This case can hardly be said to be an authority for the companystruction of the agreement that we are called upon to companystrue in the present case. Considerable emphasis was laid in that case on the point that numberinstructions had been given as to the companyditions that had to be inserted in the agreement as to title. In the present case the agent was told that the principal guaranteed marketable title. He was further told that the sale should be free of encumbrances. All the material companyditions of sale were thus companytained in the present agreement. The next case on which companysiderable reliance was placed in the companyrts below is the case of Chadburn v. Moore 1 . In this case an advertisement appeared in the Daily Telegraph in these words -- Forced sale by order of the mortgagees--thirty four well built houses, situated at Grays, close to the station on the London, Tilbury, and Southend Railway, within easy reach of the docks, all let to respectable tenants at rents amounting to pound 620 per annum. Held for about ninety-five years at ground rents amounting to pound 146 price pound 3500, of which pound 3000 can remain on mortgage. For further particulars apply to Messrs. Pinder, Simpson and Newman, 33 and 34, Savilerow, London, W. In response to this advertisement the plaintiff in that case, James Chadburn, called on Messrs. Pinder, Simpson and Newman, a firm of surveyors and estate agents, for further information. He then went to see the houses and came back and made an offer to purchase them, which was reduced to writing. It appeared from the evidence that the offer was to be submitted by Mr. Newman to his client the defendant, and the plaintiff was to return the next day for an answer. Newman saw the defendant, who gave him instructions to withdraw five of the houses, and fixed the price, but did number, according to the evidence given in companyrt, give instructions to Newman to enter into a binding companytract. Later on the plaintiff called on Messrs. Pinder, Simpson and Newman and two letters were exchanged between them, which were letters of offer and acceptance for the twenty-nine houses at Grays. The offer and acceptance were forwarded by the defendant to the estate agents. The defendant on receiving this offer wrote a letter saying inter alia- 1 67 L.T. 257 I think you were, as you usually are, a little premature in actually entering into what might be a binding companytract. It is always best to have an offer and acceptance subject to a formal companytract being entered into To this Newman replied- The offer for the above was accepted under your definite instructions and is a very good get out for you. Kekewich J., who decided this case, gave the following judgment -- Having heard Mr. Newman, who was called without the plaintiff knowing what he was going to say, and having read the companyrespondence, I have little doubt that I have the real transaction--which is a mere transaction between principal and agent--before me. It might be that a different companyour would be put upon the matter by the cross-examination of Mr. Moore, but this was number done, and he is entitled to have judgment upon the point of law. Moore undoubtedly authorized Newman to find a purchaser for the houses. It is true the expression does number companye out on the companyrespondence. On the second occasion Newman appears to have been instructed to negotiate a sale. Whatever else he did do, Moore did number in express. terms authorize Newman to enter into a companytract.Newman was to find a purchaser, and to negotiate a sale. Is that sufficient ? No evidence was given as to custom numberevidence was brought to show that the position of a house or estate agent resembles that of a broker on the Stock Exchange or any other exchange. A house or estate agent is in a different position, owing to the peculiarity of the property with which he has to deal, which does number pass by a short instrument as stocks and shares do, but has to be transferred after investigation of title and in accompanydance with strict laws. An agent fox sale of real estate must be more formally companystituted than a seller of stocks and securities of a similar nature. There is numberdefinite authority in Hamer v. Sharp 1 , Hall, V.C., does number 1 19 Eq. 108. go so far as to say an estate agent cannot enter into any companytract, and does number decide the question of authority, but only states his opinion. I must perforce refer to Prior v. Moore 1 , where I indicated my own opinion distinctly, that instruction to a house agent to procure a purchaser and to negotiate a sale does number amount to authority to the agent to bind his principal by companytract. Here the circumstance must number be forgotten that Moore on the second occasion told Newman what he was prepared to take for the twenty-nine houses. Newman then jumped at the companyclusion that he had power at that price to enter into a companytract. That is in my opinion number sufficient, and unless express authority is given to the agent to sell, and for that purpose to enter into a binding companytract, the principal reserves his final right to accept or refuse. In this case there was numberwritten document between the principal and the agent. From the companyrespondence it was inferred that the principal had asked the agent to find a purchaser or to negotiate a sale and it was held that within these words an authority to sell companyld number be spelt out. Not only is the language of the document with which we are companycerned different, but the evidence in the case particularly about the companyduct of the parties is materially different. The observations made by the learned Judge must be taken to be limited to the facts found by him. The expressions find a purchaser procure a purchaser negotiate a sale standing by themselves may number be sufficient to companyfer authority on the agent to enter into a binding companytract on behalf of the principal but as I have indicated above, the words in the present case are such as by necessary implication companyferred authority on the agent for making a binding companytract. The next case is Durga Charan Mitra v. Rajendra Narain Sinha 2 , a Bench decision of the Calcutta High Court. The document companysidered in that case bears companysiderable resemblance with the document in the present case. 1 3 T.L.R.624. 2 36 C.L.J.467. It was in these terms -- I hereby authorize you to negotiate the sale of the lands at Tolligunge I have recently purchased from Messrs Martin and Co. If you can secure a purchaser to purchase the same at the gross value of Rs. 16,000, I shall pay you Rs. 200 as your remuneration. If you be able to raise the price to any amount above Rs. 16,000, you will be entitled to the excess amount fully and I shall be bound to mention the whole amount in the companyveyance. Please numbere that this letter of authority will remain in force for a fortnight only to companyplete the transaction after that this letter will stand cancelled. The agent acting on this authority sold the property. On receipt of this letter the vendor informed the agent that he would number sell the land. On the acceptance of the agent a suit was brought for specific performance. Sir Asutosh Mookerjee who delivered the judgment of the Bench referred to the cases of Hamer v. Sharp 1 , Prior v. Moore 2 , Chadburn v. Moore 3 , and also Rosenbaum v. Belson 4 , and observed that it was well settled that an estate or houseagent, authorized to procure a purchaser, has numberimplied authority to enter into an open companytract of sale, because the transaction mentioned is as specified in the letter, viz., to negotiate a sale after securing a purchaser. There is similarity in the language employed in the letter dealt with in this case and the letter of authority with which we are companycerned but read as a whole, the two documents are drafted with different intents and the true effect of both is number the same. There was numbermention of the title being guaranteed by the vendor or of the sale being made free of encumbrances in that case. There was numberevidence of surrounding circumstances or of the companyduct of the parties. On the other hand, the plaintiff who was himself a solicitor realized the difficulties of the situation and endeavoured to alter the foundation of his claim. He companyceded that as a broker he had numberauthority to sell the property and that he 1 19 Eq. 108. 8 67 L.T. 257, 2 3 T.L.R. 624 4 1900 2 Ch. 267. companyld number have taken a companyveyance of sale of the plot. In the present case the attitude adopted by the parties, as already pointed out, was entirely different. Sir Asutosh Mookerjee also cited the case of Rosenbaum v. Belson 1 . In this case the learned Judge made the following observations- To my mind there is a substantial difference between those expressions. Authorizing a man to sell means an authority to companyclude a sale authorizing him to find a purchaser means less than that--it means to find a man willing to become a purchaser, number to find him and also make him a purchaser. In Saunders v. Dence 2 , Field J. distinguished Hamer Sharp s , saying that all that Hall, V.C.,in that case decided, as I understand it, was that if you go to an estate agent, and tell him you have a property to sell, and that you want a purchaser, and you tell him what you have made up your mind shall be the price, and to a certain extent what shall be the companyditions, and you instruct him to try and find a purchaser, that is number sufficient, under those circumstances, to authorize the agent to make a companytract without any companyditions whatever with regard to the title. I have been unable to find any case in which it has been held that instructions given by A.B. to sell for him his house, and an agreement to pay so much on the purchase price accepted, are number an authority. to make a binding companytract, including an authority to sign an agreement. In my opinion, on the terms of the instrument in this case and in view of the relevant evidence the companyrect companyclusion to draw is that the agent had authority to enter into a binding companytract with the purchaser and that he did and is therefore entitled to succeed in the case. Reference in this companynection may be made to Wragg v. Lovett 4 , where Lord Greene, M.R., put the proposition in these words -- Whether or number the agents were authorized or, what in law is the same thing, reasonably understood 1 1900 2 Ch. 267. 3 19 Eq. 108. 2 52 L.T. 644. 4 1948 2 A.E.R. 969. themselves to be authorized to make this particular companytract, and it was held that the proper inference from all the facts of the case was that the defendant was satisfied to allow his agents to make whatever companytract they thought best and relied on them to protect his interests provided, and provided only, that they obtained the desired statement from the plaintiff as to his intention to remain in the house. The answer to the question depends on the facts of each individual case and though authority to make a binding companytract has number to be lightly inferred from vague or ambiguous language but from substantial grounds, that however does number mean that in express words it should be stated that the agent is authorized to sell the property. The learned Chief Justice in the judgment under appeal observed that the agent had undertaken to negotiate a sale and secure a buyer. He companyld number be said to have either secured a buyer or negotiated a sale unless a sale actually took place or at least a companytract of sale had been entered into. If that is the companyrect companystruction of the numbere, then in my judgment, the true implication of the numbere is that the agent was authorized to enter into a binding companytract, because otherwise he companyld number have secured a buyer. Later on, the learned Chief Justice while referring to the case of Rosenbaum v. Belson 1 , took the view that authorizing a man to sell meant an authority to companyclude a sale and authorizing a man to find a purchaser meant less than that. It meant finding a man willing to become a purchaser, number to find him and also make him a purchaser. If that was the duty entrusted to the agent, then he had clearly performed his duty and was entitled to his companymission. For the reasons given above I am of the opinion that the plaintiff had authority to enter into a binding companytract on behalf of the defendant and he entered into such a companytract and thereby earned the companymission which he has claimed in the suit and he is entitled to a 1 1900 2 Ch. 267. decree in the sum of Rs. 6,000 which the trial Judge had given to him, with all companyts throughout. Conceding for the sake of argument that the companystruction that I have placed on the agreement entered into between the principal and the agent is number the companyrect one, the question arises .whether in that event the decision under appeal can be maintained. I am inclined to the opinion that even on the companystruction placed by the trial Judge on the companymission numbere the view taken by him was the companyrect one and the companyrt of appeal arrived at a wrong companyclusion by giving too much importance to certain obiter observations of Lord Russell of Killowen and Lord Romer in Luxor Eastbourne Ltd. v. Cooper 1 . In this very case it was pointed out by Viscount Simon L.C. that there were at least three different classes of cases in which the question of a right to companymission companyld arise. He states the first of them in these terms -- There is the class in which the agent is promised a companymission by his principal if he succeeds in introducing to his principal a person who makes an adequate offer, usually an offer of number less than the stipulated amount. If that is all that is needed in order to earn his reward, it is obvious that he is entitled to be paid when this has been done, whether this principal accepts the offer and carries through the bargain or number. No implied term is needed to secure this result. In my opinion, the present case falls within this class of case and companymission became payable on the introduction of a willing buyer by the agent to the principal. In Burcheil v. Cowrie Blockhouse Collieries Ltd. 2 it was observed by their Lordships of the Privy Council that if an agent brings a person into relation with his principal as an intending purchaser, the agent has done the most effective, and, possibly, the most laborious and expensive, part of his work, and that if the principal takes advantage of that work, and, behind the back of the agent and unknown to him, sells to the purchaser thus brought into touch with him on terms 1 1941 A.C. 108. 2 1910 A.C. 614. which the agent theretofore advised the principal number to accept, the agents act may still well be the effective cause of the sale and that there can be numberreal difference between such a case and those cases where the principal sells to the purchaser introduced by the agent at a price below the limit given to the agent. In Inchbald v. Western Neilgherry Coffee etc. Co. 1 Willes J. thus lays down the rule of law applicable to such cases -- I apprehend that wherever money is to be paid by one man to another upon a given event, the party upon whom is cast the obligation to pay, is liable to the party who is to receive the money if he does any act which prevents or makes it less probable that he should receive it. The rule has been stated by Story on Agency at page 404 in the following terms -- The general rule of law, as to companymissions, undoubtedly is, that the whole service or duty must be performed, before the right to any companymissions attaches, either ordinary or extraordinary for an agent must companyplete the thing required of him, before he is entitled to charge for it. In the case of brokers employed to sell real estate, it is well settled that they are entitled to their companymission when they have found a purchaser, even though the negotiations are companyducted and companycluded by the principal himself and also where there is a failure to companyplete the sale in companysequence of a defect in title and numberfault on the part of the brokers. In my judgment therefore, Gentle J. was right when he held on the interpretation placed by him on the document that the plaintiff had earned his companymission in full inasmuch as he had secured a buyer who was ready, able and willing to buy the property for Rs. 1,10,000. As I have indicated above, if the word buyer is to be companystrued in a strict sense, then it must be held that the broker had authority to secure a buyer of that type and he companyld only do so by making a binding 1 17 C.B. N.S. 733. companytract with him. On the other hand, if the word is taken to mean a potential buyer, such a buyer having been secured, the agent was entitled to the companymission that had been promised to him. It is number companyvenient to companysider the case of Luxor Eastbourne Ltd. v. Cooper 1 in some detail because certain observations made by Lord Russell of Killowen and Lord Romer are the basis of the decision of the learned Chief Justice. In this case numbercommission numbere was addressed to the broker and the companytract was number companytained in any document. Evidence in support of the companymission agreement was oral and its terms had to be deduced from that evidence. Viscount Simon L.C., out of the materials from which express companytract had to be pieced together, reached the result that the bargain was this If a party introduced by the respondent should buy the cinemas for at least pound 1,85,000, each of the two appellants would pay to the respondent pound 5,000 on the companypletion of the sale. No such sale took place, and in those circumstances it was held that there companyld be numberhing due to the respondent on the terms of the express bargain. It was then argued that since the proposed purchasers introduced by the respondent were and remained willing and able to buy the properties for the minimum price, while the appellants did number close with the offer, the appellants were liable in. damages to the respondent for breach of an implied term of the companymission companytract. In the statement of claim the implied term was said to be that the appellants would do numberhing to prevent the satisfactory companypletion of the transaction so as to deprive the respondent of the agreed companymission. The breach pleaded was the failure to companyplete the companytract of sale with the respondents client and the disposal of the subject-matter in another quarter. The Lord Chancellor was of the opinion that the suggested implied term was number necessary in this companytract and it was observed that in companytracts made with companymission agents there was numberjustification for introducing an implied term unless it was necessary to 1 1941 A.C. 108. do so for the purpose of giving to the companytract the business effect which both parties to it intended it should have. Lord Russell of Killowen in his opinion said that the only right of the plaintiff was to receive his companymission out of the purchase moneys if and when received. His right was a purely companytingent right. He stood .to earn a very large sum at companyparatively small pains, taking the risk of either side withdrawing from the negotiations before any binding companytract of sale and purchase was companycluded, or of the companytract for any reason number being carried to companypletion. In this view of the case the action was bound to fail and numberoccasion arose for pronouncing on the companyrectness or otherwise of the view expressed by the Court of Appeal in Trollope Sons v. Martyn Brothers 1 . Then it was said that as the question of these companymission companytracts was discussed at great length, that furnished an excuse for stating briefly companyclusions which his Lordships mind, free as it was from the fetter of previous decisions, reached. In dealing with the subject the following observations were made -- I can find numbersafe ground on which to base the introduction of any such implied term. Implied terms, as we all know, can only be justified under the companypulsion of some necessity. No such companypulsion or necessity exists in the case under companysideration. The agent is promised a companymission if he introduces a purchaser at a specified or minimum price. The owner is desirous of selling. The chances are largely in favour of the deal going through, if a purchaser is introduced. The agent takes the risk in the hope of a substantial remuneration for companyparatively small exertion. In the case of the plaintiff his companytract was made on September 23, 1935 his clients offer was made on October 2, 1935. A sum of I0,000 the equivalent of the remuneration of a years work by a Lord Chancellor for work done within a period of eight or nine days is numbermean reward, and is one well worth a risk. There is numberlack of business efficacyin sUCh a companytract, I even 1 1934 2 K.B. 436. though the principal is free to refuse to sell to the agents client. The position will numberdoubt be different if the matter has proceeded to the stage of a binding companytract having been made between the principal and the agents client. In that case it can be said with truth that a purchaser has been introduced by the agent in other words, the event has happened upon the occurrence of which a right to the promised companymission has become vested in the agent. From that moment numberact or omission by the principal can deprive the agent of that vested right. It is the observations last quoted which are the basis of the decision of the learned Chief Justice in the present case. It seems to me that these observations had reference to cases visualized by Lord Russell of Killowen in the earlier part of this quotation with specific reference to the facts found in that case and cannot apply to all cases where the word purchaser or buyer has been loosely used in a different companytext. Lord Romer in his opinion made the following observations - But supposing that a companytract by one person to pay another a sum of money in the event of the latter performing an unsolicited service to the former is as much subject to an implied companydition as if the latter had been employed to perform the service, the companydition is in general one that merely imposes on the former a negative and number a positive obligation. If I employ a man for reward to build a house on my land I subject myself to an implied companydition that I will do numberhing to prevent him carrying out the work. But I am under numberimplied obligation to help him earn the reward whether by the supply of building materials or otherwise. But there are exceptional cases where in a companytract of employment the employer is under a positive obligation. If, for instance, I employ an artist to paint my portrait I subject myself to the positive obligation of giving him the requisite sittings. The question, then, to be determined upon the hypothesis that I mentioned just number is this Where an owner of property employs an agent to find a purchaser, which must mean at least a person who enters into a binding companytract to purchase, is it an implied term of the companytract of agency that, after the agent has introduced a person who is ready, willing and able to purchase at a price assented to by the principal, the principal shall enter into a companytract with that person to sell at the agreed price subject only to the qualification that he may refuse to do so if he has just cause or reasonable excuse for his refusal ? This qualification must plainly be added, for the respondent does number companytend, and numberone companyld successfully companytend, that the obligation of the principal to enter into a companytract is an unconditional one. The learned Chief Justice relying on the last part of the above quotation reached the companyclusion that in the present case as the duty of the agent was to secure a purchaser, it companyld number be held that the purchaser had been secured till the companytract of sale was companycluded by the vendor with him and that the actual sale having been companycluded for a sum of Rs. 1,05,000, the plaintiff companyld only get his remuneration on the basis of the price for which the sale was made and number on the basis of the offer the plaintiff had secured. It seems to me that when Lord Romer was laying down that a purchaser in such companytracts means at least a person who enters into a binding companytract to purchase, he had in mind the companytract with which he was dealing in that case. I am free to think that Lord Romer had number in mind companymission numberes wherein the word buyer or purchaser had been employed in a loose sense. In Jones v. Lowe 1 , wherein the instrument was in these terms-- In the event of my introducing a purchaser, I shall look to you for the payment of the usual companymission in accordance with the scale fixed by the Auctioneers and Estate Agents Institute , Hilbery J. said that had he been free of authority, he should have thought that there were strong grounds for saying that what every owner of a house who desired to 1 1945 1 K.B. 73. sell it expected a house agent to do, was to bring the property fairly to the numberice of persons who resorted to him for houses and endeavour to persuade one of them to buy it. The learned Judge further observed as follows -- If the agent introduces someone who is perfectly willing to go through with the purchase at a price which will satisfy the vendor, it would seem that the agent has done everything that the parties companytemplate that he should do, for they do number companytemplate that the agent should have anything to do with the actual companypletion of the transaction. He is to find a person who will pay the price which is asked for the property, and the companytract is entered into on the basis that the person so found will be the person to whom the owner of the property will sell. It seems to me hard, if an agent has done to the full extent what the parties companytemplated that he should do, that he should number be entitled to say I have done what I companytracted to do because I have introduced someone willing to purchase although he never in fact became the. actual purchaser. I do number feel, however, that it is open to me to put that companystruction on the words of the companytract in the present case because I think that the observations made in the House of Lords, and particularly those of Lord Russell of Killowen and Lord Romer in Luxor Eastbourne Ltd. v. Cooper 1 , show that they were clearly of opinion that if an agent is employed to introduce a purchaser for a house and before the purchaser has entered into a binding and legal companytract, the house is withdrawn from the market, the agent cannot say that he has earned his companymission. In a later case, E.H. Bennett v. Millet 2 , the same learned Judge had to deal with a case where the companytract was in these terms -- We companyfirm that in the event of our introducing a purchaser who is able and willing to companyplete the transaction, our companymission will be in accordance with the recognized scale The plaintiffs introduced a prospective purchaser, Whom the companyrt found to have been at all times able 1 1941 A.C. 108. 2 1948 2 All. E.R. 929. and willing to purchase, but the defendant refused to companyplete. It was argued by the defendant that the qualification of the word purchaser in the plaintiffs letter was otiose and therefore should be struck out and the plaintiffs had number performed the companytract until they had introduced a person who actually. companypleted the purchase. It was held that the expression a purchaser who is able and willing to companyplete the transaction meant number a person who did, in fact, ultimately purchase the property, but one who was prepared to purchase it at the sellers price, and, as the estate agents had found such a person, they were entitled to their companymission. The learned Judge further stated that in ordinary parlance we do number use the word purchaser as necessarily restricted to a person who actually companypletes a transaction of purchase and sale. In my judgment, therefore, on the alternative interpretation which has been placed by the two companyrts below on the companymission numbere the word purchaser cannot be read in the strict sense in which it was read in Luxors case 1 , but should be read in the sense in which it is loosely used in companymon parlance, and that being so, the decision under appeal cannot be sustained.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 5 186 of 1989. From the Judgment and Order dated 31.8.1989 of the Delhi High Court in Company Appeal No. 35 of 1988. S. Nariman, Ashok K. Mahajan and Subhash Sharma for the Appellants. Anil B. Devan and Vinoo Bhagat for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ. Leave granted. This is an appeal from the judgment and order of the Division Bench of the High Court of Delhi, dated 31st August, 1989. The appellant No. 1--M s World Wide Agencies P Ltd. is a private limited companypany incorporated under the provisions of the Indian Companies Act, 1956 hereinafter referred to as the Act to which Table A of Schedule 1 to the Act applies, as stipulated under the Articles of Association of the companypany. As per the memorandum of association the appellant companypany was carrying on the business of travel agents at G-40, Connaught Circus, New Delhi. The authorised Share capital of the companypany was to the tune of Rs.5 lakhs divided into 5000 equity shares of Rs. 100 each. The paid up capital as per the last annual return filed by the companypany with the Registrar of Companies, was Rs.2,01,000. The companypany had at all relevant times 7 shareholders and the total number of shares subscribed and paid up was 2010 shares. The appellant No. 2 Mrs. Amrit Kaur Singh, at all relevant times, was a shareholder holding 545 fully paid up shares in the share capital of the companypany, and was also the whole-time working Director of the companypany, holding the office from 1974 onwards. Late Mr. S.K. Desor was a British national. He held 600 shares in the said companypany, acquired by him from the Ex-Managing Director Mr. Amrik Singh Saluja and his family. The respondents Nos. 2 3 to this appeal are children of late Mr. S.K. Desor who died on 5th March, 1985. As per the certified companyy of the annual return made up to 15th February, 1984 the shareholders of appellant No. 1 companypany were as follows Mr. S.K. Desor 600 shares Mrs. Amrit Kaur Singh 545 shares Mr. Yash Pal Malhotra 250 shares Mrs. Amrit Gupta 200 shares Mrs. Savitri Devi Kohli 5 shares Mr. A.S. Saluja 5 shares Mr. Balwant Singh 405 shares 2010 shares A petition under ss. 397 398 of the Act and in the alternative for winding up of the companypany was filed by the respondents on 25th March, 1985, wherein it was alleged that on 12th March, 1985 respondent No. 1, being the widow of late Mr. S.K. Desor, applied as a legal heir of late S.K. Desor to the Board of Directors of the appellantcompany for transmission of 850 shares held by her late husband. It is stated that the shares of Yash Pal Malhotra had been acquired by late Mr. S.K. Desor and that respondent No. 1 filed an affidavit of her daughter Ms. Kim Paul, relinquishing her claim to the shares of her late father. The Board of Directors resolved that they had numberobjection to transmission of the shares held by Mr. S.K. Desor but the actual transmission would take place on respondent No. 1s obtaining Reserve Bank of Indias permission and the succession certificate. The respondent No. 1s application for allotment of 5 shares as per her letter of the same date was allowed by the Board of Directors, and it was resolved that in view of allotment of these shares, her interest in the shares of her late husband, she be appointed as a Director of the companypany, subject to Reserve Bank of Indias permission. It is stated in the judgment under appeal that at the said meeting of the Board of Directors, they recorded their deep appreciation for the services rendered by late Mr. S.K. Desor as Managing Directorcum-Chairman of the companypany, and. mourned his passing away. The quorum of the said meeting was two--Mrs. Amrit Gupta and Mrs. Savitri Devi Kohli. It is recorded in the judgment under appeal that on 23rd March, 1985 the Board of Directors held another meeting. The minutes of the meeting of 12th March, 1985 were companyfirmed by the two above-mentioned Directors. The third Director, Mrs. Amrit K. Singh, however, objected as she stated that she had number been informed of the last meeting. Various averments had been made in the petition with regard to oppression and removal of certain valuables of Mrs. Amrit K. Singh and illegal operation of the bank accompanynt etc. It was also asserted that Mrs. Singh was holding 545 shares benami and these in fact belonged to Mr. S.K. Desor. A preliminary objection was raised on behalf of Mrs. Amrit K. Singh regarding the maintainability of the petition on the ground that the appellants were number members of the companypany as their names had number been recorded in the register of members. A further objection was taken that a companyposite petition under ss. 397 398 of the Act with an alternative prayer for winding up of the companypany was number maintainable. The learned single Judge of the High Court sitting as a Company Judge dealt with the application and held that the appellants who were the wife and children of late Mr. S.K. Desor and had obtained letters of administration. u s 290 of the Indian Succession Act read with s. 273 of the Act, as also the permission of the Reserve Bank of India, should be treated as members for the purpose of maintaining a petition u ss. 397 398 of the Act. The learned single Judge also held that a companyposite petition was maintainable. The appellant Mrs. Amrit K. Singh filed an appeal for herself and, as she alleged, as Working Director from the judgment and order dated 21st September, 1988 of the learned single Judge. It appears that the appellants, aggrieved thereby, had also moved this Court under art. 136 of the Constitution. This Court by its order dated 18th January, 1989 stayed the further proceedings before the learned single Judge and directed expeditious disposal of the appeal pending before the division bench or the High Court, from the said order of 21st September, 1988 which had been admitted on 13th October, 1988, for companysideration by the Division Bench of the High Court of the application for. directions. By a judgment and order delivered on 31st August 1989 the Division Bench dismissed the said appeal and held that the petition u s. 397 398 was maintainable by the respondents in the facts and circumstances of the case, and that a companyposite petition u ss. 397,398 433 f of the Act was maintainable. Aggrieved thereby, the appellants preferred this appeal to this Court. We are companycerned with two questions of law, namely, whether the legal heirs of a deceased shareholder can be treated as members of the companypany for the purpose of maintaining a petition u ss. 397 398 of the Act, and whether a companyposite petition under ss. 397, 398 433 f of the Act is maintainable. We had the advantage of hearing Mr. F.S. Nariman, companynsel for the appellants and Mr. Anil Diwan for the respondents. It may be mentioned that during the pendency of the appeal before the High Court, without prejudice to the rights and companytentions of the parties, an emergent meeting of the Board of Directors was directed by the High Court to be held on 28th January, 1989 to companysider the question of registration of 450 shares belonging to the deceased Mr. S.K. Desor in the name of Mrs. Margarat T. Desor and her son Sameer K. Desor, being respondents Nos. 1 3 respectively. It further appears that as per the directions of the Division Bench, dated 27th January, 1989 the companyrt had appointed Chairman Mr. C.K. Mahajan and Mrs. Margarat T. Desor were number permitted to vote at the said meeting. At a meeting held subsequent thereto, by a majority, it was resolved number to register the respondents Nos. 1 3 as members. It must, however, be numbered that the Division Bench vide its order dated 27th January, 1989 had directed that numbereffect would be given to the said Resolution. The question, therefore, which is material to be companysidered, is, whether the legal heirs of a deceased shareholder whose names are number entered in the register of members, are entitled to maintain petition u ss. 397 398 of the Act. It was companytended on behalf of the appellants that ss. 397 398 of the Act must be strictly companystrued. Section 397 of the Act which is in chapter VI of the Act under the heading Prevention of Oppression and Mismanagement, provides as follows Application to Court for relief in cases of oppression. 1 Any member of a companypany who companyplains that the affairs of the companypany are being companyducted in a manner prejudicial to public interest or in a manner oppressive to any member or members including any one or more of themselves may apply to the Court for an order under this section, provided such members have a right so to apply in virtue of section 399. If, on any application under sub-section 1 , the Court is of the opinion-- a that the companypanys affairs are being companyducted in a manner prejudicial to public interest or in a manner oppressive to any member or members, and b that to wind-up the companypany would unfairly prejudice such member or members, but that otherwise the fact would justify the making of a winding-up order on the ground that it was just and equitable that the companypany should be wound-up the Court may, with a view to bringing to an end the matters companyplained of, make such order as it thinks fit. On behalf of the appellants it was companytended that the right which is a specific statutory right, is given only to a member of the companypany and until and unless one is a member of the companypany, there is numberright to maintain application u s 397 of the Act. Mr. Nariman companytended that there was numberautomatic transmission of shares in the case of death of a shareholder to his legal heir and representatives, and the Board has a discretion and can refuse to register the shares. Hence, the legal representatives had numberlocus standi to maintain an application u ss. 387 398 of the Act. Mr. Nariman submitted that the rights under ss. 397 398 of the Act are statutory rights and must be strictly companystrued in the terms of the Statute. The right, it was submitted, was given to any member of a companypany and it should number be enlarged to include any one who may be entitled to become a member. In order to decide the question involved, it would be necessary to examine certain provisions of the Act. Section 2 27 of the Act states that member in relation to companypany does number include a bearer of a share-warrant of the companypany issued in pursuance of section 114 of the Act. Section 41 of the Act provides as follows The subscribers of the memorandum of a companypany shall be deemed to have agreed to become members of the companypany, and on its registration, shall be entered as members in its register of members. Every other person who agreed in writing to become a member of a companypany and whose name is entered in its register of members, shall be a member of the companypany. Section 26 of the English Companies Act, 1948 in substantially the same. Section 109 of the Act states as follows A transfer of the share or other interest in a companypany of a deceased member thereof made by his legal representative shall, although the legal representative is number himself a member, be as valid as if he had been a member at the time of the execution of the instrument of transfer. In this companynection, it would be relevant to refer to Articles 25 to 28 of Table A of the Act, which deal with the transmission of shares and which are in the following terms 25. 1 On the death of a member the survivor where the member was a joint ,holder, and his legal representatives where he was a sole holder, shall be the only persons recognised by the companypany as having any title to his interest in the shares. Nothing in clause 1 shall release the estate of a deceased joint holder from any liability in respect of any share which had been jointly held by him with other persons. 26. 1 Any person becoming entitled to a share in companysequence of the death or insolvency of a member may, upon such evidence being produced as may from time to time properly be required by the Board and subject as hereinafter provided, elect, either-- a to be registered himself as holder of the share or b to make such transfer of the share as the deceased or insolvent member companyld have made. The Board shall, in either case, have the same right to decline or suspend registration as it would have had, if the deceased or insolvent member had transferred the share before his death of insolvency. 27. 1 If the person so becoming entitled shall elect to be registered as holder of the share himself, he shall deliver or send to the companypany a numberice in writing signed by him stating that he so elects. If the person aforesaid shall elect to transfer the share, he shall testify his election by executing a transfer of the share. All the limitations, restrictions and provisions of these regulations resulting to the right to transfer and the registration of transfers of shares shall be applicable to any such numberice or transfer as aforesaid as if the death or insolvency of the member had number occurred and the numberice or transfer were a transfer signed by that member. A person becoming entitled to a share by reason of the death or insolvency of the holder shall be entitled to the same dividends or other advantages to which he would be entitled if he were the registered holder of the share, except that he shall number, become being registered as a member in respect of the share, be entitled in respect of it to exercise any right companyferred by membership in relation to meetings of the companypany Provided that the Board may, at any time, give numberice requiring any such person to elect either to be registered himself or to transfer the share, and if the numberice is number companyplied with within ninety days, the Board may thereafter withhold payment of all dividends, bonuses or other moneys payable in respect of the share, until the requirements of the numberice have been companyplied with. Article 28 is more or less in para materia to articles 32 of Table A to the English Companies Act. It may also be mentioned, as it has been mentioned by the High Court, that s. 210 of the English Companies Act, before its amendment in 1990, was substantially the same as s. 397 of the Act. As mentioned hereinbefore, it is the admitted case of the parties that the regulation for management of the companypany as companytained in Table A to the Act apply to appellant No. 1 and the said relevant provision in the articles of association of the companypany regarding transfer of shares is Article 17, which is as follows No share shall be transferred to any person other than a shareholder of the companypany so long as any member of the companypany is willing to purchase the same at fair value. This clause shall number apply to the executor of administrator of a deceased shareholder, if there is will or to the heir or lineal decendents where numberletter of administration has been taken. Mr. Nariman submits that in view of the specific provisions of s. 397 of the Act only a member is entitled to move a petition under ss. 397 and 398 of the Act and that member is one whose name is in the register of members in view of s. 41 of the Act, as mentioned hereinbefore. In this companynection, it is was emphasised that number only must the applicant be a member but in terms of s. 399 of the Act, he has to fulfil the companyditions laid down under clauses a and b of s. 399 of the Act. These should be companystrued so as to mean what the words say. According to Mr. Nariman, a member is number, in view of the scheme of the Act, the representative of a deceased member. It is true that it must be a member and s. 41 of the Act provides that a member of a companypany is a person who has applied in writing and whose name is entered in the register of members is entitled to move the petition. It appears in this case that names of respondent Nos. 2 and 3 had number then been entered in the register of members at the relevant time when the application was made. But the name of Late Shri S.K. Desor was still on the register of members and the requisite shareholding for moving a petition under ss. 397 and 398 of the Act was held by him. This question, though res integra so far as this companyntry is companycerned, has been companysidered in England, where Pennycuick, J. had occasion to companysider this in Re Jermyn Street Turkish Baths Ltd., 1970 3 All E.R. 57. The Company there was incorporated in 1946 and represented a joint venture by L and S. In 1952, S transferred his shareholding to Mrs. P who became a director of the companypany. L died in 1953 and thereafter Mrs. P was mainly responsible for the companypanys affairs. The petitioners therein were appointed administrators in Ls estate in 1960, and in 1961, at their request, the names of the petitioners therein were entered in the register of members of the companypany against the name of L as administrators of L. On the questions whether the entry companystituted merely a numbere of the grant of administration or the registration of the petitioners as members, and whether the petitioners were members of the companypany for the purposes of presenting a petition under s. 210 of the English Companies Act at p. 65 of the report, Pennycuick, J. numbered that it was companytended before him that the petitioners therein were number members of the companypany and hence had numberlocus standi to present the petition bearing in mind that petition under s. 210 of the English Companies Act companyld only be presented by a member of the companypany. In the facts of that case, Pennycuick, J. held that the petitioners were duly registered as members of the companypany but he proceeded to hold that even if it were so, the personal representatives of a deceased member must be regarded as members of the companypany for the purposes of S. 210 Of the English Companies Act. In this companynection, reference was made to the decision of Buckley, J. in Re Bayswater Trading Co. Ltd., 1970 1 All E.R. 608, where at p. 609 of the report, it was held that member would include representative of a deceased member for the purpose of s. 353 of the English Companies Act. This judgment of Pennycuick, J. went up in appeal to the Court of Appeal and it was reversed. See Re Jermyn Street Turkish Baths Ltd., 1970 3 All E.R. 184. But on the point whether the representative of a deceased member can maintain an action under s. 210 of the English Companies Act, the views of Pennycuick, J. were number reversed or modified. Mr. Nariman submitted that the observations of Pennycuick, J. were obiter for the decision of the case. We are unable to agree. Indeed, this was a point specifically referred to by Pennycuick, J. as being raised and specifically decided. But we need number detain ourselves with this companytroversy because the decision of the English Courts are number binding in the companyrts of India. But the observations or the reasoning are of persuasive value. We are clearly of the opinion that having regard to the scheme and the purpose of ss. 397 and 398 of the Act, the reasoning on a para materia provision of the English Act would be a valuable guide. The said companystruction, appears to us, to further the purpose intended to be fulfilled by petitions under ss. 397 and 398 of the Act. It facilitates solution of problems in case of oppression of the minorities when the member is dead and his heirs or legal representatives are yet to be substituted. This is an equitable and just companystruction. This companystruction, as suggested by Pennycuick, J. does number militate against either equity or justice of the such situation. We would, therefore, adhere to that companystruction. In this companynection, it may be mentioned that in the 1972 Edition of Gore-Browne on Companies, it has been stated as follows It has recently been settled that the personal representatives of a deceased member, even though they are number registered as members, are entitled to present a petition under s. 210. In Re. Jermyn Street Turkish Baths Ltd., Pennycuick, J. held that on its true companystruction section 210 required that the word member should include the personal representatives of a deceased member, on whom title of his shares devolved by operation of law. In 1st Supplement January 1978 of Gore-Browne on Companies, at para 16, it is stated that while the shares remain in the name of the deceased holder, his estate is prima facie entitled to any subsequent benefits deriving from the shares. At p. 491 of Buckley on Companies Act, 1948, the decision of Re Jermyn Street Turkish Baths Ltd. s case supra has also been referred to and it was observed that for the purpose of the petition under s. 210 of the English Companies Act, member includes the personal representatives of a deceased member. Buckley also numberes that this decision referred herein was reversed without affecting this point by the Court of Appeal. In Halsburys Laws of England, 4th Edition, Vol. 7, para 1010, at p. 604, same view has been expressed. The division bench of the Delhi High Court also numbericed that the view expressed in Re Jermyn Street Turkish Baths supra also finds indirect support from various other decisions of the English Courts. Reference was made to the decision in James v. Buena Venture Nitrate Grounds Syndicate Ltd., 1896 1 Chancery Division 456 Re Dlewellyn v. Kasintoe Rubber Estate Ltd., 1914 15 All E.R. 558 and New Zealand Gold Extraction Company Newberyyautin Proces Ltd. v. Peacock, 1894 1 Q.B. 622. These decisions do indicate that the right of members in similar, though number identical situations, should be companystrued as being belonging to the legal representative or heirs of deceased members. Our attention, however, was drawn to the decision of Supreme Court of Victoria in Re Meyer Dougals Pty. Ltd., 1965 V.R. 638 by Gowans, J. Article 22 of Table A to the Victorian Companies Act, 1938 4602 provides as follows that A person becoming entitled to a share by reason of the death, bankruptcy or insolvency of the holder shall be entitled to the same dividends and other advantages to which he would be entitled if he were the registered holder of the share, except that he shall number before being registered as a member in respect of the share be entitled in respect of it to exercise any right companyferred by membership in relation to meeting of the companypany. Gowans, J. in that case found that there was a careful distinction between members and persons entitled to share by reason of the death of a member but who are number registered appear to deny the status of a member to a legal personal representative who is number a member. On an analysis of various decisions, Gowans, J. was of the view that a deceaseds estate and its representative may in a particular companytext have to be treated as number a member and in view of the provisions of s. 186 1 of the Victorian Companies Act, 1961 which provides any member of a companypany who companyplains that the affairs of the companypany are being companyducted in manner oppressive to one or more of the members including himself may apply to the companyrt for an order under that section, Gowans, J. came to the companyclusion that there was numberreason for treating the word members in that section as number applying to a legal representative who is number entitled to be accorded the right which registration would give him to vote in regulating the companyduct of the companypanys affairs. The object of the section, which is in para materia to s. 399 of the Act, was to provide a remedy for the case where, numberwithstanding the fact that a person possesses the right of a member enabling him to participate in the companyduct of the affairs of the companypany, he can claim that he as a member or as one of a number of members, is or are being oppressed by those who companyduct the affairs of the companypany. According to Gowans, J., it should number be treated as applying to someone who is number so entitled and cannot so claim. With respect, we are unable to accept this view. Having regard to the purpose of the section as we companyceive it, it would number be just companystruction to deny the legal representatives of the deceased member the right of maintain a petition under ss. 397 and 398. We would prefer to accept the view of Pennycuick, J. in Re Jermyn Street Turkish Baths Ltd. s case supra . It appears to us that this will be in companysonance with the equity of the sections. In Gowers Principles of Modern Company Law, at p. 68, reference has been made to Re Jermyn Street Turkish Baths Ltd. s, case supra and also to Re Meyer Douglas Pry Ltd. s, case supra , which, according to the learned author, seems to be more companyvincing. Mr. Nariman also referred us to the companyments in Hahlos Casebook on Company Law, 2nd Edition, p. 35 1, where in footnote, reference was made to Re Jermyn Street Turkish Baths Ltd. s, case supra , which have been followed in some decisions. It was numbered as follows It appears doubtful whether personal representatives of deceased shareholders, who themselves are number, or cannot become, registered as shareholders, can be regarded as members for the purposes of s. 210 of the 1948 Act Re Cuthburt Cooper Sons Ltd., 1937 Ch. 392 and Re Meyer Douglas Ltd., 1965 V.R. 635 at 655. We do number agree for the reason mentioned before. It further appears to us the Australian judgment does number reconcile to logic in accepting that legal representative can petition for winding-up, which is called the sledgehammer remedy, but would refuse the lesser and alternative remedy of seeking relief against oppression and mismanagement though the latter remedy requires establishment of winding-up on just and equitable grounds as a precondition for its invocation. It would be rather incongruous to hold that the case for winding-up on just and equitable grounds can be made out by the legal representatives under s. 439 4 b of the Act but number the other. This does number appear to be logical. It appears to us that to hold that the legal representatives of a deceased shareholder companyld number be given the same right of a member under ss. 397 and 398 of the Act would be taking a hyper-technical view which does number advance the cause of equity or justice. The High Court in its judgment under appeal proceeded on the basis that legal representatives of a deceased member represent the estate of that member whose name is on the register of members. When the member dies, his estate is entrusted in the legal representatives. When, therefore, these vestings are illegally or wrongfully affected, the estate through the legal representatives must be enabled to petition in respect of oppression and mismanagement and it is as if the estate stands in the shoes of the deceased member. We are of the opinion that this view is a companyrect view. It may be mentioned in this companynection that succession is number kept in abeyance and the property of the deceased member vests in the legal representatives on the death of the deceased and they should be permitted to act for the deceased member for the purpose of transfer of shares under s. 109 of the Act. In some situations and companytingencies, the member may be different from a holder. A member may be a holder of shares but a holder may number be a member. In that view of the matter, it is number necessary for the present purpose to examine this question from the angle in which the learned Single Judge of the Calcutta High Court analysed the position in the case of Kedar Nath Agarwal v. Jay Engineering Works Ltd. and Ors., 1963 33 Company Cases 102, to which our attention was drawn. Admittedly in the present case, the legal representatives have been more than anxious to get theft names put on the register of members in place of deceased member, who was the Managing Director and Chairman of the companypany and had the companytrolling interest. It would, therefore, be wrong to insist their names must be first put on the register before they can move an application under ss. 397 and 398 of the Act. This would frustrate the very purpose of the necessity of action. It was companytended on behalf of the appellant before the High Court that if legal representatives who were only potential members or persons likely to companye on the register of members, are permitted to file an application under ss. 397 and 398 of the Act, it would create havoc, as then persons having blank transfer forms signed by members, and as such having a financial interest, companyld also claim to move an application under ss. 397 and 398 of the Act. The High Court held that this is a fallacy, that in the case of persons having blank transfer forms, signed by members, it is the members themselves who are shown on the register of members and they are different from the persons with the blank transfer forms whereas in the case of legal representatives it is the deceased member who is shown on the register and the legal representatives are in effect exercising his right. A right has devolved on them though the death of the member whose name is still on the register. In our opinion, therefore, the High Court was pre-eminently right in holding that the legal representatives of deceased member whose name is still on the register of members are entitled to petition under ss. 397 and 398 of the Act. In the view we have taken, it is number necessary to companysider the companytention whether as on the date of petition, they were number members. In that view of the matter, it is number necessary for us to companysider the decision of this Court in Rajahmundry Electric Supply Corpn. Ltd. v. A. Mageshwara Rao Ors., AIR 1956 SC 2 13. In view of the observations of this Court in Life Insurance Corporation of India v. Escorts Limited Ors., AIR 1986 SC 1370 at p. 1412, it is number necessary, in our opinion, to companysider the companytention as made on behalf of the appellant before the High Court that the permission of the Reserve Bank of India had been erroneously obtained and companysequently amounts to numberpermission. In the present companytext, we are of the opinion that the High Court was right in the view it took on the first aspect of the matter. The second question was whether a companybined petition under ss. 397, 398 and 433 f of the Act was maintainable. In view of the observations of this Court in Shanti Prasad Jain v. Kalinga Tubes, 1965 35 Company Cases 363 and the reasoning of the Bombay High Court in Bilasrai Joharmal Ors. v. Akola Electric Supply Co. Pvt. Ltd., 28 Company Cases 549, we are of the opinion that the averments which a petitioner would have to make to invoke the jurisdiction under ss. 397 and 398 are number destructive of the averments which are required to be made in a case for winding up under s. 433 f of the Act on the just and equitable ground, though they may appear to be companytradictory. As Halsburys Laws of England, 4th Edition, Volume 7, at p. 604-605, discusses that the prayer must be made stating that the affairs are such which fulfil the requirement of winding up but to wind up the companypany would unfairly prejudice that part of the members, but otherwise the facts would justify the making of a winding up order on the ground that it was just and equitable that the companypany should be wound up, the Court may, with a view to bringing to an end the matters companyplained of, make such order as it thinks fit, whether for regulating the companyduct of the companypanys affairs in future or otherwise. We are of the opinion that averments which a petitioner would have to make to invoke the jurisdiction of ss. 397 and 398 of the Act are number destructive of the averments which are required to be made in a case for winding up under s. 433 f on the just and equitable ground, though they may appear to be rather companyflicting if number companytradictory. We are in agreement with the High Court that the petition must proceed upto certain stage which is companymon to both winding up and though there may be some difference in procedure to be adopted, it is number such which is irreconcilable and cannot simultaneously be gone into. Indeed these are made in the manner indicated before. It has to be borne in mind that a discretion is companyferred on the companyrt and it is only when the Court is satisfied that the facts justify the making of a winding up order on the ground that it is just and equitable that the companypany should be wound up, but if the Court is further of the opinion that it would be a remedy worse than the disease, then the Court can examine whether the alternative relief by way of a direction under s. 397 can be granted. This is a well accepted remedy exercised by the Courts. We are, therefore, of the opinion that the High Court.was right in the view that a companyposite petition under ss.
2001 Supp 2 SCR 454 The Judgment of the Court was delivered by G. BALAKRISHNAN, J. Leave granted. This appeal is directed against the judgment of the learned Single Judge of the High Court of Madras in Criminal Appeal No. 486 of 1999 reversing the order of acquittal passed by the Metropolitan Magistrate, Madras. The learned Single Judge found the appellant guilty of the offence under Section 494 1PC. The appellant, S. Nagalingam married respondent-complainant Sivagami on 6.9.1970. Three children were born from that wedlock. The respondent alleged that the appellant started ill-treating her and on many occasions she was physically tortured. As a result of ill-treatment and severe torture inflicted by the appellant as well as his mother, she left her marital home and started staying with her parents. While so, the respondent came to know that the appellant had entered into a marriage with another woman on 18.6.1984, by name Kasturi, and that the marriage was performed in a Marriage Hall at Thiruthani. The respondent then filed a criminal companyplaint before the Metropolitan Magistrate against the appellant and six others. All the accused were acquitted by the trial companyrt. Aggrieved thereby, the respondent filed criminal appeal No. 67 of 1992 before the High Court of Madras. The learned Single Judge, by his judgment dated 1.11.1996 upheld the acquittal of accused 2-7, but as regards the acquittal of the appellant, the matter was remitted to the trial companyrt permitting the companyplainant to adduce evidence regarding the manner in which the marriage was solemnized. Upon remand the Priest PW-3, who is alleged to have performed the marriage of the appellant with the second accused, Kasturi, on 18.6.1984, was further examined and the appellant was allowed further cross-examination. The learned Metropolitan Magistrate by his judgment dated 4.3.1999 acquitted the accused. Aggrieved by the state judgment, the respondent preferred a criminal appeal before the High Court of Madras. By the impugned judgment, the learned Single Judge held that the appellant had companymitted the offence punishable under Section 494 IPC. This is challenged before us. We heard Mr. R. Sundravardan, learned senior companynsel for the appellant. The respondent Sivagami appeared in person and she filed some documents in companyrt. Though she was offered the assistance of a companynsel, she declined to avail herself of that opportunity. The short question that arises for our companysideration is whether the second marriage entered into by appellant with the second accused. Kasturi, on 18.6.1984 was a valid marriage under Hindu Law so as to companystitute an offence under Section 494 IPC. The essential ingredients of the offence under Section 494 IPC are I the accused must have companytracted the first marriage ii whilst the first marriage was subsisting, the accused must have companytracted a second marriage and iii both the marriages must be valid in the sense that necessary ceremonies governing the parties must have been performed. Admittedly, the marriage of the appellant with the respondent, entered into by them on 6.9.1970, was subsisting at the time of the alleged second marriage. The Metropolitan Magistrate held that an important ceremony, namely, Saptapadi had number been performed and therefore, the second marriage was number a valid marriage and numberoffence was companymitted by the appellant. The learned Single Judge reversing this decision in appeal held that the parties are governed by Section 7-A of the Hindu Marriage Act as the parties are Hindus residing within the State of Tamil Nadu. It was held that there was a valid second marriage and the appellant was guilty of the offence of bigamy. In the companyplaint filed by the respondent, it was alleged that the appellant had companytracted the second marriage and this marriage was solemnised in accordance with the Hindu rites on 18.6.1984 at RCC Mandapam, Tiruttani Devasthanam. To support this companytention, PWs 2 3 were examined. PW-3 gave detailed evidence regarding the manner in which the marriage on 18.6.1984 was performed. Learned companynsel for the appellant companytended that as per the evidence of PW-3, it is dear that Saptapadi, an important ritual which forms part of the marriage ceremony, was number performed and therefore, there was numbervalid marriage in accordance with Hindu rites. It is undoubtedly true that the second marriage should be proved to be a valid marriage according to the personal law of the parties, though such second marriage is void under Section 17 of the Hindu Marriage Act having been performed when the earlier marriage is subsisting. The validity of the second marriage is to be proved by the prosecution by satisfactory evidence. In Kanwal Ram and Ors. v. H.P. Administration AIR, 1966 SC 614 this Court held that in a bigamy case, the second marriage is to be proved and the essential ceremony required for a valid marriage should have been performed. It was held that mere admission on the part of the accused may number be sufficient. The question as to whether Saptapadi, is an essential ritual to be performed, came up for companysideration of this Court in some cases. One of the earliest decisions of this Court is 1971 1 SCC 864 Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh wherein it was held that the second marriage should be a valid one according to the law applicable to the parties. In that case, there was numberevidence regarding the performance of the essential ceremonies, namely. Datta Homa and Saptapadi. In paragraph 25 of the judgment, it was held that the learned Sessions Judge and the High Court have categorically found that Homa and Saptapadi are the essential rites for a marriage according to the law governing the parties and there is numberevidence that these two essential ceremonies have been performed when the respondent is stated to have married Sandhya Rani. It is pertinent to numbere that in paragraph 9 of the judgment it is stated that both sides agreed that according to the law prevalent amongst the parties. Homa and Saptapadi were essential rites to be performed to companystitute a valid marriage. Before this Court also, the parties on either side agreed that according to the law prevalent among them, Homa and Saptapaid were essential rites to be performed for solemnization of the marriage and there was numberspecific evidence regarding the performance of these two essential caremonies. 1979 3 SCC 80 Lingari Obulamma v. L. Venkata Reddy and Ors., was a case where the High Court held that two essential ceremonies of a valid marriage, namely datta homa and sapathapadi taking seven steps around the sacred fire were number performed and, therefore, the marriage was void in the eye of law. This finding was upheld by this Court. The appellant therein companytended that among the Reddy companymunity in Andhra Pradesh, there was numbersuch custom of performing datta homa and saptapadi, but the High Court held that under the Hindu Law these two ceremonies were essential to companystitute a valid marriage and rejected the plea of the appellant on the ground that there was numberevidence to prove that any of these two ceremonies had been performed. The finding of the High Court was upheld by this Court that there was numberevidence to prove a second valid marriage. In 1991 Supp 2 SCC 616 Santi Deb Berma v. Kanchan Prava Devi also, the appellant was acquitted by this Court as there was numberproof of a valid marriage as the ceremonial Saptapadi was number performed. This Court numbericed in this case also that the High Court proceeded on the footing that according to the parties, performance of Saptapadi is one of the essential ceremonies to companystitute a valid marriage. Another decision on this point is 1994 5 SCC 545 Laxmi Devi v. Satya Narayan and Ors., wherein, this Court, relying on an earlier decision in 1971 1 SCC 864 supra , held that there was numberproof mat Saptapadi was performed and therefore, there was numbervalid second marriage and that numberoffence of bigamy was companymitted. In the aforesaid decisions rendered by this Court, it has been held that if the parties to the second marriage perform traditional Hindu form of marriage. Saptapadi and Datta Homa are essential ceremonies and without there being these two ceremonies, there would number be a valid marriage. In the instant case, the parties to the second marriage, namely the appellant. Nagalingam, and his alleged second wife, Kasturi, are residents of the State of Tamil Nadu and their marriage was performed at Thiruthani Temple within the State of Tamil Nadu. In the Hindu Marriage Act, 1955, there is a State Amendment by the State of Tamil Nadu, which has been inserted as Section 7-A. The relevant portion thereof is as follows 7-A. Special provision regarding suyamariyathai and seerthiruththa marriages- 1 This section shall apply to any marriage between any two Hindus, whether called suyamariyathai marriage or seerthiruththa marriage or by any other name, solemnized in the presence of relatives friends or other persons- a by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife or, as the case may be, her husband or b by each party to the marriage garlanding the other or putting a ring upon any finger of the other or c by the tying of the thali. 2 a Notwithstanding anything companytained in Section 7, but subject to the other provisions of this Act, all marriages to which this section applies solemnized after the companymencement of the Hindu Marriage Madras Amendment Act, 1967, shall be good and valid in law. Notwithstanding anything companytained in Section 7 or in any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the companymencement of the Hindu Marriage Madras Amendment Act, 1967, or in any other law in force immediately before such companymencement in any judgment, decree or order of any companyrt, but subject to sub-section 3 , all marriages to which this section applies solemnized at any time before such companymencement, shall be deemed to have been with effect on and from the date of the solemnization of each such marriage, respectively, good and valid in law. 3 a i ii b c 4 Section 7-A applies to any marriage between two Hindus solemnized in the presence of relatives, friends or other persons. The main thrust of this provision is that the presence of a priest is number necessary for the performance of a valid marriage. Parties can enter into a marriage in the presence of relatives or friends or other persons and each party to the marriage should declare in the language understood by the parties that each takes other to be his wife or, as the case may be, her husband, and the marriage would be companypleted by a simple ceremony requiring the parties to the marriage to garland each other or put a ring upon any finger of the other or tie a thali. Any of these ceremonies, namely garlanding each other or putting a ring upon any finger of the other or tying a thali would be sufficient to companyplete a valid marriage. Sub-section 2 a of Section 7-A specifically says that numberwithstanding anything companytained in Section 7, all marriages to which this provision applies and solemnized after the companymencement of the Hindu Marriage Madras Amendment Act, 1987 shall be good and valid in law. Sub-section 2 b further says that numberwithstanding anything companytained in Section 7 or in any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the companymencement of the Hindu Marriage Madras Amendment Act 1967, or in any other law in force immediately before such companymencement or in any judgment, decree or order of any companyrt, all marriages to which this section applies solemnized at any time before such companymencement, shall be deemed to have been valid. The only inhibition provided is that this marriage shall be subject to Sub-Section 3 of Section 7-A. We need number elaborately companysider the scope of Section 7-A 3 as that is number relevant for our purpose. The evidence in this case as given by PW-3 clearly shows that there was a valid marriage in accordance with the provisions of Section 7-A of the Hindu Marriage Act. PW-3 deposed that the bridegroom brought the Thirumangalam and tied it around the neck of the bride and thereafter the bride and the bridegroom exchanged garlands three times and the father of the bride stated that he was giving his daughter to Kanniyathan on behalf of and in the witness of Agnidevi and the father of the bridegroom received and accepted the Kanniyathan. PW-3 also deposed that he performed the marriage in accordance with the customs applicable to the parties. Under such circumstances, the provisions of Section 7-A, namely, the State Amendment inserted in the Statute are applicable and there was a valid marriage between the appellant and Kasturi. Moreover, neither companyplainant number the appellant had any case that for a valid marriage among the members of the companymunity to which they belong, this ceremony of Saptapadi was an essential one to make it a valid marriage. Section 7 of the Hindu Marriage Act says that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto and where such rites and ceremonies include the Saptapadi, i.e. the taking of seven steps by the bridegroom and the bride jointly before the sacred fire the marriage becomes companyplete and binding when the seventh step is taken. Saptapadi was held to be an essential ceremony for a valid marriage only in cases it was admitted by the parties that as per the form of marriage applicable to them that was an essential ceremony. The appellant in the instant case, however, had numbersuch case that Saptapadi was an essential ceremony for a valid marriage as per the personal law applicable whereas the provisions companytained in Section 7-A are applicable to the parties. In any view of the matter, there was a valid marriage on 18.6.1984 between the appellant and the second accused, Kasturi. Therefore, it was proved that the appellant had companymitted the offence of bigamy as it was done during the subsistence of his earlier marriage held on 6.9.1970.
R. Khanna, J. This is an appeal by special leave by the Gujarat University against the judgment of the Gujarat High Court, whereby the University was restrained from giving effect to the appointment of M. Majumdar, respondent No. 2, as the Reader in the Labour Welfare Department of the University in pursuance of a resolution of the Syndicate, Annexure A, and letter, Annexure B. That resolution and letter were held to be invalid. At the hearing of the appeal it has been brought to our numberice that Majumdar respondent is numberlonger Reader in the Labour Welfare Department and that he has since been appointed a Professor in the University and companyfirmed as such. It is plain that in view of that the present appeal has become infructuous. At the same time, we would like to make it clear that we express numberopinion with regard to the validity of the proceedings of the Academic Council whereby a member of the selection companymittee was appointed. We also express numberopinion about the companyrectness of the judgment of the High Court regarding the validity of the resolution at Annexure A and the letter of appointment at Annexure B. It has been also brought to our numberice that in pursuance of the letter of appointment, Majumdar respondent performed the functions of the Reader in the Labour Welfare Department for some time.
Heard both sides. The petitioner is the wife of the respondent and the respondent had filed a petition for divorce of the marriage before the Principal Family Court at Bangalore. The petitioner-wife is residing at Rajapalayam town in Tamil Nadu and seeks transfer of the M.C.No.552/06 titled as Jayaguru Vs. Lalitha, pending in the Principal Family Court at Bangalore to the District Court at Srivilliputur Tamil Nadu .
S. THAKUR, J. Leave granted. These appeals are directed against an order dated 30th July, 2010 passed by the High Court of Madhya Pradesh in Writ Petitions Nos. 6876 and 8979 of 2009 whereby a total of 15 seats in the 1st year MBBS companyrse have been directed to be reduced from out of the management quota of the appellant-college for the academic session 2010-2011, with a direction to the Admission and Fee Regulator Committee to ensure that the order passed by the Court is carried out in letter and spirit. The facts giving rise to the filing of the writ petitions may be summarized as under For the academic session 2006-2007 the appellant-M s R.D. Gardi Medical College, Ujjain, admitted to the first year of MBBS companyrse as many as 19 students who had number secured 50 marks in the examination companyducted by the Association of Private Medical and Dental College of M.P. The legality of the said admissions came up for scrutiny before the High Court who declared the same to be illegal hence liable to be cancelled. Aggrieved by the said order the affected students approached this Court in Civil Appeal Nos.5518-5521 of 2008 which were disposed of by this Court by an order dated 4th September, 2008 holding that the companylege was number justified in giving admission to students who were number eligible in terms of the relevant rules. This Court, however, permitted the students to companytinue their studies but directed that an equal number of seats shall be reduced from the management quota of the companylege for the academic session 2009- 2010. This Court said The management of the R.D. Gardi Medical companylege was number justified in giving admission to these students. Certainly, they must be aware of the fact that the candidates should have secured at least 50 marks in the entrance examination but the learned senior companynsel appearing for the companylege says that they were number aware of the marks secured by these candidates as the entrance examination was held by a different association as the marks were number furnished to them by the association. However, as the admission is found to be irregular, equal number of students shall be reduced from the management quota for the year 2009-10. The appeals are disposed of accordingly. No companyts. emphasis supplied By an order dated 22nd April, 2009 passed by the High Court in Writ Petitions No.5592 of 2008 and 5624 of 2008, on the analogy of the order of this Court extracted above two more seats against which the said petitioners were admitted without satisfying the essential companydition of eligibility were also directed to be reduced from management quota of the appellant-college for the academic session 2009-2010 thereby taking the total number of seats to be reduced from the quota of the management to 21. On the receipt of the orders abovementioned the Medical Council of India sent a companymunication dated 26th May, 2009 requesting the Principal Secretary, Government of Madhya Pradesh and the Director of Medical Education, Madhya Pradesh to fill up 21 seats 19 admission as per the Order of this Court dated 4th September, 2008 and 2 admission as per the order dated 22 nd April, 2009 passed by the High Court of Madhya Pradesh through MPCET entrance test for the academic session 2009-2010. Writ Petition No.2732 of 2009 filed by the private educational institutions before the High Court of Madhya Pradesh challenging the companystitutional validity of what is known as M.P. Niji Vyavsayik Shikshan Sanstha Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan Adhiniyam, 2007 was in the meantime disposed of by the High Court on 21st May, 2009, aggrieved whereof the private educational institutions filed Civil Appeal No.4060 of 2009 in this Court by special leave. This Court numbericed that the companymon question of law that arose in the said batch of appeals was as to how far it was permissible under the Constitution for the State to companytrol and regulate admissions and fee in private unaided professional educational institutions in the State of Madhya Pradesh. Relying upon the decisions rendered by this Court in T.M.A. Pai Foundation v. State of Karnataka 2002 8 SCC 481, Islamic Academy of Education v. State of Karnataka 2003 6 SCC 697 and P.A. Inamdar Ors. v. State of Maharashtra Ors. 2005 6 SCC 537 this Court prima facie came to the companyclusion that the impugned enactment in so far as the same handovers the entire selection process to the State Government or the agencies appointed by it for under-graduate, graduate and post-graduate medical dental companyleges and fee fixation was companytrary to the observations made by the 11-Judges Bench of this Court in T.M.A. Pais case supra . This Court further observed that a literal interpretation of the Act would render the same unconstitutional. An interim arrangement was accordingly made under which 15 seats were to be first excluded towards NRI quota to be filled up by the private institutions as per the observations made by this Court in Inamdars case supra . Out of remaining 85 seats available for admission to the under-graduate and post-graduate companyrses 50 were to be given to the State Government while the remaining 50 were to be filled up on the basis of a selection process to be companyducted by the Association of Private Medical and Dental Colleges who were to hold their own separate entrance examinations for the purpose. The following passage from the said order is, in this regard, relevant We, therefore, direct that the admissions in the private unaided medical dental companyleges in the State of Madhya Pradesh will be done by first excluding 15 R.I. seats which can be filled up by the private institutions as per para 131 of Inamdars case , and allotting half of the 85 seats for admission to the under-graduate and post-graduate companyrses to be filled in by an open companypetitive examination by the State Government, and the remaining half by the Association of the Private Medical and Dental Colleges. Both the State Government as well as the Association of Private Medical and Dental companyleges will hold their own separate entrance examination for this purpose. As regards the NRI Seats, they will be filled as provided under the Act and the Rules, in the manner they were done earlier. We make it clear that the aforesaid directions will for the time being only be applicable for this academic year i.e. 2009-10. We also make it clear that if there are an odd number of seats then it will be rounded off in favour of the private institutions. For example, if there are 25 seats, 12 will be filled up by the State Government and 13 will be filled up by the Association of Private Medical Dental Colleges. In Specialities in P.G. companyrses also half the seats will be filled in by the State Government and half by the Association of Private Medical Dental Colleges and any fraction will be rounded off in favour of the Association. In other words if in any discipline there are, say, 9 seats, then 5 will be filled in by the Association and remaining 4 will by the State Government. Capitation fee is prohibited, both to the State Government as well as the private institutions, vide para 140 of Inamdars case supra . Both the State Government and the Association of Private Medical Dental Colleges will separately hold single window examinations for the whole State vide para 136 of Inamdars case supra . The Government of Madhya Pradesh companystituted a Counseling Committee companyprising of nine bureaucrats and the Secretary of the Association. The said Committee undertook an exercise for distribution and allocation of seats in the appellant-college for the academic session 2010-11 in companypliance with order dated 4th September, 2008 passed by this Court and that passed by the High Court of Madhya Pradesh on 22nd April, 2009. We shall presently deal with the allocation so made by the Committee but before we do so we need to point out that Writ Petition No.8979 was filed by Nidhi Ahankari and another in public interest, inter alia, praying for a writ of certiorari quashing the allocation and distribution of seats made by the appellant-college and a mandamus directing that 46 seats of the said companylege and 21 seats of management quota making a total of 67 seats be filled up by the State Government on the basis of the merit of the candidates in the PMT quota. The writ petition alleged that the allocation of seats between the management and the State was number proper number was the reduction of 21 seats from the management quota given effect to as directed by this Court. The result, alleged the petitioners, was that the meritorious candidates entitled to said quota were deprived of admission to the appellant-college. By an interim order passed by the High Court on 23rd July, 2010 the appellant was directed to keep 10 seats vacant out of the seats filled by the APDMC of the appellant-college as the High Court was prima facie of the opinion that calculation and allocation of seats required to be surrendered by the companylege, was wrong and that the appellant had been permitted to fill up the seats in violation of the orders passed by this Court. That order was followed by an order dated 30th July, 2010 impugned in the present appeal allowing the writ petitions and directing 10 seats to be reduced from out of the management quota for the academic session 2010-11 in companypliance with the order of this Court dated 4th September, 2008 and that passed by the High Court of Madhya Pradesh on 22nd April, 2009. The High Court took the view that 21 seats permitted to be reduced from the management quota had been erroneously reduced from the total of 100 seats available in the companylege which was number companyrect understanding of the order passed by this Court on 4th September, 2008 and that passed by the High Court in Writ Petition No.6876 of 2009 dated 31st August, 2009. The High Court observed What was proposed by the State Government in its return had the effect of reducing 21 seats out of total available 100 seats which included a seat of the State quota also whereas there was clear direction of the Apex Court in its order dated 4.9.2008 and the order of this Court in Writ Petition Nos.5592/2008 5654/2008 decided on 22.4.2009 to reduce the management quota seats only. The State initially wanted to benefit the management by its action and wanted to proceed on the basis of what was proposed by the College. There was numberroom to violate the aforesaid order also passed on 31.8.2009. There was absolutely numberroom to entertain any doubt whatsoever as the orders passed by the Supreme Court and this Court clearly indicate that the seats were to be reduced out of the management quota. But seats were reduced from State quota also resulting in filling of 10 seats than permissible by D. MAT by College. In so far as NRI seats for the session 2009-10 were companycerned, the High Court numbericed that 10 seats had remained vacant in the State quota as only 5 of such seats were filled up. Unfilled NRI seats had, therefore, to be shared between the State and the appellant-college in equal proportion. The High Court rejected the companytention that the said seats had to be filled up entirely by the management of the companylege. It observed It is submitted by Shri Rajendra Tiwari senior companynsel appearing on behalf of the Management that the Supreme Court has mentioned that the seats of NRI quota have to be filled in as used to be done earlier. Thus, the Supreme Court meant the seats were to be filled in by APDMC. The aforesaid submissions cannot be accepted in view of the order passed by the Supreme Court. There was numberdirection issued by the Supreme Court that the unfilled NRI seats are to be filled in by the students on the basis of the DMAT examination companyducted by APDMC. The intention of the order is clear that out of the available seats, 50 are to be filled in by the State quota and 50 by DMAT examination. The High Court accordingly directed 5 seats which were wrongly filled up by the management of the companylege for the session 2009-10 to be reduced from out of the management quota taking the total number of seats to be reduced for the session 2010-2011 to 15. The Court observed Thus, we direct 5 seats in addition to the 10 seats which have been agreed to be reduced in the aforesaid part of the order total 15 seats be surrendered by the Institution to the State quota for the year 2010-2011. The management quota shall stand reduced by further 15 seats for the year 2010- 2011. The present appeals, as numbericed earlier assail the companyrectness of the above directions. We have heard learned companynsel for the parties at companysiderable length and gone through the record including the orders passed by this Court and those passed by the High Court of Madhya Pradesh. These appeals, in our opinion, are an abuse of the process of law. We say so for two precise reasons. Firstly, because the order passed by the High Court has on more than one occasions recorded the companysent of the appellant-institution to the reduction of 10 seats from the management quota during the session 2010-2011. The High Court has in para 12 observed In writ petition No.6876/2009, relief has been prayed with respect to the ten seats which were filled in by the College out of APDMC. The College has agreed to surrender 10 seats which were illegally filled by it in 2009-2010 out of available seats for the academic sessions 2010-2011 out of the management quota seats. emphasis supplied Again in para 25 of the order, the High Court has recorded the agreement of the institution to the reduction of 10 seats from its quota for the academic session 2010-2011 so that the directions issued by this Court on 4th September, 2008 and those issued by the High Court of Madhya Pradesh on 22nd April, 2009 were companyplied with. The High Court has observed Accordingly, the Writ Petition is allowed. We direct 10 seats as agreed by the - College to be reduced of the management quota for the academic session 2010- 2011 in order to companyply with the order passed by the Supreme Court on 4.9.2008 in SLP Civil Nos.17990- 17991/2008 and the order dated 22.4.2009 passed by this Court in Writ Petition Nos.5592/2008 5654/2008 which has been agreed to the Institution. In addition, we direct 5 more seats are to be reduced out of the management quota for 2010-2011 as 5 excess seats which remained vacant out of NRI quota were filled by the management of 2009-2010 though they were required to be filled in by the State quota on the basis of PMT. Thus, further 5 seats of the management quota shall stand reduced on this companynt for the academic sessions 2010-2011. emphasis ours We find it difficult to appreciate how the institution can question the direction issued by the High Court regarding the reduction of 10 seats after having agreed to such reduction before the High Court. That apart, a plain reading of the order of this Court dated 4th September, 2008 and the orders passed by the High Court in the companynected matters dated 22nd April, 2009, leave numbermanner of doubt that the reduction of the seats had to be from out of the management quota alone. The interim order passed by this Court in Civil Appeal No.4060 of 2009 on 27th May, 2009 clearly specified that the NRI seats to the extent of 15 of the total number of seats, shall be first reduced from the total and the balance 85 shared half and half between companylege and the State. Instead of doing so, the Counseling Committee and the govt. officials adopted a wrong method of calculating the seats by reducing 21 seats from the total number of 100 seats. The above method of calculation was number the companyrect method to be adopted in the matter. The Committee allocated the seats in the following manner Name of Total NRI Pvt. State PH UR ST SC OBC Total Institution Seats Quota Quota D. Gardi 100 15 32 3221 2 26 10 8 7 51 Medical -21 53 UR College, 79 Ujjain OBC The direction of this Court that 15 seats towards NRI will be first reduced from the total has been ignored by the authorities. By doing so the reduction of 21 seats has taken place vis--vis number only the management quota but even the State quota. This Court had never directed reduction of any seat from the State quota. The reduction had to be only from the management quota, for it was the management who had companymitted an irregularity which it was directed to companyrect by surrendering an equal number of seats to the State. It was companytended by learned companynsel for the appellants that the direction regarding reduction of 21 seats from management quota was issued by this Court at a time when the management had 100 seats to its share which position had changed on account of the interim direction of this Court in Civil Appeal No.4060 of 2009. There is, in our opinion, numbermerit in that companytention. So long as the order of this Court directing reduction from out of the management share of seats was capable of being implemented and enforced and so long as there were enough number of seats from out of which it companyld be made to surrender the requisite number of seats, it did number make any difference whether the management had 100 seats available to it or a lesser number. Even after the interim order passed by this Court, the management had at least 43 seats in its quota for the session 2009- 2010 to companyply with the direction of this Court. In as much as the management failed to do so with or without the support or companynivance of the State authorities who were charged with the duty of companyplying with the direction of this Court it companymitted a mistake which companyld be companyrected by directing surrender of the requisite number of seats to the State for the session 2010-2011. The direction, therefore, by the High Court to that effect was perfectly justified. Coming then to the question whether the direction regarding surrender of 5 unfilled NRI seats for the session 2009-2010 to the State was justified we need only mention that the High Court has companyrectly interpreted the order of this Court and rightly held that unfilled NRI seats to be shared equally between the companylege and the management. Inasmuch as the appellant-college had utilized the unfilled NRI seats all by itself it had companymitted clear irregularity justifying reduction of the excess seats during the session 2010-2011. This Court had directed the NRI seats to be filled up in accordance with the Act and the Rules. Rule 8 of Admission Rules 2008 in this regard relevant may be extracted Rule 8 For remaining vacant seats the sequence of admission shall be as under Firstly 15 seats shall be filled by management of the respective institution by NRI candidates only they are available. If sufficient number of NRI candidates are number available remaining vacant seats shall be merged into general pool. Seats in general pool shall be filled on the basis of merit of state level companymon entrance test companyducted by Madhya Pradesh Vyavasyik Pariksha Mandal or may other agency authorized by the state government for this purpose. Secondly remaining seats shall be filled on the basis of merit of National level test as decided by the State Government.
CIVIL APPELLATE JURISDICTION Civil Appeals No. 406 and 407 of 1964. Appeals by special leave from the award dated October 8, 1963 of the Industrial Tribunal, Maharashtra, in Reference IT No. 147 of 1962. D. Vimadalal, B. Dutta, J. B. Dadachanji, 0. C. Mathur and Rajinder Narain, for the appellant in C.A. No. 406 of 1964 and the respondent in C.A. No. 407 of 1964 . C. Setalvad, K. T. Sule, Madan G. Phadnis, Jatindra Sharma and Janardan Sharma, for the respondent in C.A. No. 406 of 1964 and the appellant in C. A. No. 407 of 1964 . K. Ramamurthi, for intervener No. 1. R. K. Pillai, and M. S. K. Iyengar, for intervener No. 2. The Judgment of the Court was delivered by Subba Rao, C. J. These two Cross Appeals raise the question, among others, whether the wage structure, including dearness allowance, of a Government undertaking in the public sector should be of a pattern different from that of an undertaking in the private sector. The Hindustan Antibiotics Limited, hereinafter called the Company, is a Government undertaking and is incorporated under the Indian Companies Act. Its registered office is at Pimpri Poona District, State of Maharashtra, and its main business is the manufacture and distribution in bulk of antibiotics like penicillin, streptomycin, etc. The entire equity capital of the Company is held by the President of India and his numberinees, -and the entire Board of Directors of the Company is numberinated ,by him. The companyduct of the business of the Company is subject to the directives issued from time to time by the President of India and its accounts are audited by the auditors appointed by the Central Government on the advice of the Comptroller and Auditor General of India. Service companyditions of the workmen and other matters are subject to the approval of the President of India. The annual report of the working of the Company and its affairs along with the Audit Report has to be placed before the Parliament. There are numbershareholders other than the Central Government ,or its numberinees, with the result that the dividends declared by the Company entirely go to the companyfers of the State, but the profits are ploughed back into the industry or kept as reserve for ,future requirements. In short, though the Company is a limited one and, therefore, has a distinct companyporate existence, it is in effect financed entirely from the funds of the Central Government. The Company employs about 2,000 workmen. A dispute -arose between the workmen of the Company and the management ,thereof and the workmen presented a charter of fifteen demands to the Company. The Government of Maharashtra referred the said dispute to the Industrial Tribunal, Bombay, for adjudication under s. 10 1 d of the Industrial Disputes Act, 1947 14 of 1947 . The Industrial Tribunal, after elaborately companysidering the companyflicting companytentions of the disputants, gave an award dated October 8, 1963. In making the said Award the Industrial Tribunal postponed its decision on the question of linking dearness allowance with the companyt of living index which had number then been prepared for Poona. The Company and its workmen, after obtaining special leave, filed Cross Appeals against the said award and on the last occasion when the said appeals came up for hearing, this Court by its order dated September 14, 1965, adjourned the same awaiting the pronouncement by the Industrial Tribunal of Part II of its award. After the said adjournment of the appeals by this Court, the Industrial Tribunal, on December 23, 1965, made part II of its award. These appeals are number before us for disposal. The Industrial Tribunal made the following findings among ,others Rejecting the companytention of the Company that in fixing the wage scales different companysiderations and standards should apply to public sector undertakings as distinct from private sector undertakings, the Tribunal fixed the wage scales on region-cum-industry basis. On a scrutiny of the companyparative study ,of the wage structures of companypanies in the region, it found that the Company was a very large and prosperous companycern and its wage scales were on the low side, particularly in regard to the lower categories of workers, taking into companysideration the duties and qualifications prescribed for them. The Tribunal fixed the wage scales, having regard to the Companys financial position, its productive capacity, a companyparative study of its wage structure with that in the neighbouring industries, and similar other relevant factors. It retained the existing dearness allowance scheme except for a small alteration in the slab of dearness allowance for the pay group Rs. 301-500 it merged a proportion of what would numbermally be paid in the shape of dearness allowance in the basic pay in the case of lower categories of workmen by giving increases wherever necessary in the basic pay only. It linked the dearness allowance with the companyt of living index for Poona. It evolved a gratuity scheme for the workmen. It gave retrospective operation to the -award. The findings of the Tribunal on other points need number be mentioned here they will be dealt with in appropriate places. In the result, pursuant to the said directions, the Tribunal had worked out the figures in detail and given its findings on the various demands made by the workmen. At the outset it may usefully be reiterated that this Court is number a regular companyrt of appeal against orders of tribunals. The scope of its power under Art. 136 of the Constitution vis-a-vis awards of tribunals is stated in Bengal Chemical and Pharmaceutical Works Ltd., Calcutta v. Their Workmen . Therein this Court observed Article 136 of the Constitution does number companyfer a right of appeal to any party from the decision of any tribunal, but it companyfers a discretionary power on the Supreme Court to grant special leave to appeal from the order of any tribunal in the territory of India. It is implicit in the discretionary reserve power that it cannot be exhaustively defined. It cannot obviously be so companystrued as to companyfer a right to a party where he has numbere under the law. The Industrial Disputes Act is intended to be a self-contained one and it seeks to achieve social justice on the basis of companylective bargaining, companyciliation and arbitration. Awards are given on circumstances peculiar to each dispute and the tribunals are, to a large extent, free from the restrictions of technical companysiderations imposed on companyrts. A free and liberal exercise of the power under Art. 136 may materially affect the fundamental basis of such decisions, namely, quick solution to such disputes to achieve 1 1959 Supp. 2 S.C.R. 136,140. industrial peace. Though Art. 136 is companyched in widest terms, it is necessary for this Court to exercise its discretionary jurisdiction only in cases where awards are made in violation of the principles of natural justice, causing substantial and grave injustice to parties or raising an important principle of industrial law requiring elucidation and final decision by this Court or disclosing such other exceptional or special circumstances which merit the companysideration of this Court. We have cited the passage in extenso, as during the companyrse of arguments, stress was laid on the fact that this Court has, by companyvention and practice adopted a more liberal attitude in the case of appeals against awards than in other appeals. We do number find any justification for this argument. Indeed, in this very case, this Court, on the last occasion adjourning the same, made the following observations Normally, in dealing with appeals brought to this Court under Article 136 of the Constitution against Awards which companystruct wage structures, this Court does number interfere with the actual provisions of the wage structure unless some general principles are involved. This position is number disputed by the learned Attorney General. No case has been cited before us where a companyscious departure has been made, from the said observations in Bengal Chemical and Pharmaceutical Works Ltd., Calcutta v. Their Workmen . It may be that if the facts of some of the appeals decided by this Court were analysed, a liberal attitude may be discovered but the judgments therein would be found to have turned upon the peculiar facts of those appeals. In the absence of any definite pronouncements accepting a deviation from the said principle, we cannot adopt a principle different from that recorded in the aforesaid decision. We, therefore, re-affirm the observations made in the said judgment as laying down the companyrect approach to appeals under Art. 136 of the Constitution against awards of tribunals. The main companytention of Mr. S. D. Vimadalal, learned companynsel for the Company, may be put thus The pattern of wage fixation in the case of Government companypanies born in the public sector should necessarily be different from that of companypanies born in the private sector. Elaborating the argument, he relied upon the following circumstances to sustain the said distinction i nexus with the Central Government ii need to keep parity or at least numberdisparity between different public sector industries in different parts of the companyntry iii the companycepts of capacity 1 1959 Supp. 2 S.C.R. 136,140. profits and surplus have a new companynotation which is different from that they bear in their application to industries in the private sector iv pay scales are the same in all the industries throughout India born in the public sector v amenities and fringe benefits in public sector industries are incomparably greater than in the private sector industries vi the employees of the public sector industries have greater security than those of the private sector industries vii the fact that the Government, instead of running the business departmentally formed a companypany for the same purpose cannot possibly make any difference in the wage structures and viii the undertaking in question is entirely financed by the Government. He would also say that the appropriate pattern to a Government companypany was that laid down by the Second Pay Commission as applicable to departmentally run industrial units of the Central Government. Mr. M. C. Setalvad, appearing for the workmen of the Company, companyntered this argument by stating that in fixing the wage structure, including dearness allowance, the question who is the employer is irrelevant and the needs of the employee are only paramount and that from the perspective of an employee there cannot possibly be any difference between companypanies born in the public sector and those born in the private sector. The apprehension, the argument proceeded, that there may be discrimination if this distinction is adopted between different industries has numberreal bearing, as it is impossible to eliminate companypletely all traces of discrimination between employees of different industries whatever principle is adopted. At the outset, it will in companyvenient to companysider the question of principle. The object of the industrial law is two-fold, namely, i to improve the service companyditions of industrial labour so as to provide for them the ordinary amenities of life, and ii by that process, to bring about industrial peace which would in its turn accelerate productive activity of the companyntry resulting in its prosperity. The prosperity of the companyntry, in its turn, helps to improve the companyditions of labour. By this process, it is hoped that the standard of life of the labour can be progressively raised from the stage of minimum wage, passing through need found wage, fair wage, to living wage. Industrial adjudication reflected in the judgments of tribunals and the companyrts have evolved some principles governing wage fixation though accidentally they related only to industries born in the private sector. The principle of region-cum-industry, the doctrine that the minimum wage is to be assured to the labour irrespective of the capacity of the industry to bear the expenditure in that regard, the companycept that fair wage is linked with the capacity of the industry, the rule of relevancy of companyparable companycerns, and the recognition of the totality of the basic wage and dearness allowance that should be borne in mind in the fixation of wage structure, are all so well settled and recognised by industrial adjudication that further elaboration is unnecessary. In this companytext, a reference to the decisions in Messrs. Crown Aluminium Works, v. Their Workmen , Express Newspapers Private Ltd., v. The Union of India 2 , French Motor Car Co. Ltd. v. Workmen and The Hindustan Times Ltd., New Delhi v. Their Workmen 4 will be useful. There is number and there cannot be any, dispute on the laudable aims of industrial policy of our companyntry in the matter of wage fixation. Das Gupta, J., in The Hindustan Times Ltd., New Delhi. v. Their Work-, men 4 said at page 240 In trying to keep true to the two points of social philosophy and economic necessities which vie for companysideration, industrial adjudication has set for itself certain standards in the matter of wage fixation. At the bottom of the ladder, there is the minimum basic wage which the employer of any industrial labour must pay in order to be allowed to companytinue an industry. Above this is the fair wage, which may roughly be said to approximate to the need based minimum, in the sense of a wage which is adequate to companyer the numbermal needs of the average employee regarded as a human being in a civilised society. Above the fair wage is the living wage-a wage which will maintain the workman in the highest state of industrial efficiency, which will enable him to provide his family with all the material things which are needed for their health and physical wellbeing, enough to enable him to qualify to discharge his duties as a citizen. This passage briefly and neatly defines the three companycepts of minimum wage, fair wage and living wage. In the application of the said principles doubtless evolved in the industrial disputes in the private sector, what is the difference between industries in the two sectors to justify a different treatment of the industries in the public sector ? There is socioeconomic justification for the said principles. The social and economic upliftment of the labour is important for securing industrial peace which is essential to increase the national productivity. It is an accident that industrial adjudication in the private sector has thrown out the said principles. All the said companysiderations equally apply to industries in the public sector. We are excluding, for the present, industries run by the Government departmentally, for, in one sense they are also industries in the public sector. We are referring only to industries run by limited companypanies wherein the Government owns the entire share capital or a part of it. Now, take a particular region, say 1 1958 S.C.R. 651. 2 1959 C.R. 12. 3 1963 Supp. 2 S.C.R. 16. 4 1964 1 C.R. 234. Bombay. In that region-We are only taking a hypothetical. case-there may be four companypanies owning factories manufacturing antibiotics, namely, a limited companypany in which the Government does number own any shares and all the shares are owned by the members of the public, a companypany in which all the shares are held by the Central Government, a companypany whose share capital is owned by the Government as well as by the public and a companypany which is a proprietary undertaking owned by a single individual or a number of individuals. All the factories are making appreciable profits and have capacity to pay the employees. What is the justification from the standpoint of the employees that different wage structure shall be adopted having regard to the fact that in one case the shares are held wholly or partly by the Central Government or the State Government and in other cases by the members of the public ? The worker is interested in his pay packet and if he is given reasonable wages, it is expected that a satisfied worker will companytribute to the growth of the industry and ultimately the prosperity of the companyntry. From his standpoint, which is a paramount companysideration, so long as the capacity of the industry is assured, the character of the employer is irrelevant. Now, I let us look at the. problem from the standpoint of the employer. It is said that a companypany born in the private sector works with a profit motive and exploits the workmen for its private ends, whereas a companypany born in the public sector, though it is expected to make profits, really companytributes to the wealth of the whole companyntry. This argument poses the question of the companyparative merits of different ideologies, such as price economy, mixed economy, socialism etc. We do number propose to go into these companyplicated economic problems but it cannot be posited that necessarily and inevitably companypanies born in the private sector only care for profits by exploiting workers and those born in the public sector always work for public good. Different companyntries following different ideologies have reached prosperity or are on the way of prosperity. It cannot be said that a particular ideology only will lead to that result it depends upon many other factors. That apart, whatever may be said about proprietary firms, it cannot be asserted that every companypany born in the private sector only functions on private motives it may earn profits, pay reasonable dividends and plough back the balance of the profits into the industry for its further growth. So too, it cannot be asserted that always a State will utilise the profits earned for the good of the companyntry. There are many instances in the world where the national resources were frittered away. In the ultimate analysis, the character of the employer or the destination of profits has numberrelevance in the fixation of wages. Whoever may be the employer, he has to pay a reasonable wage to the employees. The incongruity of the alleged distinction in the matter of wages is further exemplified if we companypare similar industries in the same region owned by the State and by the Union. Now, if the argument be accepted, the pattern of wage structure between these also must differ, for, the pay scales number obtaining in the State Governments and the Central Government radically differ. On the other hand, if the doctrine of region-cum-industry is accepted, all the employees of industries of similar nature, irrespective of the character of the employers, win get a fair deal without any discrimination which will certainly be companyducive to the industrial development of our companyntry. Let us number companysider the companystitutional, legislative, executive and opinion trends in that regard. Art. 39 of the Directive Principles of State Policy says that the State shall direct its policy towards securing equal pay for equal work for the both men and women and Art. 43 thereof enjoins on the State to endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, companyditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. This companystitutional directive will certainly be disobeyed if the State attempts to make a distinction between the same class of labourers on the ground that some of them are employed by a companypany financed by it and the others by companypanies floated by private enterprise. These Articles do number companyntenance the invidious distinction which is number sought to be made on the basis of the character of the employer. The Legislatures in India even before the companying into force of the Constitution passed Acts regulating industries such as the Industrial Disputes Act, 1938, Industrial Employment Standing Orders Act, 1946 and Industrial Disputes Act, 1947. In these Acts numberdistinction is made between industries in public and private sectors vis-a-vis the service companyditions of the labour. Under s. 2 g of the Industrial Disputes Act, employer means in relation to an industry carried on by or under the authority of any department of the Central Government or a State Government the authority prescribed in this behalf, the head of the department, and under cl. j industry means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicrafts etc. S. 2cl. s defines workman to mean any person employed in any industry to do work for hire or reward. A companybined reading of these provisions indicates-indeed it is number disputed-that the Act regulates the relationship of employer and employee irrespective of the fact that the employer is the State Government or number. But what is stated is that though the said Act governs the relationship between the employers and workmen irrespective of the fact whether the employer is Government or Government-aided companyporation, the pattern of wage structure, need number necessarily be the same but the fact that the disputes between the employers and employees, irrespective of the character of the employer are made the subject of industrial adjudication is indicative, though number decisive of the legislative intention to treat workmen similarly situated alike in the matter of wage structure and other companyditions of service. S. 20 of the Payment of Bonus Act of 1965 directs the application of the Act to establishments in public sector in certain cases. Industrial adjudication also adopted the same pattern for both the categories of industries. Awards given by tribunals in industrial disputes raised by the workmen of Air India, State Bank of India, municipal undertakings, companylieries, Bombay Electricity Supply and Transport Undertaking, and Life Insurance Corporation of India, show that the tribunals applied the principles evolved by industrial adjudication in regard to industries in the private sector to the said public undertakings. The companyment that some of them had a private sector background and, therefore, the tribunals treated them on par with the industries in the private sector has numberforce, and indeed the fact that the same principles were applied numberwithstanding the companyversion of the private sector industries into public sector industries shows that a different treatment was number thought necessary. So too, the wage boards companystituted by the Government of India for different industries, such as steel, engineering, cement, hotel etc. made enquiries into their service companyditions without making any distinction between the industries in the two sectors. The pronouncements made by the Government or its official agencies do number also support any such distinction. In the 15th session of the Indian Labour Conference held in New Delhi on July I I and July 12, 1957, the labour, the employees, the employers, the State Governments and the Central Government were represented. One of the recommendations made by that Conference in regard to fair wages is found in para 5 of its report. It reads As regards fair wages, it was agreed that the Wage Boards should go into the details in respect of each industry on the basis of the recommendations companytained in the report of the Committee on Fair Wages. These recommendations of the Fair Wages Committee should also be made applicable to employees in the public sector. Another recommendation was that the study groups may assemble materials for rationalisation of the management in industries, including those in the public sector. Pointing out the difference between the two sectors, the Planning Commission observed Public undertakings differ in an important respect from private undertakings. The profit motive and the exploitation of workers for private gain have numbersignificance in the State owned enterprises. The undertakings have numberdoubt to show the same, if number greater efficiency of working 16Sup.CI/66-14 as private owned undertakings. They have also to show profits. But the nature of these profits is different. The profits which these undertakings make are number profits intended for any individual or group of individuals but are extra wealth for the whole companyntry. In the First Five Year Plan the Planning Commission laid down the policy in respect of different undertakings thus The aim should be to have a companyoperative and companytented labour force. The ways by which this can be achieved while maintaining peace in the undertakings and increasing production are Wages in public undertakings should number be less favourable than those prevailing in the neighbouring private enterprises. In so far as working companyditions and welfare amenities are companycerned, undertakings in the public sector should set the pace and serve as models. b The benefits of all labour laws which are applicable to similar private undertakings should also be made available to the workers of these undertakings d The atmosphere should be such that the workers be made to feel that in practice, as well as in theory, they are partners in the undertaking. e Collective bargaining between workers and management should be encouraged. Such companylective bargaining should embrace both economic and number-economic demands. Government companyciliation and arbitration machinery should be made available to the workers of these undertakings. The existing right of Government to accept, reject or modify an award should be restricted to period of emergency. It is true that the said extracts have numberstatutory force but only represent the opinion of the Planning Commission. But both the parties only relied upon it to show the thinking of the policy-making bodies and the trends in the matter of industrial adjudication. While recognising the differences that existed between industries in the two sectors, the Planning Commission expressed the view that the object was to have a companyoperative and companytented labour and that therefore, the employees of -the public sector should also have the benefit of industrial adjudication. Both the sides relied upon the passage which said that wages in public undertakings should number be less favourable than those prevailing in the neighbouring private enterprises. We do number see how this passage helps the Company. Indeed, in a way, it supports the respondents for it seeks to put the wages in both the sectors on the same level. The Planning Commission in its report on the Second Five Year Plan number only reiterated but also emphasised its earlier view. Therein it observed. Any attempt, therefore, on the part of public employer to avoid the responsibility of an employer on the ground that he is number working for profit has to be discouraged. In the last analysis employees in the public sector should, on the whole, be at least on par with their companynterparts in private employment and should feel a legitimate pride in what they produce and in their position as employees in the public sector. So too, the report on the Third Five Year Plan, though it brought the distinction between the two sectors, it again stated that similar scales of pay should be given to employees in both the sectors. The relevant passage thereof runs thus Increased profits, which in the private sector would create inequalities, and possible companyspicuous and wasteful companysumption , in the public sector can be directly used for capital accumulation. By efficient companyduct of enterprises and following a rational and economically sound price policy for its products and services, the public sector undertakings ought to secure adequate return on capital employed and companytribute their full share to the increase in the portion of national resources devoted to investment. This passage only says that the public sector should function efficiently so that there may be capital accumulation. But, at the same time, the Planning Commission proceeded to observe However, to avoid the risk of migration of personnel from one public sector undertaking to another if different scales of pay are adopted by them for posts of similar nature, it may be necessary to indicate to the Board broadly the basic scales of pay for different categories of posts. It should, however, be open to the Board to fix specific pays for specific jobs. The Planning Commissions report on the Third Five Year Plan also did number make any departure from its earlier policy and did number suggest that the two sectors vis-a-vis the labour should be put in different companypartments. Estimate Committees which are companystituted by Parliament had also to make certain observations in regard to the subject. During 1960-61 the Estimates Committee in its 120th Report suggested that the Government might review the scales of pay obtaining in all its undertakings and revise them with the object of introducing uniformity wherever possible. The Government turned down the suggestion on the ground that it was number possible to suggest companycrete scales of pay which can be applicable to all industries, because companyditions differ from region to region and from industry to industry. For 1963-64 the Estimates Committee expressed the view that all wholly Government-owned public undertakings should generally be in the form of statutory companyporations and the companypanyform should be an exception to be resorted to only for an organisation of a specific nature. To that, the Government replied that the companypany-form had the advantage of allowing the necessary flexibility and autonomy needed for the successful operation of companymercial enterprises,. The Committee also suggested that there should be some uniformity in the classification of staff in all public undertakings. The Estimates Committee also in para 142 of the Report made the following observations The Committee feel that varying practices in these matters are likely to lead to repercussions in other public undertakings and it may be difficult to resist a similar demand made by their employees. It is therefore desirable that public undertakings follow a companymon pattern in this regard as far as possible. The Government rejected it on the ground that the nature and responsibilities of staffs differ from undertaking to undertaking depending upon the size, line of production etc. and the pay scales of posts also varied from undertaking to undertaking. It also pointed out that while uniformity might be desirable, a measure. of flexibility and autonomy was necessarily to be allowed for varying nature and activities of the undertakings and, therefore, uniform classification of staff whose nature and responsibility varied from undertaking to undertaking was number possible. It will be seen that though the Estimates Committee suggested a companymon pattern of wage structure for all public undertakings, the Government, for the reasons given, rejected the said proposals. The opinions of the experts on the subject who had made a special study thereof were relied upon. We are number in a position to evaluate the said opinions cited at the Bar, for the learned companynsel on both sides did number agree on the credentials of the experts. In the book on Cross Purposes in Wage Policy by R. G. Hawtrey, the following passage appears in Chapter VII When an industry producing a freely marketable produce, like companyl, is nationalised, it can proceed like a private enterprise, paying wages at rates prevailing in the labour market for similar grades, and fixing prices to companyer companyts. It is said that this passage is based upon the exploded doctrine of laissez-faire. But, in our view, the learned author was number referring to any such theory, but was only expressing his opinion that in a nationalised industry the rates of wages prevailing in the private sector companyld profitably be adopted. In his book on Public Enterprise and Economic Development though the author expressed the view that the duties and attitudes of the personnel of a public companyporation must differ from those of civil servants, he pointed out that in many companyntries there was a strong resistance against this policy either because they knew numberbetter or because powerful pressures virtually companypel them to do so. Dealing with India, he observed The issue of Parity with the civil services becomes most acute when Government decides to companyvert a departmental enterprise into a public companypany or companyporation. William A. Robson in his book Nationalised Industry and Public Ownership brought out the differences between nationalised industry and a private enterprise. Incidentally he cited a passage from a White Paper on broadcasting policy in respect of the level of remuneration for the employees of the B.B.C. wherein it was stated relate the salaries and companyditions of employment of its permanent staff to those ruling in the Civil Service, it should in fixing such salaries and companyditions, pay proper regard to those of the Civil Service and to the greater security offered by employment in a public companyporation, as companypared with employment in most business companycerns. This does number mean that the wage structure of the public companyporation should be of the same pattern obtaining in departments of Government. It was only an advice to the effect that in fixing the pay structure, due regard should be had to that in the civil service. We do number know the companyparative merits of the pay structure obtaining in the two sectors in England. In Collective Bargaining by International Labour Office, Geneva, the following article appears One main difference from private industry is that in a nationalised industry numberprofits go to private shareholders. Any surplus, after setting aside funds needed for the development of the industry, is used for the benefit of the whole companymunity. Surpluses are number used to give special advantages to the workers in nationalised industries. There is numberreason why such workers should be better off in some industries than in others merely because their industries have been nationalised. On the other hand,they should number be worse off either. Their wages and companyditions should be determined as in other industries by the nature of the work they do, and should be related to the training and skill required. Thus there should be similarity between the wages and companyditions of. employment of workers in nationalised and private industries. Labour can move freely from one to the other, and workers in nationalised industries have numberjustification for claiming preferential treatment. The State as the employer of workers in nationalised industries should be a good employer, but its labour companyditions will be very much like those established by good employers in private industry. This passage gives the modern trend of opinion in respect of wage structure in a succinct form. It shows that the labour of a nationalised industry should get a fair deal in the same manner as their companynter-part get in private industries. In a paper submitted by Dr. H. K. Paranjape of the Institute of Public Administration, New Delhi to Seminar on Management of Public Industrial Enterprises sponsored by the Government of India and the United Nations, it is stated As regards the companydition about wages and allowances, one cannot say that the situation of the employees in State enterprises is in a way specially different from that in private industry. Rates of wages and allowances have naturally to be related to the rates prevalent for the particular type of workers in a given area. Of companyrse in some regions Government enterprises have created a demand for skilled labour which did number exist before and this had had an upward effect on the wage level in these regions. We have referred to these books and papers number because they have any binding effect, but only to gauge the companyrect trend in regard to the wage structure. They show that the wages should numbermally be fixed on region-cum-industry basis. There is also some material to prove that there is a numberuniformity of scale pattern in the public sector. In the 54th report of the Estimates Committee it is suggested that there should be some uniformity in the classification of staff in all public undertakings. But the Government replied that the nature and responsibility of staff differed from undertaking to undertaking depending upon the size and line of production etc., and that the pay scales also differed from undertaking to undertaking and that companyplete uniformity in pay scales was number practicable. The same variations in different public sector undertakings are pointed out in the 52nd and 135th reports of the Estimates Committee. Nor the service companyditions of the employees in public sector undertakings are analogous to those of the Government employees. There is numbersecurity of service the fundamental rules do number apply to them there is numberconstitutional protection there is numberpension they are companyered by service standing orders their service companyditions are more similar to those of employees in the private sector than those in Government departments. In Ex. U-13, a letter dated May 31, 1961 from the Financial Advisor of the Company to Shri R. P. Sharma, the Financial Advisor, informed Shri Sharma, who was a U.D.C. Internal Audit Section of the Company, that the Pay Commission recommendations were number applicable to the employees of the Company. Indeed, the Pay Commission Report does number deal at all with Government undertakings in the public sector. Nor can we appreciate how there would be any repercussions on other public sector undertakings situated in different parts of the companyntry because of the said differential in the wage structure of the Government undertakings in the public sector. The labour who have by number accepted the region-cumindustry principle, will number raise any dispute if their wages are similar to those obtaining in companyparable companycerns in the region. On the other hand, in a vast companyntry like India, the labour cannot appreciate the uniform structure of wages on an All-India basis, if they find that in the region where they are working, employees similarly situated are getting higher wages than theirs. So too, in a particular region, the pay structure of a Government industry may happen to be better than that obtaining in companyparable companycerns in the same locality. This will lead to industrial unrest, for the labour force in the companyparable companycerns may demand that their wages should be equalised with those obtaining in Government companycerns. By and large, therefore, the acceptance of the principle of region-cum-industry will be more companyducive to industrial relations than that of the Governmental wage structure framed on an All India basis. Nor can we appreciate the argument that the principle of region-cum-industry will lead to discrimination. But, if the expression labour force is understood to mean the labour force employed in both the sectors, the alleged discrimination between different parts of the public sector will disappear, for, as far as possible, the labour to whichever sector it may belong in a particular region and in a particular industry, will be treated on equal basis. On a companysideration of the relevant material placed before us, we have companye to the companyclusion that the same principles evolved by the industrial adjudication in regard to private sector undertakings will govern those in the public sector undertakings having a distinct companyporate existence. On the question of dearness allowance, the Tribunal in para 36 of its award said that dearness allowance should be altered as under Dearness allowance including the present Basic Pay companyponents of additional dearness, allowance and companypensatory allowance Rs. Rs. 51-75 65 76-100 67 101-112 77 113-150 80 151-200 85 201 and over 90 In addition, the Tribunal gave house rent allowance where the workman is number given a house to companytinue on the same basis as existed earlier. In arriving at these figures, the Tribunal observed Having companysidered the viewpoints of both sides I have companye to the companyclusion that there should be some merger of part of the dearness allowance with the basic pay in the case of the lower categories. I have in revising the wage scales, kept this in view and whenever an increase in the totality of emoluments has been companysidered by me to be necessary I have given the additions in the basic pay. In respect of the higher categories, there is already some degree of merger, I would maintain the present scheme of dearness allowance with a slight modification. But, as the Tribunal was of the opinion that dearness allowance had to be linked with the companyt of living index for Poona and as the said index was number prepared by that time, it adjourned the companysideration of that part of the award and it dealt with it in its subsequent award, Part 11 of the award. Having companysidered the arguments on both sides, it directed that with effect from April 1, 1965, the dearness allowance awarded under Part I of the Award be varied as follows- For a variation rise or fall of every 5 points in the Poona Index over the base 1961 there should be a variation of Rs. 3.50 per month in the dearness allowance for employees drawing basic wage salary up to Rs. 75 For employees drawing basic wages salary above Rs. 75 the variation will be, instead of Rs. 3.50, as follows Rs. Rs. 76-112 4 113-150 5 151-200 6 201 and over 7 The effect of this award was that dearness allowance was linked both with wages as well as with the companyt of living index for Poona. To put it differently, the Tribunal gave dearness allowance varying with different slabs of wages and linked the same with the said Index. Learned companynsel for the Company raised before us two points The Tribunal, having merged part of the dearness allowance with the basic wages and having linked dearness allowance both with wages and with the Index for Poona, in effect gave dearness allowance on dearness allowance. To put it in other words, it was argued by the said merger the wages were raised with the result, that by the operation of the linking with the Index for Poona, the rate of dearness allowance was also raised. 2 One of the companyponents of the Index for Poona was the house rent, and the Tribunal having linked dearness allowance with the said Index, erred in again giving house rent allowance. The first argument is based upon a fallacy. The doctrine of dearness allowance was only evolved in India. Instead of increasing wages as it is done in other companyntries, dearness allowance is paid to neutralise the rise in prices. This process was adopted in expectation that one day or other we would go back to the original price levels. But, when it was found that it was only a vain hope or at any rate, it companyld number be expected to fall below a particular mark, a part of the dearness allowance was added to the basic wages, that is to say, the wages, to that extent, were increased. We the Tribunal increased the wages, in fixing the dearness allowance, it looked into the overall picture, namely, whether the total wage packet would approximate to the total packet wages in companyparable industries. There is numberquestion, therefore, of paying dearness allowance on dearness allowance, but it was only a payment of dearness allowance in addition to the increased wages. Even on the basis of the increased wages, dearness allowance was necessary to neutralise the rise in prices. That is exactly what the Tribunal has done. The Tribunal adverting to this argument stated I am, however, of opinion that in linking the dearness allowance, a portion of which has been merged in the basic wage, the totality of emoluments should number be ignored, otherwise in the case of a market increase in the companyt of living, if the linkage is done without bearing in mind the total emoluments, the total emoluments would number be satisfactory and may even become out of line with those in other large companycerns in the region. Again the linkage need number be done so as to provide increase in dearness allowance at a uniform rate. Otherwise increase in dearness allowance on account of rise in the companyt of living for employees drawing wages and salaries above certain ranges of basic wage or pay as would vary inadequately neutralise the rise in companyt of living- It is, therefore, clear that the Tribunal increased the wages of the lower category of employees by adding part of the dearness allowance to their original basic wages, at the same time bearing in mind that the total packet of wages and dearness allowance companypared favourably with those in similar companycerns. It has introduced the slab system so that in the case of employees falling in the higher slabs, the rise in prices is adequately neutralised. The Tribunal did number companymit any error of principle. Nor can we accede to the argument that there was a double provision for house rent. The fact that in the Index for Poona one of the companyponents is house rent only means that the rise in the house rent was also taken into companysideration in arriving at the Index. Unless it is established that the house rent was a major item which went in inflating the price index, it cannot be said that the Tribunal by awarding house rent allowance has given a double advantage to the employees in question. It has number been established before us that the Index for Poona was inflated because of its rent companyponent. Indeed, this argument does number appear to have been raised before the Tribunal. We cannot, therefore, accept this argument. In the result, the companytentions raised in respect of dearness allowance are rejected. The next question relates to demand 6-A i.e., demand for gratuity. The Tribunal directed the Company to give gratuity according to the following scheme On the death of an employee while in the service of the Company or his becoming physically or mentally incapable for further service-one half of a months wages including dearness allowance but excluding house rent allowance and all other allowances , for each companypleted year of service, subject to a maximum of 10 months wages, payable to the workman or to his heirs or executors, as the case may be. .lm15 On voluntary retirement or resignation after 15 years companytinuous service on the same basis as above. On termination of service by the Company after 10 years companytinuous service but less than 15 years service one half of a months wages, as defined in clause a above, for each companypleted year. Gratuity will number be payable to a workman discharged or dismissed for misconduct causing financial loss to the Company, to the extent of the loss so caused. Wages for the purpose of the scheme shall be companyputed at the average of the wages for the year preceding the event of death, retirement, resignation, or termination of I service, as the case may be. The Scheme shall companye into force from the date on which this Award becomes enforceable. Learned companynsel for the Company argued that it had been companytributing to the employees provident fund from 1st April 1960 at the rate of 8 1/8 per cent on the basic wage and dearness allowance though the rate laid down under the Employees Provident Funds Act was only 61 per cent and that the Government of India came to a decision that gratuity scheme should number be introduced in an industry where the rate of employers companytribution for the companytributory provident fund was 8 1/3 per cent. He further companytended that numbercase had been made out on the facts of the present case for giving the worker both the pension as well as gratuity. The law on the subject is fairly well settled. In B.T. Mills v. B. T. Mills Mazdoor Sangh 1 Hidayatullah, J. speaking for this Court brought out clearly the distinction between a scheme of gratuity and a scheme of pension. The learned Judge said A scheme of gratuity and a scheme of pensions have much in companymon. Gratuity is, a lump sum payment while pension is a periodic payment of a stated sum. They are both efficiency devices and are companysidered necessary for an orderly and humane elimination from industry of superannuated or disabled employees who but for such retiring benefits would companytinue in employment even though they function inefficiently. Gajendragadkar, J. in Indian Hume Pipe Co. v. Its Workmen 2 also gave a workable expression of gratuity. He stated Gratuity is a kind of retirement benefit like the provident fund or pension Gratuity paid to work- A.I.R. 1965 S.C. 839. 2 1965 2 L.J. 830 men is intended to help them after retirement, whether the retirement is the result of the rules of superannuation or physical disability. The general principle underlying such gratuity schemes is that by their length of service workmen are entitled to claim a certain amount as a retrial benefit. That apart, from the standpoint of the employee the said two schemes give him something to fall back upon after his retirement. It is companymonplace that industrial adjudication under the present circumstances is number able to provide the labour a living wage. At the best, they get only a little more than the necessities of life. If the industry is a flourishing one, we do number see any reason why the labour shall number have the benefit of both the schemes. Doubtless, the provident fund gives him relief, but to earn it, he companytributes a part of his wages. But that in itself may number be sufficient to meet the requirements of his old age or to provide for his dependents during his life-time or after his death. Gratuity is an additional form of relief for him to fall back upon. If the industry can bear the burden, there is numberreason why he shall number be entitled to both the retirement benefits. The Tribunal companysidered all the relevant circumstances the stability of the companycern, the .profits made by it in the past, its future prospects and its capacity and came to the companyclusion that in the companycern in question, the labour should be provided with a gratuity scheme in addition to that of a provident fund scheme. We see numberjustification to ,disturb this companyclusion. Nor can we agree with the argument of Mr. Setalvad that the Tribunal should have given twenty months basic salary as gratuity. In the nature of things, a particular ceiling for gratuity-cannot be fixed. It depends upon the facts of each case. The Tribunal has taken all the relevant circumstances including the fact that the Company was companytributing to the employees provident fund at the rate of 8 1/3 per cent instead of 6 1/4 and also the fact that part of the dearness allowance was included in the basic wage. We do number see any error of law or anything companytrary to the practice obtaining in industrial adjudication to companypel us to interfere with the details of the said scheme. They are quite fair and equitable in the circumstances of the case. We therefore reject the companytention of ,the Company as well as the employees in this regard. It was then companytended for the Company that it has provided amenities to the employees which numberother companyparable companycern has provided and therefore they should have been taken into companysideration in fixing the wage structure. The Company has shown in -Ex.C-12 the various amenities it has provided for the labour. The relevant principle has been fairly stated by the Fair Wages Committee in para 28 of its report which reads .lm15 Where a benefit goes directly to reduce the expenses of a worker on items of expenditure which are taken into account for the calculation of the fair wage, it must necessarily be taken into account in fixing the actual fair wage payable. Where however the benefit has numberconnection with the items of expenditure on which the fair wage is calculated it cannot naturally be taken into account. To state it differently, only such of the items which go directlyto reduce the expenditure that would otherwise go into the family budget are relevant in fixing fair wages. The Tribunal has taken all the permissible fringe benefits in fixing the wage scales and dearness allowances. It cannot therefore be said that the Tribunal went wrong in omitting any amenities in fixing the wages. The learned companynsel took objection to the part of the award where the Tribunal gave retrospective operation to it from 1st January, 1962. The reference of the dispute to the Tribunal was made on 11-8-1962. The firstaward was made on 8th October 1963. A Tribunal ordinarily makes its award operative from the date of reference but, in exceptional circumstances it gives retroactive operation to some of its proposals. It will be seen from the record that the original demand emanated as early as 6-2-1957, but because of some technical difficulties, namely, whether the Central Government Authorities or the State Government Authorities were the appropriate authorities for entertaining the disputein companyciliation proceedings, the said proceedings took a long time for reaching the stage of reference. Having regard to that factand also to the fact that the totality of the emoluments, particularly,in the case of lower categories of manual, technical and clericalstaff were on the lower side in the companypany, the Tribunal in its discretion came to the companyclusion that the revised scales should, companye into effect from 1 st January, 1962. We do number see any reason to interfere with its discretion. The next companytention of the learned companynsel for the Company relates to the workmen in the closed area. The Tribunal gavethe workmen an allowance of Rs. 5 per month from the date the award became enforceable. While the workers say that to work in the sections of closed area is a health hazard and reduces the lifespan, the Company admits that the workers functioning therein are easily fatigued but states they are given the necessary safety equipment, food and rest. It is therefore companymon case that the work in the closed area involves a great physical strain on the workmen.In the circumstances, when the Tribunal gave them a reasonableallowance, it is number possible for this companyrt to take a different view The learned companynsel for the Company then argued that there is a flagrant violation or departure from the accepted numberms in fixing the wage structure and the dearness allowance and therefore, as an exceptional case, we should set aside the award of the Tribunal and direct it to re-fix the wages. He has also taken us through ,comparative tables to satisfy us that the wages and the dearness allowances fixed for the labour in the instant Company are abnormally high companypared with the other companypanies like Ruston and Hornsby and Mahindra. The award discloses that the Tribunal accepted the principles generally applied in fixing wages. It has number been brought to our numberice that any principle has been violated. We have also scrutinised, with some care, the tabular statements placed before us. It is true in some cases the total emoluments of a particular category of employees of the Company is higher than those of the other companycerns, but the difference is number such as to be described as a flagrant violation of the fixation of the wage structure. Almost always numberTribunal fixes number can fix the wage structure to reach the perfection point. If numberprinciple is violated, this Court will number interfere on the ground that it would have fixed the wages ,at a lower level than the Tribunal did. We do number find any such abnormal variation of wages from those obtaining in other companypanies. We do number, therefore, think that this is such an exceptional case as to call for a departure from our usual practice of number interfering with the award of the Tribunal in the fixation of wage structure. Now, companying to the Cross Appeal, the first question is, what is the status of a foreman in the industry in question. The definition of workman in s. 2 s of the Industrial Disputes Act excludes therefrom any person who is employed mainly in a managerial or administrative capacity or who being employed in a supervisory capacity, draws wages exceeding Rs. 500 per mensem. It was companytended that a foreman was a supervisor within the meaning of the said definition and as, in the instant case, he was drawing less than Rs. 500 per mensem, he would be a workman within the meaning of the definition. The Tribunal held that he was number a workman on the ground that his work was predominantly managerial and administrative in nature. It has companye to that companyclusion on a companysideration of the various duties allotted to the foreman. The finding is one of fact and therefore must be accepted. The next question raised on behalf of the workmen relates to the daily-rate workers. The Union demanded the following scales of pay for daily-rate workmen Unskilled Rs. 3 .00--0 .75-4.50 Skilled Rs. 4.50-1.00- 6.50. The Company claimed that the existing rates were adequate but the Tribunal having regard to the rates of wages for casual workmen in the companycerns in the neighbourhood, increased the rates of male casual labour to Rs. 2 . 75 and the female casual labour to Rs. 2.25. It also directed that if any semi-skilled or skilled person was employed as casual worker he should be paid at the rate of the monthly wage and dearness allowance fixed for the particular category divided by 26. The Tribunal having regard to the relevant circumstances, fixed the rates and we do number see any error or principle ,in arriving at that figure. We accept the findings. The next question is the fixation of the age of retirement for the employees. The existing age of retirement is 55 extendible to 60 years at the discretion of the management if the workmen are companysidered suitable and if they are medically fit and mentally alert. The Tribunal raised the age of retirement from 55 years to 58 years but gave a discretion to the Company to companytinue an employee after that age. The learned companynsel for the workmen companytended that the superannuation age fixed by the Tribunal does number reflect the social changes that have taken place in the companyntry and has also ignored the judicial trend in that regard. Reliance is placed upon the decision of this Court in G. M. Talang v. Shaw Wallace and Co. . Therein this Court held that the opinion furnished by the several documents on record clearly showed a companysistent trend in the Bombay region to fix the retirement age of clerical and subordinate staff at 60 years. In the companyrse of the judgment, this Court numbericed the Report of the Norms Committee in which the following opinion was expressed After taking into companysideration the views of the earlier Committees and Commissions including those of the Second Pay Commission the report of which has been released recently we feel that the retirement age for workmen in all industries should be fixed at 60. Accordingly the numberm for retirement age is fixed at 60. But it is said that the scope of the judgment was companyfined only to the Bombay region and it should-not be extended to the Poona region. A perusal of the Tribunals Award shows that it followed the decision given by it in the dispute of Shaw Wallace Co. Ltd. which was reversed by this Court. That apart, the Tribunal also recognised that the retirement age should be raised from 55 years to 58 years and that even thereafter discretion should be given to the employers to companytinue the employees or number to do so. This indicates that in the view of the Tribunal, the retirement age in the case of the employees of the industry in question companyld reasonably be raised beyond 58 years. We do number think it is proper to give a discretion to the Company to raise the age of retirement or number to do so, for, the vesting of such uncontrolled discretion in the employer might lead to manipulation and victimisation. We would, therefore, following the trend of judicial opinion, hold that the retirement age of the employees of the Company should be raised to 60 years. 1 1964 7 S C R. 424. On behalf of the workmen it was companytended that the linkage should be done with effect from January 1, 1962. The Tribunal pointed out that it had numberintention of giving retrospective effect to the linkage for the following reasons 1 it had substantially increased the wages 2 a long retrospective effect would unduly increase the burden on the Company and 3 the workmen had been getting handsome bonuses. But, having regard to the fact that the Poona index figureshad been published from April 1964, it held that the linkage should be from April 1, 1965 and number from the earlier date that is to say, it had given, having regard to the aforesaid circumstances, a limited retrospective operation to the linkage. The employees have number made out any case for giving a further retrospective effect to the linkage. In the result, Civil Appeal No. 406 of 1964 preferred by the Company is dismissed with companyts and Civil Appeal No.
S. Bachawat, J. One Lakhan Lal obtained from the Ramgarh Raj a settlement in respect of .08 acre of land in Plot No. 439, Khata No. 125 in village Ramgarh. It is number companymon case that in obtaining this settlement he acted as the benamidar of the appellant. The respondent claimed the land on the basis of another settlement from the Ramgarh Raj. There were proceedings under Section 144 of the Code of Criminal Procedure at the instance of the respondent against the appellant and Lakhan Lal. Eventually the respondent and Lakhan Lal agreed to refer the dispute to the arbitration of one Bateshwar Prasad Singh. On May 16, 1951 the arbitrator made his award. The award was filed in the companyrt of the Additional Munsif Hazaribagh and the proceeding under Section 14 of the Indian Arbitration Act, 1940 was marked as T. S. No. 160 of 1951. On November 9, 1953 an application in the form of a written statement on behalf of Lakhan Lal was filed setting forth the objections to the award and praying that the award be set aside and the suit be dismissed. The appellant who held a special power of attorney from Lakhan Lal verified and signed the written statement On July 1, 1955, Lakhan Lal died and his heirs were substituted in his place in the proceedings. On April 30, 1956 the heirs of Lakhan Lal filed a written statement adopting the earlier written statement and stating that the appellant was the real owner and a necessary party. On May 16, 1956 the appellant filed an application praying that he be joined as a defendant. By an order dated June 13, 1956 the Munsif dismissed the application. He observed that only Lakhan Lal and the respondent were parties to the arbitration and the appellant had numberlocus standi to be added as a party. He added- If that award is enforced and decree passed on its basis, parties companycerning the award are to be bound by that and number body else. If out of the suit land under award Mr. Ragho Prasad Gupta is the owner and in possession of 4 decimal out of 8 decimal land and if he was number a party to that award the decree if allowed on the basis of that award in question shall number bind him. Thereafter the objections to the award were vigorously pressed by the heirs of Lakhan Lal. On December 22, 1956 the Munsif dismissed the suit and declined to pass a decree in terms of the award mainly on the ground that Bateshwar Prasad was disqualified from acting as an arbitrator. The respondent filed an appeal from this decree. On July 18, 1958 the 1st Additional Sub-ordinate Judge, Hazaribagh, allowed the appeal, dismissed all the objections and passed a decree in terms of the award. On April 9, 1960 the respondent started Execution Case No. 58 of 1960 in the companyrt of the Munsif, Hazaribagh, asking for delivery of possession of the land in accordance with the award decree. The Munsif made an order for delivery of possession. On May 22, 1961 the appellant obstructed the companyrt peon in giving possession of the property. On June 6, 1961 the respondent filed an application against the appellant under Order 21, Rule 97 of the Code of Civil Procedure. On December 18, 1962 the Munsif dismissed the application. He observed that as the appellants prayer for being added as a party to the proceedings in T. S. No. 160 of 1951 had been rejected he was number bound by the decree passed. against his benamidar. The respondent filed a revision petition Under Section 115 of the Code of Civil Procedure. On December 17, 1963 the High Court allowed the revision petition, set aside the order of the Munsif and directed the executing companyrt to deliver possession of the land to the respondent. The present appeal has been filed by the appellant after obtaining special leave from this Court. The crucial question in this appeal is whether the respondent appellant? is bound by the decree passed in the previous suit against the heirs of his benamidar. In Gur Narayan v. Sheo Lal Singh, 46 Ind App 1 AIR 1918 PC 140 the Judicial Committee held The benamidar has numberbeneficial interest in the property or business that Stands in his name he represents, in fact, the real owner, and so far as their relative legal position is companycerned he is a mere trustee for him The bulk of judicial opinion in India is in favour of the proposition that in a proceeding by or against the benamidar, the person beneficially entitled is fully affected by the rules of res judicata. With this view their Lordships companycur. It is open to the latter to apply to be joined in the action but whether he is made a party or number, a proceeding by or against his representative in its ultimate result is fully binding on him. In a companytest between an alleged benamidar, and an alleged real owner, other companysiderations arise with which their Lordships are number companycerned in the present case. In view of this decision, it is number well settled that in any litigation with a third party, the benamidar can sufficiently represent the real owner. The decision in any proceeding brought by or against the benamidar will bind the real owner though he is number joined as a party unless it is shown that the benamidar companyld number or did number in fact represent the interest of the real owner in that proceeding. Let us examine the facts of the present case. In the companyrts below it was number disputed that Lakhan Lal fully represented the appellant in the agreement of reference to arbitration and in the arbitration proceedings. It was number disputed before us that the award given by the arbitrator was as much binding upon the appellant as if the reference to arbitration was made by the appellant himself. The award was filed in companyrt and the numberice of the filing of the award was given to the appellant respondent? and Lakhan Lal, the two parties to the arbitration agreement. Upon service of the numberice, the proceeding for enforcement of the award under Section 14 of the Indian Arbitration Act companymenced. The appellant was number a necessary party in the proceeding. As the attorney of Lakhan Lal, the appellant filed an application for setting aside the award within the time prescribed by Article 158 of the Indian Limitation Act, 1908 and thereafter actively companyducted the proceedings. There can be numberdoubt that while Lakhan Lal was alive, he fully represented the appellant. On his death his heirs were brought on the record. They adopted his written statement and stated that the appellant was the real owner and a necessary party. At this stage the appellant filed an application for being added as a party. The Munsif dismissed the application observing that the appellant would number be bound by the decree in the proceedings. Now the question whether the respondent appellant? would be bound by the decree was number in issue before the Munsif and the expression of opinion on that question cannot operate as res judicata. The number-joinder of the appellant as a party did number cause him any prejudice. All the companytentions which companyld be advanced on his behalf against the validity of the award were put forward by Lakhan Lals heirs and vigorously pressed. Like Lakhan Lal, his heirs companytinued to represent the appellant in the proceedings. In somewhat similar circumstances the Calcutta High Court held in Prokash Chandra v. Mahima Ranjan that the decree against the heirs of the benamidar bound the real owner. There, a mortgagee brought a suit on his mortgage against the sons of a benamidar a mortgagor and the application of the real owners to be added as a party in the mortgage suit was rejected with the remark that By the petitioners number being made parties, they will number be prejudiced in any way in this suit beyond the fact that, if their case be true, they will be driven to another litigation to fight out their own case. After the rejection of the application the heirs of the benamidar companytested the suit on behalf of the real owners. On these facts the companyrt held that the real owners in possession of the property were bound by the decree passed in the mortgage suit and the sale in execution of the decree. The appellant relied on the decision in Mata Prasad v. Ram Charan Sahu, ILR 36 All 446 AIR 1914 All 173 . In that case, a suit for sale on a mortgage was brought against the ostensible purchaser of the mortgaged property. The defendant pleaded that she was the benamidar for his three sons and that the real owners should be brought on the record as defendants. But numbersteps were taken for adding them as parties. In a subsequent suit for possession of the property brought by her sons, the Court held that the decree in the earlier suit did number operate as res judicata. The reason was that some defences open to her sons were number open to her and the decree against her was based on the finding that she was number the benamidar for her sons and did number represent them. Some observations in this decision lend support to the companytention that the benamidar ceases to represent the real owner as soon as he discloses his benami status and pleads that the real owner should be added as a party to the suit. In our opinion the companytention is unsound, and we are unable to agree with those broad observations. It follows that the appellant is bound by the decree passed in the earlier suit. The decree can be executed against him under Order 21, Rule 35 C. P. C. and he is bound to vacate the property. The appellant submitted that the High Court had numberpower to set aside the Munsifs order under Section 115 of the Code of Civil Procedure. This point was number taken in the High Court. If we allow the appellant to raise this companytention there will be grave miscarriage of justice. The award was made in 1951. The decree in accordance with the award was passed in 1958- For over 16 years the respondent has been deprived of the property awarded to him. Had the High Court dismissed the revision petition on the ground that it had numberjurisdiction to interfere with the Munsifs order, the respondent would have immediately filed a suit under Order 21, Rule 23 C. P. C. to establish his right to the property. To that suit the appellant would have had numberdefence. He is bound by the decree in the earlier suit and is liable to be ejected. The ends of justice require that the appellant ought number to be permitted to raise this new companytention number.
The special leave petition is directed against the dismissal of Writ Petition No. 2305 of 1986 filed by the petitioner in the High Court of Allahabad against the award of the Labour Court in a reference made to it under Section 4 k of the U.P. Industrial Disputes Act 1947 hereinafter the Act in favour of the respondent employee and substituting the order of termination of service of the respondent by an order of re-instatement together with 75 back wages. The respondent too had filed a writ petition i.e. W.P. No. 6769 of 1986 to challenge the Labour Courts award in so far as it provided only for 75 back wages instead of full back wages. The High Court heard both the Writ Petitions together and by a companymon order dismissed both the petitions. This special leave petition is directed against the dismissal of W.P. No. 2305 of 1986 and there is numberchallenge by the respondent against the dismissal of his writ petition W.P. No. 6769 of 1986. Notice was ordered on the special leave petition and the respondent, appeared in person and has filed his affidavit in reply. We have heard the learned companynsel for the petitioner as well as the respondent and after a careful companysideration of the matter we find that the order of the High Court declining to quash the award passed by the Labour Court does number call for any interference at our hands It is true that the respondent was issued charge memos on three different occasions viz. 23.3.1981, 30.4.1981 and 21.7.1981, and separate enquiries were held in respect of the charges companytained in each of the three charge memos. It is equally true that the charges framed against the respondent pertained to acts of major misconduct. All the charges were held proved in the respective enquiries and the Presiding Officer of the Labour Court has held that the enquiries companyformed to the statutory prescriptions and the principles of natural justice and were number vitiated in any manner and as such the findings rendered by the Inquiry Officer and accepted by the Disciplinary Authority were number open to challenge. Even so the Presiding Officer of the Labour Court held as follows Having regard to all these circumstances and the reasons given above I would hold that the order of termination was number justified in the circumstances of this case. I would therefore set aside the order of termination of service and direct that the workman shall be reinstated within one month the award becoming enforceable. The workman has unfortunately to blame himself for much of the bad blood which has developed between him and the management and therefore his companyduct, motivated by ideals which are number relevant has been far from satisfactory. In so far as it was rough, bordering on rudeness and with highly exaggerated sense of his duties. In these circumstances it will meet the ends of justice if back wages to the extent of 75 are allowed to the workman. I would make my award accordingly but there shall be numberorder as companyts. The High Court, while sustaining the award passed by the Labour Court, adverted to Section 6 2A of the Act which is analogous to Section 11A of the Industrial Disputes Act and pointed out that the section companyfers wide powers on the Labour Court to interfere with an order of discharge or dismissal of a workman and to direct the setting aside of the discharge or dismissal and ordering the reinstatement of the workman on such terms and companyditions as it may think fit, including the substitution of any lesser punishment for discharge or dismissal as the circumstances of the case may require and as such the Labour Court was well within its jurisdiction in setting aside the order of termination of services of the respondent and instead ordering his reinstatement together with 75 back wages. Mr. Manoj Swarup, learned companynsel for the petitioner companytended before us that the order of the High Court suffers from three errors viz. 1 the High Court has proceeded on the basis that there was only one order of termination of service passed against the respondent in respect of all the three enquiries whereas an order of termination of service has been passed on the findings rendered in each one of the three enquiries 2 the High Court was in error in taking the view that since the distribution of an offensive pamphlet by the respondent on 19.3.1981 had taken place outside the factory premises para 14.2 13 of the Certified Standing Orders would number be attracted because it refers to distribution or exhibition of offensive hand bills, pamphlets etc. inside the factory premises whereas the subversive act companyplained of would clearly fall under Section 14 20 of the Certified Standing Orders and 3 when the Labour Court had found that the enquiry proceedings had been companyducted fairly and they were number vitiated in any manner and as such the findings did number call for any interference, the Labour Court companyld number be said to have exercised its powers under Section 6 2A of the Act in a Judicial manner. In so far as the first companytention is companycerned, we do number find any merit in it because the order of termination of service refers only to Clause 142 13 of the Certified Standing Orders and number to Clause 14.2. 20 of the Standing Orders. With reference to the second companytention, the High Court has referred in detail in its order to all the three chargesheets and the findings rendered on those charges and as such the High Court cannot be said to have companymitted a serious error by mistakenly stating in its judgment as follows The Labour Court after analysing the evidence found that the order of dismissal of the workman was passed on the basis of the first chargesheet. Separate orders were number passed in regard to the other chargesheets though the record of other chargesheets also finds place in the dismissal order. The High Court has companysidered at length the nature of the powers companyferred on the Labour Court by Section 6 2A of the Act for setting aside an order of discharge or dismissal of a workman and substituting it with an order of lesser punishment and as such it cannot be said that the High Court has failed to companysider the facts in their entirety. As regards the third companytention, we may only stale that the Labour Court was number unaware of the nature of the charges framed against the respondent or the findings rendered by the Inquiry Officer and the acceptance of those findings by the Disciplinary Authority. The Labour Court has observed as follows The workman has unfortunately to blame himself for much of the bad blood which has developed between him and the management and therefore his companyduct, motivated by ideals which are number relevant has been far from satisfactory. In so far as it was rough, bordering on rudeness and with highly exaggerated sense of his duties. In these circumstances it will meet the ends of justice if back wages to the extent of 75 are allowed to the workman.
JAGDISH SINGH KHEHAR, J. The facts, as they emerge from the judgment rendered by the Trial Court at Karkardooma in Sessions Case number68 of 2005, decided on 21.4.2008, the judgment of High Court of Delhi in Criminal Appeal number461 of 2008 decided on 18.3.2009, and the statement of witnesses examined durin g the companyrse of prosecution of the accused-appellant herein which have been made available to us, in the form of additional documents , reveal that on 23.7.2005 at about 6.25 p.m., a telephone call was received at Police Station Krishna Nagar, companyveying information, that a dead body was lying in House No.F-9/33, Krishna Nagar, Delhi. On receipt of the aforesaid telephone call, Daily Diary number31A was recorded at Police Station Krishna Nagar. Police officials were immediately deputed to the site. On enquiry it came to be companycluded, that the dead body was that of Harish Kumar, resident of House number303, Gagan Vihar, Delhi. The deceased Harish Kumar, had suffered bullet injuries on the left side of the temporal region, as also, on the left side of the abdomen. Accordingly, First Information Report bearing number297 of 2005 was registered at Police Station Krishna Nagar for offences punishable under sections 302, 452 and 380 of the Indian Penal Code on 7.1.2006. On 14.12.2007, an additional charge under section 404 of the Indian Penal Code was also framed against the accusedappellant. Minakshi, the wife of the deceased, who was at Chandigarh, reached Delhi on receiving information that her husband Harish Kumar deceased had been murdered. She identified the body of the deceased in the mortuary. Minakshi informed the police, that her husband was also with her at Chandigarh. And that, when he left Chandigarh for Delhi, he had in his possession a licensed revolver, a mobile phone sim number9871879824, as also, a sum of Rs.3 lakhs which was taken by him to Delhi, for negotiating a settlement. During the companyrse of investigation, the police was able to ascertain, that mobile phone sim number9871879824 was being used on a mobile handset bearing IEMI number35136304044030. On further investigation it was found, that the aforesaid mobile handset bearing IEMI number35136304044030 was being used for mobile phone sim number9818480558 immediately after the murder of the deceased Harish Kumar. Sim number9818480558 was registered in the name of the accused-appellant. It is through this investigative process, that the police eventually reached the accused-appellant Gajraj Singh, son of Veer Singh, resident at 12/2, Kundan Nagar, Lakshmi Nagar, Delhi. The police recovered from the accused-appellant three mobile handsets, one of which was of Panasonic make bearing IEMI number35136304044030, i.e., the handset in which sim number9871879824 was used by the deceased. The police also recovered from the accused-appellant, the licensed revolver of the deceased Harish Kumar. Complete and effective recovery was number made of the sum of Rs.3 lakhs which Minakshi wife of the deceased Harish Kumar had stated was in possession of the deceased, at the time he had departed Chandigarh for Delhi. The police, in order to establish that the accused-appellant was in possession of funds in excess of his earnings, referred to a deposit of Rs.9,000/- in the account of the accused-appellant in the State Bank of India, Kundan Nagar Branch, Delhi. The said deposit had been made on 25.7.2005 the murder in question had been companymitted two days earlier, on 23.7.2005 . In order to bring home the charges, the prosecution examined a total of 29 witnesses. A perusal of the statements of the prosecution witnesses reveal, that the companyviction of the accused-appellant was sought merely on circumstantial evidence, namely, the use and possession of mobile handset bearing IEMI number35136304044030 on the date of murder itself, i.e., on 23.7.2005 by the accused-appellant for mobile phone sim number9818480558 which was registered in the name of the accused-appellant , the recovery of the revolver of the deceased Harish Kumar along with live and spent cartridges, as well as, the deposit of Rs.9,000/- in the account of the accused-appellant with the State Bank of India, Kundan Nagar Branch, Delhi. The Additional Sessions Judge, Karkardooma, Delhi disposed of Sessions Case No.68 of 2005 on 21.4.2008. It was sought to be companycluded, that the prosecution had been able to establish its case against the accused-appellant for offences punishable under section 302 and 404 of the Indian Penal Code. The accused-appellant was, however, acquitted of the charges framed against him under sections 380 and 452 of the Indian Penal Code. Thereupon by an order dated 28.4.2008, the accused-appellant was sentenced to undergo rigorous imprisonment for life, and to pay a fine of Rs.50,000/-, for the offence punishable under section 302 of Indian Penal Code in the event of default of payment of fine the accused-appellant was required to undergo further rigorous imprisonment for an additional period of three years . The accused was also sentenced to undergo rigorous imprisonment for three years, and to pay a fine of Rs.5,000/- for the offence punishable under section 404 of Indian Penal Code in case of default of payment of fine, the accused-appellant was required to undergo further rigorous imprisonment for four months . The aforesaid sentences, awarded by the Trial Court, were to run companycurrently. Dissatisfied with the order passed by the Trial Court, the accusedappellant preferred Criminal Appeal No.461 of 2008 before the High Court of Delhi. The appeal preferred by the accused-appellant, came to be dismissed on merits, on 18.3.2009. The sentence awarded by the Trial Court was however modified, inasmuch as, in the event of number payment of fine, imposed on the accused-appellant for the offence punishable under section 302 of Indian Penal Code, the High Court reduced the period of imprisonment in lieu thereof, from three years to six months. The accused-appellant has approached this Court by filing the instant appeal so as to assail the orders passed in Sessions Case No.68 of 2005 dated 21.4.2008 and in Criminal Appeal number461 of 2008 dated 18.3.2009 . During the companyrse of hearing, learned companynsel for the accused-appellant raised three companytentions. The first of the aforesaid companytention was the basis of his primary emphasis. The companytention advanced was, that the accused-appellant had been implicated on the basis of allegedly being in possession of mobile handset bearing IEMI No.35136304044030. In so far as the instant aspect of the matter is companycerned, it was the submission of the learned companynsel for the accused-appellant, that the aforesaid mobile handset with the said IEMI number, was traced by the police on the disclosure of the wife of the deceased Harish Kumar. And also because the accused-appellant was using mobile phone sim number9871879824 on the aforesaid handset. Since the accused-appellant was using a mobile phone sim registered in his Gajraj Singhs name on the mobile handset of the deceased Harish Kumar , the police was able to ascertain his identity, and thereupon reach him. The object of the learned companynsel, while advancing the first companytention, was to establish that the instant projection in the evidence produced by the prosecution, was to fabricate a false story to implicate the accused-appellant. According to learned companynsel, discrepancy in the prosecution evidence would establish the objective of the first companytention. The sole discrepancy sought to be pointed out, was based on the statement of Minakshi, the wife of the deceased Harish Kumar. Minakshi while deposing before the Trial Court as PW23, had stated that her husband had called her at around 12 numbern, and thereafter, at around 3 p.m. It was sought to be asserted, that the call details from exhibit PW25/DX reveal, that two incoming calls were received from a Chandigarh telephone, at around the time expressed by Minakshi PW23. It was pointed out, that as per the deposition of PW23, it should have been outgoing calls from mobile phone sim number9871879824 as Minakshi had claimed to have received the said two calls from her husband , yet as per Exhibit PW25/DX, these were incoming calls. Based on the aforesaid discrepancy, it was the vehement companytention of the learned companynsel for the accused-appellant, that the factum of tracing the accused-appellant from the mobile phone sim of the deceased Harish Kumar was a companyplete companycoction at the hands of the investigating agency. It was also sought to be suggested, that if the investigating agencys theory of reaching the accused-appellant was based on the call details of mobile phone sim number9871879824, the same becomes clearly unacceptable. According to learned companynsel, it would be natural to infer, that the police companyld number have reached the accused-appellant on the basis of call details of phone number 9871879824. And therefore, the question of recovery of the revolver, as also, the mobile handset owned by the deceased Harish Kumar , from his possession, does number arise. It was sought to be suggested that they must have been planted on the accused-appellant to implicate him. In so far as the first companytention advanced at the hands of the learned companynsel for the accused-appellant is companycerned, learned companynsel also invited our attention to the reasoning depicted in the impugned order passed by the High Court dated 18.3.2009 , wherein the accused-appellant has been linked to the incident on the basis of the following reasoning Holding that the call record Ex.PW-22/A evidences that two calls from Chandigarh were received on the mobile number 9871879824 in the afternoon of 23.7.2005, companyroborates the testimony of the wife of the deceased who was staying at Chandigarh on 23.7.2005 that she had talked to the deceased over telephone in the afternoon of 23.7.2005, which in turn establishes that the mobile number 9871879824 was being used by the deceased on the date of his death that the call records Ex.PW- 22/A and Ex.PW22/B establishes that the handset having IEMI No.350608101231170, which handset was used by the accused on a regular basis, was used by the deceased on 10th and 11th July, 2005 and that this establishes that the deceased and the accused were in touch with each other the call record Ex.PW-22/B evidences that the handset which was used by the deceased on the date of his death was in possession of the accused soon after the death of the deceased and that the same is a strong incriminating circumstance against the accused that the prosecution has been able to establish that the handset which was used by the deceased before his death and the revolver which was the weapon of offence were recovered at the instance of the accused It is the assertion of the learned companynsel for the accused-appellant, that the accused-appellant companyld never have been traced on the basis of the mobile phone sim number9871879824, as numbercall was ever made by the deceased Harish Kumar from the aforesaid mobile number to the accused-appellant. Likewise, numbercall was ever made by the accused-appellant from his mobile phone sim number9818480558 to the deceased Harish Kumar. As such it is submitted, that the companyclusions drawn by the Trial Court, as also, by the High Court, are clearly unacceptable, and deserve to be set aside. We have given our thoughtful companysideration to the first companytention advanced at the hands of the learned companynsel for the accused-appellant, as have been brought out in the foregoing two paragraphs. We are however of the view, that the submission advanced by the learned companynsel for the accused-appellant cannot be accepted, keeping in mind the evidence produced by the prosecution. Even though we are of the view, that the learned companynsel for the accusedappellant is fully justified in pointing out the discrepancy referred to by him, in so far as the statement of Minakshi PW23 is companycerned and the reasoning rendered by the High Court, as has been extracted hereinabove, may number be fully justified, yet we have numberdoubt, that the manner in which the accused-appellant came to be identified and traced, during the companyrse of investigation fully establishes the veracity of the prosecution case. The evidence produced by the prosecution is based on one irrefutable fact, namely, every mobile handset has an exclusive IEMI number. No two mobile handsets have the same IEMI number. And every time a mobile handset is used for making a call, besides recording the number of the caller as well as the person called, the IEMI numbers of the handsets used are also recorded by the service provider. The aforesaid factual position has to be kept in mind while examining the prosecution evidence. The first step in the process of investigation was the receipt of information from Minakshi the wife of deceased Harish Kumar , that the deceased was using mobile phone sim number9871879824. Evidence on record indicates, that the aforesaid sim number became dead on 23.7.2005, i.e., the date on which deceased Harish Kumar came to be murdered. In the process of investigation it then emerged, that the mobile handset bearing IEMI No.35136304044030 was used with mobile phone sim number 9818480558. This happened soon after the murder of Harish Kumar, on 23.7.2005 itself. The same sim was used to make calls from the same handset upto 2.8.2005. Through the statement of R.K. Singh PW22, Nodal Officer, Bharati Airtel Limited, it came to be established, that mobile phone sim number9818480558 was registered in the name of accused-appellant Gajraj Singh. It is from the use of the mobile handset bearing IEMI number35136304044030, that the police came to trace the accused-appellant Gajraj Singh. It is only this aspect of the matter which is relevant for the purpose of present companytroversy. The use of Mobile handset bearing IEMI number35136304044030 on which the accusedappellant made calls from his own registered mobile phone sim number9818480558, immediately after the occurrence of the murder of deceased Harish Kumar, was a legitimate basis for the identification of the accusedappellant. The accused-appellant was arrested on 6.8.2005. The nexus of the accused-appellant with the deceased at the time of occurrence stands fully substantiated from the aforesaid sim IEMI details. In the aforesaid sense of the matter, the discrepancy in the statement of Minakshi PW23, pointed out by the learned companynsel for the accused-appellant, as also, the reasoning rendered by the High Court in the impugned judgment becomes insignificant. We are satisfied, that the process by which the accused-appellant came to be identified during the companyrse of investigation, was legitimate and unassailable. The IEMI number of the handset, on which the accused-appellant was making calls by using a mobile phone sim registered in his name, being evidence of a companyclusive nature, cannot be overlooked on the basis of such like minor discrepancies . In fact even a serious discrepancy in oral evidence, would have had to yield to the aforesaid scientific evidence. For the reasons recorded hereinabove, we find numbermerit in the first companytention advanced at the hands of the learned companynsel for the accused-appellant. The second companytention advanced at the hands of the learned companynsel for the accused-appellant was, that there were only two independent witnesses associated with the recovery of the revolver, and the mobile handset bearing IEMI number35136304044030 belonging to deceased Harish Kumar , namely, Yuvraj PW12 and Veer Singh PW13. The said revolver and the mobile handset were, allegedly, recovered at the instance of the accused-appellant Gajraj Singh. Yuvraj, while appearing as PW12, denied having signed the recovery memo. He asserted that his signatures had been taken on blank papers, which had then been used in preparing the recovery memo. A similar statement was made by Veer Singh PW13. Pointing out to the statement made by the accused-appellant under Section 313 Cr.P.C., it was submitted, that the accused-appellant had clearly maintained, that the investigating officer s in the case, had intentionally and deliberately implicated the accused-appellant. We have examined the second submission advanced at the hands of the learned companynsel for the accused-appellant. Before evaluating the statement of Yuvraj PW12 and Veer Singh PW13, it is necessary to keep in mind their relationship with the accused-appellant. While Yuvraj PW12 is the brother of accused-appellant, Veer Singh PW13 is his father. It is apparent, that they would leave numberstone unturned to ensure the acquittal of the accused-appellant. Despite the aforesaid, it is clear from the submissions advanced at the hands of the learned companynsel for the accused-appellant, that neither Yuvraj PW12 number Veer Singh PW13, disputed the veracity of their signatures on the recovery memos. It is, therefore, apparent that their signatures, on the recovery memos, were authentic. If the signatures of the brother and father of the accusedappellant had been taken forcibly by the investigating agency, we have numberdoubt in our minds, that number only the accused-appellant but also his brother Yuvraj PW12 and his father Veer Singh PW13, would have raised a hue and cry. They would have made representations to the companycerned authorities pointing out, that the police had obtained their signatures on blank papers. The statements of Yuvraj PW12 and Veer Singh PW13 do number reveal any such action at their hands. We have, therefore, numberdoubt in our minds, that they had duly affixed their signatures on the recovery memos, vide which the revolver of the deceased, as also, the mobile handset of Panasonic make bearing IEMI number35136304044030 were recovered at the behest of accused-appellant Gajraj Singh. In view of the above, we find numbermerit even in the second companytention advanced at the hands of the accused-appellant. The third and the last companytention advanced by the learned companynsel for the accused-appellant was in respect of deposit of Rs.9,000/- by the accusedappellant in his account with the State Bank of India, Kundan Nagar Branch, Delhi.
Pinaki Chandra Ghose, J. This appeal, by special leave, has been directed against the judgment and order dated 30.07.2010 passed by the High Court of Judicature at Madras in Criminal Appeal No.1030 of 2003, whereby the High Court allowed the criminal appeal filed by respondent No.1 herein and acquitted him. The facts of this case, as unfolded by the prosecution, are that the appellant PW1 was running a Soda Factory under the name and style of Suvai and the 1st respondent herein was also running a Soda Factory under the name and style of Rusi. As the soda bottles of the 1st respondent were said to have been used by the appellant, their relations were strained and companysequently there was enmity between them. On 13.04.2002 at about 9.00 pm, when the appellant PW1 was talking with Nedunchezhian PW2 , Iyengar PW4 and Ramesh PW5 at the Bus Stand near the Ladapuram Mariamman Temple, accused Nos.1 to 6 came there and accused No.1 1st respondent herein questioned the appellant as to how the soda bottles from his factory had companye to the appellants factory. Soon the argument between them grew hot and the appellant was surrounded by accused Nos.2 to 6. Accused No.1 abused the appellant and started beating him. Then the father of the appellant Durairaj deceased came there and tried to dispel the quarrel and pacify them. At that point of time, it is alleged that respondent No.1 ran to the mini lorry parked nearby and took out an iron rod used for removing tyres and gave a blow on the head of Durairaj. Durairaj fell down, bleeding with injuries, and was taken to the hospital but he was declared dead. There were other allegations of beating, stone pelting, beatings by glass tumbler, wooden canes given by the other accused persons and PW1 and PW2 also suffered injuries. On hearing the hue and cry, the village people gathered at the place of occurrence. The appellant lodged the report same day at 11.30 p.m. at the Perambalur Police Station and the case was registered as Crime No.174 of 2002 for offences under Sections 147, 148, 323, 302 and 341 of the Indian Penal Code, 1860 hereinafter referred to as IPC . The accused persons were arrested on 18.04.2002, and the alleged recovery of the weapon was made at the instance of Respondent No.1. The post-mortem on the dead body was companyducted on 14.04.2002 and it was opined that the deceased companyld have died due to shock and hemorrhage due to injuries sustained in vital parts, like brain and head and bone fracture. Police filed challan against six accused and thereafter charges were framed against them under section 147, 148, 341, 323 and 302 of IPC. The charges were read over and explained to them. All the accused persons pleaded number guilty and claimed trial. The Trial Court by its judgment and order dated 27.06.2003, companyvicted Accused No.1 respondent No.1 herein for the offence punishable under Section 304 part II IPC, and acquitted Accused Nos.2 to 6, disbelieving the prosecution case. Aggrieved by the judgment and order passed by the Trial Court, respondent No.1 filed an appeal before the High Court. The High Court by the impugned judgment and order allowed the appeal and acquitted respondent No.1 on the ground that the prosecution case suffered from various infirmities, inconsistencies and inherent improbabilities and hence the companyviction was unsustainable in law. The appellant son of the deceased has challenged before us the judgment of acquittal passed by the High Court. Mr. Basant R., learned senior companynsel appearing for the appellant vehemently argued that the prosecution has established a clear and companyent story which is companysistent with the evidence of PWs. 2, 4 and 5 and which is further companyroborated by the medical evidence of PW3 Doctor . The said eyewitnesses have clearly established the role of respondent No.1 in the occurrence and there is numbermaterial companytradiction in respect of the place of occurrence, the weapon used and the single blow given on the deceased. To strengthen its case, the recovery of the weapon used was made at the instance of respondent No.1. Learned senior companynsel for the appellant further argued that there was numberundue delay in lodging the FIR Ex.P-1 and in sending the FIR to the area Magistrate. Mr. Karpagavinayagam, learned senior companynsel appearing on behalf of respondent No.1 argued that the High Court has categorically dealt with each of the argument and passed a detailed judgment pointing out serious lacunae. Further, it was argued that the recovery of the weapon was number proved as both the attesting witnesses turned hostile. The iron rod recovered was number found to have any companytamination of blood. The defence witness DW1 successfully proved that weapon was in the hands of PW2 which accidentally hit the deceased when it was aimed at respondent No.1. The other articles used in the attack i.e. glass tumbler, bottles, stones and wooden canes were number recovered. Also blood stained clothes of the witnesses were number taken into custody and there exist serious companytradictions in the depositions of the witnesses. This is in addition to the fact that all the witnesses are interested witnesses and despite the occurrence alleged to have taken place near a bus stand, numberindependent witness was called. Finally, the learned senior companynsel for the respondent argued that there was inordinate delay in lodging the FIR and its genuineness itself was doubtful on the ground that though PW1 had deposed that he had given a written report by himself, but there was a difference in handwriting between the companytents of the report and the signatures. We have heard the learned senior companynsel for the parties and perused all the evidences and records of the case. At the foremost, the infirmities in the depositions of the witnesses are argued. The four witnesses produced are interested witnesses three being in blood relation to the deceased and the fourth is a business partner of PW1. From the depositions of the witnesses it is clear that all the witnesses lived within close proximity to the place of incident and the said place is close to a temple, bus stand and tea stall. PW1 has specifically deposed that around 20 people were present at the time of incident and more people came there when the scuffle grew. The High Court rightly pointed out the lacunae in the investigation that despite the place of occurrence being a busy place, numberindependent eye witness was examined by the prosecution. The depositions made by the four witnesses also companyld number firmly established a unified story as their versions differed on the point of the exact place of incident and the sequence of events. The High Court rightly held that the delay in lodging the FIR has number been explained by the prosecution. The incident is alleged to have occurred at around 930pm thereafter the deceased was lying at the spot for about 20 minutes the deceased was taken to the hospital at about 1000-1015pm and the FIR was lodged by PW1 by giving a report in his own handwriting at 1130pm. The distance between the place of occurrence and the Perambalur Government Hospital is about 15km, and further 200 meters away is the Police Station. According to PW1, he brought the deceased to the Perambalur Government Hospital at 10pm. However, it is improbable that he companyered a distance of 15 km in very short time but took more than an hour to reach the Police Station which was just 200 meters away. Thus, there occurred an undue delay in lodging the FIR. Another infirmity in the genuineness of the FIR was pointed out by the defence as PW1 stated that he made the FIR in his own handwriting. However, upon examination the handwriting and the signature on the FIR were proved to be number matching with those of PW1. The prosecution based on the medical opinion argued that there was only one blow which resulted into three injuries. The doctor without seeing the weapon opined that the three injuries companyld have been possible with a single blow by iron rod and even after seeing the weapon held on to his opinion. Even though the above is proved, the prosecution has failed to prove the recovery of M.O.1 i.e. the iron rod. The prosecution witnesses specifically stated that the weapon used was an iron pipe, however, alleged recovery was made of one iron rod. There is difference between an iron pipe and an iron rod. The alleged recovery was number proved by the witnesses, as PW7 and PW11 turned hostile. Upon examination there was numberblood stain found on the weapon. Therefore, the prosecution failed to companynect the alleged recovered weapon with the weapon used in the incident. The prosecution also failed to explain as to why the blood-stained clothes of PWs were number seized. The said fact would have testified the presence of witnesses at the place of occurrence. Also, the witnesses, at any time, did number depose or produce before the Court their blood-stained clothes. In light of the above, an adverse inference is drawn against the role of the prosecution which already made a material flaw by number examining any independent witness. Another view which disproves the prosecution story is that the witnesses deposed that they were attacked by glass tumblers, bottles, stones and wooden canes. However, numbere of these articles were recovered or seized by the prosecution from the place of incident. PW1 and PW2 though suffered simple injuries, the doctor PW3 opined that the injuries companyld be sustained when entangled in a rough surface, if fallen on a rough surface, bruises companyld be sustained. There exists a possibility of minor scuffle at the place of incident. PW4 also deposed that there was a scuffle between respondent No.1 and the appellant PW1 . The prosecution has been able to prove the injuries sustained by the deceased. However, serious discrepancies arise from the depositions of the prosecution witnesses. The place of incident and the sequence of events are number proved. The weapon recovered companyld number be linked to the incident. The recovery itself is number proved. There is inordinate delay in lodging the FIR, which is in addition to the lack of genuineness of the FIR document itself. The possibility of subsequent material alterations cannot be ruled out. The defence examined one independent witness who deposed that the rod was in the hands of PW2 who accidentally struck the deceased while he intended the same on respondent No.1. It appears from the chain of events and previous enmity between the parties that there occurred a scuffle which grew hot and led to an injury which resulted into the death.
This appeal filed by a tenure holder, from the State of Maharashtra, has questioned the manner of calculation of ceiling area under Section 3 3 i of the Maharashtra Agricultural Lands Ceiling on Land Holdings Act, 27 of 1961 as amended by Act 21 of 1975 hereinafter referred to as the Act . What was claimed by the tenure holder was that he had two unmarried daughters on the relevant date. Therefore, the ceiling authority, while calculating the ceiling area of the family, should have taken into account the liability of the family for the maintenance and marriage expenses of these daughters. And their share in the land should have been numberionally worked out and so much of the area, as would have been found sufficient for their maintenance, should have been excluded while determining the ceiling area of the appellant. The basis for each claim was a decision given by the Bombay High Court in Manaklal Nathmal Kalahari v. State of Maharashtra 1982 Maharashtra Law Journal 654. It was held that at the time of carving out a numberional clause in terms of Section 3 3 i of the Ceiling Act, what the Ceiling Authority has to do is to numberionally ascertain the shares of the companyarcener as the Civil Court would have done at the time of passing of a partition decree. This companyclusion was reached by the learned Judge on a strength of a Privy Council decision in M.A. Rajagopala Ayyar v. M.A. Venkataraman AIR 34 1947 PC 122, wherein it was observed that the right of an unmarried daughter to maintenance and marriage expenses out of the joint family property is in lieu of a share on partition provision should accordingly be made for her marriage expenses in the partition decree. The Division Bench of the High Court, however, did number agree with it as this decision had number been agreed by another learned Judge of the same Court in Bhagwandas Heda and Ors. v. State of Maharashtra and Ors. 1983 Maharashtra Law Journal 825. The Division Bench agreed with the decision in Hedas case supra that the companyrect legal position under Section 3 3 i of the Ceiling Act is that while calculating the extent of share which the members of a family unit are entitled to hold, the claim of the unmarried daughters to maintenance and marriage expenses are number required to be taken into account. Section 3 3 i of the Act reads as under Section 3 3 .- Where any land- a is held by a family of which a person is a member, and the holding of such person or of a family unit of which such person is a member including the extent of share of such person, if any, in the land answering to any of the description as in Clauses a , b , c or d above, exceeds the ceiling area on or before the companymencement date or any date thereafter hereinafter referred to as the relevant date . Then for purpose of determining the ceiling area and the surplus land in respect of that holding, the share of such person in the land aforesaid shall be calculated in the following manner in the land held by a family of which the person is a member, the share of each member of the family shall be determined so that each member, who is entitled to a share on partition shall be taken to be holding separately land to the extent of his share, as if the land had been so divided and separately held on the relevant date. This Section provides method of calculation of the ceiling area of a family. It provides for determination of the land held by each member of the family and, then for clubbing together of the shares of such members who form a family unit and then to determine the ceiling and the surplus area of the tenure holder. A family unit in Explanation to Section 4 1 , means a a person and his spouse or more than one spouse and their minor sons and minor unmarried daughters, if any or b where any spouse is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters or c where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses. The ceiling area under Section 4 has to be determined of each member of a family unit, whether jointly or separately. Since the family unit under Section 4 companysists of the tenure holder, his spouses and minor sons and minor unmarried daughters, it obviously excludes the major sons and the major daughters from the ambit of family unit for purposes of determination of ceiling area. In fact the provision is beneficial to a tenure holder. The family for purposes of determination of surplus area has been restricted to husband, wife and minor children only. If the submission of the learned Counsel for the appellant is accepted, and a major unmarried daughter is also held to be a member of the family unit for determination of ceiling area, it may cause hardship in large number of cases where a major unmarried daughter is a tenure holder in her own right. It is, therefore, number in the interest of the tenure holders to companystrue the Section in the manner suggested by the learned Counsel for the appellant. Apart from it, the language of the Section being clear it does number require any interpretation or companystruction. The companyrts function of ascertaining the legislative intention arises only if there is any ambiguity in the provision or the literal companystruction of a provision may be companytrary to the legislative purpose or objective or may result in disastrous companysequences, on the plain reading of the Section, a numberional working out of the share of each member of the family is required to be only of those members who are entitled to a share on partition. The significance of the expression entitled to a share on partition cannot be lost sight of. An unmarried daughter may be entitled for maintenance and marriage expenses, but she was number entitled to a share on partition either under the customary Hindu Law or even under the Hindu Succession Act, 1956 or Hindu Adoptions and Maintenance Act, 1956.
CIVIL APPELATE JURISDICTION Civil Appeals Nos. 125 and 164 of 1958. Appeals by special leave from the Award dated August 26, 1957, of the Fifth Industrial Tribunal -at West Bengal in Case No. VIII-264/56. C. Issacs and S. N. Mukherjee, for the Appellants in C. No. 125/58 and Respondents in C. A. No. 164/58. C. Chatterjee and Dipak Datta Choudhri, for the. Respondents in C. A. No. 125/58 and Appellants in C. A. No. 164/58. 1959. January 28. The Judgment of the Court was delivered by SUBBA RAO, J.-These appeals are by Special Leave -from the Award by Shri G. Palit, Judge, Fifth Industrial Tribunal, West Bengal, in the matter of a dispute between Messrs. Bengal Chemical Pharmaceutical Works Limited, Calcutta, and their employees, represented by Bengal Chemical Mazdoor Union, Calcutta. The Government of West Bengal by its order dated September 13, 1956, referred the following dispute between the parties referred to above to the Second Industrial Tribunal under s. 10 of the Industrial Disputes Act, 1947 Act 14 of 1947 , hereinafter referred to as the Act. Is the demand of the employees for increase in Dearness Allowance justified ? If so, at what rate?. The said Act was amendedby the Industrial Disputes Amendment Miscellaneous Provisions Act, 1956 36 of 1956 , which came into force on August 28, 1956. On April 9, 1956, the Government made ail order transferring the said dispute from the file of the Second Industrial Tribunal to that of the Fifth Industrial Tribunal. The Fifth Industrial Tribunal, after making the necessary inquiry, made the award on August 26,1957, and it was duly numberified in the Calcutta Gazette on September 26, 1957. As a mistake had crept in, the award was modified by the Tribunal by its order dated the 29th November, 1957 and the modified award was published in the Calcutta Gazette on the 29th November, 1957. Under the award the Tribunal held that there was a rise in the companyt of living index and that to neutralise the said rise the employees should get an increase of Rs. 7 in dearness allowance on the pay scale up to Rs. 50 and Rs. 5 on the pay scale above Rs. 50. On that basis the dearness allowance payable to the employees was worked out and awarded. The companyrectness of the award is questioned in these appeals. The Company preferred Civil Appeal No. 125 of 1958 against the award in so far it was against it and the Union preferred Civil Appeal No. 164 of 1958 in so far it went against the employees. For companyvenience of reference, the parties will be referred to in the companyrse of the judgment as the Company and the Union. Learned Counsel for the Company raised before us the following points 1 The order dated April 9, 1957, made by the Government transferring the dispute from the file of the Second Industrial Tribunal to that of the Fifth Industrial Tribunal was illegal 2 the previous award made by the Tribunal between the same parties on April 26, 1951, and companyfirmed by the Labour Appellate Tribunal by its order dated August 30, 1951, had number been terminated in accordance with the provisions of s. 19 6 of the Act and therefore the present reference was bad in law and without jurisdiction 3 there was numberchange in the circumstances obtaining at the time the previous award was made and those prevailing at the time of the present reference as to justify making out a new award 4 the Tribunal went wrong in taking the rise in the companyt of living index between the years 1954 and 1957 instead of taking the fluctuating rate in the index between the date of the earlier award, i.e., August 30, 1951, and the date of the present reference in the year 1957 5 the Tribunal went wrong in so far as it based its decision on the Second Engineering Award of 1950 which was already companysidered by the Tribunal in its earlier award of the year 1951 and 6 in any event, in companyputing the amount, the Tribunal applied wrong criteria. We shall companysider the above companytentions seriatim. But before doing so, it will be companyvenient to refer briefly to the scope of jurisdiction of this Court under Art. 136 of the Constitution vis-a-vis the awards of Tribunals. Article 136 of the Constitution does number companyfer a right of appeal to any party from the decision of any tribunal, but it companyfers a discretionary power on the Supreme Court to grant special leave to appeal from the order of any tribunal in the. territory of India. It is implicit in the discretionary reserve power that it cannot be exhaustively defined. It cannot obviously be so companystrued as to companyfer a right to a party where he has numbere under the law. The Industrial Disputes Act is intended to be a self-contained one and it seeks to achieve social justice on the basis of companylective bargaining, companyciliation and arbitration. Awards are given on circumstances peculiar to each dispute and the tribunals are, to a large extent, free from the restrictions of technical companysiderations imposed on companyrts. A free and liberal exercise of the power under Art. 136 may materially affect the fundamental basis of such decisions, namely, quick solution to such disputes to achieve industrial peace. Though Art. 136 is companyched in widest terms, it is necessary for this Court to exercise its discretionary jurisdiction only in cases where awards are made in violation of the principles of natural justice, causing substantial and grave injustice to parties or raises an important principle of industrial law requiring elucidation, and final decision by this Court or discloses such other exceptional or special circumstances which merit the companysideration of this Court. The points raised by the learned Counsel, except perhaps the first point , do number stand the test of any one of those principles. Learned Counsel for the Company, however, says that, though the said principles might be applied at the time of granting leave, once leave is given numbersuch restrictions companyld be imposed or applied at the time of the final disposal of the appeal. The limits to the exercise of the power under Art. 136 cannot be made to depend upon the appellant obtaining the special leave of this Court, for two reasons, viz., i at that stage the Court may number be in full possession Of all material circumstances to make up its mind and ii the order is only an ex parte one made in the absence of the respondent. The same principle should, therefore, be applied in exercising the power of interference with the awards of tribunals irrespective of the fact that the question arises at the time of granting special leave or at the time the appeal is disposed of. It would be illogical to apply two different standards at two different stages of the same case. The same view was expressed by this Court in Pritam Singh v. The State of Madras 1 , Hem Raj v. State of Ajmer 1 and sadhu Singh v. State of Pepsu 3 The first question turns upon the companystruction of the relevant provisions of the Act as amended by the Industrial Disputes Amendment and Miscellaneous Provisions Act, 1956. The relevant provisions inserted by the Amending Act read as follows Section 2 r I Tribunal means an Industrial Tribunal companystituted under section 7A. 7 A. Tribunals.- 1 The appropriate Government may, by numberification in the official Gazette, companystitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule. A Tribunal shall companysist of one person only to be appointed by the appropriate Government. A person shall number be qualified for appointment as the presiding officer of a Tribunal unless- 1 1950 S.C.R. 453. 2 1954 S.C.R. 1153. A.I.R. 1954 S.C. 271. a he is, or has been, a Judge of a High Court or b he has held the office of the Chairman or any other member of the Labour Appellate Tribunal companystituted under the Industial Disputes Appellate Tribunal Act, 1950 48 of 1950 , or of any Tribunal, for a period of number less than two years. The appropriate Government may, if it so thinks fit, appoint two persons as assessors to advise the Tribunal in the proceeding before it. 33B. 1 The appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceeding under this Act pending before a Labour Court, Tribunal, or National Tribunal, as the case may be, for the disposal of the proceeding and the Labour Court, Tribunal or National Tribunal to which the proceeding is so transferred may, subject to-special directions in the order of transfer, proceed either de numbero or from the stage at which it was so transferred Provided that where a proceeding under section 33 or section 33A is pending before a Tribunal or National Tribunal, the proceeding may also be transferred to a Labour Court. Section 30 of the Amending Act reads If immediately before the companymencement of this Act, there is pending any proceeding in relation to an industrial dispute before a Tribunal companystituted under the Industrial Disputes Act, 1947 14 of 1947 , as in force before such companymencement, the dispute may be adjudicated and the proceeding disposed of by the Tribunal after such companymencement, as if this Act has number been passed. Section 7, before the Amendment ran thus The appropriate Government may companystitute one or more Industrial Tribunals for the adjudication of industrial disputes in accordance with the provisions of this Act. A Tribunal shall companysist of such number of members as the appropriate Government thinks fit. Where the Tribunal companysists of two or more members, one of them shall be appointed as chairman. Every member of the Tribunal shall be an independent person, a who is or has been a Judge of a High Court or a District Judge, or b is qualified for appointment as a Judge of a High Court Provided that the appointment to a Tribunal of any person number qualified under part a shall be made in companysultation with the High Court of the Province in which the Tribunal has or is intended to have, its usual place of sitting. It will be seen from the aforesaid provisions that the Amending Act, which came into force on August 28, 1956, changed the companystitution of a tribunal to some extent and companyferred a power for the first time on the Government to transfer a proceeding pending before a tribunal to another tribunal or in the case of a proceeding under s. 33 or 33A pending before a tribunal to another tribunal or to a Labour Court. Section 30 of the Amending Act expressly saves a pending proceeding before a tribunal companystituted under the Act before the Amending Act came into force and directs that such dispute shall be adjudicated and the proceeding disposed of by that tribunal after the companymencement of the Amending Act as if that Act had number been passed. A companybined and fair reading of the aforesaid provisions, it is argued, was that s. 33B, inserted in the Act by the Amending Act, was prospective in operations i.e., it would apply only to proceedings initiated in the tribunal companystituted Under the amended Act and that proceedings pending before the tribunals companystituted under the Act before the companymencement of the Amending Act would be disposed of as if the Amending Act had number been passed. The Parliament, presumably to clarify the position, brought out another Amending Act styled the Industrial Disputes Amendment Act, 1957 18 of 1957 , whereunder among other things, a new definition of Tribunal was given in substitution of that in s. 2 r of the Act. The substituted definition reads Tribunal means an Industrial Tribunal companystituted under section 7A and includes an Industrial Tribunal companystituted before the 10th day of March, 1957, under this Act. Sub-section 2 of s. I of the Amending Act 18 of 1957 says that s. 2 shall be deemed to have companye into force on the 10th day of March, 1957. The result is that section 33B should be read along with the definition of a Tribunal inserted by the Amendment Act 18 of 1957, as if that definition was in the Act from March 10, 1957. If that definition of a Tribunal be read in place of the word ,Tribunal in s. 33B, the relevant part of that section reads The appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceeding under this Act pending before a Tribunal companystituted before the 10th day of March, 1957, and transfer the same to another Tribunal companystituted under section 7A of the Act. So companystrued it follows that in respect of proceedings pending in a tribunal companystituted before the 10th day of March, 1957, the Government has the power to transfer them from that date to any other tribunal. It is said that this companystruction would make s. 30 of the Amending Act 36 of 1956 otiose or nugatory. That section companytained only a saving clause and it was number inserted in the Act it served its purpose, and even if it ceased to have any operative force after the Amendment of 1957, that circumstance cannot have any bearing on the impact of the amendment of the definition of Tribunal on the provisions of s. 33B of the Act. In the present case, the Government made the order of transfer on April 9, 1957, i.e., after s. 2 of Amendment Act 18 of 1957 was deemed to have companye into force. It must, therefore, be held that the Government acted well within its powers in transferring the dispute pending before the Second Industrial Tribunal, to the Fifth Industrial Tribunal. The second companytention, namely, that the Award of 1951 was number terminated in accordance with law, does number appear to have been pressed before the Tribunal. The governing section is s. 19 6 which says Notwithstanding the expiry of the period of operation under sub-section 3 , the award shall companytinue to be binding on the parties until a period of two months has elapsed from the date on which numberice is given by any party bound by the award to the other party or parties intimating its intention to terminate the award. In the first written-statement filed by the Company before the Tribunal, numberplea was taken based upon s. 19 6 of the Act. In the second written-statement filed by the Company on December 20, 1956, a companytention was raised to the effect that the award dated June 21, 1951, was number terminated under s. 19 6 of the Act, that the said award was binding between the parties and therefore the reference was bad in law. Notwithstanding the said allegation, the award discloses that numberissue was raised on that companynt and numberargument was advanced in support thereof. This attitude might have been adopted by the Company either because it did number think fit to rely upon a technical point but had chosen to get a decision of the Tribunal on merits, or it might be that there was numberbasis for the companytention, as the companypany might have received numberice under the said section. Though it may number be quite relevant, it may be mentioned that even in 1951 when the dispute between the parties was referred to the Industrial Tribunal, though a similar companytention was open to the Company and indeed was suggested by the Tribunal, it moved the Tribunal to give an award on the merits of the matter. If this plea had been seriously pressed, the Tribunal would have raised a separate issue and the Union would have been in a position to establish that numberice had been served on the Company as required by s. 19 6 of the Act. As the question raised depends upon elucidation of further facts, we do number think that we would be justified in allowing the Company to raise the plea before us, and we, therefore, do number permit them to do so. The fourth point turns on the companystruction of the terms of the agreement entered into between the parties on September 15, 1954. The dispute between the parties had an earlier origin and apart from the present reference, there were as many as four references and four awards, and the last of them was dated April 3, 1951. The Company preferred an appeal against that award to the Labour Appellate Tribunal-, Calcutta, which, with some modification, companyfirmed the award of the Tribunal on August 30, 1957. That award as modified by the Appellate Tribunal fixed the basic wages and the rate of dearness allowance payable to the employees. The employees were number satisfied with the award and they placed before the. Company a new charter of demands claiming higher rates of dearness allowance and wages, but the dispute was companypromised and the parties entered into an agreement dated September 15, 1954, by virtue of which, the Company introduced the incremental scale in the wage structure. As regards the dearness allowance, it was stated in cl. 1 1 of the agreement as follows The existing rate of D. A. will prevail unless there is a substantial change in the working class companyt of living index,in which case the rate will be suitably adjusted. On the companystruction of this clause depends the question of the Unions right to claim enhanced dearness allowance. It is companymon case that if the companyt of living index in the year 1951 was taken as the basis, there was a fall in the rate of working class companyt, of living index in 1957. On the other hand, if the companyt of living index in 1954 was the criterion, there was a substantial increase in the companyt of living index in 1957. The question, therefore, is what did the parties intend to agree by the aforesaid clause in the agreement. To ascertain the intention of the parties, we should companysider the circumstances under which the said agreement was entered into between the parties. Exhibit 6 is the said agreement. The preamble to the agreement reads The Company and the Union came to a settlement in respect of the Pay Scales and Grades in the Charter of Demands dated 25th June, 1953, at the intervention of Shri A. R. Ghosh, Asstt. Labour Commissioner during the Conciliation proceedings ending on the 30th August, 1954. The preamble indicates that-the entire situation obtaining on the date of the agreement -was reviewed and the parties agreed to the terms of the settlement mentioned therein. Under clause 1 of the agreement, pay scale and grade as given in annexure B was agreed upon for the time being for a period of three years as an experimental measure, to be reviewed, modified or suspended or withdrawn after three years, depending upon the Companys business and financial companydition. By el. 2 , the employees agreed number to raise any dispute involving any further financial burden on the Company during the next three years in respect of pay scale and grade. Clauses 3 to 5 deal with increments and the age of retirement. Clause 6 provides for the piece-rated companytract workers in respect of their increments. Clause 7 is in respect of increment for the daily-rated workers. Clause 8 is in respect of the grade and scale of pay and increments of Chemists, Engineers and Doctors, etc. Clause 9 is to the effect that the employees who would be made permanent thence forward would be grouped under two divisions for the purposes of giving effect to the scale of pay. Clause 11 which we have already extracted above relates to the dearness allowance. Clause 12 says barring the question of bonus for 1358 and 1359 B. S.the Union withdraws its claim in respect of other items in the Charter of Demands dated 25th June, 1953. We have given the agreement in extenso only for the purpose of showing that all the disputes between the parties arising out of the charter of demands dated June, 25, 1953, were settled between them and reduced to writing. The agreement was self-contained and started a new chapter regulating the relationship of the parties to the dispute in respect of matters companyered by it. The award must be deemed to have been superseded by the new agreement. In this companytext the crucial words existing rate of D. A. , on which both the learned Counsel relied, companyld have only one meaning. Do the words existing rate refer to the date of the agreement or to the date of the award ? It is true that the existing rate of D. A. had its origin in the award and was made to prevail under the agreement, that is to say that the rate was accepted by the parties as reasonable on the date of the agreement, till there was a substantial change in the working class companyt of living index. If the companytention of the learned Counsel for the Company should prevail, the agreement would number be self-contained, but only to be companystrued as modifying the earlier award to some extent. We are satisfied that in regard to matters companyered by it, the agreement replaced the earlier award and therefore the date of the agreement is the crucial one for ascertaining whether there was substantial change in the working class companyt of living index in the year 1957. We, therefore, reject this companytention. Contentions 3, 5 and 6 raise pure questions of fact. The Tribunal, on the companysideration of the entire material placed before it, came to the companyclusion that there was change of circumstances which entitled the employees to claim an increase in their dearness allowance. It has also fixed the rate of increase in the dearness allowance on the basis of the rise in the companyt of living index. In doing so, it also took into companysideration the difficulties facing the industry and the repercussion of the rise in the dearness allowance on the companysumers in general. Having regard to the overall picture, it came to the companyclusion that full neutralisation of the deficiency as a result of rise in the companyt of living index by dearness allowance companyld number be permitted and therefore allowed them only 75 per cent. of the increase in the dearness allowance to which they would have otherwise been entitled on the basis of the rise in the companyt of living index. The finding given by the Tribunal is one on fact and we do number see any permissible ground for interference with it in this appeal by special leave. Before closing, one point strenuously pressed upon us by the learned Counsel for the Company which is really another attempt to attack the finding of fact given by the Tribunal from different angle must be mentioned it was that the Tribunal wrongly relied upon Exhibit 3, companyrected on the basis of the information given by the State Statistical Bureau, West Bengal, for ascertaining the working class companyt of living index since August 1954 up to March 1957. On the basis of Exhibit 3, the Tribunal held that the working class companyt of living index stood at 344.1 in August 1954 and it rose to 400.6 in May 1957, with the result that there was a rise of 56 points, a substantial rise in the companyt of living index. Exhibit 3 certainly supports the finding of the Tribunal. The learned Counsel for the Company points out with reference to the relevant entries in the Monthly Statistical Digest, West Bengal, that the said figures relate only to working class menials and the companyresponding entries in regard to the working class companyt of living index do number indicate so much increase as in the case of the menial class. Learned Counsel has also taken us through the relevant figures. The relevant entries in the Monthly Statistical Digest were number filed before the Tribunal. Indeed when the Unions witness, Shri Satyaranjan Sen, was examined before the Tribunal, he was number cross-examined with a view to elicit information that Exhibit 3 did number relate to the working class companyt of living index. When Shri Chatterjee, the Assistant Manager of the Company, who was examined after Shri Sen, gave evidence, he number only did number object to the entries in Exhibit 3 but stated that he was number aware of any substantial increase in the working class companyt of living index and companyplained that similar entries for all the relevant years had number been produced. Even before the Tribunal it does number appear that any argument was advanced companytesting the relevancy of Exhibit 3 on the ground that it did number refer to the working class companyt of living index. In the circumstances, we do number think that we are justified to allow the learned Counsel -for the Company to make out a new case for the first time before us, upsetting the Tribunals basis for calculation and involving further and different calculations. In the result, we companyfirm the award of the Tribunal and dismiss the appeal with companyts. The learned Counsel, appearing for the Union, did number press the appeal No.
Leave granted. Initially, nine persons were charged for companymission of offences under Sections 395 and 397 of the Indian Penal Code IPC . The appellant was one of them. The learned Trial Judge, however, acquitted all the accused in respect of offence punishable under Section 397 of the IPC. However, the learned Trial Judge having found them guilty for companymission of an offence under Section 395 I.P.C., sentenced them to undergo rigorous imprisonment for a period of 10 years. By reason of the impugned judgment the High Court, however, has acquitted all the accused persons except the appellant herein. It was recorded by the High Court -2- Surprisingly and shockingly, even though horrendous and horrible crime took place, owing to faulty investigation and lack of company operation from the witnesses except as against A-1, the prosecution cannot succeed in driving home the guilt as against other accused. Accordingly, Point Nos. ii and iii are also answered. Indisputably, all the witnesses who were examined on behalf of the prosecution to prove the alleged extra judicial companyfession with regard to recovery of materials turned hostile. The prosecution witness to the Mahazar in regard to the currency numberes has number been examined. The evidence of the witnesses for the purpose of identifying the accused persons, except the appellant herein, has also number been relied upon. As all the other accused persons have been acquitted, we are of the opinion that numbercase has been made out for companymission of offence under Section 395 of the P.C. The allegations made against the appellant, at best makes out a case against him for companymission of offence under Section 392 of the I.P.C. -3- It is stated before us that the appellant has been in custody for a period of seven years.
S. Hegde, J. Defendants 1 to 4 in the suit are the appellants in this appeal by special leave. Respondents 1 and 2 were the plaintiffs therein. The suit was one under Order 21, Rule 63,. The only question that arises for decision in this appeal is whether the suit property is separate property within the meaning of Section 3 1 of the Hindu Womens Rights to Property Act, 1937 to be herein after referred to as the Act . The facts as found by the High Court, which are numbermore in dispute may number be stated. The plaintiffs obtained a decree against defendant No. 5 for possession of the suit properties. When they levied execution of the decree, defendants 1 to 4 objected to the execution alleging that they were in possession of the suit premises in their own right and that they were number liable to be evicted. That objection was upheld by the execution companyrt. Thereafter the plaintiffs instituted a statutory suit under Order 21, Rule 63, CPC for a declaration of their title to the suit properties and for possession of the same. The suit was dismissed by the trial companyrt and that decree was affirmed by the 1st appellate companyrt. But the same was reversed by the High Court. The suit property originally belonged to the Hindu joint family companysisting of one Bhagwan Das and his son Rameshwar Lall. Rameshwar Lall died some time in 1933 or 1934, leaving behind him his widow jaidei, his two daughters, his father and mother After the death of Rameshwar Lall, Bhagwan Das was the sole surviving companyarcener in his family. Bhagwan Das dies sometime in 1944 or 1945 leaving behind him his widow Mahadei, his daughter-in-law and to grand-daughters. Mahadei and one Satyanarayan who claimed to be the adopted son of Rameshwar Lall sold the suit property to the plaintiffs in 1952. Thereafter Jaidei and her two daughters sold the same property to the appellants, on January 16, 1960. The appellants have denied the adoption of Satyanarayan and the same has number been satisfactorily proved. But that question is irrelevant for deciding is whether Jaidei obtained any right in the property under Section 3 1 of the Act. The Act came into force in 1937. Rameshwar Lall died as seen earlier in 1933 or 1934. Section 4 of the Act makes it clear that the Act is number to operate retrospectively. Hence Jaidei cannot claim any right to the suit property through her husband who had died long before the Act came into force. But it is companytended that she obtained a share in the property as one of the heirs of Bhagwan Das who died after the Act came into force. For this companytention reliance is placed on Section 3 1 of the Act. Now we may read the relevant provisions of the Act. Section 2 lays down Notwithstanding any rule of Hindu Law or Custom to the companytrary, the provisions of Section 3 shall apply where a Hindu dies intestate. Section 3 1 provides When a Hindu governed by the Dayabhag School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow all his widows together, shall, subject to the provisions of Sub-section 3 be entitled in respect of property in respect of which he dies intestate to the same share as a son Provided that the widow of a predeceased son shall inherit in like manner as a son if there is numberson surviving of such predeceased son, and shall inherit in like manner as a sons son if there is surviving a son or sons son of such predeceased son Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son. Jaidei can have a share in the property only if the property is held to have been the separate property of Bhagwandas. As seen earlier Bhagwandas became the sole surviving companyarcener in the family after the death of his son Rameshwar Lall but even then he did number become the absolute owner of the property though his rights in the property were enlarged to a large extent. It is number necessary to spell out the nature of the rights obtained by him after the death of his son Rameshwar Lall. But, suffice it to say that the Joint Hindu family companytinued. It is number well settled that a property obtained by the sole surviving companyarcener in a family does number become his separate property so long as there is a woman in the family who can bring into existence a new companyarcener by adoption. At the time of the death of Bhagwandas, his widow Mahadei and his daughter-in-law were alive. That being so, the joint family cannot be held to have been disrupted. The learned Counsel for the appellants very fairly companyceded that if we are unable to held that the suit property was the separate property of Bhagwandas at the time of his death, the appeal has to fail. According to him on the death of Rameshwar Lall, the whole property became the separate property of Bhagwandas. This companytention has to be rejected without elaborate examination in view of the decision of Federal Court in RM, AR.A.R.R.M A.R.A.R. UMATA ACHI v. Lakahmi Achi and Ors. 7, FCR p. 1 which decision was quoted with approval by this Court in Angurbala Mullick v. Debabrata Mullick 1951 SCR 1125. The Federal Court in Umaya Achis case supra , held that the property held by a person as a sole surviving companyarcener of a joint Hindu family is number his separate property within the meaning of Section 3 1 of the Act.
S. Hegde, J. Civil Appeal No. 1126 of 71 by special leave arises from the decision of the High Court of Calcutta in a reference Under Section 66 1 of the Indian Income Tax Act, 1922 hereinafter referred to as the Act. The assessment year with which we are companycerned in this appeal is 1955-56, the previous year ending on March 31, 1955. The facts as found by the Tribunal are as follows During the relevant previous year the assessee sold 2500 shares of M s. Karam Chand Thapar Sons Ltd, which had been purchased by them in three lots 100 shares on 20th May. 1941, 1300 shares on 17th September, 1941 and 100 on 31st March, 1950. The total price paid for these shares was Rs. 2,54, 592/ The entire block of the said shares was sold to M s. Mugneeram Bangur Co on March 4, 1945 for a sum of Rs. 1,50,000/-. The assessee there by suffered a loss of Rs. 1,04,592/-. It claimed that the loss was a trading loss. The Income-tax Officer did number accept the assessees claim. He opined that the transaction in question was number a genuine transaction and further even if it is a genuine transaction the loss incurred is a capital loss. In appeal the Appellate Assistant Commissioner did number agree with all the findings reached by the In-come-Tax Officer.He came to the companyclusion that the sale transaction was genuine but the loss incurred was a capital loss On a further appeal the Tribunal agreed with the Appellate Assistant Commissioners companyclusion that the loss in question was a capital loss. Hence it did number go into the question whether the transaction was a genuine one. It assumed that it was genuine. It found the following facts 1 2400 shares were purchased in the year 1941. They were the shares of a companypany managed by the assessee. All these shares were sold on 4-3-1955. These shares were shown in the account books of the assessee as investments shares. They were also shown in the Balance-sheet as investments and. They were number sold when the price of those shares were high. On the basis of these findings it reached the companyclusion that the loss incurred is a capital loss as those shares were purchased as investments shares. Whether a particular loss is a capital loss or a revenue loss is a mixed question of law and facts. It is difficult to lay down any cut and dry principles for deciding that question. It depends upon the facts and circumstances of each case. Generally speaking the decision depends on the inference to be drawn from the facts found by the Tribunal. All that we have to see is whether the inference drawn by the Tribunal on the facts found by it is a reasonable inference. As seen earlier one of the circumstances on which the Tribunal mainly relied on is that those shares were purchased in the year 1941 but they were sold only in the year 1955. The Tribunal has also numbered that though at some stages these shares companyld have been sold at a much higher price than for which they were sold the assessee did number choose to sell those shares. Locking up of shares for about 14 years must be held to be an unusual feature if those shares were the trading assets of the assessee. That circumstance is more companysistent with the fact that those shares were investment shares. No. explanation was offered for number dealing with those shares for about 14 years. It is least likely that a trader would retain his shares purchased by him in 1941 till 1955 though he had occasions to sell the same at a higher price earlier. It may be numbered that though according to the assessee the price of those shares was Rs. 50/-per share in the year 1950 yet the assessee purchased 100 shares in 1950 at Rs. 75/-per share. This is again indication that the assessee was number acquiring those shares as a trading activity.We fail to see why the shares of M s. Karamchand Thapar Sons should have gone down in value in the years 1952-53, 1953 1954 and 1954-55 when that companypany was nuking substantial profits. This circumstance remains unexplained The Tribunal also relied on the circumstance that the assessee was showing these shares as investment shares in its books as well as in the Balance sheet It is true that that circumstance by itself is number a companyclusive circumstance. It cannot be denied that this is a relevant circumstance on which the Tribunal companyld have relied for drawing the inference it did. The explanation that it had to do so because of the provisions of the companypany law is unfounded. In our opinion, on the facts found by it, the Tribunal was justified in drawing the inference that the loss in question was a capital loss. That is also the view taken by the High Court. In the result, Civil Appeal No. 1126/71 is dismissed with companyt. Now companying to Civil Appeal No. 1747 of 68 we revoke the certificate granted by the High Court as it is number supported by any reason.
ORIGINAL JURISDICTION W.Ps. Nos. 5 and 7 to 9 of 1965. Petition under Art. 32 of the Constitution of India for the enforcement of Fundamental Rights. C. Setalvad, R. K. Garg, R. C. Agarwal, D. P. Singh and K. Ramamurthi, for petitioner in W.P. No. 5 of 1965 . K. Sen, R. K. Garg, S. C. Agrawal, D. P. Singh and M. Ramamurthi, for the petitioner in W.P. No. 7 of 1965 . K. Krishna Menon, R. K. Garg, S. C. Agrawal, D. P. Singh and M. K. Ramamurthi, for the petitioner in W.P. No. 8 of 1965 . C. Chatterjee, R. K. Garg, S. C. Agrawal, D. P. Singh, and M. K. Ramamurthi, for the petitioners in W. P. No. 9 of 1965 . K. Daphtary, Attorney-General, B. R. L. Iyengar and B. R. K. Achar, for the respondents in all the petitions . The Judgment of GAJFNDRAGADKAR C.J., WANCHOO, MUDHOL- KAR, SIKRI and RAMASWAMI, JJ. was delivered by GAJENDRA-GADKAR J. SARKAR, SHAH and BACHAWAT JJ. delivered separate Opinions. HIDAYATULLAH, J. delivered a dissenting Opinion. Gajendragadkar, C.J. The petitioner in Writ Petition No. 5 of 1965--Naresh Shridhar Mirajkar, who is a citizen of India, serves as a Reporter on the Staff of the English Weekly Blitz, published in Bombay and edited by Mr. R. K. Karanjia. It appears that Mr. Krishnaraj M. D. Thackersey sued Mr. R. K. Karanjia Suit No. 319 of 1960 on the Original Side of the Bombay High Court, and claimed Rs. 3 lakhs by way of damages for alleged malicious libel published in the Blitz on the 24th September, 1960, under the caption Scandal Bigger Than Mundhra. This suit was tried by Mr. Justice Tarkunde. One of the allegations which had been made in the said article was to the effect that China Cotton Exporters, of which Mr. Thackersey was a partner, had obtained licences for import of art silk yarn on companydition that the same would be sold to handloom weavers only and that in order to sell the said silk yarn in the black market with a view to realise higher profits, three bogus handloom factories were created on paper and bills and invoices were made with a view to create the impression that the companydition on which the, licences had been granted to China Cotton Exporters, had been companyplied with. Mr. Thackerseys companycern had thus sold the said yarn in the black-market and thereby companycealed from taxation the large profits made in that behalf. These allegations purported to be based on the papers filed in Suits Nos. 997 and 998 of 1951 which had been instituted by China Cotton Exporters against National Handloom Weaving Works, Rayon Handloom Industries, and one Bhaichand G. Goda. The said Bhaichand G. Goda was alleged to have been the guarantor in respect of the transactions mentioned in the said suits. The said Bhaichand Goda had, in the companyrse of insolvency proceedings which had been taken out in execution of the decrees passed against him, made an affidavit which seemed to support the main points of the allegations made by the Blitz in its article Scandal Bigger Than Mundhra. During the companyrse of the trial, the said Bhaichand Goda was called as a defence witness by Mr. Karanjia. In the witness-box, Mr. Goda feigned companyplete ignorance of the said transactions and under protection given to him by the learned Judge who was trying the action, he repudiated every one of the allegations he had made against Mr. Thackerseys companycern in the said affidavit. Thereupon, Mr. Karanjia applied for permission to cross-examine Mr. Goda and the said permission was granted by the learned Judge. Accordingly, Mr. Goda came to be cross-examined by Mr. Karanjias companynsel. Later, during the companyrse of further proceedings, it was discompanyered that Mr. Goda had made several statements before the Income-tax authorities in which he had reiterated some of the statements made by him in his affidavit on which he was crossexamined. From the said statements it also appeared that he had alleged that in addition to the invoice price of the transactions in question, he had paid Rs. 90,000/- as on money to China Cotton Exporters. As a result of the discovery of this material, an application was made by Mr. Karanjia before the learned Judge for permission to recall Mr. Goda and companyfront him with the statements which he had made before the Income-tax authorities. The learned Judge granted the said application. On Friday, the 23rd October, 1964, Mr. Goda stepped. into the witness-box in pursuance of the order passed by the learned Judge that he should be recalled for further examination. On that occasion he moved the learned Judge that the latter should protect him against his evidence being reported in the press. He stated that the publication in the press of his earlier evidence had caused loss to him in business and so, he desired that the evidence which he had been recalled to give should number be published in the papers. When this request was made by Mr. Goda, arguments were addressed before the learned Judge and he orally directed that the evidence of Mr. Goda should number be published. It was pointed out to the learned Judge that the daily press, viz., The Times of India and The Indian Express gave only brief accounts of the proceedings before the Court in that case, whereas the Blitz gave a full report of the said proceedings. The learned Judge then told Mr. Zaveri, Counsel for Mr. Karanjia that the petitioner who was one of the reporters of the Blitz should be told number to publish reports of Mr. Godas evidence in the Blitz. The petitioner had all along been reporting the proceedings in the said suit in the companyumns of the Blitz. On Monday, the 26th October, 1964, Mr. Chari appeared for Mr. Karanjia and urged before the learned Judge that the fundamental principle in the administration of justice was that it must be open to the public and that exceptions to such public administration of justice were rare, such as that of a case where a child is a victim of a sexual offence, or of a case relating to matrimonial matters where sordid details of intimate relations between spouses are likely to companye out, and proceedings in regard to official secrecy. Mr. Chari further companytended that numberwitness companyld claim protection from publicity on the ground that if the evidence is published it might adversely affect his business. Mr. Chari, therefore, challenged the companyrectness of the said order and alternatively suggested to the learned Judge that he should pass a written order forbidding publication of Mr. Godas evidence. The learned Judge, however, rejected Mr. Charis companytentions and stated that he had already made an oral order forbidding such publication, and that numberwritten order was necessary. He added that he expected that his oral order would be obeyed. The petitioner felt aggrieved by the said oral order passed by Mr. Justice Tarkunde and moved the Bombay High Court by a Writ Petition No. 1685 of 1964 under Art. 226 of the Constitution. The said petition was, however, dismissed by a Division Bench of the said High Court on the 10th November, 1964 on the ground that the impugned order was a judicial order of the High Court and was number amenable to a writ under Art. 226. That is how the petitioner has moved this Court under Art. 32 for the enforcement of his fundamental rights under Art. 19 1 a and g of the Constitution. Along with this petition, three other petitions have been filed in this Court they are Writ Petitions Nos. 7 , 8 and 9 of 1965. Mr. P. R. Menon, Mr. M. P. Iyer, and Mr. P. K. Atre, the three petitioners in these petitions respectively, are Journalists, and they have also challenged the validity of the impugned order and have moved this Court under Art. 32 of the Constitution for enforcement of their fundamental rights under Art. 19 1 a and g . It appears. that these three petitioners were present in companyrt at the time when the impugned order was passed and they were directed number to. publish the evidence given by Mr. Goda in their respective papers. All the petitioners challenge the validity of the impugned order on several grounds. They urge that the fundamental rights of citizens guaranteed by Art. 19 1 are absolute, except to the extent that they are restricted by reasonable restrictions imposed by law within the limitations prescribed by clauses 2 to 6 of Art. 19. According to them, it is doubtful whether even the Indian Legislatures have the power to ban publication of faithful reports of proceedings in the Legislatures, much less can the companyrts have power to ban such publication. They also allege that a restriction imposed in the interests of the witness cannot be held to be justified under Art. 19 2 , and that in passing the impugned order, the learned Judge had exceeded his jurisdiction. It is plain that the basic assumption on which the petitions are founded, is that the impugned order infringes their fundamental rights under Art. 19 1 and that it is number saved by any of the provisions companytained in clauses 2 to 6 . To these petitions, the State of Maharashtra and Bhaichand Goda have been impleaded as respondents I and 2 respectively. Respondent No. I has disputed the companyrectness and the validity of the companytentions raised by the petitioners in support of their petitions under Art. 32. In regard to factual matters set out in the petitions, respondent No. I has naturally numberpersonal knowledge but for the purpose of these petitions, it is prepared to assume that the facts alleged in the said petitions are companyrect. According to respondent No. 1, the impugned order was passed by the learned Judge in exercise of his general and inherent powers and he was justified in making such an order, because in his opinion, the excessive publicity attendant upon the publication of Mr. Godas evidence would have caused annoyance to the witness or the parties, and might have led to failure of justice. It urges that it is for the Judge trying the suit to companysider whether in the interests of the administration of justice, such publication should be banned or number. According to respondent No. 1, the impugned order cannot be said to affect the petitioners fundamental rights under Art. 19 1 and that even otherwise, it is protected under Art. 19 2 . Respondent No. I also companytends that the High Court being a superior Court of Record, is entitled to determine questions of its own jurisdiction and orders like the impugned order passed by the High Court in exercise of its inherent jurisdiction are number amenable to the writ jurisdiction of this Court under Art. 32 2 of the Constitution. That, broadly stated, is the nature of the allegations made by the respective parties in the present proceedings. At the hearing of these petitions, the arguments advanced before us on both the sides have companyered a very large field. It has been urged by Mr. Setalvad who argued the case of the petitioner in Writ Petition No. 5 of 1965, that Art. 32 1 is very wide in its sweep and numberattempt should be made to limit or circumscribe its scope and width. The right companyferred on the citizens of this companyntry by Art. 32 1 is itself a fundamental right and so, he argues that as soon as it is shown that the impugned order has companytravened his fundamental rights under Art. 19 1 , the petitioner is entitled, as a matter of guaranteed companystitutional right, to move this Court under Art. 32. Mr. Setalvad also urges that the extent of the jurisdiction of this Court to issue a writ of certiorari must be determined in the light of the width of the guaranteed right companyferred on the citizens by Art. 32 1 . The power to issue writs companyferred on this Court by Art. 32 2 is a very wide power, and it includes the power to issue number only the writs therein specified, but also directions or orders in the nature of the said specified writs. The test in exercising the power under Art. 32 2 inevitably has to be if the fundamental right of a citizen has been breached, which is the appropriate writ, direction, or order that should issue to remedy the said breach? According to Mr. Setalvad, the fundamental rights guaranteed to the citizens by Part III are very wide in their scope and the right to move this Court by an aggrieved citizen is number limited to his right to move only against the Legislature or the Executive. If an individual citizen companytravenes the fundamental rights of another citizen, the aggrieved citizen can, according to Mr. Setalvad, move this Court for an appropriate writ under Art. 32 1 2 . As illustrations supporting this proposition, Mr. Setalvad referred us to the fundamental rights guaranteed by Articles 17, 23 and 24. Article 17 abolishes untouchability. If in spite of the abolition of untouchability by companystitutional provision included in Part III, any private shop-keeper, for instance, purports to enforce untouchability against a Harijan citizen, the said citizen would be entitled to move this Court for a proper order under Art. 32 1 2 . Similar is the position in regard to fundamental rights guaranteed by Articles 23 and 24. Art. 23 prohibits traffic in human beings and forced labour, whereas Art. 24 prohibits employment of children to work in any factory or mine or their engagement in any other hazardous employment. In regard to judicial orders passed by companyrts, Mr. Setalvad says that the said orders cannot claim immunity from being challenged under Art. 32, because some of the fundamental rights guaranteed are clearly directed against companyrts. In support of this companytention, he relies on the fundamental rights guaranteed by Art. 20 1 2 , Art. 21, and Art. 22 1 . These Articles refer to protection in respect of companyviction for offences, protection of life and personal liberty, and protection against arrest and detention in certain cases, respectively. Read Art. 32 1 and 2 together in this broad perspective, says Mr. Setalvad, and it would follow that if a judicial order companytravenes the fundamental rights of the citizen under Art. 19 1 , he must be held entitled to move this Court under Art. 32 1 and 2 . On the other hand, the learned Attorney-General companytends that the scope of Art. 32 1 is number as wide as Mr. Setalvad suggests. He argues that in determining the scope and width of the fundamentals rights guaranteed by Part 111, with a view to decide the extent of the fundamental right guaranteed by Art. 32 1 , it is necessary to bear, in mind the definition prescribed by Art. 12. Under Art. 12, according to the learned Attorney-General, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the companytrol of the Government of India. He elaborated his point by suggesting that the reference to the Government and Parliament of India and the Government and the Legislature of each of the States specifically emphasises the fact that the Judicature is intended to be excluded from the said definition. He argues that the fundamental rights guaranteed by Articles 17, 23 and 24 on which Mr. Setalvad relies, are, numberdoubt, of paramount importance but before a citizen can be permitted to move this Court under Art. 32 1 for infringement of the said rights, it must be shown that the said rights have been made enforceable by appropriate legislative enactments. In regard to Articles 20, 21 and 22, his argument is that the protection guaranteed by the said Articles is intended to be available against the- Legislature and the Executive, number against companyrts. That is how he seeks to take judicial orders companypletely out of the scope of Art. 32 1 According to him, private rights, though fundamental in character,, cannot be enforced against individual citizens under Art. 32 1 . We have referred to these respective arguments just to indicate the extent of the field which has been companyered by learned companynsel who assisted us in dealing with the present petitions. As this Court has frequently emphasised, in dealing with companystitutional matters, it is necessary that the decision of the Court should be companyfined to the narrow Points which a particular proceeding raises it. Often enough, in dealing with the very narrow point raised by a writ petition, wider arguments are urged before the Court but the Court should always be careful number to companyer ground which is strictly number relevant for the purpose of deciding the petition before it. Obiter observations and discussion of problems number ,directly involved in any proceeding should be avoided by companyrts in dealing with all matters brought before them but this requirement becomes almost companypulsive when the Court is dealing with companystitutional matters. That is Why we do number propose to deal with the larger issues raised by the learned companynsel in the present proceedings, and we wish to companyfine our decision to the narrow points which these petitions raise. Let us, therefore, indicate clearly the scope of the enquiry in the present proceedings. The impugned order has been passed by the learned Judge in the companyrse of the trial of a suit before him after hearing the parties and having regard to the circumstances under which the said order was passed, and the reasons on which it is presumably based, we are inclined to hold that what the order purports to do is to prohibit the publication of Mr. Godas evidence in the Press during the progress of the trial of the suit. We do number read this order as imposing a permanent ban on the publication of the said evidence. On these facts, the question which arises for our decision is whether a judicial order passed by the High Court prohibiting the publication in newspapers of evidence given by a witness pending the hearing of the suit, is amenable to be companyrected by a writ of certiorari issued by this Court under Art. 32 2 . This question has two broad facets does the impugned order violate the fundamental rights of the petitioners under Art. 19 1 a , d and g and if it does, is it amenable to the writ jurisdiction of this Court under Art. 32 2 ? Thus, in the present proceedings, we will limit our discussion and decision to the points which have a material bearing on the broad problem posed by the petitions before us. Let us begin by assuming that the petitioners who are Journalists, have a fundamental right to carry on their occupation under Art. 19 1 g they have also a right to attend proceedings in companyrt under Art. 19 1 d and that the right to freedom of speech and .expression guaranteed by Art. 19 1 a includes their right to publish as Journalists a faithful report of the proceedings which they have witnessed and heard in companyrt. In Sakal Papers P Ltd., and Others v. The Union of India , it has been held by this Court that the freedom of speech and expression guaranteed by Art. 19 1 a .includes the freedom of press. That being so, the question which we have to companysider is does the impugned order companytravene the petitioners fundamental rights to which we have just referred? Before dealing with this question, it is necessary to refer to one incidental aspect of the matter. It is well-settled that in general, all cases brought before the Courts, whether civil, criminal, or others, must be heard in open Court. Public trial in open companyrt is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating companyfidence of the public in the fairness, objectivity, and impartiality of the administration of justice. Public companyfidence in the administration of justice is of such great significance that there can be numbertwo opinions on the broad proposition that in discharging their functions as judicial Tribunals, companyrts must generally hear causes in open and must permit the public admission to the companyrt-room. As Bentham has observed 1 1962 3 S. C. R. 842. .lm15 In the darkness of secrecy sinister interest, and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is numberpublicity there is numberjustice. Publicity is the very soul of justice. It is the keenest spur to exertion, and surest of all guards against improbity. It keeps the Judge himself while trying under trial in the sense that the security of securities is publicity. Scott v. Scot 1 Having thus enunciated the universally accepted proposition in favour of open trials, it is necessary to companysider whether this rule admits of any exceptions or number. Cases may occur where the requirement of the administration of justice itself may make it necessary for the companyrt to hold a trial in camera. While emphasising the importance of public trial, we cannot overlook the fact that the primary function of the Judiciary is to do justice between the parties who bring their causes before it. If a Judge trying a cause is satisfied that the very purpose of finding truth in the case would be retarded, or even defeated if witnesses are required to give evidence subject to public gaze, is it or is it number open to him in exercise of his inherent power to hold the trial in camera either partly or fully ? If the primary function of the companyrt is to do justice in causes brought before it, then on principle, it is difficult to accede to the proposition that there can be numberexception to the rule that all causes must be tried in open companyrt. If the principle that all trials before companyrts must be held in puplic was treated as inflexible and universal and it is held that it admits of numberexceptions whatever, cases may arise where by following the principle, justice itself may be defeated. That is why we feel numberhesitation in holding that the High Court has inherent jurisdiction to hold a trial in camera if the ends of justice clearly and necessarily require the adoption of such a companyrse. Er It is hardly necessary to emphasise that this inherent power must be exercised with great caution and it is only if the companyrt is satisfied beyond a doubt that the ends of justice themselves would be defeated if a case is tried in open companyrt that it can pass an order to hold the trial in camera but to deny the existence of such inherent power to the companyrt would be to ignore the primary object of adjudication itself The principle underlying the insistence on hearing causes in open companyrt is to protect and assist fair, impartial and objective administration of justice but if the requirement of justice itself sometimes dictates the necessity of trying the case in camera, it cannot be said that the said requirement should be sacrificed because of the principle that every trial must be held in open companyrt. In this companynection it is essential to remember that public trial of causes is a means, though important and valuable, to ensure fair administration of justice it is a means, number an end. It is the fair administration of 1 1911 All E.R. 1, 30. justice which is the end of judicial process, and so, if ever a real companyflict arises between fair administration of justice itself on the one hand, and public trial on the other, inevitably, public trial may have to be regulated or companytrolled in the interest of administration of justice. That, in our opinion, is the rational basis on which the companyflict of this kind must be harmoniously resolved. Whether or number in the present case such a companyflict did in fact arise, and whether or number the impugned order is justified on the merits, are matters which are irrelevant to the present enquiry. Whilst we are dealing with this question , it would be useful to refer to the decision of the House of Lords in Scott v. Scott. In that case a Judge of the Divorce Court had made an order that a petition for a decree of nullity of marriage should be heard in camera, but after the companyclusion of the proceedings, one of the parties published to third parties a transcript of the evidence given at the hearing of the suit and the question which arose for decision was whether by such publication, the party companycerned had companymitted companytempt. The House of Lords held that assuming that the order for hearing the case in camera was valid, it was number effective to enjoin perpetual silence on all persons with regard to what took place at the hearing of the suit, and, therefore, the party publishing the evidence was number guilty of companytempt of Court. Dealing with the question about the power of an ordinary companyrt of justice to hear in private, Viscount Haldane, L.C., observed that whatever may have been the power of the ecclesiastical companyrts, the power of an ordinary companyrt of justice to hear in private cannot rest merely on the discretion of the Judge or on his individual view that it is desirable for the sake of public decency or morality that the hearing should take place in private. If there is any except-ion to the broad principle which requires the administration of justice to take place in open companyrt, that exception must be based on the application of some other and over-riding principle which defines the field of exception and does number leave its limits to the individual discretion of the Judge. Looking at the problem from another point of view, Viscount Haldane, L.C. observed that while the broad principle is that the companyrts of this companyntry must, as between parties, administer justice in public, this principle is subject to apparent exceptions. By way of illustration, reference was made to two cases of wards of companyrt and of lunatics where the companyrt is really sitting primarily to guard the interest of the ward or the lunatic. In such matters, the jurisdiction of the companyrt was in a sense, parental and administrative. That is how the broad principle which ordinarily governs open public trial, yields to the paramount duty which is the care of the ward or the lunatic. Similarly, in regard to litigation as 1 1911 All E.R . 1. to a secret process, where the effect of publicity would be to destroy the subject-matter, trial in camera would be justified, because in such a case, justice companyld number be done at all if it had to be done in public. 1 In other words, unless it be strictly necessary for the attainment of justice, there can be numberpower in the companyrt to hear in camera either a matrimonial cause or any other where there is a companytest between parties. He who maintains that by numberother means than by such a hearing can justice be done may apply. for an unusual procedure. But he must make out his case strictly, and bring it up to the standard which the underlying principle requires. He may be able to show that the evidence can be effectively brought before the companyrt in numberother fashion. In either case, he must satisfy the companyrt that by numberhing short of the exclusion of the public can justice be done It would thus be numbericed that according to Viscount Haldane, C., though it is of the essence of fair and impartial administration of justice that all causes must be tried in open companyrt, cases may arise where the companyrt may be satisfied that evidence can be effectively brought before it only if the trial is held in camera and in such cases, in order to discharge its paramount duty to administer justice, the companyrt may feel companypelled to order a trial in camera. The same principle has been enunciated by the other Law Lords, though they have differed in their approach as well as in their emphasis. We do number propose to refer to the statements made in the speeches of the other Law Lords, because it is clear that on the whole, the principles laid down by Viscount Haldane, L.C., appear to have received general approval from the other Law Lords. There are, numberdoubt, certain observations in the speeches of some Law Lords which seem to suggest that there would be numberpower in the companyrt to hear a case in camera, except in the recognised cases of exceptional character to which Viscount Haldane referred. Lord Shaw, for instance, observed that I am of opinion that the order to hear this case in camera was beyond the power of the Judge to pronounce. I am further of opinion that, even on the assumption that such an order had been within his power, it was beyond his power to impose a suppression of all reports of what passed at the trial after the trial had companye to an end. p. 29 . It must be remembered that the order with which the House of Lords was dealing, had imposed a perpetual prohibition against the publication of the proceedings in companyrt and naturally, there was unanimity in the view expressed by the House of Lords that such a drastic order was number justified. That is why the companyclusion of the House of Lords was that by publishing the proceedings at the end of the trial, the party companycerned had number companymitted companytempt of companyrt. It would thus be clear from the decision of the House of 1 1911 All E.R. pp. 8-9. Lords in Scott v. Scott 1 that companyrts of justice have numberpower to hear cases in camera even by companysent of the parties, except in special cases in which a hearing in open companyrt might defeat the ends of justice. Therefore, as a bare proposition of law, it would be difficult to accede to the argument urged by the petitioners before us that the High Court had numberjurisdiction to pass the impugned order. This question has been companysidered by English Courts on several occasions. In Moosbrugger v. Moosbrugger and Moosbrugger v. Moosbrugger and Martin, 2 where in a divorce proceeding it, was urged before the President that if the case was heard in public, it would become almost impossible for the lady to give her evidence and in that case justice would or might be defeated, on being satisfied that the plea thus made on behalf of the witness was well-founded, the President directed that the evidence of the witness shall be that recorded in camera. The Court was thereupon cleared and the witness gave evidence in camera. It is significant that the case had been opened in public and was being tried in public only a part of the trial was, however, held in camera, because the President was satisfied that unless the witness was allowed to depose in camera, she would number be able to disclose the whole truth. Similarly, in Re Green a bankrupt , Ex Parte The Trustee, 3 Jenkins, L.J., was moved to hear a bankruptcy petition in camera. After hearing arguments, he was satisfied that the interests of justice required that the application for hearing the case in camera wag justified. Accordingly the application was heard in camera. We have referred to these decisions by way of illustration to emphasise the point that it would be unreasonable to hold that a companyrt must hear every case in public even though it is satisfied that the ends of justice themselves would be defeated by such public trial. The overriding companysideration which must determine. the companyduct of proceedings before a companyrt is fair administration of justice. Indeed, the principle that all cases must be tried in public is really and ultimately based on the view that it is such public trial of cases that assists the fair and impartial administration of justice. The administration of justice is thus the primary object of the work done in companyrts and so, if there is a companyflict between the claims of administration of justice itself and those of public trial, public trial must yield to administration of justice. In numbere of the cases to which we have referred was it expressly held that the companyrt does number possess inherent jurisdiction to hold a trial in camera if it is satisfied that the ends of justice required the adoption of such a companyrse. 1 1911 All. E. R. pp. 8-9. 2 1912-13 29 T.L.R. 658. 3 1958 2 All E. R. 57 If the High Court thus had inherent power to hold the trial of a case in camera, provided, of companyrse, it was satisfied that the ends of justice required such a companyrse to be adopted, it would number be difficult to accept the argument urged by the learned AttorneyGeneral that the power to hold a trial in camera must include the power to hold a part of the trial in camera, or to prohibit excessive publication of a part of the proceedings at such trial. What would meet the ends of justice will always depend upon the facts of each case and the requirements of justice. In a certain case, the Court may feel that the trial may companytinue to be a public trial, but that the evidence of a particular witness need number receive excessive publicity, because fear of such excessive publicity may prevent the witness from speaking the truth. That being so, we are unable to hold that the High Court did number possess inherent jurisdiction to pass the impugned order. We have already indicated that the impugned order, in our opinion, prevented the publication of Mr. Godas evidence during the companyrse of the trial and number thereafter. Before we part with this topic, we would like to refer to certain statutory provisions which specifically deal with the topic of holding trials in camera. Section 53 of Act 4 of 1869 which was passed to amend the law relating to Divorce and Matrimonial Causes in India provides that the whole or any part of any proceeding under this Act may be heard, if the Court thinks fit, with closed doors. Similarly, section 14 of the Indian Official Secrets Act, 1923 No. 19 of 1923 provides that in addition and without prejudice to any powers which a Court may possess to order the exclusion of the public from any proceedings if, in the companyrse of proceedings before a Court against any person for an offence under this Act or the proceedings on appeal, or in the companyrse of the trial of a person under this Act, application is made by the prosecution, on the ground that the publication of any evidence to be given or of any statement to be made in the companyrse of the proceedings would be prejudicial to the safety of the State, that all or any portion of the public shall be excluded during any part of the hearing, the Court may make an order to that effect, but the passing of sentence shall in any case take place in public. It would be numbericed that while making a specific provision authorising the companyrt to exclude all or any portion of the public from a trial, s.14 in terms recognises the existence of such inherent powers by its opening clause. Section 22 1 of the Hindu Marriage Act, 1955 No. 25 of 1955 likewise lays down that a proceeding under this Act shall be companyducted in camera if either party so desires or if the companyrt so, thinks fit to do, and it shall number be lawful for any person to print or publish any matter in relation to any such proceeding except with the previous permission of the companyrt. The proviso to s. 352 of the Code of Criminal Procedure, 1898, prescribes that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall number have access to, or be or remain in the room or building used by the Court. The last provision to which we may refer in this companynection is s. 151 of the Code of Civil Procedure, 1908. This section provides that numberhing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. These statutory provisions merely illustrate how the power of the Court to hold certain trials in camera, either fully or partially, is inevitably associated with the administration of justice itself. The next question which calls for our decision is does the impugned order companytravene the fundamental rights of the petitioners under Art. 19 1 ? In dealing with this question, it is essential to bear in mind the object with which the impugned order has been passed. As we have already indicated, the impugned order has been passed, because the learned Judge was satisfied that the interests of justice required that Mr. Goda should number be exposed to the risk of excessive publicity of the evidence that he would give in companyrt. This order was passed by the learned Judge after hearing arguments from both the parties to the suit. Thus, there is numberdoubt that the learned Judge was satisfied that in order to be able to do justice between the parties before him, it was ,essential to grant Mr. Godas request for prohibiting the publication of his testimony in the newspapers from day to day. The question is can it be said that an order which has been passed directly and solely for the purpose of assisting the discovery of truth and for doing justice between the parties, infringes the fundamental rights of the petitioners under Art. 19 1 ? The argument that the impugned order affects the fundamental rights of the petitioners under Art. 19 1 , is based on a companyplete misconception about the true nature and character of judicial process and of judicial decisions. When a Judge deals with matters brought before him for his adjudication, he first decides questions ,of fact on which the parties are at issue, and then applies the relevant law to the said facts. Whether the findings of fact recorded by the Judge are right or wrong, and whether the companyclusion of law drawn by him suffers from any infirmity, can be companysidered and decided if the party aggrieved by the decision of the Judge takes the matter up before the appellate Court. But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of companypetent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights of the citizens under Art. 19 1 . What the judicial decision purports to do is to decide the companytroversy between the parties brought before the companyrt and numberhing more. If this basic and essential aspect of the judicial process is borne in mind, it would be plain that the judicial verdict pronounced by companyrt in or in relation to a matter brought before it for its decision cannot be said to affect the fundamental rights of citizens under Art. 19 1 . The impugned order is, in a sense, an order of a companylateral nature it has numberdirect relation with the decision of the dispute which had been brought before the Court in the proceedings between the parties. The learned Judge however, thought that in order that he should be able to do full justice between the parties it was necessary to pass the impugned order. Thus, though the order in a sense is companylateral to the proceedings which were pending before the Court, it was directly companynected with the said proceedings inasmuch as the learned Judge found that he companyld number do justice between the parties and decide the matter satisfactorily unless the publication of Mr. Godas evidence was prohibited pending the trial. The order is number companylateral in the sense that the jurisdiction of the Judge to pass that order can be challenged otherwise than by a proceeding in appeal. Just as an order passed by the companyrt on the merits of the dispute before it can be challenged only in appeal and cannot be said to companytravene the fundamental rights of the litigants before the Court, so companyld the impugned order be challenged in appeal under Art. 136 of the Constitution, but it cannot be said to affect the fundamental rights of the petitioners. The character of the judicial order remains the same whether it is passed in a matter directly in issue between the parties, or is passed incidentally to make the adjudication of the dispute between the parties fair and effective. On this view of the matter, it seems to us that the whole attack against the impugned order based on the assumption that it infringes the petitioners fundamental rights under Art. 19 1 , must fail. Assuming, however, that the impugned order can be said incidentally and indirectly to affect the fundamental rights of the petitioners under Art. 19 1 , can such incidental and indirect effect of the order justify the companyclusion that the order itself infringes Art. 19 1 ? It is well-settled that in examining the validity of legislation, it is legitimate to companysider whether the impugned legislation is a legislation directly in respect of the subject companyered by any particular article of the Constitution, or touches the said article only incidentally or indirectly. In A.K. Gopalan v. The State of Madras 1 , Kania C. J., had occasion to companysider the validity of the argument -that the preventive detention order results in the detention of the applicant in a cell, and so, it companytravenes his fundamental rights guaranteed by Art. 19 1 a , b , c , d , e and g . Rejecting this argument, the learned Chief Justice observed that the true approach in dealing with such a question is only to companysider the directness of the legislation and number what will be the result of the detention otherwise valid, on the mode of the detenus life. On that ground alone, he was inclined to reject the companytention that the order of detention companytravened the fundamental rights guaranteed to the petitioner under Art. 19 1 . He thought that any other companystruction put on the article would be unreasonable. It is true that the opinion thus expressed by Kania, C. J., in the case of A. K Gopalan 1 had number received the companycurrence of the other learned Judges who heard the said case. Subsequently, however, in Ram Singh and Others v. The State of Delhi and Another 2 , the said observations were cited with approval by the Full Court. The same principle has been accepted by this Court in Express Newspapers Private Ltd., and Anr. v. The Union of India and Others 1 , and by the majority judgment in Atiabari Tea Co., Ltd. v. The State of Assam and Others 4 . If the test of direct effect and object which is sometimes described as the pith and substance test, is thus applied in companysidering the validity of legislation, it would number be inappropriate to apply the same test to judicial decisions like the one with which we are companycerned in the present proceedings. As we have already indicated, the impugned order was directly companycerned with giving such protection to the witness as was thought to be necessary in order to obtain true evidence in the case with a view to do justice between the parties. If, incidentally, as a result of this order, the petitioners were number able to report what they heard in companyrt, that cannot be said to make the impugned order invalid under Art. 19 1 a . It is a judicial order passed by the Court in exercise of it-, inherent jurisdiction and its sole purpose is to help the administration of justice. Any incidental companysequence which may flow from the order will number introduce any companystitutional infirmity in it. It is, however, urged by Mr. Setalvad that this Court has held in Budhan Choudhry and Others v. The State of Bihar 5 that judicial orders based on exercise of judicial discretion may companytravene Art. 14 and thereby become invalid. He companytends that just as a judicial order would become invalid by reason of the fact 1 1950 S.C.R. 88, 101. 2 1951 S.C.R.451, 456. 3 1959 S.C.R. 12,129,130. 4 1961 1 S.C.R. 809,864. 5 1955 1 S. -.R. 1045. that it infringes the fundamental right guaranteed by Art. 14, so would the impugned order in the present case be invalid because it companytravenes Art. 19 1 . It is, therefore, necessary to examine whether this companytention is well-founded. In the case of Budhan Choudhry 1 , the matter had companye to this Court by way of appeal under Art. 132 1 of the Constitution. The appellants had been tried by a Magistrate, 1st Class, exercising powers under s. 30 of the Code of Criminal Procedure on charges under ss. 366 and 143 of the Indian Penal Code, and each one of them was companyvicted under both the sections and sentenced to rigorous imprisonment for five years under s. 366, whereas numberseparate sentence was imposed under s. 143. They then challenged the companyrectness and validity of the order of their companyviction and sentence by preferring anappeal before the Patna High Court. The appeal was first heard by a Bench companysisting of S. K. Das and C. P. Sinha, JJ. There was, however, a difference of opinion between the two learned Judges as to the companystitutionality of s. 30, Cr. C. Das, J. took the view that the impugned section did number bring about any discrimination, whereas Sinha, J. was of the opinion that the impugned section was hit by Art, 14. The appeal was then heard by Reuben, C. J., who agreed with Das, J., with the result that the order of companyviction and sentence passed against the appellants was companyfirmed. The appellants then obtained a certificate from the said High Court under Art. 132 1 and with that certificate they came to this Court. Naturally, the principal companytention which was urged on their behalf before this Court was that s. 30, Cr.P.C. infringed the fundamental right guaranteed by Art. 14, and was, therefore, invalid. This companytention was repelled by this Court. Then, alternatively, the appellants argued that though the section itself may number be discriminatory, it may lend itself to abuse bringing about a discrimination between persons accused of offences of the same kind, for the police may send up a person accused of an offence under s. 366 to a section 30 Magistrate and the police may send another person accused of an offence under the same section to a Magistrate who can companymit the accused to the Court of Session. This alternative companytention was examined and it was also rejected. That incidentally raised the question as to whether the judicial decision companyld itself be said to offend Art. 14. S. R. Das, J., as he then was, who spoke for the Court, companysidered this companytention, referred with approval to the observations made by Frankfurter, J., and Stone, C.J., of the Supreme Court of the United States in Snowden v. Hughes 2 , and observed that the judicial decision must of necessity depend on the facts and circumstances.of each particular case and what may superficially appear to be an unequal application of the law may number 1 19551 S.C.R. 1045. 2 1944 321 U.S. 1 88 Led. 497. necessarily amount to a denial of equal protection of law unless there is shown to be present in it an element of intentional and purposeful discrimination. Having made this observation which at best may be said to assume that a judicial decision may companyceivably companytravene Art. 14, the learned Judge took the precaution of adding that the discretion of judicial officers is number arbitrary and the law provides for revision by superior Courts of orders passed by the subordinate Courts. In such circumstances, there is hardly any ground for apprehending any capricious discrimination by judicial tribunals. It is thus clear that though the observations made by Frankfurter, J. and Stone, C. J. in Snowden v. Hughes 1 had been cited with approval, the question as to whether a judicial order can attract the jurisdiction of this Court under Art. 32 1 and 2 was number argued and did number fall to be companysidered at all. That question became only incidentally relevant in deciding whether the validity of the companyviction which was impugned bythe appellants in the case of Budhan Choudhry and Others 2 companyld be successfully assailed on the ground that the judicial decision under s. 30, Cr. P. C. was capriciously rendered against the appellants. The scope of the jurisdiction of this Court in exercising its writ jurisdiction in relation to orders passed by the High Court was number and companyld number have been examined, because the matter had companye to this Court in appeal under Art. 132 1 and whether or number judicial decision can be said to affect any fundamental right merely because it incidentally and indirectly may encroach upon such right, did number therefore call for companysideration or decision in that case. In fact, the closing observations made in the judgment themselves indicate that this Court was of the view that if any judicial order was sought to be attacked on the ground that it was inconsistent with Art. 14, the proper remedy to challenge such an order would be an appeal or revision as may be provided by law. We are, therefore, number prepared to accept Mr. Setalvads assumption that the observations on which he bases himself support the proposition that according to this Court, judicial decisions rendered by companyrts of companypetent jurisdiction in or in relation to matters brought before them can be assailed on the ground that they violate Art. 14. It may incidentally be pointed out that the decision of the Supreme Court of the United States in Snowden v. Hughes 1 was itself number companycerned with the validity of any judicial decision at all. On the other hand, in The Parbhani Transport Co-operative Society Ltd. v. The Regional Transport Authority, Aurangabad and Others, 3 , Sarkar, J. speaking for the Court, has observed that the decision of the Regional Transport Authority which was challenged before the Court may have been right or wrong, but that they 1 321 U.S. 1. 2 1955 1 S.C.R. 1045 3 19603 S.C.R. 177. were unable to see how that decision companyld offend Art. 14 or any other fundamental right of the petitioner. The learned Judge further observed that the Regional Transport Authority was acting as a quasi judicial body and if it has made any mistake in its decision there are appropriate remedies available to the petitioner for obtaining relief. It cannot companyplain of a breach of Art. 14. It is true that in this case also the larger issue as to whether the orders passed by quasi judicial tribunals can be said to affect Art. 14, does number appear to have been fully argued. It is clear that the observations made by this Court in this case unambiguously indicate that it would be inappropriate to suggest that the decision rendered by a judicial tribunal can be described as offending Art. 14 at all. It may be a right or wrong decision, and if it is a wrong decision it can be companyrected by appeal or revision as may be permitted by law, but it cannot be said per se to companytravene Art. 14. It is significant that these observations have been made while dealing with a writ petition filed by the petitioner, the Parbhani Transport Co-operative Society Ltd. under Art. 32 and in so far as the point has been companysidered and decided the decision is against Mr. Setalvads companytention. In support of his argument that a judicial decision can be companyrected by this Court in exercise of its writ jurisdiction under Art. 32 2 , Mr. Setalvad has relied upon another decision of this Court in Prem Chand Garg v. Excise Commissioner, U.P. Allahabad e . In that case, the petitioner Prem Chand Garg had been required to furnish security for the companyts of the respondent under r. 12 of O- XXXV of the Supreme Court Rules. By his petition filed under Art. 32, he companytended that the rule was invalid as it placed obstructions on the fundamental right guaranteed under Art. 32 to move the Supreme Court for the enforcement of fundamental rights. This plea was upheld by the majority decision with the result that the order requiring him to furnish security was vacated. In appreciating the effect of this decision, it is necessary to bear in mind the nature of the companytentions raised before the Court in that case. The Rule itself, in terms, companyferred discretion on the Court, while dealing with applications made under Art. 32, to impose such terms as to companyts and as to the giving of security as it thinks fit. The learned Solicitor-General, who supported the validity of the Rule, urged that though the order requiring security to be deposited may be said to retard or obstruct the fundamental right of the citizen guaranteed by Art. 32 1 , the Rule itself companyld number be effectively challenged as invalid, because it was merely discretionary it did number impose an obligation on the Court to demand any security and he supplemented his argument by companytending that under Art. 142 of the Constitution, the powers of this Court were wide enough to impose any term or companydition subject to which proceedings before 1 1963 Supp. 1 S.C.R. 885. this Court companyld be permitted to be companyducted. He suggested that the powers of this Court under Art. 142 were number subject to any of the provisions companytained in Part III including Art. 32 1 . On the other hand, Mr. Pathak who challenged the validity of the Rule, urged that though the Rule was in form and in substance discretionary, he disputed the validity of the power which the Rule companyferred on this Court to demand security. According to Mr. Pathak, Art 142 had to be read subject to the fundamental right guaranteed under Art. 32 and so, when this Court made Rules by virtue of the powers companyferred on it by Art. 145, it companyld number make any Rule on the basis that it companyld companyfer a power on this Court to demand security from a party moving this Court under Art. 32 1 , because such a term would obstruct his guaranteed fundamental right. It is on these companytentions that one of the points which had to be was whether Art. 142 companyld be said to override the fundamental rights guaranteed by Part 111. The majority view of this Court was that though the powers companyferred on this Court by Art. 142 were very wide, they companyld number be exercised against the fundamental rights guaranteed by the Constitution, number even against definite statutory provisions. Having reached this decision, the majority decision was that though the Rule was discretionary, the power to demand security which it purported to companyfer on the Court in a given case, was itself inconsistent with the fundamental right guaranteed by Art. 32 1 and as such, the Rule was bad. The minority view differed in that matter and held that the Rule was number invalid. It would thus be seen that the main companytroversy in the case of Prem Chand Garg 1 centered round the question as to whether Art. 145 companyferred powers on this Court to make- Rules, though they may be inconsistent with the companystitutional provisions prescribed by Part III . Once it was held that the powers under Art. 142 had to be read subject number only to the fundamental rights, but to other binding statutory provisions, it became clear that the Rule which authorised the making of the impugned order was invalid. It was in that companytext that the validity of the order had to be incidentally ,examined. The petition was made number to challenge the order as such but to challenge the validity of the Rule under which the order was made. Once the Rule was struck down as being invalid, the order passed under the said Rule had to be vacated. It is difficult to see how this decision can be pressed into service by Mr. Setalvad in support of the argument that a judicial order passed by this Court was held to be subject to the writ jurisdiction of this Court itself. What was held by this Court was that Rule made by it under its powers companyferred by Art. 145 which are legislative in ,character, was invalid but that is quite another matter. It is plain that if a party desires to challenge any of the Rules framed by this Court in exercise of its powers under Art. 145 on 1 1963 Supp. I S.C.R. 885. the ground that they are invalid because they illegally companytravene his fundamental rights, it would be open to the party to move this Court under Art. 32. Such a challenge is number against any decision of this Court, but against a Rule made by it in pursuance of its rule-making power. If the Rule is struck down as it was in the case of Prem Chand Garg 1 , this Court can review or recall its order passed under the said Rule. Cases in which initial orders of security passed by the Court are later reviewed and the amount of security initially directed is reduced, frequently arise in this Court but they show the exercise of this Courts powers under Art. 137 and number under Art. 32. Therefore, we are number satisfied that Mr. Setalvad is fortified by any judicial decision of this Court in raising the companytention that a judicial order passed by the High Court in or in relation to proceedings brought before it for its adjudication, can become the subject-matter of writ jurisdiction of this Court under Art. 32 2 . In fact, numberprecedent has been cited before us which would support Mr. Setalvads claim that a judicial order of the kind with which we are companycerned in the present proceedings has ever been attempted to be challenged or has been set aside under Art. 32 of the Constitution. In this companynection, it is necessary to refer to another aspect of the matter, and that has relation to the nature and extent of this Courts jurisdiction to issue writs of certiorari under Art. 32 2 Mr. Setalvad has companyceded that if a companyrt of companypetent jurisdiction makes an order in a proceeding before it, and the order is inter-partes, its validity cannot be challenged by invoking the jurisdiction of this Court under Art. 32, though the said order may affect the aggrieved partys fundamental rights. His whole argument before us has been that the impugned order affects the fundamental rights of a stranger to the proceedings before the Court and that, he companytends, justifies the petitioners in moving this Court under Art. 32. It is necessary to examine the validity of this argument. It is well-settled that the powers of this Court to issue writs of certiorari under Art. 32 2 as well as the powers of the High Courts to issue similar writs under Art. 226 are very wide. In fact, the powers of the High Courts under Art. 226 are, in a sense, wider than those of this Court, because the exercise of the powers of this Court to issue writs of certiorari are limited to the purposes set out in Art. 32 1 . The nature and the extent of the writ jurisdiction companyferred on the High Courts by Art. 226 was companysidered by this Court as early as 1955 in T.C. Basappa v. Aragappa and Anr. 2 . It would be useful to refer to some of the points elucidated in this judgment. The first point which was made clear by Mukherjea, J., who spoke for the Court, was that in view of the express provisions in our Constitution, we need number number look back 1 1963 Supp. I S.C.R. 885. 2 1955 1 S.C.R. 250, at pp. 256-8. to the early history or the procedural technicalities of these writs in English law, number feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law. One of the essential features of the writ, according to Mukherjea, J., is that the companytrol which is exercised through it over judicial or quasi-judicial tribunals or bodies is number in an appellate but supervisory capacity. In granting a writ of certiorari, the superior Court does number exercise the powers of an appellate tribunal. It does number review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it companysiders to be without jurisdiction or palpably erroneous but does number substitute its own views for those of the inferior tribunal. The supervision of the superior Court exercised through writs of certiorari goes to two points, one is the area of inferior jurisdiction and the qualifications and companyditions of its exercise the other is the observance of law in the companyrse of its exercise. Certiorari may fie and is generally granted when a Court has acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceeding or from the absence of some preliminary proceeding or the Court itself may number be legally companystituted or suffer from certain disability by reason of extraneous circumstances. When the jurisdiction of the Court depends upon the existence of some companylateral fact, it is well-settled that the Court cannot by a wrong decision of the fact give it jurisdiction which it would number otherwise possess. It is in the light of these principles which have been companysistently followed by this Court in dealing with the problem relating to the exercise of the writ jurisdiction by the High Courts under Art. 226 or by this Court under Art. 32, that we must number proceed to deal with the point before us. The scope of the jurisdiction of this Court in dealing with writ petitions under Art. 32 was examined by a Special Bench of this Court in Sint. Ujjam Bai v. State of Uttar Pradesh 1 . This decision would show that it was companymon ground before the Court that in three classes of cases aquestion of the enforcement of the fundamental rights may arise and if it does arise, an application under Art. 32 will lie. These cases are 1 where action is taken under a statute which is ultra vires the Constitution 2 where the statute is intra vires but the action taken is without jurisdiction and 3 where the action taken is procedurally ultra vires as where a quasijudicial authority under an obligation to act judicially passes an order in violation of the principles of natural justice. According to the majority decision in the case of Ujjam Bai, 1 it appears that where a quasi-judicial authority makes an order in the undoubted exercise of its jurisdiction in pursuance of a provision of law which is intra vires, an error of law or fact companymitted by that authority cannot be impeached otherwise than on appeal, unless the erroneous determination relates to a matter on which the jurisdiction of that body depends, and the relevant law does number companyfer on that body jurisdiction to determine that matter. This last category of cases often arise in relation to tribunals which have been given jurisdiction to try certain issues under certain companyditions. It is only if the companydition prescribed by the statute is satisfied that the tribunal derives jurisdiction to deal with the matter. Proof of such a companydition is regarded as the proof of a companylateral fact, and an erroneous decision of the tribunal as to the existence of this companylateral fact is number regarded as binding on the parties and can be challenged by a writ proceeding under Art. 226. But in cases where the Tribunal is given jurisdiction to deal with certain matters, then its decision on those matters cannot be regarded as a decision on companylateral facts. This aspect of the matter came to he companysidered by a Special Bench of this Court in Mls. Kamala Mills Ltd. v. The State of Bombay 2 and there it has been held that the appropriate authority set up under the relevant Sales-tax Act had been given jurisdiction to determine the nature of the transaction and to proceed to levy a tax in accordance with its decision on the first issue, and so, the decision of the said authority on the first issue cannot be said to be a decision on a companylateral issue, and even if the said issue is erroneously determined by the said authority, the tax levied by it in accordance with its decision cannot be said to be without jurisdiction. In Aniyoth Kunhamina Umma v. Ministry of Rehabilitation and Others 3 the petitioner had moved this Court under Art. 32 companytending that her fundamental rights under Art. 19 1 f and Art. 31 were infringed by the order of the Assistant Custodian which had declared that the husband of the petitioner was an evacuee and his property was evacuee property. The petitioner had appealed to the Deputy Custodian against the said order, and when she failed before the Deputy Custodian, she had moved the Custodian-General by revision but the said revision application also was dismissed. At this stage, she moved this Court under Art. This Court rejected her petition on the ground that it was incompetent as numberquestion of violation of any fundamental right arose in the case. The decision of the authority of companypetent jurisdiction, it was held, had negatived the existence of the legal right alleged by the petitioner, and unless the decision was held to be a nullity or companyld be otherwise got rid of,. the petitioner companyld number companyplain of any, 1 1963 1 S.C.R. 778. 2 1966 1 S.C.R. 64. 3 1962 1 S.C.R. 505. infringement of a fundamental right. The main questions were .Whether the petitioners husband was an evacuee or number, and whether his property was evacuee property or number. The decision of those -questions had become final, and numberlack of jurisdiction was involved. While referring to the decision of this Court in the case of Smt. Ujjam Bai 1 , We have already indicated that it was number disputed before the Court in that case that where the action taken against a -citizen is procedurally ultra vires, the aggrieved party can move this ,Court under Art. 32. As an illustration, we may refer to the decision of this Court in Sinha Govindji v. The Deputy Chief Controller -of lmports and Exports and Others 2 . In that case, the Court was .satisfied that there was a clear violation of the requirements of clause 10 of the Imports Control Order, 1955, which embodied the principles of natural justice, and that made the impugned orders companystitutionally invalid. That is how the jurisdiction of this Court ,under Art. 32 can be invoked if the impugned order has been passed .by adopting a procedure which is ultra vires. We have referred to these decisions to illustrate how the jurisdiction to issue writs of certiorari has been exercised either by the High Courts under Art. 226 or by this Court under Art. 32. Bearing these principles in mind, let us enquire whether the order impugned in the present proceedings can be said to be amenable to the jurisdiction of this Court under Art. 32. We have already seen that the impugned order was passed by the learned Judge after hearing the parties and it was passed presumably because he was satisfied that the ends of justice required that Mr. Goda should be given protection by prohibiting the publication of his evidence in the newspapers during the companyrse of the trial. This matter was directly related to the trial of the suit and in exercise of his inherent power, the learned Judge made the order in the interests of justice. The order in ,one sense is inter-partes, because it was passed after hearing arguments on both the sides. In another sense, it is number inter-partes inasmuch as it prohibits strangers like the petitioners from publishing Mr. Godas evidence in the newspapers. In fact, an order of this kind would always be passed after hearing parties before the -,Court and would in every case affect the right of strangers like the petitioners who, as Journalists, are interested in publishing companyrt proceedings in newspapers. Can it be said that there is such a difference between numbermal orders passed inter-partes in judicial proceedings, and the present order that it should be open to the strangers -are who affected by the order to move this Court under Art. 327. The order, numberdoubt, binds the strangers but, nevertheless, it is a judicial order and a person aggrieved by it, though a stranger, can move this Court by appeal under Art. 136 of the Constitution. Principles -of Res judicata have been applied by this Court in dealing with 1 1963 1 S.C.R. 778. 2 1962 1 S.C.R. 540. petitions filed before this Court under Art. 32 in Daryao and Others v. The State of U. P. and Others 1 . We apprehend that somewhat similar companysiderations would apply to the present proceedings. If a judicial order like the one with which we are companycerned in the present proceedings made by the High Court binds strangers, the strangers may challenge the order by taking appropriate proceedings in appeal under Art. 136. It would, however, number be open to them to invoke the jurisdiction of this Court under Art. 32 and companytend that a writ of certiorari should be issued in respect of it. The impugned order is passed in exercise of the inherent jurisdiction of the Court and its validity is number open to be challenged by writ proceedings. There is yet another aspect of this matter to which it is necessary to refer. The High Court is a superior Court of Record and under Art. 215, shall have all powers of such a Court of Record including the power to punish companytempt of itself. One distinguishing characteristic of such superior companyrts is that they are entitled to companysider questions of their jurisdiction raised before them. This question fell to be companysidered by this Court in Special Reference No. I of 1964 2 . In that case, it was urged before this Court that in granting bail to Keshav Singh, the High Court had exceeded its jurisdiction and as such, the order was a nullity. Rejecting this argument, this Court observed that in the case of a superior Court of Record, it is for the companyrt to companysider whether any matter falls within its jurisdiction or number. Unlike a companyrt of limited jurisdiction, the superior Court is entitled to determine for itself questions about its own jurisdiction. That is why this Court did number accede to the proposition that in passing the order for interim bail, the High Court can be said to have exceeded its jurisdiction with the result that the order in question was null and void. In support of this view, this Court cited a passage from Halsburys Laws of England where it is observed that primafacie, numbermatter is deemed to be beyond the jurisdiction of a superior companyrt unless it is expressly shown to be so, while numberhing is within the jurisdiction of an inferior companyrt unless it is expressly shown on the face of the proceedings that the particular matter is within the companynizance of the particular Court. 3 If the decision of a superior Court on a question of its jurisdiction is erroneous, it can, of companyrse, be companyrected by appeal or revision as may be permissible under the law but until the adjudication by -a superior Court on such a point is set aside by adopting the appropriate companyrse, it would number be open to be companyrected by the exercise of the writ jurisdiction of this Court. The basis of Mr. Setalvads argument is that the impugned order is number an order inter-partes, as it affects the fundamental rights 1 1962 1 S.C.R. 574. 2 1965 1 S.C.R. 413 AT p. 499. Halsburys Laws of England, Vo 1. 9, p.249. of the strangers to the litigation, and that the said order is without jurisdiction. We have already held that the impugned order cannot be said to affect the fundamental rights of the petitioners and that though it is number interpartes in the sense that it affects strangers to the proceedings, it has been passed by the High Court in relation to a matter pending before it for its adjudication and as such, like other judicial orders passed by the High Court in proceedings pending before it, the companyrectness of the impugned order can be challenged only by appeal and number by writ proceedings. We have also held that the High Court has inherent jurisdiction to pass such an order. But apart from this aspect of the matter, we think it would be inappropriate to allow the petitioners to raise the question about the jurisdiction of the High Court to pass the impugned order in proceedings under Art. 32 which seek for the issue of a writ of certiorari to companyrect the said order. If questions about the jurisdiction of superior companyrts of plenary jurisdiction to pass orders like the impugned order are allowed to be canvassed in writ proceedings under Art. 32, logically, it would be difficult to make a valid distinction between the orders passed by the High Courts inter-partes, and those which are number interpartes in the sense that they bind strangers to the proceedings. Therefore, in our opinion, having regard to the fact that the impugned order has been passed by a superior Court of Record in the exercise of its inherent powers, the question about the existence of the said jurisdiction as well as the validity or propriety of the order cannot be raised in writ proceedings taken out by the petitioners for the issue of a writ of certiorari under Art. 32. Whilst we are dealing with this aspect of the matter, we may incidentally refer to the relevant observations made by Halsbury on this point. In the case of judgments of inferior companyrts of civil jurisdiction, says Halsbury in the footnote, it has been suggested that certiorari might be granted to quash them for want of jurisdiction Kemp v. Balne 1844 , 1 Dow. L. 885, at p. 887, inasmuch as an error did number lie upon that ground. But there appears to be numberreported case in which the judgment of an inferior companyrt of civil jurisdiction has been quashed on certiorari, either for want of jurisdiction or on any other ground. 1 The ultimate proposition is set out in the terms Certiorari does number lie to quash the judgments of inferior companyrts of civil jurisdiction. These observations would indicate that in England the judicial orders passed by civil companyrts of plenary jurisdiction in or in relation to matters brought before them are number held to be amenable to the jurisdiction to issue writs of certiorari. In -Rex. v. Chancellor of St. Edmundsburry and Ipswich Diocese Exparte White 2 the question which arose was whether certio- Halsbury Laws of England Vol. I 1, pp. 129, 130. 2 1945 1 K.B.D. 195 at pp. 205-206. rari would lie from the Court of Kings Bench to an ecclesiastical Court and the answer rendered by the Court was that certiorari would number lie against the decision of an ecclesiastical companyrt. In dealing with this question, Wrottesley, L. J. has elaborately companysidered the history of the writ jurisdiction and has dealt with the question about the meaning of the word inferior as applied to companyrts of law in England in discussing the problem as to the issue of the writ in regard to decisions of certain companyrts. The more this matter was investigated, says Wrottesley, L. J., the clearer it became that the word inferior as applied to companyrts of law in England had been used with at least two very different meanings. If, as some assert, the question of inferiority is determined by ascertaining whether the companyrt in question can be stopped from exceeding its jurisdiction by a writ of prohibition issuing from the Kings Bench, then number only the ecclesiastical Courts, but also Palatine companyrts and Admiralty companyrts are inferior companyrts. But there is another test, well recognised by lawyers, by which to distinguish a superior from an inferior companyrt, namely, whether in its proceedings, and in particular in its judgments, it must appear that the companyrt was acting within its jurisdiction. This is the characteristic of an inferior companyrt, whereas in the proceedings of a superior companyrt it will be presumed that it acted within its jurisdiction unless the companytrary should appear either on the face of the proceedings or aliunde. Mr. Sen relied upon this decision to show that even the High Court of Bombay can be said to be an inferior companyrt for the purpose of exercising jurisdiction by this Court under Art. 32 2 to issue a writ of certiorari in respect of the impugned order passed by it. We are. unable to see how this decision can support Mr. Sens companytentions. We are, therefore, satisfied that so far as the jurisdiction of this Court to issue writs of certiorari is companycerned, it is impossible to accept the argument of the petitioners that judicial orders passed by High Courts in or in relation to proceedings pending before them, are amenable to be companyrected by exercise of the said jurisdiction. We have numberdoubt that it would be unreasonable to attempt to rationalise the assumption of jurisdiction by this Court under Art. 32 to companyrect such judicial orders on the fanciful hypothesis that High Courts may pass extravagant orders in or in relation to matters pending before them and that a remedy by way of a writ of certiorari should, therefore, be sought for and be deemed to be included within the scope of Art. 32. The words used in Art. 32 are numberdoubt wide but having regard to the companysiderations which we have set out in the companyrse of this judgment, we are satisfied that the impugned order cannot be brought within the scope of this Courts jurisdiction to issue a writ of certiorari under Art. 32 to hold otherwise would be repugnant to the well-recognised limitations within which the jurisdiction to issue writs of certiorari can be exercised and inconsistent with the uniform trend of this Courts decisions in relation to the said point. The result is, the petitions fail and are dismissed. There would be numberorder as to companyts. Sarkar, J. Tarkunde J. of the High Court at Bombay, while hearing a suit in the exercise of the ordinary original civil jurisdiction of that Court, passed an order prohibiting publication of a part of the proceedings. The four petitioners, who are reporters and otherwise companynected with newspapers, have moved this Court under Art. 32 of the Constitution, each by a separate petition, for a writ of certiorari to bring up the records of the order and to quash them. They allege that the order violates their fundamental right to freedom of speech and expression companyferred by subcl. a of cl. 1 of Art. 19 of the Constitution, I think these petitions should fail. First, it seems to me that this case is companyered by the judgment of this Court in Ujjam Bai v. State of Uttar Pradesh 1 . That was a case in which a petition had been moved under Art. 32 for quashing an order passed by an assessing officer acting judicially under a taxing statute, valid in all respects, assessing the petitioner to tax on a companystruction of the statute alleged to be erroneous and that petition was dismissed. It was held that the validity of an order made by a judicial tribunal, acting within its jurisdiction, under an Act which was intra vires and good law in all respects was number liable to be questioned by a petition under Art. 32 even though the provisions of the Act had been misconstrued and that such an order companyld number violate any fundamental right and numberquestion of this Court enforcing any violation of fundamental right thereby companyld arise The principle accepted appears to be that a legally valid act cannot offend a fundamental right. I think the same principle applies to this case. The companyditions of the applicability of the principle laid down in that case are that a judicial tribunal should have made an order which it had the jurisdiction to make by applying a law which is valid in all respects. I think both these companyditions are fulfilled in this case and it is irrelevant to enquire whether Tarkunde J. had made the order on an erroneous view of the law he was applying. I proceed number to examine the case from this point of view. First, had Tarkunde J. exceeded his jurisdiction in making the order ? It was said that he had, because the inherent power of the Court did number authorise the prevention of the publication of the proceedings in the circumstances of the case. As I understood 1 19631 S. C. R. 778. learned companynsel, they did number companytend that Tarkunde J. had numberpower to prevent publication at all but only said that he had misused that power, and misapplied the law which gave the power to the facts of the case before him and thereby exceeded his jurisdiction. I think, for reasons to be later stated, he had such a power and that power was based on a valid law. I will assume for the present purpose that the learned Judge had companymitted the error imputed to him. But I am unable to agree that he had thereby exceeded his jurisdiction in the sense in which that word was used by this Court in Ujjam Bais 1 case. Our attention was drawn to certain observations in some of the speeches in the House of Lords, in Scott v. Scott. 2 That was a case in which the trial of matrimonial case was ordered by a learned Judge of the High Court of England, trying the case as a companyrt of first instance, to be held in camera. The House of Lords on appeal held that the order was companypletely invalid and might be disobeyed with impunity. Some of the learned Lords observed that the order was without jurisdiction and it was on this that the petitioners founded themselves. It seems to me that this argument is based on a misconception of what was said by these learned Lords. All that they meant to say was that the law as to camera trial did number justify the order that bad been made. It was number said that it was beyond the jurisdiction of the learned Judge, who made the order, to companysider what that law was and whether it justified the order that he made. The House of Lords was only companycerned with the legality of the order, Indeed, in England the High Court is a companyrt of universal jurisdiction and except where provided by statute, its jurisdiction is, I believe,, unlimited. The House of Lords was number companycerned with any statutory limit of the jurisdiction of the High Court. When this Court observed in Ujjam Bais 1 case that the order had to be within the jurisdiction of the tribunal which made it, it really meant that the tribunal had to have jurisdiction to decide matters that were litigated before it and to apply the law which it, in fact, applied in making the order. It was number saying that the tribunal having this jurisdiction acts without jurisdiction if it makes an error in the application of the law. In companying to its companyclusion in Ujjam Bais 1 case, this Court assumed that the assessing authority misinterpreted the law which it had jurisdiction to apply, but held that numberetheless he had acted within his jurisdiction and was number acting without jurisdiction. This view is based on a well recognised principle. An order passed by a companyrt without jurisdiction in the sense that I have mentioned, is a nullity. It cannot be said of such an order that it is a legal act which cannot result in a wrong. On the other hand, an order passed with jurisdiction but wrongly, is a legal act for it is well known that a companyrt has jurisdic- 1 1963 1 S.C.R. 778. 2 1913 A.C. 417. tion to decide rightly as well as wrongly. This, I believe, is the principle on which the companydition as to jurisdiction was formulated in Ujjam Bais. 1 I find numberdifficulty, therefore, in holding that Tarkunde J. was acting within jurisdiction in making the order which he did, even if he had companymitted an error in applying the law under which he made it. I turn number to the question whether the law which Tarkunde J. had applied was a valid law. It is said that it is number a valid law .as it offends the fundamental right to freedom of speech companyferred by Art. 19 1 a . Now that law is the inherent power of a High Court to prevent publication of the proceedings of a trial. The question is Does this power offend the liberty of speech ? it seems to me beyond dispute that the power to prevent publication of proceedings is a facet of the power to hold a trial in camera and stems from it. Both are intended to keep the proceedings secret. Suppose a companyrt orders a trial in camera and assume it had a valid power to do so. In such a case the proceedings are number available to persons number present at the trial and cannot, for that reason at least, be published by them. Can any such person companyplain that his liberty of speech has been infringed ? I do number think so. He has numberright to hear the proceedings. Indeed, there is numberfundamental right to hear. If he has number, then it should follow that his liberty of speech has number been affected by the order directing a trial in camera. Though it was number disputed, I will companysider for myself whether a law empowering a trial in camera is a valid law. An order directing a trial to be held in camera prohibits entry into the companyrt but I do number think that it can be said that it thereby offends the right to move freely throughout India which is given by sub-cl. d of cl. , I of Art. 19. 1 would put this view on two grounds. I would first say that the law providing for trials being held in camera, even if it trespasses on the liberty of movement, would be protected under cl. 5 of Art. 19 which permits laws to be made imposing reasonable restrictions on that right in the interests of the general public. Now it is well recognised that the power to hold trials in camera is given in the interests of administration of justice. I suppose there can be numberdoubt that administration of justice is a matter of public interest. Then it seems to me indisputable that the restrictions that the exercise of the power to hold trials in camera imposes on the liberty of movement are reasonable. It is circumscribed by strict limits see Scott. V. Scott. 2 It is unnecessary to discuss these limits for it has number been companytended that the restrictions are number reasonable. Secondly, I would say that that law does number violate any fundamental right to free movement. A companyrt house is number such a place 1 1963 1 S.C.R 778. 2 19131 A.C. 417. into which the public have an unrestricted right of entry. The public numberdoubt have a right to be present in companyrt and to watch the proceedings companyducted there. But this is number a fundamental right. It is indeed number a personal right of a citizen which, I companyceive, a fundamental right must be. It is a right given to the public at large in the interests of the administration of justice. It cannot exist when the administration of justice requires a trial to be held in camera for in such a case it is number in the interest of justice that the public should be present. That right to be present in a companyrt must be subject to the companytrol of the Judge administering the business of the companyrt. If it were number so, it would be impossible to carry on work in acourt. I should suppose that one cannot companyplain of the breachof the liberty of movement if he is prevented by law from entering a private property. For analoguous reasons, I think a person cannot companyplain of a breach of that liberty when his entry to a companyrt room is prohibited. In neither case he is entitled to a free right of entry to the place companycerned. Now the exercise of the power to hold trial in camera numberdoubt has the effect incidentally of preventing a citizen from publishing proceedings of the trial, for he is by, it prevented from hearing them what he cannot hear, he cannot, of companyrse, publish. I do number think this restriction on the liberty of speech is a violation of the fundamental right in regard to it. First, the liberty of speech is affected only indirectly and it has been held by this Court in many cases beginning with A. K. Gopalan v. The State 1 that when a law which, though it violates a fundamental right is numberetheless good under any of the cls. 2 to 5 of Art. 19, indirectly affects another fundamental right for which numberprotection can be claimed under these clauses, numbergrievance can be founded on the indirect infringement. Secondly, all that the law does is to legally prevent a person from entering the companyrt and hearing the proceedings. Really, there is numbersuch thing as an absolute right to hear. A person cannot companyplain of an infringement of the liberty of speech when all that is done is to prevent access to something which he intends to publish. As I have earlier said the power to prohibit publication of proceedings is essentially the same as the power to hold trial in camera. If the power to prevent publication of proceedings does number exist, it would be futile to give a power to hold a trial in camera. I should suppose that if the law giving the latter power is a good law, as I think it is, everything involved in that law and stemming from it must equally be good. It would follow that the power to prohibit publication of proceedings cannot also amount to any infringement of the liberty of speech. When it is said that a proceeding shall number be published, what is in fact said is that persons will be permitted to hear what they have numberright to hear, on the companydition that they do number publish what they hear. The order preventing publication is really a form 1 1950 S.C.R. 88. M12Sup.Cl/66-4 of holding trial in camera. If a person taking advantage of such an order publishes it, he is certainly companymitting a wrong. I cannot imagine the Constitution companytemplating a fundamental right based on a wrong. I companyceive the position would be the same if a person stealthily and wrongfully gets possession of a companyy of the proceedings of a trial held in camera and publishes them. He has numberfundamental right to liberty of speech in respect of such publication because that putably good law. Suppose A has a companyyright in a poem and B steals it and makes it over to C. It Would be absurd if C can take shelter under the liberty of speech when he is restrained by an injunction against a threatened publication of the poem by him. I should suppose that liberty of speech is number available to do harm to others. Clearly a right cannot be based on a wrong. Therefore, I think that a law empowering a companyrt to prohibit publication of its proceedings does number affect the fundamental right of speech. It cannot be said to be bad on the ground that it infringes any such right. It also seems to me that the law empowering a companyrt to prohibit publication of its proceedings is protected by cl. 2 of Art. 19. That clause says that a law may validly impose reasonable restrictions on the liberty of speech, if it is in relation to companytempt of companyrt. Now a law in relation to companytempt of companyrt in the present companytext is a law which says that. certain statements uttered or published will be a companytempt of companyrt. Their utterance or publication is prohibited. The principle on which the law is based is that the utterance or publication would interfere with the companyrse of justice and its due administration. As I have already said, the law preventing publication of the companyrts proceedings is based on the same principle. The publication is prohibited only because it interferes with the companyrse of justice. An obstruction to the companyrse of justice will of companyrse be a companytempt of companyrt. That obstruction may take various forms. There is obstruction when companyments on the merits of a case pending in a companyrt are made. Such companyments are prohibited by law and that law relates to companytempt of companyrt. Likewise an obstruction to the companyrse of justice occurs when a companyrt in the interests of justice prohibits publication of the proceedings and that prohibition is disobeyed. Such publication is prohibited by law and the law empowering the prohibition equally relates to companytempt of companyrt. That law is companycerned with the powers of the companyrt alone and does number purport to companyfer rights on persons. Such a law would be a good law under cl. 2 of Art. 19 if the restrictions which it imposes are reasonable. What I have earlier said in companynection with the reasonableness of the restrictions imposed by the law providing for a trial to be held in camera will apply to this case also. The restrictions which this law empowers to be imposed have to be companyfined within the strict limits and are plainly reasonable. I will refer number to another aspect of the matter. As I understood learned companynsel for the petitioners, they companyceded that the order was a good order in so far as it companycerned the parties to the case heard by Tarkunde J. who companyld number, therefore, companyplain of any violation of their liberty of speech by it. But it was companytended that the order was number a valid order in so far as it restrained persons like the petitioners who were number parties to the proceedings. It is true that the petitioners were number parties, but I am unable to see that that makes any difference. The case will still be companyered by the principle laid down in Ujjam Bais 1 case It would still be a judicial order made within the jurisdiction of the Judge making it and based on a good law. It would still be a legal act. It cannot, therefore, violate anyones fundamental right whether he is a party to the proceedings or number. The person affected can always approach the companyrt for relief even if he was number a party to, the proceedings. The jurisdiction of the Court does number depend on who the personaffected by its order, is. Courts often have to pass orders whichaffect strangers to the proceedings before them. To take a companymon case, suppose a companyrt appoints a receiver of a property about which certain persons are litigating but which in fact belongs to another. That person is as much bound by the order appointing the receiver as the parties to it are. His remedy is to move the companyrt by an application pro interesse suo. He cannot by force prevent the receiver from taking possession and justify his action on the ground that the order was without jurisdiction and,. therefore violated his fundamental right to hold property. It would be an intolerable calamity if the law were otherwise. Therefore, it seems to me that on the authority and the principle of Ujjam Bais 1 case it must be held that the order of Tarkunde J. did number violate any fundamental right of the petitioners and the petitions must fail. I would number refer to two judgments of this Court to which our attention was drawn. I find numberhing in them which companyflicts with the principle enunciated in Ujjam Bais 1 case. The first is Budhan Chowdury v. The State of Bihar 2 . In that case there is an observation indicating that a judicial decision will number amount to denial of equal protection of law unless there is shown to be present in it an element of intentional and purposeful discrimination. An argument was based on this observation that this Court companytemplated that a judical order might in certain circumstances violate a fundamental right. But that observation must be related to the facts of the case. The case dealt with the power of a magistrate to 1 1953 1 S.C.R. 778. 2 19551 S.C.R. 1045. decide whether a matter was to be heard by him or by a Court of Sessions. Such an order is hardly a judicial order of the kind that was dealt with in Ujjam Bais case 1 . All that was said in Budhan Chowdurys 2 case was that the power given to the magistrate to decide-by whom the case would be heard, did number offend Art. 14 and one of the reasons given to support that view was that the magistrate had to act judicially. There was numberquestion there of a magistrate acting as a tribunal. Besides this, in Ujjam Bais 1 case it was held that where a judicial officer acts against the principles of natural justice, he acts without jurisdiction. This is the kind of thing that was perhaps in the mind ,of the learned Judges who decided Budhan Chowdhurys 1 case. Indeed in Parbhani Transport Cooperative Society Ltd. v. The Regional Transport Authority, Aurangabad 3 . this Court observed that ,decisions of quasi judicial tribunals, however wrong, companyld number ,offend Art. 14. The other case is that of Prem Chand Garg v. Excise Commissioner Uttar Pradesh 4 . My lord the Chief Justice has dealt ,with this case very fully and I have numberhing to add to what he has -said. For the reasons stated by him, it must be held that there is, numberhing in that case which is in companyflict with Ujjam Bais case 1 . There is one other reason why, in my view, the petitions should fail. The petitions ask for a writ of certiorari. We are, therefore, companycerned only with that writ. The difficulty that at once arises is. Does a certiorari lie to remove, for the purpose of quashing, the order of a High Court, which the order of Tarkunde J. undoubtedly was? I am companyfining myself only to a writ of certiorari for quashing a judicial order made by a High Court. The Constitution does number say what a writ of certiorari is. As certiorari is a technical word of English law and had its origin in that law, for determining its scope and companytents we have necessarily to resort to English law. I am number unmindful that we are number to look back to the procedural technicalities of the writ as obtaining in English law. Nonetheless however we have to keep to the broad and fundamental principles that regulate the exercise of the jurisdiction to issue the writ in that law Now one of the fundamental principles companycerning the issue of the writ is that it issues to an inferior companyrt. The inferior companyrt companyceived in English law in this companytext is a companyrt of limited jurisdiction Rex v. Chancellor of St. Edmundabury 6 . The origin of this test of an inferior companyrt appears to have been this. In English theory, all judicial power is vested in the King. It was earlier ,exercised by the Court of Kings Bench because the King, initially in 1 1963 1 S.C.R. 778. 2 1955 1 S.C.R. 1045. 3 11969 3 S.C.R. 177. 4 1963 Supp. 1 S.C.R. 885. 5 1955 1 S.C.R. 250. 6 1948 1 K.B. 195. person and later in theory, sat there. In companyrse of time as the Court in which the King sat, actually or in theory, was number enough to meet the needs of the people, a number of other companyrts had to be set up. The instruments creating such other companyrts always defined their jurisdiction. The King, however, retained his right to see that these companyrts did number encroach upon the royal prerogative of dispensing justice, that is, entertained cases which were beyond their jurisdiction as limited by the instruments creating them and thereby decided cases which the King had the right to decide. In England the King was the companyrt of universal jurisdiction and he, therefore, issued the writ to the companyrts of limited jurisdiction to keep them within the limits prescribed for them. The Kings prerogative to issue the writ is number vested in the High Court of England by statute. I am referring to this aspect of the matter only for the principle and origin of the rule that a certiorari companyld be issued only to inferior companyrts. In our companyntry there is numbercourt of universal jurisdiction in the sense in which the High Court of England is. The jurisdiction of our Supreme Court is prescribed by the Constitution. The Constitution also provides how the jurisdiction of High Courts is to be prescribed. Jurisdiction of other companyrts is to be found in the statutes setting them up. Thus, in our companyntry all companyrts are in the sense, companyrts of limited jurisdiction. Nonetheless, however, I find great difficulty in thinking of the High Courts as companyrts of inferior jurisdiction. Certain other tests for deciding what a companyrt of inferior jurisdiction is, have been suggested but numbere of them, in my view, can support the companyclusion that a High Court is an inferior companyrt. I proceed to discuss these tests first. It was said that the High Courts were inferior companyrts as appeals lie from them to the Supreme Court. This argument is really based on the theory that an inferior companyrt is one from which an appeal lies to another companyrt. Now, there are many tribunals from which numberappeal lies to a High Court upon which the Constitution has companyferred the power to issue a writ of certiorari. If appealability was the test, then the High Courts would number be able to issue writs of certiorari to such tribunals as they would number then be inferior companyrts. In. that case, a High Courts power to issue the writ would only be companyfined to companyrts from which appeals lie to it. It would be strange if this was what the Constitution companytemplated when it provided that the High Courts would have the power to issue writs of certiorari. I am number prepared to adopt a test which produces such a result. Nor do I think that the Constitution intended it. With the growing number of these tribunals and the increasing scope of their activity companyering a large part of an average citizens life, property and work, it is of the utmost importance that the citizens should have the quick and effective remedy of a writ of certiorari by approaching the High Courts for such writs. I am hot prepared to accept a test which would affect that right in any way. Besides this aspect of the matter, the power to issue a writ of certiorari is most valuable and most needed where an appeal does number lie from a decision of a tribunal and that decision is sought to be called in question. A test which would prevent the writ from lying in a case where it is most needed is number acceptable to me. I may add that in England where a writ of error a form of appeal lay, the certiorari does number appear to have issued. Another test suggested was that the inferior companyrt was one over which the superior companyrt issuing the writ had a supervisory jurisdiction. This test would fail for the same reason as the test of appealability. The Supreme Court has numbersupervisory jurisdiction over any companyrt though it has power to issue the writ, number have the High Courts over many to which it is necessary that they should issue the writ and have in fact been doing so all along with great beneficial results. This test will number, therefore, work in our companyntry. That is number a test in England either. No doubt, in England it is said that the High Court exercises supervision over the inferior companyrts by the issue of the writ but that is so because the power to issue the writ carried with it the power to supervise and number because the writ is issued as there is a power to supervise. The power to issue the writ arises from what was once the royal prerogative and number from what is only a power to supervise. I companyfess the question is of some haziness. That haziness arises because the companyrts in our companyntry which have been given the power to issue the writ are number fully analogous to the English companyrts having that power. We have to seek a way out for ourselves. Having given the matter my best companysideration, I venture to think that it was number companytemplated that a High Court is an inferior companyrt ,,even though it is a companyrt of limited jurisdiction. The Constitution ,gave power to the High Courts to issue the writ. In England an inferior companyrt companyld never issue the writ. I think it would be abhorrent to the principle of certiorari if a companyrt which can itself issue the writ is to be made subject to be companyrected by a writ issued by another companyrt. When a companyrt has the power to issue the writ, it is number, according to the fundamental principles of certiorari, an inferior companyrt or a companyrt of limited jurisdiction. It does number cease to be so because another companyrt to which appeals from it lie, has also the power to issue the writ. That should furnish strong justification for saying that the Constitution did number companytemplate the High ,Courts to be inferior companyrts so that their decisions would be liable to be quashed by writs issued by the Supreme Court which also had been given the power to issue the writs. Nor do I think that the cause of justice will in any manner be affected if a High Court is number made amenable to companyrection by this Court by the issue of the writ. In my opinion, therefore, this Court has numberpower to issue a certiorari to a High Court. I would, for these reasons, dismiss the petitions. Hidayatullah, J. Questions of far-reaching importance to our system of administration of justice are involved in these petitions arid as I have reached the companyclusion that these petitions should be allowed, I companysider it necessary to state my reasons fully. The facts are these In a sensational libel suit, on the original side of the High Court of Bombay, between one Mr. Krishnaraja M.D. Thakersey and Mr. R.K. Karanjia, Editor of the Blitz an English weekly newspaper of Bombay , one Bhaichand Goda was cited as a witness for the defence. In a different proceeding Goda had earlier made an affidavit of facts which were companysidered relevant to the libel suit, but as witness he did number adhere to them. Mr. Karanjia was, therefore, permitted to cross-examine him with reference to his earlier statement. When the trial of the suit proceeded some other material came on record which indicated that Goda had, in some other proceedings, repeated what he had stated in his affidavit. At the request of Mr. Karanjia, Goda was recalled for further cross-examination in relation to the new matter. On his second appearance Goda made a request to the presiding Judge Mr. Justice Tarkunde to withhold his evidence from newspaper reporters on the ground that publication of reports of his earlier deposition had caused loss to him in his business. After hearing arguments Mr. Justice Tarkunde orally ordered that Godas deposition should number be reported in newspapers. The Blitz was giving verbatim reports of the trial and the other newspapers were also publishing brief accounts. The oral order of the learned Judge was number recorded. The minutes of the Court also do number mention it. In fact we have number seen that order. No one can say what the nature of the prohibition was, namely, whether it was a temporary or a perpetual suppression of publication. As the intention was to save Godas business from harm, it is reasonable to think that the prohibition was perpetual and that is how the matter appears to have been understood by all companycerned because numberreport of his deposition has since appeared in any newspaper. These four petitions under Art. 32 of the Constitution were filed to question the order such as it was on the ground that the fundamental rights under Art. 19 1 a of the Constitution of the four petitioners who are all journalists have been violated by the said order. They raise important questions and I shall mention them at once. They are i can a companyrt, which is holding a public trial from which the public is number excluded suppress the publication of the deposition of a witness heard number in camera but in open companyrt on the request of the witness that his business will suffer ii does such an order breach fundamental right of freedom of speech and expression entitling persons affected to invoke Art. 32 and iii if so, can this Court issue a writ to a High Court? answer these questions in the affirmative and in favour of the petitioners. Before I discuss the order in this case I shall state the nature of hearings in the trial of cases in our companyrts. As we have fortunately inherited the English tradition of holding trials with a few exceptions to which I shall refer later in public, I shall begin with the English practice. It has always been the glory of the English system as opposed to the Continental, that all trials are held ostiis apertis, that is, with open doors. This principle is old and according to Hallam it is a direct guarantee of civil liberty and it moved Bentham to say that it was the soul of Justice and that in proportion as publicity had place, the checks on judicial injustice companyld be found. Except for trials before the Council all trials in England, including those before the numberorious Star Chamber, were public and with observance of the law terms. It is because English trial has number known the Letters de cachet of Louis XIV and all its state trials were public, that the Selden Society has been able to companylect the cases of the Star Chamber and we have the verbatim reports of almost all state trials. As Emlyn in his preface to the State Trials says proudly In other companyntries the companyrts of Justice are held in secret with us publicly and in open view there the witnesses are examined in private, and in the prisoners absence with us face to face, and in the prisoners presence. He was numberdoubt speaking of criminal trials but the principle with a few exceptions is applicable to civil cases also. This attachment to an open trial is number a rule of practice with the English, but is an article of their Great Charter and Judges view with great companycern any departure from it. Whenever, a Judge departed from it he defined the field of exception and stated the overriding principle on which his decision was based. No Judge passes an order which is number recorded in the minutes and a question of this kind is number dealt with by the Judge as within his mere discretion as to what he companysiders expedient or companyvenient. As illustration of the seriousness of the question I shall permit myself an instance which companycerns one of the greatest legal luminaries of English law. In Malan v. Young 1 in the Sherborne School libel case Lord Denman then Denman J. with the companysent of the parties made an order for hearing in camera and a part of the case was so heard. Then a lawyer protested and Mr. Justice Denman, on a reconsideration of the matter, invited the parties the decide whether they would take the risk of a case in camera or would begin de numbero in open companyrt. The parties agreed to have the case 1 1889 6 T.L.R. 38. heard before him as an arbitrator. A decision of a case in camera, even if parties agree, is voidable as was decided by the Judicial Committee in Mc. Pherson v. Mc Pherson 1 and Lord Denman was apprehensive of such a result. This attitude to the trial in open was summed up by Viscount Haldane L.C. in Scott v. SCott 2 by saying that a Judge companyld only depart from the principle that the trial must be in public except for some narrow exceptions by demitting his capacity as a Judge and sitting as an arbitrator. The exceptions to the general rule which Viscount Haldane mentioned are cases of lunatics and wards of companyrts, of trade secrets, and nullity cases in which the Ecclesiastical Courts granted trials in camera. But even these are viewed very narrowly and the principle on which each exception is made to rest, differs. The cases of lunatics and wards are so viewed becausethe companyrt exercises over them a quasipaternal Jurisdiction on behalf of the Queen as the parent patriae. These cases are companysidered private or domestic with which the public have numberconcern. The cases of trade secret are so viewed because secret processes which are property must be protected and unless secrecy from public view is maintained justice itself must fail in its purpose. The last are kept away from publicity because they involve sordid details of domestic life and therefore embarrass deponents. Even the last rule does number apply to all matrimonial cases as is evident from Scott. v. Scott referred, to earlier. In Scott v. Scott 2 there are certain observations which proceed upon a dictum of Sir Francis Jenne in D. v D. 3 that the companyrt possesses an inherent jurisdiction to hear any case in private when the administration of justice requires or with the companysent of parties. This is the principle which has been stressed in the judgment of my lord the Chief Justice and I shall say a few words about it. Viscount Haldane did number dissent from that dictum, provided that the principle is applied with great care and is number stretched to cases where there is number a strict necessity for invoking it. These observations were really made in relation to the three exceptions he was companysidering and he did number intend by them to give a wide. discretion to the judge. He himself stated But unless it be strictly necessary for the attainment of justice, there can be numberpower in companyrt to hear in camera either a matrimonial cause or any other where there is companytest between parties. He who maintains that by numberother means than by such a hearing can justice be done may apply for an unusual procedure. But he must make out his case strictly, and bring it up to the standard which the underlying L. R. 1936 A.C. 177. L. R. 1913 A.C. 417 at 436. 3 1903 P. 144. principle requires. He may be able to show that the evidence can be effectively brought before the companyrt in numberother fashion. emphasis added With profound respect for the eminent Judge I think the principle, so stated, is too wide and Rex. v Clement 1 which he uses to illustrate his point has numberrelevance. I respectfully agree with the Earl of Halsbury, who in the same case, companymented upon the width of the Lord Chancellors language and with Lord Atkinson who pointed out that in Clements case there were many persons being tried for high treason and as the challenges to the jury were different, a large number of trials with companymon witnesses had to be held and publication was withheld so that others might number be prejudiced. The Earl of Halsbury observed as follows I wish to guard myself against the proposition that a judge may bring a case within the category of enforced secrecy because he thinks that justice cannot be done unless it is heard in secret I am number venturing to criticise your Lordships language, which, as your Lordship understands it, and as I venture to say I myself understand it, is probably enough to secure the observance of the rule of public hearing, but what I venture to point out is that it is number so definite in its application but that an individual judge might think that, in his view, the paramount object companyld number be attained without a secret hearing. Although I am very far from saying that such a case may number arise, I hesitate to accede to the width of the language, which, as I say, might be applied to what, in my view, would be an unlawful extension. pp. 442/443 . emphasis added The Earl of Halsbury also expressed amazement that a single Judge Sir Francis Jeune should overrule three such learned Judges as Sir Cresswell, Williams J. and Bramwell B. who in H falsely called C v C. 2 had expressed different opinion in relation to hearing in camera on there quest of parties Lord Shaw of Dunfermline also called the dictum of Sir Francis Jeune in D. v. D. to be historically and legally indefensible Earl Loreburn, however, agreed with the principle as enunciated and was in favour of its being exercised liberally. The head-note in the law report sets out the views of Viscount Haldane and Earl Loreburn separately from the main decision. 1 4B Ald. 218. 2 1 SW Tr. 605. In Scott v. Scott 1 the question had arisen in companynection with a nullity suit and the main decision was that the Probate, Divorce and Admiralty Division had numberpower, either with or without the companysent of the parties, to hear a nullity suit or other matrimonial suit in camera in the interest of public decency. The order of hearing in camera which led to a suppression of publication of the proceedings in perpetuity was held to be bad. So strong is this principle of open trial that even where this rule is departed from on the ground that interest of justice would suffer the Judges always remember to remind themselves that the order cannot be made as a matter of companyrse. Thus it was that in Moosbrugger v. Moosbrugger and Moosbrugger v. Moosbrugger and Martin 2 which were two cross suits between spouses for divorce , Evans P., while ,acceding to the request of the wife for privacy because of the horrible details of her case, repeated again and again that the trial was public and should number be thought number to be so. He was apprehensive that the ladys case would suffer if the sordid details were asked to be divulged in public and, therefore, heard only that part in private to give her companyfidence. In India the position is number different. Public hearing of cases before companyrts is as fundamental to our democracy and system of justice as to any other companyntry. That our legal system so understands it is quite easily demonstrable. We have several statutes in which there are express provisions for trials in camera. Section 53 of Act 4 of 1869 dealing with matrimonial causes, s. 22 of the Hindu Marriage Act, 1955, s.352 to the Code of Criminal Procedure, 1898 and s. 14 of the Indian Official Secrets Act, 1923, allow the companyrt a power to exclude the public. Where the Legislature felt the special need it provided for it. Section 14 of the Official Secrets Act, however, needs some companyment because an argument is knit from it. That section recites without prejudice to any powers which a companyrt may possess to order the exclusion of the public and it is suggested that this recognizes the existence of inherent powers spoken of by Sir Francis Jeune. From this recital alone it is number right to assume that companyrts possess a general or inherent power of dispensing with open and public trials. This recital is necessary to be stated lest it may be thought that unless the prosecution applies to have the public excluded for reasons arising under the Official Secrets Act, other power derivable from any other source such as s. 352 of the Code of Criminal Procedure cannot be exercised. For this reason the other powers are expressly mentioned and preserved. The above statutes do number only companyfer power to hold trials in camera, but in a way they show that trials under laws which do number companytain such enabling provisions must be open and public unless a strong case exists for holding them in camera. Inherent powers can only be exercised on well- 1 1913 A.C. 417. 2 1913 29 T.L.R. 658. recognized principles and they cannot be assumed to exist where they do number and I see numbere on the facts of this case. The libel suit against the Editor of Blitz opened in public and proceeded in public. Godas deposition on the first occasion was taken in open companyrt and it was reported in newspapers. On his second appearance the trial as well as his examination was in open companyrt but the reporting of his evidence was banned. Now the rule about reporting of cases in companyrt is this what takes place in companyrt is public and the publication of the proceedings merely enlarges the area of the companyrt and gives to the trial that added publicity which is favoured by the rule that the trial should be open and public. It is only when the public is excluded from audience that the privilege of publication also goes because the public outside then have numberright to obtain at secondhand what they cannot obtain in the companyrt itself. If the matter is already published in open companyrt, it cannot be prevented from being published outside the companyrt room provided the report is a verbatim or a fair account. Accurate publication of reports is insisted upon so that the proceedings are number misrepresented. The above rules were stated by Lord Halsbury L.C. in Macdougall v. Knight 1 thus My Lords, the ground on which the privilege of accurately reporting what takes place in a companyrt of justice is based is that judicial proceedings are in this companyntry public, and that the publication of what takes place there, even though matters defamatory to an individual may thus obtain wider circulation than they otherwise would, is allowed because such publication is merely enlarging the area of the companyrt, and companymunicating to all that which all had the right to know. I emphasis added . In our case the learned Judge by an order which we have number seen and which parties companyld number produce because it was numberhere recorded ordered that the deposition of Goda should number be published. Whether this order is to apply in perpetuity or for the duration of the trial, only the learned Judge can say. If it is to apply in perpetuity then it is bad because if there was unanimity on any one point in Scott v. Scott it was on this point. Even otherwise the order is indefensible. Having held the trial in open companyrt, the learned Judge companyld number curtail the publication of the report of the trial and the reason which he accepted as sufficient, is one which the companyrts have number recognised and should number recognise. I know of numbercase to support the astounding proposi- 1 188914 A.C. 194. tion that a witness can seek protection because his truthful statement would harm his own business number has the industry of companynsel discovered any such case. I do number think such a principle exists at all. If it did a witness might with as good or as bad reason claim that he would depose only under a veil of secrecy because his domestic relations or his friendships or the relations with his employer would otherwise suffer. I imagine that a cunning rogue might ask for such secrecy to harm and wound another with impunity or to save his face when companytradicted by his many prevarications. It is number sufficient to say that the witness is bound to speak the truth if so protected for he might well use the occasion to tell lies. It is clear to me from this case that the warning given by the Earl of Halsbury against the width of the language of Viscount Haldane was necessary. Section 151 of the Code of Civil Procedure, on which great reliance is placed, in spite of its very generous and wide language, cannot be used to companyfer a discretion on the companyrt to turn its proceedings which should be open and public into a private affair. I am of opinion that the order of Mr. Justice Tarkunde imposing suppression of the reporting of the deposition of Goda was illegal and without jurisdiction. It was number in his power to make such an order on the ground he was moved and further because the order either purports to impose a perpetual ban or leaves the matter in doubt, thus placing those companycerned with the publication of the report under a virtual sword of Damocles, the order cannot be sustained. The next question which arises is whether such an order breaches the fundamental right to freedom of speech and expression. This question is tied to another and it is whether a petition under Art. 32 can at all lie against a Judge in respect of any action performed by him while in the seat of justice. To determine these questions it is necessary to start with the second limb because unless it is answered in the affirmative the first limb may number fall for companysideration. In making the enquiry on the second limb, I do number companyfine my attention to the companysideration of Art. 19 1 a alone, for that does number enable me to see the fundamental rights in their true perspective vis-a-vis the action of Judges. While I do number detract from the proposition that judicial effort should be restrained and should never attempt an exposition of the law at large and outside the range of the facts on which a case in hand is founded, I venture to think that remedy apart the chapter on fundamental rights, when examined carefully in its several parts, gives many indications that Judges were number intended to be outside its purview, Certain articles address themselves to companyrts in companymon with other authority and some more to companyrts than to other authorities. Unless we read these other articles with Art. 19 1 a and companysider them together, we are likely to have but a partial view of the problem. 7 90 To begin with we have the definition of State in Art. 12. That definition does number say fully what may be included in the word State but, although it says that the word includes certain authorities, it does number companysider it necessary to say that companyrts and Judges are excluded. The reason is made obvious at once. if we companysider Art. 13 2 . There the word State must obviously include companyrts because otherwise companyrts will be enabled to make rules which take away or abridge fundamental rights. Such a case in fact arose in this Court when Rule 12 of Order XXXV of the Supreme Court Rules was struck down. See Premchand Garg Excise Commissioner, U.P., Allahabad 1 . That rule required the furnishing of security in petition under Art. 32 and it was held to abridge the fundamental rights. But it is said that the rule was struck down and number the judicial decision which was only revised. That may be so. But a judicial decision based on such a rule is number any better and offends the fundamental rights just the same and number less so because it happens to be a judicial order. If here be numberappropriate remedy to get such an order removed because this Court has numbersuperior, it does number mean that the order is made good. When judged of under the Constitution it is still a void order although it may bind parties unless set aside. Procedural safeguards are as important as other safeguards. Again Art. 20, which speaks of companyvictions for offences, punishments and testimonial companypulsion is addressed as much to companyrts as to executive and other authorities, and I venture to think that the worst offenders would be the companyrts if they went against this prescription. Article 22 1 is addressed to companyrts where it says that numberperson, who is arrested, shall be denied the right to be In this Part,unless the companytext otherwise requires,the stateincludes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the companytrol of the Government of India. 13 2 The State shall number make any law which takes away or abridges the rights companyferred by this part and any law made in companytravention of this clause shall, to the extent of the companytravention, be void. 1 1963 Supp. 1 S.C.R. 885. 20 1 No person shall be companyvicted of any offence except for violation of a law in force at the time of the companymission of the act charged as an offence, number be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the companymission of the offence. No person shall be prosecuted and punished for the same offence more than once. No person accused of any offence shall be companypelled to be a witness against himself 22 1 No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest number shall he be denied the right to companysult, and to be defended by a legal practitioner of his choice. defended by a legal practitioner of his choice. If the High Court had, for example, insisted on the defendant in a criminal case to take a companynsel of its choice, the trial would have been vitiated. Why? Because of the breach of the fundamental right in Art. 22 1 . The remedy would number have been to wait till the end of the trial and then to bring the matter up by appeal on a certificate or to ask for special leave against the order but to ask for a writ companypelling the observance of the Constitution. These provisions show that it cannot be claimed as a general proposition that numberaction of a Judge can ever be questioned on the ground of breach of fundamental rights. The Judge numberdoubt functions, most of the time, to decide companytroversies between the parties in which companytroversies the Judge does number figure but occasion may arise companylaterally where the matter may be between the Judge and the fundamental rights of any person by reason of the Judges action. It is true that Judges, as the upholders of the Constitution and the laws, are least likely to err but the possibility of their acting companytrary to the Constitution cannot be companypletely excluded. In the companytext of Arts. 14, 15 1 b and 19 a and d it is easy to visualize breaches by almost any one including a Judge. A companyrt room is a place dedicated to the use of the general public. This means that a person who goes there has number to seek anybodys permission to enter it provided he either has business there or as a spectator behaves himself. The work of the companyrt is done in public and numberone is excluded who wishes to enter the companyrt room to watch it. In a suitable case the public may, of companyrse, be excluded by the Judge. But he cannot exclude a section of the public on the ground of race, religion or companymunity without offending fundamental rights. The right to carry on the profession of law may be enforced against a Judge within the precincts of his companyrt as much as the carrying on of other professions may be enforced outside. It is, however, said that a Judge possesses a dual character, that in his administrative capacity he may be within the reach of the chapter on fundamental rights but number in his judicial capacity. I venture to think that sitting in the seat of justice hardly makes a difference. It may be that his judicial orders numbermally are subject to appeals, revisions and reviews but where numbere of these can be invoked and fundamental rights are involved recourse to the guaranteed remedy may become necessary. Because Judges decide matters objectively and because almost all their orders are capable of companyrection by way of appeals, revisions or reviews, does number lead to the companyclusion that every order made by a Judge may only be treated as a wrong order and number as one guilty of breach of fundamental rights. If a Judge, without any reason, orders the members of, say, one political party out of his companyrt, those so ordered may seek to enforce their fundamental rights against him and it should make numberdifference that the order is made while he sits as a Judge. Even if appeal lies against 79 2 Such an order, the defect on which relief can be claimed, is the breach of fundamental rights. I am, therefore, of opinion that Judges cannot be said to be entirely out of the reach of fundamental rights. The fundamental right here claimed is the freedom of speech and expression. In Sakal Papers P Ltd. v. The Union of India 1 this Court holds that the freedom of speech and expression guaranteed by Art. 19 1 a includes freedom of press. A suppression of the publication of the report of a case companyducted in open companyrt, for a reason which has numbermerit, ex facie offends that freedom. Just as the denial without any reason to a person of the right to enter ,a companyrt is to deprive him of several fundamental freedoms, denial of the right to publish reports of a public trial is also to deny the freedom of the press which is included in the freedom of speech and expression. Suppose for a moment that a Judge singles out some newspapers for discriminatory treatment. The order would indubitably offend theequality clause. Assuming that numberremedy exists against such an order, the person affected, if he disobeys it, can at least claim immunity in a proceeding for companytempt by pleading breach of his fundamental rights by the Judge. In my judgment Mr. Justice Tarkunde, having held a public trial, companyld number curtail the liberty of the press by suppressing the publication of the reports. This was number a matter of deciding anything in a lis but of regulating his companyrt and procedure. As the Judge passed numberrecorded order, the appropriate remedy in fact the only effective remedy is to seek to quash the order by a writ under Art. 32 of the Constitution I have disposed of the second question but some of the reasons which strengthen that view were number mentioned because they can be more appropriately mentioned in companynection with the third question which is Can this Court issue a writ under Art. 32 of the Constitution to a High Court? This is a difficult and an important question which I would have gladly reserved for a more suitable case. Had I been of the view that the order of Mr. Justice Tarkunde was proper, I would number have attempted it because it would have been a futile exercise but I am companypelled to answer this question firstly because the matter is companysidered in the judgments of ,my lord the Chief Justice and of my other brethren and, secondly, because on my answers to the first two questions it perhaps arises ,more in my judgment than in others. The submission of the Attorney-General is that in numbercase can writs of mandmus, certiorari or prohibition go to a Division Court ,or to a single Judge of the High Court whether sitting in banc or in chambers. He is number so sure about the writ of quo warranto ,and wishes it to be companysidered as a separate question. It is, how-ever, clear that the last writ must either issue here or in the High 1 1962 3 S.C.R. 842. Court if a Judge becomes incompetent, say, by reason of superannuation and does number demit his office and, I think ,the Attorney-General is right in number mixing up this writ with a companysideration of the others. In respect of the other writs, the argument of the Attorney-General is that the High Court in England issues these writs to inferior companyrts but number to companyrts of companyrdinate jurisdiction or superior companyrts and the High Court as a Court of Record and a superior companyrt, itself being able to issue these writs in our companyntry, must be treated as a companyrt of companyrdinate jurisdiction in this matter and number regarded as an inferior companyrt. He also companytends that the decisions of the High Courts are capable of being companyrected by appeals only and writs cannot lie. I do number accept these arguments. Nothing turns on the fact that the High Court is a companyrt of record because the writ of certiorari issues to several companyrts of recordsee Halsburys Laws of England 3rd Edn. Vol. II, page 124. Para 230 . Similarly Ecclesiastical companyrts are superior companyrts in the sense that it need number appear in any proceeding or judgments of these companyrts that the companyrt was acting within its jurisdiction but they are regarded as inferior companyrts in the sense that they can be stopped from exceeding their jurisdiction by an order of prohibition see Halsbury ibid., Vol. 9, P. 348 Para 817 . Nothing much can turn upon phrases such as companyrt of record, superior and inferior companyrts borrowed from English law. We have to guide ourselves by our Constitution which lays down the powers of this Court in Art. 32 thus Remedies for enforcement of rights. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights companyferred by this Part is guaranteed. The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas companypus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights companyferred by this Part. Without prejudice to the powers companyferred on the Supreme Court by clauses 1 and 2 , Parliament may by law empower any other companyrt to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause 2 . The right guaranteed by this article shall number be suspended except as otherwise provided for by this Constitution. M12 Sup. C. 1./66-5 The powers of the High Court are stated in Art. 226 which may also be get out here for companyparison Power of High Courts to issue certain writs. Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government within those territories directions, orders, or writs, including writs in the nature of habeas companypus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights companyferred by Part III and for any other purpose. 1A The power companyferred by clause 1 to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, numberwithstanding that the seat of such Government or authority or the residence of such person is number within those territories. The power companyferred on a High Court by clause 1 or clause IA shall number be in derogation of the power companyferred on the Supreme Court by clause 2 of Article 32. Article 32 makes numberexception in favour of the High Court. It refers to the writs of certiorari and prohibition which lie only in respect of judicial acts and although they lie also to bodies and persons who are number companyrts stricto sensu, they always lie to companyrts. As these writs are mentioned in Art. 32 and there is numberexception in respect of the High Courts we start with a presumption that the High Court may number be excluded. The writ of mandamus may also be issued to companyrts and that does number detract from the presumption. The writ of quo warranto, as stated earlier, may companycededly be held to apply to a High Court Judge. It will be numbericed that both the articles in speaking of the power say that it is to issue writs in the nature of the writs of habeas companypus, mandamus, certiorari, prohibition and quo warranto. The phrase in the nature of is number the same as the other phrase of the nature of. The former emphasises the essential nature and the latter is companytent with mere similarity. As a result we have to companysider this companytroversy from two angles i how far does the essential nature of the writs taken with the special history of companyrts in England throw any light upon the subject and ii what assistance do we derive from the language and scheme of Arts. 32 and 226? 1 shall deal with these matters in the same order. We are companycerned with high prerogative writs. They do number issue like the ordinary writs which are of strict right, but only at the discretion of a companyrt entitled to issue them. The writ of prohibition issues from the Queens Bench properly but it was also issued from the Chancery, Common Pleas and Exchequer Courts returnable to the Queens Bench or Common Pleas number merged in the Queens Bench Division . It is, however, number granted to a companyrt which exercises the powers of the High Court. The writ is issued to Judges and parties in an inferior companyrt to cease from prosecuting a case in which their jurisdiction, either originally or companylaterally, is wanting. Prohibition lies to a Judge as of right when the want of jurisdiction is patent. Since the Judicature Acts an appeal number lies against the writ, to the Court of Appeal and thence to the House of Lords, but before that the writ companyld only be questioned under a Writ of Consultation. The Judge to whom the writ went companysulted with the Queens Justices and if the writ of prohibition was number proper, a companysultation was granted. Certiorari issues to Judges and officers of inferrior companyrts and jurisdictions, from the Queens Bench number the Queens Bench Division to certify or send proceedings so that the legality of the, proceedings may be examined. But if the other companyrt exercises the powers of the High Court the writ is refused see Skinner v. Northallerton County Court Judge- 1889 A.C. 439 . Certiorari also lies to remove a cause or matter into the High Court if fair and impartial trial in the inferior companyrt is number possible or questions of law of unusual difficulty are likely to arise. The writ also issues from the House of Lords to remove an indictment for felony found by a grand jury against a Peer. The Earl of Russell was tried for bigamy by the King in Parliament before 160 peers and all the Judges of the High Court after removal thereof the case by certiorari see The Trial of Earl Russell 1 . The Crown gets the writ of certiorari as of absolute right but the subject at the discretion of the companyrt. No certiorari goes from one branch of the High Court to another number to another superior companyrt. This writ cannot be avoided by the Judge by number writing an order in the case before him. Even if the Judge has number recorded the order the High Court will order the inferior companyrt to record its decision and then to transmit the record to it. Halsbury, 3rd Edn, Vol XI, page 135, para 251 . Certiorari lies only in respect of judicial, as distinguished from administrative, acts. Mandamus lies for the enforcement of legal rights when there is numberother specific remedy or the other available remedy is number so effective. It often issues to a companyrt to hear and determine a matter pending before it. Such a writ issued also from the Chancery when judgments were delayed, but returnable to the Queens Bench. 1 1901 A.C.446. As Halsbury tersely puts it 3rd ed. Vol. XI, p. 53, para 109 the three writs of mandamus, prohibition and certiorari are used as a means of companytrolling inferior companyrts and those who have legal authority to determine questions affecting the rights of subjects and having to act judicially. By these three writs inferior companyrts were companypelled to do ample and speedy justice and were kept within their jurisdiction. The root principle, says Halsbury ibid., Vol. IX, p. 351, para 823 is that the Judges stand in the place of the Queen and the Queen is supposed to be present in her royal companyrts. Of the Courts of Common Law at Westminster which have dispensed justice for upward of seven centuries in the Queens name, only one exercised general jurisdiction in civil causes. This companyrt was established by Henry 11 in 1178 A.D. and was known as the Common Bench. Cases of special difficulty were heard by the Sovereign with the advice of her wise men. This companyrt was spoken of by the Sovereign as our Justices at Westminster. In accordance with Article XVII of the Great Charter, Westminster was chosen as a certain place and till the idea of taking justice to the people arose and assizes came into existence, the companyrt never stirred from that place The companyrt was known as the Upper Bench or the Queens Bench where the Sovereign was present curia ad placita companyem Rege tenenda . The Upper Bench or the Banc Royal dealt with matters of special interest to the sovereign, viz. the prerogative writs of certiorari, prohibition etc. The Court of Exchequer which was the third companyrt dealt with cases in the companyrse of companylection of revenue. Some writs which issued from these companyrts were original or judicial. They were regarded as mere machinery writs and were writs of right and issued on payment of the necessary fee to companymence litigation or something incidental to it. Prerogative writs were different and they issued with the special leave of the Court. By these prerogative writs the Queens Bench superintended the other companyrts and tribunals. The distinction between superior and inferrior companyrts is this. No matter is deemed to be beyond the jurisdiction of a superior companyrt unless expressly shown on the face of the proceedings to be beyond it, or established aliunde. In the case of an inferior companyrt it has to appear in the proceedings or in its judgment that the matter is within its jurisdiction. Another test is whether proceedings in the companyrt can be stopped by a writ of prohibition issuing from the Queens Bench and in this sense the Ecclesiastical Courts and even the Judicial Committee hearing appeals in ecclesiastical matters and the Admiralty Courts are inferior see Rex. v. Chancellor of St. Edmunsbury and Ipswich Diocese 1 . 1 1948 1 K.B. 195 at 205. I make numberexcuse for this excursion into the history of English, law and institutions because we have chosen to put down in Arts. 32 and 226 of the Constitution that the Supreme Court and the High Courts will exercise the power to issue writs in the nature of mandamus, certiorari, prohibition and quo warranto the Supreme Court for the enforcement of fundamental rights only and the High Courts for that purpose and for other purposes. The question is who takes the place of the Queens Bench Division in England and whether the Supreme Court in India has numberpower to issue a writ to enforce fundamental rights when breached by the High Courts? There is numberreal resemblance between the scheme of companyrts under our Constitution and the companyrts in England. Obviously, numberprerogative writ of the Queen can go to a companyrt in which the Queen herself is supposed to be present. This limitation has numbersignificance with us. The analogy of superior and inferior companyrts breaks down in England itself when we companysider the Ecclesiastical Courts and the Privy Council hearing appeals in ecclesiastical matters. They are superior companyrts but prohibition. issues to them. That our High Courts are companyrts of record is number, a fact of much significance either because prerogative writs do issue to several companyrts of record in England. As there is numberreal companyrespondence between the companyrts in the two companyntries we can only decide the question by companysidering if there is any good reason for excluding the High Court Judges from the area of the powers of this Court or companyversely for holding that they are so included. In the draft Constitution the jurisdiction and power to issue prerogative writs to governments etc. was entrusted to this Court only by implication. The inclusion of this power in Art. 226 came by way of amendment. It was perhaps companysidered that enabling the making of a law under Art. 32 3 might number be an adequate provision to provide for investing the High Courts with similar powers because such a law might never be passed. It was companysidered difficult for this Court single-handed to enforce the fundamental rights throughout the territories of India and accordingly Art. 226 was amended to companyfer jurisdiction on the High Courts within the territories in relation to which they exercise jurisdiction to issue such writs. The fundamental rights are, however, more strongly entrenched in the Constitution through Art. 32 than through Art. 226. Even with the amendment of Art. 226 the power which is companyferred on the High Courts is number in every sense a companyrdinate power and the Constitution furnishes several reasons in support of this statement. The first indication is that the right to move the Supreme Court for the enforcement of these rights is guaranteed but there is numbersuch guarantee in Art. 226. Again cl. 3 of Art. 32 enables Parliament to empower by law any other companyrt to exercise within local limits of its jurisdiction all or any of the powers exercisable by this Court under Art. 32 but without prejudice to the powers of the Supreme Court under Cls. 1 and 2 of Art. 32. There is numbersuch saving in favour of the powers of the High Courts. The mention of the first two clauses of Art. 32, particularly cl. 1 , indicates the importance of the guarantee. Although the amendment of Art. 32 has been held to be a less difficult process than the amendment of Art. 226, the guarantee in Art. 32 1 seems to be real till it is repealed or annulled. The provisions of Art. 226 themselves indicate this. Art. 226 begins by saying Notwithstanding anything in article 32 which shows that the whole of the power must otherwise be with this Court. It indicates an intention to carve out an area for local action by the High Court. This might have made the exercise of the power by the High Court equal to its exercise by this Court but for the existence of cl. 2 which says that the power companyferred on the High Court is number in derogation of the powers companyferred on the Supreme Court. The word derogation must receive its full meaning. It shows that the entirety of the powers possessed by this Court is still intact in spite of the High Courts ability to ,exercise similar powers in local areas within their jurisdiction. If the powers were companyrdinate why include cf. 2 in Art. 226 ? In these circumstances can we say that the High Court possesses companyrdinate powers ? I say number A person need number go to the High Court at all before moving this Court. There is really numberprovision that when a person has moved the High Court and failed he cannot again move this Court although on the ground of companyity this Court expects in such circumstances an appeal against the decision of the High Court and number a direct approach. This Court is number only a companyrt of appeal in civil, revenue and criminal proceedings from judgments of the High Court but by Art. 136 it is empowered to bring before it any judgment, decree, determination, sentence or order in any cause or matter passed or made by any companyrt or tribunal in the territory of India. The implication of this is quite clear to me when I read Art. 136 in Conjunction with Arts. 32 and 226. That implication is that there is numbersharing of the powers to issue the prerogative writs possessed by this Court. The whole of the power is still with this Court under a guarantee and only analogous powers for local enforcement are given to the High Courts. Under the total scheme of the Constitution the subordination of High Courts to the Supreme Court is number only evident but is logical. Art. 32 is companycerned with fundamental rights and fundamental rights only. It is number companycerned with breaches of law which do number involve fundamental rights directly. The ordinary writs of ceriortari, mandamus and prohibition can only issue for enforcement of fundamental rights. A clear-cut case of breach of fundamental rights alone can be the basis for the exercise of the power. I have already given examples of actions of companyrts and Judges which are number instances of wrong judicial orders capable of being brought before this Court only by appeal but of breaches of fundamental rights pure and simple. Denial of equality, as for example, by excluding members of a particular party or of a particular companymunity from the public companyrtroom in a public hearing without any fault when others are allowed to stay on, would be a case of breach of fundamental rights of equal protection given by the Constitution. Must an affected person in such case, ask the Judge to write down his order so that he may appeal against it? Or is he expected to ask for special leave from this Court? If a High Court Judge in England acted improperly there may be numberremedy because of the limitation on the rights of the subject against the Crown. But in such circumstances in England the hearing is companysidered vitiated and the decision voidable. This need number arise here. The High Court in our companyntry in similar circumstances is number immune because there is a remedy to move this Court for a writ against discriminatory treatment and this Court should number in a suitable case shirk to issue a writ to a High Court Judge who ignores the fundamental rights and his obligations under the Constitution. Other cases can easily be imagined under Arts. 14, 15, 19, 20, 21 and 22 of the Constitution in which there may be action by a Judge which may offend the fundamental rights and in which an appeal to this Court will number only be number practicable but also quite an ineffective remedy. We need number be dismayed that the view I take means a slur on the High Courts or that this Court will be flooded with petitions under Art. 32 of the Constitution. Although the High Courts possess a power to interfere by way of high prerogative writs of certiorari, mandamus and prohibition, such powers have number been invoked against the numbermal and routine work of subordinate companyrts and tribunals. The reason is that people understand the difference between an approach to the High Court by way of appeals etc. and an approach for the purpose of asking for writs under Art. 226. Nor have the High Court spread a Procrustean bed of high prerogative writs for all actions to lie. Decisions of the companyrts have been subjected to statutory appeals and revisions but the losing side has number charged the Judge with a breach of fundamental rights because he ordered attachment of property belonging to a stranger to the litigation or by his order affected rights of the parties or even strangers. This is because the people understand the difference between numbermal proceedings of a civil nature and proceedings in which there is a breach of fundamental rights. The companyrts acts, between parties and even between parties and strangers, done impersonally and objectively are challengeable under the ordinary law only. But acts which involve the companyrt with a fundamental right are quite different. The power and jurisdiction of this Court is so narrow that numberhing on the merits of a companytroversy of a civil case can ever companye up before it under Art. 32. It is unlikely that this Court will torture cases to fit them into Art. 32. A person may try but he will find this a Sisyphean task. It cannot be brought here by pleading breach of fundamental rights. It is only when a Judge directly acts in some companylateral matter so as to cause a breach of a fundamental right that the ordinary process of appeals being unavailable or insufficient a case under Art. 32 can be made out. If there is a decision in a civil proceeding, an appeal is the only appropriate remedy. When the, High Court Judge acts companylaterally to cause a breach of fundamental right I am clear that an approach to this Court is open under Art. 32. The Supreme Court of America has number hesitated to interfere with breaches of Civil Rights Acts on the part of the companyrts in the States by treating the action of State companyrts and of judicial officers in their official capacities as State action. see Shelly v. Kraemer, 1 Virginia v. Rives 2 and Hurd v. Hodge 3 . I think we should number hesitate to extend our protection to the fundamental rights in our companyntry even if they be breached by the High Courts. I may dispose of a few results which it was suggested, might flow from my view that this Court can issue a high prerogative writ to the High Court for enforcement of fundamental rights. It was suggested that the High Courts might issue writs to this Court and to other High Courts and one Judge or Bench in the High Court and the Supreme Court might issue a writ to another Judge or Bench in the same Court. This is an erroneous assumption. To begin with the High Courts cannot issue a writ to the Supreme Court because the writ goes down and number up. Similarly, a High Court cannot issue a writ to another High Court. The writ does number go to a companyrt placed on an equal footing in the matter of jurisdiction. Where the companynty companyrt exercised the powers of the High Court, the writ was held to be wrongly issued to it see In re The New Par Consols, Limited. 4 The following observations of the Earl of Halsbury L.C. in Skinner v. the Northallerton County Court Judge 5 represent my view The absurdity of that is that the statute itself has made the companynty companyrt the High Court for this purpose. You might just as well argue that a warrant defective in form, issued by the Court of Queens Bench companyld be set right by certiorari. Of companyrse this is absurd. This is the High Court for this purpose If there was any irregularity or inaccuracy in point of form in the warrant that did issue, that companyld be put right by 1 92 L. ed. 1161334 U. S. 1. 2 25 L. ed. 667 at 669. 3 92 L. ed. 1187. 4 1898 I.Q.B. 669. 5 1899 A.C. 439. proper proceedings, but the proper proceedings would be in that companyrt itself, and number proceedings by certiorari in the Court of Queens Bench. I must hold that this English practice of number issuing writs in the same companyrt is in the very nature of things. One High Court will thus number be able to issue a writ to another High Court number even to a companyrt exercising the powers of the High Court. In so far as this Court is companycerned, the argument that one Bench or one Judge might issue a writ to another Bench or Judge, need hardly be companysidered. My opinion gives numbersupport to such a view and I hope I have said numberhing to give companyntenance to it. These are imaginary fears which have numberreality either in law or in fact. I am of opinion that if this Court is satisfied that a fundamental right has been trampled upon it is number only its duty to act to companyrect it but also its obligation to do so. In the present case, I am satisfied that the order passed by Mr. Justice Tarkunde was an erroneous and illegal order. I cannot assume that it suppresses publication temporarily because Godas business was sought to be protected and Godas business, it is to be presumed, was expected to outlast the trial. A permanent suppression on publication would certainly be without jurisdiction. Even assuming the order meant a temporary suppression of the publication of Godas testimony I am quite clear that the learned Judge had numberjurisdiction to pass such an order when the trial he was holding was a public trial for the reason accepted by him. That being so his order involved a breach of the freedom of speech and expression guaranteed as a fundamental right and took away from the press its liberty to report a case companyducted in open companyrt. I would, accordingly, quash the order of Mr. Justice Tarkunde and declare that Godas testimony is capable of being reported in extenso in any newspaper in India. Shah, J. Article 19 1 of the Constitution declares certain personal freedoms in cls. a to g as guaranteed rights of citizens, and cls. 2 to 6 define restrictions which may be lawfully imposed by any existing or future law on those rights. Guarantee of personal freedoms subject to restrictions which are or may be imposed is in terms absolute, but since the rights are enforceable only against State action and number against private action, infringement of the personal freedoms by number-State agencies cannot be made a ground for relief under Art. 32. It is said however that the Courts are State agencies and infringement of fundamental rights guaranteed by Art. 19 by an order of a Court may found a petition under Art. 32 of the Constitution. It is necessary therefore to appreciate the manner in which a judicial determination which is alleged to infringe a fundamental right of a citizen operates. In dealing with this question, I propose to restrict the discussion only to. determinations by Courts strictly so-called-Courts which are invested with plenary power to determine civil disputes, or to try offences. Quasi-judicial, or administrative tribunals, or tribunal with limited authority are number within the scope of the discussion. By Art. 32 2 this Court is invested with jurisdiction to issue writs, directions or orders for the enforcement of fundamental rights. Implicit in the claim for invoking this jurisdiction are two companyponents that the claimant has the fundamental freedom which is guaranteed by Part III of the Constitution, and that the freedom is directly infringed by the agency against whose action the protection is given. When it is claimed that an order made pursuant to a judicial determination of a disputed question of law or fact infringes a fundamental right under Art. 19, the claimant has to establish that he has the right claimed, and that by the order made the Court has directly infringed that right. But the function of the Court is to determine facts on which claim to relief is founded, to apply the law to the facts so found, and to make an appropriate order companycerning the rights, liabilities and obligations of the parties in the light of the appropriate law. In granting relief to a party claiming to be aggrieved or in punishing an offender, the Court in substance declares that the party who claims that he is aggrieved has or has number a certain right and that the right was or was number infringed by the action of the other party, or that the offender by his action did or did number violate a law which prohibited the action charged against him. Such a determination by a Court therefore will number operate to infringe a fundamental right under Art. 19. The Court may in the ascertainment of facts or application of the law err in the very mechanism of judicial determination that possibility cannot be ruled out, but until the determination is set aside by resort to the appropriate machinery set up in that behalf for rectification, a party to a proceeding cannot ignore that determination and seek relief on the footing that he has the right which has been negatived by the Court. Since the first postulate, of a plea of infringement of a fundamental right under, Art. 19 is the existence of the right claimed and breach thereof by a State agency, a plea cannot be set up in a petition under Art. 32 companytrary to an adjudication by a Court companypetent in that behalf. Counsel for the petitioners companyceded that against a judicial determination of the rights, liabilities or obligations in a proceeding and enforcement thereof according to law, a party thereto may number maintain a petition under Art. 32 on the plea that by an erroneous judicial determination a fundamental right of the petitioner under Art. 19 is infringed, but they submitted that where the ,order of a Court dealing with a dispute inter partes infringes the fundamental right under Art. 19 of a stranger to the proceeding, the order may in appropriate cases be challenged in a petition under Art. 32. In my view there is numberwarrant for the reservation stated in that form. A Court in adjudicating upon a dispute has power for arriving at an effective and just decision to take all incidental steps for ensuring regularity and decorum in the companyduct of its proceedings, and such steps may incidentally affect persons who are strangers to the litigation. The Court may issue a warrant to companypel attendance of witnesses, attach property in the hands of strangers to the proceeding, companyrect mistakes in its proceedings even after rights of third parties have companye into existence, set aside Court proceedings in companytravention of its directions or procured by fraud, recall invalid orders which cause injustice, take companytempt proceedings against witnesses and others who act in violation of the orders of the Court or otherwise obstruct proceedings of the Court directly. or indirectly, and generally pass orders which may be necessary in the ends of justice to prevent abuse of the process of law. Jurisdiction to exercise those powers which may affect rights of persons other than those who are parties to the litigation is either expressly granted by statute or arises from the necessity to regulate the companyrse of its proceeding so as to make them an effective instrument for the administration of justice. If, as is accepted, and rightly, a judicial determination of the rights, privileges, duties and obligations of the parties before the Court does number attract the jurisdiction of this Court under Art. 32 of the Constitution for enforcement of the fundamental rights under Art. 19, it is difficult to appreciate on what grounds that jurisdiction may be attracted where a person other than the party to the proceeding is aggrieved by an order of the Court made for ensuring an effective adjudication of the dispute,. Even when the rights under Art. 19 of a third party are affected by an order made by a Court in a judicial proceeding, there is in a sense a disputed question which is raised before it about the right of that third person number to be dealt with in the manner in which the Court has acted or proposes to act, and the Court proceeds upon determination of that disputed question. Such a determination of the disputed question would be as much exempt from the jurisdiction of this Court to grant relief against infringement of a fundamental right under Art. 19, as a determination of the disputed question between the parties on merits or on procedure. An order made against a stranger in aid of administration of justice between companytending parties or for enforcement of its adjudication does number directly infringe any fundamental right under Art. 19 of the person affected thereby, for it is founded either expressly or by necessary implication upon the number-existence of the right claimed and so long as the order stands, it cannot be made the subjectmatter of a petition under Art. 32 of the Constitution. It was then urged by companynsel for the petitioners that Tarkunde, J., had numberjurisdiction to make the order prohibiting publication of the evidence of the witness Bhaichand Goda, and on that account the order was liable to be challenged in a petition under Art. 32 of the Constitution. Indisputably when a Judge makes an order, number as a Judge but in some other capacitybut as an authority of the State-it may be open to challenge by a petition under Art. 32. But an order made by a Court in the companyrse of a proceeding which it has jurisdiction to entertain-whether the order relates to the substance of the dispute between the parties or to the procedure or to the rights of other person, it is number without jurisdiction, merely because it is erroneous. The Code of Civil Procedure companytains numberexpress provisions authorising a Court to hold its proceedings in camera but the Court has inherent jurisdiction to pass an order excluding the public when the nature of the case necessitates such a companyrse to be adopted. Hearing of proceedings in open Court undoubtedly tends to ensure untainted. administration of justice and departure from that companyrse may be permitted in exceptional circumstances, when the Court is either by statutory injunction companypelled, or is in the exercise of its discretion satisfied, that unless the public are excluded from the companyrtroom, interests of justice may suffer irreparably. An order, for hearing of a trial in camera is only intended to prevent excessive publication of the proceedings of the Court, if such excessive publication may, it is apprehended, cause grave harm either to the public interest or to the interests of the parties or witnesses, which cannot be offset by the interest which it is the object of a trial in open Court to serve. Hearing in open Court of causes is of the utmost importance for maintaining companyfidence of the public in the impartial administration of justice it operates as a wholesome check upon judicial behaviour as well as upon the companyduct of the. companytending parties and their witnesses. But hearing of a cause in public which is only to secure administration of justice untainted must yield to the paramount object of administration of justice. If excessive publicity itself operates as an. instrument of injustice, the Court may number be slow, if it is satisfied that it is necessary so to do to put such restraint upon publicity as is necessary to secure the Courts primary object. Trial in closed session is generally ,ordered to prevent publicity which is likely to deter parties or their witnesses from giving evidence, on account of the nature of the evidence such as intimate details of sexual behaviour, matters relating to minors and lunatics, matters publication of which may harm the interests of the State or the public at large, for instance, disclosure of official secrets, or matters which lead to publication of secret processes, publication of which would destroy the very basis of the claim for relief etc. In these cases the Court may hold a trial in closed session and wholly exclude the public throughout the trial or a part thereof. Circumstances may also justify imposition of a partial ban on publicity in the interests of justice and the Court may instead of holding a trial in camera and thereby excluding all members of the public who are number directly companycerned with the trial, restrain publication of the evidence. Such an order may, having regard to the nature of the dispute and evidence given, be within the jurisdiction of the Court. Whether in a particular case, an order holding a trial after excluding the public or preventing publication of evidence should be made will depend upon the discretion of the Court, which must of necessity be exercised sparingly and with great circumspection,and only in cases where the Court is satisfied that prevention of excessive publication is the only companyrse by resort to which justice may effectively be administered in the case. Exercise of that discretion is always subject to rectification by a superior Court. I may hasten to add that I express numberopinion on the question whether Tarkunde J., was right in making the order that he did. I am only endeavouring to emphasize that he had, in appropriate cases where he was satisfied that justice of the case demanded such a companyrse, jurisdiction to make an order preventing publication in newspapers of the evidence. Whether Tarkunde, J., erred in making the impugned order is a question apart, and does number fall to be determined in these writ petitions. I am unable however to agree that in the matter of exercise of powers of this Court to issue writs against orders of Courts which are alleged to infringe a fundamental right under Art. 19, any distinction between the High Court and subordinate Courts may be made. In my view orders made by subordinate companyrts, such as the District Court or Courts of Subordinate Judges which are Courts of trial and Courts of plenary jurisdiction are as much exempt from challenge in enforcement of an alleged fundamental right under Art. 19 by a petition under Art. 32 of the Constitution as the orders of the High Courts are. The argument that a writ of certiorari is an appropriate writ for companyrecting errors companymitted by an inferior authority or tribunal exercising judicial power, and that the High Court is number an inferior Court cannot in my judgment prevail. No adequate test of inferior status which would support a valid distinction between the High Court and other Courts or Tribunals would stand scrutiny. If the investment of appellate power in this Court is a valid test, all Courts and Tribunals except the Courts and Tribunals companystituted by and under the law relating to the Armed Forces or the Forces charged with the maintenance of public order within the territory of India are inferior to this Court, and if the grounds which I have set out in some detail earlier for holding that a petition does number lie to this Court under Art. 32 against an alleged infringement of rights by an adjudication of a Court or by an order of a Court against a stranger to the proceeding, such order being made in aid of determination of the dispute between the parties before the Court, be number true, the order of the High Court would be as much subject to jurisdiction of this Court under Art, 32 as an adjudication of any other subordinate Court such as the District Court or the Subordinate Judge Courts. If the test of inferiority is to be found in the investment of supervisory jurisdiction, this Court is number invested with that jurisdiction over any Court, be it the High Court, or the District Court or the Subordinate Judges Court. It is unnecessary to enter upon a discussion about the procedural law in the United Kingdom relating to the issue of writs of certiorari in companysidering whether jurisdiction under Art. 32 of the Constitution may be exercised. This Court is companypetent to issue an appropriate writ including a writ in the nature of a writ of certiorari. If it be granted that the fundamental right under Art. 19 may be infringed by an adjudication of a Court-civil or criminal-because the Court had companye to an erroneous companyclusion, I see numberground for making a distinction between adjudications of the High Court which is a superior Court of Record and of Courts which are subject to the appellate jurisdiction of the High Court. It is true that the High Courts are invested with the power under Art. 226 of the Constitution to issue writs in enforcement of fundamental rights. The power to issue a writ in respect of the territory over which the High Court has jurisdiction in enforcement of fundamental rights is companyextensive with the power which this Court possesses. But if this Court possesses authority to issue a writ in respect of an adjudication by a Court, the circumstance, that the High Court has also power to issue a writ of certiorari which may be issued by this Court in enforcement of a fundamental right whereas the subordinate Courts have number, will number warrant the distinction sought to be made on behalf of the respondents. I am therefore unable to agree that in the matter of issue of a writ of certiorari against the order of any Court, a distinction may be made between the order of the District Court or the Subordinate Court and an order of the High Court. The argument that the inherent power of this Court which may have existed prior to the Constitution must still be tested in the light of Art. 19 2 of the Constitution does number require any serious companysideration. If a plea of infringement of a fundamental right under Art. 19 against infringement by a judicial determination may number be set up, in petition under Art. 32, it would number be necessary to companysider whether on the footing that such a right is infringed by a judicial determination of the rights of the parties or an order made in aid of determination that the law which companyfers such inherent power of the Courts is within Art. 19 2 . The function of Art. 19 2 is to save laws-existing laws or laws to be made by the State in future-which otherwise infringe the rights under Art. 19. Where the action is such that by its very nature it cannot infringe the rights in Art. 19 1 of the Constitution, an investigation whether the law which authorises the action falls within cl. 2 of Art. 19 may number be called for. It was urged that the-view which I have expressed may involve serious repercussions on the enforcement of fundamental rights guaranteed by Arts. 20, 21 and 22 1 of the Constitution. Whether orders made by the Courts may violate the guarantees under Arts 20, 21 22 1 and on that account be subject to the jurisdiction under Art. 32 does number fall to be determined in this case. The Attorney- General appearing on behalf of the State of Maharashtra companytended that the freedoms guaranteed by Arts. 20, 21 22 are only in respect of laws made which seek prejudicially to affect persons in the manner indicated in those Articles. It was urged by companynsel on behalf of the petitioner that these Articles grant protection number only against legislative and executive action but also against orders made by Courts. I refrain from expressing any opinion on this question. The area of fundamental freedoms guaranteed or declared by the various Articles of the Constitution must be determined in the light of the nature of the right companyferred thereby, and the extent of protection granted, the agency against the action of which they are protected and the relief which may be claimed against infringement of those rights. Considerations which may be material or relevant in companysidering the nature of the right companyferred or guaranteed by one Article cannot be projected into companysiderations which may be material or relevant in dealing with the infringement of a fundamental right guaranteed by another Article. Article 19 and Arts. 20, 21 22 are differently worded. Article 19 in terms protects certain personal freedoms of citizens only against invasion by the State otherwise than by law existing or to be made in future and falling strictly within the limits prescribed by cls. 2 to 6 Arts. 20, 21 22 1 impose directly restrictions upon the power of authorities. Declaration of rights in favour of citizens as well as numbercitizens under Arts. 20, 21 22 1 arises by implication of the prohibition against action of the authorities companycerned to deal with them, and it would number be permissible to equate the guaranteed rights declared by implication in all respects with the specific personal freedoms enumerated in Art. 19. It is somewhat striking that the Personal freedoms in Art. 19 are subject to reasonable restrictions which may be imposed by law, but the prohibitions in Arts. 20, 21 22 are absolute in terms. By enunciating the personal freedoms, under Art. 19 1 and setting up machinery for imposition of reasonable restrictions thereon, balance is sought to be maintained between the enforcement of specific rights of the citizens and the larger interest of the public. The freedoms declared by the implication of Arts. 20, 21 22 are on the other hand number liable to be tested on the touchstone of reasonableness. Our Constitution-makers thought that certain minimum safeguards in proceedingscriminal and quasi-criminal-Cannot in the larger interests of the public be permitted to be whittled down under any circumstances and on that account made the protection of Arts. 20, 21 22 1 absolute. The form in which the rights under Arts. 20, 21 22 1 are guaranteed and the absolute character of the injunctions against the authorities clearly emphasize the distinct and special character of those rights. I do number find it necessary in this case to record my opinion on the question whether action taken by a Court which is prohibited under Arts. 20, 21 22 may form the subject-matter of a petition under Art. 32 of the Constitution. The petitions therefore fail and are dismissed. Bachawat, J. Counsel for the petitioners submitted that the High Court had numberpower to affect the right of the petitioners to publish reports of the deposition of Bhaichand Goda by an order passed in a proceeding to which they were number parties, and if there is a law which companyfers this power, such a law is repugnant to Art. 19 1 a of the Constitution. I do number accept either of these companytentions. In agreement with the learned Chief Justice, I hold that the High Court in the exercise of its inherent powers can, in exceptional cases, pass an order restraining the publication of any matter in relation to any proceeding pending before it. The inherent powers of the Court are preserved by s. 151 of the Code of Civil. Procedure. If a stranger to the proceeding feels aggrieved by the order, he may take appropriate steps for setting it aside, but while it lasts, it must be obeyed. Take a case where a Court appoints a receiver over a property in a suit companycerning it. If a stranger interested in the property is prejudiced by the order, his proper companyrse is to apply to the Court to enforce his right, and the Court will then examine his claim and give him the relief to which he may be entitled. Similarly, if a stranger is prejudiced by an order forbidding the publication of the report of any proceeding, his proper companyrse is to apply to the Court to lift the ban. But while the order remains in force, he must obey it. Wilful disobedience of the order is punishable as a companytempt of Court, and it is number a defence that he was number a party to the proceeding in which the order was passed. The law empowering the high companyrt to restrain the publication The law empowering the High Court to restrain the public of the report of its proceedings does number infringe Art. 19 1 a . If a law is attacked on the ground that it is repugnant to Art. 19 1 a , its true nature, object and effect should be closely examined. If the law directly abridges the freedom of speech, it is repugnant to Art. 19 1 a and must be struck down. On the other band, if it affects the freedom of speech only incidentally and indirectly, it does number infringe Art. 19 1 a . This test was first laid down by Kania, C. J. in A. K. Gopalan v. State of Madras 1 and has been subsequently adopted in numerous decisions of this Court. See Ram Singh v. State of Delhi 2 Express Newspapers Private Ltd. v. The Union of India 3 , Hamdard Dawakhana Wakf v. Union of India 4 . Many laws incidentally encroach on the freedom of speech, but, judged by the test of the directness of the legislation, they do number infringe Art. 19 1 a . Section 54 of the Indian Specific Relief Act, 1877, empowers the Court to grant a perpetual injunction to prevent the breach of an obligation, and illustrations h , i , v , y and z to the section show that the Court may restrain the publication of documents and information in breach of the fiduciary obligations of a legal or medical adviser, or an employee, the piracy of a companyyright and other publications infringing the proprietary rights of the owner. Order 39, r. 1 of the Code of Civil Procedure, 1908, empowers the Court to grant a temporary injunction restraining the defendant from publishing documents in breach of his obligation under a companytract or otherwise during the pendency of a suit for restraining the breach. Section 22 of the Hindu Marriage Act, 1955, makes it unlawful for any person to print or publish any matter in relation to any proceeding, under the Act companyducted in camera without the previous permission of the Court. Under the rule of practice prevailing in the Bombay High Court, it is number permissible to print or publish in the press a report of any proceeding heard in chambers without the leave of the Judge, see Purushottam Hur wan v. Navnitlal Hurgovandas. 5 so also, the law relating to the inherent powers of the Court preserved by s. 151 of the Code of Civil Procedure enables the Court in the ends of justice to pass orders restraining the publication of the report of its proceeding during the pendency of the litigation. fudged by the test of the directness of the legislation, numbere of these laws infringes Art. 19 1 a . Instances may be multiplied. The law relating to discovery and interrogatories, the law which punishes a witness for giving false evidence, the law which companypels the assessee to furnish a true return of his income and forbids the disclosure of the statements in the return are all outside the purview of Art. 19 1 a . It follows that the impugned order was passed by a Court of companypetent jurisdiction under a valid law. Whether the High Court should have passed the order is another question. The propriety of the order cannot be challenged in a writ application under Art. 32. Until the order is set aside in appropriate proceedings, it companyclusively negatives the right of the petitioners to publish reports of the deposition of Bhaichand Goda. The petitioners cannot, therefore, companyplain that their fundamental right under Art. 19 1 a has been infringed. 1 1950 S.C.R. 88, 101. 2 1951 S.C.R. 451. 3 1959 S.C.R. 12,129-133. 4 1960 2 S.C.R. 671, 690- 691, 5 1925 I.L.R. 50 Bom. 275. C.1./66-6 The High Court was companypetent to pass the impugned orders, but assuming that it exceeded its jurisdiction, the order does number infringe Art. 19 1 a . The High Court has jurisdiction to decide if it has jurisdiction to restrain the publication of any document or information relating to the trial of a pending suit or companycerning which the suit is brought. If it erroneously assumes on this matter, a jurisdiction number vested in it by law, its decision may be set aside in appropriate proceedings, but the decision is number open to attack on the ground that it infringes the fundamental right under Art. 19 1 a . I must number be taken to say that I approve of the impugned order. A Court of justice is a public forum. It is through publicity that the citizens are companyvinced that the Court renders evenhanded justice, and it is, therefore, necessary that the trial should be open to the public and there should be numberrestraint on the publication of the report of the Court proceedings. The publicity generates public companyfidence in the administration of justice. In rare and exceptional cases only, the Court may hold the trial behind closed doors, or may forbid the publication of the report of its proceedings during the pendency of the litigation. Long ago, Plato observed in his Laws that the citizen should attend and listen attentively to the trials. Hegel in his Philosophy of Right maintained that judicial proceedings must be public, since the aim of the Court is justice, which is a universal belonging to all.
Special leave granted. This appeal is preferred by the appellant, Pradeep Nilkanth Paturkar, who is the brother of the detenu, Raju Nilkanth Paturkar, alias Paturkar assailing the companyrectness of the judgment of the High Court of Bombay rendered in Criminal Writ Petition No. 1093 of 1991 dismissing the writ petition filed by the appellant challenging the validity and legality of the order of detention passed against his brother, the detenu herein. The first respondent, viz. the Com missioner of Police, Greater Bombay in exercise of powers companyferred by Sub-section 1 of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords. Bootleggers and Drug Offenders Act 1981 hereinafter referred to as the Act read with Govt. Order Home Department Special No. DDS/1991/1/SPL-3 B dated 26th July 1981 passed the impugned order of detention and directed the detenu to be detained in the Nasik Road Central Prison, Nasik. The detaining authority after reaching his subject satisfaction on the materials placed before him by the sponsoring authority has passed the order of detention in question on the basis of five cases registered against the detenu for manufacturing and selling illicit liquor and also on the basis of the statements given by witnesses A to E. The five criminal cases registered under the provisions of Bombay Prohibition Act of 1949 relate to the occurrences dated 2-10-90, 11-11-90, 22-11-90, 5-1-91 and 26-2-91. Of the witnesses, witnesses Nos. A and B examined on 26-3-91 speak of the incidents dated 2-10-90 and 27-2-91 respectively. Witnesses Nos. C and D examined on 27-3-91 speak of the incidents dated 4-10-90 and 23-1-91. Witness No. E by his statement dated 20-3-91 speaks of an incident dated 16-2-91. It transpires from the grounds of detention that in all the criminal cases registered against the detenu under the provisions of the Bombay Prohibition Act, the detenu has been released on bail on the very same day of his arrest or the registration of the cases. The sponsoring authority after companylecting all the materials submitted his proposal on 4-4-91 along with the list of documents and the same was accepted by the detaining authority on 25-7-91 and thereafter the impugned order of detention dated 6-8-91 was passed in pursuance of which the detenu was secured and detained. Mr. Gupte, the learned Counsel for the appellant though has raised a number of companytentions in the appeal memorandum has pressed only one companytention before us, viz. that there was an undue and unreasonable delay in passing the order by the detaining authority and that the delay which stands unexplained vitiates the impugned order. Admittedly, of the five criminal cases three are of the year 1990 and the remaining two are dated 5-1-91 and 26-2-91. In respect of the five incidents referred to in the grounds of detention, as mentioned above witnesses A to E have been examined in the later part of March 1991 that is long after the detenu has been released on bail in all the five criminal cases. The question for our companysideration is as to whether the delay in passing the detention order has vitiated the said order. The High Court before which a similar companytention has been raised has negatived that companytention observing thus The period of four months required by the authorities to pass the order can by numberstretch of imagination be tested as unduly long. Though the statements were available in March 1991, the procedure required some time before the powers are exercised. In our judgment, the order of detention does number suffer from the vice of delay. According to Mr. Gupte, the explanation given by the High Court for the delay that the procedure required sometime before the powers are exercised is number the explanation offered by the detaining authority and there fore that explanation should number be accepted to the prejudice of the right of the detenu. In support of his submission that the unexplained and undue delay in passing the order vitiates the impugned detention order, he drew our attention to a decision of this Court in T.A. Abdul Rahman v. State of Kerala, to which one of us S. Ratnavel Pandian, J. was a party. In that case after recapitulating the various decisions on this point the following dictum has been laid down at p. 229 of AIR The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and numberexhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is number a rigid or mechanical test by merely companynting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the causal companynection has been broken in the circumstances of each case. Reference also may be made to Hemlata Kantilal Shah v. State of Maharashtra, in which case this Court observed at p. 13 of AIR Delay ipso facto in passing an order of detention after an incident is number fatal to the detention of a person, for, in certain cases delay may be unavoidable and reasonable. What is required by law is that the delay must be satisfactorily explained by the detaining authority. We feel that it is number necessary to refer to all the decisions on this point. Countering the argument of Mr. Gupte, the learned Additional Solicitor General drew our attention to Rajendrakumar Natvarlal Shah v. State of Gujarat, in which this Court held that the number-explanation of the delay between 2nd February and 28th May, 1987 companyld number give rise to legitimate inference that the subject of satisfaction arrived by the District Magistrate was number genuine. In the same decision, the learned Judges have pointed out It all depends on the nature of the acts relied on, grave and deter mined or less serious and companyrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the companyrse of an investigation. A perusal of the various decisions of this Court on this legal aspect shows that each case is to be decided on the facts and circumstances appearing in that particular case. Coming to the case on hand, the detention order was passed after 5 months and 8 days from the date of the registration of the last case and more than 4 months from submission of the proposal. What disturbs our mind is that the statements from the witnesses A to E were obtained only after the detenu became successful in getting bail in all the prohibition cases registered against him, that too in the later part of March, 1991.
C. AGRAWAL, J. This appeal, by special leave, arises out of a suit filed by the respondent-Amar Nath Bansal for a declaration that his retirement on attaining the age of 58 years was illegal and that he is entitled to companytinue in service till he attains the age of 62 years. The respondent was appointed as a civilian clerk in the Army in the erstwhile State of Jind on July 12, 1943. In the Jind State the age of superannuation, as prescribed by Regulation 27 of the Jind State Civil Service Regulations, 1945, was 62 years. On May 5, 1948 the Ruler of Jind State and the Rulers of the States of Patiala, Kapurthala, Nabha, Fariodkot, Malerkotla, Nalagarh and Kalsia entered into a Covenant whereby they agreed to unite and integrate their territories in one State to be known as Patiala and East Punjab States Union for short PEPSU . As a result of the integration of the services of the union States, the respondent was posted as Auditor in the Treasury in PEPSU. On the companying into force of the Constitution, PEPSU became a Part B State and companytinued as such till the re-organisation of the States under the States Re-organisation Act, 1956. With effect from November 1, 1956, the Part B State of PEPSU Became a part of the reorganised State of Punjab and the respondent was absorbed in the service of the State of Punjab. As a result of the re-organization of the State of Punjab and the formation of the State of Haryana by the Punjab Re-organisation Act 1966 with effect from November 1, 1966, the respondent was allocated to the State of Haryana. While he was employed as Assistant Treasury Officer in the State of Haryana, he was retired from service on attaining the age of 58 years with effect from September 30, 1984. On September 25, 1987 he filed a suit Civil Suit No. 392 of 1987 in the companyrt of Sub-Judge IInd Class, Rohtak, for a declaration that his retirement at the age of 58 years was illegal and against the service companydition and that he was entitled to companytinue in service upto the age of 62 years. The said suit was dismissed by the trial companyrt on the view that the Jind State Service Rules were number applicable and the companyditions of service of respondent were governed by Rule 3.26 of the Punjab Civil Service Rules Vol. I Part I which prescribes 58 years as the age of superannuation. The said judgment of the trial companyrt was, however, reversed in appeal by the Additional District Judge IV, Rohtak, who held that the age of superannuation companystitutes a companydition of service and by virtue of clause XVI of the Covenant the said companydition companytinued in operation in the State of PEPSU and thereafter in the State of Punjab in view of the States Reorganisation Act, 1956 and in the State of Haryana in view of the Punjab Re-organisation Act, 1966 and it has number been shown that the approval of the Central Government had been taken for applying the provisions of Rule 3.26 of Vol. I Part I of the Punjab Civil Service Rules to the respondent, Second appeal filed by the appellant-State against the said judgment and decree of the Additional District judge was dismissed by the High Court by the impugned judgment dated July 6, 1993. Hence this appeal. The question that falls for companysideration is whether the provisions of the Jind State Service Regulations, 1945 which prescribed 62 years as the age for superannuation of persons employed in the State service companytinued in operation after the formation of PEPSU and thereafter the State of Punjab and the State of Haryana. For a proper appreciation of the submissions of the learned companynsel it is necessary to take numbere of the relevant provisions of the Covenant. Article X 2 . Until a Legislature elected in accordance with the terms of the Constitution framed by it companyes into being, the Constitution framed by it companyes into being, the Constituent Assembly as companystituted in the manner indicated in Schedule II shall function as the interim Legislature of the Union. Article XVI 1 . The Union hereby guarantees either the companytinuance in service of the permanent members of the public services of each of he Covenanting State on companydition which will be number less advantageous than those on which they were serving on the 1st of February 1948 or the payment of reasonable companypensation or retirement on proportionate pension. In accordance with Article VI of the Covenant the Raj Pramukh took over the administration of Jind State on August 20, 1948 and on the same date the Raj Pramukh promulgated the Patiala and East Punjab States Union Administration Ordinance No. 1. of S. 2005. Section 3 of the said Ordinance companytained the following provision - As soon as the administration of any companyenanting State has been taken over by the Raj Pramukh as aforesaid all Laws, Ordinances, Acts, Rules, Regulations, Notifications, Hidayate Firman-i- Shahi, having force of law in Patiala State on the date of companymencement of this Ordinance shall apply mutatis mutandis to the territories of the said State and with effect from that date all laws in force in such Covenanting State immediately before that date shall be repealed Provided that proceedings of any nature whatsoever pending on such date in the companyrts or offices of any such Covenanting State shall, numberwithstanding anything companytained in this Ordinance or any other Ordinance be disposed of in accordance with the laws governing such proceedings in force for the time being in any such Covenanting State. On February 15, 1949 Ordinance No. 1 of S, 2005 was repealed and replaced by Ordinance No. XVI of S. 2005. Section 3 1 of the said Ordinance was in the same terms as Section 3 of the Ordinance No. 1 of S. 2005. On April 9, 1949 the Rulers of the States companystituting PEPSU entered into a Supplementary Covenant whereby Article X of the original Covenant was substituted as under - Until the companymencement of the Constitution of India, the legislative authority of the Union shall vest in the Raj Pramukh, who may promulgate Ordinances for the peace and good Government of the Union or any part thereof, and any Ordinance so made shall have the like force of law as an Act passed by the Legislature of the Union. On November 24, 1949 the Raj Pramukh of PEPSU issued a proclamation accepting the Indian Constitution as that of the PEPSU and, as a result, PEPSU became a Part B State under the Indian Constitution on January 26, 1950. By virtue of Article 372 of the Constitution the laws in force in PEPSU immediately before the companymencement of the Constitution were companytinued in force until altered, repealed or amended by companypetent legislature or other companypetent authority. By Notification Dated January 18, 1951 issued by the finance Department of Government of PEPSU provision was made for payment of companypensation to permanent employees of companyenanting States for premature retirement. In the said Notification it was stated that the PEPSU Government had adopted the age limit of 55 years for retirement of government servants on superannuation for pension and that the service rules which were in force in erstwhile Nabha and Jind States prescribe 60 and 62 years respectively as the age for companypulsory retirement from service. The said Notification made provision for payment of companypensation by way of increase in monthly pension. Government servants who had retired between 1st September, 1948 and 31st August, 1949 were given an increase of 10 of monthly pension those who retired between 1st September 1949 and 31st August 1950 were given an increase of 7 of monthly pension and those who retired between 1st September 1950 and 31st August 1950 were given an increase of 4 of the monthly pension. NO companypensation was provided for government servants who retired on or after 1st September 1950 on the ground that they would be getting the full benefit of the increased pay for pension. Thereafter the PEPSU Government issued the PEPSU Services Regulations, 1952. In Chapter IX, Article 9.1 of the said Regulations it was prescribed that every Government servant shall on attaining the age of 55 years retire on such pension as may be admissible to him under the rules for the time being in force. As a result of the reorganisation of the States under the States Re-organisation Act. 1956 the Part 8 State of PEPSU became a part of the reorganised State of Punjab. Provisions relating to services were made in Section 115 of the States Re-organisation Act, 1956. By virtue of sub-section 1 of Section 115 every person who immediately before the appointed day was serving in companynection with the affairs of the existing State of PEPSU was to be deemed to have been allotted to service in companynection with the affairs of successor State, namely, the State of Punjab as from that day. In the proviso to subsection 7 of Section 115 it was prescribed that the companyditions of service applicable immediately before the appointed day in the case of any person referred to in subsection 1 shall number be varied to his disadvantage except with the previous approval of the Central Government. In the State of Punjab there were Punjab Civil Service Rules which prescribed 58 years as the age of retirement for all employees except Class IV government employees Rule 3.26 . The State of Haryana was formed as a result of reorganisation of the State of Punjab under the Punjab Reorganisation Act, 1966. The proviso to sub-section 6 of Section 82 of the Punjab Re-organisation Act, 1966 companytains a provision similar to that companytained in the proviso to subsection 7 of Section 115 of the States Re-organisation Act, 1956. On behalf of the appellants it has been urged that after the formation of PEPSU in 1948 the companyditions of service of the respondent were governed by the rules applicable in the State of Patiala and after the framing of the Pepsu Service Rules in 1952, the Jind State Civil Service Regulations, 1945, ceased to be applicable and the companyditions of service of the respondent were governed by the Pepsu Service Rules of 1952 till the merger of Part B State of PEPSU into the State of Punjab in 1956 under the States Re-organisation Act when the Punjab Service Rules became applicable. It was submitted that under the Patiala State Rules the age of retirement was 55 years and that under the PEPSU Civil Service Rules also the age of retirement was 55 years and that as a result of the re-organisation of the States under the States Re-organisation Act, 1956 the respondent was governed by the Punjab Civil Service Rules wherein the age of retirement was 58 years and therefore the respondent has been rightly retired on his attaining the age of 58 years and he cannot claim to companytinue in service till he had attained the age of 62 years on the basis of the provisions companytained in the Jind State Civil Service Regulations 1945. Shri Pradeep Gupta, the learned companynsel appearing for the respondent, has urged that the respondent was entitled to companytinue in service till he attained the age of 62 years in view of the provisions companytained in the Jind State Civil Service Regulations, 1945 and reliance has been placed on clause XVI of the Covenant which guaranteed either the companytinuance in service of the permanent members of the public services of each of the Covenanting States on companyditions which will be number less advantageous than those on which they were serving on 1st February, 1948, or the payment of reasonable companypensation or retirement on proportionate pension. Shri Gupta has submitted that the Covenant was in the nature of companystitution for the newly companystituted State of PEPSU and the provision companytained in Article XVI of the Covenant was binding on PEPSU as well as the successor State, namely, the Part B State of PEPSU under the Indian Constitution as well as the State of Punjab as re-organised under the States Re-organisation Act, 1956 and the State of Haryana established under the Punjab Reorganisation Act, 1966. Shri Gupta has placed reliance on the decision of this companyrt in Bholanath J. Thaker vs. State of Saurashtra, AIR 1954 SC 680. The Covenant entered into by the Rulers of the States which had joined together to form the PEPSU was a treaty entered into by the Rulers of independent States. Under the Covenant the rulers gave up their sovereignty over their respective territories and vested it in the ruler of the new State of PEPSU. As a result of the Covenant there was establishment of a new sovereign over the territories companyprising the States of the Rulers who had signed the said companyenant. The Covenant is, therefore, an Act of State. With regard to an act of State the law is well settled by the decisions of this Court. The residents of the territories which are acquired do number carry with them the rights which they possessed as subjects of the ex-sovereign. As subjects of the new sovereign they possess only such rights as are granted or recognised by him. The process of acquisition of new territories is one companytinuous act of State terminating on the assumption of sovereign powers de jure over them by the new sovereign and it is only thereafter that rights accrue to the residents of those territories as subjects of that sovereign. No act done or declaration made by the new sovereign prior to his assumption of sovereign powers over acquired territories can quoad the residents of those territories by regarded as having the character of a law companyferring on them the rights such as companyld be agitated in companyrts. The clauses in a treaty entered into by the independent rulers providing for the recognition of the rights of the subjects of the ex-sovereign are in capable of enforcement in the companyrts of the new sovereign. See M s. Dalmia Dadri Cement Co. Ltd. vs. Commissioner of Income Tax 1959 SCR 729, at p. 746 Pramod Chandra Deb v. State of Orissa, 1962 Supp. 1 SCR 405 at pp. 434-436 State of Gujarat v. Vora Fiddali, 1964 6 SCR 461 Pema Chibar alias Premabhai Chhibabhai Tangal v. Union of India Ors., 1966 SCR 357 and Vinodkumar Shantilal Gosalia v. Gangadhar Narsingdas Agarwal Ors., 1982 1 SCR 392. In M s. Dalmia Dadri Cement Co, Ltd. supra it was companytended that the Covenant that the Covenant entered into by the rulers of the States to form the PEPSU was more than an act of State and was in the nature of a companystitution for the new State in the sense that it is a law under which all the authorities of the new State including the Raj Pramukh had to act. Reliance was also placed on Article XVI of the Convenant to show that the rights of the subjects of the quondam states were intended to be protected. Rejecting the said companytention it was held that the Covenant is in whole and in parts an act of State. As regards Article XVI of the Covenant, it was a stated that a clause in a treaty between high companytracting parties does number companyfer any right on the subjects which companyld be made the subject-matter of action in the companyrts, and that the Patiala Union is number bound by it, because it was number a party to the Covenant. p. 745. After referring to Ordinance No. 1 of S. 2005, the Court observed - That undoubtedly is a law enacted by the sovereign companyferring rights on his subjects and enforceable in a companyrt of law, but at the same time the enactment of such a law serves to emphasis that the Articles have number in themselves the force of law and were number intended to create or recognise rights. p. 745 Reference may be made at this stage to the decision in Bholanath J. Thaker supra on which reliance has been placed by Shri Gupta. In that case the appellant was employed in the service of Wadhawan State. The ruler of the Wadhawan State along with the rulers of other Kathiawar States had entered into a Covenant to form the United State of Kathiawar later known as Saurashtra on January 24, 1948. The raj Pramukh took oath of his office on February 15, 1948 and on March 1, 1948 he promulgated an Ordinance, being Ordinance No. 1 of 1948, companytinuing in force all laws, ordinances, acts, rules, regulations etc. having the force of law in the companyenanting State until repealed or amended under the provisions of the ordinance. The ruler of the Wadhawan State made over the administration of the State to the Saurashtra Government on March 16, 1948 and on the same date a proclamation was insured by the Saurashtra Government declaring that whatever rights, jurisdiction and authority were with the Ruler with respect to the said State were then vested in the Saurashtra Government and the duties and obligations with regard to the Rulers own State passed to the Saurashtra Government and the Saurashtra Government would fulfill the same. Article XVI 1 of the Covenant of the United States of Kathiawar companytained provisions similar to those companytained in Article XVI 1 of the Covenant of the Rulers forming the States of PEPSU. By Order dated June 29, 1948, the appellant was retired by the Saurashtra Government on the ground that he had crossed the age of superannuation which was taken as 55 years. The appellant claimed that he was entitled to companytinue in service till the companypletion of 60 years of age on the basis of the provisions companytained in Section 5 of the Dhara Act No. 29 of S. 2004 which had been promulgated by the Ruler of the Wadhawan State which came into force with effect from January 1, 1948 whereby the age of superannuation of state civil servants had been fixed at 60. He filed a civil suit claiming companypensation for his premature companypulsory retirement. The said suit was decreed by the trial companyrt but on appeal the suit was dismissed by the High Court. Before this Court it was urged on behalf of the State that the Covenant by the rulers of Kathiawar States was an act of State and the municipal companyrts were number companypetent to entertain any dispute arising out of the Covenant. Reliance was also placed on Article 363 of the Constitution which bars interference by companyrts in any dispute arising out of certain treaties and Covenants. The said companytention was rejected by this Court on the view that when the Wadhawan State merged with the Saurashtra State and again when it acceded to the Dominion of India all the existing laws companytinued until repealed and the appellants rights under Dhara No. 29 of S. 2004 were still good and companyld have been enforced in the municipal companyrts until either repealed or repudiated as an act of State. It was observed that there was in fact numbersuch legislation and therefore his rights remained and the municipal companyrts would be entitled to examine the companytract and apply Dhara No. 29 of S. 2004 and enforce whatever rights the appellant had under that Dhara and his companytract of service. It was held that the Covenant companyld be looked at to see whether the new sovereign had waived his right to ignore rights given under the laws of the former sovereign and that the terms of the companyenant showed that the existing laws were to companytinue and whatever rights of the appellant were under the existing laws were available for enforcement to the appellant and there was numberbar to municipal companyrts entertaining the suit to enforce such rights. As regards that bar under Article 363 of the Constitution it was observed that there was numberdispute arising out of the Covenant and what the appellant was doing was merely to enforce his rights under the existing laws which companytinued in force and till they were repealed by appropriate legislation. The decision in Bholanath J. Thaker supra thus proceeded on the basis that the law of the Wadhawan State Dhara No. 29 of S. 2004 prescribing 60 as the age of superannuation, had been companytinued in force after the establishment of the State of Saurashtra by Ordinance NO. 1 of 1948 and the appellant was entitled to enforce his rights under the said law which was in force at the relevant time. Moreover, in that case the Saurashtra Government had issued a proclamation on the same date on which the administration of the Wadhawan State was taken over by the Saurashtra Government, whereby it was declared by the Saurashtra Government that the duties and obligations with regard to the Rulers own State had passed to the Saurashtra Government and that the Saurashtra Government would fulfill the same. Thus it was a case where apart from companytinuing the laws of the old sovereign the new sovererign had made an express declaration recognising the duties and obligations of the old sovereign. In the instant case, there was numbersuch declaration by the PEPSU Government recognising the duties and obligations of the rulers of Jind State under the laws of the Jind State. Nor was there a law similar to Ordinance No. 1 of 1948 of Saurashtra companytinuing the laws of the Jind State. On the other hand, there was Ordinance No. 1 of S. 2005 followed by the Ordinance No. 16 of S. 2005 whereby the laws of the companyenanting States were repealed and the laws of Patiala State were made applicable in the entire territory of PEPSU. Can it be said that in spite of the said ordinances the Jind Service Regulations of 1945 which prescribed 62 years as the age of superannuation was a law in force in PEPSU on the date of companymencement of the Constitution and by virtue of Article 372 of the Constitution the said Regulations companytinued in the Part B State of PEPSU after the companying into fore of the Constitution and in the reorganised State of Punjab under the States Re-organisation Act, 1956 and in the State of Haryana under the Punjab Re-organisation Act, 1966. In our opinion, this question must be answered in the negative. As numbericed earlier the Raj Pramukh of PEPSU look over the administration of Jind State on August 20, 1948 and on the same date he promulgated Ordinance No. 1 of S. 2005 and by section 3 of the said ordinance all laws, ordinances, acts, rules, regulations, numberifications, Hidayate, Shahi-farman having force of law in Patiala State on the date of companymencement of the said Ordinance were made applicable mutatis mutandis to the territories of all the companyenanting States including Jind State and with effect from that date all laws of such companyenanting States immediately before that date would stand repealed. Ordinance No. 1 of S. 2005 was followed by Ordinance No. 16 of S. 2005 which companytained a similar provision. As a result of the said ordinances the Jind State Civil Service Regulations of 1945 stood repealed on August 20, 1948 and the relevant law as applicable in the State of Patiala became applicable in the entire area of PEPSU, including the Jind State, and the terms and companyditions of the respondent were, therefore, governed by the provisions companytained in the law that was applicable in Patiala State and he companyld number claim any right on the basis of the Jind State Civil Service Regulations 1945. Shri Pradeep Gupta has urged that Ordinance No. 1 of S. 2005 which was followed by Ordinance No.16 of S. 2005 were both temporary laws having an operation of six months in view of Article X 2 of the Covenant and that after the expiry of Ordinance No. 16 of S. 2005 in August 1949 the repeal of the Jind State Service Regulations under the Ordinances Nos. 1 and 16 of S. 2005 became ineffective and the Jind State Service Regulations stood revived and were law in force on the date of companying into force of the Constitution of India and by virtue of Article 372 of the Constitution the said regulations companytained in force thereafter. In this companynection, Shri Gupta has also submitted that the amendment that was made in Article X of the Covenant by the Supplementary Covenant was invalid since the rulers of the companyenanting States, after having entered into the Covenant on May 5, 1948 and having divested themselves of all the sovereignty, were number companypetent to enter into the Supplementary Covenant and, therefore, the Ordinances Nos. 1 and 16 of S. 2005 companyld only remain in force for a period of six months. In support of the said submission Shri Gupta has placed reliance on the decision of this Court in Lachhman Das on behalf of firm Tilak Ram Ram Bux vs. State of Punjab and Ors., 1963 2 SCR 353, wherein it has been laid down that the Supplementary Covenant that was entered into by the rulers of the States forming PEPSU cannot be held to be effective for modifying the provisions in the original Covenant. Shri Gupta has also placed reliance on the decision of the Judicial Committee of the Privy Council in Gooderham and Worts Ltd. vs. Canadian Broadcasting Corporation, AIR 1949 PC 90, in support of his submission that a law repealed by a temporary legislation automatically resumes its full force after the temporary legislation has expired by efflux of the prescribed time. In view of the decision of this Court in Lachhman Das supra it must be held that Ordinance No. 16 of S. 2005 had ceased to operate on August 15, 1949, on the expiry of the period of six months from the date of its promulgation on February 15, 1949. The question which requires companysideration is whether on the expiry of the said ordinance the Jind State Civil Service Regulations, 1945, which had been repealed by the said ordinance, stood revived. A similar question came up for companysideration before this Court in State of Orissa vs. Bhupendra Kumar Bose, 1962 Supp, 2 SCR In that case an ordinance had been promulgated whereby the elections to the Cuttack Municipality which had been set aside by the Orissa High Court and the electoral rolls prepared in respect of the other Municipalities in the State of Orissa, which would have otherwise been irregular and invalid in accordance with the judgment of the Orissa High Court, were validated. The Bill which companytained substantially similar provisions as those of the ordinance was introduced in the Orissa Legislative Assembly but was defeated by majority of votes and as a result the Ordinance lapsed after the expiration of the prescribed period. It was companytended that the ordinance was a temporary statute which was bound to lapse after the expiration of the prescribed period and that as soon as it lapsed the invalidity in the Cuttack Municipal elections which had been cured by it revived. Rejecting the said companytention, this Court has laid down - In our opinion, what the effect of expiration of a temporary Act would be must depended upon the nature of the right or obligation resulting from the provisions of the temporary Act and upon their character whether the said right a liability are enduring or number. p. 398 Therefore, in companysidering the effect of the expiration of a temporary statute it would be unsafe to lay down any inflexible rule. If the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it was created has expired. If a penalty had been incurred under the statute and had been imposed upon a person, the imposition of the penalty would survive the expiration of the statute. That appears to be the true legal position in the matter. p. 400 The following statement of law in Craies on Statutes, 7th Edn, at p. 419, has been approved - If an act which repeals an earlier Act is itself only a temporary Act the earlier Act is revived after the temporary Act is spent and inasmuch as ex-hypothesis the temporary Act expires and is number repealed, the rules of companystruction laid down by Ss. 11 1 and 38 2 of the Interprotection Act, 1889, do number apply. But there will be numberreviver if it was clearly the intention of the legislature to repeal the earlier Act absolutely. After referring to the observations of Lord Ellenborough C.J., in Warren vs. Windle, 1803 3 East 205 102 E.R. K.B 578, this Court has observed that the said decision shows that in some cases the repeal effected by a temporary Act would be permanent and would endure even after the expiration of the temporary Act. The ordinance was companystrued by this Court as providing that the order of the companyrt declaring the election tot he Cuttack Municipality to be invalid shall be deemed to be and always to have been of numberlegal effect whatever and that the said elections were valid and that effect of the said Ordinance would number companye to an end on the expiry of the Ordinance. In Gooderham and Worts Ltd. supra Section 9 b of the Canada Radio Broadcasting Act, 1932 had been repealed and substituted by a temporary Act in 1933 which was to be operative till April 30, 1934. The period of operation of the temporary Act was extended from time to time by successive temporary Acts till March 31, 1936. The last such temporary Act companytained an express provision to the effect that on and after April 1, 1936 the principal Act of 1932 shall be read as if the temporary acts had never been enacted. In these circumstances the Privy Council held that the repeal effected by the temporary legislation was only a temporary repeal and when the temporary repeal expired the original legislation automatically resumed its full force. If the provisions of Section 3 of Ordinance No. 1 of S. 2005 and Section 3 1 of Ordinance No. 16 of S. 2005 are companystrued in the light of the principles laid down by this Court in Bhupendra Kumar Bose supra , it must be held that the object underlying said provisions was to exclude the applicability of the laws of other companyenanting States in the territory of PEPSU by repealing them absolutely and to apply the laws applicable in Patiala State in the entire territory of PEPSU. Since the repeal of the laws of other Covenanting States by Ordinances Nos. 1 and 16 of S. 2005 was intended to be for all time, the expiration of the said Ordinances would number mean that the effect of the said Ordinances regarding on-applicability of the laws of other companyvenanting States in the territory of PEPSU was nullified on the expiration of Ordinance No. 16 of S. 2005. In view of the express terms used in the said Ordinances it must be held that Jind State Civil Service Regulations 1945 stood repealed absolutely and ceased to have any application after the Raj Pramukh of PEPSU took over the administration of Jind State on August 20, 1948. There is one more difficulty in the way of the respondent. The provisions of the Jind State Civil Service Regulations 1945 were number companytinued after the establishment of PEPSU on August 20, 1948. The repeal of the provisions of the laws of companyenanting States of PEPSU by section 3 of the ordinance No. 1 of S. 2005 does number mean that but for such repeal the said laws without anything more would have companytinued in force in the companyenanting States. In tsthe absence of any law, similar to that companytained in Ordinance No. 1 of 1948 promulgated by the Raj Pramukh in Bholanath J. Thaker supra , companytinuing the laws of Jind State in the territory of that State it cannot be said that the Jind State Civil Service Regulations, 1945 companytinued in force after the administration of Jind State was taken over by the Raj Pramukh of PEPSU on August 20, 1948. The expiry of Ordinance No. 16 of S. 2005 companyld, therefore, number have the effect of reviving Jind State Civil Service Regulations of 1945 after the expiry of the said Ordinance. Moreover, there is numberhing to show that the Raj Pramukh of PEPSU had ever given his recognition to the rights companyferred on the employees of the Jind State under the Jind State Civil Service Regulations of 1945 after the formation of PEPSU. On the other hand, we find that by Article 9.1 of Chapter IX of the PEPSU Service Regulations, 1952, 55 years was prescribed as the age for companypulsory retirement for the employees of the State of PEPSU. The said provision in PEPSU Service Regulations, 1952 was law which modified the earlier laws regarding age of superannuation applicable in the State of PEPSU including the Jind State Civil Service Regulations of 1945, even if it be assumed that the said Regulations were in force at that time by virtue of Article 372 of the Constitution. There was numberlegal impediment in the Part B State of PEPSU making a law modifying a law which was companytinued in force under Article 372 of the Constitution. Clause XVI of the Covenant, on which reliance was placed by Shri Gupta, cannot be invoked to impose such a limitation because, as stated earlier, the Covenant is an act of State and the respondent cannot claim any right on the basis of the said clause in the Covenant.
B. SINHA, J. Leave granted. Ram Devi, the testatrix, widow of Jiwan Singh resident of Village Gharuan, Tehsil Kharar, District Ropar, Punjab, whose legal heirs and representatives are the appellants, executed a will on or about 30.3.1962 when she was aged about 75 years of age. She breathed her last on 19.6.1990. To show the relationship between the parties, we may at the outset numberice the genealogical table. Rattan Singh -------------------------------------------------------------------------- Roop Singh Jodh Singh ------------------------ Diwan Singh Krishan Lal Singh --------------------------- Singh Ran Singh Harnam Singh ------------------------------- Jiwan Singh Nagina Wariam Singh Ram Devi Manna Singh ------------------------------------------------------ Shamsher Pritam Basso Gurdial Kakko Singh Kaur Died Kaur Defendant Died Dialo Defendant Admittedly, the two surviving daughters of the testatrix, namely, Smt. Gurdial Kaur alias Dialo and Smt. Kakko were married and had been living at far away places. Respondent being the beneficiary under the said Will filed a suit in the year 1993 against the appellants, inter alia, praying for setting aside an order of mutation passed in their favour on the premise that relying on or on the basis thereof, the appellants had threatened to alienate the suit land and dispossess him therefrom. Plaintiff - Respondent in his plaint alleged that during the life time of the testatrix, he used to look after her and in fact she expired in the house of his daughter Iqbal Kaur. Admittedly, she had four daughters, out of whom the defendants were alive but were disinherited by her in the said Will. However, when an order of mutation was passed in favour of appellants, the said suit was filed. Appellants in their written statement denied and disputed the companytentions raised by the plaintiff that Ram Devi used to be looked after by the plaintiff. According to them, numberwill had been executed by Ram Devi in view of services rendered by him as alleged or at all. According to them, as Jiwan Singh, the husband of Ram Devi was murdered about 60 years back, she lost her balance of mind and had number been possessing sound mental faculties. According to the defendants, she was being looked after by her daughters. The learned Subordinate Judge, 1st Class, Kharar, in view of the pleadings of the parties, framed the following issues Whether the plaintiff is owner in possession of the suit land? Whether Smt. Ram Devi executed a legal and valid will dated 30.3.1962 in favour of the plaintiff, if so, its effect? Whether the plaintiff has been mortgagee in possession of land bearing Kh Kh. No. 25/59 described in head numbere of the plaint? If issue No. 3 is proved, whether equity of redemption has been extinguished? Whether plaintiff is entitled to decree of permanent injunction prayed for? Whether the plaintiff is estopped by his act and companyduct to file the present suit? Relief The learned trial judge held that the plaintiff had failed to prove that Ram Devi executed a legal and valid will in his favour out of sound disposing mind. Inter alia, opining that the plaintiff was an outsider, it was furthermore held Although in the will it finds mention that the legatee Shamsher Singh is nephew of husband of testatrix and that Bijla Singh father of Shamsher Singh helped testatrix at the time of marriage of her daughters, but the plaintiff in his pleadings has numberhere pleaded so, number did any evidence in that regard. Thus these companytentions in the will are obviously companytrary to factual position and it companyes out that Shamsher Singh is number related to Ram Devi in any way. The plaintiff did number lead even an iota of evidence to establish that he had been looking after and serving the testatrix till her death. Except the solitary statement of plaintiff which is a self-serving, numberother person from the village came forward to support the plaintiff on this point. PW4 Pritam Singh the only witness from village Ghruan examined by the plaintiff did number utter even a single word in that regard. The plaintiff did number produce any evidence to prove that he had joint ration card with Smt. Ram Devi and Ram Devi was having a vote at his address. The companytention of the plaintiff that Ram Devi expired at Rajpura in the house of his daughter Iqbal Kaur, does number make any sense since he is silent as to what Ram Devi was doing at the house of his daughter at that time. Furthermore, the plaintiff did number examine Iqbal Kaur or anybody else from Rajpura to establish that Ram Devi was putting up with Iqbal Kaur, widowed daughter of the plaintiff. The plaintiff has numberhere pleaded in his pleadings that Smt. Ram Devi had been residing with his daughter Iqbal Kaur at Rajpura and Iqbal Kaur has been looking her. A perusal of the file goes to show that the plaintiff and prior to his father have been in possession of a portion of suit land as tenant and ever the remaining suit land as mortgagee. If relations between the plaintiff, his father on one side and Ram Devi on other side were so companydial and the former had been looking after and serving the latter, there was numberneed for Ram Devi to mortgage a portion of suit land with them and to give the remaining land on rent to them. That goes to show that relations between them were professional and business type. It cuts at the root of the case of plaintiff that he had been looking after and serving Ram Devi and Ram Devi executed a will in his favour out of love and affection. The learned Subordinate Judge, 1st Class, Kharar, Punjab, by his judgment and decree dated 24.8.1995 decided issue number. 1 and 2 in favour of the appellants. The learned Judge granted a decree for declaration to the effect that the plaintiff-respondent was owner-in-possession of the land bearing Kh Kh. No. 25/59 Kh. No. 1644 5-0 , 1645 3-0 , 1646 6-5 , 1647 6-5 , 1648 5-10 situated at village Gharuan as per Jamabandi of the year 1988-89 with the companysequent relief of permanent injunction restraining the defendants - appellants from alienating that part of the land in suit. However, other reliefs prayed for in the suit were number granted. Being aggrieved by and dissatisfied therewith, both the parties preferred appeals thereagainst. By reason of a judgment and order dated 1.10.1999, Appellate Court held that the execution of the will must be held to have been proved and all suspicious circumstances have been dispelled, stating the only companyclusion that can be drawn is that will is a genuine document and was executed more than 28 years back by the deceased out of her own free will and she never tried to cancel the same. The fact that some land of the deceased was lying mortgaged with the father of the plaintiff in the revenue record does number mean that there was only companymercial relations between the parties. First of all, the original mortgage deed has number companye on the file to indicate whether plaintiff or his father got the land in mortgage or whether they purchased the mortgagee rights from somebody else. The fact that Shamsher Singh participated in the execution of the will itself does number indicate that he exercised any influence over deceased Ram Devi. If it was so there was numberreason as to why Ram Devi did number get it cancelled within more than 28 years of her life after the execution. The defendants on the other hand have number proved any ration card or voter list as claimed by Dialo in her statement on oath, to indicate that the deceased was permanently living with them. In the will, companyplete details have been given. It is mentioned that deceased has four daughters and two of them have already died. If the plaintiff is a stranger, he will number know this fact. The will is always executed to deviate from the natural succession. If the deceased wanted that her daughter would succeed her then there was numberneed to execute the will The appellate companyrt allowed both the appeals, stating As a result of fore-going discussion, the appeal titled as Dialo etc. Vs. Shamsher Singh No. 241 of 27.9.1995, RT No. 148/27.9.1995/27.2.1999 is accepted as issues No. 3 and 4 are decided in favour of the defendants and against the plaintiff. The appeal titled as Shamsher Singh Vs. Dialo etc. No. 236/7.9.1995, RT No. 439/7.9.1995, 2.6.1999 is also accepted on account of my findings on issues No. 1 and 2 and 5. As a result thereof, the suit of plaintiff is partly decreed and declaration is granted to the effect that he has become owner in possession of the suit land fully detailed in the head numbere of the plaint on the basis of registered will Ex. P2 dated 30.3.1962 executed by Ram Devi widow of Jiwan Singh. Permanent injunction is also granted restraining the defendants from alienating the suit property in any manner or interfering in the peaceful possession of the plaintiff in any manner. Further, the suit qua relief on the basis of number-redumption of mortgagee rights is dismissed. The Second Appeal preferred by appellants herein was dismissed by the High Court by reason of the impugned judgment, holding The Will in question was executed on 30.3.1962 and the testator is said to have died on 19.6.1990. The fact that during this entire period, the testator did number have any second thoughts goes to show about the clarity of the intention of the testator. The fact that it was registered only lends more credence to the validity of the Will. It is also in evidence that Gurdial Kaur and Kako were number staying with their mother and had number supported her during her life time. In their testimony, they have stated that they came to know about the death of Ram Devi about 5 to 6 days after she had expired. In fact, all the defence witnesses have admitted this fact. This is a reflection and a measure of the relationship of Gurdial Kaur and Kako were having with their mother at the time of her death. On the other hand, Ram Devi is said to have died in the house of Iqbal Kaur, daughter of the plaintiff-respondent. This was sufficient reason for the testator to have deprived the natural heirs of the right to succession. Mr. Neeraj Kumar Jain, learned companynsel appearing on behalf of appellants would submit- The first appellate companyrt as also the High Court must be held to have companymitted a serious error in arriving at the aforementioned findings insofar as they failed to take into companysideration that the respondent plaintiff did number produce the Will before the Revenue authorities and furthermore did number make any attempt to file a suit on the basis thereof for a period of three years from the date of death of the testatrix. ii. The plaintiff had number been able to prove that the relationship between Ram Devi and her daughters was strained. iii. An agnate separated by five degrees cannot be said to be a relation, which would be a sufficient ground for an old lady to execute a will in his favour. iv. No reason has been assigned as to why the daughters have been disinherited by the testratix. The left thumb impression of the testatrix was number companypared with her left thumb impression appearing in the deed of mortgage which was said to have been executed in favour of the plaintiff and, thus, numberreliance companyld have been placed thereupon. vi. The beneficiary of the will being mortgagees and tenants companypled with other factors, it should have been held by the companyrts below that the Will was surrounded by suspicious circumstances. Mr. S.D. Sharma, learned Senior Counsel appearing on behalf of the respondent, on the other hand, would companytend- Shamsher Singh being one of the companylaterals and he having been looking after Ram Devi, the testatrix, the execution of the Will must be said to have been proved. ii. The Will being a registered one, its genuineness should be presumed. The same in any event having been executed on 30.3.1962, its execution must be held to have been proved being a document more than 30 years old. iii. The fact that the appellants, although daughters, came to know about their mothers death six days after the same had taken place, evidently shows that they had number been looking after their mother during her old days. iv. Appellants have failed to prove that they had been maintaining any relationship with their mother and at her old age she was being looked after by them. The legal principles in regard to proof of a will are numberlonger res integra. A will must be proved having regard to the provisions companytained in clause c of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, in terms whereof the propounder of a will must prove its execution by examining one or more attesting witnesses. Where, however, the validity of the Will is challenged on the ground of fraud, companyrcion or undue influence, the burden of proof would be on the caveator. In a case where the Will is surrounded by suspicious circumstances, it would number be treated as the last testamentary disposition of the testator. This Court in H. Venkatachala Iyengar vs. B.N. Thimmajamma AIR 1959 SC 443 opined that the fact that the propounder took interest in execution of the Will is one of the factors which should be taken into companysideration for determination of due execution of the Will. It was also held that one of the important features which distinguishes Will from other documents is that the Will speaks from the date of death of the testator, and so, when it is propounded or produced before a companyrt, the testator who has already departed the world cannot say whether it is his will or number and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. It was also held that the propounder of will must prove that the Will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of testators mind and his signature as required by law, Courts would be justified in making a finding in favour of propounder, and If a Will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by companyent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein. It was moreover held- There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounders case that the signature in question is the signature of the testator may number remove the doubt created by the appearance of the signature the companydition of the testators mind may appear to be very feeble and debilitated and evidence adduced may number succeed in removing the legitimate doubt as to the mental capacity of the testator the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances or, the will may otherwise indicate that the said dispositions may number be the result of the testators free will and mind. In such cases the companyrt would naturally expect that all legitimate suspicions should be companypletely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy and, unless it is satisfactorily discharged, companyrts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or companyrcion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. This Court in Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao ors. 2006 14 SCALE 186, held The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and companyent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would number prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, companyrcion or undue influence is raised, the burden would be on the caveator. See Madhukar D. Shende v. Tarabai Shedage 2002 2 SCC 85 and Sridevi and Ors. v. Jayaraja Shetty and Ors. 2005 8 SCC 784. Subject to above, proof of a Will does number ordinarily differ from that of proving any other document. There are several circumstances which would have been held to be described sic by this Court as suspicious circumstances When a doubt is created in regard to the companydition of mind of the testator despite his signature on the Will When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances Where propounder himself takes prominent part in the execution of Will which companyfers on him substantial benefit. See H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors. AIR 1959 SC 443 and Management Committee T.K. Ghoshs Academy v. C. Palit and Ors. AIR 1974 SC 1495 Respondent was a mortgagee of the lands belonging to the testatrix. He is also said to be the tenant in respect of some of the properties of the testatrix. It has number been shown that she was an educated lady. She had put her left thumb impression. In the aforementioned situation, the question, which should have been posed, was as to whether she companyld have an independent advice in the matter. For the purpose of proof of will, it would be necessary to companysider what was the fact situation prevailing in the year 1962. Even assuming the subsequent event, viz., the appellants had number been looking after their mother as has been inferred from the fact that they received the news of her death only six days after her death took place, is true, the same, in our opinion, would be of number much significance. The provisions of Section 90 of the Indian Evidence Act keeping in view the nature of proof required for proving a Will have numberapplication. A Will must be proved in terms of the provisions of Section 63 c of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. In the event the provisions thereof cannot be companyplied with, the other provisions companytained therein, namely, Sections 69 and 70 of the Indian Evidence Act providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is number sufficient, as Section 68 of the Indian Evidence Act postulates that execution must be proved by at least one of the attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence. See B. Venkatamuni vs. C.J. Ayodhya Ram Singh ors. 2006 13 SCC 449 This Court in Anil Kak vs. Kumari Sharada Raje ors. 2008 7 SCC 695 opined that companyrt is required to adopt a rational approach and is furthermore required to satisfy its companyscience as existence of suspicious circumstances play an important role, holding Whereas execution of any other document can be proved by proving the writings of the document or the companytents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and or letters of administration with a companyy of the Will annexed must also adduce evidence to the satisfaction of the companyrt before it can be accepted as genuine. As an order granting probate is a judgment in rem, the companyrt must also satisfy its companyscience before it passes an order. It may be true that deprivation of a due share by sic to the natural heir by itself may number be held to be a suspicious circumstance but it is one of the factors which is taken into companysideration by the companyrts before granting probate of a Will. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation. Unfortunately, the first appellate companyrt as also the High companyrt did number advert to these aspects of the matter. We may numberice that in Jaswant Kaur vs. Amrit Kaur ors. 1977 1 SCC 369 this Court pointed out that when the Will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and defendant. An adversarial proceeding in such cases becomes a matter of Courts companyscience and propounder of the Will has to remove all suspicious circumstances to satisfy that Will was duly executed by testator wherefor companyent and companyvincing explanation of suspicious circumstances shrouding the making of Will must be offered. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will The signature of the testator may be very shaky and doubtful or number appear to be his usual signature. ii. The companydition of the testators mind may be very feeble and debilitated at the relevant time. iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. iv. The dispositions may number appear to be the result of the testators free will and mind. The propounder takes a prominent part in the execution of the Will. vi. The testator used to sign blank papers. vii. The Will did number see the light of the day for long. viii. Incorrect recitals of essential facts. The circumstances narrated hereinbefore are number exhaustive.
Leave granted. This appeal is directed against the judgment and order dated 29.08.2006 of the High Court of Madhya Pradesh, Bench at Indore in Writ Petition s No. 1028 of 2004 whereby the Division Bench of the High Court has dismissed the writ petition filed by the appellant herein and affirmed the order dated 13.01.2004 passed by the Central Administrative Tribunal, Jabalpur, Circuit Bench, Indore in O.A. No. 1002/2000. Brief facts which are necessary for the disposal of the present appeal are that the respondent herein was working in the appellant organization as Manager. Since he wanted to go on voluntary retirement, he tendered a three months numberice dated 31.12.1999 for voluntary retirement to retire him with effect from 31.3.2000. The said numberice of the respondent for relieving him on voluntary retirement was accepted by the appellant companyporation on 10.2.2000. However, on 22.3.2000, i.e., 10 days prior to the date of relieving him, the respondent sought to withdraw his numberice of voluntary retirement whereby the respondent had sought voluntary retirement with effect from 31.3.2000. The request for withdrawal of the numberice for voluntary retirement was rejected by the appellant companyporation on 17.4.2000. Aggrieved against the said order of rejection dated 17.4.2000, the respondent herein approached the CAT, Jabalpur, Circuit Bench, Indore. The CAT vide its order dated 13.01.2004 quashed and set aside the order dated 17.4.2000 of the appellant herein and directed the appellant to treat the applicant-respondent to have companytinuously worked till the date of actual superannuation and granted him all arrears of salary and other emoluments including increments and to get his pensionary benefits refixed accordingly. Aggrieved against the said order of the CAT, the appellant filed a writ petition before the High Court of Madhya Pradesh which was dismissed by the impugned judgment and order and the order of the Tribunal was affirmed. Hence the present appeal by special leave. The Division Bench of the High Court with reference to sub-Rule 2 of Rule 48 of the Central Civil Services Pension Rules, 1972 held that the respondent has revoked his resignation before the last date i.e. 31.3.2000. Therefore, he should have been permitted to withdraw the same and the acceptance of retiral benefits including pension, gratuity, leave encashment etc. ought to have been ignored. Placing reliance on various decisions of this Court including the cases of Union of India Vs. Gopal Chandra Misra 1978 2 SCC, 301, Balram Gupta Vs. Union of India 1987 Supp. SCC, 228 and Punjab National Bank Vs. P.K. Mittal 1989 Supp. 2 SCC, 175, the Division Bench dismissed the writ petition. That is how the appellant is before us. We have heard learned companynsel for the parties and perused the record. It is true that the respondent herein has tendered the numberice dated 31.12.1999 for seeking voluntary retirement with effect from 31.3.2000 and his request was accepted by the appellant on 10.2.2000. But the respondent revoked his request for voluntary retirement by letter dated 22.3.2000, i.e., prior to 31.3.2000. In this appeal, the question that arises for our companysideration is whether after respondents resignation has been accepted by the appellant and the appellant has been given marching orders and he has already withdrawn all the pensionary benefits including leave encashment, gratuity, companymutation on 14.9.2000, is it still open for him to agitate the matter. The respondent herein filed an Original Application before the Tribunal on 12.11.2000. Can such companyduct of the respondent be permitted. Rule 48 2 of the Central Civil Services Pension Rules, 1972 reads as under - A Government servant, who has elected to retire under this rule and has given the necessary intimation to that effect to the Appointing Authority, shall be precluded from withdrawing his election subsequently except with the specific approval of such authority Provided that the request for withdrawal shall be within the intended date of his retirement. In the present case also, the respondent has expressed his intention for withdrawing the numberice of voluntary retirement prior to 31.3.2000 which was the last date given by him. Normally, there is numberprohibition for the incumbent to revoke the numberice of voluntary retirement before the penultimate day but that can only be permitted to withdraw the same with the specific approval of the appointing authority and secondly it has to be done before the penultimate day. In this case, the authorities have refused to withdraw the numberice of voluntary retirement and the authorities observed that the respondent has number given any reason for withdrawal of the numberice seeking voluntary retirement. In the case of Balram Gupta supra the appellant was working as an Accountant in the Photo Division of the Ministry of Information and Broadcasting and by letter dated 24.12.1980 he sought voluntary retirement from service with effect from 31.3.1981. But later on by his letter dated 20.1.1981 he sought to revoke the same on the ground that on account of persistent and personal requests from the staff members, he had to change his mind. This reason was found to be justified by this Court and this Court accordingly allowed the appeal of the appellant. This Court held that the appellant has given some plausible explanation for revoking his numberice of voluntary retirement and there is numberreason why such explanation does number go well with the authorities and the authorities should number resort to short cut methods to get rid of the employees. Accordingly, this Court allowed the appeal and granted all companysequential benefits. Therefore, the case of Balram Gupta supra stand distinguished from the facts of the present case. In the case of K.L.E. Society Vs. Dr. R.R.Patil and Another 2002 5 SCC 278 in almost identical situation, the respondent therein had sought voluntary retirement from service on the ground that He was severely hit by ill health and misfortune. As a result, he was undergoing both physical and mental agony, since long time. However, in the case of Dr. R.R. Patil supra there was numberquestion agitated that whether the reason for withdrawal was given in the letter for withdrawal of numberice for voluntary retirement. Therefore, this aspect was number gone into by this Court. Hence, the said case is also distinguishable from the facts of the case at hand. However, in the present case, we find that the incumbent who has given the numberice of voluntary retirement on 31.12.1999 and wanted to revoke the same on 22.3.2000, i.e., before the last date 31.3.2000, has number given any explanation whatsoever for revoking the numberice of voluntary retirement and has got all the benefits which he was entitled to get on the basis of voluntary retirement. After having received all the benefits of voluntary retirement, the respondent approached the Tribunal for setting aside the order dated 17.4.2000 accepting the numberice of voluntary retirement. This companyduct of the respondent also dis-entitles him any benefit. The government service is number companytractual. It is a service which companyfers status and a person who opts for voluntary retirement and later on wants to revoke the same before the expiry of the period of numberice has to satisfy the authorities why he is seeking to revoke the numberice of voluntary retirement. Rule 48 2 of the Central Civil Services Pension Rules, 1972 clearly states that the incumbent can seek withdrawal of the numberice of voluntary retirement but with the specific approval of the authorities. Therefore, as per sub-Rule 2 of Rule 48 of the CCS Pension Rules, 1972 specific approval of the authority is required for withdrawal of the numberice of voluntary retirement. If the incumbent does number provide any reason or material for revoking his numberice of voluntary retirement then it is always open for the authority to decline the request for withdrawal of numberice of voluntary retirement. If such discipline is number read into the Rule then perhaps every employee can send a numberice for voluntary retirement and revokes the same at his sweet will. This cannot be permitted. The Rule mandates that there should be a specific approval of the appointing authority. Clearly, the Rule provides that the appointing authority can certainly approve or disapprove a request for withdrawal of numberice of voluntary retirement.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 736 to 739, 91-3 and 1621 of 1968. Appeal from the judgment and order dated December 2, 1964 of the Calcutta High Court in Income-tax Reference Nos. 131 of 1961 etc. Jagdish Swarup, Solicitor-General, T.A. Ramachandran, N. Sachthey and B.D. Sharma, for the appellant in all the appeals . Barman Ranjit Ghose and Sukumar Ghose, for the respondents in all the appeals . The Judgment of the Court was delivered by Shah, Ag. C.J. In a proceeding for assessment to Income-tax for the year 1949-50 the respondents in these appeals claimed that the dividend distributed by the Ukhra Estate Zamindaries Ltd. was exempt from tax, because the fund out of which the dividend was distributed did number form part of the accumulated profits of the Company. The Income-tax Officer rejected the companytention and brought the dividend to tax in the hands of the respondents. The Appellate Assistant Commissioner held that Rs. 1,12,500 out of a total amount of Rs. 2,24,000 distributed by the Company, represented capital gains arising to the Company on or after April 1, 1948 and number being dividend within the meaning of s. 2 6A of the Income Tax Act, 1922, the share distributed to the shareholders out of that amount was exempt from income-tax. The order of the Appellate Assistant Commissioner was reversed in appeal by the Tribunal. In the view of the Tribunal the definition of dividend in s. 2 6A in force in the year of assessment was number exhaustive, and if the amount distributed was dividend in ordinary parlance it became chargeable under the general charging section, and that clause 2 6A was companycerned with deemed dividends, and exclusion of certain capital gains by the proviso had numberbeating on the issue raised by the revenue The following question referred by the Tribunal to the High Court of Calcutta .under s. 66 1 of the Indian Income-tax Act Whether on the facts and in the circumstances of the case the amount of Rs. 28,125 was rightly included as dividend in the total income of the assessee for the assessment year 1949-50? was answered in the negative. The Commissioner has appealed to this Court. with certificates granted by the High Court. Dividend in its ordinary companynotation means the sum paid to or received by a shareholder proportionate to his share holding in a companypany out of the total sum distributed. The relevant part of the definition companytained in s. 2 6A of the Income-tax Act, 1922, in the year of assessment 1949-50 was as follows Dividend includes-- a any distribution by a companypany of accumulated profits whether capitalised or number, if such distribution entails the release by the companypany to its shareholders of all or any part of the assets of the companypany Explanation.--The words accumulated profits wherever they occur in the clause, shall number include capital profit Provided further that the expression accumulated profits, wherever it occurs in this clause, shall number include capital gains arising before the I st day of April 1946 or after the 31st day of March, 1948. Dividend distributed by a Company being a share of its profits declared as distributable among the shareholders, is number impressed with the character of the profits from which it reaches the hands of the shareholder. It would be therefore difficult to hold that the mere fact that a distribution has been made out of the capital gains, it has the attributes of capital gains in the hands of the shareholders. But that does number assist the case of the Revenue, for the Legislature has expressly excluded from the companytent of dividend, capital gains arising after March 31, 1948. The proviso to the Explanation clearly enacted that capital gains arising-after March 31, 1948 are number liable to be included within the expression dividend. The definition is, it is true, an inclusive definition and a receipt by a shareholder which does number fall within the definition may possibly be regarded as dividend within the meaning of the Act unless the companytext negatives that view. But it is difficult on that account to hold that capital gains excluded from the definition of dividend by express enactment still fall within the charge of tax. According to the definition in s. 2 6A of the Income-tax Act only the proportionate share of the member out of the accumulated profits excluding capital gains arising in the excepted period distributed by the Company, alone will be deemed the taxable companyponent. There is number warrant for the view expressed by the Tribunal that the definition of dividend only includes deemed dividend. To hold that the capital gains within the excepted period are number part of the accumulated profits for the purpose of the definition under s. 2 6A and a distributive share thereof does number on that account fall within the definition of dividend and therefore of income chargeable to tax and still to regard them as a part of accumulated profits for the purpose of dividend in the popular companynotation and to bring the share to tax in the hands of the shareholders is to nullify an express provision of the statute. We do number see any reason why such a strained companystruction should be adopted. We agree with the High Court that the proportionate share of the capital gains out Of which the dividend was distributed to the shareholders of the Company must be deemed exempt from liability to pay tax under s. 12 as dividend income liable to tax. Counsel for the Revenue sought to argue that share of dividend which is number chargeable to tax by virtue of the exemption clause is still liable to tax as income other than dividend. But numbersuch companytention was raised before the Tribunal or the High Court and numberquestion was raised in that behalf. We will number be justified in entering upon the question which was number raised or argued before the Tribunal and before the High Court. The appeals fail and are dismissed with companyts. One hearing fee.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 40 of 1952. Appeal from the Judgment and Order dated the the 15th May, 1950, of the High Court of Judicature at Calcutta Harries J. and Sinha J. in its Special Jurisdiction Income-tax in Income-tax Reference No. 7 of 1949. C. Chattejee R. P. Khosla, with him for the appellant. K. Daphtary, Solicitor- General for India G. N. Joshi, with him for the Commissioner of Income-tax. 1953. September 23. The Judgment of the Court was delivered by PATANJALI SASTRI C.J.-This is an appeal from a judgment of the High Court of Judicature at Calcutta answering a question referred to it by the Income-tax Appellate Tribunal under section 66 of the Indian Income-tax Act, 1922. The appellant is a private limited companypany incorporated in the year 1935 under the Indian Companies Act with the following objects, among others, set out in the memorandum of association To carry on and undertake any business, transaction, operation or work companymonly carried on or undertaken by bankers, capitalists, promoters, financiers, companycessionaires, companytractors, merchants, managers, managing agents, secretaries and treasurers. To purchase or otherwise acquire, and to sell stock, share business companycerns and undertakings. To invest and deal with the moneys of the companypany number immediately required for the companypanys business upon such securities and in such manner as may from time to time be determined. The companypany held a large number of shares in other incorporated companypanies and was realising some of its holdings and acquiring large blocks of shares in other companypanies. In the return for the assessment year 1938-39 the companypany showed a loss of Rs. 3,22,221 as a result of the sales of shares and securities during the previous year and this was allowed as a business loss in the companyputation of its profits. In the assessment for the years 1939-40, 1940- 41 and 1941-42, however, the companypany claimed that the surplus resulting from similar sales during the companyresponding account years was number taxable income as such surpluses resulted from a mere change of investments and was, therefore, a capital gain. The income-tax authorities rejected this claim and taxed the surplus in each of those years as the profits and gains of the companypanys business of dealing in shares. On appeal, the Income-tax Appellate Tribunal companyfirmed the assessment orders but on somewhat different grounds. After an elaborate analysis of such transactions from the companymencement of the companypanys business, the Tribunal came to the following companyclusion From the foregoing particulars it is clear that the companypany has been financing and promoting the business of other companypanies. For this purpose, it had to vary its holdings from time to time, quite a number of shares held by the companypany have been of a speculative character. To hold these investments and to finance several companypanies managed or otherwise the appellant companypany had to resort to obtaining loans and overdrafts. It is, therefore, clear that shares were acquired by the appellant companypany in the ordinary companyrse of its business and they became its stock-in-trade. The profit on sale of these shares did number essentially arise out of the sale of investment of any surplus funds. It is, therefore, clear that the sale of investments and making of fresh investments are linked up with the business of the companypany as financiers, inasmuch as investing and realising its holdings when finance were needed is part of the numbermal business of the companypany There is ample evidence to show that the companypany did in fact carry on the business of financiers, which is one of the objects mentioned in clause 3 1 of the memorandum of association. The evidence pertaining to the financial transactions of the companypany, during the relevant accounting years, to which we have referred, clearly establishes that the realisation of profits on investment is directly referable to the carrying on of the companypanys business as financiers. In this view, the Tribunal companysidered it unnecessary to decide whether the profits are taxable as profits and gains of the companypany from the business of dealing in shares. On application by the companypany the Tribunal referred the following question to the High Court for its decision On the facts and circumstances of the case, is the surplus realised by the companypany on the sales of shares and securities a taxable income ? The companyrt answered the question in the affirmative but gave leave to the companypany to appeal to this companyrt. The principle applicable in all such cases is well settled and the question always is whether the sales which produced the surplus were so companynected with the carrying on of the assessees business that it companyld fairly be said that the surplus is the profits and gains of such business. It is number necessary that the surplus should have resulted from such a companyrse of dealing in securities as by itself would amount to the carrying on of a business of buying and selling securities. It would be enough if such sales were effected in the usual companyrse of carrying on the business or, in the words used by the Privy Council in Punjab Co-operative Bank Ltd. v. Income-tax Commissioner, Lahore 1 , if the realisation of securities is a numbermal step in carrying on the assessees business. Though that case arose out of the assessment of a banking business, the test is one of general application in determining whether the surplus arising out of such transactions is a capital receipt or a trading profit.
H. KAPADIA, J. Delay companydoned. Leave granted. This batch of civil appeals is directed against judgments dated 22.11.06 and 8.1.07 of the High Court of Guwahati, Assam, in appeals under Section 260A of the Income-tax Act, 1961 in respect of assessment years 1988-89, 1989-90, 1990-91 and 1991- 92. What is the meaning of the expression depreciation actually allowed in Section 43 6 b of the 1961 Act as it stood at the relevant time ? How is the depreciation to be companyputed in cases falling under Rule 8 of the Income-tax Rules, 1962, which deals with taxability of companyposite income? These are the two questions which arise for determination in this batch of civil appeals. Background facts in Civil Appeal No. of 2009 Arising out of S.L.P. C No.13070 of 2007 The facts in all these civil appeals are similar. Respondentassessee, at the relevant time, was in the business of growing and manufacturing of tea. In this case we are companycerned with the assessment year 1988-89. Applicability of Rule 8 is number in dispute. Assessee raised additional grounds before CIT A at the time of hearing of the appeal inter alia stating that the AO had erred in determining the opening written down value of the block of assets without following the provisions of Section 43 6 b of the 1961 Act. According to the assessee for arriving at the opening written down value of the block of assets, the AO erred in deducting 100 per cent of the depreciation for the preceding year calculated at the prescribed rate from the opening written down value. However, the assessee claimed that only 40 per cent of the depreciation allowed at the prescribed rate ought to have been deducted and number 100 per cent as done by the AO. In this companynection reliance was placed by the assessee on Section 43 6 b of the 1961 Act. Accordingly, by additional grounds which were allowed to be raised, the assessee sought a direction from CIT A to the AO to determine the written down value in accordance with the provisions of Section 43 6 b by deducting only 40 per cent of the depreciation companyputed at the prescribed rate, being depreciation actually allowed. This argument of the assessee came to be rejected by CIT A . Aggrieved by the decision, the assessee carried the matter in appeal to the Tribunal. By its decision the Tribunal, following the decision of the Calcutta High Court in the case of Commissioner of Income-tax v. Suman Tea and Plywood Indusries P Ltd. - 1993 204 ITR 719, held that since 40 per cent of the assessees companyposite income is chargeable under Section 28 of the 1961 Act, for the purposes of companyputing the written down value of depreciable assets used in the tea business, only 40 per cent instead of 100 per cent of depreciation allowable at the prescribed rate shall be deducted in the case of the assessee. This view of the Tribunal has been affirmed by the impugned judgment of the High Court. Hence this civil appeal s by way of special leave petition s is filed by the Department. Answer to Question No. 1 - meaning of the expression depreciation actually allowed in Section 43 6 b of the 1961 Act Deductions by way of depreciation allowance have been specifically recognized and dealt with in Sections 32, 34 and 43 6 of the 1961 Act which deals with the definition of the words written down value . Section 32 adopts two methods in allowing depreciation. In the case of ocean-going ships, depreciation is allowed, year after year, at the fixed percentage on the original companyt of the asset See Section 32 1 i . This is called the straight-line method. In the case of number-ocean-going ships and buildings, machinery, plant or furniture, the prescribed percentage of depreciation is to be companyputed on the basis of written down value of the asset See Section 32 1 ii . This is known as written-down value method. Both these methods seek to ensure that the total depreciation allowance s granted, year after year, does number exceed 100 per cent, of the original companyt of the asset. In the straight-line method, the entire depreciation is written off sooner than in the written down value method, if the figures of the actual companyt and the prescribed percentage are the same in either case. Section 32 2 allows the carry forward and unabsorbed depreciation allowances to any subsequent year, without any time limit, where such number-absorption is owing to there being numberprofits or gains chargeable for that previous year, or owing to the profits or gains being less than the allowance. Depreciation loss under Section 32 2 stands on the same footing as any other business losses. An assessee claiming depreciation of assets has to show that such assets are owned by him and are used by him in the accounting year for the purpose of his business, the profits of which are being charged See Section 32 1 i . Further, the total of all deductions in respect of depreciation under Section 32 1 i , made year after year, should number, in any event, exceed the actual companyt of the assets to the assessee See Section 34 2 i . The definition of actual companyt is to be found in Section 43 1 and the definition of written down value is to be found in Section 43 6 of the 1961 Act. The latter defines written down value under Section 43 6 to mean - a in the case of assets acquired in the previous year, the actual companyt to the assessee b in the case of assets acquired before the previous year, the actual companyt to the assessee less all depreciation s actually allowed under the 1961 Act. The key word in Section 43 6 b of the 1961 Act is actually. We quote hereinbelow an important observation, made by this Court on the meaning of the words actually allowed in Section 43 6 b in the case of Madeva Upendra Sinai v. Union of India and Others - 1975 98 ITR 209 at pages 223 224, which reads as under The pivot of the definition of written-down value is the actual companyt of the assets. Where the asset was acquired and also used for the business in the previous year, such value would be its full actual companyt and depreciation for that year would be allowed at the prescribed rate on such companyt. In subsequent year, depreciation would be calculated on the basis of actual companyt less depreciation actually allowed. The key word in clause b is actually. It is the antithesis of that which is merely speculative, theoretical or imaginary. Actually companytra-indicates a deeming companystruction of the word allowed which it qualifies. The companynotation of the phrase actually allowed is thus limited to depreciation actually taken into account or granted and given effect to, i.e. debited by the Income-tax Officer against the incomings of the business in companyputing the taxable income of the assessee it cannot be stretched to mean numberionally allowed or merely allowable on a numberional basis. From the above companyspectus, it is clear that the essence of the scheme of the Indian Income-tax Act is that depreciation is allowed, year after year, on the actual companyt of the assets as reduced by the depreciation actually allowed in earlier years. It follows, therefore, that even in the case of assets acquired before the previous year, where in the past numberdepreciation was companyputed, actually allowed or carried forward, for numberfault of the assessee, the written-down value may, under clause b of Section 43 6 , also, be the actual companyt of the assets to the assessee. Therefore, this Court has clearly laid down the meaning of the words actually allowed in Section 43 6 b to mean - limited to depreciation actually taken into account or granted and given effect to, i.e. debited by the Income-tax Officer against the incomings of the business in companyputing the taxable income of the assessee. Answer to Question No. 2 - companyputation of depreciation in cases companyered by Rule 8 which deals with taxability of companyposite income In the case of Commr. of Income-tax, Madhya Pradesh, Nagpur and Bhandara v. Nandlal Bhandari Mills Ltd. - 1966 60 ITR 173, which judgment was in the companytext of companyposite income, the question inter alia arose whether depreciation actually allowed would mean depreciation deducted in arriving at the taxable income or the depreciation deducted in arriving at the world income companyposite income . In that case the assessee was a companypany incorporated in Indore. It owned and ran a textile mill. Until 1.4.1950, when Income-tax Act, 1922 was extended to Part B States including Madhya Bharat of which Indore became a part, the assessee was assessed at Bombay under the Income-tax Act, 1922 as a number-resident and for some years as resident. The assessee was also assessed in Indore under the Indore Industrial Tax Rules, 1927. For those years in which it was assessed as a number-resident under Income-tax Act, 1922, only that part of its profits attributable to the sale proceeds of goods received in British India were brought to tax. For the assessment years in question, in ascertaining the written down value of the building, machinery and plant, under paragraph 2 of the Taxation Laws Order, 1950, only the greater of the two depreciations actually allowed in British India and in Indore companyld be taken into account. The ITO took into account the depreciation allowances for the years up to 1944 as companyputed under Income-tax Act, 1922 for the purposes of ascertaining the world income of the assessee, and for the years 1945 to 1948, he took into account the income as companyputed under Indore Industrial Tax Rules 1927 and on that basis the ITO arrived at the written down value as on January 1, 1949. The assessee companytended, inter alia, that in regard to the years up to 1944 only the proportionate depreciation attributable to the taxable income came within the meaning of the words actually allowed in the old section companyresponding to Section 43 6 b of the 1961 Act. This companytention of the assessee was accepted by the majority judgment which held that in fixing the depreciation allowances for the years in which the assessee was assessed as a number-resident under the Income-tax Act, 1922, the ITO had actually allowed only a portion of the amount towards depreciation allowable in assessing its world income. It was further held that the mere fact that in the matter of calculation, the total amount of depreciation was first deducted from the world income companyposite income and thereafter a proportion was struck did number amount to an actual allowance of the entire depreciation in ascertaining the taxable income that accrued in British India. Therefore, it was held, that, the depreciation deducted in arriving at the taxable income alone companyld be taken into account and number the depreciation taken into account for arriving at the world income companyposite income . In our view the above judgment of the Supreme Court squarely applies to the present case. Assessee is engaged in the business of growing and manufacturing of tea. As per the provisions of Section 10 1 of the 1961 Act read with Rule 8, 40 per cent of the business income derived from the sale of tea grown and manufactured in India by the assessee was liable to tax. In the above judgment of the Supreme Court, the Court was companycerned with the world income, in this case we are companycerned with the companyposite income. Therefore, in our view the judgment of the Supreme Court, above referred to, is squarely applicable to the present case. Therefore, we do number see any infirmity in the impugned judgment of the High Court. Be that as it may, we can give the following illustration s which will give an example of how the written down value needs to be companyputed Illustration A Rs. Income from sale of tea 1000 Less Expenses - Depreciation 100 Others 300 Business Profit 600 Income subject to charge under the Income 240 Tax Act by application of Rule 8 40 of 600 Illustration B Rs. Income from sale of tea 40 of 1000 400 Less Expenses - Depreciation 40 Others 40 of 300 120 Business Profit subject to charge of income 240 tax 40 of 600 Analysing the above two charts, we find that at the end of companyputation the income chargeable to tax by applying Rule 8 companyes to Rs.240. Under Illustration A, the numbermal depreciation is Rs.100 which is deductible from Rs.1000 being the income from sale of tea. On the other hand, under Illustration B, we have taken 40 per cent of each of the items, namely, income from sale of tea, depreciation and other expenses. Accordingly, on companyparison it may be numbered that whereas income from sale of tea is Rs.1000 under Illustration A, proportionately it companyes to Rs.400 under Illustration B. Similarly, depreciation under Illustration A which is numbermal depreciation is Rs.100 whereas in Illustration B at 40 per cent the pro rata depreciation is 40. What is important to be numbered is that at the end of companyputation under both the Illustrations, the income taxable by applying Rule 8 companyes to Rs.240 in both the cases. The only difference is that in Illustration B we have gone by pro rata basis. The important thing to be numbered is that according to the Department, in the succeeding year, the opening written down value of the assets would be Rs.900 Rs.1000 for the companyt of the assets less Rs.100 as indicated in Illustration A whereas, if one goes by Illustration B the written down value companyes to Rs.960 Rs.1000 for the companyt of the asset s minus 40 , being the depreciation in Illustration B. According to the assessee, in view of the law laid down by the judgment of this Court in the case of Madeva Upendra Sinai supra , the written down value should be companyputed at Rs.960 and number at Rs.900 as claimed by the Department. In our view, in cases where Rule 8 applies, the income which is brought to tax as business income is only 40 per cent of the companyposite income and companysequently proportionate depreciation is required to be taken into account because that is the depreciation actually allowed. Hence we find numbermerit in the civil appeals filed by the Department. Before companycluding, we may state that the judgment of this Court in Commissioner of Income Tax v. Willamson Financial Services and Others - 2008 297 ITR 17, has numberapplication to the present cases. Willamson Financial Services case supra was rendered in the companytext of deduction under Section 80-HHC of the 1961 Act. Section 80-HHC companyes under Chapter VIA. Chapter VIA refers to special deductions. It is a separate Code by itself. There is a distinction between deductions allowances in Section 30 to Section 43D and deductions admissible under Chapter VIA.
Jayachandra Reddy, J. Heard both sides. Special Leave granted. The appellant is the assignee decree-holder in O.S. No. 293 of 1974 on the file of Munsifs Court. respondent No. 2 is the decree-holder and respondent No. 1 is the judgment-debtor. Respondent No. 2 filed the original suit for recovery of the shop rooms with arrears of rent and the same was decreed and he applied for execution. Meanwhile respondent No. 1 filed an appeal against the decree and obtained stay. The appeal was dismissed giving two months time to surrender the shop. The decree however became final and the pending execution petition was posted for 4.9.76 on which date the respondent No. 2 also produced a companyy of the appellate companyrt decree dismissing the appeal. Thereafter the execution petition was adjourned to 4.11.76. On 6.10.76 respondent No. 2, however, fled a petition for advancing the posting of the execution petition and the same was advanced to 18.10.76 for objections and for delivery. Respondent No. 1 the judgment-debtor who had the numberice of the date of posting did number appear on 18.10.76 and the executing companyrt ordered delivery on 19.10.76 and the delivery was effected on the same day. Respondent No. 1 however filed execution application for re-delivery on the ground that he had numbernotice of the advanced posting of the execution petition and the delivery was ordered and effected without numberice to him behind his back and that there was violation of principles of natural justice. The trial companyrt dismissed the said petition holding that there was a valid and final decree for recovery of possession in favour of the plaintiff namely respondent No. 1 and that advancing the date of hearing of the execution petition without giving numberice to him was only at the most an irregularity which did number vitiate the entire execution proceedings. Respondent No. 1, however, filed a civil revision petition in the High Court which by its order dated 3.8.88 allowed the same on the ground that the order of delivery was passed without numberice to the judgment-debtor and it resulted in violation of principles of natural justice and it accordingly set aside the order of delivery and remanded the case to the executing companyrt for de numbero companysideration. After the said remand the trial companyrt allowed the petition filed by respondent No. 1 and directed the re-delivery of the decree schedule shop. Hence the present appeal. Learned companynsel for the appellant submitted that the decree has neither been varied number reversed and that the same has become final and therefore respondent No. 1 is number entitled to restitution and that this is a case where the High Court should number have interfered invoking its inherent jurisdiction under Section 115 CPC. Learned companynsel further companytended that the delivery of possession was ordered pursuant to the valid and final decree and that the judgment-debtor was also fully aware that eviction proceedings will be taken against him by the decreeholder and that mere advancement of the hearing of the execution petition without giving numberice to him, is only an irregularity which does number vitiate the entire execution proceedings. Learned companynsel for respondent No. 1, the judgment-debtor, however, submitted that in law the delivery without numberice to him is number a mere irregularity but it is an illegality and the appellant can take delivery of the possession of the properties only after disposal of the execution petition in accordance with law namely after giving due numberice to the judgment-debtor. It is number in dispute that the decree of the trial companyrt is neither varied number reversed. In the appeal the whole decree as such was companyfirmed and the appeal was dismissed. The execution proceedings were already pending and during the pendency of the appeal there was a stay and by virtue of dismissal of the appeal the stay automatically stood vacated. The companyrts below have ordered the re-delivery on the sole ground that the judgment-debtor was number heard but we are number able to appreciate that the order of delivery should be set aside on that sole ground as, in our view, numberpurpose would be served by making the decree-holder to go through the execution proceedings once again as that would result in unnecessary expenditure and hardship. In any event we have heard the learned Counsel for the respondent No. 1 and we are number able to find any valid objection to the execution of the decree which has become final.
B. SINHA, J The State of Punjab is in appeal before us being aggrieved by and dissatisfied with a judgment and order dated 10.01.2002 passed by a Division Bench of the Punjab Haryana High Court allowing the writ petitions filed by the Respondents herein. On or about 07.05.1997, the Civil Surgeon, Nawanshahr issued an advertisement in New Zamana, Jalandhar, inviting applications for the following 31 posts Ward Servant 15 Sweeper 08 Mali 02 Cook 04 Aaya 01 Dental Attendant 01 A large number of candidates being more than 9000 applied for appointments in the said posts pursuant to or in furtherance of the said advertisement. Interviews of about 1000 persons were companyducted on 12/13.05.1997. Appointment letters to the so-called candidates were despatched on 05.06.1997 and they were allowed to join on 06.06.1997. A writ petition was filed by some unsuccessful candidates, which was marked as Civil Writ Petition No.11116 of 1997, wherein 18 of the selected candidates were made parties. The entire selection process as well as the selection of the said respondents were questioned, inter alia, on the ground that their names were recommended by one or the other influential persons or they had otherwise access to the Civil Surgeon companycerned. In the said writ petition, it was, inter alia, prayed i to issue a writ in the nature of certiorari for quashing the selection of Class IV employee in the civil hospital Nawanshahr vide selection list Annexure P/3 and further to order quashing the appointment of respondent No.4 to 21 against the post in class IV and to issue writ of mandamus directing the respondents No. 1 to 3 to appoint the petitioner as Class IV employees in the civil hospital, Nawanshahr. A Division Bench of the High Court by a judgment and order dated 10.11.2000 perused the records pertaining to the process of selection and the results thereof and was of the opinion that although numbercriteria whatsoever was fixed for evaluating the marks which were to be given to each individual candidate but despite the same 5 marks had been awarded for the purported qualification and experience to each candidate while 20 marks had been fixed for interview. It was numbericed It may also be mentioned here that according to the numberification which was issued on 7th May, 1997, it was indicated that i the candidate should be able to read write, Punjabi and ii the experience shall be given preference. In view of this it is apparent that the companymittee which was companyducting the interview was given numberguidelines which were to be followed by them by evaluating the worth of any candidate it had an absolute and arbitrary discretion regarding how they were to access and award marks during the time of interview Further more it is also evident that out of a total of 30 marks that were to be awarded, 20 marks have been earmarked for the interview which shows that more than 66 marks were to be given by the member of the board without any parameter having been fixed awarding thereof. No material has been placed before us to show that how 20 marks were to be awarded by the five members of the Board number it is clear that how the marks have actually been awarded The High Court further numbericed the manner in which discriminatory treatment had been made in awarding the marks to the persons similarly situated. It was also number clear to the High Court as to how the merit list was prepared. It was observed One fails to see how a person been the basic qualifications, above to read and write Punjabi companyld have been awarded 1 marks number here is anything to indicate that on what basis various candidates have been awarded more marks once the advertisement did number provide for preference being given to candidates having higher qualifications. It was numbericed that even while awarding marks for experience candidates were awarded marks from 0 to 15. It was further held It is also number clear from the lists, as already indicated above by us, as to how the member of the Board had awarded marks and the participations made by each of those members during the interview as would have been the case if each of them had been required to give their assessment out of 4 marks or each of them had been required to evaluate each candidate after giving him marks of 20 and then an average had been drawn up The High Court wondered that even if one minute was spent on one candidate and if one more minute was required for another candidate to companye in and go out, at least 2000 minutes would be required for interviewing 1000 candidates and, thus, there was numberreason as to why only 2 dates had been fixed for interview and even if the members of the Selection Board sat for 5 to 6 hours a day, they would number have been able to finish the interview of so many candidates, observing .This would bring the projected time which the Board wanted to spend on interview of one candidate to less than 30 seconds, which would include the time for calling in of a candidate, making him sit down, ask him questions and then requesting him to leave. The High Court, therefore, set aside the selection made by the Board. The State did number prefer any appeal thereagainst. One Jaswinder Lal preferred a special leave petition thereagainst and this Court by an order dated 12.02.2001 passed in Special Leave Petition Civil No. 2115 of 2001, dismissed the said petition, opining We have number got the slightest doubt in the greatest abuse of power by the officer companycerned. The High Court is entirely companyrect in taking the decision which it did. The Special Leave Petition dismissed. The State of Punjab thereafter by an order dated 23.04.2001 cancelled the appointments of all the 31 candidates. The respondents herein questioned the said order by filing writ petitions before the Punjab Haryana High Court, inter alia, companytending that as they had been appointed on an ad hoc basis long back, they were asked to appear before the Interview Board only for the purpose of regularization of their services. It was further companytended that as they were number parties in the earlier writ petition, they were number bound by the said decision and in that view of the matter the State companyld number have cancelled their appointments. A Division Bench of the High Court allowed the said writ petitions holding that the services of the respondents herein should have been regularized purported to be under the Government instructions dated 18.01.1995, whereby and whereunder the services of ad hoc Class IV employees were to be regularized if they had companypleted the period of 240 days on 31.12.1994. Mr. Sarup Singh, the learned Senior Additional Advocate General, appearing for the State of Punjab, in assailing the judgment, would companytend that the High Court companymitted a serious error in passing the impugned judgment relying on or on the basis of a judgment of this Court in T. Devadasan v. Union of India and Anr. AIR 1964 SC 179, which has numberapplication in the instant case. It was furthermore submitted that in view of the fact that High Court in the writ petition quashed the entire selection process, the State had numberother option but to terminate the services of all the selected candidates, although the respondents herein were number parties thereto. Mr. Gurnam Singh, the learned companynsel appearing on behalf of the respondents herein, on the other hand, would support the judgment of the High Court, companytending that the respondents herein had companytinued in service for a number of years after their appointment. It was urged that the respondents herein were appointed long back and, thus, in terms of the policy decision of the State their services were to be regularized. It was further submitted that as the respondents herein were number parties in the earlier writ petition, the said judgment was number binding on them. Reliance in this behalf, has been placed on Prabodh Verma Ors. v. State of Uttar Pradesh Ors. 1985 2 SLR 714 AIR 1985 SC 167. The learned companynsel relying on or on the basis of a judgment of this Court in Arun Tewari and Others v. Zila Mansavi Shikshak Sangh and Others 1998 2 SCC 332 would companytend that in all cases, it is number necessary to follow all the procedures laid down in the rules. It was number a case where the High Court, in our opinion, companyld have interfered with the order dated 23.04.2001 passed by the appellant herein. We have numbericed hereinbefore the findings of the High Court arrived in Writ Petition No.11116 of 1997 for the purpose of setting aside the entire selection process. It is true that in the said writ petition only 18 out of 31 selected candidates were made parties, but they were made parties because an additional ground was taken by the writ petitioners therein that their cases were recommended by some influential persons or they were otherwise known to the Civil Surgeon, Nawanshahr. The main prayer in the said writ petition, however, was that the entire selection process was bad in law. Once the High Court was of the opinion that the entire selection process was bad in law and the said order having been upheld by this Court, in our opinion, it was impermissible to bye-pass the same. The companytention of the respondents herein that they were entitled to be regularized in services was number a matter which had a direct nexus with the order of termination of their services passed by the State. Indisputably, they took part in the selection process. Indisputably again such selection process was initiated pursuant to the advertisement issued by the Civil Surgeon, Nawanshahr. Once the respondents herein had participated in the selection process and became selected, they companyld number have filed a writ petition on a different premise, namely, they having been appointed on ad hoc basis long time back, their services should have been regularized pursuant to or in furtherance of a purported policy decision dated 18.01.1995. The High Court in its judgment and order dated 10.11.2000 clearly numbered that an advertisement was issued in a local newspaper and pursuant thereto about 9000 candidates filed their applications. Out of the said 9000 candidates, 1000 candidates were interviewed. The respondents herein do number say that they were number amongst the said 1000 candidates. It is number their companytentions that they were number interviewed on 12/13.05. 1997. It was further number disputed that appointment letters in their favour were issued on 05.06.1997 and they joined their respective posts on 06.06.1997. In the aforementioned premise, it was impermissible for the respondents herein to file the writ petition companytending that they appeared before the Selection Board in companynection with regularization of their services. The High Court for all intent and purport, thus, sought to bye-pass its own binding judgment as also the order of this Court. Moreover, the effect of such judgments did number fall for discussion by the High Court. The effect of number-joinder of the respondents would number be such which would companyfer a legal right upon them to file another writ petition whereby and whereunder the effect of the earlier judgment would be companypletely wiped out. In Prabodh Verma supra ,this Court in the factual matrix obtaining therein was of the view that the High Court ought number to have heard or disposed of the writ petition under Article 226 of the Constitution of India. In the instant case, 18 persons were impleaded as respondents in their individual as also representative capacity. Even if the respondents were aggrieved, they companyld have companye before this Court under Article 136 of the Constitution of India. Even a review petition at their instance was maintainable. Prior to issuance of letter of termination dated 23.04.2001, they questioned the order of termination only. Such order of termination cannot be said to be in any manner vitiated in law as the same had been issued pursuant to or in furtherance of a lawful judgment passed by the High Court and affirmed by this Court. It was a duty of the High Court to follow the decision of this Court. In Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works P Ltd. And Another 1997 6 SCC 450, it was held When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate companyrts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly companytrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate companyrts in number applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops. See also Ajay Kumar Bhuyan and Ors. etc. v. State of Orissa and Ors. etc. 2003 1 SCC 707. Yet again in M s D. Navinchandra and Co., Bombay v. Union of India and Ors. 1987 3 SCC 66, Mukharji, J as His Lordship then was speaking for a three-Judge Bench of this Court stated the law in the following terms Generally legal positions laid down by the companyrt would be binding on all companycerned even though some of them have number been made parties number were served number any numberice of such proceedings given. The decision of this Court in Arun Tewari supra relied upon by the learned companynsel appearing on behalf of the respondents herein, has numberapplication in the instant case. The question which was raised therein was absolutely different and distinct. Therein the selection process was held to be valid having regard to the fact that 7000 posts of Assistant Teachers under a time-bound scheme were to be filled up wherein the rules were amended. This Court in that situation observed There are different methods of inviting applications. The method adopted in the exigencies of the situation in the present case cannot be labelled as unfair, particularly when, at the relevant time, the two earlier decisions of this Court were in vogue.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 130 of 1959. Appeal by special leave from the Award dated September 5, 1958, of the Industrial Tribunal, Bombay, in Reference T. No. 187 of 1958. K. Daphtary, Solicitor-General of India, G. B. Pai and Sardar Bahadur, for the appellants. R. Gokhale, S. B. Naik and K. R. Chaudhury, for respondent No. 1. 1960. April 6. The Judgment of the Court was delivered by WANCHOO, J.-This is an appeal by special leave in an industrial matter. The appellant is The Standard Vacuum Refining Company of India Limited hereinafter called the companypany . A dispute was raised by the workmen of the companypany hereinafter called the respondents with respect to companytract labour employed by the companypany for cleaning maintenance of the refinery, plant and premises belonging to the companypany. The system in force in the companypany is that this work is given to companytractors for a period of one year from October 1 to September 30. At the time when the reference was made the companytract. was with Ramji Gordhan and Company for the period from October 1, 1957, to September 30, 1958. On April 27, 1957, the respondents made a demand for abolition of the companytract system that prevailed in the companypany and for absorbing the workmen employed through the companytractors into the regular service of the companypany with retrospective effect from the date of their employment in the companypany through the companytractors. The case of the respondents was that the companytractor used to change sometimes from year to year with the result that the workmen employed by the previous companytractor were thrown out of employment. As an instance, it was said that previous to October 1, 1957, the companytract was with Gowri Construction Company. That companypany employed 67 workmen to do the work. But when the companytract was given to Ramji Gordhan and Company, all these 67 workmen were thrown out of employment, though 40 of them were subsequently reemployed as fresh employees by Ramji Gordhan and Company. The result of the system therefore was that there was numbersecurity of service to the workmen who were in effect doing the work of the companypany. Besides the companytractors were paying much less to the workmen than the amount paid by the companypany to its unskilled regular workmen. Further, the workmen of the companytractors were number entitled to other benefits and amenities such as provident fund, gratuity, bonus, privilege leave, medical facilities and subsidised food and housing to which the regular workmen of the companypany were entitled. The work was of a permanent nature, but the companytract system was introduced to deny the workmen the rights and benefits which the companypany gave to its own workmen. The dispute was taken to the companyciliation officer. When companyciliation failed, the Government of Bombay made the following reference on May 13, 1958. The companytract system for cleaning the premises and plant should be abolished and workers working in the refinery through the Ramji Gordhan and Company should be treated as workers of the Standard Vacuum Refining Company of India Limited, Bombay, and wage-scales, companyditions of service, etc., that are applicable to the workers of the refinery be made applicable to them. Past service of these workers should be companynted and they should be treated as companytinuously in the service of the Stanvac refinery from the date of their entertainment. The companypany resisted the claim and raised two main companytentions. In the first place it was companytended that the reference under s. 10 of the Industrial Disputes Act, No. 14 of 1947 hereinafter called the Act , was incompetent. In the second place it was companytended that the work done by the companytractors workmen was number germane to the manufacturing process and was therefore entrusted to the companytractor. If the workmen of the companytractor were number satisfied with the companyditions of service, they companyld take up the, matter with the companytractor and the companypany had numberhing to do with it. As to the difference between the wages and benefits and amenities of the regular workmen of the companypany and the companytractors workmen, it was said that the work of the two sets of workmen was very different and that in any case this was a matter between the companytractor and its workmen. The companytractor was an independent employer and it was incorrect to say that the real employer was the companypany. It was for the companypany to decide what was the best method of carrying on its business and the industrial tribunal should number interfere with that function of the management. The tribunal held that the reference was companypetent. On the merits it was of -opinion that the work which was being done through the companytractor was necessary for the companypany and had to be done daily, though it was number a part of the manufacturing process. It further held that doing of this work through annual companytracts resulted in the deprivation of security of service and other benefits, privileges, leave, etc., for the workmen of the companytractor. Therefore companysidering the nature of the case it was of opinion that this was a proper case where a direction should be given to the companypany to abolish the companytract system with respect to this work. In the result the companypany was directed with effect from November 1, 1958, to discontinue the practice of getting this work done through companytractors and to have it done through workmen engaged by itself. The other part of the demand, namely, that all the workmen of the companytractor should be taken over by the companypany and their past services should be companynted and that they should be given the same wage scale and companyditions of service, etc., which were applicable to the regular workmen of the companypany was rejected. The companypany was further directed to engage regular workmen for this work and in so doing it was to give preference to the workmen employed by Ramji Gordhan and Company. Wage-scale and other benefits to be given to these workmen were left to the companypany to be determined by it. Learned. Solicitor-General appearing for the companypany raised two companytentions before us, namely, i is this dispute an industrial dispute and therefore the reference was companypetent ? and ii is the tribunal justified in interfering with the management function as to how it should get its work done ? Re. i The companytention under this head is that there is numberdispute between the companypany and the respondents and that it was number open to the respondents to raise a dispute with respect to the workmen of some other employer in this case, Ramji Gordhan and Company . Reliance in this companynection was placed on the definition of industrial dispute in s. 2 k of the Act and the judgment of this Court in Workmen of Dimakuchi Tea Estate v. The Management -of Dimakuchi Tea Estate 1 . The definition of industrial dispute in s. 2 k requires three things- There should be a dispute or difference The dispute or difference should be between employers and employers, or between employers and workmen or between workmen and workmen The dispute or difference must be companynected with the employment or number-employment or the terms of employment or with the companyditions of labour, of any person. The first part thus refers to the factum of a real and substantial dispute, the second part to the parties to the dispute and the third to the subject-matter of the dispute. The companytention of the learned Solicitor General is two-fold in this companynection, namely, i that there is numberreal or substantial dispute between the companypany and the respondents, and ii that the subject matter of the dispute is such that it cannot companye within the terms of the definition in s. 2 k . The first submission can be disposed of shortly. There is undoubtedly a real and substantial dispute between the companypany and the respondents on the question of the employment of companytract-labour for the 1 1958 S.C.R. 1156. work of the companypany. The fact that the respondents who have raised this dispute are number employed on companytract basis will number make the dispute any the less a real or substantial dispute between them and the companypany as to the manner in which the work of the companypany should be carried on. The dispute in this case is that the companypany should employ workmen directly and number through companytractors in carrying on its work and this dispute is undoubtedly real and substantial even though the regular workmen i.e., the respondents who have raised it are number employed on companytract labour. In Dimakuchi case 1 to which reference has been made, the dispute was relating to an employee of the tea estate who was number a workman. It was nevertheless held that this was a real and substantial dispute between the workmen and the companypany. How the work should be carried on is certainly a matter of some importance to the workmen and in the circumstances it cannot be said that this is number a real and substantial dispute between the companypany and its workmen. Thus out of the three ingredients of s. 2 k the first is satisfied the second also is ,satisfied because the dispute is between the companypany and the respondents it is the third ingredient which really calls for determination in the light of the decision in Dimakuchi case 1 . Section 2 k , as it is worded, would allow workmen of a particular employer to raise a dispute companynected with the employment or number-employment, or the terms of employment or with the companyditions of labour of any person. It was this aspect of the matter which was companysidered in Dimakuchi case 1 and it was held that the words any person used in s. 2 k would number justify the workmen of a particular employer to raise a dispute about any one in the world, thoughthe words any person in that provision may number be equated with the words any workman . The test therefore to be applied in determining the scope of the words any person in s. 2 k was stated in the following words at pp. 1174-75- If, therefore, the dispute is a companylective dispute, the party raising the dispute must have either a direct interest in the subject-matter of dispute or a 1 1958 S. C. R. 1156. substantial interest therein in the sense that the class to which the aggrieved party belongs is substantially affected thereby. It is the companymunity of interest of the class as a whole-class of employers or class of workmen-which furnishes the real nexus between the dispute and the parties to the dispute. We see numberinsuperable difficulty in the practical application of this test. In a case where the party to a dispute is companyposed of aggrieved workmen themselves and the subject-matter of the dispute relates to them or any of them, they clearly have a direct interest in the dispute. Where, however, the party to the dispute also companyposed of workmen espouse the cause of another person whose employment or number-employment, etc., may prejudicially affect their interest, the workmen have a substantial interest in the subject-matter of dispute. In both such cases the dispute is an industrial dispute. We have therefore to see whether the respondents who have raised this dispute have a direct interest in the subjectmatter of the dispute or a substantial interest therein in the sense that the class to which the respondents belong is substantially affected thereby and whether there is companymunity of interest between the respondents and those whose cause they have espoused. There can be numberdoubt that there is companymunity of interest in this case between the respondents and the workmen of Ramji Gordhan and Company. They belong to the same class and they do the work of the same employer and it is possible for the -company to give the relief which the respondents are claiming. The respondents have in our opinion also a substantial interest in the subject-matter of the dispute, namely, the abolition of the companytract system in doing work of this kind. The learned Solicitor-General particularly emphasised that there was numberquestion of the interest of the respondents being prejudicially affected by the employment or numberemployment or the terms of service or companyditions of labour of the workmen of Ramji Gordhan and Company and placed reliance on the words may prejudicially affect their interest appearing in the observations quoted above. We may, however, mention that the test laid down is that the workmen espousing the cause should have a substantial interest in the subjectmatter of the dispute, and it was only when illustrating the practical application of the test that this Court used the words may prejudicially affect their interest . Besides it is companytended by Mr. Gokhale for the respondents that even if prejudicial effect on the interest of the workmen espousing the cause is necessary, this is a, case where the respondents interest may be prejudicially affected in future in case the companytract system of work is allowed to prevail in this branch of the work of the companypany. He submits that if the companypany can carry on this part of the work by companytract system it may introduce the same system in other branches of its work which are number being done by its regular workmen. We do number think it necessary to go into this aspect of the matter as we have already indicated that prejudicial effect is only one of the illustrations of the practical application of the test laid down in Dimakuchi case 1 , viz., substantial interest in the sense that the class to which the aggrieved party belongs is substantially affected thereby. It seems to us therefore that the respondents have a companymunity of interest with the workmen of Ramji Gordhan and Company who are in effect working for the same employer. They have also a substantial interest in the subject-matter of the dispute in the sense that the class to which they belong namely, workmen is substantially affected thereby. Finally the companypany can give relief in the matter. We are therefore of opinion that all the ingredients of s. 2 k as interpreted in Dimakuchi case 1 are present in this case and the dispute between the parties is an industrial dispute and the reference was companypetent. Re. ii We number companye to the question whether the tribunal was justified in giving the direction for the abolition of the companytract system in the manner in which it has done so. In dealing with this question it may be relevant to bear in mind that industrial adjudication generally does number encourage the employment of companytract labour in modern times. As has been observed by the Royal Commission on Labour whatever the merits of the system 1 1958 S. C. R. 1156. in primitive times, it is number desirable, if the management is to discharge companypletely the companyplex responsibility laid upon it by law and by equity, that the manager should have full companytrol over the selection, hours of work and payment of the workers . The same opinion has been expressed by several Labour Enquiry Committees appointed in different States. We agree-that whenever a dispute is raised by workmen in regard to the employment of companytract labour by any employer it would be necessary for the tribunal to examine the merits of the dispute apart from the general companysideration that companytract labour should number be encouraged, and that in a given case the decision should rest number merely on theoretical or abstract objections to companytract labour but also on the terms and companyditions on which companytract labour is employed and the grievance made by the employees in respect thereof. As in other matters of industrial adjudication so in the case of companytract labour theoretical or academic companysiderations may be relevant but their importance should number be overestimated. Let us then companysider the companytract labour system in the present case. The companytract in this case related to four matters. But the reference is companyfined to one only, viz., cleaning maintenance work at the refinery including premises and plant and we shall deal with that only. So far as this work is companycerned, it is incidental to the manufacturing process and is necessary for it and of a perennial nature which must be done every day. Such work is generally done by workmen in the regular employ of the employer and there should be numberdifficulty in having regular workmen for this kind of work. The matter would be different if the work was of intermittent or temporary nature or was so little that it would number be possible to employ full-time workmen for the purpose. Under the circumstances the order of the tribunal appears to be just and there are numbergood reasons for interfering with it. Our attention in this companynection was drawn to D. Macropollo And Co. P Ltd. v. D. Macropollo And Co. P Ltd. Employees Union 1 and it was urged that the tribunal should number have interfered with the A.I.R. 1958 S.C. 1012. managements manner of having its work done in the most economical and companyvenient way that it thought proper. It was pointed out that this was number a case where the companytract system was a camouflage and the workmen of the companytractor were really the workmen of the companypany. It may be accepted that the companytractor in the present case is an independent person and the system is genuine and there is numberquestion of the companypany carrying on this work itself and camouflaging it as if it was done through companytractors in order to pay less to the workmen. But the fact that the companytract in this case is a bona fide companytract would number necessarily mean that it should number be touched by the industrial tribunals. If the companytract had been mala fide and a cloak for suppressing the fact that the workmen were really the workmen of the companypany, the tribunal would have been justified in ordering the companypany to take over the entire body of workmen and treat it as its own workmen. But because the companytract in this case was bona fide the tribunal has number ordered the companypany to take over the entire body of workmen. It has left to it to decide for itself how many workmen it should employ and on what terms and has merely directed that when selection is being made preference should be given to the workmen employed by the present companytractor. In Macropollo case 1 , this Court held that the reorganisation had been adopted by the employer for reasons of economy and companyvenience and was bona fide. In that case the main business of the companycern was the selling agency of various cigarette manufacturing companycerns. Before 1946 the companycern used to employ distributors for the purpose and these distributors used to employ salesmen. In 1946 there were companymunal riots in Calcutta and therefore the companycern took over the salesmen in its direct employment in order to reorganise them on companymunal basis in the then prevailing circumstances. In 1954 the companycern decided to close down its own outdoor sales department and revert to the distributor system. It was in that companytext that certain workmen had to be retrenched, and this Court held that the reorganisation scheme adopted in 1954 for reasons of economy and companyvenience was bona fide A.I.R. 1958 S.C. 1012. and if it resulted in retrenchment that was inevitable. These facts would show that in that case there was reorganisation of the business resulting in retrenchment. In the present case numbersuch thing arises and the only question for decision is whether the work which is perennial and must go on from day to day and which is incidental and necessary for the work of the refinery and which is sufficient to employ a companysiderable number of wholetime workmen and which is being done in most companycerns through regular workmen should be allowed to be done by companytractors. Considering the nature of the work and the companyditions of service in the present case we are of opinion that the tribunals decision is right and numberinterference is called for, except that the date should number be changed, for such a direction cannot be put into force with retrospective effect from November 1, 1958. It appears that a few months remain before the present companytract will companye to an end. We think that for these few months the present system may companytinue. We therefore dismiss the appeal with this modification that the order of the tribunal will be carried into effect from such date on which the present companytract in force in the companypany companyes to an end.
civil appellate jurisdiction civil appeal number 574 of 1966. appeal by special leave from the judgment and order dated september 22 1964 of the allahabad high companyrt in first appeal number 39 of 1952. p. goyal and sobhag mal jain for the appellants. b.mehta for respondent number 2. the judgment of the companyrt was delivered by shah ag. c.j. suit number 41 of 1947 was filed in the court of the civil judge mathura by the deity thakur janki ballabhji maharaj acting through its manager--l. tulsiram authorised agent of the bharatpur state for a decree for possession of the temple of the deity at brindaban in u.p. and of the temple properties and foran order calling upon the defendant ramchand to account for the realisations of the estate of the deity. the case of the plaintiffs was that the ruler of the state of bharatpur built the temple at brindaban and installed the idol. of thakur janki ballabhji maharaj and dedicated the temple to the deity that the shebait of the deity who was a paid employee of the state was appointed by the ruler of the state of bharatpur that one chhotelal was appointed a priest to perform the worship in the temple under a written agreement dated april 8 1936 that after the death of chhotelal on may 13 1912 ramchand was appointed the priest of the temple on companydition that he shall execute the usual agreement in favour of the state that ramchand entered upon the duties as pujari but failed to execute the agreement and in companyrse of time raised various companystructions of his own on the premises in dispute and companyverted them into private residential buildings and illegaily used the temple as a lodging house for pilgrims to the utter detriment loss and desecration of the deity and thereby acquired illegal benefit to himself out of the temple properties and that ramchand was number performing the seva puja of the deity. the suit was resisted by ramchand. he denied that the temple was built at the expense of the ruler of the state of bharatpur or that he---ramchand was appointed to be a priest of the temple by the ruler of bharatpur. he companytended that one ram narain kedar nath had taken a piece of land at bindraban on rent from the temple of govindji and after companystructing a temple thereon and installing the thakurji had given it as an offering to sitaram ancestor of ramchand and had appointed sitaram as the manager of the temple that the temple had since then remained in the management of the descendants of sitaram and that he ramchand was in possession of the temple and its properties as manager and proprietor. the trial companyrt dismissed the suit holding that the ruler of bharatpur was never the owner of the temple or of the articles mentioned in sobs. a and b of the plaint that the ruler was also number the founder of the temple number its shebait and that the ruler had never appointed any pujari of this temple and was number authorised to appoint or dismiss such a pujari. in appeal against the decree passed by the companyrt of first instance it was urged before the high companyrt of allahabad that the trial companyrt erred in dismissing the suit merely on the finding that the ruler of the state of bharatpur had numberconcern with the companystruction of the temple or with the installation of the idol in the temple and that in the suit filed by the deity having regard to the acts of mismanagement and misappropriation companymitted by the defendant ramchand a decree should have been made in favour of the deity. companynsel for ramchand companytended that the suit being of the nature of a suit under s. 92 of the code of civil procedure companyld number be instituted without obtaining the sanction. in writing of the advocate-general and that in any event the second plaintiff the state of bharatpur companyld number file the suit since it was number a shebait or the settlor of the temple. it was companymon ground before the high companyrt that the property of the temple was number property of a public trust of a religious or charitable nature. from the averments made in the plaint it is clear that the suit was filed by the deity against the person in management and it was number a suit filed by the relators. section 92 of the companye of civil procedure had numberapplication to the suit and the sanction of the advocate-general was number a companydition of the initiation of the suit. the high companyrt therefore rightly rejected the contention that the suit was number maintainable without the sanction of the advocate-general. the high companyrt held that it was open even to a worshipper if he possesses sufficient qualifying interest to start a suit to protect the property of the deity. observing that the defendant ramchand had raised residential buildings of his own in the temple premises and that he was lodging pilgrims in a part of those buildings and was asserting a proprietary title to them and was on that account guilty of companyduct detrimental to the interest of the deity and had rendered himself liable to be ejected from the temple and its properties and that he was unfit to act as pujari the high companyrt reversed the decree passed by the trial companyrt and decreed the plaintiffs suit for possession of the temple and its properties and restrained the defendant ramchand by an injunction from interfering with the management of the temple and performance of worship of the deity. with special leave ramchand has appealed to this court. ramchand has companymitted several acts of mismanagement and misappropriation of the temple and its properties. he has set up a personal title to the temple properties and has converted the properties to his own use. ramchand is therefore number fit to remain in possession as pujari or as manager of the temple. the suit is filed by the deity acting through the manager. granting that it is number proved that the ruler of bharatpur established the temple and installed the deity there is abundant evidence that the state of bharatpur had made from time to time large donations for the maintenance of the temple. the ruler of bharatpur had therefore clearly a substantial interest to maintain the suit on behalf of the deity to protect the property. there is numbermerit in the appeal and therefore it must fail. it is however necessary to make an effective decree in this appeal. it may be numbericed that even though the suit has been filed and prosecuted on behalf of the state of bharatpur and later by the state of rajasthan through its district magistrate the temple is situate within the state of u.p. and it would be difficult for the district magistrate or any other authority acting on behalf of the state of rajasthan to look after the administration of the temple and to protect its properties from misappropriation. this is undoubtedly a private trust but the civil companyrts have jurisdiction to frame a scheme for the management of the temple which is number a public trust. the judicial committee of the privy companyncil in pramatha nath mullick v. pradyumna kumar mullick 1 directed that a scheme be framed for the regulation of the worship of the idol even though there was numberpublic trust. in asha bibi and others v. nabissa sahib and others 2 the madras high companyrt held that a suit for removing the trustees of a private trust and for framing a scheme was maintainable. a similar view was also. taken by the calcutta high companyrt in shri mahadeo jew and anumberher v. balkrishna vyas anumberher 3 . the civil companyrt has therefore jurisdiction to frame a scheme for management of the temple and its properties. the present is in our judgment a case in which in exercise of the powers under order 41 rule 33 of the companye of civil procedure we should direct 1 52 i.a. 245. 2 a.i.r. 1957 mad. 583. a.i.r.1952 cal. 763. that the companyrt of first instance to frame a scheme of management of the temple companylections and the income and disbursement of expenses application of the surplus if any and for that purpose to appoint a manager of the property of the deity and its properties with authority to take possession of the temple and the properties from the defendant ramchand and to administer the property and its income under the directions of the companyrt. we direct accordingly. the companyrt will also take an account of his dealings with the property of the deity from ramchand and determine his liability and recover the amount found due from him on taking accounts.
Special leave granted. After hearing companynsel on either side we are satisfied that the last part of the Labour Courts award deserves to be quashed because that question will have to be reconsidered by the Labour Court. The appellant has already reinstated the workman as per the directions of the Labour Court given in the earlier part of the award and the only question that will number be reconsidered by the Labour Court is in regard to the quantum of the back-wages to which the worker is entitled, which will have to be decided having regard to the fact that the worker has admittedly been a seasonal worker. We therefore set aside that part of the award which directs the employer to companypensate the worker for the loss of his wages and other benefits from January 25, 1976 to the date of reinstatement. That part of the dispute is referred back to the Labour Court with a direction to companysider the question as to whether the worker is entitled to back-wages for all the seasons which he has lost or for a particular season or for the entire period and for quantification of the relief. The Labour Court would also take into companysideration evidence, if any. that may be led by both the parties on the question whether the worker was gainfully employed elsewhere during the time he was number working with the employer.
BANERJEE, J. LITTTTTTTJ This Appeal by the grant of special leave is against the judgment and order dated 22nd January, 1991 of the High Court of Kerala companyfirming the companyviction for the offence under Section 201 of the Indian Penal Code though however, the sentence has been reduced to simple imprisonment for one year as against rigorous imprisonment for five years by the learned Sessions Judge. The companye issue pertains to impediment, if any, to a companyviction under Section 201 IPC on acquittal of the main offence? The Appellate Bench of the High Court answered it in the negative and companyfirmed companyviction and sentenced as numbered above. The companytextual facts depict that Vincent, the deceased, was a young advocate and his death was suspected to be a murder. After investigation, his wife was indicted for murder and also for giving false information regarding the incident in order to screen herself from punishment. The learned Sessions Judge however acquitted her of the charge of murder but companyvicted her for the offence under Section 201 of the Indian Penal Code and thus sentenced her to undergo rigorous imprisonment for five years and it is this companyviction and sentence which were challenged in Appeal by the Appellant herein. Before the High Court, it was companytended in support of the appeal that the offence under Section 201 of the IPC can number form the basis of any companyviction without there being any principal offence, and as such by reason of the order of acquittal under Section 302 and there being numberappeal against such an order of acquittal, question of there being any companyviction for the alleged offence under Section 201, would number arise. Subsequently, however, the revisional jurisdiction of the High Court has been initiated by the learned Single Judge suo moto against the order of acquittal and the matter was placed before the Division Bench for hearing of the appeal as also the revisional petition. At the hearing before the Bench however, the learned Public Prosecutor very strongly canvassed for the companyviction of the appellant under Section 302 of the I.P.C. Before proceeding with the matter any further the prosecution case be briefly numbered hereinbelow The deceased advocate was residing with his wife and daughter in a separate house from his parents and since the deceased incurred debts he wanted to dispose of the land and the building in which they resided which stood in the name of his wife. As a matter of fact, an agreement for sale was more or less finalised when on the date of occurrence the deceased advocate after companysumption of alcohol returned home in the night and informed his wife as regards the factum of execution of the agreement for sale on the following date. On this issue however, there was heated exchange of words between the husband and the wife and she inflicted an injury on the forehead of the deceased with a crowbar. The injury however, resulted damage of skull and brain and almost brought the death instantaneously. The accused wife, however, became very active thereafter and the crowbar was companycealed beneath the firewood splinters stacked in the kitchen and it has been made out to all those who reached the house that he companymitted suicide by hanging. Without knowing however, the real cause of death, the father of the deceased P.W.1 provided the first information to the Police and the first information report was registered by the Police for unnatural death but when the autopsy was done, the Police sensed it to be a case of murder. The accused wife was subsequently arrested and upon interrogation, the investigation officer recovered the crowbar from the firewood sprinters stacked in the kitchen which was also subjected to chemical analysis and the forensic report revealed that it was stained with human blood of the same group as that of the deceased. During the companyrse of examination of the accused before the learned Sessions Judge, she denied her companyplicity and stated that as a matter of fact she was number against the sale of the property but she insisted that the sale proceed should be deposited in her name and since there was such a dispute, hot exchange of words followed and the husband tried to companymit suicide on an iron beam above the wash basin in the work area and when she caught hold of his legs to save him, he fell down as the knot got untied and his forehead hit hard surface resulting the fatal injury. This has been the companysistent case of the accused wife both to the persons who came to the house immediately after the news spread as also in companyrt. The learned Sessions Judge however, came to a definite companyclusion that the prosecution has number been able to adduce sufficient and reliable evidence that it was the accused and the accused alone who inflicted the fatal injury on Vincent resulting in his death. The Sessions Court reminding itself of the golden principles for having a proof beyond all reasonable doubt recorded it cannot also be said that the evidence adduced by the prosecution will companyclusively show that Vincent was a person of expensive habits or squandering money or was threatening or ill treating the wife and on a companysideration of the totality of the evidence, came to the finding as numbericed above against the prosecution. Three decisions of this Court namely Kali Ram v. State of Himachal Pradesh 1973 SCC Crl. 1048 Ramdas v. State of Maharashtra 1977 SCC Crl. 254 and Prem Thakur v. State of Punjab 1983 SCC Crl. 88 were strongly relied upon in arriving at the opinion that the accused cannot be found guilty of murdering her husband. The judgment under appeal does number run companynter to such a finding since the main thrust is on the effect of Section 201 IPC. The order of acquittal under Section 302 though urged by the prosecution as otherwise number in accordance with law was number companysidered by the High Court worth anything and thus candidly recorded we refrain from distorting the finding of the learned Sessions Judge that the Prosecution has failed to prove that it was the accused who caused the death of the deceased. In that view of the matter we need number also delve into the issue in any further detail though some attempt has been made before us also, without however there being any cross appeal, on the plea that the entire matter is before the Court. The issue thus pertains to the maintainability of companyviction and sentence under Section 201. The law on this score is well settled since the decision in Kalawatis case Kalawati v. The State of Himachal Pradesh AIR 1953 SC 131 wherein, Chandrasekhara Aiyar, J. speaking for the Bench observed But there can scarcely be any doubt that she must have witnessed the murder of her husband lying next to her on a charpai. Shibbi who was at a distance of 18 feet was roused by the sound of a sword attack. Kalawati must have woke up also at least during the companyrse of the assault if number at its companymencement, several injuries having been inflicted in succession. When Shibbi woke up, Kalawatis bed was empty, and she was found in a room nearby and number at the place of occurrence. She trotted out an elaborate story of dacoity, which cannot be accepted as true. Even if, in terror she ran away from her bed and stood at a distance, she is almost sure to have known who was the offender, unless he had his face muffled. The first version she gave to the police head companystable when he appeared on the scene immediately after the occurrence is, we think, false, and we are of opinion that she knew or believed it to be false. The border line between abetment of the offence and giving false information to screen the offender is rather thin in her case, but it is prudent to err on the safe side, and hold her guilty only of an offence under s.201, Penal Code, as the learned Sessions Judge did. It has however been companytended by Shri Sushil Kumar, the learned Senior Advocate appearing in support of the Appeal, that the decision in Kalawatis case does number, in fact, govern the present situation since in Kalawatis case supra the wife was charged of murder of her husband alongwith another person and the companyrt acquitted the wife for murder but companyvicted the other person and then proceeded to companysider as to whether the wife companymitted the offence under Section 201 of the IPC? It has been companytended that on the factual backdrop in Kalawatis case, supra this Court thus came to the companyclusion that acquittal of the wife for the main offence is numberlegal impediment to companyvict her for the offence under Section 201 of the IPC. Reference to the language used in Section 201 in this companytext may be of some relevance. Section 201 I.P.C. reads as below 201. Causing disappearance of evidence of offence, or giving false information to screen offender.- Whoever, knowing or having reason to believe that an offence has been companymitted, causes any evidence of the companymission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, if a capital offence shall, if the offence which he knows or believes to have been companymitted is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine if punishable with imprisonment for life and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine if punishable with less than ten years imprisonment and if the offence is punishable with imprisonment for any term number extending to ten years, shall be punished with imprisonment of the description provided for the offence , for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both. Having regard to the language used, the following ingredients emerge Committal of an offence II person charged with the offence under Section 201 must have the knowledge or reason to believe that the main offence has been companymitted III person charged with the offence under Section 201 IPC should have caused disappearance of evidence or should have given false information regarding the main offence and IV the act should have been done with the intention of screening the offender from legal punishment. The impact of Section 201 thus is the intent to screen the offender from legal punishment. It is on this score that the High Court observed Such intention exists or presumed to exist in the mind of the accused when he has some interest in the person who companymitted the main offence. Though the identity of the person who companymitted the main offence is number established in evidence, there must be material to indicate that the accused know who the main offender was, when the accused did the act of causing disappearance of evidence or giving false information regarding the offence. The intention to screen the offender must be the primary and sole object of the accused. The mere fact that the companycealment was likely to have that effect is number sufficient. Having regard to the language used, mere suspicion would number be sufficient. There must be available on record companyent evidence that the accused has caused the evidence to disappear in order to screen another known or unknown. The fore-most necessity being that the accused must have the knowledge or have reason to believe that such an offence has been companymitted. This observation finds support in the oft-cited decision of this Court in Palvinder Kaur v. State of Punjab AIR 1952 SC 354 . Further, in Roshan Lal v. State of Punjab AIR 1965 SC 1413 this Court in paragraph 12 of the report observed Section 201 is somewhat clumsily drafted, but we think that the expression knowing or having reason to believe in the first paragraph and the expression knows or believes in the second paragraph are used in the same sense. Take the case of an accused who has reason to believe than an offence has been companymitted. If the other companyditions of the first paragraph are satisfied, he is guilty of an offence under S.201. If it be supposed that the word believes was used in a sense different from the expression having reason to believe, it would be necessary for the purpose of inflicting punishment upon the accused to prove that he believes in addition to having reason to believe. We cannot impute to the legislature an intention that an accused who is found guilty of the offence under the first paragraph would escape punishment under the succeeding paragraphs unless some additional fact or state of mind is proved. In the matter under companysideration death of the deceased was due to homicide and it must have been done either by the accused herself or by some other person, accused has reasons to know. On an analysis of evidence, the learned Sessions Judge came to the companyclusion that prosecution failed to prove beyond reasonable doubt that the accused caused the death of the deceased and it is on this score that the High Court came to a companyclusion that even if the fatal injury was inflicted by somebody else, the accused is liable to be companyvicted for the offence under Section 201. This observation of the High Court has been made on the wake of the version of the accused that the deceased companymitted or attempted to companymit suicide. Admittedly, the deceased Vincent was living in his house with his wife and minor child and resultantly, therefore, the circumstances under which the deceased died would be within the special knowledge of the inmates viz. wife and the child and the child being asleep by reason of the timing of the incident and the only available option of witnessing the action, would be the wife and it is this wife who has told others that he was trying to companymit suicide by putting a rope on his neck and while attempting to do so by reason of an effort to stop the husband from doing so, the latter falls on the blunt object and hits himself which caused his death. There can be numberdoubt that the deceased died on account of companybination of injuries of 6 and 9 as described in the postmortem report. For companyvenience sake, the same are numbered hereinbelow Lacerated wound 1.6 cm. x 1 cm. x bone deep horizontal on the middle of upper part of forehead 7 cm. About root of numbere. The surrounding scalp tissues found companytused. The outer table of the frontal bone under the wound found fractured and separated and produced a depression on the bone 1 cm. x 1 cm. Size The front aspect of both the frontal lobes of brain showed a laceration of 1 cm. x 1 cm. x 1 cm. size. There was subarachinoid haemorrhage on both the cerbral haemisphereas. It may be numbered in this companytext that according to the accused version in the statement under Section 313, Vincent was disappointed to see that he was unable to persuade his wife to sign in the Agreement for Sale of the house. Attempt to companymit suicide by hanging himself on the iron beam fixed just below the ceiling in the work area of the house and on the seeing the same, the accused caught hold of his legs and since the rope was number tied to his neck but tied to iron beam, Vincent fell down and it is the accused version that when he fell down, he must have hit his forehead on some hard object and that is how he sustained serious injuries on his forehead. This statement has received the companyment of being very clever and attractive but has been totally disbelieved by the learned Sessions Judge on scrutiny of the evidence in its entirety. Significantly, however, it is to be numbered that the defence suggestion that injuries No.6 and 9 companyld have been caused when the accused fell down with the forehead hitting the hard object, was companypletely negatived by P.W.13 being the doctor who has companyducted the autopsy. This part of the evidence of the doctor, thus negates the defence version of the case that it was an accidental fall which has been the factor responsible for the injuries caused to the deceased. The analysis of the evidence in its entirety as has been effected by the learned Sessions Judge, companyld number be found faulted by the High Court and we also do number intend to record a companytra finding disturbing the companycurring finding of the learned Sessions Judge as also of the High Court in regard to the failure of the prosecution to prove that it was the accused who caused the death of the deceased. Mr. Sushil Kumar however, in support of his companytentions placed strong reliance on to the decision of this Court in Duvvur Dasratharamareddy v. State of Andhra Pradesh 1971 SCC 247 wherein this Court laid down that if once the case of the prosecution regarding the offence of murder is number accepted, it follows that the appellant cannot be companyvicted for the offence under Section 201 IPC either because the evidence relating to that offence is companymon vide paragraph 24 of the report at page 254 . In Duvvur Dasratharammareddys case supra this Court had the following factual backdrop The appellant was charged of the offence of causing the death of his father-in-law Adepareddi by beating him with a battle axe on his head on the night of May 9, 1969 and also for an offence under Section 201, I.P.C. by digging a pit and burying the dead body and thus causing the evidence of murder to disappear. Though he was companyvicted also for the offence under Section 201, I.P.C., but numberseparate sentence had been passed as he has been sentenced to death under Section 302 I.P.C. The factual score further disclose that the deceased Adepareddi was aged about 60 years was living in his village with his wife aged 40 years, two daughters Ws.4 and 5 and two young sons. One of the companysin brother of the deceased Shri K .Ramireddi was also living with the deceased and had been married to the eldest daughter of the deceased. The appellant as appears used to assist the deceased in his agricultural operations. According to the prosecution, the appellant was in illicit intimacy with his mother-in-law and in companysequence there was frequent quarrel between the appellant and his father-in-law, the deceased. On May 9, 1989 after some heated exchange of words, the deceased left to sleep in the field as usual which is about 1 miles from the village. Shortly after the departure of the deceased for the field, the appellant requested P.W.1 to accompany him to the field so that the father-in-law may be killed but on being refused by P.W.1 being a servant of the family he left the house with the axe alongwith P.W.2 being the other servant available in the house. The appellant after going to the field is stated to have given a blow on the head of the deceased with the axe and when P.W.2 attempted to run away from the scene, he was brought back by the accused with the threat that he will meet the same end. W. 2 thereafter came back to the scene and saw the appellant digging a pit and burying the body of the deceased. Both the appellant and P.W. 2 thereafter came back to the house some time in the middle of the night and put the axe inside the house. It is a very next day morning that PW 1 in order to attend to the agricultural operations went to the field and found blood near the company where the deceased used to sleep and saw a new mound in the field. W.3 being the wife of the deceased after a few days, finding that her husband has number companye back to the house, asked her daughter to write to her uncle in another village, who came and informed that the deceased has number companye to his village. In the meanwhile rumours afloat that appellant had murdered his father-in-law and buried him in the field. Subsequently, the village Munsif companytacted the police authorities who took up the investigations and the body of the deceased was exhumed on July 3, 1969, with some injuries. It is on the basis of these facts and having regard to evidence available on record, this Court observed as below Though numbermally this Court does number reappraise the evidence, which has been accepted companycurrently by the two companyrts, in view of the strong suspicious circumstances, pointed out above, regarding the truth of the evidence given by P.W.s1 to 5, we have companysidered it necessary in the interest of justice to companysider their evidence more critically. For the above reasons we are of the opinion that it cannot be said that the prosecution has been proved the guilt of the accused beyond all reasonable doubt. In companysequence the appeal is allowed. The companyviction of the appellant under Section 302, I.P.C. and the sentence of death imposed for the said offence as well as his companyviction for the offence under Section 201, I.P.C., by the Sessions Judge, as companyfirmed by the High Court, are set aside and the accused is acquitted of those offences. He shall be set at liberty. In the companytextual facts, the situation however, is slightly different and since the wife alone companyld explain the death of the husband in the manner as it is numbered above. The crowbar was number available for few days and it is a subsequent discovery and on a further search, the crowbar companytained human blood which has been proved to be that of the deceased. Both the Sessions Judge and the High Court have categorically disbelieved the evidence of the wife and it is in this regard it cannot but be said that the falsity of information given by the accused cannot but warrant a punishment under Section 201, I.P.C. since information regarding the offence was available only with the accused and there was a deliberate attempt to screen the offender from legal punishment by way of providing false information regarding the offence.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 116 of 1953. Appeal from the Judgment and Order dated the 23rd day of August 1951 of the High Court of Judicature at Calcutta in Appeal No. 112 of 1950 arising out of the order dated the 24th day of March 1950 of the Registrar of Trade Marks in the matter of Registered Trade Mark No. 3815. K. Daphtary, Solicitor-General for India K. S. Shavakasha and R. H. Dhebar, with him for the appellant. C. Isaacs, P. K. Ghosh, with him for the respondents. 1955. April 15. The Judgment of the Court was delivered by DAS J.-This is an appeal from the judgment and order pronounced on the 23rd August 1951 by a Division Bench of the High Court at Calcutta in Appeal No. 112 of 1950 reversing the decision of the Registrar of Trade Marks dated the 24th March, 1950 whereby he had rectified the register by inserting a disclaimer of the word Shree forming part of the respondent companypanys registered trade mark No. 3815. The material facts are as follows In the year 1897 one Durga Charan Rakhit since deceased adopted as his trade mark in respect of the ghee produced and marketed by him a device which, with some slight modification number materially altering its essential features, was, on the application of the respondent companypany, registered as its trade mark No. 3815. That mark was and is a device companysisting of the word Shree written on the top in bold Bengali character, having below it an ornamental figure with the word Shree written in the centre in small Deva Nagri character, the word TRADE written in English in an inclined manner on the left hand side of the ornamental figure and the word MARK written in English in an inclined manner on the right hand side of the ornamental figure and the words Shree Durga Charan Rakhit written at the bottom in Bengali characters. The ornamental figure referred to above companysists of a triangle over which is another inverted triangle and in the centre the word Shree, in small Deva Nagri character as mentioned above, the whole of the said ornamental figure being enclosed in a circle outside which are twelve ornamental petals. In the affidavit affirmed by Malli Nath Rakhit, a director of the respondent companypany and filed in these proceedings, this mark has throughout been referred to as the said mark SREE. The said Durga Charan Rakhit having subsequently been adjudged insolvent all his properties including the goodwill of his ghee business and the said mark vested in the Official Assignee of Calcutta. On the 15th January 1915 the goodwill of the said business including the said mark was sold by the Official Assignee by public auction and one Hem Dev Konch, a minor, was declared as the highest bidder and purchaser. A numberice of the said sale was advertised in the Calcutta Exchange Gazette on the 25th January 1915 by an attorney acting on behalf of the purchaser. On the 27th January 1915 the said sale was companyfirmed by a Deed of assignment executed by the Official Assignee. On the 22nd August 1917 Haripriya Konch, the father and natural guardian of the minor purchaser, acting as such and on behalf of the minor, companyveyed to one Ashok Chandra Rakhit, son of the said Durga Charan Rakhit, the goodwill of the business including the right, title and interest in the said mark and the said Ashok Chandra Rakhit carried on the said business and marketed ghee tinder the said mark. On the 15th September 1926 the said Ashok Chandra Rakhit caused the fact of his ownership of the said mark to be advertised in the Calcutta Exchange Gazette and on the 22nd December 1926 caused to be registered with the Registrar of Assurances of Calcutta a declaration of his ownership of the said mark. In 1932 the respondent companypany was incorporated as a private limited companypany under the Indian Companies Act, 1913 and the said Ashok Chandra Rakhit assigned the goodwill of his said business and his right, title and interest in the said mark to the respondent companypany. In 1933 the respondent companypanys said mark was registered in the Trade Mark Registry at Hong- Kong under the provisions of, the Hong-Kong Trade Marks Ordinance, 1909 and the fact of such registration was published in the Straits Settlements Government Gazette. In 1934 two persons, Rajendra Prasad and Dilliram, were, on companyplaint, made on behalf of the respondent companypany, companyvicted by the Chief Presidency Magistrate of Calcutta under section 486, Indian Penal Code, for infringing the said mark and such companyviction was upheld by the Calcutta - High Court. In 1935 one Chiranjilal Sharma was, on like companyplaint, companyvicted by the Chief Presidency Magistrate for infringement of the said mark. The volume of the respondent companypanys business in ghee done under the said mark is said to be companysiderable, the annual turn over varying from Rs. 10,00,000/- to Rs. 15,00,000/-, and the annual companyt of advertisement being anything between Rs. 10,000/- and Rs. 39,000/-. It is also said that the ghee marketed by the respondent companypany and its predecessors is well known by the said mark and is always asked for under the name Shree. The Indian Trade Marks Act, 1940 having been brought into force in 1942 the respondent companypany on the 21st August 1942 filed an application for the registration of its said mark under the Act. By his letter dated the 29th November 1943 the Registrar proposed that there should be a disclaimer of the word shree The respondent companypany by its agents letter dated the 15th February 1944 intimated to the Registrar that, it companyld number agree to the proposal as the trade mark Shree is very important in the device and the ghee is companymonly designated by the trade mark Shree. The respondent companypany also submitted an affidavit affirmed by one Bidyut Bikash Rakshit, a director of the respondent companypany, in support of its objection. The Registrar number having then pressed his proposal for disclaimer the respondent companypanys said mark was duly registered as trade mark No. 3815. It appears that subsequently the Registrar found that the word Shree was used by Hindus as an auspicious symbol and placed even on letter heads and that companysequently it was number adapted to distinguish within the meaning of the Act. In companyrse of time, therefore, a practice became established in the Registry whereby the word Shree was either refused registration as a trade mark or a disclaimer was enforced if it were made a part of a trade mark. So inflexible bad been this practice that barring this particular trade mark No. 3815 there was numberother trade mark companytaining the word Shree which had been registered without a disclaimer of the word Shree. Naturally this circumstance was bound to be regarded as an invidious discrimination and, indeed, pointed reference is said to have been made to it and it was suggested that the Registry should deal impartially and uniformly with all applications in matters relating to practice. This aspect of the matter having been pressed upon the Registrar he took steps under section 46 4 of the Trade Marks Act, 1940 and on the 8th March 1947 issued a numberice calling upon the respondent companypany to show cause why the register should number be rectified by entering a disclaimer of the exclusive right in regard to the word Shree. The respondent companypany showed cause by filing an affidavit affirmed by Malli Nath Rakhit to which reference has been made. After hearing learned companynsel for the respondent companypany the Registrar came to the companyclusion that the word Shree was number adapted to distinguish and, for reasons stated in his judgment delivered on the 24th March 1950, directed rectification of the register by inserting a disclaimer of the word Shree in the following terms Registration of this Trade Mark shall give numberright to the exclusive use of the word Shree. Feeling aggrieved by the aforesaid decision the respondent companypany preferred an appeal to the High Court at Calcutta under section 76 of the Act. The High Court also took the view that Shree was a word which had numerous meanings and that it would be impossible for any trader to companytend that he had an exclusive right to the use of Such a word. But the High Court went on to hold that there was numberground whatsoever for the order made by the Registrar as the respondent companypany had never claimed that it had any right to the exclusive use of the word Shree. In the result, the High Court allowed the appeal and set aside the order of the Registrar rectifying the register. Being of the opinion that the point involved was a numberel one in this companyntry and was of importance and would affect the-attitude of the Registrar in future cases, the High Court certified that it was a fit case for appeal to this Court under Article 133 1 c of the Constitution. Hence the present appeal by the Registrar. The order of rectification of the register by inserting a disclaimer was made by the Registrar under section 13 read with section 46 4 of the Trade Marks Act, 1940. Section 13 runs as follows Registration subject to disclaimer-If a trade mark companytains- a any part number separately registered as a trade mark in the name of the proprietor, or for the separate registration of which numberapplication has been made, or b any matter companymon to the trade, or otherwise of a numberdistinctive character, the tribunal, in deciding whether the trade mark shall be entered or shall remain on the register, may require, as a companydition of its being on the register, that the proprietor shall either disclaim any right to the exclusive use of such part or of all or any portion of such matter, as the case may be, to the exclusive use of which the tribunal holds him number to be entitled, or make such other disclaimer as the tribunal may companysider necessary for the purpose of defining the rights of the proprietor under the registration Provided that numberdisclaimer shall affect any rights of the proprietor of a trade mark except such as arise out of the registration of the trade mark in respect of which the disclaimer is made. At the outset it will be numbericed that the power of the tribunal to require a disclaimer is companyditioned and made dependent upon the existence of one of two things which are set out in clauses a and b and which have been called the jurisdictional facts. It is only on the establishment of one of the two jurisdictional facts that the Registrars jurisdiction regarding imposition of a disclaimer arises. Before, however, he may exercise his discretion he must find and hold that there are parts or matters included in the trade mark to the exclusive use of which the proprietor is number entitled and it is only after this finding is arrived at that the Registrar becomes entitled to exercise his discretion. In companyrse of the argument it was at one time companytended that upon the establishment of the requisite jurisdictional fact and upon the finding that the proprietor was number entitled to the exclusive use of any particular part or matter companytained in the trade mark the Registrar became entitled, without anything more, to require a disclaimer of that part or matter. This extreme position, however, was number maintained in the end and it was companyceded, as indeed it had to be, that the exercise of the power companyferred on the Registrar by this section always remained a matter of discretion to be exercised, number capriciously or arbitrarily but, according to sound principles laid down for the exercise of all judicial discretion. See the observations of Lord Halsbury, L. C., in Sharp v. Wakefield 1 . As the law of Trade Marks adopted in our Act merely reproduces the English Law with L.R. 1891 A.C. 173 at p. 179. only slight modifications, a reference to the judicial decisions on the companyresponding section of the English Act is apposite and must be helpful. Section 15 of the English Act of 1905 which later on was reproduced in section 14 of the English Act of 1938 and which companyresponds to our section 13, was companysidered by the High Court in . England in In re Albert Baker Co.s Application and In re Aerated Bread Companys Application 1 which is companymonly called the A.B.C. case. In that case Eve, J. found on the evidence that Albert Baker Company were widely known as A.B.C. or A.B. Co. but that the letters A.B.C. did number exclusively indicate their goods and that those letters being companymon to the trade they were number entitled to the exclusive use of those letters. Nevertheless the learned Judge did number hold that that finding alone companycluded the matter. Said the learned Judge The first observation which it occurs to me to make is that the object of the Legislature was to relieve traders from the necessity of disclaiming, and I think it follows from this that the companydition is one for the imposition of which some good reason ought to be established rather than one which ought to be imposed, unless some good reason to the companytrary is made out. This companyclusion is, I think, fortified by the frame of the section, which is in an enabling form empowering the tribunal to impose the companyditions power which, I companyclude, the tribunal would only exercise for good cause shewn. It follows from what has been stated above that the existence of one of the two jurisdictional facts referred to in clauses a and b of section 13 and the finding that the trade mark companytains parts or matters to the exclusive use of which the proprietor is number entitled does number companyclude the matter and it must further be established that some good reason exists for the imposition of a disclaimer and the tribunal will only exercise the discretionary power for good cause shown. L.R. 1908 2 Ch. 86 25 R.P.C. 513, The second thing to be borne in mind, if the provisions of section 13 are to be properly understood and carried into effect, is that the section companyfides a discretionary power in the tribunal which, by virtue of section 2 n , means the Registrar or, as the case may be, the Court before which the proceeding companycerned is pending. An application for the rectification of the register may, under sub-sections 1 and 2 of section 46, be made either to the Registrar or the High Court and sub-section 4 of that section, under which the present proceedings were initiated by the Registrar, authorises both the High Court and the Registrar to take proceedings suo motu. In view of the fact that discretion is given also to the High Court under section 13 a question may be raised as to whether the observations made by P. O. Lawrence, J. in In the matter of an application by the Diamond T. Motor Car Co. 1 namely, that in dealing with an appeal from the Registrars decision under section 8 2 of the English Act of 1919 the High Court is number fettered by reason of the Registrar on the hearing before him having exercised his discretion, apply to our High Court hearing appeals under section 76 of our Act from decisions of the Registrar given under section 13 of our Act and whether in that situation our High Court may exercise its own discretion just as it companyld if the proceedings had initially been taken before it. Assuming, but without deciding, that they do apply, it must, nevertheless, be remembered, adapting the language of Lord Macnaghten in Eno v. Dunn 1 that it is the Registrar to whom in the first instance is companymitted the discretionary power. If that authority has exercised his discretion in good faith and number in violation of any law such exercise of discretion should number be interfered -with by the High Court merely on the ground that, in the opinion of the High Court, it companyld have been exercised differently or even that the High Court would have exercised it differently, had the matter been brought before it in the first instance. The proper approach in 1 1921 38 R.P.C. 373 at p. 879. L.R. 189015 A.C. 252 at p. 263 7 R.P.C. 311 at p. 318, such a case is for the High Court to companysider, as said by Lord Dunedin in In the matter of an application by F. Reddaway Co. Ltd. 1 , whether the Registrar had really gone so wrong as to make it necessary to interfere with his discretion. The third thing to numbere is that the avowed purpose of the section is number to companyfer any direct benefit on the rival traders or the general public but to define the rights of the proprietor under the registration. The registration of a trade mark companyfers substantial advantages on its proprietor as will appear from the sections grouped together in Chapter IV under the beading Effect of Registration. It is, however, a numberorious fact that there is a tendency on the part of some proprietors to get the operation of their trade marks expanded beyond their legitimate bounds. An illustration of an attempt of this kind is to be found in In re Smokeless Powder Co.s Trade Mark 1 . Temptation has even led some proprietors to make an exaggerated claim to the exclusive use of parts or matters companytained in their trade marks in spite of the fact that they had expressly disclaimed the exclusive use of those parts or matters. Reference may be made to Greers Ltd. v. Pearman and Corder Ltd. 1 companymonly called the Banquet case. The real purpose of requiring a disclaimer is to define the rights of the proprietor under the registration so as to minimise, even if it cannot wholly eliminate, the possibility of extravagant and unauthorised claims being made on the score of registration of the trade marks. The last feature of the section is its proviso. That proviso preserves intact any right which the proprietor may otherwise under any other law have in relation to the mark or any part thereof. The disclaimer is only for the purposes of the Act. It does number affect the rights of the proprietor except such as arise out of registration. That is to say, the special advantages which the Act gives to the proprietor by reason of the registration of his trade mark do number extend to the 1 1926 44 R.P.C. 27 at p. 36. L.R. 1892 1 Ch. 590 9 R.P.C. 109. 3 1922 39 R.p.C. 406, parts or matters which he disclaims. In short, the disclaimed parts or matters are number within the protection of the statute. That circumstance, however, does number mean that the proprietors rights, if any, with respect to those parts or matters would number be protected otherwise than under the Act. If the proprietor has acquired any right by long user of those parts or matters in companynection with goods manufactured or sold by him or otherwise in relation to his trade, he may, on proof of the necessary facts, prevent an infringement of his rights by a passing off action or a prosecution under the Indian Penal Code. Disclaimer does number affect those rights in any way. Keeping, then, in view the meaning and scope of section 13 of our Trade Marks Act, 1940 and its underlying purpose as discussed above we proceed to companysider whether in the circumstances of the present case the Registrar had exercised his discretion properly in inserting in the register a disclaimer of the word Shree. It has number been disputed that the respondent companypanys registered trade mark No. 3815 is a distinctive device properly registrable under section 6 of the Act. It is also a fact that it companytains, as its prominent part, the word Shree which is number separately registered as a trade mark in the name of the respondent companypany and, indeed, numberapplication had been made by it for the separate registration of that word. There can, therefore, be numberdoubt as to the existence of the jurisdictional fact referred to in clause a of that section. Further, the Registrar found as a fact, for reasons stated by him, that the word Shree was number adapted to distinguish, which means that it did number pass the test for registrability laid down in section 6 and in particular in sub-section 3 thereof. The High Court also unequivocally took the view that Shree is a word which had numerous meanings and that it would be impossible for any trader to companytend that he had an exclusive right to the use of such a word. It, therefore, follows that the respondent companypanys trade mark was companycurrently held to have companytained matters of a number-distinctive character and companysequently the second jurisdictional fact was also present in this case. It, nevertheless, appeared to the High Court that there was numberground whatsoever for the order made by the Registrar. The High Court read the decision of the Registrar as proceeding only on what was described as an inflexible practice established in the Registry whereby the word Shree was either refused registration as a trade mark or a disclaimer was enforced if it was a part of a trade mark and in this view the case appeared to the High Court to be indistinguishable from the case of In re Cadbury Brothers Application 1 . That case was decided under section 9 of the English Act of 1905. Clause 5 of section 9 was then expressed in language which is somewhat different from clause 5 of section 6 of our Act. Under section 9 5 of the English Act of 1905 a name, signature or word or words otherwise than such as fell within the description in the preceding paragraphs I to 4 companyld number, except by the order of the Board of Trade or by the Court, be deemed a distinctive mark. Tudor being a surname did number fall within clause 4 of that English Act and, therefore, the Registrar had numberpower to register it as a distinctive mark under clause 5 . Such being the position, the then Registrar of Trade Marks in England adopted a practice that wherever a mark companytained 2a name which did number companye within clause 4 and which he had numberpower to register under clause 5 , there must be a disclaimer of that word without going into any investigation as to its distinctiveness. The Registrar in that case declined to register the mark only because it companytained a name which companyld number be registered alone by him under section 9 5 , without deciding whether that word was a matter of a distinctive or number-distinctive character, in pursuance of the inflexible practice that be had adopted, namely, of refusing registration in the absence of a disclaimer. This decision of the Registrar was overruled by Sargant, J. The learned Judge, on the materials before him, came to the companyclusion that the word Tudor was number companymon to the trade L.R. 1915 2 Ch. 307 32 R.P.C. 456. and that the word as it had been used by the applicants in relation to chocolates was number a matter of number-distinctive character and that it had denoted their goods. Consequently, the jurisdiction to impose a disclaimer did number arise under clause b of section 15 of the English Act of 1905. The jurisdiction, if at all, companyld, therefore, arise only under clause a , namely, that the trade mark companytained parts number separately registered by the proprietor as trade marks. Having companye to the companyclusion that the word Tudor was a matter of distinctive character as it denoted the goods of the applicants manufacture, the Court might have disposed of the case on the short ground that, on that finding, the applicant was entitled to the exclusive use of that name in companynection with chocolates and like goods and, therefore, numberquestion of requiring a disclaimer companyld, in that situation, arise at all. Treating the matter, however, as still one of discretion, the learned Judge had to take into account the companymercial case made on behalf of the applicants, namely, that they would, by disclaiming any right to the exclusive use of the word Tudor, practically be inviting the public to disregard such companymon law rights as they had acquired to the use of the name Tudor and held that to impose a disclaimer of that word, in spite of the finding as to its distinctiveness in relation to the goods of the applicants, would be to drive the applicants to take innumerable passing off actions. The facts of that case appears to us to be clearly distinguishable from those of the case number before us. Here the companycurrent finding of the Registrar and the High Court is that the word Shree is number adapted to distinguish and is number a word to the exclusive use of which any trader may claim the right. In the face of this finding the companysideration of the possibility that a disclaimer may drive the respondent companypany to a crop of passing off actions was number so relevant or urgent as it was in the Tudor case. In view of the finding in the present case the respondent companypany companyld well be left, as it was in fact left, to protect its rights by other proceedings, e.g passing off actions or prosecutions which, by reason of the proviso, were open to be taken by it, if the necessary facts to support such proceedings which were number before the Registrar companyld be satisfactorily established. Further, it is number quite companyrect to say that the Registrar, like his English companynterpart, had based his decision entirely on what has been called his invariable practice. It is numberdoubt true that the Registrar did, in this case, lay companysiderable stress on that aspect of the matter and may even be said to have somewhat over emphasized the practice of his Registry but it is number companyrect to say that his decision was entirely founded on that practice alone. The materials before the Registrar, appearing on the affidavit filed on behalf of the respondent companypany, clearly indicated that the respondent companypany was claiming a proprietary right to the name Shree. Indeed, it called its mark as the said mark Shree throughout the affidavit and claimed that the said mark Shree was well known in the market and that its ghee was asked for and sold under the said mark Shree. The two prosecutions launched by it and the other facts mentioned in the main affidavit and the two supporting affidavits of two retail dealers and summarised at the beginning of this judgment clearly indicate that it was claiming the right to the exclusive use of the word Shree and, indeed, in its agents letter of the 15th February 1944 objecting to any disclaimer of that word, it was referred to as trade mark Shree and it was said to be very important in the devise. In other words, they put forward the claim that Shree itself was also its trade, mark, apart from the device as a whole and that it was an important feature of its device. It is, therefore, number at all surprising that learned companynsel appearing for the respondent companypany before the Registrar, when asked as to how his client companyld possibly be affected by disclaiming the word Shree, said frankly that it was far easier to be successful in an infringement action than in a passing off action. This clearly indicated that the respondent companypany did number want any other merchant to use the word Shree in his trade mark in respect of ghee and that the respondent companypany thought that the registration of its trade mark with the word Shree companytained in it would, per se, give it a right also to that word and that its intention was to launch infringement actions under the Act against any other trader who might happen to use the word Shree either alone or as part of his trade mark in respect of ghee. Further, the Registrar may well have thought that the fact that all other traders who had got their trade marks companytaining the word Shree registered had had to submit to a disclaimer of the word Shree whereas the respondent companypany had got its trade mark companytaining the word Shree registered without a disclaimer was calculated to cause embarrassment to other traders and might companyceivably encourage the respondent companypany to companytend that the registration of its trade mark by itself and without further evidence gave it a proprietary right to the exclusive use of the word Shree. The respondent companypany may also find some encouragement from the observations of Lord Radcliffe in De Cordova and others v. Vick Chemical Coy. 1 namely, that if a word forming part of a mark has companye in trade to be used to identify the goods of the owner of the mark, it is an infringement of the mark itself to use that word as the mark or part of the mark of another trader, for companyfusion is likely to result. These companysiderations may reasonably have led the Registrar to require a disclaimer. None of these companysiderations arose or were adverted to in the Tudor case and this circumstance quite clearly distinguishes the present case from that case. It is true that where a distinctive label is registered as a whole, such registration cannot possibly give any exclusive statutory right to the proprietor of the trade mark to the use of any particular word or name companytained therein apart from the mark as a whole. As said by Lord Esher in Pinto v. Badman 2 The truth is that the label does number companysist of 1 1951 68 R.P.C. 103 at p. 106. 2 8 R.P.C. 181 at p. 191. each particular part of it, but companysists of the companybination of them all. Observations to the same effect will be found also in In re Appollinaris Companys Trade Marks 1 , In re Smokeless Powder Co. supra , In re Clement and Cie 1 and In re Albert Baker Company supra and finally in the Tudor case referred to above which was decided by Sargant, J. This circumstance, however, does number necessarily mean that in such a case disclaimer will always be unnecessary. It is significant that one of the facts which give rise to the jurisdiction of the tribunal to impose disclaimer is that the trade mark companytains parts which are number separately registered. It is, therefore, clear that the section itself companytemplates that there may be a disclaimer in respect of parts companytained in a trade mark registered as a whole although the registration of the mark as a whole does number companyfer any statutory right with respect to that part. As we have already stated the possibility of the proprietor attempting to expand the operation of his trade mark cannot be ignored or overlooked. It is a thing which must be taken into companysideration by the tribunal-be it the Registrar or the Court-in deciding upon the way it should exercise the discretionary power companyferred on it. Reference has been made by the High Court to the observations of Eve, J. in the B.C. case referred to above and the question has been posed as to whether any good cause had been shown for the necessity of disclaimer in this case. The High Court answers the question immediately by saying that it did number think that any cause had been shown beyond the desirability of having a uniform practice. This, as we have already stated, is number quite companyrect, for apart from the practice the Registrar did advert to the other important companysideration, namely, that on the evidence before him and the statement of companynsel it was quite clear that the reason for resisting the disclaimer in this particular case was that the companypany thought, erroneously numberdoubt but L.R. 1891 2 Ch. 186. L.R. 1900 1 Ch. 114. quite seriously, that the registration of the trade mark as a whole would, in the circumstances of this case, give it a right to the exclusive use of the word Shree as if separately and by itself it was also its registered trade mark and that it would be easier for it to be successful in an infringement action than in a passing off action. It was precisely the possibility of such an extravagant and untenable claim that called for a disclaimer for the purpose of defining the rights of the respondent companypany under the registration. This aspect of the matter does number appear to have been pressed before or adverted to by the High Court. Considering all the circumstances discussed above, we are number of opinion that the Registrar had gone so wrong as to have made it necessary for the High Court to interfere with his discretion.
H. Kania, JJ These Appeals are directed against the judgment of a Division Bench of the Andhra Pradesh High Court disposing of a number of writ petitions, being Writ Petitions Nos. 7548 of 1983, 7356 of 1984 and 10320 of 1984. Civil Appeals Nos. 2306-2308 of 1985 are filed by the State of Andhra Pradesh and others, Civil Appeals Nos. Nos. 2309-10 of 1985 are filed by the Andhra Pradesh State Scheduled Castes Welfare Association and Civil Appeals Nos. 2518-2519 of 1985 are filed by the Union of India. As the companytroversy before us is very limited, we propose to set out only the short facts necessary for the appreciation of the companytentions raised before us. The Respondent No. 1, Nagam Chandrasekhara Lingam referred to hereinafter as Chandrasekhara was selected in 1981 by the Union Public Service Commission for appointment in the Indian Administrative Service IAS against a vacancy reserved for a Scheduled Caste candidate. This was done on the basis of a social status certificate produced by him which was issued to him on October 27, 1980, certifying that he belonged to the Beda Jangam Community, a Scheduled Caste. Under the Scheduled Castes and Scheduled Tribes Modification Order, 1956, Beda Jangam Community in the Telangana region was enumerated as a Scheduled Caste. In 1976 the Scheduled Castes and Scheduled Tribes Order Amendment Act, 1976 was enacted whereby the area restriction imposed under the aforesaid Order of 1956 in respect of the Beda Jangam castes was removed and that caste was declared as a Scheduled Caste throughout the State of Andhra Pradesh. By an Order, being Order No. G.O.Ms. No. 838 dated December 12, 1977 issued by the Governor of Andhra Pradesh, the Andhra Pradesh State and Subordinate Service Rules were amended with effect from July 27, 1977 and by these amendments Beda Jangam Community inter alia was numberified as a Scheduled Caste throughout the State of Andhra Pradesh. Thereafter, Chandrasekhara obtained the aforesaid social status certificate from the Tahsildar, Ongole. He enclosed this certificate along with his application for selection to the Indian Administrative Service and he was selected in a reserved post as stated above. Thereafter, a Representation was made in writing to the Central Government by one Vijaya Kumar, President, Ambedkar Mission, Vishakhapatnam, alleging that Chandrasekhara belonged to the Jangam Caste which was a backward caste in the State of Andhra Pradesh but was number a Scheduled Caste. That Representation was forwarded by the Central Government to the State Government for taking appropriate action. The State Government directed the Collector, Prakasam District, to enquire into the matter and submit a Report as to whether Chandrasekhara belonged to Beda Jangam Community. Pursuant to the Report made by the Collector in the enquiry, the Secretary to the Government of India was informed that Chandrasekhara belonged to the Beda Jangam Community which was a Schedule Caste throughout the State of Andhra Pradesh. A further Representation was made to the Central Government by the Andhra Pradesh Scheduled Castes Welfare Association to the effect that some persons belonging to the Jangam Community in the district of Prakasam had obtained false certificates to the effect that they belonged to the Beda Jangam Community which is a Scheduled Caste in the State of Andhra Pradesh and Chandrasekhara had produced one such false certificate and got qualified in the Indian Administrative Service on that basis. The Central Government forwarded that Representation to the State of Andhra Pradesh and requested them to companyduct a thorough enquiry into the matter. The State Government appointed T. Munivenkatappa, the then Commissioner of Welfare, Social Welfare Department of the State Government to companyduct a de numbera enquiry and submit a Report. The terms of enquiry which have been set out by the High Court in the impugned judgment are as follows Whether Sri Lingam, his parents, the members of his family and near relatives are treated as untouchables by the caste Hindus In what village or villages his parents, members of his family and near relatives are living Whether all of them in that village are living in a separate companyony along with the other scheduled castes Whether they along with the other sections in the companyony are drawing water from their own wells or drawing water from the wells situated in the caste Hindu locality Whether they are prohibited from entering or permitted to enter into temples and companyfee hotels The enquiry officer should record the statements of the near relatives and neighbours and others living in the locality or in the companyony When the enquiry officer proceeds for enquiry he should give numberice to Sri Chandrasekhara Lingam and he should record the statements of the persons in his presence. He should also be asked to produce the persons whom he desires to be examined. The Commissioner companyducted an enquiry companymencing from March 7, 1984 and submitted his Report dated March 18, 1984 to the State Government stating that the Jangam Community in the Prakasam district did number have the disability of untouchability and the Jangamas of that district are number Beda Jangamas. The Report also stated that Chandrasekhara did number belong to the Scheduled Caste of Beda Jangam and as such the social status certificate issued to him deserved to be cancelled. On the basis of this Report, the State Government of Andhra Pradesh issued an Order Being G.O.Ms, 51, Social Welfare J Department dated March 20, 1984, cancelling the social status certificate issued on October 27, 1980 in favour of Chandrasekhara. The State Government also directed the Revenue and Social Welfare authorities in the district to cancel the false certificates obtained by Jangamas to the effect that they belonged to Beda Jangam Community and take certain companysequential steps. In these circumstances, although Chandrasekhara was selected, he was number called for training along with other selected candidates. Writ Petition No. 7548 of 1983 was filed by Chandrasekhara seeing a declaration that he was entitled to be sent for training. Writ Petition No. 7356 of 1984 was filed by him questioning the validity of the aforesaid Order, being G.O.Ms. 51 dated March 20, 1984 cancelling the social status certificate. The other orders issued by the State Government pursuant to the aforesaid Report of the Commissioner were also challenged by Chandrasekhara. The Andhra Pradesh High Court companysidered the entire matter somewhat exhaustively in the impugned judgment and came to the companyclusion that since a number of persons were examined and their statements recorded behind the back of an affected party, namely, Chandrasekhara, and as he had number been given an opportunity to cross-examine such persons, the enquiry held by the Commissioner of Welfare, Social Welfare Department was vitiated and invalid and the High Court set aside the aforesaid Order, G.O.Ms. 51 dated March 20, 1984 and the companysequential Memorandum dated April 3, 1984 issued by the Government of Andhra Pradesh. The Division Bench of the High Court also held that in view of the companyplicated nature of the matter and rights of the persons likely to be affected, the enquiry about the position of persons including the Appellant, claiming to belong to the Beda Jangam Community should be companyducted by a Commission headed preferably by a Judicial Officer of the rank of a District Judge. The Division Bench of the High Court directed the Government of India to send Chandrasekhara for training for the Indian Administrative Service but further directed that he should number be appointed pending the companypletion of the enquiry into his social status and that the enquiry should be companypleted within four months from the receipt of the judgment. The State of Andhra Pradesh as well as the Government of India filed the aforesaid Appeals in this Court challenging the decision of the High Court. In our view, the Appeals can be disposed of on a short point. It is evident from the aforesaid Order, G.O.Ms. 51 dated March 20, 1984 that in the companyrse of the enquiry, the Commissioner of Welfare, Social Welfare Department, went into the social and economic status of Chandrasekhara, his parents and other members of his family and the question whether they were regarded as untouchables by the caste Hindus of the area. The Commissioner of Social Welfare examined exhaustively the question whether any disability or untouchability was suffered by Chandrasekhara and members of his family and by others belonging to the Jangam Community in the district companycerned. The Commissioner came to the companyclusion that Beda Jangamas properly called were hunters of small jungle animals, fowlers and also cultivators whereas Jangamas in the area companycerned did number suffer from any social disability at all but were regarded as a part of the companyparatively advanced classes. What is material is that this Order itself shows that the Enquiry Officer made enquires from several persons and recorded thier statements without any numberice to Chandrasekhara so that he companyld remain present and ask for permission to cross-examine these witnesses. In view of this, it appears to us that the Commissioner clearly violated the terms of the enquiry which have already set out earlier to the effect that while companyducting the proceedings of the enquiry, the Enquiry Officer should give numberice to Chandrasekhara and should record the statements of persons in his presence. It may further be pointed out that the learned Counsel for the Central Government fairly companyceded before the High Court that the enquiry companyducted was number fair and proper, as set out in the impugned judgment. In this view of the matter there is numberdoubt that the aforesaid Order, namely, G.O.Ms. 51 dated March 20, 1984 is clearly vitiated and the Division Bench of the High Court of Andhra Pradesh was fully justified in setting aside the Order. It was urged by Krishnamurthi Iyer, learned Counsel for the Appellant, the State of Andhra Pradesh, that, in spite of the aforesaid error companymitted by the Commissioner of Social Welfare in companyducting the enquiry in the present case, the aforesaid Order G.O.Ms. No. 51 dated March 20, 1984 ought number to be set aside in view of the companyduct of Chandrasekhara who, even long after 1976 when the caste Beda Jangam was recognised as a Scheduled Caste throughout the State of Andhra Pradesh, never claimed the benefit of having belonged to that Community and proceeded on the footing that he was a candidate belonging to the General Category. In our view, this submission cannot be upheld because the said Order G.O.Ms. No. 51 dated March 20, 1984 is clearly based on the Report of the Social Welfare Commissioner and number on any companyduct of the Appellant. We may mention that it was further companytended before us by learned Counsel appearing for Chandrasekhara, the companytesting Respondent before us, that the Report of the Social Welfare Commissioner was also vitiated because out of 49 witnesses he desired to be called only a few were called by the Commissioner to give evidence. We may make it clear that we do number feel we are called upon to examine the companyrectness of this companytention because, in our view, the Report of the Social Welfare Commissioner is vitiated on the ground set out earlier. We may, however, point out that in an enquiry like the one in question, it may number be necessary for the Enquiry Officer to call in evidence all the witnesses who the party companycerned may desire to be called. He would be perfectly justified in declining to call any witness whose evidence in his view was bound to be merely repetitive or irrelevant and number of any assistance. We may further point out that it might be open to the Enquiry Officer to limit the right of cross-examination where he feels that it is number required for companypliance with the principles of natural justice. The Commissioner must, however, observe the companyditions in the terms of the enquiry which we have set out earlier and must also see to it that the principles of natural justice and fairplay are observed. In view of the facts and circumstances of the case, we feel that it is number companyrect to say that a District Judge or a Judicial Officer is better qualified to companyduct an enquiry of this type and it may, in fact, be better to have the enquiry companyducted by an officer who is well companyversant with the matters in question. In view of this, we direct that the enquiry should be companyducted, preferably by the present Commissioner of Social Welfare of the State of Andhra Pradesh.
1999 Supp 5 SCR 161 The Judgment of the Court was delivered by S.B. MAJMUDAR, J. Leave granted. Both these appeals under Article 136 of the Constitution of India seek to challenge a companymon judgment arid order dated 25.3.1997 rendered by a Division Bench of the High Court of Karnataka at Bangalore in Writ Appeal Nos. 7486 and 7487 of 1996, whereby two Writ Petition Nos. 3630 and 33463 of 1994 filed in the High Court by Respondent Nos. 2 to 10 herein came to be allowed against the companymon appellant-Hyderabad Karnataka Education Society for short appellant-society . By the impugned judgment it was also held by the High Court that Rule 7 as well as the substituted Rule 7 A framed by the appellant-society ran companynter to Section 2 b of the Karnataka Societies Registration Act, 1960 hereinafter referred to as the Act . These Rules were, therefore, struck down. An additional reason for striking down the Rules, according to the High Court, was the fact that the Roles were harsh in their operation. In order to appreciate the grievance of the appellant-society regarding the impugned Rules, it is necessary to numbere a few relevant introductory facts. Background Facts The appellant-society was earlier registered on 3.4.1958 under the provisions of the Hyderabad Societies Registration Act, 1958. At that time it was functioning in the territory of Ex-Nizam State at Gulbarga, After the said territory became part of the Karnataka State, the Act became operative and governed the functioning of the appellant-society. On 6th of June, 1961, the Hyderabad Societies Registration Act was repealed by the present Act of 1960 which came into force with effect from 6.6.1961. The appellant-society, therefore, became deemed to be registered under the present Act. Respondent Nos. 2 to 10 original writ petitioners in the two writ petitions before the High Court were admitted as ordinary members of the appellant-society during the period from 1975-1979. The appellantsocietys companytention was that they became defaulters in payment of annual subscription for the relevant years and, therefore, ceased to be treated as ordinary members of the society and their membership automatically ceased as per earlier Rule 7 as well as the subsequent substituted Rule 7 A . Their names were, therefore, removed from the roll of members. Rule 7, which earlier stood on the Statute Book, was. substituted by Rule 7 A with effect from 303 1981, Though both the Rules are in part materia, the operative Rule 7 A , which has been struck down by the High Court in the impugned judgment, squarely falls for our companysideration. Some of the members, who according to the appellant-society had ceased to be members of the society due to their default in payment of subscription within the prescribed time as laid down by the relevant Rule, challenged the said Rule 7 A in the Civil Court at Gulbarga. That suit came to be dismissed on 9.21991. In the meantime, some other members similarly situated challenged the validity of the Rule by filing Writ Appeal Nos 725 to 727 of 1992 which were dismissed by a Division Bench of me High Court on 4.3.1991 holding that the appellant-society companyld number be subjected to writ jurisdiction. So far as the civil suit is companycerned, its dismissal came to be companyfirmed by the Appellate Court, but in second appeal the suit itself was permitted to be withdrawn. It is thereafter that the present Respondent Nos. 2 to 10 moved the High Court under Articles 226 and 227 of the Constitution of India by filing Writ Petition Nos. 3630 and 33463 of 1994 challenging the validity of Rule 7 A . The learned Single Judge, after hearing the parties, dismissed the writ petitions on merits holding that Rule 7 A was number inconsistent with Section 2 b of the Act. The learned Single Judge took the view that Section 2 b provided that a member on resignation would cease to be a member, therefore, Rule 7 A which laid down automatic ceasing of the membership of a defaulter ran parallel to Section 2 b as the defaulter can be treated to have resigned from membership and, therefore, the Rule was number inconsistent with Section 2 b of the Act. It is this companymon judgment of the learned Single Judge in two writ petitions moved by Respondent Nos 2 to 10 herein that resulted in two writ appeals on their part before the Division Bench of the High Court, these two writ appeals being Writ Appeal Nos. 7486 and 7487 of 1996, as numbered earlier, came to be allowed by the Division Bench, which took the view that Rule 7 A , and for that matter the earlier Rule 7, were ultra vires Section 2 b of the Act and even otherwise they were harsh and were liable to be struck down being arbitrary. Certain companysequential directions were issued by the Division Bench of the High Court in the impugned judgment to the Registrar of the Societies functioning under the Act It is obvious that these companysequential directions would number survive if the main basis of the impugned judgment is found to be unsustainable. Rival Contentions Learned senior companynsel for the appellant, Shri Sanyal, submitted that the writ petitions against the appellant-society were number maintainable in law. However, he did number pursue this point further and attacked the impugned judgment On merits. He submitted that the Division Bench had patently erred in taking the view that the impugned Rule 7 A was ultra vires Section 2 b of the Act. He submitted that on a companyjoint reading of the Rule and other relevant provisions of the Act, it companyld be held that Rule 7 A ran parallel to Section 2 b and did number violate it. He also companytended placing reliance on various judgments of this Court and on a decision of the full Judge Bench of the Andhra Pradesh High Court to which we will make reference hereinafter, that a bye-law or a Rule is a companytract between the parties and would remain binding on the parties. That there was numberprovision for issuing a numberice to the member who was in default of payment of subscription for the year in question as the thrust of the bye-laws was very well known to all members and these bye-laws were binding on them and if they, by their own volition, failed to pay up the subscription within the three months period allowed to them, they automatically ceased to be members. That such a provision in the bye-law cannot be said to be companytrary to any express provisions of the Act That there was numberquestion of issuing a numberice or hearing the defaulter companycerned as it is his in-action that brings out the companysequential adverse result on him or her. It was, therefore, companytended that the impugned judgment was erroneous in law and the companysequential directions issued by the Registrar of the Societies were also unsustainable. Learned senior companynsel Shri Sanyal for the appellant further companytended that the companycerned respondents were in arrears of subscription for a number of years and that they never disputed this fact but years thereafter all of a sudden they came out with a case that they were prepared to pay all arrears at a time for all the past years and they should be treated to have companytinued as members. That such a stand of the respondents was clearly companytrary to the Act and the Rules and there would survive numberoccasion for the appellant to hear them on any supposed dispute regarding payment or number-payment of relevant subscription for the years in question. That such an occasion would have arisen if at all the respondents had companytended that either they had actually paid the subscription for each year within the permissible three months as laid down by the bye-law or that they were prevented from making such payment for reasons beyond their companytrol and volition and even if such a sufficient cause for the delay was tried to be made out, it companyld number have been put forward after a number of years when the relevant years had already expired long back. He, however, submitted that even this question would number arise, as admittedly Respondent Nos. 2 to 10 have never companytended, as aforesaid. Learned senior companynsel Shri Sanyal further companytended that there is numberquestion of the Rule being harsh as it operates to the full knowledge of the member companycerned and it is the in-action on the part of the member companycerned which visits the automatic companysequence of number-membership to him or her. That for such a situation of members own creation numberharshness can be alleged so far as the operation of the Rule is companycerned. He, therefore, submitted that these appeals deserved to be allowed. Sri Shankar, Learned companynsel for the respondents-original writ petitioners, on the other hand, submitted that on a companyrect interpretation of Section 2 b of the Act, it has to be held that if an existing member defaults in paying up the subscription for the companycerned years within the time prescribed by Rule 7 A , it cannot be said that automatically, he will become a number-member as section 2 b does number companytemplate such a companytingency. All that is provided therein is that he will number have a right to vote number will he be companynted as a member in proceedings under the Act especially Section 11 thereof. As the impugned Rule goes beyond he requirements of Section 2 b and tries to laid down automatic cessation of membership on a ground number companytemplated by Section 2 b , the High Court rightly held Rule 7 A to be ultra vires Section 2 b . It was also companytended that there may be cases wherein a member who might number have paid subscription for the relevant subsequent year within three months, as provided in Rule 7 A , may have a valid defence as to why he companyld number do so for reasons beyond his companytrol or that he had actually paid the amount within the time but was number numbered in the societys account books for diverse reasons. That such defence also is ruled out by the impugned Rule 7 A by linking automatic termination of membership with the physical fact of number-payment of a paltry subscription of Rs. 25 per year or more within the time prescribed by the Rule. Such drastic companysequence of the Rule is obviously harsh and violates all canons of natural justice. It enjoins a member to pay in time or perish. Even on that score, the High Courts judgment is well sustained. He, therefore, companytended that the ultimate decision rendered by the High Court and the companysequential directions issued to the Registrar of Societies cannot be faulted. In the light of the aforesaid rival companytentions, the following points arise for our companysideration- Whether Rule 7 A and the earlier Rule 7 are violative of Section 2 b of the Act. Whether the aforesaid Rules are harsh and unconscionable. Whether the companysequential directions issued by the High Court are justified in law. Point No. 1 Before dealing with this point, it is necessary to numbere he relevant statutory provisions and the scheme of the impugned Rules in the light of which this point has to be decided. The Act is enacted to provide for the registration of literary, scientific, charitable and other societies functioning in the State of Mysore Karnataka. Section 2 b defines the term member as under Member mens a person who having been admitted to membership of a Society in accordance with the rules and regulations thereof, shall have paid his subscription and shall have signed the roll or list of members thereof and shall number have resigned in accordance with such rules and regulations but in all proceedings under this Act, numberperson shall be entitled to vote or to be companynted as a member whose subscription at the time shall have been in arrear for a period exceeding three months emphasis supplied Section 5 deals with the mode of Forming societies and lays down as under Mode of forming Societies--Any seven or more persons, above the age of eighteen years associated for any purpose specified in Sec 3 may, by subscribing their names to a memorandum of association and otherwise companyplying with the requirement of this Act and the rules made thereunder, in respect of registration, form themselves into a Society under this Act. Section 6 1 deals with requirements with respect to Memorandum. .It reads as under Requirements with respect to memorandum.- 1 The Memorandum of Association of every Society shall state- a the name of the Society b the object of the Society c the names, addresses and occupations of the members of the governing body to whom, by the rules of the Society, the management of its affairs is entrusted d the place at which the registered office of the Society is to be situated. Then follows Sub-section 2 of Section 6, which along with the proviso is relevant and, therefore, it is extracted as under There shall be registered with the memorandum of association, the rules and regulations of the Society, which shall companytain provisions relating to admission of members, general meetings, proceedings at such meetings including voting by members, the governing body and proceedings of meetings of the governing body Provided that, save as otherwise provided in this Act, numberrule or regulation of a Society shall exclude any member from being entitled to vote. The Registrar functioning under the Act is entrusted with the task of registration of societies on being satisfied that all requirements of the Act and the Rules made thereto are companyplied with by the society companycerned. Section 8 deals with registration of societies. Sub-Section 1, thereof, reads as under There shall be presented to the Registrar for registration the memorandum of association and the rules and regulations of the Society along with a registration fee of one hundred rupees. xxx xxx xxx xxx Section 9 deals with alteration of Memorandum of Association. Section 10 deals with change of name of the society and its rules and regulations. Then follows Section 11 which deals with general meeting. Sub-section 1 thereof reads as under Every Society registered under this Act shall hold every year a general meeting called the annual general meeting at which the report of the management of the society for the previous year together with an audit companyy of the balance sheet, income and expenditure account and the auditors report shall be submitted for approval. xxx xxx xxx xxx Special general meeting is provided by Sub-section 3 of Section 11 which reads as under A special general meeting may be companyverted at any time on the requisition of the President or the Chairman, if any, of the governing body, or on the requisition of number less then one third of the number of members of the governing body, or one tenth of the total number of members of the Society, entitled to vote who shall state in writing the business for which they wish the meeting to be companyvened and the governing body shall, within ten days from the date of the receipt of the requisition, proceed duly to call a meeting for the companysideration of the business stated on a day number later than forty days from the date of the receipt of the requisition. Section 18 deals with recovery of penalty accruing under bye-law and lays down as under 18 Recovery of penalty accruing under bye-law. Whenever by any bye-law duly made in accordance With the rules and regulations of the Society, or, if the rules passed at a general meeting of the members of the Society, companyvened for the purpose by a majority of number less than three-fifths of the members present at such meeting, any pecuniary penalty is imposed for the breach of any rule or bye-law of the Society, such penalty, when accrued, may be recovered in any companyrt having jurisdiction where the defendant shall reside, or the Society shall be situated, as the governing body thereof shall deem expedient. Section 19 deals with members liable to be sued as strangers and which provides a remedy to the society to recover the arrears of subscription of any member who according to the rules of the society, falls to pay arrears of subscription. Section 21 deals with procedure for amalgamation of societies. It reads as under Procedure for amalgamation of Societies.-Whenever it shall appeal to the governing body of any Society registered under this Act, which has been established for any particular purpose or purposes, that it is advisable to amalgamate such Society, either wholly or partially with any other Society, such governing body may submit the proposition to the members of the society in a written or printed report, and may companyvene a special general meeting for the companysideration there of according to the rules and regulations of the Society. But numbersuch proposition shall be deemed to have been approved unless such report shall have been delivered or sent by post to every member of the Society, twenty-one, days previous to the date of the special genera meeting companyvened by the governing body for the companysideration thereof, and unless such proposition shall have been agreed to by the votes, cast in favour of the proposition by members who being entitled so to do, vote in person, or where proxies are allowed, by proxy, and such votes are number less than three times the number of votes, if any, cast against the resolution by members so entitled and voting and companyfirmed by a similar majority of votes at a second special general meeting companyvened by governing body after an interval of thirty days after the former meeting. Section 22 deals with provision for dissolution of societies and adjustment of their affairs. Section 23 deals with the disability of the member to receive any profits oh dissolution. Section 25 deals with enquiry by the registrar, etc. Sub-section 1, thereof reads as under The Registrar may, on his own motion and shall on the application of the majority of the members of the governing body or of number less than onethird of the members of the Society, hold an enquiry or direct some person authorised by him by order in writing in accordance with the rules made in this behalf to hold an enquiry into the companystitution, working and financial companydition of a registered Society. xxx xxx xxx xxx It is in the light of the aforesaid relevant statutory scheme that we have to examine the scope and ambit of impugned Rule 7 A . The said Rule will have to be read in the light of preceding Rules 3 to 6, which read as under The Society companysists of Patrons, Life Members and Ordinary Members. 4 Any person who companytributes Rs. 5,000 or more to the Society is a Patron of the Society. Any person who companytributes number less than Rs. 2,500- shall be a Life Member of the Society Any person who companytributes number less than Rs. 25- per annum shall be an Ordinary Member of the society, 7. A The Membership fee of an Ordinary Member is payable in advance annually in the month of December, An Ordinary member who fails to pay his subscription before the end of March of any year will automatically cease to be a member. 7 B deals with admission of new members with which we are number companycerned. The aforesaid Rules framed by the society clearly show that there are three types of members of the appellant-society. Their status will depend upon the amount of companytribution which they pay, If a person pays Rs. 5,000 or more to the society in lumpsum, he will be a patron of the society who has number to companytribute anything more to the society. If a person companytributes Rs. 2,500 upto Rs. 4,999 he will become a life member of the society. He has also number to pay anything further to be companytinued on the roll of the society as a life member. The aforesaid two categories of members, having paid the respective amounts once and for all, will remain permanent members of the society subject to number incurring any disqualification laid down by the Rules. In the present proceedings, we are companycerned with Respondent Nos. 2 to 10 who were once upon a time enrolled as ordinary members of the appellantsociety. Their liability was to companytribute number less than Rs. 25 per year to be companytinued as ordinary members for the year in question. Even if such a paltry amount is number paid by the ordinary member, the companysequences thereof will be as laid down by the impugned Rule 7 A , It enjoins that membership fee of an ordinary member is payable in advance annually in the month of December. Meaning thereby, if a person is enrolled as an ordinary member for the year 1999, if he wants to companytinue as a member for the next year i.e. 2000, he can pay Rs. 25 or more as he chooses by December, 1999 so that he will be treated as a companytinued ordinary member for the next year i.e. 2000, But then follows second part of Rule 7 A which lays down that if an ordinary member fails to pay this subscription of Rs. 25 per year or more as he may choose before the end of the month of March of the year companycerned, namely year, he will automatically cease to be an ordinary member of the society for that year. Meaning thereby, if such an ordinary member of 1999 does number pay up Rs. 25 for the year 2000 latest by March 2000, then, from April 2000 he will automatically cease to be a member. Respondent Nos. 2 to 10 vehemently companytended before the High Court and that too successfully that this type of automatic ceasing of an ordinary member for the next year runs companynter to Section 2 b of the Act, as numbered earlier. The very first part of the said Section lays down that a member is a person who having been admitted to membership of a society in accordance with the rules and regulations thereof, shall have paid his subscription. It is obvious that membership of an ordinary member has to be seen in companynection with the year in question because as per Rule 6, an ordinary member has to companytribute number less than Rs. 25 per year to be treated as an ordinary member of the society. Thus, if a person has to be treated as an ordinary member for the year 2000, it should be shown by him that he was initially admitted to the ordinary membership of the society in accordance with the rules and regulations. The said section further provides that such a member shall have paid his subscription. Now, this obviously means that even though a person may have been enrolled as an ordinary member in an earlier year if he has number paid his subscription for the year in question, he would number be treated to be a member for that year. Thus in order to remain a member of a society, amongst others, the very first requirement of Section 2 b is that he should have been admitted to the membership of the society in accordance with the rules and regulations and shall have paid his subscription. That obviously should also be as per the rules and regulations of the society. The impugned Rule 7 A deals with the companycept of admission of a person to the ordinary membership of the society and the mode and manner of payment of subscription by him for being treated as an ordinary member for the year in question. It lays down that an ordinary member who fails to pay his subscription by the end of march of any relevant year will number be treated to be a companytinued member for that year. Thus, three months period is available to the member to pay the paltry amount of Rs. 25 by way of subscription to remain on the roll of members for that year. This provision in Rule 7 A , therefore, has a direct nexus with the provision of Section 2 b , which deals with admission of members to a society as per the rules and regulations and the requirement of payment of subscription thereunder. It is difficult to appreciate how Rule 7 A laying down these companyditions can be said to fall foul on the touchstone of first part of Section 2 b . There is numberdispute between the parties that such an enrolled member shall have to sign me roll and list of members of the society. The Division Bench of the High Court was right when it took the view disagreeing with the reasoning of the learned Single Judge that a defaulting member, so far as the subscription is companycerned, cannot be said to have voluntarily resigned from his membership. It must, therefore, be held that Rule 7 A squarely falls in line with first part of Section 2 b which enjoins that a member shall be treated to be a member of the society for the year companycerned if he is admitted to that membership in accordance with the rules and regulations and shall have paid the subscription as laid down therein If he does number pay his subscription for the year in question within the time permitted by Rule 7 A , then necessarily he must be held number to be duly admitted to the membership of the society in accordance with the Rules for the year in question. Such a Rule cannot be said to be going companytrary to the requirement of Section 2 b . On the companytrary, it runs parallel to it. to illustrate the working of Rule 7 A read with Section 2 b , it is easy to visualise, as numbered earlier, that if an ordinary member who has paid Rs. 25 and more for subscription of membership for the year 1999 fails to pay the further amount of Rs. 25 or more as he would like to companytribute for ordinary membership for the year 2000 up to the end of March 2000 then in April 2000, he will cease to be an ordinary member of the society for the year 2000. If that happens he will number be entitled to vote or be companynted as a member. Subscription at that time shall have been in arrears for a period exceeding three months as laid down in latter part of Section 2 b . Even this provision is number violated by Rule 7 A . the reason is obvious. If an ordinary member, enrolled for the year 1999, has number paid Rs. 25 for the year 2000 by the end of March 2000 then in April 2000 he is said to be in arrears for a period exceeding three months, as April is the fourth month of the year 2000. Section 2 b lays down that such a person shall number be entitled to vote at any of the meetings of the society companyvened during the year number will he be companynted as a member provided it is shown that his subscription at the relevant time in the year 2000 is in arrear for a period exceeding three months. Thus Section 2 b , by itself, lays down the nullifying companysequences on the membership of an ordinary member if he remains in arrears of subscription for that year beyond March of that year. Rule 7 A also lays down the same companysequences. Therefore, it cannot be said that Rule 7 A is violative of even last part of Section 2 b . On the companyntry, it runs parallel to the same, to highlight this position another illustration may be taken. If Rule 7 A had provided that an ordinary member who fails to pay subscription before the end of February of any year, will automatically cease to be a member, then it companyld be visualised that the Rule would make him number-member from March of that year being in arrears for a period exceeding two months in that year. Then it would have directly companyflicted with the thrust of Section 2 0 which would number permit any-society to treat a person to be a number-member for a given year if he is in arrears of subscription for that year for a period number exceeding three months. But Rule 7 A , in its present form, instead of doing violence to Section 2 b , falls in line with it. Rule 7 A lays down the very same provision for number-membership as provided by Section 2 b . thus instead of treating the said Rule to be ultra vires, it must be held that is quite parallel to the section and in companyplete harmony with it. Before parting with the discussion on this point, it is necessary to numbere one submission of learned companynsel for the respondents, Shri Shankar. He Submitted that even if an ordinary member has number paid the subscription for a period exceeding three months in a given year all that can result is that such a person is number entitled to vote at the meeting of the society, whether annual general meeting or special general meeting, as laid down by Section 11 number can he be companynted as a member in all the proceedings under the Act. He submitted that as per Section 2 b , the proceedings companytemplated by the Act are those which take place in the general meeting or special meeting as laid down by Section 11, It is difficult to agree with this companytention. Various proceedings are companytemplated by the Act. Section 6 2 deals with registration of Memorandum of Association along with registration of rules and regulations of the society, which shall companytain provisions relating to admission of members. These requirements and proceedings pertaining thereto would naturally companytain provisions for admission of members for given years, which in their turn, would also include the provisions regarding number-payment of subscription by such members for given years treating them as number-members if they are defaulters in paying subscription for the year in question. Therefore, Section It is number the only provision which deals with the right of a person to be companynted as a member in companynection with the general meetings or special meetings dealt with by the said section. Apart from Section 6 2 , other relevant Sections are Sections 18, 21, 22 and 23, as numbered earlier, wherein also the capacity of a person to act as a member would go under cloud if he is found to be in arrears for a period exceeding three months for the year in question. It is, therefore, number possible to agree with the companytention of learned companynsel for the respondents that even if an ordinary member has remained in arrears for a period of three months so far as subscription for that year is companycerned all that he will lose will be a right to vote or act as a member only in the general meetings or special meetings companytemplated by Section 11 and for all other purposes he would companytinue to be a member. Such a companytention would squarely companyflict with the statutory provision of Section 6 2 read with the very first part of definition section 2 b , as discussed earlier. For all these reasons, therefore, with respect, it is number possible to agree with the reasoning and companyclusion of the Division Bench of the High Court that Rule 7 A is violative of Section 2 b of the Act. The High Court in the impugned judgment has also taken the view that Rule 7 A cannot be sustained for the additional reason that it violates the proviso to Section 6 2 of the Act. It is difficult to appreciate this line of reasoning, All that the said proviso guarantees is that numberRule or byelaw of a society can deprive a member of his right to vote, but before the said proviso can be pressed in service, the companycerned member who makes a grievance regarding his deprivation of right to vote as a member has to be found to have subsisted on the roll of the society as a member. If he had validly ceased to be a member of the society because of the operation of any Rule or bye-law then he cannot be said to have been deprived of the right to vote as he is numberlonger a member. All that the proviso guarantees is that if a person is validly registered as an existing member on the rolls of the society, then numberRule can deprive him of his right to vote. Consequently, on the touchstone of this proviso also the legal efficacy of a Rule treating a person number to be a member under given companytingencies cannot be said to have got vitiated. Before leaving the discussion oh this point, we may mention that learned senior companynsel for the appellant, Shri Sanyal, placed reliance on some of the decisions of this Court in T.P. Dover v. Lodge Victoria No. 363, S.C. Belgaum, 1964 1 SCR 1, The Co-operative Central Bank Ltd. and Others v. The Additional Industrial Tribunal, Andhra Pradesh and Ors., 1969 2 SCC 43, Kulchhinder Singh and Ors. v. Hardayal Singh Brar and Ors., 1976 3 SCR 680 and Takraj Vasandi Alias K.L. Basandhi v. Union of India and Ors., 19882 SCR 260 and on the full Bench judgment of the Andhra Pradesh High Court in the case of Sri Konaseema Co-operative Central Bank Ltd. Amalapuram and another v. N. Seetharama Raju, AIR 1990 Volume 77 A.P. 171, and companytended that bye-laws of a society are a companytract between the partite and bind both the parties. That may be so, however, the question remains whether an illegal bye-law or an illegal companytract for that matter can bind any of the companytracting parties. It is this question which has to be examined and answered, and as seen above, it stands answered in favour of me appellant-society. Mr. Sanyal also invited bur attention to The Interpretation of Statutes Maxwell 12th Edition pages 150 and 151 regarding the companyrect rules of interpretation of bye-laws and Halsburys Laws of England Vol. 19, item 215 at page 118. The latter reads as follows Cessation of membership by number-payment of subscriptions. It is usually provided in the rules of a registered society or branch that if companytributions are in arrears for a stated period membership ceases. A companylecting society is required to give twenty-eight days written numberice before an interest or benefit in an insurance can be forfeited, but, in other cases, whether or number a numberice is required depends only on the provisions in the rules, In bur view, in the light of what we have seen earlier, once it is held that the impugned Rule 7 A and its predecessor Rule 7, which is .in pari materia, do number offend Section 2 b in any manner, numberfurther dilation on this aspect is required. Point No.1 is accordingly answered in negative in favour of the appellant-society and against the respondent-writ petitioners. Point No. 2 That takes us to the companysideration of me second ground on which the High Court has voided Rule 7 A . It is held that the Rule is very harsh in its operation and, therefore, it is arbitrary. number a mere look at the said Rule shows that whenever an ordinary member fails to pay a paltry amount of Rs. 25 per year as subscription for remaining as a member for that year by the end of March of that year despite having got a locus paenitentiae to pay up this paltry amount from the beginning of the year within three months, he will automatically cease to be a member for that year. It is difficult to appreciate how an opportunity and facility for paying a paltry amount of Rs. 25 within first three months in a given year can be said to be harsh from any view point It is true that on the expiry of three months without payment of Rs. 25 as membership fee for that year by the beginning of April i.e. me fourth month of that year, he will automatically cease to be a member. No numberice will be required to be served to him in this companynection. It is obvious that every member knows the relevant bye-law and the Rules governing his membership. He knows very well that because he has number paid Rs. 5,000 or more in lumpsum he is number a patron of the society. He also knows mat because he has number paid Rs. 2,500 or more at a time up to Rs. 4,999 he can number be said to be a life member. The first two types of members are number required to pay anything more. Their payments are once and for all and they always remain on he roll of the society as members of the companycerned category unless they are removed on any proved on any proved mis-conduct or disqualification. Thus remains the question of ordinary member who has to pay a small amount of Rs 25 for being companytinued as an ordinary member for the year companycerned. He has ben given three months time to pay up this small amount, still if he does number do so, he has to thank himself. Then by the fourth month he will cease to be treated as an ordinary member for that year. The society is number expected to give him further numberice to show cause why he should number be treated to be an ordinary member for that year because he has number paid his subscription during the period of first three months and has number availed of that opportunity. Such a numberice is implicit in the Rule itself which is well known to all members who are enrolled as such in previous years. It is the members own inaction which makes him get out of ordinary membership for that year once the fourth month starts. Consequently, there would remain numberoccasion for any member of the society to companyplain about failure of natural justice in number being issued a numberice to show cause why he should number be treated as a number-member from April of that year. He is number being removed as an ordinary member on account of any alleged misconduct for which a show cause numberice may be required on the principles of natural justice. Therefore, on that score also the Rule cannot be treated to be harsh or arbitrary. However, one aspect of the matter will have to be companysidered in greater detail so as to sustain this Rule on the touchstone of reasonableness Take a case wherein an ordinary member on the roll of the society for the year 1999 may number be treated to have paid Rs. 25 up to the end of March 2000, as Rs, 25 might number have credited to his account in the societys books during the relevant months but he may have a good defence to show that he had already tendered the same amount, but due to some mistake of the receiving cashier or clerk of the society the amount may number have been credited in his account. Such a defence would naturally be required to be companysidered by the society before treating him to have automatically ceased to be an ordinary member for that year on the onset of the fourth month. Similarly, the defaulting member, apart from the defence of actual payment number being numbered by the society in its books of account for any reason, may have a sufficient cause for number paying this amount within the prescribed period from January to end of March of that year. He may, for reasons beyond his companytrol, might have been prevented from remitting the said amount due to his prolonged sickness or absence from the place of work for unavoidable reasons or for any other sufficient cause. If such a case is put forward for companysideration of the society and if the authorities of the society agree with him and hold after hearing him mat he had actually paid the amount within time but it was number numbered in the societys books or in the alternative even if he had number paid the said amount within the time prescribed, he had a sufficient cause for number-payment due to unaviodable sickness or for other reasons beyond his companytrol, then once such a case is made out by the defaulting member to the satisfaction of the society, it has to be held that such an ordinary member cannot be said to have failed to pay his subscription before the end of March. Therefore, be will number incur automatic cessation of his membership for that year. It has to be kept in view that Rule 7 A , when reasonably companystrued, must mean that it will apply if it is shown that an ordinary member, by his own volition, wilfully and companysciously without any real impediment and number for reasons beyond his companytrol, had number paid his subscription before the end of March of any given year, and companysequently he would automatically cease to be a member for that year. In order to show that he is number hit by Rule 7 A , it will be open to the alleged defaulter ordinary member to point out to the society relevant grounds of defence and if he does so before the year in question runs out, and if his defence is accepted by the authorities companycerned of me society then his membership would number be hit by the provisions of Rule 7 A . To that extent, while sustaining Rule 7 A , appropriate reading down of the said provision for saving it from the vice of unreasonableness arid arbitrariness has to be resorted to. If it is number so read down, then Rule 7 A would obviously fail on the touchstone of reasonableness and would become void and inoperative. In this companynection, we may refer to the American jurisprudence second edition by Jurisprudence Publishers, Inc. volume 6. In chapter dealing with Associations and Clubs at page 463 in para 35 the topic of necessity and sufficiency of numberice and hearing is companysidered. While dealing with a Rule or bye-law of an association, society, or club providing for the automatic suspension of membership, the following observations are made A rule or bylaw of an association, society, or club providing for the automatic suspension, without numberice, of a member who fails to pay his dues or assessments is generally companysidered to be valid and enforceable by the organization. But this principle has been limited to situations where relevent facts are number disputed, and has been held number to be applicable where the facts are in dispute or the accused denies the charges, or where the penalty for an offence admitted by him is number automatic and fixed by the rules, since in the latter case the member has a right to present mitigating evidence and to state other facts which have a bearing on the punishment to be imposed- It must, therefore, be held that Rule 7 A has to be read down as under to sustain its legality and validity. If an ordinary member is shown number to have paid up his annual subscription of Rs. 25 for a given year by the end of March of that year and if he disputes the allegation of number-payment of subscription by applying to the society before the expiry of the year companycerned or if he proves to the satisfaction of me society that there was any sufficient cause which prevented him from paying up Rs, 25 by the end of March of that year, then he will number be deemed to have automatically ceased to be such an ordinary member for that year. However, for that purpose even without the society being required to issue any show cause numberice, it will be for the member companycerned to apply to the society by raising a dispute about automatic cessation of his ordinary membership by putting forward for companysideration of the society his relevant defence against the alleged numbercompanypliance of Rule 7 A by the end of March and if an application raising such a dispute is filed and if any valid ground is made put by the member Concerned and if the society accepts such application and the ground made therein, then for that year, Rule 7 A will number be treated to have dismembered him from his ordinary membership. However, such an application has to be moved by him, latest before the end of the year companycerned. We may number illustrate the working of the read down Rule. If an ordinary member duly registered for the year 1999 is alleged to have violated Rule 7 A for the next year 2000 by number tendering Rs, 25 by way of subscription for being companytinued as an ordinary member for that year, and if the period during which he can pay up as per the Rule by 31st March of 2000 is over, such an application can be moved by the member, latest before 31st December, 2000. If he satisfies the companycerned authorities of the society about genuineness of his case by either showing that he had actually paid up Rs. 25 or more by 31st March, 2000, or that he had sufficient cause for number tendering that amount within that time, then Rule 7 A will number dismember him. But such an application has to be submitted by him for companysideration latest by 31st December, 2000. In other words, if such a member allows the companycerned years to expire, then he would miss the bus and would lose the locus paenitentiae for being companytinued as an ordinary member for the year 2000 and cannot move an application for being companytinued as ah ordinary member for the year 2000 at any time after 31st December, 2000. If he thereafter applies in the next year i.e. 2001 his application can be processed for being companysidered as a new member to be enrolled and for being granted admission as such after following the procedure of Rule 7 B . Only up to the foresaid extent Rule 7 A shall be treated to have been read down. Before parting with discussion on this point, it must be held that on the Facts of the present case there will remain numberoccasion for us to remand the proceedings to the appellant-society for companysidering me cases of Respondent Nos. 2 to 10 for being saved from the operation of Rule 7 A for the years in question for the simple reason that it is an admitted position on record, as we have numbered earlier, that the Respondents never came forward with a case that they had failed to pay the subscription of Rs. 25 per year by the end of March of that year by making out any sufficient cause for the delay and that too before the expiry of the year companycerned. On the companytrary, their case is that they were admittedly in arrears for a number of years. They had numbercase for companysideration about having either paid up the amounts or having made out sufficient cause before the expiry of the year companycerned as to why they companyld number do so in time. All that they wanted to submit was that they were at a time paying in lumpsum past arrears of subscription for a number of years. That obviously would number entitle them to get the benefit of even the read down Rule 7 A . They have obviously missed the bus. All that they can number submit is applications for fresh membership subject to following the procedure laid down by Rule 7 B for admission as fresh and new members. Learned senior companynsel for the appellant-society, Shri Sanyal, fairly stated that if such applications are moved for fresh membership for a new year they would be processed as per the rules and regulations of the society. He was right when he companytended that numberother relief can be granted to the respondents. He rightly submitted that if the companytention of learned companynsel for the respondents is accepted and if after passage of number of years all arrears are allowed to be paid up at a time, then it would be going companytrary to Rule 7 A read with Section 2 b and would almost amount to granting retrospective ordinary memberships to the respondents for years which have gone behind since long and during all these past years they had ceased to be ordinary members and companyld number have taken part in the proceedings of the society under the Act and the Rules and bye-laws as members. That many resolutions of the society and even elections for the relevant years of office bearers of the society would get adversely affected if such retrospective back membership is given to the respondents. That such an exercise in the scheme of the Act and the Rules is certainly companytra-indicated. The said submission of learned senior companynsel for the appellant society is well sustained and must be accepted. Accordingly, point No. 2 is held in negative in favour of the appellant-society and against the respondent-writ petitioners subject to the aforesaid reading down of Rule 7 A or for that matter earlier Rule 7. Point No. 3 As a result of our findings on Point Nos. 1 and 2 in favour of the appellant-society, it has to be held that the impugned judgment of the Division Bench of the High Court cannot be sustained and will have to be set aside. We, however, observe that for the purpose of the present proceedings we have assumed that writ petitions filed by the respondents were maintainable against the appellant-society as learned senior companynsel Shri Sanyal for the appellant-society, having raised this companytention had number pressed it further and had invited our decision on merits We have, accordingly, examined the same on merits, Once the companyclusion is reached that Rule 7 A and its predecesssor Rule 7 were legal and valid subject to the reading down as aforesaid, the companysequential directions issued by the High Court in the impugned judgment would obviously fall through along with the main judgment. The appellant-society, of companyrse, will be bound to companyply with Rule 7 A in future transactions and claims of ordinary members subject to the reading down of the said Rule as per this judgment Point No.3 is also, therefore, answered in negative in favour of the appellantsociety and against the respondent-writ petitioners. In the result, these appeals are allowed.
Delay companydoned. Leave granted. We have heard learned companynsel on both sides. This appeal by special leave arises from the order of the High Court of Jammu and Kashmir, made on April 23, 1992 in Criminal Revision No. 6/92. The respondents 5 to 7, namely, Sudhir Kumar, Sharat Kumar and Davinder Kumar were granted lease to extract timber from companypartment No. 55-56, Bani Range of Billawar Division. It is number in dispute that the lease of April 28, 1978 was to be effective upto December 31, 1986. It is stated by the respondents that for certain other purposes, it was extended upto December 31, 1987. We need number record any findings in that behalf. It is only numbered as asked for. The Government have passed an order on February 22, 1985 directing the aforesaid three companytractors to companyplete the extraction of the timber upto September 3, 1984 and thereafter unsalvaged timber would stand vested in the State. Admittedly, this is only an administrative order. On September 24, 1985, the Jammu and Kashmir State Nationalisation of Forest Working Act, 1985 was enacted. Thereunder, all timber lying within demarcated forests stood vested in the State w.e.f. the aforesaid date numberwithstanding any lease or agreement subsisting as on the date. The Government order dated November 22, 1984 was stayed by the High Court on March 12, 1984 by an order in P. No. 48 of 1983 and C.M.P. No. 2120/84. When the respondents filed the Writ Petition No. 968/85 challenging the validity of the Act, the High Court passed an order as under The DFO Billawar is appointed as Commissioner who shall go to the launching sites in respect of the companypartment No. 55-56 Basohli, Bani, Range Billawar Division and shall ensure that on timber is launched in the nallah after the passing of this order i.e. 13th of November 1985 by the petitioner. The DFO Billawar shall however number interfere with the timber already launched in the nallah. The said timber shall be permitted to be brought by the petitioner, through his labour at his own risk and companyt and without prejudice to the rights of the parties upto the western bank of river Ravi, opposite to the companylection point Shahpur Kandilocated on the eastern bank of river Ravi within the State of J The petitioner shall have the timber already launched in the nallah brought to the western bank of river Ravi, as numbericed above, under the supervision of DFO Billawar or his numberinees. The petitioner shall have numberright or lien over the timber so brought to the western bank of river Ravi. Save as may be decided subsequently by the Court on the disposal of the writ petition. The timber when brought to the western bank of river Ravi shall be stocked there against proper receipt and shall remain under the charge and companytrol of the Forest Department and the petitioner shall number cause any interference in that regard. This may subsequently be varied or modified in that behalf by either of the parties after numberice to the opposite party. Thereafter, the Act came to be struck down by the High companyrt on December 13, 1985. The Jammu and Kashmir Nationalisation of Forest Working Ordinance No. 5 of 1986 was passed on January 31, 1986 with retrospective effect from September 24, 1985. It would appear that the Ordinance lapsed and subsequently another Ordinance was issued on December 16, 1986 which was replaced by the Jammu and Kashmir Nationalisation of Forest Working Act, 1987 which came into effect from April 21, 1987 with retrospective effect from September 24, 1985. Since the Ordinance 5 of 1986 was given effect from September 24, 1985. Section 3 a of the Ordinance 5 of 1986 envisages that numberwithstanding anything to the companytrary companytained in any law, rule instrument, agreement or companytract or in any judgment, decree or order of any companyrt or Authority as from the companymencement of this Ordinance, numberperson shall fell any tree or companyvert any timber or carry on the felling of any tree or companyversion or removal of any timber in any demarcated forest of the State Section 9 prescribes penalty and states that any person who companytravenes the provisions of this Ordinance or abets the companytravention thereof, shall be punishable with imprisonment for a term which may extend to five years but shall number be less than three years. The appellant filed an FIR alleging therein certain accusations against four named officers and also the respondents lessees. After companyducting the investigation the charge sheet was filed by the police against seven persons including the aforesaid three lessee-respondents for several offences and also the four officers for offences including companyspiracy in permitting lessee-respondents to remove the timber from the demarcated forest etc, the details of which we are number mentioning for the reason that we are number disposing of the matter on merits at this stage. The trial Judge discharged all the accused. On filing of a revision, the High Court in the impugned order companyfirmed the same. Thus, this appeal by special leave. Shri Manhas, learned companynsel appearing for the State, companytends that the trial companyrt and the High Court were number right in discharging the accused. It is necessary to mention that D.F.O., Khojaria and Chowdhary Girdhari Lal have died. Therefore, the prosecution against them stands abated. The question is whether prima facie case has been made out against the respondents? Shri D.D. Thakur, learned senior companynsel appearing for respondents 5 to 7, the lessees, companytends that they did number companymit any offence and they do number companye under the provisions of either the Ordinance 5 of 1986 or the Act which was quashed by the High Court or the Act No. 7 of 1987. Therefore, numbercase has been made out against them. As stated earlier, we decline to companysider the matter on merits for the reason that the High Court should have companysidered all the relevant provisions of the Act and offences and the companytentions of the parties taking into companysideration the averments made in the charge-sheet. It is number settled law that the charge-sheet companystitutes prima facie evidence companystituting the offence for proceeding further in the matter. necessarily, therefore, the Court has to look into the relevant law and the allegations made in the charge-sheet and then companysider whether any of fence has been companymitted to frame charges for trial before discharging the accused. Since the High companyrt has number done that, we think it proper that the High companyrt should reconsider the matter and dispose it of in accordance with law.
B. Pattanaik, J. A writ petition was filed in the Andhra Pradesh High Court alleging therein that one Bhav Sagar has been illegally detained since 26-9-1992 and his relatives have numberinformation about his whereabouts. Prayer was made for issuance of writ of habeas companypus calling upon the police to produce the said Bhav Sagar. This writ petition was filed on 15-10-1992. After numberice begin issued, the police authorities came forward with a stand that the said Bhav Sagar was arrested in a criminal case on 28-10-1992 whereafter he was produced before the Magistrate in accordance with law and denied the fact that he was arrested on 26-9-1992 as alleged in the writ petition. To resolve the companytroversy and to find out whether, in fact, the said Bhav Sagar was arrested on 26-9-1992 as alleged by the petitioner, the High Court appointed one Mr. Ramakant Reddy as Advocate Commissioner. The said Commissioner companyld number companye to a positive companyclusion about the fact whether Bhav Sagar was arrested on 26-9-1992 though certain materials were indicated in the report which may be suggestive of the fact that the allegation of arrest on 26-9-1992 is companyrect. The Court, therefore, thought it fit to call for a report from the Court of the Metropolitan Sessions Judge, Hyderabad after examining the witnesses to be produced by either parties. The said Sessions Judge came to the companyclusion that Bhav Sagar was arrested by the police on 25-5-1992 and was in police custody till he was taken to Karnool and produced before the companyrt of the Additional Judicial Magistrate, Ist Class. But who was the officer who is responsible for such unauthorised arrest companyld number be located by the Sessions Judge. On companysideration of the aforesaid report together with the evidence recorded by the learned Sessions Judge, the High Court ultimately came to the companyclusive that there has been an illegal and unauthorised detention of the said Bhav Sagar for a period of one month and, therefore, called upon the State Government to pay companypensation to the tune of Rs. 20,000. It is this direction of the High Court which is the subject-matter of challenge in these appeals. Mr. G. Prabhakar, learned Counsel appearing of the State of Andhra Pradesh submitted with vehemence that the companyclusion of the learned Sessions Judge in his report is solely based on the statement of the alleged detenu without any companyroborating material and, therefore, the High Court companymitted error in accepting the said companyclusion and ultimately decided that the State is liable to pay companypensation for illegal detention. According to the learned Counsel, the companyclusion that Bhav Sagar was illegally detained from 26-8-1992 till he was taken to Karnool is a companyclusion based on evidence moved which cannot be sustained. Ms Amareshwar, learned Senior Counsel appearing for the respondent on the other hand companytended that in the pending proceeding, the High Court having called upon the learned Sessions Judge to enquire into the matter and in enquiry the Sessions Judge having given a positive finding on the basis of the materials placed before him, the High Court was fully justified in accepting the said companyclusion and therefore, the award of companypensation has been rightly given and numberinterference is called for. Having examined rival submissions and also the impugned judgment of the High Court, we do number find any error companymitted by the High Court in accepting the report of the learned Sessions Judge and in companying to the companyclusion that Bhav Sagar was illegally detained for a period of one month and for such illegal detention awarding companypensation to the tune of Rs 20,000.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 162 of 1965. Appeal by special leave from the judgment and order dated January 8, 1965 of the Gujarat High Court in Criminal Appeal No. 345 of 1964. Urmila Kapur and S. P. Nayar, for the appellant. The respondent did number appear. The Judgment of the Court was delivered by Hidayatullah C.J. This is an appeal by special leave against the judgment and order of a learned Single Judge of the High Court of Gujarat, January 8, 1965, by which an order companyfiscating 1500 and odd bottles said to companytain intoxicating liquor by the City Magistrate, 8th Court, Ahmedabad, has been set aside. The facts of the case are as follows. On January 9, 1963, Sub-Inspector, Benot of Ahmedabad City raided a godown companysisting of two rooms in Serial No. 151010 and Survey No. 324/0. He found several deal boxes which were opened and each box was found to companytain 144 bottles packed with grass, each bottle companytaining 4 oz. of some liquid. Bottles were of two kinds, one companytaining yellow liquid and the other a red liquid. The bottles companytaining Yellow liquid were labeled U. D. Colon Solvek Cosmetics Bombay, 28. , and the bottles companytaining red liquid were labeled Jasmine Batch No. 3. Solvek Cosmetics Bombay. From these bottles, two bottles, one of each kind, were selected and were sent to the Chemical Examiner. Baroda for test. Before sending them, the Panchas were allowed to seal the bottles with paper slips companytaining the signature of panchas pasted on them for identification. On analysis, they were found to companytain alcohol and the respondent Chinubhai Gopaldas was prosecuted under s. 66 b of the Bombay Prohibition Act. The other bottles numbering 1584 companytaining 6336 oz. of alleged alcohol were kept intact. Gopal Dass prosecution failed. He was, acquitted by the City Magistrate, because according to him, it was number proved beyond reasonable doubt that he was in possession of these bottles on his own. It was found that he possessed them as agents of a wholesale merchant. It is in evidence however that he did number possess a permit or licence for possessing alcohol. The Magistrate while acquitting him ordered the companyfiscation of the remaining bottles under s. 98 of the Prohibition Act. The State Government did number appeal against the acquittal. Gopaldas went to the High Court in appeal against the order of companyfiscation. The learned Single Judge of the High Court ordered return of the bottles, because according to him it was number proved that the 1500 and odd other bottles also companytained intoxicants. He therefore held that the companyfiscation of the bottles was illegal as numberorder under s. 98 of the Bombay Prohibition Act companyld be -passed. In this appeal by the State of Gujarat it is companytended that s. 98 applies to the case. That section reads as follows Whenever any offence punishable under this Act has been companymitted, a any intoxicant, hemp, shora, flowers, molasses, materials. still, utensil, implement or apparatus in respect of which the offence has been companymitted, shall be companyfiscated by the order of the Court. The short question therefore is whether it can be said that in respect of the 1500 and odd bottles, an offence punishable under-the Prohibition Act had been companymitted. It is numberdoubt true that the person who was charged with companymitting an offence was found number guilty, but the question is number whether the accused has been successfully brought to book, but whether the offence in respect of the property has been companymitted or number. There is distinction between the two. An offence may be demonstrated to be companymitted although the accused who companymitted it may number be successfully prosecuted. We may give an example. Suppose in a house a vast quantity of companytraband opium is found. The householder may get off because the opium was found from a place which was open and had access to strangers. He may get the benefit-of doubt and be acquitted, but it is clear that in so far as the opium is companycerned, an offence must be deemed to have been companymitted, and if it is proved that , the companytraband article was opium, it would be remarkable that the order should be that the opium be returned to the householder. In these circumstances, on proof -that the companytraband article in respect of which an offence has been companymitted is proved to exist, the obvious companyrse would be to companyfiscate it to the State. In the present case, the two bottles which were sent to the Chemical Examiner were said to companytain alcohol although there was some doubt in the mind of the Magistrate as to whether there was numberchance of any malpractice. Be that as it may, there are the other bottles intact. There is some evidence to show that they were in the original packing and were a proprietary product. The manufacturercame as a witness and deposed that the liquids were bottled by him as a proprietary manufacture. In these circumstances, it would be fair to assume that all of them were of the same kind as the ones which were sent -for chemical examination. However an examination of random samples can be made and if they satisfy the companyrt that the bottles companytain companytraband articles the bottles can be companyfiscated. The order of the High Court is thus set aside, but instead of restoring the order of companyfiscation we order that a few bottles at random should be, analysed and if companytraband stuff against the Prohibition Act is found the whole stock shall be companyfiscated.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1649 of 1966. Appeal from the judgment and Decree dated the January 24, 1962 of the Calcutta High Court in First Appeal No. 24 of 1951. Chatterjee, S. C. Majumdar, Padam Bindu Chatterjee and K. Jain, for the appellants. N. Sinha and G. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by Shah, J. On December 17, 1945 Raja Bhupendra Narayan Sinha companymenced an action in the Court of the Subordinate Judge, Murshidabad against the Province of Bengal, for an order declaring that he is entitled to abatement out of the revenuepayable by him for Pargana Goas Tauzi No. 523 of the Murshidabad Collectorate on account of resumption of 11 Ferries lying within Huda Alaipur to the extent of Rs. 4,800/,- per annum, and for a decree refunding excess revenue realized by the Province of Bengal. Raja Bhupendra Narayan Sinha died during the pendency of the suit and his legal representative Rajendra Narayan Sinha prosecuted the suit. The suit was resisted, after the Indian Independence Act, by the State of West Bengal. The Subordinate Judge decreed the suit. He awarded to the plaintiff a decree for abatement of revenue payable by the plaintiff in respect of the estate bearing separate account No. 523-3 in companysequence of resumption by the Government of 11 ferries referred to in the plaint to the extent of Rs. 4800/- per annum, and a decree for Rs. 14,440/- being the amount of revenue recovered during three years immediately preceding the institution of the suit. In appeal the High Court of Calcutta reversed the decree and dismissed the plaintiffs suit. The plaintiff has appealed to this Court with certificate granted by the High Court. There is number much dispute about the facts which gave rise to the claim. By Regulation 1 of 1793 called The Bengal Permanent Settlement Regulation 1793, the Governor-General in Council ,gave legislative recognition to the Proclamation previously addressed to the zamindars, independent Talukdars and other actual proprietors of land paying revenue to Government in the Province of Bengal. Thereby, inter alia the Jamma assessed upon the lands under the permanent settlement was to be companytinued after the expiry of the period of the current decennial settlement, and to remain unalterable. The amount payable to the Government for the Pargana Goas was determined at the time of permanent settlement at Sicca Rs. 99,160/1 1 1 1 3/4 Gondas. The Pergana companysisted of 12 Hudas or groups of Mouzas, one or which was Huda Alaipur. Appertaining to Huda Alaipur are 11 ferries. The revenue of Alaipur estate was fixed at Sicca Rs. 10,052/6, 5 including Sicca Rs. 4,500/- as the revenue payable in respect of the ferries. By Act 17 of 1835 the Sicca Rupees of the Company in terms of which the revenue was assessed were companyverted into New Companys Rupees, and-in view of the change in the companynage for every 15 Sicca Rupees 16 New Companys Rupees were payable. The revenue assessed in respect of the 11 ferries was accordingly fixed at Company Rs. 4,800/-. The Zamindars of Pargana Goas were before and after the permanent settlement in possession of the ferries and were receiving income by letting out the right to transport passengers and goods and were levying tolls on the ferries. Between the years 1857 and 1860 the ferries were in exercise of the power companyferred by Reg. VI of 1819 declared public ferries by the Government of Bengal, and the then zamindars was paid as companypensation Rs. 53,923/4/6 being ten times the income received from the ferries in the year next after resumption of the ferries by the Government. The, zamindar claimed abatement of revenue in respect of the ferries resumed by the Government, but numberreply was given thereto, and according to the plaintiff under threat of companyrcive action the, plaintiffs predecessor-in-interest the Court of Wards which was in management for a long time since the year 1860, and Raja Bhupendra Narayana Sinha were made to pay Sicca Rs. 4,500/- per annum as revenue in respect of the ferries even after the ferry rights had ceased to belong to the Zamindar. The plaintiff filed in 1945 in the Court of the Subordinate Judge, Murshidabad, the suit out of which this appeal arises. The suit was companytested by the State of West Bengal on the pleas,. inter alia, that the ferries resumed by the Government during the years 1857. to 1860 were number identical with the ferries described in the Rokhabandi papers of 1206 S. on which the plaintiff relied, that in any event the ferries appertaining to Huda Alaipur did number form part of the assets of the estate bearing Tauzi No. 523 of the Mur- 5 40 shidabad Collectorate and the assets of the ferries were never taken into account in assessing the revenue of the estate, that in any case the liability to pay revenue of the ferries had number been separately assessed at Sicca Rs. 4,500/-, that the suit was barred by the law of limitation and estoppel and that the Court had numberjurisdiction to try the suit. In the opinion of the Trial Court, the Civil Court had jurisdiction to try the suit,that the suit was number barred by the law of limitation or by estoppel, that the ferries described in the Rokhabandi papers of Huda Alaipur were identical with the ferries resumed by the Government during 1857 to 1860, that the assets of the ferries were included in Huda Alaipur which was one of the 12 Hudas included in Tauzi No. 523 of the Mursbidabad Collectorate, that the revenue of the ferries had been separately assessed at Sicca Rs. 4,500/and that the plaintiff was entitled to abatement of revenue to the extent of Sicca Rs. 4,500/- i.e. Company Rs. 4,800/-. The learned Judge accordingly decreed the plaintiffs suit. The State of West Bengal appealed against that decree to the High Court. During the pendency of the appeal the rights of the Zamindar were extinguished. The dispute in the High Court was therefore restricted to the right of the plaintiff to recover the arrears of revenue decreed and a declaration of the right to obtain refund of the excess revenue paid by the plaintiff between date of the institution of the suit and the extinction of the interest of the Zamindar. Before the High Court it was urged that the income of the,ferries did number form part of the, assets of Huda Alaipur at the time of the permanent settlement that the ferries were number separately assessed to revenue at Sicca Rs. 4,500/- that the ferries resumed by the Government between 1857 and 1860 were number identical with the ferries mentioned in the Rokhabandi paper that the suit filed by Raja Bhupendra Narayan Sinha was number maintainable that in determining companypensation for the ferries, the Government had included the value of abatement of the revenue and that the claim for declaration of abatement was barred by the law of limitation. The High Court decided the first three companytentions in favorite of the plaintiff, and the remaining in favour of the State. The High Court held that the companypensation amounting to Rs. 53,923-4-6 which was ten, times the gross companylection from the 11 ferries in the year after resumption included the value of the Tight to abatement claim and that in any event the claim for a declaration of abatement of revenue was barred by the law of limitation. On the question of the maintainability of the suit the two learned Judges differed. S. K. Sen, J., held that the civil companyrt had numberjurisdiction to entertain the suit Amaresh Roy, J., reached a companytrary companyclusion. But companysequent upon the findings on the other two issues the High Court reversed the decree passed by the Trial Court and dismissed the suit. Ferry means the right to keep a boat for ferrying passengers, to charge tolls for so doing, and to prevent other persons from setting up another ferry so near and in such a state of facts as to diminish the custom, is a franchise. It can be created only by grant from the Crown, by prescription or by statute Dictionary of English Law by Earl Jowitt. In India the right to ferry is in the nature of a monopoly which entitles a ferryman to carry exclusively and to companylect tolls for carriage of passengers, animals or goods carried over the line of the ferry. The Calcutta High Court in Nityabhari Ray and Ors. v. Dunne and Others 2 elaborately examined the origin of the right to ferry in Bengal. The Court observed One of the first rules which the Government promulgated in 1772 was to suppress the sayer duties levied in Bengal. On the 11th June 1790 a regulation was promulgated for the guidance of the Board of Revenue with reference to sayer or internal duties. That Regulation was principally directed against such sayer duties as were levied in hats or bazars, and the Government, although it expressly declared in it that the imposition and companylection of internal duties of any kind were exclusively its own privilege and companyld number be exercised by any subject without express sanction yet, in the interest of the landlords, it adjudged it advisable to interfere as little as possible with the imposition they levied. This, therefore, is an express declaration of Government that the Dewani had never re-cognized in private individuals the right to levy any tolls of the denomination of saver, and this is repeated in the preamble to Regulation XXVII of 1793. When th Permanent Decennial Settlement was made, the re venue of such zamindari ghats as were allowed was take as an item of the assessment and granted to the Zamindar. In Regulation XIX of 1816. Section 9, there was a distinct admission of this practice. It enacted that if the profits derived from any resumed ferry may appear to have been included in the Permanent as sessment of the estate to which it has been heretofore annexed, the Board, or Commissioner, under whos orders the inquiry into the nature of the ferry was companyducted, must report the case for the orders of the Governor-General in Council 1 1. L. R. 18 Cal. 652. After the time of the Permanent Settlement the same ferries were established by enactment. The first Regulation is XVIII of 1806, which, dealing with ferries in the same category as tolls on boats passing through canals, enacted that ferries should be established at places companyvenient for the public within the 24- Pargunnahs, and fixed the rates payable to the ferryman In 1816 the Government companysidered it expedient that all ferries should be placed under companyplete companytrol of the Collectors of Land Revenue. Every owner of a ferry was licensed, and other person plying a boat for hire was liable to be companyvicted and fined . . . . . . . . I and the boat was to be companyfiscated. This Regulation companytinued till 1819, when it was repealed by Regulation VI of that year, and the ferries were then placed under the superintendence of the Magistrate. All important ferries were declared public, and these the Magistrate had the power to resume. Other ferries of an unimportant kind were number interfered with further than was necessary for the maintenance of the police and the safety of passengers and property. Two matters appear clear on the findings of the Trial Court and companyfirmed by the High Court 1 that the revenue in respect of the ferries was separately assessed and 2 that the right of ferry was recognised as a right to property for resumplion of which the Government of the day was liable to pay companypensation. The ferries were appurtenant to the lands of the Zamindar each ferry being a companynecting link between two highways on the lands of the plaintiffs predecessors. The right lo the ferries was resumed by the Government in exercise of the power companyferred by Reg. VI of 1819 and the right of the Zamindari to receive companypensation for loss of the right wis companyceded. But on the resumption of the ferries numberabatement of revenue payable in respect of the ferries was granted. The result was somewhat anomalous. Whereas the ferries in respect of which the revenue was separately payable were taken over by the Government by companypulsory acquisition or by resumption, the Zamindar still remained liable to pay the revenue assessed thereon. To meet this argument, Counsel for the State of West Bengal urged that within the amount of companypensation determined to be payable to the Zamindar companysequent upon resumption of the ferries, was included the capitalized value of the abatement of revenue payable for the ferries. Counsel said that the Government paid to the Zamindar for resumption of the ferries Rs. 53,923.40 which was ninety one times the net profit 5 4 3 made by the Zamindar annually. He companytended on that hypothesis that companypensation companyputed on the basis of ten times the gross profit earned by the Zamindar, companyld only have been intended to be paid to companypensate the Zamindar for the loss of the right to the ferries as well as the capitalized value of the revenue attributable to the ferries. The argument that a larger companypensation was paid and on that account the plaintiff was number entitled to abatement of revenue appealed to the High Court. But, in our judgment, the record of the case does number support the companyclusion reached by the High Court. The companyrespondence in relation to resumption of the ferries may be summarised. Exhibit C dated June 9, 1854 is a petition filed by Rani Phul Kumari who was then the owner of Paragatia Goas. It is recited in the petition that the ferries had ceased to be public ferries when they were restored to the applicants ancestors in the year 1819 under the orders of the Governor-General in Council, and the, ferries had since been companytinued in her occupation and possession. But by an order of the Magistrate of Rajshahye which was companyfirmed by the Superintendent of Police the rate or neerick of the ferries had been companysiderably lowered and the result of the interference was that the ferries instead of being a source of profit were onerous and a source of expense and trouble. The applicant requested that the companyplaint be investigated and if the companyplaint be found true, the applicant may be relieved of payment of the Suddur Jumma i.e. revenue. In a letter dated August 7, 1854 to the Secretary to the Board of Revenue, the Commissioner of Nuddea Division, stated that the statements made by Rani Phul Kumari were substantially companyrect, but the revenue authorities had numberpower of interference, and that the report of the Collector of Murshidabad was that the petitioner companyld number claim any companypensation under Reg. XIX of 1816 since the provisions of that enactment had number been enforced against her and she was number deprived of the ferry rights. On March 15, 1855 the revenue authorities prepared It list of ferries in District Murshidabad to be declared public. Ill a letter dated September 16, 1857 the Magistrate Rajshahye informed the Commissioner of Rajshahye that the ferries in Alaipur belonging to the plaintiffs predecessors did form part of the estate at the time of decennial settlement and that out of Sicca Rs. 4,500/-, Rs. 1,000/- may fairly represent the portion of Koodalghatee one of the eleven ferries . It appears that it was then recommended that only the Koodalghatee alone may be resumed and the revenue attributable thereto was estimated at Rs. 1,000 By letter dated November 25, 1857 of the Government of Bengal the Commissioner of Rajshahye was asked to intimate to the Zamindar that the Lieutenant Governor was willing to allow abatement of the Jumma of the estate in which the ferry was situated to the extent of Rs. 1,000/- as companypensation for loss of the ferry. In letter dated January 8, 1858 from the Government of Bengal it was recited that in regard to the companypensation for resumption of the ferries, the Government desired that as usual it may be fixed at 10 years purchase of profit during the first year after resumption, unless any other scheme number more disadvantageous to Government was proposed or agreed to by the owners. By letter dated April 4, 1860 from the Government of Bengal, the Commissioner of Rajshahye Division was informed that certain ferries which were resumed by the Government orders on the ground that those ferries were the only profitable ones out of the eleven which were situated upon the estate,, the amount of Jumma of Rs. 1,000/- which had been remitted was disproportionately small when companypared with the profits derived from the resumed and unresumed ferries, and that the Government had companye to the companyclusion that the most advisable companyrse will be to declare the whole of the eleven ferries public under the provisions of Regulation VI of 1819 and to companypensate the proprietor in the usual manner with ten years purchase of actual companylections during the first year of the resumption. By his letter dated September 20, 1860 to the Government of Bengal the Commissioner of Rajshahye Division stated that total companypensation payable to the Zamindar for the It ferries aggregated to Rs. 53,923-4-6 according to the principles determined by the Government, and that the Zamindar of Pargana Goas had petitioned the Collector of Murshidabad on September 3, 1860 that she should be allowed the annual remission of revenue to the extent of Sicca Rs. 4,500/- for all the ferries and soliciting that the matter may be adjusted as. soon as possible. Finally by letter dated November 3, 1860, the Government sanctioned payment of Rs. 53,923-4-6 as companypensation for the eleven ferries of Pargana Goas, and that the arrangement cancelled the offer of a remission of Jumma to the extent of Rs. 1,000/- per annum made in the letter stated November 25, 1857, for the Koodalghatty Ferry. It is clear that originally it was proposed to resume only one or some but number all the eleven ferries, and abate the revenue by Rs. 1,000/-. Later it was decided to resume all the ferries in Huda Alaipur and to pay companypensation at ten times, the amount of profit determined on the basis of one years working of the ferries after they were taken over. It was urged, however, that the Zamindar was receiving out of the, 11 ferries a gross income of only Rs. 5,392/they were liable to pay Rs. 4,800/- being the revenue payable to the Government, only the balance of Rs. 592/- remained on hand with the Zamindar. Unless the abatement of revenue was taken into account the Zamindar, Counsel for the State urged, companyld number have been given as companypensation nearly a hundred times the amount of the net annual profit from the ferries. But the argument proceeds upon several assumptions which are number supported,by evidence. There is numberevidence that the plaintiffs predecessors were making only Rs. 5,392/- gross out of the ferries. It cannot be assumed that because the Government companylected from the 11 ferries Rs. 5,392/- in the first year after the ferries were taken over and the Zamindar was liable to pay Rs. 4 800/ that the net annual profit of the Zamindar from the ferries was Rs. 592/- There is numberhing in the companyrespondence to indicate that any part of the companypensation was to include the capitalised value for abatement of revenue. The ferries were regarded as assets belonging to the Zamindari and were separately assessed to revenue. It was but just that the revenue assessed upon the ferries should, to the extent of resumption or acquisition of ferries, be abated. In the absence of any evidence to prove that the Government took into account the value of abatement of revenue and the Zamindar agreed to receive companypensation, agreeing still to pay the revenue in respect of the ferries resumed, the companyclusion inevitably follows that on the resumption or acquisition of the ferries the Zamindar ceased to be liable to pay the annual revenue assessed upon the ferries. There is numberevidence of a written claim made by the Zamindar for abatement of revenue since 1860, and we are unable to infer from that circumstance anything adverse to the plaintiff For many years, the Pargana was in the possession of the Court of Wards and it is the case of the plaintiff that from time to time requests were made for abatement of revenue, but numberrelief was given and the revenue including the revenue from the ferries was recovered from the Zamindar under threat of companyrcive process. No inference from the delay in making a claim for abatement of revenue arises. The High Court was of the view that the claim made by the plaintiff was barred by the law of limitation. The plaintiff was claiming in this suit the amount of revenue recovered from him 5 4 6 in excess of the amount lawfully due from him and he claimed a declaration that the revenue stood abated. Right to companylect revenue which is number due cannot be acquired by prescription, and if the plaintiff had been companypelled to pay sums of money which he was number liable to pay the claim companyld properly be made within three years from the date on which the payment was made. The Trial Court was, in our judgment, right in holding that an amount of Rs. 14,440/- was properly recoverable. The Trial Court was also right in declaring that there was companyplete extinction of liability to pay revenue in respect of the 11 ferries. To the claim for declaration of the right to abatement there is, in our judgment. numberbar of limitation. Each demand for recovery by the Government companyfers a fresh cause of action. In any event, there is numberhing on the record which suggests that the claim for abatements was refused, before the suit. It was urged also that the suit as filed in the Civil Court for abatement of revenue was number maintainable. This plea was number raised in the Trial Court. It was submitted in the Trial Court that some of the ferries in question on partition of India fell within the District of Rajshahye in East Pakistan, and on that account the Court has number jurisdiction to try the suit. It is companymon ground that the State of West Bengal was realising the. entire revenue from the plaintiff after the partition of India into the Dominion of India and the Dominion of Pakistan, in respect of Account No. 523-3 of the Murshidabad Collectorate, numberwithstanding that some ferries formed part of territory of East Pakistan. In the view of the Trial Court the State of West Bengal adopted inconsistent defences. While realising the revenue, the State claimed that the entire revenue-paying estate was within its jurisdiction, but when the plaintiff claimed abatement of revenue the State pleaded that because some portion of the property in respect of which abatement was claimed had fallen within the Dominion of Pakistan, the Court had numberjurisdiction. It was number urged before the Trial Court that it was incompetent to entertain the suit for abatement of revenue. Before the High Court the two learned Judges who heard the appeal differed. Amaresh Roy, J., observed that the State of West Bengal had never raised the plea that the Civil Court was incompetent to try the suit. The learned Judge observed that even after the attention of the Government Pleader for the State was invited thereto lie declined to adopt that plea and it was number open to the Court of its own to take up the companytention and to number- Suit the plaintiff. S. K. Sen, J., was of the view that the Civil Court was number companypetent to entertain the suit. Apparently the plea was never raised in the written statement and was number argued even after one of the Judges in the High Court invited companynsel to argue it. It is undisputed that there is numberexpress bar under any 5 4 7 of the statutes to the maintainability of the present suit, number is our attention invited to any provisions of law or circumstances which may justify an inference to that effect. In deference to the view expressed by S. K. Sen J. we may briefly refer to the statutory and administrative orders on which reliance was placed by companynsel for the State to support the view expressed by the learned Judges. Section 9 of Regulation XIX of 1816 provided In the event of its appearing that the profits derived from any resumed ferry may have been included in the permanent settlement of the, estate to which it has heretofore been annexed, the Board or Commissioner under whose orders the inquiry may be companyducted, shall report the circumstances, with an opinion on the merits of the claim, for the companysideration and orders of the Governor-General in Council and the companyrts of judicature shall number take companynizance of any claim to deductions or companypensations on account of the tolls levied at any ferry or ghaut. This section does number exclude the jurisdiction of the Civil Court to entertain a claim for abatement of revenue separately assessed in respect of a ferry which has beenresumed or has been companypulsorily acquired. Regulation 19 of 1816 was repealed by Regulation VI of 1819 by which the management of the ferries was transferred from the Collector to the Magistrate. Clause III of Regulation VI of 1819, insofar as it is relevant, provided First. No ferries shall be hereafter companysidered public ferries, except such as may be, situated at or near the Sadr Stations of the severed Magistrates or Joint Magistrates, or such as may intersect the chief military routes or other much frequented roads, or such as from special companysiderations it may appear advisable to place under the more immediate management of the Magistrates and Joint Magistrates. Second. The Government reserves to itself the power of determining from time to time, what ferries shall under the preceding rule be deemed public ferries and as such shall be, subject to the immediate companytrol of the Magistrates and Joint Magistrates, Third. It will be the duty of the Several Magistrates and Joint Magistrates to prepare lists of the ferries which in their judgment should under the foregoing rules be companysidered to be public ferries, and transit them as soon prepared through the Superintendents of Police for the information and orders of Government. Clause IV dealt with the power of appointing proper persons to the charge of the public ferries, for the purpose of regulating the number and description of boats to be maintained for preventing, exactionsand generally for promoting the efficiency of the Police and the safety and companyvenience of the companymunity. Clause VI declared that the exclusive right to ply public ferries shall belong to Government and numberperson shall be allowed to, employ a ferry boat plying for hire without the previous sanction of the Magistrate. The other clauses dealt with the procedure and powers of the Magistrate with regard to public ferries. This Regulation dealt with the power of the Government of Bengal to declare a particular ferry to be a public ferry and to manage it. There is numberhing in the Regulation which excludes the jurisdiction of the civil Court in the matter of revenue qua a private ferry resumed, ,or acquired. Regulation VI of 1819 was repealed by Act 1 of 1866. By 2 of Act 1 of 1866 Act it was provided that every ferry which has been or may be declared to be public ferry under the provisions of Regulation VI of 1819 shall belong exclusively to the Government. By S. 4 it was provided that all claims for companypensation which may be preferred by any person or persons for loss which may be sustained by them in companysequence of any ferry having been declared public as aforesaid shall be inquired into by such Magistrate, who shall award companypensation to any such person or persons who may appear justly entitled thereto. But Act 1 of 1866 has numberapplication because the ferries of plaintiffs predecessor were resumed by the Government between the years 1857 and 1860. In any case there is numberhing to show in any of the provisions to which our attention was invited that a suit for abatement of revenue for resumption of the ferries is excluded from the jurisdiction of the Civil Court. In Secretary of State for India in Council v. Maharajadhiraja Kameshwar Singh Bahadur 1 on which Counsel for the State relied it was held by the High Court of Patna that the jurisdiction of the Civil Court was barred by implication in respect of a suit filed on the ground that companypensation awarded was inadequate and was based on wrong principle. That case has, in our judgment, numberbearing on the present case. The method for determining the companypensation is provided by Act 1 of 1885 and the Civil Courts jurisdiction to determine companypensation may pro tanto may b e deemed excluded. I.L. R. 15 Pat. 246. 5 4 9 Reliance was also placed upon r. 159 in the Bengal Tauzi Manual, 1940, which companytains rules for the companylection of and accounting, for land revenue and cesses in Bengal. Rule 159, insofar as it is relevant, provided The power of sanctioning abatement of the revenue or rent demand of an estate during the currency of a settlement will be exercised by Collectors, Commissioners, and the Board of Revenue as shown below The diverse clauses of r. 159 vested power in different classes of officers to sanction abatement of rent or revenue. For instance, the Collector had power to sanction abatement of rent or revenue upto a total of Rs. 1,5001- in a single year in all estates managed direct by the Provincial Government the Commissioner had power to sanction abatement of revenue upto Rs. 5,000/. Again the Collector had power to sanction abatement of revenue in temporarily-settled estates bearing a revenue number exceeding Rs. 5001-. It was also stated that the Collector had power to sanction in all estates abatements in companysequence of the acquisition of land under the Land Acquisition Act 1 of 1894, and the Board of Revenue alone had power to sanction abatements due to diluvion, ascertained after a survey companyducted under Act IX of 1847. The Board alone had power to sanction abatement of rent or revenue in other cases number specified in r. 159. The Bengal Tauzi Manual 1940 does number disclose the authority under which it was published, and the sanction behind the rules. The Board of Revenue from time to time published instructions relating to the administration of revenue laws. The rules and instructions set out in the Manual are apparently number statutory. Even assuming that they are statutory there is numberhing to indicate that they exclude the jurisdiction of the Civil Court in respect of matters relating to abatement of revenue in the civil suits, and as rightly companyceded by companynsel for the State of West Bengal there is numberevidence that any rule like r. 159 was in operation at the time when the ferries belonging to the Zamindar were resumed or acquired by the Government of the Province of Bengal. K. Sen, I., was, in our judgment, in error in holding that the Civil Court had numberjurisdiction to entertain the claim for abatement of revenue and for a declaration that the plaintiff was number liable to pay revenue in respect of the ferries which were resumed by the Government. The appeal is allowed. The order passed by the High Court is set aside and the order passed by the Trial Court is restored with companyts in this Court and in the High Court.
In the light of what we intend holding in this matter the detailed circumstances leading to the incident need number be given. Suffice it to say, that 17 persons in all were sent for trial for offences punishable under Section 302,323, 324 and 34 Indian Penal Code. During the companyrse of the trial two of the accused Siraj Ali and Mohammed Hanif died whereas Moniruddin defaulted and was declared to be an absconder. The trial companyrt on the basis of the evidence before it companyvicted the remaining fourteen accused and sentenced them to various terms of imprisonment. The matter was thereafter brought to this Court by way of a special leave petition by six of the accused. The Special Leave Petition of five of them was dismissed outright and leave was granted with respect to only one, the present appellant. We have heard the learned companynsel for the parties with respect to his role and involvement in the incident. Mr. Parthiv Goswami, the learned companynsel for the appellant has argued that numberrole whatsoever has been attributed to the appellant and that his case was at par with the four accused who have been acquitted by the High Court and he was, accordingly, entitled to the same benefit. He has taken us through the evidence of the five primary witnesses P.Ws. 1,3,5,8 and 10 and also the medical evidence and submitted that the appellant, in fact, had caused numberinjury to the deceased and that the allegation of P.W. 5 that some injury had been caused to one of the witnesses was also unsubstantiated on record. Mr. Avijit Roy, the learned companynsel for the State of Assam has, however, pointed out that the appellant had been roped in with the aid of Section 149 IPC as he had been present when the incident happened and as he had along with others had way laid the deceased and the injured witnesses when they were returning home, the companymon object of the assembly appeared to have been made out. He has also submitted that P.W.1 had a given specific role to the appellant inasmuch that he had caused an injury to the deceased on his neck with a dao. We have heard the learned companynsel for the parties. P.W. 1 Miya Box undoubtedly did say that the appellant had caused an injury with a dao on the neck of the deceased, Jha Box. The medical evidence, however, does number support this plea as only two injuries, numbere of them on the neck, were found on the dead body. The other three witnesses P.Ws. 3, 8 and 10 had either attributed a general role to the appellant along with others who have been acquitted or numberrole at all to the appellant in the incident. Mr. Roys argument with respect to the evidence of P.W. 5 is also number worthy of belief for the reason that he alone out of the five witnesses who have been referred to above deposed that an injury had been caused to one of the witnesses and he did number state that any injury had been caused to the deceased. In view of the ambivalent nature of the evidence and the fact that a very large number of accused were involved and the parties having serious animosity with each other, we are of the opinion that Rustam Ali, the appellant, herein ought to have been acquitted by the High Court with the benefit of doubt.
CHANDRAMAULI KR. PRASAD, J. K. Kool, respondent number 1 herein since deceased , was working as a clerk with the petitioner, Bank of Baroda and while working as such after a departmental inquiry, as a measure of punishment, visited with the penalty of removal from service with superannuation benefits as would be due otherwise and without disqualification from future employment. K. Kool, hereinafter referred to as the employee, made a request for leave encashment, which was declined by the petitioner Bank of Baroda, hereinafter referred to as the employer, on the ground that where cessation of service takes place on account of employees resignation or his dismissal termination companypulsory retirement from the Banks service, all leaves to his credit lapse. The employee laid claim for pensionary benefits but the same was also declined. However, the employer advised the employee to ask for sanction of companypassionate allowance number exceeding two-thirds of the pension which would have been admissible to him otherwise. A dispute was raised and the companypetent Government referred the dispute for adjudication by the Industrial Tribunal. The dispute referred to the Industrial Tribunal, hereinafter referred to as the Tribunal, reads as follows Whether the action of the management of Bank of Baroda in denying pension and encashment of leave to Shri S.K. Kool is legal and justified? If number, what relief the companycerned workman is entitled to? The employee filed his statement of claim and so did the employer. The employee founded his claim by relying on the order of punishment itself which, according to him, entitles him the superannuation benefit. It was resisted by the employer on the ground that such employees who are removed from the service of the Bank are number entitled to pension. The Tribunal companysidered the rival plea, upheld the companytention of the employee and passed an award in his favour, and while doing so, observed as follows Therefore, in view of the facts and circumstances and settled legal position, the tribunal feels numberhesitation in holding that the action of the opposite party bank in denying superannuation benefits to the workman is neither legal number justified. Accordingly it is held that the workman is entitled for his superannuation benefits under the final orders of the disciplinary authority passed on 19.09.03 and any other order passed by some other officer denying superannuation benefits stands set aside. Accordingly the workman is held entitled for all termination benefits like pension, leave encashment, gratuity and companymutation of pension subject to adjustment of any amount paid under these heads to the workman. The employer assailed the aforesaid award in a writ petition but the same has been dismissed by the High Court, inter alia, observing as follows It is true that both the provisions have to be harmonized. What logically follows from bare reading of the aforesaid provisions is that the disciplinary authority has the companypetence to inflict punishment of removal from service with a companydition that such removal from service shall number in any way result in forfeiture of pensionary benefits to which the workman companycerned is otherwise eligible. Only simple reading of the words AS WOULD BE DUE OTHERWISE would mean that irrespective of the order of punishment of removal from service, workman would be entitled to superannuation benefits, if it is found due otherwise i.e. if the workman companycerned satisfies the other requirement of superannuation benefits under Regulations, 1995, namely, he has companypleted requisite number of years of working etc. Petitioner assails the award and the order of the High Court in the present special leave petition. Leave granted. Mr. Jaideep Gupta, learned Senior Counsel appearing on behalf of the appellant Bank, submits that employees of the Bank of Baroda are governed by the Bank of Baroda Employees Pension Regulation, 1995, hereinafter referred to as the Regulation. According to the learned Senior Counsel, the Regulation has been made in exercise of powers companyferred by clause f of sub-section ii of Section 19 of the Banking Companies Acquisition and Transfer of Undertaking Act, 1970 after companysultation with the Reserve Bank of India and the previous sanction of the Central Government. The Regulation, therefore, in his submission is statutory in nature and in terms of Article 22 1 of the Regulation, removal of an employee from the service of the Bank would entail forfeiture of entire past service and companysequently he shall number be entitled to pensionary benefits. According to him, such an employee at the most, would be entitled for companypassionate allowance in terms of Article 31 of the Regulation. According to Mr. Gupta, though clause 6 b of the Bipartite Settlement provides that an employee found guilty of gross misconduct may be removed from service with superannuation benefits i.e. pension and or provident fund and gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment, but this, in his submission, would number override or supersede Article 22 1 of the Regulation, which in numberuncertain terms provides for forfeiture of entire past service on removal from service. Any interpretation other than what has been suggested by him would obliterate Article 22 1 of the Regulation, companytends Mr. Gupta. Ms. Shilpa Singh, learned companynsel appearing on behalf of the employees heirs, however, submits that the order of the disciplinary authority inflicting the punishment itself entitled the employee to the superannuation benefits and that having attained finality, the same cannot be legally denied. She does number join issue that an interpretation which renders a provision redundant is to be avoided and, in fact, invokes the same in support of her companytention. According to her, if the interpretation put by the employer is accepted, clause 6 b of the Bipartite Settlement shall be rendered otiose. Having companysidered the rival submissions we do number have the slightest hesitation in accepting the broad submission of Mr. Gupta that the Regulation in question is statutory in nature and the companyrt should accept an interpretation which would number make any other provision redundant. Bearing in mind the aforesaid principle, we proceed to companysider the rival companytentions. The terms and companyditions of service of the employees are governed and modified by the Bipartite Settlement. Various punishments have been provided under the Bipartite Settlement which can be inflicted on the employee found guilty of gross misconduct. In 2002, a Bipartite Settlement was signed by the Indian Banks Association and the Banks workmens Union with regard to disciplinary action procedure. It is companymon ground that in the light of the said Bipartite Settlement, clause 6 b was inserted as one of the punishments which can be inflicted on an employee found guilty of gross misconduct and the same reads as follows An employee found guilty of gross misconduct may a . b be removed from service with superannuation benefits i.e. Pension and or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment, or xxx xxx xxx The employee undisputedly has been visited with the aforesaid penalty in terms of the Bipartite Settlement. Article 22 of the Regulation, which is relied on to deny the claim of the employee reads as follows Forfeiture of service Resignation or dismissal or removal or termination of an employee from the service of the Bank shall entail forfeiture of his entire past service and companysequently shall number qualify for pensionary benefits. From a plain reading of the aforesaid Regulation, it is evident that removal of an employee shall entail forfeiture of his entire past service and companysequently such an employee shall number qualify for pensionary benefits. If we accept this submission, numberemployee removed from service in any event would be entitled for pensionary benefits. But the fact of the matter is that the Bipartite Settlement provides for removal from service with pensionary benefits as would be due otherwise under the Rules or Regulations prevailing at the relevant time. The companysequence of this companystruction would be that the words quoted above shall become a dead letter. Such a companystruction has to be avoided. The Regulation does number entitle every employee to pensionary benefits. Its application and eligibility is provided under Chapter II of the Regulation whereas Chapter IV deals with qualifying service. An employee who has rendered a minimum of ten years of service and fulfils other companyditions only can qualify for pension in terms of Article 14 of the Regulation. Therefore, the expression as would be due otherwise would mean only such employees who are eligible and have put in minimum number of years of service to qualify for pension. However, such of the employees who are number eligible and have number put in required number of years of qualifying service shall number be entitled to the superannuation benefit though removed from service in terms of clause 6 b of the Bipartite Settlement. Clause 6 b came to be inserted as one of the punishments on account of the Bipartite Settlement. It provides for payment of superannuation benefits as would be due otherwise. The Bipartite Settlement tends to provide a punishment which gives superannuation benefits otherwise due. The companystruction canvassed by the employer shall give numberhing to the employees in any event. Will it number be a fraud Bipartite Settlement? Obviously it would be.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1 147 of 1975. From the Judgment and Order dated 28.12.1973 of the Andhra Pradesh High Court in W.P. No. 4818 of 1973. With Civil Appeal Nos. 1054-55 of 1976, 1503 and 1546 of 1977 S. Krishnamurthy Iyer, C. Sitaramiah, K. Madhava Reddy, Chella Sitaramani, K. Ram Kumar, Mrs. J. Ramachandran, Mrs. Anjani, TVSN Chari, A.V. Rangam, Jagan Rao and V.V. Nair for the appearing parties. The Judgment of the Court was delivered by OZA, J. This appeal arises out of the judgment of the High Court of Andhra Pradesh in Writ Petition No. 48 18 of 1973 wherein the writ petition filed by the Appellant Petitioner was dismissed. In the writ petition before the High Court the petitioner sought mandamus directing the respondent to pay forthwith to the petitioner companypensation for the lands surrendered by her under the Andhra Pradesh Ceiling on Agricultural Holdings Act 1961. A further direction was sought prohibiting the third respondent from proceeding with the revision under section 19 1 of the Act as amended by Act No. I of 1972 w.e.f. 19.1.72. Necessary facts are that the petitioners husband owned extensive lands in Gadwal. After the Act came into force the Revenue Divisional Officer, Gadwal issued a numberice under section 3 2 of the Act directing the petitioners husband to file a declaration of his holdings. The petitioners husband accordingly filed the declaration. Thereafter he died in 1969 leaving behind the petitioner and three minor children. The Revenue Divisional Officer held an enquiry under section 6 of the Act and by his order dated 25.1.71 he held that the petitioners husband legal representatives were holding 29.72 family holdings in excess of the ceiling area which they were entitled to hold. A numberice was then issued to the petitioner under section 7 2 on 25- .71 requiring the petitioner to file a statement indicating the land which she proposes to surrender. The petitioner thereupon filed a detailed statement of lands she proposes to surrender on 19.3.71. The Revenue Divisional Officer on being satisfied after an enquiry that the lands proposed to be surrendered satisfy the requirements of sec. 7 1 and 2 of the Act passed an order on 31.3.71 under section 7 3 of the Act approving the surrender of 7 13.16 acres an equivalent of 29.72 family holdings by the petitioner. Thereafter the petitioner filed an application before the Revenue Divisional Officer for fixation of companypensation in respect of lands surrendered by her under section 10 of the Act. The Revenue Divisional Officer fixed the companypensation of Rs.6,44,265.09 in respect of lands surrenderd by her. The .Revenue Divisional Officer published a numberification companytaining particulars of the lands surrendered by the petitioner and the companypensation payable therefor in the Andhra Pradesh Gazette on 7.7.71 according to section 11 of the Act. Instead of paying the companypensation as determined, the District Revenue Officer Mahboobnagar issued a numberice dated 21.3.72 proposing to revise the orders of the Revenue Divisional Officer dated 15.4.71 fixing companypensation of the lands surrendered by the petitioner. This numberice is purported to have been issued under section 19 clause 1 of the Act as amended. The petitioner filed an objection companytending that the 3rd respondent had numberjurisdiction to revise the order fixing companypensation which was passed before, as on the day the Divisional Officer issued numberice the order sought to be revised had become final. In spite of this the 3rd respondent has number disposed of the revision proceedings and it because of this writ petition was filed before the High Court. Learned companynsel for the appellant companytended before us that once under section 7 the land which is in excess of the ceiling limit is determined and a statement of surrender is filed by a holder which is accepted by the Revenue Divisional Officer under clause 3 of section 7, the land vests in the State and thereafter the authorities have numberjurisdiction to attempt to revise the companypensation or any order which has already been passed under the Act. Whereas on behalf of the State it was companytended that clause 3 of section 7 uses the word deemed to have been surrendered which clearly indicates that although by an order passed by Revenue Divisional Officer the proposal made by the holder about the surrender of land is accepted and it is finalised but still it is only deemed surrender as even after this land does number vest in the State but it only vests as has been companytemplated under section 8 which clearly lays down that the land which is deemed to have been surrendered under section 7 only vests in the State when it is taken over after payment of companypensation in accordance with section 8. The High Court accepted the companytention of the State and it took the view that unless taking over is companypleted under sec. 8 the land does number vest in the State and therefore it companyld number be said that the proceedings under this Act has companye to an end and at this stage when the land has yet number vested in the State if the authorities have jurisdiction to revise the companypensation it companyld number be said that the authorities have done something beyond their jurisdiction. The main argument before the High Court and before us on behalf of the appellant is that once under the scheme of the Act an order is passed by the companypetent authority under section 7 sub-clause 3 so far as the holder is companycerned he has surrendered the surplus land and what remains under the scheme of section 10 and 11 is only the question of determining of companypensation and once that is determined there is numberoption to the authorities but to pay companypensation to the person Who has surrendered the holding in accordance with the scheme of section 7 of the Act. It is number in dispute that the proceedings were taken under Andhra Pradesh Ceiling on Agricultural Holdings Act 1961 and after the declaration was filed the ceiling area was determined in accordance with section 6. It is also number in dispute that in accordance with section 7 sub-clause 2 a numberice was served on the petitioner appellant for filing a statement indicating the land which she proposes to surrender and it is after the statement was filed by the appellant that an order in accordance with sub-clause 3 of section 7 was passed. Section 7 reads If the extent of the holding of a person is number more than the ceiling area determined under section 6, he shall be entitled to retain such holding, but if it is more than the ceiling area, he shall be liable to surrender the extent of land in excess of the ceiling area. The Revenue Divisional Officer shall serve on every person who is liable to surrender land in excess of the ceiling area under subsection 1 , a numberice specifying therein the extent of land which he has to surrender, and requiring him to file a statement in such manner and within such period as may be prescribed indicating therein the land which he proposes to surrender. If the person, on whom a numberice is served under sub-section 2 , files the statement referred to in that subsection, within the prescribed period and Revenue Divisional Officer is satisfied, after making an inquiry in the prescribed manner, that the proposed surrender of the land is in accordance with the provisions of sub-sections 1 and 2 , he shall pass an order approving the surrender and the said land shall thereupon be deemed to have been surrendered by such person. If the person, on whom a numberice is served under subsection 2 , does number file the statement referred to in that sub-section within the prescribed period, or filed such statement within the prescribed period, but does number specify therein the entire extent of land which he has to surrender, the Revenue Divisional Officer may himself select, in the former case, the entire extent and in the latter case the balance of the extent which such person has to surrender, and pass an order to that effect and thereupon the said land or the balance of land, as the case may be, shall be deemed to have been surrendered by such person. The scheme of this section indicates that when the extent of holding of a person is determined under section 6 and if while determining it under section 6 it is found that he is holding more than the ceiling area he shall be liable to surrender the extent of the land which is in excess of the ceiling area. Sub-clause 2 of this section companytemplates that the Revenue Divisional Officer will serve a numberice on all such persons who are liable to surrender the land in excess of the ceiling area and this numberice will specify the extent of the land which he has to surrender and a direction that the person companycerned will file a statement indicating the land which the holder proposes to surrender. Sub-clause 3 of the this section companytemplates that after the numberice under sub-clause 2 is served and the person companycerned files his statement within the prescribed period, the Revenue Divisional Officer if he is satisfied from the statement filed in response to a numberice under clause 2 about the land which the holder proposes to surrender, he shall pass an order approving the surrender of the land. Sub-clause 4 companytemplates a situation where after a numberice is served under clause 2 the holder does number file a statement as companytemplates under clause 3. It is, therefore, clear that so far as the surplus land which a holder will surrender is companycerned it is finally determined when an order under clause 3 of section 7 is passed by the Revenue Divisional Officer but it is significant that in spite of the finality of these proceedings the legislature uses the phrase thereupon deemed to have been surrendered by such person. It is significant that instead of using the phrase have been surrendered the legislature uses the term deemed to have been surrendered and it is clear from these words that something more remains to be done. Section 8 reads as under Where any land is deemed to have been surrendered under section 7 by an owner, the Revenue Divisional Officer may, by order, take over such land on payment of companypensation under section 10, and such land shall be disposed of in the prescribed manner by assignment to landless poor persons. This provides for vesting of the land deemed to have been surrendered by the owner. This terminology used in the heading of the section itself indicates that even after determination of the surplus land which is deemed to have been surrendered vesting only takes place when something more is done and that is what is provided in this section. This section authorises the Revenue Divisional Officer to take over the land on payment of companypensation, companypensation which is determined u s 10 and land which is deemed to have been surrendered u s 7 and it is only after this taking over under section 8that under the scheme of this section the land vests in the State and thereafter it is provided that such land shall be disposed of in the prescribed manner by assignment to landless poor persons. A perusal of the scheme of the section therefore clearly indicates that after an order is passed under sub-clause 3 of sec. 7 although the proceedings for surrender of the surplus land and the selection of the land which is sought to be surrendered is companyplete but still it is number surrender but it is only deemed to have been surrendered which clearly indicates that so far as the holder is companycerned he has finally got determined the lands which he will surrender as surplus which in due companyrse will vest in the State for distribution to other landless persons but it is also clear from the language of section 8 and also from the language used in sub-clause 3 of section 7 that unless the land which is deemed to have been surrendered is taken over by payment of companypensation determined under section 10 it does number vest in the State. The scheme of section 8 therefore indicates that vesting in the State that is taking over by the Revenue Divisional Officer and payment of companypensation has to be simultaneous with and an order under section 8. It, therefore, appears that after proceeding for determination of surplus under section 7 is companypleted, proceedings for determination of companypensation will start as is provided in section 10 and it is only when companypensation is also finally determined that under section 8 taking over will take place after the companypensation is paid. It is, therefore, clear that after the proceedings have been companypleted in accordance with section 7 sub-clause 3 and even after the companypensation has been determined but action under section 8 has number been taken it companyld number be said that the land vests in the State. The companypetent authorities can revise the orders passed if an amendment has taken place in between. It is apparent that in spite of proceedings having companye to an end under sub-clause 3 of section 7 and that the companypensation has been determined still the land remains with the holder who is enjoing the benefits out of the land until action under section 8 is companypleted. Under these circumstances therefore the companytention advanced by the appellant that when the proceedings are companycluded under subclause 3 of section 7 the surrender is companyplete and the land vests in the State cannot be accepted as admittedly action under section 8 has number been taken. On the basis of some orders which appear to have been passed under section 10 it was companytended that taking over is companyplete but in these orders only language of section 10 is reproduced. Section 10 reads as under Compensation for lands taken over by the Revenue Divisional Officer 1 The companypensation payable for any land taken over by the Revenue Divisional Officer under section 8 or section 9 shall be an amount calculated at the rates specified in the Second Schedule. Where there are any structures of a permanent nature or trees on such land the value of such structures or trees shall be determined by the Revenue Divisional Officer in the manner prescribed and paid to the person who is entitled thereto. The companypensation payable under sub-section 1 shall be paid either in cash or in bonds, or partly in cash and partly in bonds as the Government may deem fit. The bonds shall be issued on such terms and carry such rate of interest as may be prescribed. But admittedly numberorder companyld be produced under section 8. It is clear that orders under section 8 can only be passed after companypensation as determined under section 10 is paid. Therefore numberadvantage companyld be taken from these orders under section 10. It was also alleged on behalf of the State that against these orders under section 10, it were the appellants some of them who filed writ petitions in the High companyrt challenging the companypensation and thus question of determination of companypensation itself remained pending. Consequently, in our opinion, the High Court was right in rejecting the writ petitions filed by the appellants. We therefore see numberreason to entertain this appeal. It is therefore dismissed. No order as to companyts. For the reasons stated above, Civil Appeal Nos. 1054/76, 1055/ 76, 1503/77 and 1546/77 are allowed.
JUDGEMENT 1996 SUPP. 1 SCR 333 The following Order of the Court was delivered Delay companydoned. Leave granted. We have heard learned companynsel on both sides, This appeal by special leave arises from the order of acquittal passed by the High Court of Madhya Pradesh, Jabalpur Bench in Criminal Appeal No. 53 of 1987 on June 28, 1990. The case of the prosecution is that on July 11, 1986, at about 6.30 p.m, while the deceased was returning after taking water from the tank, the respondent-accused came from behind and gave a blow with falia and went away. P.W, 2, Ratan Singh, son of the deceased who is an eye-witness to the occurrence raised an alarm upon which P.W.3, Vesta, P.W. 4, Nawal Singh, P.W. 5, Arnar Singh and others came to the scene of occurrence whereat Ratan Singh, P.W.2 narrated that the accused came from behind and attached the deceased. The deceased was taken to the hospital and was declared dead. The FIR was lodged at 9.30 p.m. on the same day. After investigation, the accused Was apprehended and after all the witnesses were examined, the trial Court companyvicted the respondent-accused for offence of murder under Section 302, IPC and sentenced him to undergo fife imprisonment. On appeal, the High Court acquitted the respondent. Hence this Appeal. The question for companysideration is whether the evidence of P.W.2, a child eye-witness to the incident is companysistent with the medical evidence? The medical evidence indicates as under Three incised wounds were found, viz., 1 oblique incised wound about 5 x 2 bone deep, bral spine present over antero-Iatcral aspect of left side neck upto nape of the neck, body, lamine and spine of the chakeal spine were cut 2 incised wound about 1-1/2 x1 deep upto mandible over left cheek ad 3 incised wound about 2-172 x1/4 over posterelateral aspect of left side elbow joint, on dissection, internal injury was found and spine lamine and vertebral body in almost companypletely set at like level of 7th cervical vertebral spine and is almost companypletely several at this site. A reading of the medical evidence clearly indicates that three incised wounds were inflicted upon the deceased, one on the nape of the neck, another on the left side of mandible and third on the left side of the elbow joint. In other words, there are three separate injuries inflicted upon the deceased, by three separate blows but PW 2 does number speak of the accused having inflicted those three injuries. prosecution case is that the accused-respondent had inflicted the injury one once and that too from behind. The single blow cannot cause three incised injuries of different dimensions at three different places. Under these circumstances, the High Court had number placed implicit reliance on the evidence of P.W. 2 If tie evidence of P.W. 2 is excluded from companysideration, we do number find any other evidence to support the prosecution case. It is companytended that the FIR mentions the names of above persons who were specifically mentioned and it lends companyroboration to the evidence of P.W. 2 We find numbersubstance in this companytention. The FIR cannot be used as substantive evidence or companyroborating a statement of third party, i.e., W. 2 FIR cannot be used to companyroborate the evidence of P.W. 2 It can be used either to companyroborate or for companytradiction of its maker. It is then companytended that P.Ws. 3 to 5 have companysistently spoken the version narrated to them by P.W.2 but there is numberhing to establish from their evidence of the offence It may be that P.W 2 had narrated that the accused had attacked the deceased. If the evidence of P.W.2 is excluded from companysideration, the evidence of P.Ws.
S. Hegde, J. The question that arises for decision in this appeal by certificate is whether the house companycerned in these proceedings is the individual property of the assessee or the property of his family. The Income-tax Officer, the Appellate Assistant Commissioner, the Income-tax Appellate Tribunal, as well as the High Court have companycurrently companye to the companyclusion that it is the absolute property of the assessee. The assessee is companytesting that finding. It is established that the assessees father purchased a vacant land companyprising twenty and odd grounds in Cathedral Road, Madras, on November 7, 1930. That site was purchased out of his private funds. On that site the assessees father companystructed eleven houses. Out of these eleven houses, he gifted eight houses to his four daughters, two houses to each one of them. Out of the remaining three houses, he kept one for himself and gave the other two to his two sons, the assessee and his brother, Ramaswami, one each. It is number the case of the assessee that any family funds had been invested either in purchasing the site or in companystructing the houses. The father of the assessee gave the two houses to his sons as per the deed dated July 12, 1959 marked as annexure B . Though that deed styles itself as a partition deed, it is clear from its terms that it is a gift deed. It is stated therein in clear terms that the property belonged to Sri Srinivasachariar, the father of the assessee, and that it is he who had put up the foundations of the houses therein. The document further stipulates, that if the assessee or his brother desires to alienate the property given to them, they should give preference to the other brother for purchasing the same at the prevailing market price. Reading the document as a whole, there is hardly any doubt that the property dealt with under that document was the individual property of Srinivasachariar. That being so, the property got under that document by the assessee became his individual property. It is number the case of the assessee that he had surrendered that property to the family.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 3 1543 155 of 1985. From the Judgment and Order dated 26.3. 1985 of the Jammu Kashmir High Court in L.P.A. W No. 59 of 1984. For the Appellant In-Person in Civil Appeal No. 3 154/85 N. Tiku, Rakesh Tiku and Pandey Associates for the Respondents. N. Tiku, Rakesh Tiku and Pandey Associates for the Appellants. For the Respondent In-Person in Civil Appeal No. 3155/85. The Judgment of the Court was delivered by KULDIP SINGH, J. Jammu Kashmir Industries Limited hereinafter called companypany is a companypany registered under the Indian Companies Act, 1956 and is wholly owned and managed by the State of Jammu Kashmir. Pyare Lal Sharma was employed by the companypany as Chemical Engineer. His services were terminated by the Managing Director of the companypany on June 14, 1983. Sharmas writ petition was allowed by a learned Single Judge of the Jammu Kashmir High Court. On appeal by the companypany the Letters Patent Bench upheld the judgment but denied back-wages to Sharma. This is how these two appeals, one by the.company and the other by Sharma, are before us. We may briefly numberice the necessary facts. Pyare Lal Sharma joined the companypany as Assistant Chemical Engineer on July 12, 1972. In 1974 he was sent to England as management trainee but he returned back without companypleting the training. Sharmas companyflict with the companypany started in 1976 when he filed a suit against the companypany in Jammu Kashmir High Court with various reliefs including a direction that he be again sent to England on companypanys expense. The suit was dismissed and further appeal to the Division Bench was also dismissed. He then filed another suit in the Delhi High Court claiming Rs.50 lakhs as damages from the companypany but the same did number proceed on technical grounds. Thereafter, it seems, Sharma started suspecting mala-fide in every action of the companypany and resorted to companyrt proceedings even on slight pretext. He challenged the order of transfer from Baramulla to the headquarters by way of suit in the Jammu Kashmir High Court. Interim stay, initially granted, was vacated by the High Court. In December, 1979 he applied for leave on medical grounds without disclosing the ailment. He remained absent from December 7, 1979 to March 7, 1980 without any sanctioned leave. Disciplinary proceedings were initiated against him on the charge of unauthorised absence and he was placed under suspension on March 8, 1980. He filed Writ Petition No. 58/80 in the Jammu Kashmir High Court against suspension. Ultimately Sharma expressed regrets and he was reinstated into service by an order dated May 15, 1980. In April, 1981 he was transferred from headquarters to one of the units. He again filed a writ petition in the Jammu Kashmir High Court challenging the order of transfer but the same was dismissed. Thereafter he filed Writ Petition No. 4086 of 1982 in this Court which was heard by Chinnappa Reddy, J. Vacation Judge on 1st of June, 1982. The learned Judge passed the following order Issue numberice returnable on June 15, 1982. Notice be also served on the companynsel for the State of Jammu Kashmir Mr. Altar Ahmad. Mr. Altar Ahmad will take instructions from his clients and assist this Court to know the precise facts of the case which it is impossible to find from the petitioner. 1 have suggested to the petitioner that he may engage a companynsel but he does number appear to be inclined to do so. Nor is he willing to be assisted by the companynsel engaged by the companyrt. The writ petition was, however, dismissed as withdrawn on June 15, 1982. Sharma filed two more writ petitions being 293 of 1982 and 410 of 1982 in the Jammu Kashmir High Court challenging the promotions of some other officers. Sharma absented from duty on September 8, 1982. He was asked to explain his absence. A para out of his reply is as under I have been submitting charge sheet against you since last one year to authorities about your companyrupt practices, companymunal character, and illegal financial advancement you have made but numberaction has been taken against you since you utilise political pressure and bribed the chairman. Sharma was served with a charge-sheet dated September 24, 1982 and he was placed under suspension. Use of derogatory language in various companymunications was one of the charges against him. He submitted his reply to the chargesheet on October 7, 1982. Part of the opening paragraph is as under You have become frustrated, lost balance of mind and to companyer the various irregularities companymitted by you for example You will be prosecuted for levelling false charge sheet and false charges against me. Coming to the charge sheet with above reverence I have to say as under. On October 22, 1982 an enquiry officer was appointed to enquire into the charges against Sharma. He challenged the order of suspension by way of Civil Writ Petition 661 of 1982 in the Jammu Kashmir High Court. The High Court stayed the suspension by its order dated December 20, 1982. The order of suspension having been stayed by the High Court it was incumbent on Sharma to have joined duty. But inspite of companypanys letters asking him to do so he remained absent. Sharma filed Writ Petition 471/82, Writ Petition 129/83 and Letters Patent Appeal 24/83 for payment of his salary and allowances for various periods which were granted by the High Court. It is also on record that while in service Sharma unsuccessfully fought assembly elections on two occasions. He filed his numberination papers for companytesting elections to the Lok Sabha from Baramulla companystituency. But the numberination papers were rejected. Regulation 16.14 of Jammu Kashmir Industries Employees Service Rules and Regulations before amendment was as under The service of the permanent employee shall be terminated by the companypany, if a his post is abolished or b he is declared on medical grounds to be unfit for further service after giving three months numberice or pay in lieu thereof. For similar reasons the service of a temporary employee also be dispensed with after giving him one months numberice or pay in lieu thereof. The above quoted regulation 16.14 was amended on April 20, 1983. Amended regulation is as under 16.14. the services of an employee shall be terminated by the Company if a his post is abolished, or b he is declared on medical grounds to be unfit for further service, or c if he remains on un-authorised absence, or d if he takes part in active politics. In the case of a and b above the services shall be terminated after giving three months numberice to a permanent employee and one months numberice to a temporary employee or pay in lieu thereof. In the case of c and d above the services of an employee shall be terminated if he fails to explain his companyduct satisfactorily within 15 days from the date of issue of numberice. The management shall be empowered to take a decision without resorting to further enquiries. By order of the Board of Directors. The companypany issued a show cause numberice dated April 21, 1983 in terms of clause c of amended regulation 16. 14. The numberice was in the following terms In companypliance to the orders of the Honble High Court Your suspension was stayed till further orders vide Order No. JKI/319/82 dated 21.12.82 issued vide endorsement No. Adm. P 80-65/4866 dated 21.12.82. From that date also you have companytinuously remained absent unauthorisedly from your duties. You are, therefore, served this numberice to show cause within a period of 15 days as to why your services should number be terminated under rules of the Corporation. No reply to the show cause numberice was submitted by Sharma. By an order dated June 14, 1983 the Managing Director of the companypany terminated his service,. The termination order is reproduced as under Shri Pyare Lal Sharma Chemical Engineer, Jammu and Kashmir Industries Limited has remained on unauthorised absence companytinuously from 21.12.82 since the date of his suspension was stayed as per orders from the Honble High Court . Shri Sharma was served with a numberice under Jammu Kashmir Industries Limited Employees Service Rules to show cause within a period of 15 days as to why his services should number be terminated. This numberice was served to him under registered post but the same was received back in this office and later on delivered to him in person on 7.5.83 as per his request. Shri Sharma has failed to explain his position. It has number also been established that Shri Sharma was taking part in active politics during the period of his un-authorised absence and has filed numberination papers for companytesting election from 1-Baramulla Parliamentary Constituency. Now that his unauthorised absence as well as his taking part in the active politics has been established, and in exercise of the powers vested in the management under Jammu Kashmir Industries Employees Services Regulations the services of said Shri Pyare Lal Sharma Chemical Engineer J K Industries Limited are hereby terminated. Sharma challenged the order of termination by way of Writ Petition No. 70 of 1984 before the Jammu Kashmir High Court. Learned Single Judge by his judgment dated October 16, 1984 allowed the writ petition on three grounds. The learned Judge found the impugned order violative of Rules of Natural Justice as numberopportunity to show cause was afforded to Sharma in respect of the ground of taking part in active politics. It was also held that the Board of Directors having appointed Sharma, The Managing Director who is subordinate authority companyld number terminate his services. Finally, the learned Judge held regulation 16.14 to be arbitrary and as such violative of Article 14 of the Constitution of India. The Letters Patent Bench of the High Court dismissed the appeal of the companypany but denied back-wages to Sharma. The Bench held that Sharmas services companyld number be terminated by an authority subordinate to the authority which appointed him. The Bench also found that either three months numberice or salary in lieu thereof under regulation 16.14 was mandatory. The Division Bench did number agree with the other reasons given by the learned Single Judge in support of his judgment. Mr. Pyare Lal Sharma appeared in person and argued his case. He has been of numberassistant to us. During the companyrse of arguments we suggested to Mr. Sharma to engage a companynsel which de declined. We also repeatedly offered to him to have the services of a companynsel engaged by the Court but he did number agree and insisted on arguing the case himself. From the pleadings of the parties, documents on the record, the judgment of the learned Single Judge and of the Letters Patent Bench and from Sharmas arguments the following points arise for our companysideration Whether Regulation 16.14 is arbitrary and as such ultra vires Article 14 of the Constitution of India. Whether three months numberice or pay in lieu of the numberice period was required to be given under Regulation 16.14. The termination order having been passed by the Managing Director who was an authority subordinate to the Board of Directors which appointed Sharma, the order was bad on that ground. Whether the impugned order is violative of rules of natural justice so much so that the ground of taking part in active politics was number mentioned in the show cause numberice whereas it was relied upon in the termination order. Whether the period of absence, which was prior to the date of companying into force of the amended Regulation 16.14, companyld be taken into companysideration for invoking ground c of the Regulation. We see numberarbitrariness in Regulation 16.14. The Regulation has been framed to meet four different eventualities which may arise during the service of a companypany employee. Under this regulation services of an employee may be terminated a if his post is abolished or b if he is declared on medical grounds to be unfit for further service or c he remains on unauthorised absence or d if he takes part in active politics. In the case of a and b three months numberice to a permanent employee and one month numberice to temporary employee or pay in lieu thereof is to be given. In case of c and d a show cause numberice, to explain his companyduct satisfactorily, is to be given. So far as grounds a and b are companycerned there cannot be any objection. When a post is abolished or an employee is declared medically unfit for further service the termination is the obvious companysequence. In the case of abolition of post the employee may be adjusted in some other post if legally permitted. Ground c has also a specific purpose. Remains on unauthorised absence means an employee who has numberrespect for discipline and absents himself repeatedly and without any justification or the one who remains absents for a sufficiently long period. The object and purport of the regulation is to maintain efficiency in the service of the companypany. The provision of show cause numberice is a sufficient safe-guard against arbitrary action. Regarding ground d acting politics means almost whole time in politics. Company job and active politics cannot go together. The position of the civil servants who are governed by Article 311 is entirely different but a provision like grounds c and d in Regulation 16.14 companycerning the employees of companypanies companyporations public undertakings is within the companypetence of the management. We do number agree with the Division Bench of the High Court that three months numberice or pay in lieu thereof was to be given to Sharma under Regulation 16.14. It is clear from the plain language of the regulation that three months numberice or pay in lieu, is only required when termination is under ground a or b . Regarding c and d , the regulation provides for a 15 days numberice to explain the companyduct satisfactorily and there is numberrequirement of any other numberice or pay in lieu thereof. We may number take-up the third point. Sharma was appointed as Chemical Engineer by the Board of Directors. The powers of the Board of Directors to appoint officers of Sharmas category were delegated to the Managing Director on September 12, 1974 and as such from that date the Managing Director or became the appointing authority. Needless to say that employees of the companypany are number civil servants and as such they can neither claim the protection of Article 311 1 of the Constitution of India number the extension of that guarantee on parity. There is numberprovision in the Articles of Association or the regulations of the companypany giving same protection to the employees of the companypany as is given to the civil servants under Article 311 1 of the Constitution of India. An employee of the companypany cannot, therefore, claim that he cannot be dismissed or removed by an authority subordinate to that by which he was appointed. Since on the date of termination of Sharmas services the Managing Director had the powers of appointing authority, he was legally companypetent to terminate Sharmas services. The learned Single Judge allowed the writ Petition on the fourth point though the same did number find favour with the Division Bench. Grounds c and d in regulation 16.14, exclusively and individually, are sufficient to terminate the services of an employee. Once it is established to the satisfaction of the authority that an employee remains on unauthorised absence from duty, the only action which can be taken is the termination of his services. Similar is the case when an employee takes part in active politics. The finding in the termination order regarding taking part in active politics cannot be sustained because numbernotice in this respect was given to Sharma but the order of termination can be supported on the ground of remaining unauthorised absence from duty. This Court in State of Orissa v. Vidyabhushan Mohapatra, 1963 1 Supp. SCR 648 and Railway Board v. Niranjan Singh, 1969 1 SCR 548 has held that if the order can be supported on one ground for which the punishment can lawfully be imposed it is number for the companyrts to companysider whether that ground alone would have weighed with the authority punishing the public servant. Thus there is numberforce in this argument. This takes us to the last point which we have discovered from the facts. Regulation 16.14 before amendment companysisted of only clauses a and b relating to abolition of post and unfitness on medical ground. The companypany had numberauthority to terminate the services of an employee on the ground of unauthorised absence without holding disciplinary proceedings against him. The regulation was amended on April 20, 1983 and grounds c and d were added. Amended regulation companyld number operate retrospectively but only from the date of amendment. Ground c under which action was taken came into existence only on April 20, 1983 and as such the period of unauthorised absence which companyld companye within the mischief of ground c has to be the period posterior to April 20, 1983 and number anterior to that date. The show cause numberice was issued to Sharma on April 21, 1983. The period of absence indicated in the show cause numberice is obviously prior to April 20, 1983. The period of absence prior to the date of amendment cannot be taken into companysideration. When prior to April 20, 1983 the services of person companyld number be terminated on the ground of unauthorised absence from duty under Regulation 16.14 then it is wholly illegal to make the absence during that period as a ground for terminating the services of Sharma. It is basic principle of natural justice that numberone can be penalised on the ground of a companyduct which was number penal on the day it was companymitted. The date of show cause numberice being April 21, 1983 the unauthorised absence from duty which has been taken into companysideration is from December 20, 1982 to April 20, 1983. Whole of this period being prior to the date of amendment of regulation 16.14 the same companyld number be made as a ground for proceeding under ground c of Regulation 16.14. The numberice served on the appellant was thus illegal and as a companysequence the order of termination cannot be sustained and has to be set aside. When the termination order is set aside by the companyrts numbermally the servant becomes entitled to back-wages and other companysequential benefits. This case has a chequered history.
B. Sinha, J. Leave granted. INTRODUCTION Constitutional validity of clauses b and f of Regulation 6A of the Central Electricity Regulatory Commission Procedure, Terms and Conditions for Grant of Trading License and other related matters Amendment , Regulation 2006 hereinafter referred to and called for the sake of brevity as Amended Regulation is the question involved herein. BACKGROUND FACTS It arises in the following factual matrix. The Parliament enacted Electricity Act, 2003 hereinafter referred to as, the said Act . In exercise of its jurisdiction companyferred by Section 178 of the said Act, the Central Electricity Regulatory Commission for short, CERC made Central Electricity Regulatory Commission Procedure, Terms and Conditions for Grant of Trading License and other related matters , Regulation 2004 for short, the Regulation Indisputably, in terms of the provisions of the said Act as also the Regulations, inter alia, license is required to be taken by a person who is desirous of dealing in inter-state trading, which in terms of Regulation 2 g means transfer of electricity from the territory of one State to the territory of another State by an electricity dealer. Appellant No. 1 is a Public Limited Company incorporated and registered under the Indian Companies Act. Pursuant to or in furtherance of the said Act and the Regulations, the appellant No. 1 herein filed an application for grant of inter-State Trading License under Category A before CERC on 23.3.2004. CERC published a numberice as regards the said application filed by the appellant No. 1 for grant of inter-state Trading License in all editions of Indian Express, Financial Express and a vernacular daily Jansatta. Appellant No. 1 also filed an interlocutory application seeking permission to trade in the electricity pending final disposal of its petition for grant of inter-state trading license as it had been engaged in inter-state trading of electricity prior to the companymencement of the said Act. By reason of an order dated 31.3.2004, the said application was allowed. Objections filed to the appellant No.1s application for grant of license pursuant to the aforementioned numberice were also rejected by an order dated 30.6.2004. On or about 6.9.2004, CERC directed as under The petitioner No. 1 was qualified for the grant of Category A license for inter-state trading in electricity for trading up to 100 million units in a year. The CERC proposed to issue the license for inter-state trading to the petitioner No. 1 as category A trader. The petitioner No. 1 was directed to publish a numberice under Section 15 5 of the Act. Section 15 5 of the Act reads as follows Procedure for grant of licence. Before granting a licence under section 14, the Appropriate Commission shall- a publish a numberice in two such daily newspapers, as that Commission may companysider necessary, stating the name and address of the person to whom it proposes to issue the licence b companysider all suggestions or objections and the recommendations, if any, of the Central Transmission Utility or the State Transmission Utility, as the case may be. After the publication of numberices, objections were also received as regards appellant No. 1s trading in inter-state supply of electrical energy pursuant to the aforementioned interim order. The matter was taken to High Court and interim license granted to appellant No. 1 was extended by the High Court from time to time. Draft Regulations were published to which appellant No. 1 filed objection. The Amended Regulations were numberified on 3.4.2006. By an order dated 20.8.2006, CERC rejected the application filed by the appellant No. 1 for grant of inter-state trading license opining that Regulation 6A brought in through the amended Regulation will have a retrospective effect. An appeal preferred thereagainst is pending before the Appellate Tribunal for Electricity. Appellants filed Writ Petitions before the High Court questioning the validity of the said Regulation. By reason of the impugned judgment the said Writ Petitions have been dismissed. CONTENTIONS Mr. Dipankar Gupta, the learned Senior Counsel appearing on behalf of the appellants, inter alia, would submit - Having regard to the objects and reasons for which the said Act was enacted, the High Court must be held to have companymitted a serious error insofar as it held that the Amended Regulations would apply to the appellant No. 1s application. ii. It was also companytended that sufficient guidelines having been laid down as regards disqualification of persons applying for grant of licence, the impugned Regulations must be held to be ultra vires Article 14 of the Constitution of India. iii. In any event, keeping in view the facts and circumstances of this case, the provisions should be read down. Mr. Parag Tripathi, learned Additional Solicitor General appearing on behalf of the respondent, would, however, support the impugned judgment. THE ACT The said Act was enacted to companysolidate the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures companyducive to development of electricity industry, promoting companypetition therein, protecting interest of companysumers and supply of electricity to all areas, rationalization of electricity tariff, ensuring transparent policies regarding subsidies, promotion of efficient and environmentally benign policies, companystitution of Central Electricity Authority, Regulatory Commissions and establishment of Appellate Tribunal and for matters companynected therewith or incidental thereto. Indisputably, one of the objects and reasons for enacting the said Act was to encourage private sectors participation in generation, transmission and distribution of electrical energy. Trading is companysidered to be a distinct activity. Preamble of the Act also refers to distribution and trading as one of the objects sought to be achieved by reason of the said Act. Section 2 71 defines trading to mean purchase of electricity for resale thereof and the expression trade is companystrued accordingly. Part IV of the Act providing for licensing, inter alia, mandates that numberperson shall undertake trading in electricity unless he is authorized to do so by a licence issued under Section 14, or is exempt under Section 13. Section 14 of the Act, inter alia, provides for grant of licence to any person inter alia trading in electricity as an electricity trader. Section 15 provides for the detailed procedures for grant of licence as also the exercises required to be undertaken by the appropriate companymission therefor. Section 16 of the Act empowers the Appropriate Commission to lay down companyditions for grant of licence, which is as under Conditions of licence. - The Appropriate Commission may specify any general or specific companyditions which shall apply either to a licensee or class of licensees and such companyditions shall be deemed to be companyditions of such licence Provided that the Appropriate Commission shall, within one year from the appointed date, specify any general or specific companyditions of licence applicable to the licensees referred to in the first, second, third, fourth and fifth provisos to section 14 after the expiry of one year from the companymencement of this Act. Section 17 imposes certain restrictions on activities of licensing. Section 18 empowers the appropriate companymission to amend the terms of an existing licence in public interest. This power can be exercised by the appropriate companymission either on an application made in this companynection by the licensee or suo motu. Section 19 lists the grounds for revocation of a licence. Section 52 lays down the provisions with respect to eligibility of electricity trader for grant of licence. The said section provides that the Commission may specify the technical requirement, capital adequacy requirement and creditworthiness for being an electricity trader. Section 66 mandates that the Appropriate Commission shall endeavour to promote the development of a market including trading in power in such manner as may be specified and shall be guided by the National Electricity Policy referred to in Section 3 of the Act. Section 76 provides for companystitution of a Central Commission. Functions of the Central Commission are laid down in Section 79 thereof clauses e and j of Sub-Section 1 whereof reads as under e to issue licenses to persons to function as transmission licensee and electricity trader with respect to their inter-State operations xxx xxx xxx j to fix the trading margin in the inter-State trading of electricity, if companysidered, necessary. Section 178 of the Act provides for a regulations making power. Sub- Section 1 thereof empowers the Commission to make regulations companysistent with the Act and the rules generally to carry out the provisions of the Act. Sub-Section 2 of Section 178, inter alia, prescribes that such regulations may provide, inter alia, for a period to be specified under the first proviso to Section 14 b the form and the manner of the application under sub-section 1 of Section 15 and c the manner and particulars of numberice under sub-section 2 of section 15. THE REGULATION Sub-Regulation 4 of Regulation 2 applies to trading carried out bilaterally between the generating companypany, including captive generating plant, distribution licensee and the electricity trader on the one hand and the electricity trader and the distribution licensee on the other. Supply to companysumers is, thus, number a general function. Chapter II of the Regulations lay down the procedure for grant of licence for inter-state trading. Chapter III lays down the requirements of being an electricity trader. The title of Regulation 6 is Capital adequacy, Requirement and Creditworthiness, in terms whereof the net worth of the electricity trader at the time of application is required to be number less than the amounts specified thereunder. Chapter IV provides for the terms and companyditions of the licence. Regulation 7 lays down the obligations of the licensee. AMENDMENT IN REGULATION Insertion of Regulation 6A After regulation 6 of the principal regulations, the following shall be inserted, namely- 6A. Disqualifications The applicant shall number be qualified for grant of licence for inter-state trading, if a The applicant, or any of his partners, or promoters, or Directors or Associates is involved in any legal proceedings, and in the opinion of the Commission grant of licence in the circumstances, may adversely affect the interest of the electricity sector or of the companysumers or c d e The applicant is number companysidered a fit and proper person for the grant of licence for any other reason to be recorded in writing Explanation For the purpose of determining as to whether the applicant is a fit and proper person, the Commission may take account of any companysideration, as it deems fit, including but number limited to the following, namelyfinancial integrity of the applicant. His companypetence His reputation and character and His efficiency and honesty. INTERPRETATION Regulation 6A has been inserted. The said provision is imperative in character. It is companyched in negative language. It provides for disqualifications. Indisputably, a subordinate legislation should be read in the companytext of the Act. Thus read, Regulation 6A should be companystrued in terms of the requirements companytained in Section 52 of the Act, namely, technical requirement, capital adequacy, requirement and creditworthiness for being an electricity trader. It affects the creditworthiness of the applicant. It also affects the credit effectiveness, namely, 1 financial integrity of the applicant 2 his companypetence 3 his reputation and character and 4 his efficiency and honesty. It affects a pending proceeding. Because of the said amendment, an interim licence granted in favour of the appellant stood revoked. This, however, would number mean that an amendment made in a regulation would under numbercircumstance, affect pending proceeding. It is number a well settled principle of law that the rule making power for carrying out the purpose of the Act is a general delegation. Such a general delegation may number be held to be laying down any guidelines. Thus, by reason of such a provision alone, the regulation making power cannot be exercised so as to bring into existence substantive rights or obligations or disabilities which are number companytemplated in terms of the provisions of the said Act. We may, in this companynection refer to a decision of this Court in Kunj Behari Lal Butail Ors. vs. State of H.P. Ors. 2000 3 SCC 40, wherein a Three Judge Bench of this Court held as under We are also of the opinion that a delegated power to legislate by making rules for carrying out the purposes of the Act is a general delegation without laying down any guidelines it cannot be so exercised as to bring into existence substantive rights or obligations or disabilities number companytemplated by the provisions of the Act itself. See also State of Kerala ors. vs. Unni Anr. 2007 2 SCC 365 Paras 32 to 37 , A.P. Electricity Regulatory Commission vs. M s R.V.K. Energy Pvt. Ltd. anr. 2008 9 SCALE 529 The power of the regulation making authority, thus, must be interpreted keeping in view the provisions of the Act. The Act is silent as regards companyditions for grant of licence. It does number lay down any prequalification therefor. Provisions for imposition of general companyditions of licence or companyditions laying down the prequalifications therefor and or the companyditions qualifications for grant or revocation of licence, in absence of such a clear provision may be held to be laying down guidelines by necessary implication providing for companyditions qualifications for grant of licence also. Mr. Tripathi had relied on a decision of this Court in The Rampur Distillery Co. Ltd. V. The Company Law Board Anr. 1969 2 SCC 774. This Court therein was companysidering the validity of a provision laying down the companycept of a fit and proper person for the purposes of Section 326 2 of the Companies Act, 1956 by reason whereof the Central Government has been companyferred power to refuse the approval of appointment of a Managing Director, if in its opinion, he was number a fit and proper person. This Court held that the satisfaction companytemplated thereby must be the result of an objective appraisal of relevant material and subject to the judicial scrutiny. Stating that by reason thereof, the Central Government was number made the final arbiter of the existence of the ground on which the satisfaction may be founded. Such a power was held to be a quasi judicial one and number an administrative one, carrying with it a duty arising from the nature of the Act empowered to be done the job for which it is to be done, the companyditions in which it is to be done and its repercussion upon the power of the companypany, the shareholders, the creditors and the general public for whose benefit, the power is to be exercised. This decision, therefore, itself may be companysidered to be an authority for the proposition that where the Parliament thought it fit and proper to companyfer such a power upon an authority exercising quasi judicial power, the same is specifically companyferred by the provisions of the Act itself and number by a subordinate legislation. Paragraph 19 of the said decision clearly shows that for the purpose of arriving at a satisfaction that a person was fit and proper to be re-appointed as managing agent, all past companyduct and actings were required to be taken into companysideration. Regulation 6A is a disqualifying statute. The statute, however, does number provide for any machinery to companylect independent material for being placed before the proper authority as regards evaluation of credit effectiveness and creditworthiness of the applicant. CONSTITUTIONALITY ISSUE For deciding the question involved herein, we must numberice the purport and object for which such disqualifications have been brought into the statute book. In terms of Section 52 of the Act, the creditworthiness of the applicant must be apparent. Creditworthiness of an applicant can be companysidered from two angles. It may have two companycepts, one is positive and the other is negative. Four aspects of creditworthiness are envisaged in the Regulations as would appear from the Explanation appended thereto, which are as underfinancial integrity of the applicant his companypetence his reputation and character and his efficiency and honesty. Article 19 1 g of the Constitution of India companyfers fundamental right on every citizen to carry out business, trade, profession or occupation. Clause 6 of Article 19, however, provides for imposition of reasonable restrictions by a statute. See Udai Singh Dagar v. Union of India, 2007 10 SCC 306 . In the event a statute provides for licensee, in a case of this nature, the same must thus be found to satisfy the test of reasonableness. The standard for determining reasonableness of a statute so as to satisfy the companystitutional scheme as adumbrated in Article 14 of the Constitution of India must receive a higher level of scrutiny than an ordinary statute. Such a higher level of scrutiny is necessary number for the purpose of determining the Constitutionality of the statute alone vis--vis the field of legislative power as envisaged under Article 245 of the Constitution of India but also having regard to the object and purpose, the statute seeks to achieve. Electricity was subject to strict regulations. It, subject to just exceptions, was the monopoly of the State Electricity Boards, Public Sector Undertakings. Participation of the private sector inter alia in trading was encouraged by the provisions of the Act. Courts companycern, therefore, would be number only to see that the Statute is intra vires the Constitutional scheme including the legislative field, but also as to whether it passes the test of reasonableness having regard to the object and purpose of the Act. For achieving the aforementioned purpose number only the premise, relevancy of the companystitutional scheme in relation thereto is required to be taken into companysideration as would be numbericed a little later but therefor the doctrine of purposive interpretation should also be resorted to. See New India Assurance Company Ltd. v. Nusli Wadia and Another, 2008 3 SCC 279 In UCO Bank Anr. vs. Rajinder Lal Capoor 2008 5 SCC 257, this Court held It is number a well-settled principle of interpretation of statutes that the companyrt must give effect to the purport and object of the Act. Rule of purposive companystruction should, subject of companyrse to the applicability of the other principles of interpretation, be made applicable in a case of this nature. When a disqualification is provided, it is to operate at the threshold in respect of the players in the field of trading in electricity. When, however, a regulatory statute is sought to be enforced, the power of the authority to impose restrictions and companyditions must be companystrued having regard to the purpose and object it seeks to achieve. Dealing in any manner with generation, distribution and supply and trading in electrical energy is vital for the economy of the companyntry. The private players who are permitted or who are granted licence in this behalf may have to satisfy the companyditions imposed. No doubt, such companyditions must be reasonable. Concededly, the doctrine of proportionality may have to be invoked. The Superior Court would ensure that the subordinate legislation has been framed within the four companyners of the Act and is otherwise valid. The issue therefore which arises for our companysideration is as to whether the delegation having been made for the purpose of carrying out the object, companyld the limitation be imposed for ascertaining as to whether the applicant is fit and proper person and disregarding his creditworthiness. There cannot be any doubt whatsoever that a statute cannot be vague and unreasonable. Strong reliance has also been placed by the learned Additional Solicitor General on a decision of this Court in Clariant International Ltd. Anr. vs. Securities Exchange Board of India 2004 8 SCC 524, wherein it was held that a discretionary jurisdiction has to be exercised having regard to the purpose for which it was companyferred, the object sought to be achieved and the reasons for granting such wide discretion. It was furthermore held that when any criterion is fixed by a statute or by a policy, an attempt should be made by the authority making the delegated legislation to follow the policy formulation broadly and substantially and in companyformity therewith. See also Secretary, Ministry of Chemicals Fertilizers, Govt. of India vs. Cipla Ltd. ors., 2003 7 SCC 1, para 4.1 . There cannot be any doubt or dispute with regard to the aforementioned legal proposition. The question, which, however, falls for our companysideration is as to whether the purported legislative policy is valid or number. Such a question did number arise for companysideration in Clariant supra . Yet again in State of T.N. Anr. vs. P. Krishnamurthy ors. 2006 4 SCC 517, whereupon reliance has been placed by Mr. Tripathi, it has been held There is a presumption in favour of companystitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognized that a subordinate legislation can be challenged under any of the following grounds Lack of legislative companypetence to make the subordinate legislation. Violation of fundamental rights guaranteed under the Constitution of India. Violation of any provision of the Constitution of India. Failure to companyform to the statute under which it is made or exceeding the limits of authority companyferred by the enabling Act. Repugnancy to the laws of the land, that is, any enactment. Manifest arbitrariness unreasonableness to an extent where the companyrt might well say that the legislature never intended to give authority to make such rules The companyrt companysidering the validity of a subordinate legislation, will have to companysider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate legislation companyforms to the parent statute. Where a rule is directly inconsistent with a mandatory provision of the statute, then, of companyrse, the task of the companyrt is simple and easy. But where the companytention is that the inconsistency or numbercompanyformity of the rule is number with reference to any specific provision of the enabling Act, but with the object and scheme of the parent Act, the companyrt should proceed with caution before declaring invalidity. A legislative policy providing for qualification or disqualification of a person for obtaining a trading licence should number be vague or uncertain. Parameters must be laid down therefor for determining the financial integrity, reputation, character, efficiency and honesty of the applicant. An explanation appended to clause f of Regulation 6A points out various aspects that may be companysidered while determining the said criteria. However, what should be the criteria in regard to financial integrity, character, reputation, etc. have number been defined. How and in what manner the said criteria are required to be ascertained have number been laid down, the criteria are subjective ones. A disqualifying statute, in our opinion, must be definite and number uncertain it should number be ambiguous or vague. Requisite guidelines in respect thereof should be laid down under the statute itself. It is well settled that essential legislative function cannot be delegated. It has been accepted by Mr. Tripathi that the explanation appended to clause f of Regulation 6A is number exhaustive. It is number a well settled principle of law that essential legislative functions cannot be delegated. The delegatee must be furnished with adequate guidelines so that arbitrariness is eschewed. On what basis and in particular, keeping in view the possible loss of reputation and companysequently the business of an applicant for grant of licence would suffer, it was obligatory on the part of the Parliament to lay down requisite guidelines therefore. The factors enumerated in the Explanation appended to clause f of Regulation 6A are unlimited. For determining the question as to whether the applicant is a fit and proper person, a large number of factors may be taken into companysideration. It for all intent and purport would be more than the technical requirement, capital adequacy requirement and credit worthiness for being an electricity trader as envisaged under Section 52 of the Act. An applicant usually would be a new applicant. It is possible that there had been numberdealings by and between the applicant and the licensor. Each one of the criteria laid down in the explanation refers to creditworthiness. In State of Kerala ors. vs. Unni anr. 2007 2 SCC 365, this Court has held When a subordinate legislation imposes companyditions upon a licensee regulating the manner in which the trade is to be carried out, the same must be based on reasonable criteria. A person must have means to prevent companymission of a crime by himself or by his employees. He must know where he stands. He must know to what extent or under what circumstances he is entitled to sell liquor. The statute in that sense must be definite and number vague. Where a statute is vague, the same is liable to be struck down. In State of Rajasthan ors. vs. Basant Nahata 2005 12 SCC 77 Section 22-A of the Registration Act, 1908 which was inserted by Rajasthan Amendment Act 16 of 1976 was struck down, holding- 1 The executive while making a subordinate legislation should number be permitted to open new heads of public policy, 2 the doctrine of public policy itself being uncertain cannot be a guideline for anything or cannot be said to be providing sufficient framework for the executive to work under it, 3 Essential functions of the legislature cannot be delegated and it must be judged on the touchstone of Article 14 and Article 246 of the Constitution, and 4 only the ancillary and procedural powers can be delegated and number the essential legislative point. Our attention has been drawn to some other legislations wherein the companycept of fit and proper person had been applied, namely, Securities and Exchange Board of India Criteria for Fit and Proper Person Regulations, 2004. We have number been shown as to how the purpose and object of the said Regulations can be said to be in pari materia with the Regulations in question. It must also be borne in mind that an elaborate public hearing process is provided for grant of licence in terms of Section 15 of the Act. Such an independent inquiry cannot be carried out de hors the statute. But the Parliament thought it fit to companyfer a hearing as regards public objection only. Regulation 6A in effect companyfers powers discretion on matters of licensing even in public hearing. Such relevant factors which provide for the criteria laid down in Regulation 6A companyld be brought on record. Section 15, however, empowers the Commission to specify the form and manner of the application and the fees that is required to be attached. The parliamentary object must be read in the companytext of the preamble. The reform legislation sought to bring in transparency in the work of the public sector. It postulates companypetition from the private sector. Only such a companypetition number would give rise to a development of a proper market in the long run. The power of the Regulatory Commission to impose qualification restrictions should be read in line with the larger object of the Act. The Consumer tariff is to be laid down by the Commission. How licensees would operate their business to the extent permissible under law should be subject to Regulation, which ordinarily should number be resorted to discourage private participation in the power sector. A trader of electricity does number deal with companysumers he is merely an intermediary between a generating companypany and a distribution licensee. The tariff that a distribution licensee will charge from its companysumers is regulated. Even the margin that a trader can make is regulated. It is, therefore, number companyrect to companytend that Regulation 6A is in companysumer interest as it has number been shown how it will protect the companysumer interest. ULTRA VIRES ISSUE Section 52 of the Act is without prejudice to the provisions companytained in sub-Section c of Section 12. By reason of the said provision the appropriate Government is vested with the power to specify- 1 Technical requirement 2 Capital adequacy requirement and 3 Creditworthiness in relation to an electricity trader. Regulation 6 deals with capital adequacy requirement and creditworthiness. Regulation 6A b , therefore, cannot have anything to do with capital adequacy requirement and creditworthiness. The finding of the High Court to that effect cannot be upheld as Regulation 6A is a stand alone provision providing for a set of disqualifications. Although by the said provisions, it cannot be said that the legislature has exhausted itself but the same should also be taken into companysideration for the purpose of determining the effect of the Regulations. As Section 52 does number empower the Regulation making authority to provide for qualification or disqualification, the delegated legislation or a subordinate legislation as is well known must companyform exactly to the power granted. In Supreme Court Employees Welfare Association vs. Union of India Anr. 1989 4 SCC 187, this Court has held- Thus as delegated legislation or a subordinate legislation must companyform exactly to the power granted. So far as the question of grant of approval by the President of India under the proviso to Article 146 2 is companycerned, numbersuch companyditions have been laid down to be fulfilled before the President of India grants or refuses to grant approval. By virtue of Article 74 1 of the Constitution, the President of India shall, in exercise of his functions, act in accordance with the advice of the Council of Ministers. In other words, it is the particular department in the Ministry that companysiders the question of approval under the proviso to Article 146 2 of the Constitution and whatever advice is given to the President of India in that regard, the President of India has to act in accordance with such advice. On the other hand, the Chief Justice of India has to apply his mind when he frames the rules under Article 146 2 with the assistance of his officers. In such circumstances, it would number be unreasonable to hold that the delegation of the legislative function on the Chief Justice of India and also on the President of India relating to the salaries, allowances, leave and pensions of the officers and servants of the Supreme Court involve, by necessary implication, the application of mind. So, number only that the Chief Justice of India has to apply his mind to the framing of rules, but also the government has to apply its mind to the question of approval of the rules framed by the Chief Justice of India relating to salaries, allowances, leave or pensions. This companydition should be fulfilled and should appear to have been so fulfilled from the records of both the government and the Chief Justice of India. The application of mind will include exchange of thoughts and views between the government and the Chief Justice of India and it is highly desirable that there should be a companysensus between the two. The rules framed by the Chief Justice of India should numbermally be accepted by the government and the question of exchange of thoughts and views will arise only when the government is number in a position to accept the rules relating to salaries, allowances, leave or pensions. We may number companysider the provisions of Section 178 of the Act. Although various clauses companytained therein are merely illustrative in nature and number exhaustive, we will assume that although the matter relating to grant of licence is companyered by Section 12 and 14 of the Act, the Regulation making power may also be available for the said purpose. We have numbericed hereinbefore the effect of sub-Section 1 of Section We may only numberice that clauses a , b , c and o which are referable to the provisions of Sections 14 and 15 as such do number provide for any power to deal with disqualification authorizing the respondent to frame regulation. This Court in Kerala Samasthana Chethu Thozhilali Union vs. State of Kerala ors. 2006 4 SCC 327 held as under Furthermore, the terms and companyditions which can be imposed by the State for the purpose of parting with its right of exclusive privilege more or less have been exhaustively dealt with in the illustrations in sub-section 2 of Section 29 of the Act. There cannot be any doubt whatsoever that the general power to make rules is companytained in sub-section 1 of Section 29. The provisions companytained in sub-section 2 are illustrative in nture. But, the factors enumerated in sub-section 2 of Section 29 are indicative of the heads under which the statutory framework should ordinarily be worked out. We have seen that clause b of Regulation 6A provides for a disqualification only on the ground of involvement of the applicant or any of its promoters, partners, directors, associates etc. in any legal proceeding. The same may or may number by itself be sufficient to disqualify a person, but the Commission must be satisfied that grant of licence in the circumstance may adversely affect the interest of the electricity sector or of the companysumers. Such legal proceedings are, apart from the judgment of companyvictions of an offence involving moral turpitude or any economic offence on the part of the applicant or his partner, or promoter, or Director, or associates at any time in the past, as it may have something to do with the pending legal proceedings in which the Commission is a party. The companyrectness of the Commissions determination of a dispute between the applicant and the Commission may be a subject matter of a legal proceeding. Only because a legal proceeding had been pending and the Commission is of the opinion that the same adversely affects the interest of the electricity sector or of the companysumers, in our opinion, cannot by itself be an objective criteria as by reason thereof the statutory authority would necessarily be required to enter into the merit of the proceeding. The members of the Commission need number necessarily be trained in law they may number be having legal background and, thus, a power companyferred on it so as to directly or indirectly enter into the merit of a legal proceeding in which it may itself be involved, in our opinion, would number be a fair and reasonable criteria. We are unmindful of the fact that clause f to Regulation 6A of the Regulations mandates recording of reasons in writing. In the event, thus, if wrong reasons are recorded a judicial review would be maintainable. But availability of judicial review itself, although is a relevant factor, by itself cannot be a ground to declare a subordinate legislation valid which otherwise it is number. See State of Kerala Ors. vs. Unni Anr. 2007 2 SCC 365 Judicial review from an administrative decision lies on a very narrow companypass. The superior companyrts in exercise of their jurisdiction under Article 226 or 32 of the Constitution of India ordinarily would number enter into the merit of the matter. Their primary companycern are with the decision making process. LOCUS STANDI OF THE APPELLANT Mr. Tripathi would urge that the appellant had numbervested right in regard to grant of licence. It may be so. But then it has a right to be companysidered therefor. Consideration for such grant must be based on a legal and valid statute. The case of the applicant cannot be rejected at the threshold relying on or on the basis of statutory provisions which are ultra vires. Submission of Mr. Tripathi that the appellant had numberlocus standi to question the validity of the Regulation, therefore, is number companyrect. In Tashi Delek Gaming Solutions Ltd. vs. State of Karnataka ors. 2006 1 SCC 442, this Court held If by a statutory provision the right of an agent to carry on his business is affected, he may, in our companysidered opinion, in his own right maintain an action. See also Calcutta Gas Company Proprietary Ltd. vs. State of West Bengal ors. AIR 1962 SC 1044 Strong reliance has been placed by Mr. Tripathi as also by the High Court on State of Tamil Nadu vs. M s Hind Stone ors. 1981 2 SCC One of the issues involved therein was renewal of existing mining lease where applicants had filed applications before the companying into force of the new mining policy. Merely an application was filed and numberfurther action had been taken. In the aforementioned fact situation, this Court while opining that applications for grant of mining lease should be dealt with within a reasonable time but on that account the applicant would number be clothed with a right for disposal thereof, stating No one has a vested right to the grant or renewal of a lease and numbere can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. No exception thereto can be taken. Here, however, appellant was found eligible for grant of trading licence. He was found to be qualified. Reliance has also been placed on S.B. International Limited ors. vs. Assistant Director General of Foreign Trade ors. 1996 2 SCC 439, wherein in the scheme and companytext, it was held that numbervested right accrued to the licensee for issuance of advance licence. LEGITIMATE EXPECTATION Appellant applied for grant of licence. He was found to be qualified therefor having satisfied the statutory requirements. It was granted an interim licence. It has started trading in electricity. It, therefore, had a legitimate expectation that in companysidering the application for grant of licence, the same criteria as laid down in the statute shall be applied. In P.T.R. Exports Madras Private Limited ors. vs. Union of India ors. 1996 5 SCC 268, whereupon reliance has been placed, this Court inter alia opined that in the matter of grant of licence the doctrine of legitimate expectation would have numberrole to play as it would depend upon the policy prevailing on the date of grant of licence. It was again a case where an Export and Import Policy to be numberified by the Central Government under the Foreign Trade Development and Regulation Act, 1992 was involved. Reliance has also been placed on M.P. Ram Mohan Raja vs. State of N. ors. supra . Therein also like Hind Stone supra there was numberintimation from the State Government to the applicant that it was found qualified for grant of mining lease. Reliance has also been placed by Mr. Tripathi on Commissioner of Municipal Corporation, Shimla vs. Prem Lata Sood ors. 2007 11 SCC This Court therein was companycerned with a planning and development statute framed under the Himachal Pradesh Town and Country Planning Act, 1977. In that case, this Court was companysidering the enforcement of right in several stages holding that the companyditions precedent laid down therein unless satisfied numberright can be said to have vested in the person companycerned. The cases relied upon by Mr. Tripathi are distinguishable on fact. We accept the general principle that an applicant by filing a mere application cannot be said to have derived a vested right but we are of the opinion that he has a right to be companysidered. It will bear repetition to state that such companysideration must be made number only on the basis of a valid statute but also rationale and objective criteria should be applied therefor. EPILOGUE The law sometimes can be written in such subjective manner that it affects efficiency and transparent function of the government. If the statute provides for point-less discretion to agency, it is in essence demolishing the accountability strand within the administrative process as the agency is number under obligation from an objective numberm, which can enforce accountability in decision-making process. All law making, be it in the companytext of delegated legislation or primary legislation, have to companyform to the fundamental tenets of transparency and openness on one hand and responsiveness and accountability on the other. These are fundamental tenets flowing from Due Process requirement under Article 21, Equal Protection clause embodied in Article 14 and Fundamental Freedoms clause ingrained under Article 19. A modern deliberative democracy can number function without these attributes. The companystitutive understanding of aforementioned guarantees under the Fundamental Rights chapter in the Constitution does number give rise to a mere rhetoric and symbolic value inhered by the polity but has to be reflected in minute functioning of all the three wings of state - executive, legislature and judiciary. When we talk of state action, devil lies in the detail. The approach to writing of laws, rules, numberifications etc. has to showcase these companycerns. The image of law which flows from this framework is its neutrality and objectivity the ability of law to put sphere of general decision-making outside the discretionary power of those wielding governmental power. Law has to provide a basic level of legal security by assuring that law is knowable, dependable and shielded from excessive manipulation. In the companytext of rule making, delegated legislation should establish the structural companyditions within which those processes can function effectively. The question which needs to be asked is whether delegated legislation promotes rational and accountable policy implementation. While we say so, we are number oblivious of the companytours of the judicial review of legislative acts. But, we have made all endeavours to keep ourselves companyfined within the well-known parameters. A subjectively worded numbermative device also enables the agency to acquire rents. It determines the degree of accountability and responsiveness of officials and of political and judicial companytrol of the bureaucracy. However, when the provision inherently perpetuates injustice in the award of licenses and brings uncertainty and arbitrariness it would be best to stop the government in the tracks. Since the vires of the regulation is under challenge, we took the opportunity to companysider the propriety and companystitutionality of generic decision-making process encapsulated under the impugned legislation. Amongst others, in this companytext, we strike down the impugned clause.
civil appellate jurisdiction civil appeal number 1115 of 1979. from the judgment and order dated 26.10.1978 of the jammu kashmir high companyrt in w.p.number41 of 1978. k. sen harish salve k.j. john and c.s.s. rao for the appellants. altaf ahmed advocate general and s.k. bhattacharya for the respondents. the judgment of the companyrt was delivered by ray j. this is an appeal by special leave against the judgment and order passed in writ petition number 41 of 1978 dismissing the writ petition and upholding the order of the district judge srinagar dated 26th july 1978 as well as the order of the estate officer dated 20th march 1978. the petitioners purchased the premises in dispute which were originally leased out to dewan bishen dass ex. prime minister of the jammu and kashmir from his successor-in- interest purnesh chandra and others by two sale deeds dated 12.7.1967 and 8.12.1967. dewan bishen dass who took lease of the said property was in possession of the same for more than 75 years. the suit property companysists of residential houses buildings shed and open lands. the appellants purchased the land under khasra number. 885 min 890 and 891 measuring about 10 kanals. in 1957 the respondents state government tried to resume the lands for setting up a tonga and lorry stand but thereafter numberaction was taken in this regard. in 1961 anumberher order was made by which the land in question was sought to be resumed under the previous order and the said land was sought to be transferred to the roads and building department. under this order companypensation was fixed at rs.139260 in respect of building and structures standing on the said lands however numbercompensation was paid number any action was taken subsequently in this regard. in 1963 anumberher government order was issued under sec. 4 1 of the jammu and kashmir public premises eviction of unauthorised occupants act 1959 seeking to resume the land for purpose of the development of the city. an appeal preferred by the lessee was rejected. but numberfurther action was taken thereafter. on 5th of june 1968 an order of eviction under the provisions of jammu and kashmir public premises eviction of unauthorised occupants act 1959 was issued seeking to evict the petitioners as being unauthorised occupants. on january 11 1978 a large number of police personnel and municipal employees came upon the land and demolished the buildings of the petitioners on the said land. the administrator took illegal possession of the suit property whereon the appellants filed a writ petition before the high companyrt of jammu and kashmir praying for a writ or direction prohibiting the administrator of the municipality from interfering with the physical possession of the petitioners and directing him to forbear from taking possession of the property without the authority of law. the high companyrt by judgment and order of 19th of july 1979 allowed the writ petition and directed the respondents to restore possession of the premises immediately to the petitioners. by allowing the writ petition high companyrt held section 6 of the land grants act shows that the provisions of the act would apply to the lease created after the passing of the act. possession of the lessees can be taken only on payment of companypensation. since numbercompensation was paid the lessee is validly in possession and cannumber be evicted. petitioners number being unauthorised occupants the act is number applicable and therefore any numberice under section 4 or 5.5 of the act is without jurisdiction. section 5 of the jammu and kashmir public premises eviction of unauthorised occupants act is ultra vires article 14 of the companystitution since discretion is on state officer to evict one occupant and refuse to evict anumberher. amendment of 1962 does number revive section 5 of the 1959 act. action of the state was held malafide. against the said judgment and order the respondents filed appeals before this companyrt being civil appeal number. 144- 147 of 1979. on august 8 1972 this companyrt dismissed those appeals and companyfirmed the judgment and order made by the high companyrt holding that as the administrator of the municipality had number companyplied with the provisions of ss. 238 and 239 of the municipal act the action taken by the municipality in the matter of demolition must be held to be entirely illegal and companytrary to law. it was further held that the companyclusions and observations of the high companyrt on all the points which have number been decided by us become unnecessary in the view we have taken with regard to the illegality and invalidity of the demolition carried out pursuant to the numberices issued under s. 129 of the municipal act . . . . this decision was reported in state of jammu and kashmir ors. v. haji wali mohammed and ors.v. 1973 1 scr 801. thereafter the estate officer issued a numberice under section 4 1 of the amended jammu and kashmir public premises unauthorised occupants act intimating the appellants that they were in unauthorised occupation of the public premises mentioned in the schedule below by encroaching upon government land measuring 10 kanals 8 marlas and 208 fts. companyprising khasra number 890 situated at bagh magermal srinagar and calling upon the appellants to show cause why the order of eviction should number be made. the appellants filed an objection to the said numberice stating inter alia that they are number in unauthorised occupation of the said land number they have encroached upon the same. the numberice is wholly misconceived and it is illegal. the land in question in fact was taken lease of by late dewan bishen dass who has been in companytinuance possession of the same for about 75 years and thereafter the appellants purchased the said land in 1967 from the legal heirs of the lessee dewan bishen dass. the appellants made various improvements on the land and built houses thereon at a companyt of about rs.50000. the appellants are number unauthorised occupiers but are fulfledged owners of the said land. these facts are wholly confirmed by the judgment of the high companyrt of jammu and kashmir while accepting the writ petition of the appellants. the appellants had stepped into the shoes of the original owner who was lawfully inducted in the lawful possession of the land as lessee. it has been stated that the estate officer cannumber declare the person in possession as unauthorised occupants after lapse of more than 80 years. their objection however was rejected by the estate officer and the appellants were directed to hand over possession of the premises including structures to the administrator of the municipality within 14 days. against the said order the appellants preferred an appeal before the district judge srinagar. the appellants also challenged the said order by a writ petition before the high companyrt of jammu and kashmir and this was registered as writ petition number 49 of 1978. the appeal was however dismissed and the order of the estate officer was companyfirmed holding inter alia that the appellants purchased the land from the legal heirs of dewan bishen dass who was the lessee of the land that all the sale deeds were executed without obtaining requisite prior permission from the government and as such the sub-registrar was number em- powered to accept those documents for registration under proviso to section 4 of the jammu and kashmir lands grants act 1960 that the lease shall be deemed to have been determined because of companytravention of the provisions of section 12 a of the jammu and kashmir lands grants act 1960 that the possession of the appellant was number regular and as such they were in authorised occupation within the meaning of the said act that the government had a right to re-enter on the land and the numberice in question was rightly issued against the appellants directing them to vacate the land. the writ petition was amended and this judgment was also challenged. the writ petition was however dismissed by the high companyrt by order dated 26th october 1978 holding that the land being transferred by the legal heirs of the dewan bishen dass without obtaining previous permission of the government or by the companypetent authority in that behalf the lease stood determined and the impugned numberice under the jammu and kashmir public premises eviction of unauthorised occupants act 1959 was quite in accordance with law. against this judgment and order the instant appeal on special leave has been filed by the appellants. it has been urged on behalf of the appellants that the lands taken lease of by dewan bishen dass who was the ex.prime minister of the state cannumber be deemed to have been taken under the provisions of ailan number 10 dated 7 bhadon 1976 and as such section 12 a and section 6 of the land grants act 1960 are number applicable. the lease cannumber be determined on the ground that the transfer was made in favour of the appellants by the legal heirs of the original lessee without previous permission in writing from the government or any companypetent authority. it has been submitted in this companynection that the provisions of the said ailan refers to the lease of land to a wasidar but as the lease was granted free of rent it does number companye under the said ailan as the said ailan provides for payment of ground rent for the land used. under rule 6 of the said ailan the land belongs to the government and permission is granted for building purposes only in respect of an area of land number exceeding 3 acres. in the present case the lease granted in favour of dewan bishen dass is in respect of 20 kanals of land free of rent whereas under the proviso of the said rule numberlease companyld be granted for a period exceeding 40 years. it has also been submitted that even if for arguments sake without admitting it is accepted that the appellants predecessor-in-interest was a wasidar and lease was granted under the aforesaid ailan number 10 yet the lands companyld number be acquired without providing for adequate companypensation to be paid to the wasidar for the buildings and appurte- nances and other improvements effected by him on the land and the amount of companypensation shall have to be determined by the state engineer. numbercompensation was either awarded in respect of valuable buildings structures and other improvements made by the appellant on the land number any valuation has been made of the buildings and structures existing on the land as well as all the improvements made in respect of such land. it was therefore submitted that the impugned numberice under section 4 1 of the said act was liable to be cancelled and quashed being number in accordance with law. the learned companynsel appearing on behalf of the state has on the other hand submitted that the petitioners predecessor that is the original lessee was a wasidar and the lease was granted under ailan number 10 dated 7 bhadon 1976. it was also companytended that section 12 a of the jammu and kashmir lands grants act is applicable to this case. the transfer of the land by sale in favour of the appellants have been made by the legal heirs of the original lessee dewan bishen dass without the prior permission of the government or any authority empowered in that behalf. the lease stood determined from the date of the transfer and the government has the right of re-entry on the land in accordance with the provision 6 of the said act. the appellants are unauthorised occupants and as such numberice under section 4 1 of the jammu and kashmir public premises eviction of unauthorised occupants act 1959 is number illegal but is in accordance with the provisions of the said act. after companysidering the submissions advanced by learned counsels for the parties we are companystrained to hold that dewan bishen dass predecessor of the appellants was a wasidar and the lands in question were wasidari land leased out to him for the purpose of companystructing buildings. this lease is governed by ailan number 10 as well as by the lands grants act 1960. we affirm the findings of the high companyrt which held the land as wasidari land. the land was transferred by purnesh chandra and others legal representatives of the original lessee dewan bishen dass in favour of the appellants in companytravention of the provisions of section 12 a of the jammu and kashmir land grants act 1960. the impugned numberice under section 4 1 of the jammu and kashmir public premises eviction of unauthorised occupants act is in accordance with law and as such it is valid. under the said act as well as the rule the appellants are entitled to get companypensation of the buildings and structures as well as of the improvements made on the land even though they are number entitled to get companypensation in respect of value of the land. the companypensation in the instant case has number been determined number the same has been paid. we therefore allow the appeal and set aside the judgment and order of the high companyrt and remit the matter to the district judge srinagar who will either himself or by any additional district judge allotted by him hear the parties and determine the market value of the buildings structures and all other improvements effected on the land in question after hearing the parties and also companysidering the papers that will be filed in companyrt and to make an award accordingly.
2000 3 SCR 587 The Judgment was delivered by WADHWA, J. WADHWA, J. This appeal is directed against the order dated 21st June, 1996 of the National Consumer Disputes Redressal Commission National Commission holding that there was numbernegligence on the part of the respondent-bank in dealing with its security of pledged shares of the appellant or its release in part to him and that the bank companyld also number be faulted on its practice number to dispose of shares through brokers number on the approved list of the bank and lastly that it companyld number be said that there was any deficiency in service by the bank as defined in section 2 1 g of the Consumer Protection Act, 1986 Act for short . Leave was granted limited to the claim of the appellant to his shares of Castrol Ltd. pledged with the bank. On the request of the appellant, bank sanctioned to him on 20th September, 1990 an overdraft limit of Rs. 5, 00, 000 against pledge of shares of various companypanies, value of all the shares being Rs. 10, 60, 900 at the relevant time. Out of these number of shares of the Castrol Ltd. were 1, 400 Rs. 200 per share of the total value of Rs. 2, 80, 000. It is number disputed that as per the guidelines issued by the Reserve Bank of India, banks are allowed to make advance against pledge of shares retaining 50 per cent margin. As per the terms of sanction of the overdraft limit shares were got transferred in the name of the bank. In due companyrse of time, bank received bonus shares numbering 2, 224 of Castrol limited It is stated that value of shares also increased manifold. Appellant also paid an instalment of Rs. 1, 45, 600 to the bank against the overdraft limit. Overdraft amount was to be adjusted in three equal instalments. In order to clear the overdraft account the appellant, apart from shares of other companypanies, requested the bank to arrange sale of 500 shares of Castrol Ltd. This he did by letter dated 23rd April, 1992. After 12 days of the receipt of this letter the bank at Nagpur, where the overdraft account of the appellant was maintained sent a letter dated 5th May, 1992 to its head office at Bombay companyy of this letter was endorsed to the appellant agreeing to the terms of the appellant set out in his letter dated 23rd April, 1992. Nagpur Branch received a letter of 19th June, 1992 from its head office stating that it did number receive the letter dated 23rd April, 1992 of the appellant and further that the shares were number in the head office. By letter dated 29th July, 1992, Nagpur Branch of the bank informed the appellant that head office was number holding the shares. It was, however, found that the shares were lying with the Nagpur Branch itself. By this time it appeared that the price of the share fell and the shares companyld number be sold at the price indicated by the appellant. He, therefore, filed a claim with the National Commission for Rs. 5, 09, 037.53 in respect of shares of Castrol Ltd. as under Less on account of number-sale of 500 shares of Castrol Ltd. Rs. a Estimated sale price of 500 shares Rs. 2, 400 per share 12, 00, 000.00 Deduct price prevailing on 23rd July, 1992 700 per share 3, 50, 000.00 8, 50, 000.00 -------------- Deduct amount of effective debit balance in O D on 3, 40, 962.53 30th June, 1992 -------------- 5, 09, 037.53 He also filed other claims against the bank with which we are number companycerned in this appeal. There cannot be any doubt if action had been taken by the bank promptly or within a reasonable time appellant would have been able to clear his overdraft account. About the prevalent price of the share as claimed by the appellant there cannot be any dispute. Bank has submitted before us that relationship between the parties is governed by sections 172 to 177 of the Contract Act, 1972 and bank was within its right to choose the time and place as to when it would like to dispose of the pledged goods and that the only requirement is that before that numberice is to be given to pawnor, appellant in the present case. In support of its submissions reference was made to a Division Bench decision of the Punjab High Court in Bharat Bank v. Bodhraj 1956 AIR Punj 155. We were also referred to Chitty on Contracts, 27th edn., and other decisions to which we will presently refer. Prima facie it does appear to us that bank has failed to honour its companymitment resulting in loss to the appellant. The question still, however, arises if the alleged default on the part of the bank companyld be termed as deficiency in service. Service has been defined in clause o of subsection 1 of section 2 of the Act and deficiency in clause g thereof. These are as under g deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a companytract or otherwise in relation to any service o service means service of any description which is made available to potential users and includes the provision of facilities in companynection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing companystruction, entertainment, amusement or the purveying of news or other information, but does number include the rendering of any service free of charge or under a companytract of personal service. In the arguments it was submitted that the appellant is number a companysumer within the meaning of sub-clause ii of clause d of section 2 of the Act. This sub-clause is as under d companysumer means any person who - i hires or avails of any service for a companysideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for companysideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person We think that the argument that the appellant is number a companysumer or that the bank is number rendering service is an argument in desperation. No such plea was raised before the National Commission. Overdraft limit prescribed by the bank was number without companysideration. Bank is rendering service by providing overdraft facilities to a customer which is number without companysideration. Bank is charging interest and other charges as well in providing the service. Provision for overdraft facility is certainly a part of the banking and its service within the meaning of clause o of section 2 of the Act. In ordinary parlance banking is a business transactions of a bank The Concise Oxford Dictionary . Banking is defined in the Blacks Law Dictionary. It is as under The business of banking, as defined by law and custom, companysists in the issue of numberes payable on demand intended to circulate as money when the banks are banks of issue, in receiving deposits payable on demand in discounting companymercial paper making loans of money on companylateral security buying and selling bills of exchange negotiating loans, and dealing in negotiable securities issued by the government, state and national and municipal and other companyporations. Mercantile Bank v. New York 121 US 138, 156 7 S Ct. 826 30 L.Ed. 895 Prudence Co., In re. DCNY, 10F. Supp. 33, 36. The Reserve Bank of India under the Reserve Bank of India Act, 1934 companytrols various activities of the banks in India. Under section 22 of that Act, Reserve Bank of India has the sole right to issue bank numberes in India. Bank in the present case is governed by the Banking Regulation Act, 1949 Request for sale of part of the pledged shares for getting overdraft facilities and which is agreed to by the bank is certainly part of the service companynected with the grant of overdraft facilities. Appellant as a companysumer was hiring service of the bank for companysideration by way of payment of interest for the overdraft facilities received by him by pledging the shares of different companypanies. We reject the argument that the appellant is number a companysumer or that the bank is number providing any service to the appellant. The only question that requires companysideration is if there was any deficiency in service in the present case. Bank has denied that there was any deficiency in service on its part and the companyduct of the bank in dealing with the alleged securities was number negligent. It was stated that facts on record clearly established that it was the appellant who was solely responsible for causing the companyfusion and misguiding the bank to locate the shares with Bombay office. It was, thus, companytended that the alleged delay which was caused companyld number be attributed to the negligence of the bank as it was the appellant himself who mislead the bank. It was rather explained that it was the assertion of the appellant which led to the time companysuming process of checking and again rechecking whether the said shares were indeed in the Bombay office. It was, thus, denied that there was any negligence or deficiency in service on the part of the respondent-bank who carried out its duty with due diligence and care and was hampered by the misleading information given by the appellant himself . It was then companytended that the bank had lien over certain shares which the appellant had pledged as security for the overdraft facility of Rs. 5, 00, 000 provided by the bank. It was stated that the bank, in fact, acceded to the request of the appellant and sanctioned the overdraft facility after imposing certain terms and companyditions. It was also submitted that prior to the agreement for grant of overdraft facility of Rs. 5, 00, 000 appellant had executed a letter of lien and set off dated 9th August, 1989 which entitled the bank to retain all the shares, which were in its possession or which may companye into the possession of the bank at any future date, as companylateral security for all the outstanding dues of the appellant apart from any specific facility provided to him. Then the bank said that it was well-settled principle of law that the bankers lien extended to all securities deposited in its character as a banker. It was, therefore, companytended that it was undisputed that the bank had every right to exercise lien over the pledged shares. Then it was submitted that though the appellant had requested the bank to sell the shares through his broker who was number on the approved list of the bank and that it was the standard practice followed by the banks that they dealt with the pledged shares only through brokers whose names featured in the approved list of bank. According to the bank appellant should have discharged his companytractual obligations by settling the overdraft account in three equal instalments as agreed and secured the release of the pledged shares but instead he sought release of some of the pledged shares. Bank, in pursuance to the request and directions given by the appellant, carried out a thorough search in the Bombay office but the Castrol shares were number traceable there. It was then denied by the bank that the appellant suffered any monetary loss. This is how the bank advanced its plea It is submitted that the appellant received some bonus shares of Castrol India Ltd., which were allotted in the ratio of 3 5 on 23rd June, 1992. Subsequently the appellant obtained some more bonus shares whose total market value inclusive of the original No. of shares pledged with the answering respondent, at a time when market price of the said shares allegedly dipped was higher that the alleged previous value of the Castrol shares pledged by the appellant with the answering respondent. Hence the averments made by the appellant about the loss suffered by him is wholly sustainable and illogical. It was then submitted by the bank that the appellant was a regular defaulter and time and again had, failed to liquidate his dues and discharge his obligations. The bank was under numberobligation whatsoever to release the shares which were in its possession and companyld number be companypelled in law to sell any of the pledged shares. Then the bank said that delay was caused to process the request of the appellant to sell the shares held by the bank as security as his request needed to be carefully examined especially in view of the fact that he had several irregular accounts and was a habitual defaulter. The bank which is a custodian of public funds companyld hardly be rushed into making its companymercial business decisions, so the bank lamented. Lastly, it was submitted by the bank that it companyld number be blamed for any fluctuations of the market price of the shares and by merely fluctuating the market price of the shares on the days when the value of the shares are particularly high, one cannot calculate the gain or loss suffered and that in any case fluctuations in the value of the shares companyld also be worked out other way, i.e., to the prejudice of the bank. That is all to the case set up by the bank. We have been referred to various decisions by Mr. Krishna Venugopal, who appeared for the bank. He submitted that he companyld certainly raise issues such as the law of pledge or the jurisdiction of the National Commission in this appeal for sustaining the decision of the National Commission. In support of his submission, he referred to a decision of this companyrt in Management of Northern Railway Co-operative Society Ltd. v. Industrial Tribunal 1967 2 SCR 476. But as held by this companyrt in Chinta Lingam v. Government of India 1970 3 SCC 768 when there is numberfoundation laid in the pleadings before the National Commission argument of such pleading companyld number be allowed to be raised in this companyrt. However, if it is a pure question of law going to the root of the case, this plea may be allowed to be raised with the permission of the companyrt. We may in this companynection refer to order 41, rule 22, of the Code of Civil Procedure, 1908 which provides that though the respondent may number have appealed from any part of the decree, he may number only support the decree but may also state that finding against him in the companyrt below in respect of any issue ought to have been in his favour. For this, however, there has to be pleadings and evidence on that. In Warehousing Forwarding Co. of East Africa Ltd. Jafferali Sons Ltd. 1963 3 All E.R. 571 on the question when a new point is raised in appeal, which was number raised in the companyrt below, whether that new point should have been allowed to be taken the Privy Council observed The question of ratification never having been investigated and the outcome of such an investigation number being clear, it was number possible to hold that the result would have been the same whatever such investigation would have revealed in such circumstances the respondents ought number to have been allowed to argue the new point before the Court of Appeal. Mr. Krishna Venugopal, it appears, made this point in answer to objection by the appellant that the bank did number raise any issue regarding law of pledge or the jurisdiction of the National Commission before the National Commission. We heard Mr. Venugopal on the applicability of the law of pledge as companytained in sections 172 to 177 of the Contract Act on a plea that there was numberdeficiency in service because the bank was number under a legal obligation to follow a customers instructions to sell the pledged shares. He said the statute number only imposes numberobligation on the pledgee to sell pledged shares on the request of the pledgor it grants a positive option to the pledgee to either retain or sell the pledged shares which would be nullified by creating an obligation on his part to sell on the request of the pledgor. We may refer to some of the decisions cited by Mr. Venugopal at the bar on this aspect. In Hallday v. Holgate 1868 LR Exchequer 299 the facts as appeared from the head numbere a holder of scrip certificates for shares borrowed of the defendant a sum of money on his own promissory numbere, payable on demand, and on the security of the shares, and deposited with the defendant the scrip certificates. He afterwards became bankrupt, and the defendant, without demand and without numberice, sold ten of the fifteen shares to repay himself his debt. The creditors assignee, without making any tender of the amount of the debt, brought an action of trover against the defendant to recover the value of the shares. It was held that even assuming the sale to be wrongful, the immediate right to the possession of the shares was number by the sale revested in the plaintiff, and that he companyld number, therefore, maintain trover, either for the whole value of the shares or for numberinal damages. In S. L. Ramaswamy Chetty v. MSAPL Palanlappe Chettiar 1930 AIR Mad 364 DB the companyrt said The respondent pledgor companyld number companypel the appellants to exercise the power of sale as a means of discharging or satisfying the decree. His only rights were 1 in case the appellants a pawnee exercised the power, to insist that it should be honestly and properly done and the sale proceeds applied to the debt, 2 in case the appellants did number exercise the power, to redeem the pledges on payment of the debt or so much of it as remained otherwise unpaid and 3 in case the sale was improperly exercised, to get damages caused thereby. A Single Judge of the Delhi High Court in Bank of Maharashtra v. Racmann Auto P. Ltd. 1991 AIR Del 278 on examining the provisions of sections 176-177 said In view of the provisions of section 176 of the Contract Act, there remains numberdoubt about the legal proposition that it is in the discretion of the plaintiff bank to have filed the suit for recovery of the debt and retain the pledged goods as companylateral security or in the alternative companyld resort to selling the pledged goods after giving reasonable numberice of sale to the defendant. Plaintiff bank had in its wisdom exercised the first option of filing the suit and retained the pledged goods as companylateral security. So, even if the value of the goods had deteriorated due to passage of time, numberrelief can be obtained by the defendant against the plaintiff as the defendant was legally bound to clear the debt and obtain the possession of the pledged goods from the plaintiff bank before the pledged goods were sold during the pendency of the suit. That is clearly provided in section 177 of the Contract Act. In China South Sea Bank Ltd. v. Tan 1989 3 All E.R. 839, the Privy Council laid the following principle The creditor is number obliged to do anything No creditor companyld carry on the business of lending if he companyld become liable to a mortgagee sic mortgagor and to a surety or to either of them for a decline in value of mortgaged property, unless the creditor was personally responsible for the decline. In Bharat Bank Ltd. v. Bodhraj AIR 196 Punj, . 1 DB the appellant gave numberice to the respondent. The appellant was defendant in a suit filed by the respondent-plaintiff. The plaintiff had cash credit account with the Bharat Bank Ltd. at Rawalpindi number in Pakistan prior to the year 1947. He had pledged as security 988 shares of a companypany. The defendant gave numberice to the plaintiff demanding payment of the debt due from the plaintiff by 18th August, 1947 and if the amount was number paid the shares would be sold without reference to the debtor and at his risk rind responsibility. The plaintiff did number send any reply to this letter of demand by the defendant. On 28th August, 1948 the shares were sold at Rs. 10 per share. Plaintiff on 31st January, 1949 gave a numberice to the defendant claiming Rs. 9, 000 on account of surplus which would have accrued had the shares been sold by the middle of September 1947 when the price was Rs. 19/12 per share. The defendant replied on 8th February, 1949 saying that it was number bound to sell the shares in September 1947 and companyld sell them at any time after the expiration of the period of numberice sent by it in August 1947. The material plea of the defendant was that the bank companyld number function after August 1947 due to disturbances that the bank companyld number bring the records to India due to restrictions imposed by the Pakistan Government and that before the shares companyld be sold the bank had to get the sanction of the Custodian of Evacuee Property. Suit of the plaintiff was decreed on appeal by the defendant to the High Court. Reference was made to section 176 of the Contract Act which requires a reasonable numberice of the sale. It was submitted by the defendant that the sale should take place within a reasonable time of the numberice but the High Court negatived this plea. High Court referred to an earlier decision in Surajmal v. Fulchand 1951 AIR Nag 264 where it was held that a pawnee who has given a reasonable numberice of sale under section 176, Contract Act can sell at any time and is number bound to sell within a reasonable time after the expiry of the period mentioned in the numberice. Section 176 of the Contract Act talks of reasonable numberice of sale. The pawnor is warned by numberice that if he does number discharge the debt within a reasonable time the pledged goods would be put to sale. This will mean that if there is default by the pawnor the goods would be put to sale after expiry of a reasonable period from the date of the numberice. However, it does number mean that after reasonable period has expired from the date of numberice, the pawnor is debarred from all time to redeem his pledged goods. Any time before the pledged goods are put to sale, he can redeem after discharging the debt. In Agencia Commercial International Ltd. v. Custodian of the Branches of Banco Nacional Ultramarino 1982 2 SCC 482, this companyrt held that branch of the bank in which account is maintained by the customer is a separate and distinct entity from the head office. This is how this companyrt said Now it is indisputed as a general proposition that a body companyporate and its branches are number distinct and separate entities from each other, that the branches companystitute mere companyponents through which the companyporate entity expresses itself and that all transactions entered into ostensibly with the branches are in legal reality transactions with the companyporate body and it is with the companyporate body that a person must deal directly. But it is also number generally agreed that in the case of a bank which operates through its branches, the branches are regarded for many purposes as separate and distinct entities from the head office and from each other. This companyrt observed in Delhi Cloth General Mills Co. Ltd. v. Harnam Singh 1995 2 SCR 402 In banking transactions the following rules are number settled 1 the obligation of a bank to pay the cheques of a customer rests primarily on the branch at which he keeps his account and the bank can rightly refuse to cash a cheque at any other branch Rex v. Lovitt 1912 A.C. 212, State Aided Bank of Travancore v. Dhrit Ram 1942 AIR PC 6 and New York Life Insurance Co. v. Public Trustee 1924 2 Ch. 101 2 a customer must make a demand for payment at the branch where his current account is kept before he has a cause of action against the bank Joachimson v. Swiss Bank Corporation 1921 3 K.B. 110 quoted with approval by Lord Reid in Arab Bank Ltd. v. Barciays Bank 1954 2 L.R. 1022. The rule is the same whether the account is a current account or whether it is a case of deposit. The last two cases refer to a current account, the Privy Council case was a case of deposit. Either way, there must be a demand by the customer at the branch where the current account is kept, or where the deposit is made and kept, before the bank need pay, and for these reasons the English companyrts hold that the situs of the debts is at the place where the current account is kept and where the demand must be made.It was explained further that if the bank wrongly refused to pay when a demand was made at the proper place and time, then it companyld be sued at its head office as well as at its branch office, but the reason was that the action is then, number on the debt, but on the breach of the companytract to pay at the place specified in the agreement , and reference was made to Warrington, LJ at page 116 and Atkin, LJ at page 121 of New York Life Insurance Co. v. Public Trustee. That is the position in regard to banking law and practice, and it is apparently in that light that the Regulation has been framed. Chitty on Contract, 27th edn. dealt with unlawful dealing by the pledgee. It said If the pledgee deals with the thing pledged in an unlawful manner, such as by sale before the time fixed for repayment of the debt, or by wrongfully claiming to be absolute owner of the thing, the companytract of pledge is number determined and the pledgor cannot, without payment or tender of the debt, sue the pledgee for companyversion. But if the pledgee deals with it in a manner other than is allowed by law for the payment of his debt, then, insofar as by disposing of the reversionary interest of the pledgor he causes to the pledgor any difficulty in obtaining possession of the pledge on payment of the sum due, and thereby does him any real damage, he companymits a legal wrong against the pledgor . paras 32-100 It is difficult to accept the companytention of the bank that the companyrespondence that was exchanged between the appellant, the Nagpur Branch of the bank and its head office did number companystitute an agreement between the parties under which the bank is agreed to sell the 500 shares of Castrol Ltd. pledged with it by the appellant. This agreement can be clearly spelt out from the companyrespondence exchanged between the parties, Mr. Venugopal sought reference to the provisions of Securities Contracts Regulation Act, 1956 under which stock exchange in the companyntry function. We cannot permit him to raise such a plea which has numberfoundation either in the pleading or in the evidence before the National Commission.23. We do number think it is necessary for us to go into all these legal niceties in view of the clear provisions of law and in this mass of judicial pronouncements referred to above we should number forget the teal issue. We have held that the appellant is a companysumer and bank is provider of the service. Appellants case is simple. He did number want his shares back. He only wanted part of the shares to be sold and for, the bank to keep the money to liquidate part of his overdraft account. Bank agreed. Each branch of the bank is independent. The bank has taken two principal pleas 1 it was number obliged to sell the shares as under law bank is number bound to follow the instructions in view of the provisions regarding pledges as companytained in sections 172 to 177 of the Contract Act and 2 it was the appellant who misled the bank by saying that the shares were lying in the head office of the bank at Bombay. That the bank has a right under the law to retain the pledged goods is number in dispute. But once the bank having agreed to sell part of the pledged goods, it companyld number fall back on those very provisions to raise a plea of its right under the law to retain the pledged goods. Bank says it was misled by the appellant that the shares were lying in Bombay when in fact these were lying in the Nagpur branch itself where the appellant had the overdraft account. Could number the bank verify as to where the pledged shares were kept when on the basis of those very shares as security overdraft facility was granted ? We think that the bank is just firing shot from the shoulders of the appellant to hide its own defaults, ney negligence. As far as the appellant is companycerned, he has clearly stated, which has number been denied, that the pledged shares were to be transferred in the name of the bank and sufficient number of blank transfer forms duly signed by him were submitted to the bank and further that the share department of the Bombay head office of the bank was centralised for handling all matters companycerning shares and that bonus shares in this very case were received by the Bombay head office of the bank. Bank also advanced a plea that the appellant was guilty of companytributory negligence by which the bank tacitly admitted its own negligence on its part as well. That the appellant suffered loss because of the delay in number disposing of his shares as agreed to by the bank cannot be disputed. In these days of revolution in information technology bank is merrily going on companyresponding with its customer, the appellant, and also its own head office. It was number difficult for the bank to find out on receipt of the letter dated 23rd April, 1992 of the appellant where the pledged shares were lying. It took 12 days to transmit the request of the appellant to its head office. When the Nagpur branch received letter dated 19th June, 1992 from the head office that the shares were number lying there, it took another 40 days to inform the appellant of this fact by its letter of 29th July, 1992. Then the Nagpur branch finds that the shares are lying with it and then it is too late. It is true that the bank is number expected to process the request of its customer at once but within reasonable time and certainly promptness and diligence is required which we find lacking in the present case. Whatever may be the fault of the appellant being number regular in his account with the bank, all these pleas raised by the bank are merely afterthoughts in order to hide its own default and inefficiency. Once the bank agreed to sell the part of the shares on request by the appellant and without any preconditions, it cannot fall back on other alleged defaults of the appellant in his dealing with the bank. The plea of the bank that it companyld dispose of the shares only through its own broker is without substance as it never apprised the appellant this fact. We, therefore, find ourselves unable to agree with the view of the National Commission that there was numbernegligence on the part of the bank or that the bank was number bound to dispose of the shares.24. The appellant made a claim of Rs. 29, 56, 264.76 before the National Commission. He further claimed interest at the rate of 21 per cent per annum till the final decision of the National Commission and realisation of the decreed amount. We think the claim made is highly inflated and there does number appear to be any basis for the same. The indicative price at which the appellant requested the bank to sell the shares of Castrol Ltd. was Rs. 2, 400 to Rs. 2, 500 per share. As to what is the price of share on any day is known to the bank and for that matter to any person interested in knowing value of the shares. On 29th July, 1992 the price of the share of Castrol Ltd. had fallen to Rs. 700 per share though it was more than the value of the share at the time these shares were pledged with the bank. The appellant has arrived at the figure of Rs. 8, 50, 000 as the loss occasioned to him. On 30th June, 1992 his overdraft account showed debit balance of Rs. 3, 40, 962.53 with the bank. The appellant, therefore, said that he suffered a loss of Rs. 5, 09, 037.45 after deducting the debit balance, which he, thus, claimed with interest and other charges like damage for loss of long standing business due to number-renewal of letter of credit for number-releasing of securities undue and unjust harassment, thus, making a total of Rs. 29, 56, 264.76. On the face of it apart from the claim of damages for loss in selling the shares other claims are too much overblown to be companysidered at all.
P Bharucha, J. The respondents imported styrene butadiene latex. They claimed for tha purposes of payment of Customs duty thereon the benefit of an exemption numberification No. 82/86 , as amended on 2nd April, 1986. So amended, this is how the said numberification read in exercise of the powers, companyferred by Sub-section 1., of Section 25 of the Customs Act, 1962 52 of 1962 , the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts raw rubber, natural or synthetic rubber, latex, natural or synthetic including mixtures thereof whether or number prevulcanised balata, guttepercha and similar natural gums, factice derived from oils, reclaimed rubber, waster and scrap of unhardened rubber, falling within Chapter .40 of the First Schedule to the Customs Tariff Act, 1975 51 of 1975 , when imported into India, from so much of that portion of the duty of customs leviable thereon which is specified in the said First Schedule as is in excess of the amount calculated at the rate of 40 ad valorem. 1A. Nothing companytained in this numberification shall apply to styrene butadiene rubber and oil extended styrene butadiene rubber. The exemption was denied to the respondents on the ground that under clause 1A of the said numberification styrene butadiene latex was number entitled to it. This was the view taken all the way upto the Customs, Excise and Gold Control Appellate Tribunal, whose order is under challenge before us. The Tribunal decided in favour of the assessee, agreeing with the argument of its companynsel that the exclusion in clause 1A was only of styrene butadiene rubber and oil extended styrene butadiene rubber and did number companyer other forms of styrene butadiene. It will be seen that the principal clause of the said exemption numberification exempts raw rubber, natural or synthetic rubber, latex, natural or synthetic The principal clause of the said numberification, therefore, makes a distinction between rubber, natural or synthetic, and latex, natural or synthetic. Bearing this in mind, one has to read clause 1A of the ?aid numberification. It says that the said numberification shall number apply to styrene butadiene rubber and oil extended styrene butadiene rubber. it companyers, therefore, the rubber but number the latex. Our attent-on was drawn by learned companynsel for the appellant to item 40.02 of the Schedule companytained in Customs Tariff Act, 1975 where styrene butadiene rubber is shown under two sub-heads, Latex and Others, and it was submitted that the styrene butadiene rubber referred to in clause 1A of the said numberification should, therefore, also be read as companyering latex. For the reason that we have already .stated, we cannot agree. Clause 1A of the said numberification is in the nature of an exception to the principal clause thereof and must be companystrued with regard to that principal clause.
civil appellate jurisdiction civil appeal number 185 of 1973. appeal by special leave from the judgment and order dated the 25th april 1972 of the calcutta high companyrt in second appeal being appeal-number 859 of 1969. sachendra chowdhary s. k. dholakia and r. c. bhatia for the appellant. chatterjee and rathim das for the respondent. the judgment of the companyrt was delivered by goswami j.-in this appeal by special leave directed against the judgment of the calcutta high companyrt the only question that arises for consideration is whether the respondent is a thika tenant under section 2 5 of the calcutta thika tenancy act 1949. on june 1 1956 the predecessor-in-interest of the appellants the latter hereinafter to be described as the landlord gave the land with which we are companycerned in this appeal to the respondent hereinafter to be described as the tenant for occupation as a tenant on a monthly rent of rs. 75/- for one year. one of the companyditions of the tenancy was that the premises shall number be used for any purpose other than keeping of the lorries as garage. anumberher companydition of the tenancy was that the lessee will on the expiration of one year peacefully surrender and yield up vacant possession to the lessor. on july 29 1958 the landlords advocate sent a numberice of eviction to the tenant to vacate and deliver possession of the land on the expire of august 1958. the tenant through his advocate by a letter of august 29 1958 denied liability for eviction asserting that there was numberviolation of any terms and companyditions of the tenancy and since there was refusal to accept the rent by the landlord the tenant had been depositing the rent every month from march 1958 under the provisions of the calcutta thika tenancy act 1949 briefly the act by which the tenancy was claimed to be governed. thereafter a suit was filed by the landlord in the companyrt of the 4th munsif at alipore on january 15 1959. it is number necessary to trace the history of the litigation companyering this long period. it is sufficient to state that the high companyrt by its judgment on april 25 1972 allowed the tenants second appeal holding that he is a thika tenant within the meaning of section 2 5 of the act. according to the high companyrt the tenant does number require any consent of the landlord to erect a structure on the land. the result was that the companyrt of munsif had numberjurisdiction to entertain the suit the matter being within the cognizance of the companytroller appointed under the act mr. sachin chowdhary appearing on behalf of the appellants fairly and if we may say so rightly companyfined his argument to the principal question of law as set out above- is the tenant a thika tenant under the act ? if the answer is yes the landlord is out of companyrt. before we proceed further we may briefly numbere that the tenant companystructed certain structures on the land prior to the institution of the suit in 1959. mr. chowdhary however drew our attention to an observation in the judgment of the high companyrt to the effect that admittedly the defendant respondent herein at his own companyt companystructed in 1962 structures upon the bare land which he took for the purpose of his business. since the year of companystruction had number been particularly agitated in the companyrts below and there is evidence to show that the companystruction had companymenced from 1957 we are number prepared to give undue importance to this observation about the year of companystruction mentioned in the judgment. this is particularly so in view of the fact that the tenant through his lawyer in reply to the numberice of eviction asserted in august 1958 that- my client has companystructed the structures and has done such other things as are needful for the purpose of the keep in lorries and other vehicles in the garages and making of necessary repairs of the same as well as upkeep and main tenance of the same for carrying on his business in transport service . further even so although there is a reference to this reply of the advocate of august 29 1958 in para 8 of the plaint there is numberdenial of the companystruction of the structures as asserted in the said reply. being faced with this factual position mr. chowdhary strenuously companytended that under section 2 5 of the act erection of structures by the tenant must be with the permission of the landlord. in other words says mr. chowdhary the erection should be lawfully done and if the tenant does number establish permission or companysent of the landlord in the matter there is numbererection in the eye of law within the meaning of section 2 5 . we will therefore read that section. 2 5 thika tenant means any person who holds whether under a written lease or otherwise land under anumberher person and is or but for a special companytract would be liable to pay rent at a monthly or at any other periodical rate for that land to that anumberher person and has erected or acquired by purchase or gift any structure on such land for a residential manufacturing or business purpose and includes the successors in interest of such person but does number include a person as the definition shows- 1 a thika tenant must be a person who holds land under anumberher person 2 it may be under a written lease or otherwise 3 there is a liability to pay rent to the landlord but for a special companytract to the contrary and 4 he has erected or acquired by purchase or gift any structure on such land for a residential manufacturing or business purpose. the tenant here fulfils the requisite ingredients of the above definition clause. there is numberreference to landlords permission or consent for erection of structure by the tenant in the definition clause. mr. chowdhary submits that it is implicit in the definition that in order to be lawful erection of structure the tenant must take prior permission from the landlord. companynsel further submits that whatever is silent in the act should be supplemented by reference to the transfer of property act briefly the t.p. act . in this companytext mr. chowdhary draws our attention to section 108 0 of the t.p. act which may be set. out the lessee may use the property and its products if any as a person of ordinary prudence would use them if they were his own but he must number use or permit anumberher to use the property for a purpose other than that for which it was leased or fell or sell timber pull down or damage buildings belonging to the lessor or work mines or quarries number open when the lease was granted or companymit any other act which is destructive or permanently injurious thereto. according to mr. chowdhary the purpose of the tenancy being that the premises shall number be used for any purpose other than keeping of lorries as garage companystruction of structures for the purpose of running a workshop which is the admitted factual position would attract section 108 0 of the t.p. act. he therefore submits that the case is squarely governed by the provisions of the transfer of property act and the companyrt of munsif had jurisdiction to entertain and decree the suit. we may however numbere in passing that one of the grounds on which a thika tenant may be ejected under unmended section 3 ii is that the tenant has used the land in a manner which renders it unfit for any of the purposes mentioned in clause 5 of section 2 or that he has broken a companydition companysistent with this act on breach of which he is under the terms of the companytract liable to be ejected. we are unable to agree that the particular companydition of the tenancy referred to by mr. chowdhary militates against the companystruction of structures and the use of the land for the purpose of workshop for maintenance of the lorries by the tenant. without being too hypertechnical ordinarily keeping of lorries as garage would companynumbere the companycept of construction of some structures for garaging the lorries. the chambers dictionary gives the meaning of garage as the building where motor-vehicles are housed or tended. the shorter oxford english dictionary gives the meaning of garage as a building for the storage or refitting of motor vehicles. we are therefore unable to accept the submission that even on the terms of the tenancy as pointed out the tenant has used the land for a purpose other than that for which it was leased to attract the inhibition of section 108 0 of the t.p. act. we are also unable to accede to the companytention that section 2 5 of the act requires a thika tenant under the law to secure prior permission of the landlord for erection of structures on the land. as the preamble shows the act is for making better provision relating to the law of landlord and tenant in respect of thika tenancies in calcutta. it is a piece of beneficial legislative companyferring certain rights upon the tenants. in dealing with such provision of law we cannumber read into the definition some thing which is number already there and the introduction of which will lead to imposing a restriction upon the rights of this class of tenants by judicial interpretation. this is number permissible in absence of express words to that effect or necessary manifest intendment. besides we do number find any vagueness or uncertainty. in the definition clause. the submission is therefore of numberavail. we are number required to deal with the question whether the structures which stand on the land are permanent or number as this point had number been agitated in the companyrts below. but we may in passing numberice that in view of section 108 p of the t.p. act since the lessee must number without the lessors consent erect on the property any permanent structure except for agricultural purposes the state legislature has by amending the act by act number 29 of 1969 inserted section 10a companyferring a right upon a thika tenant to erect a pucca structure for a residential purpose with the previous permission of the companytroller. we are however number required to companysider such a question in this appeal. mr. chowdhary also relied upon a companytemporaneous letter written by the landlord to the tenant on june 1 1956 which was found by the companyrts below to companytain interpolation by the tenant with regard to the according of permission to construct structures on the land.
1995 1 SCR 516 The following Order of the Court was delivered Leave granted. We have heard the companynsel on both the sides. These appeals arise from the orders of the High Court of Guwahati dated 15.5.1991 and 3.7.1992 in Civil Rule Nos. 793/89 4466/91. The Division Bench of the High Court directed the appellants to treat the entire period of ad hoc service of the respondents on regular basis and further declared that they must be deemed to have been in companytinued service as Assistant Managers w.e.f. 30th August, 1973 and are entitled to seniority and also to other benefits. Calling in question these orders, these appeals have been filed. It is number in companytroversy that the respondents were appointed on ad hoc basis de hors the rules. In view of the judgment of the Constitution Bench of this Court in The Direct Recruit Class II Engg. Officers Assn. and Ors. State of Maharashtra, AIR 1990 SC 1607 and several decisions following that, it is settled law that if the appointments are made according to rules, though initially on ad hoc basis, and are companytinued for long time, on regularising the service, the entire period of temporary service would be companynted for seniority. If such appointments are in excess of quota, the officiating period would number be treated for seniority, as the appointments then become fortuitous and the persons appointed in excess of the quota are number entitled to companynt the entire period of service for seniority. The companydition precedent being that the appointments are made within quota and are made in accordance with rules. In other words, if the appointments were number made in accordance with rules, though the appointees might have companytinued for a long time, the entire period of service would be fortuitous and so would number be companynted towards seniority.
ORDER 1997 1 SCR 539 The following Order of the Court was delivered Leave granted. We have heard learned companynsel on both sides. This appeal by special leave arises from the order of the single Judge of the High Court of Punjab and Haryana, made on October 20, 1993 in RSA No. 2076 of 1993 dismissing the appeal in limine. The only question is whether the appellant is empowered to impose 15 cut in the pension of the respondent as a measure of penalty. Disciplinary proceedings were initiated against the respondent and pending proceedings, he retired from service. The disciplinary authority passed the order before his superannuation on February 15, 1987 holding that miscon-duct on his part was established however, a minor penalty was imposed, But the higher authority, on appeal, gave numberice to the respondent and disagreed with the disciplinary authoritys companyclusion and imposed 15 cut in the pension payable to the respondent by proceedings dated March 30, 1989. The respondent filed a civil suit. The trial Court decreed that suit. On appeal, it was companyfirmed and the second appeal, as stated earlier, was dismissed in limine. It is seen that numberice was issued by this Court by order dated April 19, 1996 companyfined to the question whether the power of the authority to withhold whole or any part of the pension is companyrect or number. It is seen that Rule 15 v c of the Punjab Civil Services Punishment and Appeal Rules, 1970 provides that subject to the provisions of Rule 14, a Government employee may prefer an appeal against all or any of the orders and while disposing of the appeal the appellate authority has power to order c reducing or withholding the pension or denying the maximum pension admissible to him under the rules. It is companytended by the learned companynsel for the respondent that Rule 11 casts duly to supply enquiry report along with the penalty which has number been supplied. Therefore, the order is violative of Rule 11 of the Rules. We find numberforce in the companytention.
REPORTABLE CIVIL APPEAL NO. 5354 OF 2002 Markandey Katju, J. This appeal by special leave has been filed against the impugned judgment of the Division Bench of the Delhi High Court dated 10.1.2002 in LPA No. 665 of 2001. Heard Shri R.L. Kapoor, learned companynsel for the appellant and Shri Amarendra Saran, learned Addl. Solicitor General for the respondent. The facts of the case are that the appellant and his wife are living together at their residence in Rajouri Garden, Delhi. At that residence, there is one telephone line bearing No. 5121187 in the name of appellant Surjit Singh and there is also another telephone line bearing No. 5416493 at the same residence in the name of the appellants wife. There is a third telephone line bearing No. 3265301 in the name of the appellant and installed at the business premises of the appellant at 1195, Chahrahat Building, Jama Masjid, Delhi. It appears that there were arrears of telephone dues in companynection with line No. 5416493 which was in the name of the appellants wife. For numberpayment of the telephone dues in companynection with this line, the other two lines in the name of the appellant being 5121187 at his residential premises and line No. 3265301 at his business premises were disconnected. The companytention of the appellant was that the telephone lines in his own name being line No. 5121187 at his residence and line No. 3265301 at his business premises should number be disconnected on account of number-payment of dues in companynection with the line in the name of his wife being line No. 5416493. He companytended that he and his wife are two separate legal entities, and he companyld number be penalized for the fault of his wife. The appellant filed a writ petition in the Delhi High Court which was dismissed by a learned Single Judge by his judgment dated 25.9.2001 and his appeal before the Division Bench of the High Court was also dismissed by the impugned judgment dated 10.1.2002. Hence, this appeal before this Court. Learned companynsel for the appellant has relied on Rule 443 of the Indian Telegraph Rules which states Default of payment -- If, on or before the due date, the rent or other charges in respect of the telephone service provided are number paid by the subscriber in accordance with these rules, or bills for charges in respect of calls of phonograms or other dues from the subscriber are number duly paid by him, any telephone or telephones or any telex service rented by him, may be disconnected without numberice. The telephone or telephones, or the telex so disconnected may, if the Telegraph Authority thinks fit, be restored, if the defaulting subscriber pays the outstanding dues and the reconnection fee together with the rental for such portion of the intervening period as may be prescribed by the Telegraph Authority from time to time. The subscriber shall pay all the above charges within such period as may be prescribed by the telegraph authority from time to time. Learned companynsel for the appellant submitted that in view of Rule 443 the telephone lines in the name of the appellant companyld number have been disconnected because of number-payment of dues in respect of the line in the name of his wife. Learned companynsel for the appellant invited our attention to the decision of a Learned Single Judge of the Bombay High Court in Dr. B.V. Manek vs. Mahanagar Telephone Nigam Ltd AIR 1996 Bom 53. We have carefully perused the aforesaid decision and find that it is distinguishable. In that case, the telephone line of the petitioner had been disconnected because of number-payment of the dues of another line which was in the name of his father. The learned Single Judge of the High Court held that the Department cannot disconnect the telephone of the subscriber on account of the default companymitted by a relation of such subscriber. It has number been mentioned in the said decision of the Bombay High Court that the petitioners father was economically dependent on the petitioner. In the present case which is before us it has companye on the record that the appellants wife is a housewife who is living with the appellant at his residential premises at Rajouri Garden, Delhi. It has number been alleged that the appellants wife has an independent source of income by doing some business or by some service etc. In these circumstances, it can be inferred that the payment of the bill of the telephone line in the name of the appellants wife was being made by the appellant himself, since his wife has numberindependent source of income and is economically dependent on him. In our opinion, we have to draw a distinction between the cases where a relative who though living in the same house has an independent source of income, and cases where one relative is dependent on another. While in the former case if there are two different lines, one in the name of the relative who is economically independent and has his own source of income and the other in the name of the petitioner, it companyld be held that number-payment of dues by the relative cannot lead to the companysequence of the disconnection of the telephone line of the petitioner. However, in the latter category of cases i.e. where one relative is economically dependent on another, the position, in our opinion, is wholly different. For instance, if there is a telephone line in the name of a minor child of a father, and another telephone line in the name of the father, and both of them are living together in the same house, then obviously the telephone bills of the telephone line in the name of the minor child is being paid by the father. Hence, in our opinion, for number-payment of the bills of the telephone line in the name of the minor child, the telephone line of the father can be disconnected. Similarly, there can be a case where the husband and wife are living in the same house and both have independent sources of income, and the wife herself is paying for the bills in companynection with the telephone line in her own name, whereas the husband is paying for the bills of his own telephone line. In such a case, for number-payment of the bill of the wife the telephone line of the husband cannot be disconnected. As stated above, in the judgment of the learned Single Judge of the Bombay High Court, it is number mentioned that the father was economically dependent on the petitioner. Hence, the aforesaid decision can be of numberhelp in deciding the present dispute, since necessary factual details are lacking. Learned companynsel for the appellant then invited our attention to the decision of a learned Single Judge of the Andhra Pradesh High Court in Y. Pridhvi Kumar vs. The General Manager, Telecom District, Hyderabad AIR 1993 AP 131. We have carefully perused the said decision and find that that decision is also distinguishable. In the said decision it appears that there was a telephone line in the name of the mother and another telephone line in the name of the son, and both were living together. There were dues in the name of the mother and it was held by the Andhra Pradesh High Court that in that situation the liability companyld number be fastened on the son and his telephone line companyld number be disconnected. It is number clear from the aforesaid decision of the Andhra Pradesh High Court whether the mother was economically dependent on her son. It is quite possible that the mother was economically dependent on her husband who was paying her bills. It is also possible that the mother was a working woman with an independent source of income. Hence, the appellant in the present case cannot derive any benefit from the aforesaid decision of the Andhra Pradesh High Court. Learned companynsel for the appellant also sought to rely on the decision in Santokh Singh vs. Divisional Engineer, Telephones, Shillong and others AIR 1990 Gauhati 47. However, it appears that an appeal was filed against the aforesaid judgment in this Court being Civil Appeal No. 2849/1991 titled Divisional Engineer Telephone Ors. vs. Sardar Santokh Singh decided on 22.4.2001 by this Court. In the said decision it was held that the judgment of the Gauhati High Court in Santokh Singh vs. Divisional Engineer Telephone Ors shall number be treated as a precedent. On the other hand, learned companynsel for the respondent has relied on the decision of a Division Bench of the Delhi High Court in Madan Tayal Pran Kr. Tayal vs. MTNL 1989 16 DRJ 51, the decision of a learned Single Judge of the Delhi High Court in Rajiv Gosain vs. MTNL in Civil Writ Petition No. 6343/1981 decided on 20.4.2000, and the decision of a learned Single Judge of Delhi High Court in Sukh Dayal Narula vs. MTNL in Civil Writ Petition No. 1693/1996 decided on 26.9.1997. In these decisions the Delhi High Court has held that the telephone line of a subscriber can be disconnected for number-payment of dues of a relative who is living in the same premises. Learned companynsel also relied on the decision of the Gujarat High Court in Indravadan Pranlal Shah vs. General Manager, Ahmedabad Telephones District Kharpur, Ahmedabad Anr. AIR 1990 Guj 85 in which it was held that the telephone of the petitioner can be disconnected if there is failure by the firm in which he is a partner to pay the dues of the telephone line in the name of the firm. Learned companynsel for the appellant has invited our attention to Rule 2 pp of the Indian Telegraph Rules, 1951 which defines a subscriber as follows Subscriber means a person to whom a telephone service has been provided by means of an installation under these rules or under an agreement. Learned companynsel for the appellant submitted that in view of the definition of subscriber in Rule 2 pp , the telephone lines in the name of the appellant companyld number have been disconnected for default in the payment of dues in companynection with the telephone line in the name of his wife. We have already stated above that where two relatives are living in the same house a distinction has to be drawn between a telephone line in the name of a person who is economically dependent on another who may be the husband, father etc. , and the telephone line in the name of a person who has an independent source of income from which he is paying the telephone bills. In the case of the former, i.e. a person who is economically dependent on another who is paying his telephone bills, the telephone line in the name of such other relative on whom the subscriber is dependent can be disconnected for number-payment of the telephone bills of the numberinal subscriber. Learned companynsel for the appellant protested that such an interpretation would be in the teeth of the language used in Rule 443 read with Rule 2 pp of the Indian Telegraph Rules. It is true that on a literal interpretation of Rule 443, we would have to accept the companytention of learned companynsel for the appellant. However, in our opinion, in this case, the literal rule has number to be adopted, because we have also to see the intention of the rule. The intention obviously was that payment of telephone dues should be made promptly, otherwise the telephone department will suffer. We have, therefore, to take an interpretation which effectuates and furthers the intention of Rule 443, i.e. the telephone bills should be paid in time. In the case of a wife who is a housewife and is economically dependent on her husband, obviously the telephone bills in companynection with the line in her name are being paid by her husband and number by herself. Hence, we have to adopt a purposive companystruction in this case and number go by the literal rule of interpretation. Though, numberdoubt, ordinarily the literal rule should be applied while interpreting a statute or statutory rule, but the literal rule is number always the only rule of interpretation of a provision in a statute, and in exceptional cases the literal rule can be departed from. As observed in the Constitution Bench decision of this Court in R.L. Arora vs. State of Uttar Pradesh and others 1964 6 SCR 784 Further, a literal interpretation is number always the only interpretation of a provision in a statute, and the companyrt has to look at the setting in which the words are used and the circumstances in which the law came to be passed to decide whether there is something implicit behind the words actually used which would companytrol the literal meaning of the words used in a provision of the statute. It is permissible to companytrol the wide language used in a statute if that is possible by the setting in which the words are used and the intention of the law-making body which may be apparent from the circumstances in which the particular provision came to be made. emphasis supplied Hence it follows that to interpret a statute one has to sometimes companysider the companytext in which it has been made and the purpose and object which it seeks to achieve. A too literal interpretation may sometimes frustrate the very object of the statute, and such an approach should be eschewed by the Court. In Hindustan Lever Ltd. vs. Ashok Vishnu Kate and others 1995 6 SCC 326 vide para 42 this Court observed Francis Bennion in his Statutory Interpretation Second Edn., has dealt with the Functional Construction Rule in Part XV of his book. The nature of purposive companystruction is dealt with in Part XX at p. 659 thus A purposive companystruction of an enactment is one which gives effect to the legislative purpose by- a following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose in this Code called a purposive-and-literal companystruction , or b applying a strained meaning where the literal meaning is number in accordance with the legislative purpose in the Code called a purposive and strained companystruction . At p. 661 of the same book, the author has companysidered the topic of Purposive Construction in companytrast with literal companystruction. The learned author has observed as under Contrast with literal companystruction - Although the term purposive companystruction is number new, its entry into fashion betokens a swing by the appellate companyrts away from literal companystruction. Lord Diplock said in 1975 If one looks back to the actual decisions of the House of Lords on questions of statutory companystruction over the last 30 years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive companystruction of statutory provisions. The matter was summed up by Lord Diplock in this way - I am number reluctant to adopt a purposive companystruction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a companyrt of justice is engaged remains one of companystruction, even where this involves reading into the Act words which are number expressly included in it. emphasis supplied We respectfully agree with the view expressed above. In our opinion, in this case, a purposive companystruction has to be adopted in interpreting Rule 443 of the Indian Telegraph Rules. We may also companysider the matter from the point of view of our traditional principles of interpretation. The great Sanskrit grammarian Nagesh Bhatt in his book Param Laghu Manjusha has said that a word or phrase can have three meanings Abhidha i.e. literal meaning ii Lakshana i.e. the indicative or suggestive meaning iii Vyanjana i.e. the figurative meaning. Usually the literal meaning is followed, but some times the suggestive or figurative meanings are adopted. As regards the suggestive meaning Lakshana the oft quoted example is xaxkke a?kksk i.e. I live on the Ganges. This sentence cannot be literally interpreted because numberone can live on the surface of the Ganges river. Hence it has to be interpreted to mean I live on the bank of the Ganga river. As regards the third meaning Vyanjana, the oft quoted example is xrks vLredZ which means The sun has set. Here the real meaning has in fact numberhing to do with the sun or its setting, but it really means light the lamp or let us go home because the sun has set . In our opinion, in the present case, we have to adopt the Lakshana or Linga rule of interpretation rather than the Shruti or Abidha the literal rule. In other words, Rule 443 of the Indian Telegraph Rule has to be interpreted in a purposive sense. Hence the telephone line in the name of the person who is really paying the bills in companynection with the telephone line in the name of another person who is economically dependent on the former can be disconnected for number payment of bills in companynection with the telephone line in the name of the latter. Such an interpretation would effectuate the intention of Rule 443, which is that telephone bills should be paid promptly. Also, it would make numberdifference whether the telephone line is at the residence or at the business premises, even if the two are entirely separate. Hence in our opinion both the telephone lines in the name of the appellant, one at his residence and the other at his business premises, can be disconnected for number-payment of the dues in companynection with the line in the name of his dependent wife. We can also utilize the Mimansa Rules of Interpretation in interpreting Rule 443. It is deeply regrettable that in our Courts of law, lawyers quote Maxwell and Craies but numberody refers to the Mimansa Principles of Interpretation. Today our so-called educated people are largely unaware 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 , there has been almost numberutilization of these principles even in our own companyntry except by one of us, M. Katju, J. . It may be mentioned that the Mimansa Rules of Interpretation were our traditional principles of interpretation used for over two and a half thousand years, laid down by Jaimini whose Sutras were explained by Shabar, Kumarila Bhatta, Prabhakar, etc. These Mimansa Principles 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. 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. The books on Mimansa are almost all in Sanskrit, but there is one good book called the Mimansa Rules of Interpretation by Prof. K.L. Sarkar published in the Tagore Law Lecture Series, which may be seen. It may be mentioned that the Mimansa Rules of Interpretation were created for resolving the practical difficlties in performing the Vedic yagyas. The rules for performing the various yagyas were given in books called Brahmanas e.g. Shatapath Brahman, Aitareya Brahman, Taitereya Brahman, etc. There were many ambiguities, companyflicts, incongruities, ellipses etc. in the Brahmana texts, and hence principles of interpretation had to be created for this purpose. Thus the Mimansa principles were originally created for religious purposes, but they were so rational and logical that subsequently they began to be used in law, grammar, logic, philosophy etc., that is, they became of universal application. Jaimini in Sutra 6 3 9 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 explain this it may be mentioned that the Brahmanas state that 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 Mimansa principle stated above permits that the Yupa can be made of Khadar 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 yagya, which is the main object. Hence, if it companyes in the way of the yagya being performed, it can be modified or substituted. In this companynection we may also refer to the Wooden Sword Maxim Sphadi Nyaya , which is a well known Maxim in the Mimansa system. This Maxim states what is prescribed as a means to an action, is to be taken in a sense suited to the performance of the action vide Jaimini 312, quoted in the book Mimansa Rules of Interpretation by K.L. Sarkar at p. 185 . The word Spha in Sanskrit means a sword, which is numbermally a metallic object for cutting. However, Spha in companynection with a Yagya has to be interpreted as a wooden sword, because in a Yagya a small wooden sword called Spha is used which is a pushing instrument as a Yagya requires numbercutting instrument, but only a pushing instrument . Thus, Sphadi Nyaya implies that we have to see the object of the text to companyrectly interpret it. In the Mimansa system, the literal rule of interpretation is called the Shruti or Abhida principle, and ordinarily it is this principle which is to be applied when interpreting a text. However, there are exceptional situations when we have to depart from the literal rule and then certain other principles have to be resorted to e.g. 1 the Linga also called Lakshana principle or the suggestive power of words or expressions, 2 the Vakya principle or syntactical arrngement, 3 the Prakarana principle, which permits companystruction by referring to other texts in order to make the meaning clear, 4 the Sthana position principle which means the relative position of one text with reference to another, 5 the Samakhya name principle which means the companynection between different passages by the indication accorded by the derivative words of a companypound name. In the present case we are of the opinion that the Linga Lakshana principle will apply. Linga really means interpretation by understanding the companytext, and it is a departure from the literal rule of interpretation. The Linga principle can be illustrated by the decision of this Court in P. Bhoodan Yagna Samiti vs. Brij Kishore AIR 1988 SC 2239 where the words landless person were held to mean landless peasant and number landless businessmen. Here we see that the Court has departed from the literal rule of interpretation, because by the literal rule even a very rich businessman who owns numberland will be regarded as a landless person. Since the object of the P. Bhoodan Act was to give some land to the landless peasants, the expression landless person was interpreted to mean landless peasant only. This interpretation was necessary otherwise the entire object of the U.P. Bhoodan Act would be frustrated and land donated for distribution to landless peasants companyld be grabbed by rich businessmen on the ground that they owned numberland, although they may have huge amount of wealth in the form of shares in their companypanies, securities, crores of rupees in banks etc We may also like to point out that there is a difference between Linga Lakshana principle and the Vakya principle. In the former numberviolence is done to the wording of the text, but the words or expressions are companystrued differently from the literal sense, and hence Linga is really companystruction by companytext. In Vakya, however, some violence is done to the text, e.g. by companynecting two separate sentences, or by adding words or expressions, or by transferring words or expressions up or down a sentence. This violence may sometimes become necessary to save the text from becoming meaningless or absurd, just as the surgeon may have to do violence to the body by operation to save the patients life. For this purpose the Uha principle is utilized The Uha principle or use of reason, is generally applied for companystruction of texts . In this companynection it may be mentioned that Maxwell also permits doing violence to the statute in exceptional situations. He says Where the language of a statute, in its ordinary meaning and grammatical companystruction leads to a manifest companytradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably number intended, a companystruction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, by altering their companylocation, by rejecting them altogether, or by interpolating other words, under the influence, numberdoubt, of an irresistible companyviction that the legislature companyld number possibly have intended what the words signify, and that the modifications thus made are mere companyrections of careless language and really give the true intention. Thus, in S.S. Kalra vs. Union of India 1991 2 SCC 87 this Court observed that sometimes companyrts can supply words which have been accidentally omitted. See also the rulings mentioned in G.P. Singhs book Principles of Statutory Interpretation 9th Edition, 2004 pages 70 to 77 . The principle of Linga is illustrated by Jaimini in numerous Sutras and Adhikarnas. Thus the Pranabhrit Adhikarana which is based on Jaiminis Sutra 28, Chapter IV, Book 1 shows how words acquired a wider meaning by the Linga or Lakshana process. In the Taittiriya Samhita 5.3.1.2 there is a passage He disposes the Pranabhrit - gkFRr minkfr Again in the same Samhita 5.7.2.5 there is a similar passage He disposes the Ajyani - ATku jsrk minkfr Now what is the meaning of Pranabhrit in the one case and of Ajyani in the other ? The words Pranabhrit and Ajyani are respectively the names of two Mantras or verses which begin with those words. These verses are used in companysecrating bricks required for a certain purpose in a yagya. From this fact the bricks companysecrated by the Pranabhrit Mantra acquired the name of Pranabhrit. Similarly the bricks companysecrated by the Ajyani Mantra acquired the name of Ajyani. But in companyrse of time the whole heap of bricks of a particular kind came to be called Pranabhrit, because one or two bricks of that heap were companysecrated as Pranabhrit bricks. Thus the instance of Pranabhrit becomes a maxim for extending the scope of a name in the above manner. In fact, the meaning of the words Pranabhrit and Ajyani in these cases is determined by the peculiar association of the words and by the companytext of the passages in which they are used. Such a use is called Lingasamabaya embodiment of the Linga . Nanda Pandit, in his work Dattaka Mimansa, refers to the Pranabhrit maxim to show that although the word substitute was at first applied in express term only to six descriptions of sons, later the word by general use became applicable to all the twelve descriptions. The Pranabhrit maxim gkFRr Uk states The peculiar feature of one leading object belonging to a class may give name to the whole class. Pranabhrit literally means filling with life or inspiring life but the expression forms the companymencement of a Mantra which is used in companysecrating certain bricks. Hence the word has companye to mean a kind of bricks gkFRnkfnSCnkukaa LrqRIZRoefdjFe . This is the way in which the word Ajyani also has companye to mean another class of bricks. The Pranabhrit maxim applies in the present case also because we have to fill life i.e. given an appropriate interpretation to the word subscriber in Rule 443 of the Indian Telegraph Rules. The Pranabhrit maxim is often used in the interpretation of a text by treating it as illustrative and number exhaustive. The illustrative rule of interpretation is a departure from the literal rule which numbermally has to be adopted while companystruing a text. However, sometimes departures from the literal rule are permissible, and one of such departures is the illustrative rule. To give an example, in Sanskrit there is an oft-quoted statement Kakebhyo Dadhi Rakshitam which means protect the curd from the crows. Now in this sentence the word crow is merely illustrative and number exhaustive. The statement does number mean that one should protect the curd only from crows but allow it to be eaten up by cats, dogs or to get damaged by dirt or filth etc. It really means that one should protect the curd from all dangers. Hence the word crow in the above statement is only illustrative and number exhaustive. We can take another example. In the U.S. Constitution, Article 1 Section 8 states that Congress the American Parliament can raise Armies and Navies. There is numbermention of an Air Force there, obviously because there were numberaircraft in 1791 when the U.S. Constitution was promulgated. The first aircraft was invented by the Wright brothers in 1903. However, todays reality is that a modern Army cannot fight without air companyer. Amendment to the U.S. Constitution is a very ardous and lengthy procedure because it requires two-third majority of both Houses of Congress and ratification by three-fourth of the States. By the time this is done, the enemy may invade and occupy the companyntry. Hence the words Armies and Navies have to be interpreted as illustrative and number exhaustive, and they really mean all armed forces necessary for the security of the companyntry which would include an Air Force, also . Thus Article 1 Section 8 of the U.S. Constitution has to be interpreted number by applying the Shruti rule literal rule , but by applying the Linga rule. The words Armies and Navies in Article 1 Section 8 are to be companystrued number literally but as suggestive. In other words, they are only illustrative, and they really mean all Armed Forces necessary for the security of the companyntry. We may also refer to Maxwells Interpretation of Statutes where it is stated But it is another elementary rule, that a thing which is within the letter of a statute is number within the statute unless it be also within the real intention of the Legislature, and the words, if sufficiently flexible, must be companystrued in the sense which, if less companyrect grammatically, is more in harmony within that intention. Language is rarely so free from ambiguity as to be incapable of being used in more than one sense and to adhere rigidly to its literal and primary meaning in all cases would be to miss its real meaning in many. If a literal meaning had been given to the laws which forbade a layman to lay hands on a priest, and punished all who drew blood in the street, the layman who wounded a priest with a weapon would number have fallen within the prohibition, and the surgeon who bled a person to save his life, would have been liable to punishment. On a literal companystruction of his promise, Mohammed II.s sawing the Venetian Governors body in two, was numberbreach of his engagement to spare his head number Tamerlanes burying alive a garrison, a violation of his pledge to shed numberblood. Maxwell also states The words of a statute are to be understood in the sense in which they best harmonize with the subject of the enactment and the object which the Legislature has in view. Their meaning is found number so much in a strictly grammatical or etymological propriety of language, number even in its popular use, as in the subject or in the occasion on which they are used and the object to be attained. emphasis supplied Thus, in both systems of interpretation, the Mimansa system as well as Maxwells system, it is emphasized that the intention of a statute has often to be seen to properly interpret it, and it is number that the Court can never depart from the literal rule of interpretation. It all depends on the companytext, the subject-matter, the purpose for which the provision was made, etc. As already stated above, while companystruing Rule 443 we have to give an interpretation which subserves the intention of the Rule which is that telephone bills should be promptly paid, otherwise the department will be short of the funds needed for financing the telephone services which are to be rendered to the companysumers. After all, the salary of the employees of the telephone department have to be paid, the telephone equipment has to be maintained, repaired and kept up-to-date. Sometimes new technology has to be introduced.
Mrs. Sujata V. Manohar, J. This is a writ petition under Article 32 of the Constitution of India filed some time in May 1993 by the original petitioner Daljit Singh Dalal in person. It is said that this petition is in public interest. The original petitioner died soon after the filing of the petition. The son of the original petitioner, Bajrang Singh hereinafter referred to as the petitioner , has argued the present petition as a party in person. Although the petitioner Bajrang Singh claims to be a lawyer, the petition does number set out either the facts or the companytention very clearly. Apparently, the disputed premises belonging to the original petitioner and his family members companysist of Premises Nos.2505, 2506 and 2670, Basti Punjabian, Subzi Mandi, Delhi. According to the petitioner, on 13th of May, 1993, portions of House No.2670 were demolished by the Municipal Corporation. According to the petitioner his father, that is to say the original petitioner , his daughter, daughter-in-law and her three small children were trapped on the second floor of the that house. Four storeys of that house were demolished on 13th May, 1993. The present petitioner filed a writ petition before the Delhi High Court on that day and obtained an order for the rescue of his family members who were trapped. These members were rescued on 14th of May, 1993. The original petitioner was in a companya and was taken to hospital. After some days he died. According to the petitioner, the demolition was a mala fide act on the part of the Municipal Corporation at the instigation of the fourth respondent who did number like the activities of the petitioner and his father in giving shelter to the widows of sikhs killed in the Delhi riots. The petitioner has claimed in the petition companypensation for the harassment caused to the rebuilding a Satnami Temple which, apparently, was establish in the demolished building. He has also asked for payment of full companypensation to himself. At the hearing, however, the petitioner said that he would number desire any companypensation and he wanted action to be taken against the respondents. There are several disputed questions of facts in this petition. The Station House Officer, Subzi Mandi Police Station, Delhi, who is respondent No.8, has filed a companynteraffidavit. The Municipal Corporation of Delhi has also filed its companynter-affidavit. In these affidavits, it is pointed out that there is numberpublic interest involved in this writ petition. When the premises in dispute were inspected by the officers of the Municipal Corporation of Delhi, it was found the petitioner and or his father had made substantial unauthorised and illegal companystructions on this property by encroaching upon the public road public land. The companystruction so made was obstruction the public land, that is to say, the road in front of the premises and companysisted of a ground floor, mezzanine, first and second floors. There were various proceedings taken out by the petitioner and or his father before various companyrts in Delhi in order to prevent demolition of these unauthorised companystructions. On or about 5.3.1993 the Additional District Judge, Delhi dismissed Misc. No.193 of 1992 entitled Daljit Singh versus M.C.D. by his order dated 5.3.1993. In the order he inter alia, observed that the appellant, the original petitioner before us , had made large scale unauthorised companystructions number only on the ground floor but on all the floors. He further said, M.C.D. has obligation to demolish all these unauthorised structures raised by the plaintiff in the grab of repair or by misuse of judicial process. The initial structure allowed to the appellant was only one garage of 15 x 10 and an area of 20 x 10 in front of this garage and staircase. All that exists apart from these premises is unauthorised and must be demolished. The review petition is hereby dismissed. Accordingly in discharge of its statutory obligations the Municipal Corporation of Delhi, with the assistance of police, removed one companyered enclosure companystructed on the public land after informing the occupants of that enclosure. On 13.5.1993, the Municipal Corporation removed the illegal mezzanine, first and second floors standing on public road in front of Property No.2670. The stair case of the premises was number demolished. The petitioner and his family members were duly informed about the action taken. Instead of companying out of the premises they went to the back portion which was number touched in any manner. The younger brother of the petitioner who was a lawyer was informed by the Municipal Corporation that in case he wanted to shift the family members the authorities would give full assistance. However, he did number agree to shifting the family members. The respondents have denied that the stair case was blocked in any manner. On the companytrary, they allege that the petitioner and or his family members did number allow the malba to be removed. In the companynter-affidavit of the Station House Officers, Subzi Mandi Police Station, Delhi it is further pointed out that the original petitioner, Daljit Singh Dalal, was an old patient of septicemia and he was undergoing treatment at St. Stephen Hospital. He was discharged only on 3rd of May, 1993 from the hospital but he was in an unconscious companydition. The subsequent death of the original petitioner is number companynected in any manner with the demolition. He has said that numberharm or harassment was caused by the officials or by the police to the petitioner or his family members. After the present petitioner obtained an order of the Delhi High Court on 13th of May, 1993 the police offered every help for the rescue of the original petitioner on 14.5.1993 but this help was refused by the present petitioner and his family members. Again on 15th of May, 1993 fire brigade and ambulance were arranged by the local police for the purpose of removing the original petitioner. But his close relatives refused to permit the removal of the original petitioner on the ground that their family doctor had given the necessary medicine and they did number want the original petitioner to be removed. Again on 16th of May, 1993 the Government doctor was arranged. It was after the original petitioner was checked by the Government doctor that he was brought down from the second floor and was sent to St. Stephens Hospital in an ambulance. The affidavits also mention various litigations which have been launched by the original petitioner in various companyrts in Delhi in order to prevent the demolition of illegal companystructions carried out by him. There are thus several disputed questions of fact. We also fail to see any public interest involved in this petition.
C. Gupta, J. This appeal arises out of a proceeding for ejectment under the Hyderabad Tenancy and Agricultural lands Act, 1950. The only question for companysideration is whether the proviso to Sub-section 1 of Section 28 of the Act as amended in 1960 would apply to this case. Section 28 1 of the Act reads Where a tenancy of any land held by a tenant is terminated for number payment of rent and the land holder files any proceeding to eject the tenant, the Tahsildar shall call upon the tenant to tender to the land holder the rent in arrears together with the companyt of proceeding within ninety days from the date of the order, and if the tenant companyplies with such order, the Tahsildar shall, in lieu of making an order of ejectment, pass an order directing that the tenancy has number been terminated and thereupon the tenant shall hold the land as if the tenancy had number been terminated. There was a proviso to this sub section as follows Provided that numberhing in this Section shall apply to any tenant whose tenancy is terminated for number payment of rent if he has failed for any three years to pay rent with in the period specified in Sub-clause i of Clause a Sub-section 2 of Section 19. This proviso was amended by Section 7 of the Hyderabad Tenancy and Agricultural Lands Amendment Act, 1960. The Amendment Act added the following words at the end of the existing proviso and the land-holder has given intimation to the tenant of the default within a period of six months of each default. The Amendment Act received the assent of the President on December 18, 1960 and was published in the Maharashtra Government Gazette, Extraordinary, on December 29, 1960. The appellant was the owner of agricultural land measuring about 18 acres 13 gts situated in a village in district Aurangabad. The predecessorin-interest of the respondents was a tenant of the said land. On January 3, 1961 the appellant issued a numberice under Section 19 2 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 terminating the tenancy on the ground of number payment of rent. The numberice of termination was served on the tenant on January 11, 1961. The appellant applied for possession October 30, 1961. The original tenant having died during the pendancy of the proceeding, his heirs and legal representatives were substituted in his place. The Naib Tahsildar allowed the application for possession. From his order the tenants took an appeal to the Deputy Collector, Land Reforms, Aurangabad which also failed. The tenants then preferred a revision before the Maharashtra Revenue Tribunal, Aurangabad. The Tribunal allowed the revision petition holding that the landlord number having intimation to the tenant of the default within a period of six months of each default as required by the amended Section 28 of the Act, companyld company succeed. The appellants before us question the propriety of the order passed by the Revenue Tribunal. The only point urged on behalf of the appellant is that the amended Section 28 requiring the landholder, holder to give numberice to the tenant within a period of six months of each default was number applicable to the case because the tenant having defaulted in payment of rent for three years before the amended proviso to Section 28 1 came into force on December 29, 1960. The landlord had acquired a right to institute a proceeding for the eviction of the tenants that companyld number be taken away by the amendment which was number given a retrospective operation either by express words or by necessary implication. We are unable to agree. It has been held ever since Abbet v. Minister of Land 1895 AC 425 that a mere right to take advantage of the provisions of an Act is number an accrued right. Abbots case supra was followed by this Court in a number of cases Sakharam v. Manikchand Mothichand Shah and Anr. Hungerford Investment Trust Limited v. Haridas Mundhra and Ors. Lalji Raja Sons v. Hansraj Nathuram .
CIVIL APPELLATE JURISDICTION Civil Appeal No. 4 of 1977. From the Judgment and Order dated 3/4.3.1975 of the Calcutta High Court in Appeal No. 156 of 1974. L. Sanghi, Dhruv Mehta, Aman Vachhar and S.K. Mehta for the Appellants. Tapas Ray and G.S. Chatterjee for the Respondents. Harish N. Salve, Lalit Bhasin, Ms. Nina Gupta, Vibhu Bhakru, Pranab Mullick and Vineet Kumar for the intervener. The Judgment of the Court was delivered by N. SAIKIA, J. This appeal by certificate is from the Judgment of the Calcutta High Court dated 4.3.1975 passed in appeal No. 156 of 1974. The appellants in partnership have been carrying on business of restaurants under the name and style of Trincas at No. 17B, Park Street Calcutta, providing food and drinks alcohol and number-alcohol to the customers under valid licences. Sometimes musical performences are also arranged. The restaurants are provided with air companyditioning plant. Under the West Bengal Entertainments and Luxuries Hotels and Restaurants Tax Act, 1972 as amended by the Act of 1974, hereinafter referred to as the Act, the respondents by their Memo No. 4942/A.T. dated 9.12.1972 called upon the appellants to make ad hoc payment of luxury tax calculated at Rs.2,40,000.00. The President of the Hotelers Association made a representation against this illegal tax which was turned down by the respondents, and thereafter the appellants challenged the validity of this action in the Calcutta High Court by filing Writ Petition No. 358 of 1973 on 16.5.1973. The appelants companytended, inter alia before the High Court that the levy was unreasonable restriction on carrying the business that the levy was unreasonable restriction on carrying the business the Act was number meaningful and purposeful the rules were companyfiscatory in nature and the mode of the Act. The learned Single Judge of the High Court dismissed the writ petition relying on the Judgment passed on 6.3.1974 in Writ Petition No. 338 of 1973 wherefrom Civil Appeal No. 406 of 1976 was filed in this Court. From the above order of the learned Single Judge, the appellants filed Appeal No. 156 of 1974 on 26.6.1974 before the Division Bench of the Calcutta High Court companytending that the legislature cannot enlarge the scope of Entry 62 and seek to impose a tax on expenditure incurred by a customer on services rendered to him including food and drinks. The High Court held that s. 2 b defined entertainment tax but s. 2 c defined entertainment tax and under the Act entertainment tax meant tax payable under s. 3 of the Act. A clear distinction had been made between entertainment and entertainment tax and in this case the High Court was companycerned only with entertainment tax as defined in s. 2 C . The second submission before the High Court was whether the State legislature had the companypetence to impose entertainment tax payable under s. 3 of the Act and the High Court held that s. 3 was a valid piece of legislation. The argument of the appellants was that tax imposed by s. 3 was discriminatory and it violated Art. 14 of the Constitution. The High Court held that the differentia made in s. 3 had a rational relation to the object sought to be achieved by the statute. The last submission was whether the persons enjoying the same facilities had been treated differently as the section had imposed a maximum tax of 15 on amount paid or payable by the customer. The High Court held that since a distinction had to be maintained between s. 2 b and s. 2 c , the learned companynsels argument on discrimination companyld number be acceded to. The appeal was accordingly dismissed, but certificate of fitness to appeal was granted. The companytentions raised in this appeal are the same as were raised in Civil Appeal No. 406 of 1976 whcih has just been dismissed. In East India Hotels Ltd. v. State of West Bengal, AIR 1990 SC 2029 this Court held that whatever has been said by this Court in relation to s. 4 of the Act will be equally applicable to s. 3 of the Act. Consequently, for the above reason and for the reasons stated in our Judgment in Civil Appeal No.
P. Jeevan Reddy, J. These two appeals one by the Assessee Civil Appeal No. 2231 of 1977 and the other by the Revenue Civil Appeal No. 2143 NT of 1977 arc preferred against the judgment of the Gujarat High Court in Income Tax Reference No. 4/73. The matter arises under the Companies Profits Surtax Act, 1964. It relates to companyputation of the capital is of the assessee-company. The assessment year is 1964-65. Four questions were referred by the Income-tax Appellate Tribunal, Ahmedabad under Section 256 1 of the Act, two at the instance of the assessee and two at the instance of the revenue. The questions referred at the instance of the assessee are Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that there was a mistake apparent from the record in its order dated 1.7.1971 and in passing its miscellaneous order dated 15.2.1972? If the answer to the Question No. 1 is in positive, whether on the facts and in the circumstances of the case, the Tribunal was justified in directing that the following amount should be excluded in companyputing the capital of the companypany under the provisions of Rule 1 of the Second Schedule of the Companies Profits Sur-tax Act, 1964- Amount set apart for companytingent liability. Rs. 4,50,000 ii Amount set apart for proposed dividend. Rs. 15,82,000 iii Provision for profit snaring bonus. Rs. 6,99,913 iv Provision for pension Scheme. Rs. 50,000 The two questions referred at the instance of the Revenue which may be numbered as 3 and 4, are If the answer to question No. 1 is in the negative then whether on the facts and in the circumstances of the case the Tribunal was right in holding that the above items indicated in question No. 2 should be included in the companyputation of the assessees capital for the purpose of Companies Profits Sur-tax Act, 1964? Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the amount of Rs. 9,97,410/- being credit to depreciation fund in excess of the amount actually allowed in income-tax assessment was a reserve in depreciation which should be included in the companyputation of the assessees capital for the purposes of Companies Profits Sur-tax Act, 1964? The assessee is a Private Limited Company known as Karamchand Premchand Private Limited. Ahmedabad which was subsequently renamed as Shahibaug Enterpreneures Private Limited, Ahmedabad. For, the assessment year 1964-65, the assessee filed a return under the Act for the period ending 31.3.1964 disclosing its chargeable profits at Rs. 67,001/-. The Income-tax Officer did number agree with the several claims made in the return. He determined the chargeable profits at Rs. 4,72,534/- and the net tax payable at Rs. 1,86,338.44p. An appeal preferred by the assessee was dismissed by the Appellate Assistant Commissioner of Super-Profit-Tax A-Range, Ahmedabad. The assessee then carried the matter to Income-tax Appellate Tribunal. By its order dated 1st July, 1971 the Tribunal allowed the appeal allowing several claims of the assesse. Soon thereafter, the revenue filed an application bringing to the numberice of the Tribunal the Explanation appended to Rule in the Second Schedule to the Act. The Tribunal allowed the application on 15.2.1972. It held that several items which were treated by it as reserves in its order dated 1st July, 1971 companyld hot have been treated as such and that 5 they ought to have been treated as provisions. It is against the said order that the assessee as well the revenue both applied for referring certain questions of law for the opinion of the High Court. The Companies Profits Sur-tax Act, 1964 was enacted by Parliament with a view to impose a special tax on the profits of certain companypanies. Section 4 companytains the charging w provision. It says Charge of tax - Subject to the provisions companytained in this Act, there shall be charged on every companypany for every assessment year companymencing on arid from the 1st day of April, 1964, a tax in this Act referred to as the surtax in respect of so much of its chargeable profits of the previous year or previous years, as the case may be, as exceed the statutory is deduction, at the rate or rates specified in the Third Schedule. The expression chargeable profits is defined in Clause 5 of the section 2. According to it, chargeable profits means the total income of an assessee companyputed under the Income Tax Act, 1961 for any previous year or years as the case may be and adjusted in accordance with the provisions of the First Schedule. The expression statutory deduction is defined in Clause-8 of Section 2. Omitting the provision which are number necessary for our purpose the definition reads as follows statutory deduction means an amount equal to ten per cent of the capital of the companypany as companyputed in accordance with the provisions of the Second Schedule, or an amount of two hundred thousand rupees, whichever is greater. The Second Schedule companytains the Rules for companyputing the capital of a companypany for the purposes of the Act. It would be appropriate to read the entire Rule-1 including the explanation at this stage. Subject to the other provisions companytained in this Schedule the capital of a companypany shall be the aggregate of the amounts, as on the first day of the previous year relevant to the assessment year, ofits paid-up share capital its reserves, if any, created under the proviso b to Clause vi-b of Sub-section 2 of Section 10 of the Indian Income-tax Act, 1961 XLIII of 1961 its other reserves as reduced by the amounts credited to such reserves as have been allowed as a deduction in companyputing the income of the companypany for the purposes of the Indian Income-tax Act, 1922 XI of 1922 , or the Income-tax Act, XLIII of 1961 the debentures, if any, issued by it to the public Provided that according to the terms and companyditions of issue of such debentures, they are number redeemable before the expiry of a period of seven years from the date of issue thereof and any moneys borrowed by it from Government or the Industrial Finance Corporation of India or the Industrial Credit and Investment Corporation of India or any other financial institution which the Central Government may numberify in this behalf in the Official Gazette or any banking institution number being a financial institution numberified as aforsaid or any person in a companyntry outside India Provided that such moneys are borrowed for the creation of a capital asset in India and the agreement under which such moneys are borrowed provides for the repayment there of during a period of number less than seven years. Explanation.-For the removal of doubts it is hereby declared that any amount standing to the credit of any account in the books of a companypany as on the first day of the previous year relevant to the assessment year which is of the nature of item 5 or item 6 or item 7 under the heading RESERVES AND SURPLUS or of any item under the heading CURRENT LIABILITIES AND PROVISIONS in the companyumn relating to Liabilities in the Form of Balance Sheet given in Part I of Schedule VI to the Companies Act, 1956 I of 1956 , shall number be regarded as reserve for the purposes of companyputation of the capital of a companypany under the provisions of this Schedule. A reading of Rule-I shows that subject to the other provisions companytained in the said Schedule, the capital of a companypany shall be the aggregate of the several amounts mentioned in the Rule as on the 1st day of the previous year relevant to the assessment year. The item which have to be so aggregated include the paid-up share capital, reserve mentioned in Clauses ii and iii debentures mentioned in Clause iv and the borrowed amounts mentioned in Clause v . The Explanation appended to the Rule is clarificatory in nature. It refers to the form of balance-sheet given in part one of Schedule VI the Companies Act, 1956 and says that any is amount standing to the credit of any account in the books of a companypany as on the first day of the previous year relevant to the assessment year which is of the nature of item-5 or item-6 or item-7 under the heading RESERVES AND SURPLUS or of any item under the heading CURRENT LIABILITIES AND PROVISIONS in the companyumn relating to liabilities shall number be regarded as reserves for the purposes of the Act. The distinction between the reserves and provision has been dealt with exhaustively by this Court in Vazir Sultan Tobacco Company Limited etc. etc. V. Commissioner of Income-Tax, A.P. etc. etc. ., It indeed follows the principles enunciated in the earlier decisions of this Court in Metal Box Company of India Ltd. V. Their Workmen and CIT V. Century Spinning and Manufacturing Company Limited . Applying the principles flowing from the said decision, that the questions arising herein have to be answered. So far as the first question is companycerned, the fact that the Tribunal rendered its decision without taking numbere of the aforesaid explanation to Rule 1 in Schedule II was undoubtedly a ground for rectification. The Tribunals power to rectify its orders under the Act flows from Section 13 of the Act. Mistake apparent from the record is made a ground for rectifying the order. The first question was, thus, rightly answered in favour of the Revenue and against the Assessee. The second question companytains four items and the question is whether they are merely provisions or reserves. For a proper appreciation of the first item of Rs. 4,50,000/-, being the amount set apart for companytingent liabilities, it is necessary to state a few facts. On 18.8.1956, the Assessee had applied to the Commissioner of Income Tax requesting him number to invoke the provisions of Section 23 A of the Indian Income Tax Act, 1922 against it. Pending the said application it had set apart a sum of Rs. 6,52,000/- for meeting the liability in the accounting year ending on 31.3.1956. During the financial year 1958-59, a sum of Rs. 2,02,000/- was transferred from this amount to the general reserves through profit and loss account, with the result that a sum of Rs. 4,50,000/- companytinued to be shown in the balance-sheet as provision for taxation as on 1st April, 1963. By his order dated 15.4.1957, the Commissioner rejected the assessees application dated 18.8.1956 against which the assessee filed an appeal before the Board of Referees. This appeal too was rejected against which the assessee moved the High Court of East Punjab by an application dated 21.6.1958. It too was rejected on 18.1.1962 against which a Letters Patent Appeal was preferred. Meanwhile, the Income Tax Officer passed an order under Section 23A of 23.7.1963 levying additional tax. Subsequently, however, the Letters Patent appeal preferred by the assessee was allowed on 24.5.1965 with the result that the order of the Income Tax Officer stood vacated but that is a subsequent circumstance which we cannot take numbere of in proceedings for the year relating to assessment year 1964-65 . From the above statement of facts, it is clear that the amount of Rs. 4,50,000/- was a provision made to meet a tax liability existing on the relevant late. By numberstretch of imagination can it be treated as a reserve. Similarly, the second item, an amount of Rs. 15,82,000/- set apart for proposeds dividend cannot also be treated as a reserve but as a provision for meeting a current liability. The same must be said about the third item of Rs. 6,99,913/-, the amount set apart for profit sharing bonus. With respect to the last item of Rs. 50,000/- which was a provision for pension scheme, there can equally be numberdispute that it is a provision. In view of our answers to questions 1 and 2, the third question need number be answered. Coming to the fourth question which has been referred at the instance of the Revenue, it may be numbericed that the amount of Rs. 9,97,410/- credited to the Depreciation Fund was the excess amount over the amount actually allowed as depreciation in the assessments made under the Income Tax Act.
ARIJIT PASAYAT, J. Leave granted. The true scope and ambit of Section 51 of the Delhi Police Act, 1978 in short the Act falls for determination. Notice dated 20.5.2002, was issued by Deputy Commissioner of Police, South-West District, New Delhi, under Section 50 of the Act requiring the numbericee to show cause as to why action in terms of Section 47 of the Act should number be taken against him. In the numberice it was numbered that since March 1997 he was engaged in several illegal acts in his activities and movement in the area of P.S. Dwarka, were causing alarm to the residents. List of 7 cases under various penal statutes on the basis of the records of the companycerned police station was given. It was indicated that the witnesses including camera witnesses were number willing to give evidence in public against him because of the fear of danger to their person and properties. There was numberwritten reply to the numberice, but the numbericee appeared and examined a witness to show that he was innocent. After the grant of further opportunities appellant number5- Additional Deputy Commissioner of Police passed an order under Section 47 of the Act directing that the respondent should remove himself beyond the limits of NCT of Delhi for a period of one year w.e.f. 25.12.2002. He was permitted to attend the companyrts at Delhi on all the dates of hearing and thereafter immediately remove himself out of the limits of NCT of Delhi, but number to visit any place except companyrts premises. The relaxation was only for the date of hearing for the cases before the Courts. The companytents of the order were explained to him and a companyy was also delivered to him. The order was challenged before the Lieutenant Governor of Delhi who rejected the appeal under Section 51 of the Act. A writ petition was filed before the Delhi High Court. By the impugned judgment a learned Single Judge quashed the order observing that prerequisites for passing an order under Section 47 of the Act were number available. For companying to such companyclusion reliance was placed on a Division Bench Judgment of the Delhi High Court in Bhim Singh v. Lt. Governor of Delhi and Anr., 2002 2 JCC 1132. Learned Single Judge was of further view that in Bhim Singhs case supra it was numbered by the Division Bench that authority passing the order under Section 47 of the Act has to clearly indicate as to why one of the three options available was number being adopted. In the instant case, learned Single Judge held that there was numberclear material or elaborate reasoning indicated to show that alternative options were examined and only one of them was adopted. Said order of the learned Single Judge is the subject-matter of challenge. It was numbered at the time of issuance of numberice that though the externment order had worked out itself on account of afflux of time because of certain apparent divergence in views expressed by several Benches of the High Court, the matter needs to be examined. In spite of numberice numberone appeared on behalf of the respondent. In support of the appeal Ms. Mukta Gupta, Advocate, submitted that both learned Single Judge and the Division Bench in Bhim Singhs case supra lost sight of Section 52 of the Act. The said provision provides the limited grounds on which the order under Section 47 can be questioned before any companyrt. It was also submitted that a detailed order is number necessary to be passed while exercising powers under the Act to direct externment. Strong reliance was placed on decisions of this Court in Pandharinath Shridhar Rangnekar v. Dy. Commissioner of Police, The State of Maharashtra, 1973 1 SCC 372 and Gazi Sududdin v. State of Maharashtra and Anr., 2003 7 SCC 330 to buttress the plea. It was also pointed out that a clearly divergent view was taken by another Division Bench of the Delhi High Court in Dheeraj v. State, NCT of Delhi 2001 V AD Delhi 672 , which was number numbered in Bhim Singhs case supra . In the said case a Division Bench of the High Court held that the question of period of exterment cannot be questioned in a writ petition. In order to appreciate the submissions it would be necessary to quote Sections 47, 51 and 52 of the Act. They read as follows- Removal of persons to companymit offences - Whenever it appears to the Commissioner of Police - a that the movement or acts of any person are causing or are calculated to cause alarm, danger or harm to person or property or b 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 Chapter XII, Chapter XVI, Chapter XVII or Chapter XXII of the Indian Penal Code or under Section 290 or Section 498A to 489E both inclusive of that Code or in the abatement of any such offence or c that such person - is so desperate and dangerous as to render his being at large in Delhi or in any part thereof hazardous to the companymunity or has been found habitually intimidating other persons by acts of violence or by show force or habitually companymits affray or breach of peace or riot, or habitually makes forcible companylection of subscription or threatens people for illegal pecuniary gain for himself or for others or has been habitually passing indecent remarks on women an girls, or teasing them by overtures and that in the opinion of the Commissioner of Police 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 order in writing duly served on such person, or by beat of drum or otherwise as he thinks fit, direct such person to so companyduct himself as shall seem necessary in order to prevent violence and alarm or to remove himself outside Delhi or any part thereof by such route and within such time as the Commissioner of Police may specify and number to enter or return to Delhi or part thereof, as the case may be, from which he was directed to remove himself. Explanation - A person who during a period within one year immediately preceding the companymencement of an action under this section has been found on number less than three occasions to have companymitted or to have been involved in any of the acts referred to in this section shall be deemed to have habitually companymitted the act. Section 51 Appeal against orders under sections 46, 47 or 48 - 1 Any person aggrieved by an order made under Section 46, Section 47 or Section 48 may appeal to the Administrator within thirty days from the date of the service of such order on him. An appeal under this section shall be preferred in duplicate in the form of a memorandum, setting forth companycisely the grounds of objection to the order appealed against, and shall be accompanied by that order or a certified companyy thereof. On receipt of such appeal, the Administrator may, after giving a reasonable opportunity to the appellant to be heard either personally or by a companynsel and after such further inquiry, if any, as he may deem necessary, companyfirm vary or set aside the order appealed against Provided that the order appealed against shall remain in force pending the disposal of the appeal, unless the Administrator otherwise directs. The Administrator shall make every endeavour to dispose of an appeal under this section within a period of three months from the date of receipt of such appeal. In calculating the period of thirty days provided for an appeal under this section, the time taken for obtaining a certified companyy of the order appealed against, shall be excluded. Section 52 Finality of order in certain cases- An order passed by the Commissioner of Police under Section 46, Section 47 or Section 48 or the Administrator under Section 51 shall number be called in question in any companyrt except on the ground - a that the Commissioner of Police or the Administrator, as the case may be, had number followed the procedure laid down in sub-section 1 , subsection 2 or sub-section 4 of Section 50 or in Section 51, as the case may be or b that there was numbermaterial before the Commissioner of Police or the Administrator, as the case may be, upon which he companyld have based his order or c in the case of any order made under Section 47 or an order in appeal therefrom to the Administrator under Section 51, the Commissioner of Police or the Administrator, as the case may be, was number of the opinion that witnesses were unwilling to companye forward to give evidence in public against the person whom such order has been made. Section 47 companysists of two parts. First part relates to the satisfaction of the Commissioner of Police or any authorized officer reaching a companyclusion that movement or act of any person are causing alarm and danger to person or property or that there are reasonable grounds for believing that such person is engaged or is about to be engaged in companymission of enumerated offences or in the abetment of any such offence or is so desperate and dangerous as to render his being at large hazardous to the companymunity. Opinion of the companycerned officer has to be formed that witnesses are number willing to companye forward in public to give evidence against such person by reason of apprehension on their part as regards safety of person or property. After these opinions are formed on the basis of materials forming foundation therefor the Commissioner can pass an order adopting any of the available options as provided in the provision itself. The three options are 1 to direct such person to so companyduct himself as deemed necessary in order to prevent violence and alarm or 2 to direct him to remove himself outside any part of Delhi or 3 to remove himself outside whole of Delhi. Ms. Mukta Gupta, learned companynsel, submitted that by the impugned order passed by the Additional Deputy Commissioner of Police South-West District, New Delhi, number only enumerated the various acts with reference to materials but also came to hold that immediate action in terms of Section 47 was necessary and all relevant details were given. The grounds on which the satisfaction was arrived at so far as first part of Section 47 are also relevant for the purpose of adopting any of the three options. The fact that one of the options was adopted after analyzing factual scenario clearly indicates that the other two options were number companysidered sufficient enough to deal with the particular situation in the case at hand. In Pandarinaths case supra this Court was companysidering the scope and ambit of Section 56 of the Bombay Police Act, 1951 in short the Bombay Act . It was held that externee was entitled to know the material allegations and their general nature. In the said case five points were raised in support of the appeal by the externee. They are as follows The allegation that witnesses were number willing to companye forward to depose against the appellant in public is falsified by the very record of the present proceedings. The particulars companytained in the numberice issued under Section 59 of the Act, are so vague that the appellant companyld number possibly meet the allegations made against him and thus he was denied reasonable opportunity to defend himself. The externing authority must pass a reasoned order or else the right of appeal would become illusory. The State Government also ought to have given reasons in support of the order dismissing the appeal. Its failure to state reasons shows numberapplication of mind and The order of externment imposes unreasonable restrictions on the personal liberty of the appellant in that, whereas his activities are alleged to be restricted to an area within the jurisdiction of the Vila Parle Police Station, the order of externment number only extends to the whole District of Greater Bombay but to the District of Thana also. In para 14 of the judgment this Court dealt with third and fourth point and held as follows The third and fourth points have the same answer as the second point just dealt with by us. Precisely for the reasons for which the proposed externee is only entitled to be informed of the general nature of the material allegations, neither the externing authority number the State Government in appeal can be asked to write a reasoned order in the nature of a judgment. If those authorities were to discuss the evidence in the case, it would be easy to fix the identity of witnesses who are unwilling to dispose in public against the proposed externee externess. A reasoned order companytaining a discussion of the evidence led against the externee would probably spark off another round of tyranny and harassment. As regards the period, it was held that it is primarily for the externing authority to decide how best the order can be made effective, so as to subserve its real purpose. How long within the statutory limit of two years fixed by Section 58, the order shall operate and to what territories, within the statutory limitations of Section 58 it should extend are matters which must depend upon his decision on the nature of the data which the authority is able to companylect in the externment proceedings. No general formulation can be made that order of externment must always be restricted to the area to which the illegal activities of the externee. There can be doubt that the executive order has also to show when questioned that there was application of mind. It is the existence of material and number the sufficiency of material which can be questioned as the satisfaction is primarily subjective somewhat similar to one required to be arrived at by the detaining authority under the preventive detention laws. The scope of judicial review of administrative orders is rather limited. The companysideration is limited to the legality of decision-making process and number legality of the order per se. Mere possibility of another view cannot be ground for interference. One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to broad area of Governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary See State of U.P. and Ors. Renusagar Power Co. and Ors. , AIR 1988 SC 1737. At one time, the traditional view in England was that the executive was number answerable where its action was attributable to the exercise of prerogative power. Professor De Smith in his classical work Judicial Review of Administrative Action 4th Edition at pages 285-287 states the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarized as follows. The authority in which discretion is vested can be companypelled to exercise that discretion, but number to exercise it in any particular manner. In general, discretion must be exercised only by the authority to which it is companymitted. That authority must genuinely address itself to the matter before it it must number act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must number do what it has been forbidden to do, number must it do what it has number been authorized to do. It must act in good faith, must have regard to all relevant companysiderations and must number be influenced by irrelevant companysiderations, must number seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must number act arbitrarily or capriciously. These several principles can companyveniently be grouped in two main categories i failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are number, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant companysiderations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires. The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those classes of cases which relate to deployment of troupes, entering into international treaties, etc. The distinctive features of some of these recent cases signify the willingness of the Courts to assert their power to scrutinize the factual basis upon which discretionary powers have been exercised. One can companyveniently classify under three heads the grounds on which administrative action is subject to companytrol by judicial review. The first ground is illegality the second irrationality, and the third procedural impropriety. These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service, 1984 3 All. ER. 935, companymonly known as CCSU Case . If the power has been exercised on a number-consideration or number-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power whether legislative or administrative is exercised on the basis of facts which do number exist and which are patently erroneous, such exercise of power will stand vitiated. See Commissioner of Income-tax v. Mahindra and Mahindra Ltd., AIR 1984 SC 1182. The effect of several decisions on the question of jurisdiction has been summed up by Grahame Aldous and John Alder in their book Applications for Judicial Review, Law and Practice thus There is a general presumption against ousting the jurisdiction of the Courts, so that statutory provisions which purport to exclude judicial review are companystrued restrictively. There are, however, certain areas of governmental activity, national security being the paradig, which the Courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the governments claim is bona fide. In this kind of number-justiciable area judicial review is number entirely excluded, but very limited. It has also been said that powers companyferred by the Royal Prerogative are inherently unreviewable but since the speeches of the House of Lords in companyncil of Civil Service Unions v. Minister for the Civil Service this is doubtful. Lords Diplock, Scaman and Roskili appeared to agree that there is numbergeneral distinction between powers, based upon whether their source is statutory or prerogative but that judicial review can be limited by the subject matter of a particular power, in that case national security. May prerogative powers are in fact companycerned with sensitive, number-justiciable areas, for example, foreign affairs, but some are reviewable in principle, including the prerogatives relating to the civil service where national security is number involved. Another number-justiciable power is the Attorney Generals prerogative to decide whether to institute legal proceedings on behalf of the public interest. Also see Padfield v. Minister of Agriculture, Fisheries and Food, LR 1968 AC 997 . The Court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would number be sufficient. The famous case companymonly known as The Wednesburys case is treated as the landmark so far as laying down various basic principles relating to judicial review of administrative or statutory direction. Before summarizing the substance of the principles laid down therein we shall refer to the passage from the judgment of Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., KB at p. 229 All ER p. 682 . It reads as follows It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word unreasonable in a rather companyprehensive sense. It has frequently been used and is frequently used as a general description of the things that must number be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to companysider. He must exclude from his companysideration matters which are irrelevant to what he has to companysider. If he does number obey those rules, he may truly be said, and often is said, to be acting unreasonably. Similarly, there may be something so absurd that numbersensible person companyld even dream that it lay within the powers the authorityIn another, it is taking into companysideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith and in fact, all these things run into one another. Lord Greene also observed KB p.230 All ER p.683 it must be proved to be unreasonable in the sense that the companyrt companysiders it to be a decision that numberreasonable body can companye to. It is number what the companyrt companysiders unreasonable. The effect of the legislation is number to set up the companyrt as an arbiter of the companyrectness of one view over another. emphasis supplied Therefore, to arrive at a decision on reasonableness the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four companyners of the law, and number one which numbersensible person companyld have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision companyld be one of many choices open to the authority but it was for that authority to decide upon the choice and number for the Court to substitute its view. The principles of judicial review of administrative action were further summarized in 1985 by Lord Diplock in CCSU case as illegality, procedural impropriety and irrationality. He said more grounds companyld in future become available, including the doctrine of proportionality which was a principle followed by certain other members of the European Economic Community. Lord Diplock observed in that case as follows Judicial review has I think, developed to a stage today when, without reiterating any analysis of the steps by which the development has companye about, one can companyveniently classify under three heads the grounds on which administrative action is subject to companytrol by judicial review. The first ground I would call illegality, the second irrationality and the third procedural impropriety. That is number to say that further development on a case-by-case basis may number in companyrse of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of proportionality which is recognized in the administrative law of several of our fellow members of the European Economic Community. Lord Diplock explained irrationality as follows By irrationality I mean what can by number be succinctly referred to as Wednesbury unreasonableness. It applies to a decision which is to outrageous in its defiance of logic or of accepted moral standards that numbersensible person who had applied his mind to the question to be decided companyld have arrived at it. In other words, to characterize a decision of the administrator as irrational the Court has to hold, on material, that it is a decision so outrageous as to be in total defiance of logic or moral standards. Adoption of proportionality into administrative law was left for the future. These principles have been numbered in aforesaid terms in Union of India and Anr. v. G. Ganayutham, 1997 7 SCC 463. In essence, the test is to see whether there is any infirmity in the decision making process and number in the decision itself. See Indian Railway Construction Co. Ltd. v. Ajay Kumar, 2003 4 SCC 579. Though Section 52 limits the scope of companysideration by the Courts, the scope for judicial review in writ jurisdiction is number restricted, subject of companyrse to the parameters indicated supra. It is true that some material must exist but what is required is number an elaborate decision akin to a judgment. On the companytrary the order directing externment should show existence of some material warranting an order of externment. While dealing with question mere repetition of the provision would number be sufficient. Reference to be made to some material on record and if that is done the requirements of law are met. As numbered above, it is number the sufficiency of material but the existence of material which is sine qua number. As observed in Gazi Saduddins case supra satisfaction of the authority can be interfered with if the satisfaction recorded is demonstratively perverse based on numberevidence, misreading of evidence or which a reasonable man companyld number form or that the person companycerned was number given due opportunity resulting in prejudice. To that extent, objectivity is inbuilt in the subjective satisfaction of the authority. The material justifying externment can also throw light on options to be exercised. If referring to the materials, the authority directing externment also indicates the option he thinks to be proper and appropriate it can number be said to be vitiated even though there is numberspecific reference to the other options. It is a matter of legitimate inference that when companysidering materials to adjudicate on the question of desirability for externment, options are also companysidered and one of the three options can be adopted. There can number be any hair splitting in such matters. A little play in the points is certainly permissible while dealing with such matters. In the case as numbered above, all the relevant aspects were companysidered and High Court was number justified in holding to the companytrary.
Jagannatha Shetty, J. In this writ petition under Article 32 of the Constitution, the detention of Swaran Singh, the petitioner under Section 8 of the Jammu and Kashmir Public Safety Act, 1978 the Act has been challenged. The order of detention dated January 7, 1988 was made by the District Magistrate, Jammu. The grounds of detention are as under You started indulging in the terrorist activities right from your childhood. At the stage of 16 years, you companymitted a double murder in the year 1978 in which you were companyvicted for life imprisonment by the Session Court, Kathua. You were later on acquitted by the honble High Court of J K State in the year 1979. After your acquittal you went to Nepal and learnt driving and came back in the year 1984. During the companyrse of time you developed intimacy with one Mohinder Singh alias Pappi a hardcore extremist terrorist, who had earlier been involved in a murderous assault and was arrested by ASI Ishar Dutt Sharma Now SI the then I C Police Post Miran Sahib as a result of which Mohinder Singh alias Pappi was much humiliated and pledged to take revenge. Accordingly, you along with Mohinder Singh and Pappi Ranjit Singh and Gurdev Singh attacked and caused serious injuries to Ishar Dutt, SI on 24.11.1985 who has become permanently crippled for the whole of his life. You are still facing the said attempt to murder case. During the month of December, 1985, you had gone to Delhi with your truck where you met with your associated Mohinder Singh alias Pappi who introduced you to one Balbir Singh S o Bhan Singh R o Kurukshetra, Haryana, a hardcore extremist terrorist and an active member of AISSF. Thereafter, you along-with Mohinder Singh and Balbir Singh hatched a companyspiracy to loot a bank in order to procure money and to manage their bail in the attempt to murder case registered against you and others. As a result of the companyspiracy hatched, you alongwith Balbir Singh made an unsuccessful attempt to loot the cash from the Cashier of Co-operative Bank, R.S. Pura on 27.11.1986 in which you alongwith Balbir Singh were apprehended by the local people and handed over to police. You were released from Judicial custody on 16.12.1987. 3 Ground No. 4 deals in detail other similar activities of the petitioner. There then, the order reads Your above narrated activities are quite prejudicial and detrimental to the security of the State. You have links with hardcore extremists like Balbir Singh S o Bhan Singh, Mohinder Singh alias Pappi etc. You have also been introduced to numberorious Pak Smugglers Agents through whom you procure arms and ammunition which was to be used in terrorist disruptive activities. Your remaining at large was a companystant security threat for the State. As such it was felt necessary to detain you under PSA of 1978 for the security of the State, for a period of 24 months so as to prevent you from companytinuing the nefarious activities Sd - Ghanshyam IAS, District Magistrate, Jammu 4 Counsel for the petitioner first companytended that the activities attributed to the detenu are companycerned with two districts Jammu and Kathua The order of detention issued by the District Magistrate, Jammu is therefore, illegal since it ought to have been issued by the Divisional Commissioner of the Division or by the State Government Our attention was drawn to Section 8 2 of the Act But we do number find any sustenance therefrom to the companytention urged Section 8 2 does number state that in inter-district, activities the Divisional Commissioner alone is companypetent to pass an order of detention. Power to detain has been companyferred on the Divisional Commissioner as we las the District Magistrate. There is, therefore, numbersubstance in the first companytention. It was nest urged that the petitioner was released o bail on December 16, 1987 and was earlier discharged from the offence under the terrorist Act which the detaining authority has ailed to take into companysideration. We do number think that there is any merit in this granted to the detain on December 16, 1987. Ground No. 3 special facility refers to this event. Apart from that, the order of detention is number rested only on alleged offence in respect of which in respect of which the bail was granted to the petitioner. There are other more serious allegations set out in the grounds of detention. It was next urged that the petitioner was arrested on the date of the detention order itself but he was lodged in the central Jail after a month where the memorandum of grounds of detention was served. We have carefully examined the materiel on record in regard to this companytention. We do number find anything to discredit the allegations in the affidavits of the companycerned persons. The order of detention was passed on January 7, 1988. The petitioner was number arrested on that day. He was arrested on February 15, 1988 by J.K. Anand, Inspector CID, Jammu. He has filed an affidavit stating that he arrested the petitioner on February 15, 1988. It is companyroborated by the affidavit of Assistant Superintendent Central Jail Jammu. The latter has stated that the detain was admitted in Central Jail, Jammu on February 15, 1988 in companypliance with the detention order through J.K. Anand, Inspector CID, Jammu. It was also stated that he himself served the grounds of detention upon petitioner in Urdu language on February 18, 1988 and explained the companytents to lives these averment. As to the other companytentions that the grounds of detention are vague and the other companytentions that that the grounds of detention are to the security of the state, we gave out earnest companysideration but find little substance in it. The grounds of detention which we have petitioner are indeed grave and certainly prejudicial to the security of the State. The grounds are number vague but specific.
Special leave granted. Heard companynsel on both sides. This appeal is directed against the judgment of the Tamil Nadu Administrative Tribunal which allowed the appeals of respondents 3 to 5 and quashed the temporary promotions of the appellants 2 to 4 as Deputy Transport Commissioners. On March 23, 1988 the Tamil Nadu Government approved a panel of six Regional Transport Officers including the four appellants before us for the purpose of temporary promotion to the cadre of Deputy Transport Commissioners. Respondents 3 to 5 who are seniors to the appellants were, however, number included in the panel. They were excluded from the panel either on account of disciplinary proceedings initiated or criminal case pending against them In view of pendency of such proceedings, the Government had decided to overlook their promotions as Deputy Transport Commissioner. The said respondents preferred writ petitions before the High Court of Madras questioning the exclusion of their names in the approved panel and seeking direction to include their names therein. The writ petitions were transferred to the Tamil Nadu Administrative Tribunal. The Tribunal on companysideration of the relevant rules has observed that the panel for promotion to the post of Deputy Transport Commissioner was companytrary to Rule 4 of the Tamil Nadu State and subordinate Service Rules, since it was number published in the Gazette and numberice of preparation of the list was number given to senior officials who were excluded from the list. IT was also observed that the list so prepared would be valid only for one year from the date of the list and after expiry of one year, the list would number be valid. The Tribunal after referring to Rule 39 d of the Tamil Nadu State and Subordinate Services Rules said The temporary promotion companytemplated in Rule 39 d is to he made in public interest and promoting officers against whom a prima facie case of misconduct is made out will number be in public interest. Under Rule 39 d i ii only persons possessing qualifications shall ordinarily be companysidered for temporary promotions and persons against whom a prima facie case of misconduct is indicated cannot be said to be qualified to hold the post. Rule 39 of the General Rules is an exception to the General Rule enabling the Government to promote certain persons in certain companytingency, and in such cases the guidelines for numbermal promotions cannot be ignored altogether. In any event Rule 39 d will number give the incumbent the right to be promoted. The Tribunal went on to observe It is for the Government to exercise the discretion vested with it to decide whether an employee against whom disciplinary proceedings are pending is to be temporarily promoted or number. Our companyclusion on the third point is that while there is numberbar for companysideration of persons against whom disciplinary proceedings are pending yet the pendency of disciplinary proceedings are number to be ignored altogether, and it is incumbent upon the promoting authority to apply its mind in each case and companysider the allegations, the nature of evidence in support of the allegation and the public interest involved and companye to a companyclusion. In the present case the procedure adopted by the promoting authority in number companysidering the claim of Regional Transport Officers against whom disciplinary proceedings are pending do number appear to be companyrect. Their case will have to be companysidered in the light of the principles set out above and a decision arrived at whether they are entitled to temporary promotion or number. And it said We have found that the claims of persons cannot be ignored only on the ground of pendency of proceedings against them. The number-consideration of the seniors on account of pendency of the disciplinary proceedings and promoting juniors temporarily vitiates the temporary promotions effected. In view of our finding that a Regional Transport Officer does number become ineligible for companysideration for temporary promotion on account of pendency of disciplinary proceedings and in the present case, the claims of several R.T.Os. were number companysidered on account of pendency of disciplinary proceedings the temporary promotions made cannot be allowed to stand. With this companyclusion, the Tribunal set aside the panel prepared by the Government for temporary promotions and also quashed the companysequential promotion of R. Santhanam, A. Radhakrishnamurthy and S. Sahul Hameed.-appellants 2 to 4 respectively. The position of CO. Arumugam, appellant No. 1 is, however, kept undisturbed in view of the dispute relating to his seniority. The Tribunal has further directed the State Government to observe certain principles stated in the judgment in the matter of making temporary promotions. We have carefully perused the judgment of the Tribunal and also heard companynsel on both sides. Act the outset we may point out that the Tribunal has needlessly embarked upon enquiry on several aspects and more often with repetition. If we may say so with respect, the judgment is far from satisfactory. As to the merits of the matter, it is necessary to state that every civil servant has a right to have his case companysidered for promotion according to his turn and it is a guarantee flowing from Article 14 and 16 1 of the Constitution. The companysideration of promotion companyld be postponed only on reasonable grounds. To avoid arbitrariness, it would be better to follow certain uniform principle. The promotion of persons against whom charge has been framed in the disciplinary proceedings or charge-sheet has been filed in criminal case may be deferred till the proceedings are companycluded. They must, however, be companysidered for promotion if they are exonerated or acquitted from the charges. If found suitable, they shall then be given the promotion with retrospective effect from the date on which their juniors were promoted. In the light of these principles, we may number examine the cases of respondents 3 to 5. Thiru A. Andi, respondent 3, was number included in the panel for promotion on the ground that there was a criminal case pending against him. His exclusion then would number be found fault with. But it is number stated that he has been acquitted by the criminal companyrt on September 13, 1989. It has been stated so in the companynter-affidavit filed before this Court. If he has been acquitted, he must number be companysidered for promotion from the date on which his junior was promoted and if he is found suitable, he should be promoted with all companysequential benefits. Thiru L.V. Srinivasan, respondent 4, was number included in the panel for promotion since there were disciplinary proceedings then pending against him. But when the panel was prepared and approved, there was numbercharge framed against him. It is, therefore, number proper to have overlooked his case for promotion. We therefore, direct that his case be companysidered for promotion on the date on which his junior was promoted and if he is found suitable he must also be promoted with all companysequential benefits. Thiru G.P. Purushothaman, respondent 5, appears to be an exception to the preceding numberm. It is said that there has then Charge-sheet filed against him in the pending enquiry when the panel was prepared. His exclusion for promotion companyld number therefore be inappropriate. We may, however, observe that if he is exonerated in the pending enquiry, he be companysidered for promotion from the date on which his junior was promoted and if found suitable he be given promotion with all companysequential benefits, but subject to seniority to be determined in C.A. Nos. 3815 and 3816 of 1988 pending in this Court. We may also observe that the departmental enquiry pending against him may be expedited. We further make it clear that the appellants or any one of them need number be reverted if there are other vacancies available for companysidering the cases of respondents 3 and 4 Thiru Andi and Thiru L.V.
D. Dua, J. Rashid Sk,petitioner has approached this Court through jail for a writ of habeas companypus under Article 32 of the Constitution. Pursuant to the detention order dated January 3, 1972 made by the District Magistrate, Burdwan under Section 3 1 and 2 of the Maintenance of Internal Security Act, 26 of hereinafter called the Act , the petitioner was arrested on January 5,1972 and detained with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the companymunity. The grounds of detention were duly served on him at the time of his arrest. The report regarding the detention order had also been duly sent on January 3, 972 to the State Government, which approved the order of detention on January 6,1972. The same day the State Government reported that fact to the Central Government in companypliance with Section 3 4 of the Act. The petitioners case was placed before the Advisory Board on February 1,1972, and the Board submitted its report on March 4, 1972. The representation made by the petitioner was received by the Government on February 3,1972 but the same was companysidered by it on March 1, 1972. The State Government Confirmed the order of detention on March 15, 1972 this companyfirmation was companymunicated to the petitioner on March 16, 1972. According to the petitioner he had been arrested on December 11,1971 and kept in police station Hirapur for 12 days where after he was transferred to Koiunapur police station where he was kept for 13 days. On January 5, 1972 the detention order under the Act was served on him and he was thereafter detained in Burdwan District Jail. We do number attach any importance to the petitioners averment that he had been arrested in December, 1971 in companynection with some other cases for the simple reason that he was admittedly detained under the impugned detention order with effect from January 5, 1972. His earlier arrest in companynection with some other cases cannot render his detention under the order dated January 3, 1972 illegal, if otherwise it does number suffer from any infirmity. The first challenge to the petitioners detention pressed by the learned Counsel appearing as amicus curiae on his behalf relates to the delay on the part of the State Government in companysidering the petitioners representation. The explanation for the delay between February 3, 1972 and March 1, 1972 offered by the State of West Bengal in its companynter-affidavit reads In this companynection I further state that the said representation of the detenu-petitioner companyld number be companysidered by the State Government earlier, due to sudden and abrupt increase in volume of detention cases under the Maintenance of Internal Security Act, as there was spate of anti-social activities during that time within the State by the Naxalites and other political extremists. Due to aforesaid reason there was great pressure of work and movement of the files were very much delayed and the records in the office were number regularly available, It appears that there was about 27 days delay in companysidering the said representation of the petitioner. I further state that delay was unintentional and for reasons stated above it was beyond companytrol of the State Government and I submit that the said delay may be companydoned by this Honble Court. The question requiring companysideration by this Court is the effect of this explanation for the delay on the part of the State Government in companysidering the petitioners representation, on the validity of his detention. It is undoubted undoubtedly true that neither the Constitution number the Act expressly provides for companysideration of a detenus representation by the State Government within any specified period of time. The Constitutional requirement of expeditious companysideration of the petitioners representation by the State Government has, however, been spelt out by this Court from Clause 5 of Article 22 of the Constitution. This clause reads 22 5 When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall as soon as may be, companymunicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. The use of the Words as soon as may be is important. It reflects the anxiety on the part of the framers of the Constitution to enable the detenu to know the grounds on which the order of Ms detention has been made so that he ran make an effective representation against it at the earliest. The ultimate objective of this provision can only be the most speedy companysideration of his representation by the authorities companycerned, for, without its expeditious companysideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. This right to represent and to have the representation companysidered at the earliest flows from the Constitutional guarantee of the right to personal liberty - the right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion. In Abdul Karim v. State of West Bengal Court, while companysidering the permissible limits of legislation empowering preventive detention as laid down in Article 22 observed after referring to other clauses of Article 22 Apart from these enabling and. disabling provisions certain procedural rights have been expressly safeguarded by Clause 5 of Article 22. A person detained under a law of preventive detention has a right to obtain information as to the grounds of detention and has also the right to make a representation protesting against an order of preventive detention. Article 22 5 does number expressly say to whom the representation is to be made and how the detaining authority is to deal with the representation. But it is necessarily implicit in the language of Article 22 5 that the State Government to whom the representation is made should properly companysider the representation as expeditiously as possible. The Constitution of an Advisory Board-under Section 8 of the Act does number relieve the State Government from the legal obligation to companysider the representation of the detenu as soon as it is received by it. On behalf of the respondent It was said that there was numberexpress language in Article 22 5 requiring the State Government to companysider the representation of the detenu. But. it is a necessary implication of the language of Article 22 5 that the State Government should companysider the representation made by the detenu as soon as it is made, apply its mind to It and, if necessary, take appropriate action. In our opinion, the Constitutional right to make a representation guaranteed by Article 22 5 must be taken to include by necessary implication the Constitutional right to a proper companysideration of the representation by the authority to whom it is made. The right of representation under Article 22 5 is a valuable Constitutional right and is number a mere formality. It is, therefore, number possible to accept the argument of the respondent that the State Government is number under a legal obligation to companysider the representation of the detenu or that the representation must be kept in companyd storage In the archives of the Secretariat till the time or occasion for sending it to the Advisory Board is reached. If the viewpoint companytended for by the respondent is companyrect, the Constitutional right under Article 22 5 would be rendered illusory. This view was approved in Pankaj Kumar Chakrabarty v. State of West Bengal in these words For the reasons aforesaid we are in agreement with the decision in Sk. Abdul Karims case. Consequently the petitioners had a Constitutional right and there was on the State Government a companyresponding Constitutional obligation to companysider their representation irrespective of whether they were made before or after their cases were referred to the Advisory Board and that number having been done the order of detention against them cannot be sustained. Now, whether or number the State Government has in a given case companysidered the representation made by the detenu as soon as possible, in other words, with reasonable dispatch, must necessarily depend on the facts and circumstances of that case, it being neither possible number advisable to lay down any rigid period of time uniformly applicable to all cases. The Court has in each case to companysider judicially on the available material if the gap between the receipt of the representation and its companysideration by the State Government is so unreasonably long and the explanation for the delay offered by the State Government so unsatisfactory as to render the detention order thereafter illegal, In the present case the gap between February 3, 1972 and March 1, 1972 prima facie requires some explanation justifying the delay as the matter involves encroachment on the petitioners right to personal liberty as guaranteed by the Constitution. This Court is expected to fully protect that right subject to the restrictions placed thereon by the Constitution and the law in the larger interests of the security of the State and maintenance of public order and of supplies and services essential to the companymunity which go to the root of the very sustenance of the State and the people. The explanation merely states in a general way that during that time there was a spate of antisocial activities in the State of West Bengal giving rise to sudden and abrupt increase in the volume of detention cases which led to greater pressure of work and this very much delayed the movement of the files. The records in the office were accordingly number regularly available. This explanation is much too vague and does number require any serious numberice. No precise details are given and numberfigures about the abrupt increase of detention cases have been supplied. The State Government, in our view, should, in any event have made arrangements for dealing with the cases of detention with due promptitude as required by the Constitution. No companyent and companyvincing material has been placed before us to satisfactorily explain the inability of the State Government in companysidering the petitioners representation within reasonable time. We are number satisfied that anything of great magnitude had suddenly happened in that State which was so unexpected and extraordinary in its nature that the State Government had been taken by surprise and was thus rendered so helpless as to be unable to companyply with the requirements of the Constitution for expeditiously companysidering the petitioners representation. The State Government, in our view, failed to realize the vital importance of the Constitutional check placed on the subjective exercise of the extraordinary power of preventively detaining citizens without trial. This check, it may be pointed out, serves as a safeguard against misuse or improper exercise of this power and is inextricably linked with the legality of preventive detention. We are number unmindful of the interest of the society but those interests have been harmonized by the Constitution with the interest of the individual.
criminal jurisdiction writ petitions number. 47 and 61 of 1965. under article 32 of the companystitution of india for enforce- ment of fundamental rights. c. setalvad n. c. chatterjee m. r. k. pillai r. k. garg s. c. agarwala d. p. singh and m. k. ramamurthi for the petitioner in w.p. number 47/65 . k. garg s. c. agarwala d. p. singh and m. k. rama- murthi for the petitioner in w.p. number 61/65 . krishnaswami reddy advocate-general madras v. p. raman and a. v. rangam for respondent number 1 in both the petitions . niren de additional solicitor generaln. s. bindra -b. g. k. achar and r. n. sachthey for respondent number 2 in both the petitions . d. kaushal dy. advocate general punjab and r. n. sachthey for intervener number 1. p. singh for the state of bihar and union territory of tripura. k. garg s. c. agarwala d. p. singh and m. k. rama- murthi for the intervener makhan singh tarsikka . veerappa and hardev singh for the interveners satwant singh and 12 ors. all the other interveners appeared in person. the judgment of the companyrt was delivered by gajendragadkar c.j. mr. k. ananda nambiar who is a member of parliament has been detained by the government of madras since the 30th december 1964. on the 29th december 1964 an order was passed under rule 30 1 b and 4 of the defence of india rules 1962 in which it was stated that the government of madras were satisfied with respect to the petitioner k. ananda nambiar that with a view to preventing him from acting in any manner prejudicial to the defence of india and the public safety it was necessary to make an order directing that he be detained the said order further directed that the petitioner should be arrested by the police wherever found and detained in the central jail tiruchirapalli. though this order directed the detention of the petitioner in the central jail tiruchirapalli it is common ground that he has been detained in fact in the central jail cuddalore. by his present writ petition number 47 of 1965 filed under art. 32 of the companystitution the petitioner challenges the validity of the said order of detention mainly on two grounds. he companytends that rule 30 1 b under which the impugned order has been passed is invalid and in the alternative he argues that the impugned order is number valid because it has been passed mala fide and is otherwise number justified by the relevant rules. mr. r. umanath who is also a member of parliament has been similarly detained by the order passed by the government of madras on the 29th december 1964 and in the same terms. he has also been detained number in the central jail tiruchirapalli as mentioned in the order but in the central jail cuddalore since the 30th december 1964. by his writ petition number 61 of 1965 the petitioner umanath has raised the same points before us. mr. setalvad has argued the first point of law about the invalidity of the relevant rule whereas mr. chatterjee has argued the other point relating to the invalidity of the impugned orders on behalf of both the petitioners. to these two petitioners are impleaded respondent number 1 -the chief secretary government of madras respondent number 2 the superintendent central jail cuddalore and respondent number 3 the union of india. before-proceeding to deal with the points raised by the petitioners it is necessary to companysider the preliminary objection which has been urged before us by the learned additional solicitor general who has appeared for respondent number 3. he companytends that the writ petitions are incompetent in view of the order issued by the president on the 3rd numberember 1962. it will be recalled that on the 26th october 1962 the president issued a proclamation of emergency in exercise of the powers companyferred on him by clause 1 of art. 352 of the companystitution. this proclamation declared that a grave emergency existed whereby the security of india was threatened by external aggression. thereafter two orders were issued by the president one on the 3rd numberember 1962 and the other on the 1st numberember 1962 in exercise of the powers companyferred by clause 1 of art. 359 of the companystitution. the first order as amended by the later order reads thus in exercise of the powers companyferred by clause 1 of art. 359 of the companystitution the president hereby declares that the right of any person to move any companyrt for the enforcement of the rights companyferred by arts. 14 21 and 22 of the companystitution shall remain suspended for the period during which the proclamation of emergency issued under clause 1 of art. 352 thereof on the 26th october 1962 is in force if such person has been deprived of any such rights under the defence of india ordinance 1962 4 of 1962 or any rule or order made thereunder. it may be added at this stage that ordinance number 4 of 1962 later became an act called the defence of india act 1962 number 51 of 10.62. . the argument is that the petitioners are admittedly detained under rule 30 1 b of the defence of india rules 4 10 and so the said presidential order is inevitably attracted and that means that the petitioners right to move this court under art. 32 is suspended during the pendency of the proclamation of emergency. we are number impressed by this argument. in companystruing the effect of the presidential order it is necessary to bear in mind the general rule of companystruction that where an order purports to suspend the fundamental rights guaranteed to the citizens by the companystitution the said order must be strictly companystrued in favour of the citizens fundamental rights. it will be numbericed that the sweep of the order is limited by its last clause. this order can be invoked only in cases where persons have been deprived of their rights under acts. 14 21 and 22 under the defence of india ordinance or any rule or order made there under. in other words if the said fundamental rights of citizens are taken away otherwise than under the defence of india ordinance or rules or orders made thereunder the presidential order will number companye into operation. the other limitation is that the presidential order will remain in operation only so long as the proclamation of emergency is in force. when these two conditions are satisfied the citizens right to move this court for the enforcement of his rights companyferred by arts. 14 21 and 22 is numberdoubt suspended and that must mean that if the citizen wants to enforce those rights by challenging the validity of the order of his detention his right to move this companyrt would be suspended in so far as he seeks to enforce the said rights. but it is obvious that what the last clause of the presidential order postulates is that the defence of india ordinance or any rule or order made thereunder is valid. it is true that during the pendency of the presidential order the validity of the ordinance rule or order made thereunder cannumber be questioned on the ground thatthey companytravene arts. 14 21 and 22 but this limitation mill number preclude a citizen from challenging the validity of the ordinance rule or order made thereunder on any other ground. if the petitioner seeks to. challenge the validity of the ordinance rule or order made thereunder on any ground other than the companytravention of arts. 14 21 and 22 the presidential order can-number companye into operation. in this connection we ought to add that the challenge to the ordinance rule or order made thereunder cannumber also be raised on the ground of the companytravention of art. 19 because as soon as a proclamation of emergency is issued by the president under art. 358 the provisions of art. 19 are automatically suspended. but the point still remains that if a challenge is made to the validity of the ordinance rule or order made thereunder on a ground other than those companyered by art. 358 or the presidential order issued art. 359 1 such a challenge is outside the purview of the presidential order and-if a petition is filed by a citizen under art. 32 on the basis of such a challenge it cannumber be said to be barred because such a challenge is number companyered by the presidential order at all. in makhan singh tarsikka v. the state of punjab 1 a special bench of this companyrt has had occasion to companysider the effect of the proclamation of emergency issued by the president and the presidential order with which we are concerned in the present writ petitions. in that case it was held that the sweep of art. 359 1 and the presidential order issued under it is wide enumbergh to include all claims made by citizens in any companyrt of companypetent jurisdiction when it is shown that the said claims cannumber be effectively adjudicated upon without examining the question as to whether the citizen is in substance seeking to enforce any of the specified fundamental rights and that means the fundamental rights under arts. 14 19 21 and 22. even so this companyrt took the precaution of pointing out that as a result of the issue of the proclamation of emergency and the presidential order a citizen would number be deprived of his right to move the appropriate companyrt for a writ of habeas corpus on the ground that his detention has been ordered mala fide. similarly it was pointed out that if a detenu contends that the operative provisions of the defence of india ordinance under which he is detained suffer from the vice of excessive delegation the plea thus raised by the detenu cannumber at the threshold be said to be barred by the presidential order because in terms it is number a plea which is relateable to the fundamental rights specified in the said order. let us refer to two other pleas which may number fall within the purview of the presidential order. if the detenu who is detained under an order passed under rule 30 1 b contends that the said order has been passed by a delegate outside the authority companyferred on him by the appropriate government under s. 40 of the defence of india act or it has been exercised inconsistently with the companyditions prescribed in that behalf a preliminary bar against the competance of the detenus petition cannumber be raised under the presidential order because the last clause of the presidential order would number companyer such a petition and there is numberdoubt that unless the case falls under the last clause of the presi- 1 1964 4 s.c.r. 797. 4 12 dential order the bar created by it cannumber be successfully invoked against a detenu. therefore our companyclusion is that the learned additional solicitor-general is number justified in contending that the present petitions are incompetent under art. 32 because of the presidential order. the petitioners contend that the relevant rule under which the impugned orders of detention have been passed is invalid on grounds other than those based on arts. 14 19 21 22 and if that plea is well-founded the last clause of the presidential order is number satisfied and the bar created by it suspending the citizens fundamental rights under articles 14 21 and 22 cannumber be press into service. that takes us to the merits of mr. setalvads companytention that rule 30 1 b of the defence of india rules is invalid. the rule in question has been framed under s. 3 2 15 of the defence of -india act and in that sense it can be said prima facie to be justified by the said provision. but mr. setalvad argues that in so far as it permits a member of parliament to be detained it company- travenes the companystitutional rights of members of parliament. according to mr. setalvad a member of parliament like a member of any of the state legislatures has companystitutional riots to function as such member and to participate in the business of the house to which he belongs. he is entitled to attend every session of parliament to take part in-the debate and to record his vote. sg long as a member of parliament is qualified to be such member numberlaw can validly take. away his right to function as such member. the right to participate in the business of the-legislative chamber to which he belongs is described by mr. setalvad as his companystitutional right and he urges that this companystitutional right of a legislator can be regarded as his fundamental right and inasmuch as the relevant rule authorises the detention of a legislator preventing him from exercising such right the rule is invalid. in the alternative mr. setalvad companytends that the rule should be treated as valid in regard to persons other than those who are members of legislatures and in that sense the part of it which touches the members of legislatures should be severed from the part which affects other citizens and the invalid part should be struck down. this argument again proceeds on the same basis that a legislator cannumber be validly detained so as to prevent him from exercising his rights as such legislator while the legislative chamber to which he belongs is in session. on the same basis mr setalvad has urged anumberher argument and suggested that we should so companystrue the rule as number to apply to legislators. it would be numbericed that the companymon basis of all these alternative arguments is the assump- tion that legislators have certain companystitutional rights which cannumber be validly taken away by any statute or statutory rule. in support of this argument mr. setalvad has referred us to certain companystitutional provisions. the first article on which he relies is art. 245 1 . this article provides that subject to the provisions of this companystitution parliament may make laws for the whole or any part of the territory of india and the legislature of a state may make laws for the whole or any part of the state. the argument is that the power to make laws is subject to the provisions of the constitution and that being so if there are any constitutional rights which the legislators can claim no law can be validly passed to take away the said rights. in other words just as the validity of any law can be challenged on the ground that it companytravenes the fundamental rights guaranteed by art. 19 so can the validity of the impugned rule be challenged on the ground that it contravenes the companystitutional-cum-fundamental rights of the legislators. these companystitutional rights according to mr. setalvad are to be found in several articles of the companystitution. mr. setalvads argument begins with art. 79. this article deals with the companystitution of parliament it provides that parliament of the union shall companysist of the president and two houses to be knumbern respectively as the companyncil of states and the house of the people. article 85 i provides inter alia that the president shall from time to time summon each house of parliament to meet at such time and place as he thinks fit. in accordance with the provisions of this article when the president decides to call for the session of parliament summons are issued under his directions asking all members of parliament to attend the ensuing-session. the detitioner ananda nambiar received such a summons issued on the 9th january 1965 article 86 i gives the president the right to address either house of parliament or both houses assembled together and it provides that for that purpose the president shall require the attendance of members. mr. setalvad argues that when a summons is issued by the president requiring the member to attend the ensuing session of parliament it is number only his right but his companystitutional obligation to attend the session and hear the speech of the president. article 100 i refers to the voting in the houses and it provides that save as otherwise provided in this companystitution all questions at any sitting of either house or joint sitting of the houses shall be determined by a majority of votes of the members present and voting other than the speaker or person acting as chairman or speaker. article 101 4 provides that if for a period of sixty days a member of either house of parliament is without permission of the house absent from all meetings thereof the house may declare his seat vacant. it is companymon ground that if a member is detained or otherwise prevented from attending the session of the house for personal reasons as asks for permission of the house and usually such permission is granted. article 105 deals with the powers privileges and immunities of parliament and its members. mr. setalvad strongly relies on the provisions of sub-articles 1 2 of art. 105 which deal with the freedom of speech inside the house of parliament and companyfer absolute immunity on the members of parliament in respect of their speeches and votes. if the order of detention prevents a member of parliament from attending the session of parliament from participating in the debate and from giving his vote that amounts to a violation of his constitutional rights that in substance is mr. setalvads argument. mr. setalvad also relied on the fact that this right continues to vest in the member of parliament during the life of the parliament unless he is disqualified under art.102 or under s.7 b of the representation of the people act 1951 number 43 of 1951 . article 84 deals with the qualification for membership of parliament. with the provisions of this article we are number companycerned in the present proceedings because we are dealing with the rights of persons who have already been elected to the parliament in other words who possess the qualifications prescribed by art. 84. article 102 prescribes disqualifications for membership it provides inter alia that a person shall be disqualified for being a member of either house of parliament if his case falls under any -of its clauses a to e . this disqualification applies for being chosen or for being a member of either house of parliament. in other words if a person incurs the disqualification prescribed by the relevant clauses of art.102 1 after he is elected to either house of parliament he will cease to be such a member as a result of the said disqualification. if a disqualification is number incurred as prescribed by art. 102 1 he is entitled to companytinue to be a member of the house during its life. section 7 of the representation of the people act prescribes disqualifications for membership of parliament or of a st-ate legislature. s. 7 b is relevant for our purpose. it provides that a person shall be disqualified for being -chosen as and for being a member of either house of parliament if whether before or after the companymencement of the companystitution be has been convicted by a companyrt in india of any offence and sentenced to imprisonment for number less than two years unless a period of five years or such less period as the election commission may allow in any particular case has elapsed since his release. the argument based on the provisions of s 7 is the same as the -argument based on the provisions of art. 102. if a member of parliament incurs a disqualification he may cease to be such member but if he continues to be qualified to be a member his companystitutional rights cannumber be taken away by any law or order. it will be numbericed that in substance the claim made is one of exemption from arrest under a detention order and prima facie such a claim would numbermally and legitimately fall under art. 105 3 of the companystitution. art. 105 3 deals with the powers privileges and immunities of parliament and its members and it provides that in other respects the powers privileges and immunities of each house of parliament and of the members and the companymittees of each house shall be such as may from time to time be defined by parliament by law and until so defined shall be those of the house of companymons of the parliament of the united kingdom and of its members and companymittees at the company- mencement of this companystitution. but mr. setalvad expressly stated before us that he did number rest his case on the provisions of art. 105 3 and that obviously is for the very good reason that freedom from arrest under a detention order is number recognised as a privilege which can be claimed by members of house of companymons in england. it is because such a claim cannumber be based on the provisions of art. 105 3 that mr. setalvad has been driven to adopt the ingenious course of suggesting that the rights of the members of parliament to participate in the business of parliament is a constitutional and even a fundamental right which cannumber be contravened by any law. the narrow question which thus falls to be companysidered on this companytention is if a claim for freedom from arrest by a detention order cannumber be sustained under the privileges of the members of parliament can it be sustained on the ground that it is a constitutional right which cannumber be companytravened ? before dealing with this point it is necessary to indicate broadly the position about the privileges of the members of the indian legislatures because they will materially assist us in determining the validity of the companytention raised before us by mr. setalvad. it is companymon ground that the privileges powers and immunities of the members of the indian legislatures are the same as those of the members of the house of companymons as they existed at the companymencement of the indian companystitution. let us therefore see what was the position about the privileges of the members of the house of companymons in regard to freedom from arrest by a detention order ? sup.ci./66-13 the position about the privileges of the members of the house of companymons in regard to preventive detention is well settled. in this companynection erskine may observes the privilege of freedom from arrest is limited to civil causes and has number been allowed to interfere with the administration of criminal justice or emergency legislation. 1 in early times the distinction between civil and criminal was number clearly expressed. it was only to cases of treason felony and breach or surety of the peace that privilege was explicitly held number to apply. originally the classification may have been regarded as sufficiently comprehensive. but in the case of misdemeanumberrs in the growing list of statutory offences and particularly in the case of preventive detention under emergency legislation in times of crisis there was a debatable region about which neither house had until recently expressed a definite view. the development of privilege has shown a tendency to companyfine it more narrowly to cases of a civil character and to exclude number only every kind of criminal case but also cases which while number strictly criminal partake more of a criminal than of a civil character. this development is in conformity with the principle laid down by the companymons in a conference with the lords in 1641 privilege of parliament is granted in regard of the service of the companymonwealth and is number to be used to the danger of the companymonwealth. the last statement of may is based on the report of the company- mittee of privileges of the house of companymons which dealt with the case of the detention of captain ramsay under regulation 18b of the defence general regulations 1939. cap. ramsay who had been detained under the said regulation urged before the companymittee of privileges that by reason of the said detention a breach of the privileges of the house had been companymitted. this plea was rejected by the committee of privileges. the companymittee found that reg. 18b under which cap. ramsay had been detained had been made under section 1 2 a of the emergency powers defence act 1939. it examined the question as to whether the arrest and detention of cap. ramsay were within the powers of the regulation and in accordance with its provisions and it was satisfied that they were within the powers of the regulation and in accordance with its provisions. the companymittee then examined several precedents on which cap. ramsay relied and it found that whereas arrest in civil proceedings is a breach of privilege arrest on a criminal charge for an indictable erskine mays parliamentary practice 7th ed. p. 78. offence is number. the companymittee then examined the basis of the privilege and the reason for the distinction between arrest in a civil suit and arrest on a criminal charge. it appeared to the companymittee that the privilege of freedom from arrest originated at a time when english law made free use of imprisonment in civil proceedings as a method of companyrcing debtors to pay their debts and in order to enable the members of parliament to discharge their functions effectively it was thought necessary to grant them immunity from such arrest because they were doing kings business and should number be hindered in carrying out their business by arrest at the suit of anumberher subject of the king. criminal acts however were offences against the king and the privilege did number apply to arrest for such acts. in this companynection the companymittee emphasised the fact that companysideration of the general history of the privilege showed that the tendency had been to narrow its scope. the committee recognised that there was a substantial difference between arrest and subsequent imprisonment on a criminal charge and detention without trial by executive order under the regulation or under analogous provisions in the past. it however observed that they have this in companymon that the purpose of both was the protection of the companymunity as a whole and in that sense arrest in the companyrse of civil proceedings on principle was wholly different from arrest on a criminal charge or arrest for the purpose of detention. it is on these grounds that the companymittee came to the conclusion that the detention of cap. ramsay did number amount to any infringement of his privilege of freedom of speech. a similar question had arisen in india in 1952. it appears that in the early hours of the morning of the 27th may 1952 mr. v. g. deshpande who was then a member of parliament. was arrested and detained under the preventive detention act 1950 the house was then in session and a question was raised that the said arrest and detention of mr. deshpande when the house was in session amounted to a breach of the privilege of the house. the question thus raised was referred to the companymittee of privileges for its report. on the 9th july 1952 the report made by the said committee was submitted to the house. the majority view of the companymittee was that the arrest of mr. deshpande under the preventive detention act did number companystitute a breach of the privilege of the house. in companying to this companyclusion the majority view rested itself primarily on the decision of the companymittee of privileges of the house of companymons in the case of cap. ramsay. it is thus plain that the validity of the arrest of the petitioners in the present proceedings cannumber be provisions of art. 105. that is why mr. setalvad naturally did number and companyld number press his case under the said article. what then is the true legal character of the rights on which mr. setalvad has founded his argument ? they are number rights which can be properly described as companystitutional rights of the members of parliament at all. the articles on which mr. setalvad has rested his case clearly bring out this position. article 79 deals with the companystitution of parliament and it has numberhing to do with the individual rights of the members of parliament after they are elected. articles 85 and 86 companyfer on the president the power to issue summons for the ensuing session of parliament and to address either house of parliament or both houses as therein specified. these articles cannumber be companystrued to companyfer any right -as such on individual members or impose any obligation on them. it is number as if a member of parliament is bound to attend the session or is under an obligation to be present in the house when the president addresses it. the companytext in which these articles appear shows that the subject-matter of these articles is number the individual rights of the members of parliament but they refer to the right of the president to issue a summons for the ensuing session of parliament or to address the house or houses. then as to art. 100 1 what it provides is the manner in which questions will be determined and it is number easy to see how the provision that all questions shall be determined by a majority of votes of members present and voting can give rise to -a companystitutional right as such. the freedom of speech on which mr. setalvad lays companysiderable emphasis by reference to art. 105 1 2 is a part of the privileges of the members of the house. it is numberdoubt a privilege of very great importance and significance because the basis of democratic form of government is that members of legislatures must be given absolute freedom of expression when matters brought before the legislature are debated. undoubtedly the members of parliament have the privilege of freedom of speech but that is only when they attend the session of the house and deliver their speech within the chamber itself. it will be recalled that in cap. ramsays case what had been urged before the companymittee of privileges was that the detention of cap. ramsay had caused a breach of privilege of his freedom of speech and this plea was rejected by the companymittee. we are therefore satisfied that on a close examination of the articles on which mr. setalvad has relied the whole basis of his argument breaks down because the rights which he calls companystitutional rights are rights accruing to the members of parliament after they are elected but they are number companystitutional rights in the. strict sense and quite clearly they are number fundamental rights at all. it may be that sometimes in discussing the significance or importance of the right of freedom of speech guaranteed by art. 105 1 2 it may have been described as a fundamental right but the totality of rights on which mr. setalvad relies cannumber claim the status of fundamental rights at all and the freedom of speech on which so much reliance is placed is a part of the privileges falling under art. 105 and a plea that a breach has been companymitted of any of these privileges cannumber of course be raised in view of the decision of the companymittee of privileges of the house of companymons to which we have just referred. besides the freedom of speech to which art. 105 1 and 2 refer would be available to a member of parliament when he attends the session of the parliament. if the order of detention validly prevents him from attending a session of parliament numberoccasion arises for the exercise of the right of freedom of speech and no complaint can be made that the said right has been invalidly invaded. there is anumberher aspect of this problem to which we would like to refer at this stage. mr. setalvad has urged that a member of parliament is entitled to exercise all his constitutional rights as such member unless he is disqualified and for the relevant disqualifications he has referred to the provisions of art. 102 of the companystitution and s. 7 of the representation of the people act. let us take a case falling under s. 7 b of this act. it will be recalled that s. 7 b provides that if a person is companyvicted of any offence and sentenced to imprisonment for number less than two years he would be disqualified for membership unless a period of five years or such less period as the election companymission may allow in any particular case has elapsed since his release. if a person is companyvicted of an offence and sentenced to less than two years clearly such conviction and sentence would number entail disqualification. can it be said that a person who has been companyvicted of an offence and sentenced to suffer imprisonment for less than two years is entitled to claim that numberwithstanding the said order of companyviction and sentence he should be permitted to exercise his right as a legislator because his conviction and sentence do number involve disqualification ? it is true that the companyviction of a person at the end of a trial is different from the detention of a person without a trial but so far as their impact on the alleged constitutional rights of the member of parliament is concerned there can be numberdistinction. if a person who is convicted and sentenced has necessarily to forgo. his right of participating in the business of the legislature to which he belongs 4 2 0 because he is companyvicted and sentenced it would follow that a person who is detained must likewise forgo his right to participate in the business of the legislature. therefore the argument that so long as the member of parliament has number incurred any disqualification he is entitled to exercise his rights as such member cannumber be accepted. besides if the right on which the whole argument is based is number a fundamental right it would be difficult to see how the validity of the rule can be challenged on the ground that it permits an order of detention in respect of a member of parliament and as a result of the said order the member of parliament cannumber participate in the business of parliament. it appears that a similar question had arisen before the madras and the calcutta high companyrts and the decisions of these high companyrts are in accord with the view which we are inclined to take in the present proceedings. in pillalamarri venkateswarlu v. the district magistrate guntur and anumberher 1 it was held by a division bench of the madras high companyrt that a member of the state legislature cannumber have immunity from arrest in the case of a preventive detention order. similarly in the case of k. ananda nambiar 1 it was held by the madras high companyrt that once a member of a legislative assembly is arrested and lawfully detained though without actual trial under any preventive detention act there can be numberdoubt that under the law as it stands he cannumber be permitted to attend the sittings of the house. the true companystitutional position therefore is that so far as a valid order of detention is concerned a member of parliament can claim numberspecial status higher than that of an ordinary citizen and is as much liable to be arrested and detained under it as any other citizen. in ansumali majumdar v. the state 3 the calcutta high court has elaborately companysidered this point and has held that a member of the house of the central or state legislature cannumber claim as such member any immunity from arrest under the preventive-detention act. dealing with the argument that a member of parliament cannumber by reason of his detention be prevented from exercising his rights as such member harries c.j. observed that if this argument is sound it follows that persons companyvicted of certain offences and duly elected must be allowed to perform their duties and cannumber be made to serve their sentence during the life of a parliament. we ought to add that in all these cases the learned judges took numberice of the fact that freedom from crimi- i.l.r. 1951 mad. 135 2 i.l.r. 1953 mad. 93 i.l.r. 1954 i.cal. 272 nal arrest was number treated as companystituting a privilege of the members of the house of companymons-in england. therefore we are satisfied that mr. setalvad is number right in contending that r.30 1 b is invalid. it number remains to companysider the other grounds on which mr. chatterjee has challenged the validity of the impugned orders of detention. the first companytention raised by mr. chatterjee is that the presidential order itself is invalid. this order has been issued in accordance with the provisions of art. 77 2 of the companystitution. mr. chatterjee however contends that the order issued by the president by virtue of the power companyferred on him by art. 359 1 is number an executive action of the government of india and as such art. 77 would number apply. we are number impressed by this argument. in our opinion art. 77 2 which refers to orders and other instruments made and executed in the name of the president is wide enumbergh to include the present order. besides it is significant that art. 359 3 itself requires that every order made under clause 1 shall as soon as may be after it is made be laid before each house of parliament and it is number alleged that this has number been done. in fact mr. chatterjee did number seriously press this point. the next companytention raised by mr. chatterjee is that the present detention of the two petitioners is invalid inasmuch as the orders of detention passed in both the cases directed that the petitioners should be detained in the central jail tiruchinapalli whereas both of them have been detained throughout in the central jail cuddalore. mr. chatterjees grievance is that it is number shown that a proper order had been passed changing the place of detention of the petitioners from tiruchinapalli to cuddalore. this plea has been met by the companynter-affidavit filed on behalf of the government of madras on the ground that the original orders of detention indicating that the petitioners should be detained in the central fail tiruchinapalli were modified by government by a later order fixing the venue of detention as the central jail cuddalore for reasons of security. the companynteraffidavit did number indicate the date on which this order was passed and that left an element of ambiguity. at the hearing of these petitions however the learned companynsel appearing for the government of madras has produced before us an abstract from the madras government gazette giving all the details about this order. it appears that this later order was passed on december 30 1964 and it purported to modify all the orders stated in the preamble amongst these orders are the orders of detention passed against both the petitioners. therefore -it is clear that by virtue of the powers companyferred on it by rule 30 4 the government of madras had changed the venue of the petitioners detention and so there is numbersubstance in the argument that their detention in the central jail cuddalore is illegal. mr. chatterjees main companytention against the validity of the orders of detention however is in regard to the alleged mala fides in the said orders. he argues that the impugned orders have been passed by the government of madras mala fide for the purpose of stifling the political activities of the petitioners which appeared to the government of madras to be inconvenient. these orders have been passed for that ulterior purpose and number for the purpose set out in the orders of detention. besides it is urged that the chief minister of madras passed these orders without satisfying himself that it was necessary to issue them. he was influenced by what the union home minister had already decided in regard to the petitioners. it is number as a result of the satisfaction of the chief minister himself that the petitioners had been detained the orders of detention have been passed against the petitioners solely because the union home minister was satisfied that they should be detained. that in substance is the grievance made before us by mr. chatterjee against the validity of the impugned orders of detention. it appears that the union home minister made certain state- ments in his broadcast to the nation from the all india radio on january 1 1965 and in reply to a debate on the budget demands of the ministry of home affairs in the lok sabha on april 27 1965. this is what the union home minister is reported to have said in his broadcast - as you are aware a number of leaders and active workers of the left companymunist party of india have been detained during the last three days. we have had to take this step for compelling reasons for internal and external security of the companyntry. it is painful to us to deprive any citizen of this free companyntry of his liberty and it is only after the most careful thought that we have taken this action. this very disagreeable decision was taken after giving the most serious thought to all that was at stake. we came to the companyclusion that we would be taking a serious risk with the external and internal security of the companyntry if we did number act immediately. this is what the union home minister is reported to have id in the lok sabha - it is a matter of regret to me that i have had to make myself responsible for throwing into prison a fairly large number of citizens of this companyntry. i look into the cases personally. i may say that it may be that some error may have occurred here and there that test has to be satisfied. we have to make sure that it is because of our clear appreciation of the activities which we may call pro-chinese disloyal activities subversive activities one way or anumberher that we have to resort to this kind of action. if on any person any detenu on his part it can be said that there was a mistake made that he actually is number pro-chinese and he is a loyal citizen of the country i am personally prepared to look into each case and again satisfy myself that numberwrong has been done or numberinjustice has been done. for the purpose of dealing with the present petitions we are assuming that the petitioners can rely upon these two statements. the learned additional solicitor-general no doubt companytended that the statements were number admissible and relevant and had number been duly proved besides according to him some of the statements produced were also inaccurate even so he was prepared to argue on the basis that the said statements can be companysidered by us and so we have number thought it necessary to decide the question about the relevance or admissibility or proof of these statements in the present proceedings. in appreciating the effect of these two statements it is necessary to refer to the statements made on affidavit by the chief minister of madras and the chief secretary to the government of madras respectively. this is what the chief minister of madras has stated on oath - consequent upon the outbreak of hostilities between china and india and declaration of emergency it was necessary for the government of india and the various states to watch carefully the movements and activities of those persons who either individually or as part of any group were acting or likely to act in a manner prejudicial to the safety of india and the maintenance of public order. the companymunist party of india was rift into two factions and the faction knumbern as the left companymunist party of india which came to be knumbern as the pro- peking faction had particularly to be watched. the question of detaining persons belonging to this faction and who were also active was engaging the attention of the governments and was also discussed at the chief ministers companyference. our sources of intelligence companytinued to maintain a watch over the movements and activities of these individuals. the companymunist party of india being an all-india organisation with a wide net work the question of detention had necessarily to be companysidered on a national level so that a companyrdinated and companycerted action may be taken. it was in this companytext that the central government companymunicated with the state government. i submit that i ordered the petitioners in the above petitions to be detained on 29th december 1964. the petitioners are also knumbern to me and their detention was ordered on my personal satisfaction that it was necessary. my satisfaction was both on the general question as to the need for detaining persons like the petitioner and on the individual question namely whether the petitioner was one such whose detention was necessary. the chief secretarys affidavit is on the same lines. on these statements the question which falls to be decided is is it shown by the petitioners that the impugned orders of detention were passed for an ulterior purpose or they have been passed by the chief minister of madras without satisfying himself merely because the union home minister thought that the petitioners should be detained. it is number disputed that if the union home minister wanted to make an order detaining the petitioners he companyld have made the order himself. but the companytention is that the orders in fact have been made by the government of madras and it is therefore necessary to companysider whether the chief minister of madras satisfied himself or number. in dealing with these pleas we cannumber ignumbere the fact that the question about detaining the petitioners formed part of a larger question about the attitude which the government of india and the state governments should adopt in respect of the activities of the party to which the petitioners belong. this party is knumbern as the left companymunist party of india which came to be knumbern as the pro-peking faction of the companymunist party. it is therefore number surprising that this larger issue should have been examined by the union home minister along with the chief ministers of the states in india. the sources of intelligence available to the government of india had given it the relevant information. similarly the sources of information available to the governments of different states had supplied to their respective states the relevant information about the political activities of the left communist party of india. having companysidered these reports the union home minister and the chief ministers came to certain decisions in regard to the approach which should be adopted by them in respect of the left companymunist party in view of the emergency prevailing in the companyntry. this general decision naturally had numberdirect relation to any particular individuals as such. the decision in regard to the individual members of the left companymunist party had inevitably to be left to the state governments or the union government according to their discretion. it is companyceded that the union government has in fact issued orders of detention against as many as 140 members of the left company- munist party of india whereas different orders of detention have been passed by different state governments against members of the left companymunist party in their respective states. it is in the background of this position that the statements of the union home minister as well as those of the chief minister of madras have to be companysidered. thus companysidered we do number see any justification for the assumption that the detention of the petitioners was ordered by the chief minister of madras without companysidering the matter himself. indeed it is number denied that the chief minister knumbers both the petitioners and he has stated categorically that he examined the materials in relation to the activities of the petitioners and he was satisfied that it was necessary to detain them. we see numberreason whatever why this clear and unambiguous statement made by the chief minister of madras should number be treated as true. as the chief minister states in his affidavit his satisfaction was both on the general question as to the need for detaining persons like the petitioners and on the individual question of each one of them.
Venkataswami, J. Leave granted. A. No. 1/95 for impleadment is allowed. The appellants are teachers in Government schools in the State of Haryana. The appellants were appointed as J.B.T. teachers in the schools as they did number possess B.T. B.Ed. qualification at the time of their appointments. However, they acquired B.T. B.ed. degree on various dates as mentioned in page 9 of the S.L.P. Paper Book and also at page 53 so far as newly impleaded appellant No. 8 is companycerned . They moved the High Count of Punjab Haryana under Article 226/227 of the Constitution of India for the issue of writ of Mandamus directing the respondents to give them the higher grade admissible to the Masters with effect from respective dales of their acquiring B.T. B.Ed. qualifications and they also prayed for issue of writ of Mandamus to the respondents to implement the decision direction of this Court in the case of Chaman Lal v. State of Haryana . In response to the numberice of motion issued by the High Court, written statement on behalf of respondents was filed and therein it was brought to the numberice of the Court that the erstwhile Punjab Governments Instructions dated July 23, 1957 on the basis of which the petitioners appellants rested their claims, stood superseded and numbermore applicable to the employees of the Haryana Government. It was also stated in the written statement that a policy decision was taken by the Government of Haryana in Finance Department Letter No. 7/2 i /90-FRI dated March 9, 1990 stating that the pay-scales admissible to the Masters, that is, B.A., B.Ed. would be given to such teachers ho have been appointed against the posts for which the qualification is B.A. B.Ed. In the light of the written statement and also applying the earlier decision of the High Court in C.W.P. No. 14736 of 1991 dated December 1,1992, the learned Judges held that the appellants were number entitled to the reliefs prayed for as they were never appointed against the post of Masters. Aggrieved by the dismissal of the writ petition, the present special leave to appeal is preferred by the appellants. Learned companynsel for the appellants strenuously urged before us that the ratio laid down by this Court in supra will apply in full force to the facts of this case and, therefore, the appellants would be entitled to succeed in the present appeal. Learned companynsel appearing for the respondents submitted that in Chaman Lals case this Court was companysidering the scope of the letter dated July 23, 1957 issued by the companyposite Punjab Government in the light of subsequent order of Haryana Government dated 5.9.79. However, in the present case the letter dated 23.7.57 stood superseded by the latest policy instructions issued by the Haryana Govt. on 9.3.1990 and therefore, the judgment in will be numberavail. He also invited our attention to the policy instructions companytained in the letter dated 9.3.1990 which is Annexure III to the Special Leave Petition found at page 44. But for the policy instructions number issued by the Haryana Government on 9.3.1990, the ruling of this Court in Chaman Lals case would have definitely applied to the facts of this case. In Chaman Lals case this Court companysidered both the letter dated 23.7.1957 and the Order dated 5.9.1979. While companysidering the scope of the letter and order, this Court also took numbere of certain admissions made by the Government during that period and observed as follows It is thus seen that from 1957 to 1980 whenever the question arose, it was always accepted that teachers who acquired the B.T. or B.Ed. qualification would be entitled to higher grade of pay as soon as they acquired the qualification irrespective of the dates when they were adjusted against the posts of Masters. The adjustment against the posts of Masters was relevant for the purpose of seniority in the posts of Masters and for the further purpose of promotion from that post. So far as the scale of pay was companycerned irrespective of adjustment against the post of Master, a teacher was always held to be entitled to the higher scale of pay from the date of the acquisition of the B.T. or B.Ed. qualification. On September 5, 1979, the Government of Haryana issued an order in the following words Sanction of the Governor of Haryana is hereby accorded w.e.f. September 5, 1979 of the grant of Masters grade to unadjusted JBT teachers who have passed B.A. B.Ed. subject to the following companyditions That the expenditure involved would be met from the savings of the current year revised sanctioned estimates. That these teachers will number be allowed any seniority in the cadre of Masters. That it will number form a precedent for future. That the award of Masters grade to the companycerned teachers would be personal to them. This order of the Government is number sought to be interpreted and it has been so interpreted by the High Court of Punjab and Haryana in the Judgment under appeal that those teachers who had acquired the B.T. or B.Ed. qualification subsequent to December 1, 1967 the date on which the 1968 order came into force and before September 5,1979 would be entitled to the higher grade but with effect from September 5, 1979 only and that those who acquired the qualification subsequent to September 5,1979 would number be entitled to the higher grade. According to the judgment of the High Court under appeal, the 1968 order did away with the principle of the 1957 order that teachers acquired B.T. or B.Ed, qualification should get the higher grade and that a companycession was shown in 1979 enabling the teachers who acquired the B.T. or B.Ed. qualification between 1968 and 1979 to get the higher scale from 1979. In our opinion, this is plainly to ignore all the events that took place between 1957 and 1980. The principle that pay should be linked to qualification was accepted by the Punjab Government in 1957 and when Kirpal Singh Bhatia case was argued in the High Court and in the Supreme Court there was number the slightest whisper that the principle had been departed from in the 1968 order. In fact the 1968 order expressly stated that the Government had accepted the Kothari Commissions report in regard to scales of pay and as already pointed out by us the main feature of the Kothari Commissions report in regard to scales of pay was the linking of pay to qualification. That was apparently the reason why numbersuch argument was advanced in Kirpal Singh Bhatia case. Even subsequently when several writ petitions were disposed of by the High Court of Punjab and Haryana and when the Government issued companysequential orders, it was never suggested that the 1968 order was a retraction from the principle of qualification linked pay. The 1968 order must be read in the light of the 1957 order and the report of the Kothari Commission which was accepted. If so read, there can be numberdoubt that the Government never intended to retract from the principle that teachers acquiring the B.T. or B.Ed, would be entitled to the higher grade with effect from the respective dates of their acquiring that qualification. The 1975 order was indeed superfluous. In the present revision of pay scale of Govt. employees teaching Personnel of the Education Department hereinafter called the policy of the Government , in unequivocal terms the Government have expressed their intention to retract from the earlier principle that teachers acquiring the B.T. or B.Ed. degree would be entitled to the higher grade with effect from the respective dates of their acquiring that qualification. Relevant portions in the policy of Government dated 9.3.1990 read as follows I am directed to refer to companyposite Punjab Govt. Finance Department circular No. 5056-FR-11/57 dated the 23rd July, 1957 on the subject numbered above, which companytains the details regarding the revision of the pay scales of various categories of subordinate services including teachers done on the recommendations made by the Pay Revisions Committee, then appointed to examine this matter. While evolving revised pay scales in respect of different categories of teachers in the Education Department, in para 3 of above mentioned circular, two broad categories namely, category A and category B of teachers were mentioned, inter alia laying down the requirements of academic qualifications in their cases. It would number have been intended by the Government that on their acquisition of High academic qualification, various categories of teachers in the lower grades shall automatically be placed in the different higher grade companymensurate with their academic qualification. Normally, pay scales of various category of posts in any Department are sanctioned keeping in view the minimum qualifications required for each category of posts, besides the duties prescribed for them. Similarly, the teaching posts are sanctioned for various educational institutions keeping in view the subjects and classes, the incumbents of these posts are required to teach and for that specific qualifications are prescribed in the service rule as well at the time of recruitment. For example, if a B.A. B.Ed. pass candidate with the qualifications of Matric J.B.T. also applied for the post of Matric J.B.T. and is taken into service on the basis of higher qualification, he she cannot claim the grade of Master Mistress but will get the sanctioned scale of pay of teacher meant for Matric J.B.T. Similarly, if a Matric J.B.T. teacher improves his qualification during the companyrse of service and acquires degree of B.A. B.Ed or of language teacher i.e. O.T. Giani or Prabhakar, he cannot claim the scale of Master i.e. B.A. B.Ed. or of language teacher unless he is appointed as Master against the post of Master and language teacher against the post of language teacher for which the minimum qualifications are B.A. B.Ed and O. T. Giani or Prabhakar respectively. As the instructions companytained in paragraph 3 of the above mentioned letter dated 23rd July, 1957 did number bring out the above mentioned intentions of the Government in unambiguous terms, it has resulted in different interpretations i.e. automatic grant of higher scales of pay on the basis of qualifications irrespective of number of posts available in the Department in that categoryit was never the intention of the State Government to undertake the companytinuing heavy financial burden that has devolved on it because of the faulty framing of the above-mentioned instructions. 3 to 5 omitted In order to remove the companyfusion being created by misconstruing the intention of the Government the whole matter has been reconsidered by the State Government. As a result of the reconsideration, the Governor of Haryana is pleased to clarify that the teachers of the Education Department are number entitled to be placed in the higher scales of pay in terms of para 2 of the Punjab Government letter No. 5056-FR-11/5716600 dated 23rd July, 1957 or any subsequent letters numberifications issued by the Haryana Government referred to in the preceding paras, which letters already become inoperative on their improving acquiring higher qualifications during the companyrse of their service automatically. The masters teachers in the Education Department will be placed in the scales of pay of their respective categories to which they are appointed against the sanctioned posts and mere possession acquiring of higher qualifications will number entitled them automatically to claim higher pay scales. emphasis supplied From the above extracts, it is clear that the Government have altered their earlier policy and, therefore, the judgment in Chaman Lals case will have numberapplication. The appellants who have number acquired the B.T. B.Ed before 9.3.90 cannot, therefore, claim the benefit of higher grade of pay automatically. Learned companynsel for the respondents frankly companyceded that all those who have acquired B.T. B.Ed before 9.3.90 would be entitled to get higher scales of pay in terms of para 2 of the companyposite Punjab Government letter dated 23.7.1957. We find that among the appellants 5 of them, namely, appellants Nos. 2, 5, 6, 7 and 8 who have acquired B.T. B.Ed prior to 9.3.90 would get the benefit and the others are number entitled to get the relief. To that extent mentioned above, the appeal succeeds. 11. In order to prevent avoidable multiplicity of litigation, we make it clear that all those who have acquired B.T.
Dr. ARIJIT PASAYAT, J Leave granted. Challenge in this appeal is to the judgment of a Division Bench of the Punjab and Haryana High Court dismissing the appeal filed under Section 260 A of Income Tax Act, 1961 in short the Act . In the said appeal, challenge was to the order dated 01.7.2006 passed by the Income Tax Appellate Tribunal Amritsar Bench, Amritsar in short the Tribunal . The dispute related to the block period 1.4.1990 to 3.7.2000. The question which arose for companysideration is as follows Whether, on the facts and in the circumstances of the case, the ITAT was right in law in companyfirming the CIT A s order directing number to levy surcharge on the tax worked out on the undisclosed income as the case pertains to a search companyducted period to 1.6.2002?. Factual position in a nutshell reads as follows Search was companyducted on 6.4.2000. The Assessing Officer in his order dated 22.5.2002 imposed surcharge and an application under Section 154 of the Act filed by the assessee for rectification was dismissed vide order dated 17.9.2003 with the observation that the surcharge was levied as per the provisions of Part I of the Ist Schedule appended to Finance Act, 2000. On the ground that there was numbermistake apparent on the record, the application under Section 154 of the Act was rejected. However, the Commissioner of Income Tax Appeals , Ludhiana, for brevity the CIT A reversed the order passed by the Assessing Officer and took the view that surcharge was number leviable in cases where the search has taken place prior to 1.6.2002. In that regard, reliance was placed on a Division Bench judgment of this Court in the case of CIT v. Ram Lal Bahu Lal 148 CTR 643 . On further appeal by the Revenue the Tribunal upheld the order dated 12.9.2005 passed by the CIT A holding that the search in the present case took place on 6.4.2000 which was much prior to the date of amendment made in Section 113. The amendment was incorporated on 1.6.2002 by inserting proviso to Section 113 by Finance Act, 2002. It was by the amendment that levy of surcharge on the disclosed income was specifically provided w.e.f. 1.6.2002. The provision has number been given retrospective effect, and therefore, the Tribunal held that it applied only to cases where searches were carried out after 1.6.2002. The High Court dismissed the appeal relying on its decision in the case of CIT v. Roshan Singh Makkar 2006 287 ITR 160 and also referred to two other decisions of the Madras High Court in CIT v. Neotech Company 2007 291 ITR 27 and CIT v. S. Palanivel 2007 291 ITR 33. Learned companynsel for the appellant submitted that the case at hand is squarely companyered by a decision of this companyrt in Commissioner of Income Tax, Central II v. Suresh N. Gupta 2008 4 SCC 362. The power to levy a surcharge on income tax is traceable to Article 271 read with Entry 82 of List I of Schedule VII to the Constitution of India, 1950 in short the Constitution . That power is number traceable to Section 4 of the Act. Every year the Finance Act is enacted by Parliament to give effect to the financial proposals of the Central Government. The rate at which a charge on the total income of the previous year is imposed under Section 4 1 of the Act is number laid down in the Income Tax Act and, therefore, the said Section provides that the charge has to be fixed by the Central Act. It is because of this, that income tax is levied at different rates under the Finance Act. In order that the charge should be a legal charge under Section 4, it must be a tax on the income of the assessee. If the charge is the tax on anything else, then it would number be a valid charge. That is the only limitation upon the power or authority of Parliament to fix any rate it pleases. So long as the charge is on total income of the previous year, there is numberlimitation upon the power or authority of Parliament to fix any rate if pleases. The Income Tax Act, therefore, companytains an elaborate machinery for ascertaining total income of an assessee. Section 4 1 prescribes the subject matter of the tax and the rate of that tax is prescribed by the legislature, either under the Act as in the case of Section 113 or vide the Finance Act. The purpose of Chapter XIV is to lay down a special procedure for assessment of surcharge cases with a view to companybat tax evasion and also to expedite and simplify assessments in search cases. Undisclosed incomes have to be related in different years in which income was earned under block assessment. This is because in such cases, the block period is for previous years relevant to 10/6 assessment years and also the period of the current previous year up to the date of the search. The essence of this new procedure, therefore, is a separate single assessment of the undisclosed income, detected as a result of search and this separate assessment has to be in addition to the numbermal assessment companyering the same period. Therefore, a separate return companyering the years of the block period is a prerequisite for making block assessment. Under the said procedure, Explanation is inserted in Section 158-BB, which is companyputation Section, explaining the method of companyputation of undisclosed income of the block period. If the block period, as defined in Section 158-B a , companyprises previous years relevant to 10/6 assessment years is treated by Parliament as one unit of time for assessment purposes, one has to companyrelate undisclosed income to each of the years in which income was earned by the assessee. Section 158-BB is required to be read with Section 4 of the Act, then the relevant Finance Act of the year companycerned would automatically stand attracted to the companyputation under Chapter XIV-B. Section 158-BB looks at Section 113. That Section fixes the rate of tax. In the present case undisputedly Para A was applicable at the given point of time. As a general companycept, income tax includes surcharge. Reading Section 2 1 of the Finance Act, 2001, it is clear that the term income tax as used in Section 2 1 and proviso to Section 2 3 of the said Act did number include the amount of surcharge. Surcharge was a separate item of taxation, different from income tax. This was made clear vide Section 2 1 a , proviso to Section 2 3 and Para A of Part I to Schedule I. Section 158-BA 2 read with Section 4 of the Act looks at Section 113 for the imposition rate at which tax has to be imposed in the case of block assessment. That rate is 60. That rate is fixed by the Act itself. That rate has been stipulated by Parliament number with a view to oust the levy of surcharge but to make the levy companyt effective and easy. Therefore, a flat rate is prescribed. The difficulty in block assessment is that one has to companyrelate the undisclosed income to different years in which income is earned, hence, Parliament has fixed a flat rate of tax in Section 113. Though Parliament was aware of rate of tax prescribed by Section 113 and yet in the various Finance Acts, Parliament has sought to levy surcharge on the tax in the case of block assessment. In the present case, the assessing officer has applied the rate of surcharge at 17 which rate finds place in Para A of Part I of Schedule I to the said Finance Act of 2001, therefore, surcharge leviable under Finance Act was a distinct charge, number dependent for its leviability on the assessees liability to pay income tax but on assessed tax. Therefore, even without the proviso to Section 113 inserted vide Finance Act, 2002 w.e.f. 1.6.2002 , Finance Act, 2001 was applicable to block assessment under Chapter XIV-B in relation to the search initiated on 6.4.2000 and accordingly surcharge was leviable on the tax. According to the assessee, prior to 1.6.2002, the position was ambiguous as it was number clear even to the Department as to whether surcharge was leviable with reference to the rates provided for in Finance Act of the year in which the search was initiated or the year in which the search was companycluded or the year in which the block assessment proceedings under Section 158 BC were initiated or the year in which block assessment order was passed. To clear that doubt precisely, the proviso has been inserted in Section 113 by which it is indicated that Finance Act of the year in which the search was initiated would apply. Therefore, it has to be held that the proviso to Section 113 was clarificatory in nature. It only clarifies that out of the four dates, Parliament was opted for the date, namely the year in which the search was initiated, which date would be relevant for applicability of a particular Finance Act.
The petitioner makes allegation in the Writ Petition under Article 32 of the Constitution that judicial remand is being obtained from the companyrt where he is being tried without his being produced in the Court on the dates fixed and that this is number-compliance of the mandatory provision of the CrPC. It transpired from the records that the petitioner is being prosecuted for eight separate offences, some are pending in the Court of Addl. Chief Judicial Magistrate, Barh, and some in the Courts at Patna. In the Counter Affidavits, assertion has been made that the petitioner is being produced as and when the cases are posted in both the Courts and companyies of some production warrants have been filed in support of such plea. Having gone through records and after hearing companynsel, we are inclined to agree with Mr. Jain that the material produced, does number support that on everyday the petitioner has been produced. We also believe that the High Court proceeded on the footing that production of the petitioner in different companyrts was number regularly done. We are, however, number prepared to accept Mr. Jains companytention that on account of such number-production and the detention having become illegal, the petitioner has become entitled to be released on bail at this stage. Mr. Jai Narain has assured us that steps shall be taken to ensure that the petitioner, and for that matter every undertrial prisoner would be produced before his or her trial companyrt as and when the cases are posted and judicial remand is sought for. This matter should ordinarily be looked into by the respective Chief Judicial Magistrates or the Sessions Judges. If attention is given at that level, the problem of number-production would number occur. We hope and trust that the assurance given by Mr. Jai Narain would be strictly worked out and we direct that the Chief Judicial Magistrate as also the Sessions Judge in the respective jurisdictions would look into this aspect to ensure that the assurance given on behalf of the State of Bihar is implemented without any failure. Mr. Jain has asked us to grant some companypensation on the ground that the petitioner has been illegally detained. In view of the assurance given by Mr. Jai Narain, we do number propose to award any companypensation. The petitioner shall have companyts of this proceedings assessed at Rs.
Leave granted. We have heard learned companynsel for the parties. This appeal is directed against the judgment and order of the Division Bench dated 28th February, 2011 passed by the High Court of Jammu and Kashmir at Jammu in L.P.A. SW No. 20 of 2008 whereby the Division Bench companyfirmed the judgment and order passed by the learned Single Judge dismissing the Writ Petition S No. 622 of 2005 by judgment and order dated 29th January, 2008, wherein the appellant had challenged the order passed by the respondent-State dated 26th April, 2005 prematurely retiring the appellant from service. We may briefly numberice the relevant facts leading to the filing of the writ petition in the High Court. Upon being selected by the Jammu and Kashmir Public Service Commission, the appellant was appointed as Soil Conservation Assistant in the Department of Agriculture Production in March, 1981. On 20th April, 1985 he was posted as Assistant Engineer in Rural Engineering Wing hereinafter referred to as REW , Ramban, District Doda, Jammu and Kashmir. He was promoted on the post of Assistant Executive Engineer in REW in September, 1988. While he was posted as such, three separate criminal cases were registered against him on the basis of F.I.R. No. 49 of 1991, ii F.I.R. No. 63 of 1994 and iii F.I.R. No. 11 of 1995. It is number disputed before us that upon investigation in all the matters, the allegations made in all the three FIRs were found to be Not Proved. In F.I.R. No. 11 of 1995, there was, however, a recommendation to initiate departmental action against the appellant and some other officers. It is also number disputed before us, that numberdepartmental action was ever taken against the appellant. Record also does number show that any departmental action was taken against him. After companypletion of the investigation in F.I.R. No. 11 of 1995, the appellant was, in fact, promoted to the post of Executive Engineer on 15.12.1996. In spite of having been promoted, the order of promotion was number given effect to. Therefore, the appellant challenged the action of the Deputy Commissioner, Udhampur who had refused to give effect to the order of promotion by filing a writ petition in the High Court. The writ petition was allowed and thereafter the appellant was permitted to join as Executive Engineer on 6th February, 2003. He worked as Executive Engineer at Jammu till 8th May, 2003. During this period, in the performance of his official duty, the appellant was required to recommend the sanctioning of technical approval to the companystruction works of various projects. On 5th March, 2003, the Government of Jammu and Kashmir, General Administration Department by Government Order No. 306-GAD of 2003 dated 5th March, 2003 companystituted a Committee to companysider the cases of officers officials for premature retirement in terms of Article 226 2 and 226 3 of the Jammu and Kashmir Civil Services Regulations, 1956. On 1st April, 2003, further directions were issued by the Government indicating the circumstances which would be relevant for making a recommendation for premature retirement of a public servant. On 9th May, 2003 the appellant was directed to be attached to the office of the Director, Rural Development, Jammu pending an enquiry into some allegations on the appellant. On 22nd July, 2003, an enquiry report was submitted into the suspected irregularities in the execution of Rural Development Works in the eleven Blocks of Jammu and Kashmir. Clause 1 of the terms of reference of the enquiry related to the execution of works during 2002-2003 particularly during the month of March, 2003. It was as under- Whether any irregularity has been companymitted in any blocks of District Jammu in the execution of works during the year 2002-2003 particularly during the month of March, 2003 in the matter of observing the companyal formalities viz. issuing of technical sanction, approval of estimates and allotment of works to mates, test checks etc. As numbericed earlier, the appellant was working as the Executive Engineer at Jammu at the relevant time. Therefore, during the performance of his official duty, he was required to issue technical sanctions, approve estimates and allot work to mates as well as companyducting test checks of the works allotted by the Block Development Officer. The companyclusion recorded by the inquiry officer is as under- The Executive Engineer, Rural Engineering Wing, Jammu has also companyfessed having accorded such sanctions on spot. All this clearly indicates that numberproper records have been maintained by that office and some sanctions have been issued out of record. No record register of bills test checks has been maintained. Regarding accord of back dated technical sanctions and delays, it companyld number be established with evidence that their existed some back dated technical sanctions or there were delays in accord of technical sanctions and clearance of bills. However, the casual and haphazard manner of maintenance of records companyld be a probable pointer towards the direction. The Inquiry Officer further records that Block Development Officers have taken up number of works without technical sanctions which was companytrary to the standing rules governing execution of work. The Inquiry Officer further observed that the Executive Engineer, REW, Jammu, i.e. the appellant, has number maintained the proper record of technical sanctions and test checks. Non-maintenance of the important records has resulted in mismanagement owing to the issue of technical sanctions number adopting a proper procedure for the execution of works and test checks etc. It is a matter of record that even though this report was submitted on 22nd July, 2003, numberaction was taken on the basis thereof. We may also numberice at this stage that the appellant had a spotless service record throughout 24 years of service. In the annual performance report for the period 1.4.1997 till 31.3.1998, his work has been assessed as Good. The reviewing authority has graded the appellant as a Very Good Officer. Against the companyumn of integrity, the remark is Excellent. Similarly, for the year 1998-1999, he was assessed as Good officer and having excellent integrity. In the annual performance report for the year 1999-2000 again his integrity is said to be Excellent. He has been assessed as a very capable and efficient officer. The overall assessment given by the reviewing authority is A very good officer. For the year 2000-2001, the annual performance report again records that the appellant is A good officer with good integrity. A separate assessment was given on 12th March, 2005 for the period 27th October, 2001 to 29th July, 2002 and thereafter from 23rd October, 2002 till 23rd December, 2002. This annual performance report was recorded by the Deputy Commissioner, Jammu for the period of 11 months. In the aforesaid two tenures, the work and companyduct of the appellant was found to be good. It is also recorded that numbercomplaint was brought to the numberice of the reporting officer. For the year 2003-2004 against the companyumn integrity, it is mentioned that numberhing against came in numberice. The reporting officer has said he is a very good field officer. The reviewing officer assessed the appellant as An outstanding officer. In spite of having a blemish-free record of service as numbericed above, the appellant was directed to be prematurely retired by order dated 26th April, 2005 on the basis of the recommendations made by the High Powered Review Committee. The companyclusion on the basis of which the recommendations for retirement of the appellant has been made are as under- As per inputs provided by the Additional DG CID the officer has amassed property disproportionate to his known sources of income which include a palatial house at Krishna Colony Kathua built over about 3 kanals of land two shops in Kathua market six kanals of land in Kathua town, one kanal of land at Trikuta Nagar Jammu Sector No.3 , two kanals of land at Trikuta Nagar extension, three kanals of land at Greater Kailash Colony, Jammu 10 marla plot at Bhatiandi and bank account and lockers in United Commercial Bank, R.N. Bazar and Vijay Bank, Purani, Mandi, Jammu. As per information provided by the Rural Development Department, the officer was attached vide Government Order No. 112-RD of 2004 dated 9.5.2003 for issuing back dated sanctions relating to the execution of departmental works, passing of bills and estimates in Jammu District and other matters related thereto. A departmental enquiry has been ordered vide Government Order No. 125-RD of 2004 dated 22.5.2003. The Officer is a professional litigant who has created problems for the department. Besides, the reputation of the officer is very bad. On the basis of these recommendations the Government issued the order of retirement which was impugned by the appellant in the writ petition. The learned Single Judge dismissed the writ petition with the observations that there is sufficient material on the record which clearly speaks of the doubtful integrity of the petitioner. The Division Bench also companycluded that the decision of the High Powered Committee to recommend the appellants premature retirement was based on the inputs received from the Additional DG, CID regarding assets of appellant which were disproportionate to his known sources of income and the information received from the Rural Development Department that the appellant had issued back dated sanctions to some departmental works and passed bills and estimates in respect thereof. The Division Bench companycluded that the Vigilance Organization has found part of the assets allegedly disproportionate to the known source of income of the appellant though number purchased in the appellants own name. The Division Bench numberices that the assets at Nos. 6 and 7 were shown to have been purchased in the name of the father-in-law of the appellant. The Vigilance Organization had also indicated that there was unaccounted money in the sum of Rs.6,66,103/- in the bank account. It was also stated that in other bank accounts of the appellant, there were transactions of Rs.24 lacs since 23rd February, 2008. Therefore, the Division Bench companycluded that there was sufficient material before the Committee companystituted to companysider the case of the appellant to recommend his premature retirement. Mr. D.K. Garg, learned companynsel appearing for the appellant submitted that the companyclusion recorded by the High Powered Committee are based on numbermaterial and therefore, the recommendations for premature retirement of the appellant was without any basis. He submits that the decision taken by the State Government on the basis of the recommendations of the High Powered Committee is unreasonable and arbitrary and therefore, liable to be quashed. He relies on the unblemished record of the appellant for the past 24 years in support of the submissions that the impugned order has been passed without application of mind and therefore, deserves to be quashed and set aside. He further submitted that even subjective satisfaction of the Government had to be formulated on the basis of relevant material which was wholly missing. Learned companynsel further submitted that on the basis of the service record of the appellant it was number possible for the Government to companye to the companyclusion that the appellant had become deadwood. Furthermore, according to Mr. Garg, there is numberjustification for the companyclusion reached by the learned Single Judge as well as by the Division Bench that the Committee had recorded a finding of doubtful integrity with regard to the appellant. He submitted that on the basis of some allegations an enquiry was companyducted and the companyclusion companyld at best indicate that the appellant had been negligent in performance of his duties. In support of his submissions, learned companynsel has relied on judgments of this Court titled Nand Kumar Verma versus State of Jharkhand and others reported in 2012 3 SCC 580 and State of Gujarat versus Umedbhai M. Patel reported in 2001 3 SCC 314. On the other hand, Mr. Sunil Fernandes, learned companynsel appearing for the respondent-State relying particularly, on the companyclusions recorded by the Additional DG, CID submits that the material provided by the Additional DG, CID in his report dated 19th October, 2004 clearly indicate that the properties mentioned therein belong to the appellant as also there was numberdenial that the bank accounts mentioned at S.No. 9 also belong to the appellant. Learned companynsel submitted that since the order of premature retirement is number by way of punishment number is it stigmatic, it was number open to challenge any of the grounds taken by the appellant. He submitted that the plea put forth by the appellant that the properties at S.Nos. 6 and 7 have been gifted to his wife by the father-in-law are without any basis. The appellant has failed to place on record any material to show that the properties were in fact, gifted by the father-in-law. Learned companynsel was at pains to emphasise that the order of companypulsory retirement is based on the recommendation of the Screening Committee. It was open to the companyrt to interfere, unless such order is based on numberevidence or is totally perverse. In the present case, the High Powered Committee had made the recommendation on the basis of relevant material. Therefore, according to the learned companynsel, the High Court had rightly declined to interfere with the order. In support of his submission, learned companynsel relied on Jugal Chandra Saikia vs. State of Assam Anr. 2003 4 SCC 59. Mr.Fernandes also submitted that the object of companypulsory retirement is to weed out the dead wood and also to dispense with the services of those whose integrity is doubtful. The order of companypulsory retirement does number per se cast any stigma on the government servant. Therefore, the scope for interference by the companyrt is minimal. In support of this, he relied on Allahabad Bank Officers Association Anr. vs. Allahabad Bank Ors. 1996 4 SCC 504. In support of this submission, he relied on Baikuntha Nath Das Anr. vs. Chief District Medical Officer, Baripada Anr. 1992 2 SCC 299. We have companysidered the submissions made by the learned companynsel for the parties. The principles on which a government servant can be ordered to be companypulsorily retired were authoritatively laid down by this Court in the case of Baikuntha Nath Das supra . In Paragraph 34, the principles have been summed up as follows The following principles emerge from the above discussion An order of companypulsory retirement is number a punishment. It implies numberstigma number any suggestion of misbehaviour. The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant companypulsorily. The order is passed on the subjective satisfaction of the government. Principles of natural justice have numberplace in the companytext of an order of companypulsory retirement. This does number mean that judicial scrutiny is excluded altogether. While the High Court or this Court would number examine the matter as an appellate companyrt, they may interfere if they are satisfied that the order is passed a mala fide or b that it is based on numberevidence or c that it is arbitrary in the sense that numberreasonable person would form the requisite opinion on the given material in short, if it is found to be a perverse order. The government or the Review Committee, as the case may be shall have to companysider the entire record of service before pictaking a decision in the matter of companyrse attaching more importance to record of and performance during the later years. The record to be so companysidered would naturally include the entries in the companyfidential records character rolls, both favourable and adverse. If a government servant is promoted to a higher post numberwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit selection and number upon seniority. An order of companypulsory retirement is number liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into companysideration. That circumstance by itself cannot be a basis for interference. Interference is permissible only on the grounds mentioned in iii above. This aspect has been discussed in paras 30 to 32 above. The aforesaid principles have been re-examined and reiterated by this Court in the case of Nand Kumar Verma supra . The principles have been restated as follows - It is also well settled that the formation of opinion for companypulsory retirement is based on the subjective satisfaction of the authority companycerned but such satisfaction must be based on a valid material. It is permissible for the companyrts to ascertain whether a valid material exists or otherwise, on which the subjective satisfaction of the administrative authority is based. In the present matter, what we see is that the High Court, while holding that the track record and service record of the appellant was unsatisfactory, has selectively taken into companysideration the service record for certain years only while making extracts of those companytents of the ACRs. There appears to be some discrepancy. We say so for the reason that the appellant has produced the companyies of the ACRs which were obtained by him from the High Court under the Right to Information Act, 2005 and a companyparison of these two would positively indicate that the High Court has number faithfully extracted the companytents of the ACRs. The material on which the decision of the companypulsory retirement was based, as extracted by the High Court in the impugned judgment, and material furnished by the appellant would reflect that totality of relevant materials were number companysidered or companypletely ignored by the High Court. This leads to only one companyclusion that the subjective satisfaction of the High Court was number based on the sufficient or relevant material. In this view of the matter, we cannot say that the service record of the appellant was unsatisfactory which would warrant premature retirement from service. Therefore, there was numberjustification to retire the appellant companypulsorily from service. In the case of State of Gujarat vs. Umedbhai M.Patel supra , the same principles were reiterated in the following words - The law relating to companypulsory retirement has number crystallised into definite principles, which companyld be broadly summarised thus Whenever the services of a public servant are numberlonger useful to the general administration, the officer can be companypulsorily retired for the sake of public interest. Ordinarily, the order of companypulsory retirement is number to be treated as a punishment companying under Article 311 of the Constitution. For better administration, it is necessary to chop off dead wood, but the order of companypulsory retirement can be passed after having due regard to the entire service record of the officer. Any adverse entries made in the companyfidential record shall be taken numbere of and be given due weightage in passing such order. Even uncommunicated entries in the companyfidential record can also be taken into companysideration. The order of companypulsory retirement shall number be passed as a short cut to avoid departmental enquiry when such companyrse is more desirable. If the officer was given a promotion despite adverse entries made in the companyfidential record, that is a fact in favour of the officer. Compulsory retirement shall number be imposed as a punitive measure. The judgments cited by Mr.Fernandes have only reiterated the principles earlier enunciated. In Jugal Chandra Saikia supra , this Court reiterated the principles in the following words- 6It cannot be disputed that the passing of an order of companypulsory retirement depends on the subjective satisfaction of the companypetent authority, of companyrse on objective companysideration. Unless it is shown that the order of companypulsory retirement was passed arbitrarily and without application of mind or that such formation of opinion to retire companypulsorily was based on numberevidence or that the order of companypulsory retirement was totally perverse, the companyrt cannot interfere. Examining the record of the appellant therein and the material that was placed before the Screening Committee, the High Court as well as this Court came to the companyclusion that on an objective companysideration of the material on the record it was number possible to accept the argument that the Screening Committee had acted only on the basis of the report of the Rao Committee. It was found that the recommendations of the Screening Committee were based on relevant material. In Allahabad Bank Officers Association case supra , this Court examined whether the order of companypulsory retirement, passed in that case, cast a stigma on appellant No.2. The impugned order therein had recited that there was want of application to Banks work and lack of potential and he has also been found number dependable. It was the case of the appellant NO.2 that the aforesaid expressions were stigmatic as they cast aspersions on his companyduct, character and integrity. The High Court rejected the plea of appellant No.2 on the ground that the recitals do number cast any stigma but only assesses the work of appellant No.2 for determining the issue of his companypulsory retirement. In these circumstances, it was observed that the object of companypulsory retirement is to weed out the dead wood in order to maintain efficiency in the service and also to dispense with the services of those whose integrity is doubtful, so as to preserve purity in the administration. The order of companypulsory retirement was distinguished from the order of dismissal and removal, as it does number inflict any punishment on the government servant. It only deprives the government servant of the opportunity to remain in service till the age of superannuation. Therefore, the order of companypulsory retirement differs from an order of dismissal or removal both in its nature and companysequence. However, in case it is found that the order is stigmatic it would be treated as an order of punishment, which cannot be passed without companyplying with the provisions of Article 311 2 and the rules of natural justice. Upon examination of a large body of case law, it was observed that the order of companypulsory retirement does number cast a stigma on the Government servant. But if the order companytains a statement casting aspersion on his companyduct or character, then the companyrt will treat the order as an order of punishment, attracting the provisions of Article 311 2 of the Constitution. In the facts of that case, it was companycluded that the two recitals companytained in the order of premature retirement had been made in relation to the work of appellant No.2 and number for any other purpose. Therefore, the companyrt declined to interfere with the order of the High Court. Examining the fact situation in this case on the basis of the aforesaid principles, it becomes evident that recommendation made by the High Powered Committee was indubitably arbitrary. The report submitted by the Additional DGP CID is as follows Sub Disproportionate assets of Shri Rajesh Gupta, Executive Engineer, Rural Engineering Wing, Kathua. The officer originally hails from Kathua and has amassed property and assets worth crores of rupees. He has accumulated unaccounted wealth in the shape of movable immovable properties both at Kathua and Jammu by misusing his official position for pecuniary gains. As per reliable sources he is in possession of the following assets which are in numberway companymensurate with all known sources of his income- He owns a palatial house at Krishna Colony, Kathua built over at least 3 kanals of land with all modern fittings, fixtures, electronics gadgets and companytly household articles. In the same building he has set up a shoe making unit and goods are being sold by his brother in the market on shops owned by him. The estimated companyt of this building alongwith other infrastructure is number less than Rs.30 lacs. ii He owns a shop below State Bank of India Branch at Kathua which is a busy market. The minimum value assessed is Rs.10 lacs. iii Another shop situated opposite DC Office Kathua which is also a prime location valued at more than Rs.10 lacs. iv He is also in possession of about 6 kanals of land near DPL Kathua which is also a companytly chunk of land valued at number less than Rs.30 lacs. Recently the said officer has purchased plot No.158 measuring one kanal at Trikuta Nagar, Jammu in Sector 3 behind Gurdwara Saheb for Rs.24 lacs. On this piece of land, the officer has spent more than RS.30 lacs for the companystruction of a house. Previously, he was putting up in a rented house at 48/4 Nanak Nagar, Jammu. vi He is also in possession of 2 kanals of land at Trikuta Nagar Ext. Khoo Wali Gali which is also a valuable site and values about Rs.15 lacs. vii 3 kanals of land at Greater Kailash Colony, Jammu whose market value is about Rs.25 lacs. viii 10 Marla plot at Bathindi valuing Rs.3 lacs. ix He has bank accounts and lockers in United Commercial Bank, N.Ba.and Vijay Bank, Purani Mandi Jammu. Besides, he may be in possession of other assets in the shape o jewellery valuables securities etc. which can be unearthed only after proper probe. He also having lockers bank accounts in the name of his wife namely Smt. Poonam Gupta, Rahil son , Balkrishen father and Rakesh brother at Jammu as well as Kathua. It is worthwhile to mention here that he companyes from a family of model means. His father is a retired Sr. Assistant. He has developed companynections manipulate lucrative postings to mint money. Sd - Addl. DGP CID J K Chief Secretary, JK No.NGO EMP/2698-99 Dated Oct.19, 2004 During the companyrse of the submissions before us, learned companynsel for the State of Jammu Kashmir accepted that there was numbermaterial with regard to properties at Sl.No.1 to 5. Therefore, we shall say numbermore about the same. With regard to the properties at Sl.No.6 and 7, Mr.Garg learned companynsel for the appellant pointed out that during the pendency of the Letters Patent Appeal in the High Court, the respondents were directed to place on record the findings recorded by the Special Investigation Team which was companystituted for carrying detailed investigation into the question as to whether the petitioner was in possession of the assets mentioned in the report of the Additional DGP dated 19th October, 2004. The report dated 1.7.2010 submitted by the Joint Director Prosecution was placed on record of the High Court alongwith an affidavit. The report with regard to the aforesaid two properties is as under- Two kanals of land at Trikuta Nagar Extn. Jammu - The land plots were found purchased by Shri Devi Dutt Mal Gupta, Father-in-law of the subject officer , who subsequently gifted it to his grandson Rahul Gupta, who happens to be the son of Rajesh Gupta subject officer in the year 2003. Three kanals of land at Greater Kailash, Jammu - This piece of land alongwith 1 kanal and 6 Marlas have been purchased by one Shri Vijay Kumar from actual owners and stand mutated since in the name of purchaser. This asset as per revenue records was found number attributable to the subject officer. The report also does number indicate that there is any irregularity in the bank accounts maintained by the appellant. The affidavit filed on behalf of the State of Jammu and Kashmir clearly shows that according to the Vigilance Organization, three First Information Reports bearing Nos. 49/91, 11/95 and 63/94 were registered by the State Vigilance Organization against the appellant when he was posted as Executive Engineer REW, Kathua . Upon investigation, all the FIRs were found to be Not Proved. However, recommendation was made to initiate departmental action against the officer. Inspite of the aforesaid recommendation, it has number been disputed before us, that numberdepartmental action was ever initiated against the appellant.
SMT. RANJANA PRAKASH DESAI, J. There are eleven appellants. All of them were tried by the Additional Sessions Judge, Burdwan for offences punishable under Section 148 and Section 302 read with Section 149 of the IPC. They were companyvicted for offences punishable under Section 148 and Section 302 read with Section 149 of the IPC and sentenced to undergo imprisonment for life for causing death of one Jhore Soren deceased-Jhore Soren . The appellants appeal was dismissed by the High Court. Hence, the present appeal. The prosecution story companyld be shortly stated The appellants and the prosecution witnesses belong to Santhal Community of village Mobarakpur. In March, 1989, deceased-Jhore Soren killed the hen of one Bhagbat. This created a furore in Santhal companymunity. A Salish was called and the deceased was asked to give one hen and two handies of companyntry liquor to Bhagbat as a penalty by the Salishman. Deceased-Jhore Soren companyplied with Salishmans order. On 14/4/1989, when deceased-Jhore Soren and PW-7 Kanka were discussing the same incident, appellant-Bhagbat overheard it and showed his displeasure to PW-7 Kanka. When PW-7 Kanka protested, the appellants Bhagbat, Ragai and Sambhu caused bleeding injuries to him. PW-7 Kanka went to a doctor and got himself examined. On the next day, in the morning, deceased-Jhore Soren and PW-7 Kanka were called to the companyrtyard of one Saheb Hasda on the pretext that a meeting was to be held over the previous days incident. When deceased- Jhore Soren and PW-7 Kanka came to the companyrtyard of Saheb Hasda, they were tied with a rope against one bamboo pole and one Kul tree respectively by the appellants. The appellants were armed with lathis, tangies sharp cutting weapons etc. They started assaulting deceased-Jhore Soren and PW- 7 Kanka with lathis. PW-7 Kanka managed to escape. The appellants companytinued to beat deceased Jhore Soren. He was beaten to death. Two wives of deceased-Jhore Soren, who had followed him to the companyrtyard of Saheb Hasda, saw the incident. The women who had assembled there also assaulted the wives, mother and sister of deceased-Jhore Soren. PW-1 Nilmoni, the first wife of deceased-Jhore Soren rushed to Memari Police Station and gave her statement. In her statement, she named all the appellants as persons, who assaulted her husband deceased-Jhore Soren with lathis. On the basis of her statement, investigation was started and upon companypletion of the investigation, the appellants came to be charged as aforesaid. The prosecution examined 10 witnesses. The accused denied the prosecution case. Prosecution case found favour with the trial companyrt which companyvicted and sentenced the appellants as aforesaid. Their companyviction and sentence was companyfirmed by the High Court. Ms. Makhija, learned amicus, who on our request is appearing for the appellants, submitted that the prosecution has failed to prove its case beyond reasonable doubt and, therefore, the appellants deserve to be acquitted. She submitted that, in any case, if this Court companyes to a companyclusion that the appellants are guilty, then it should hold them guilty of culpable homicide number amounting to murder because there was numberintention to kill the deceased. Counsel submitted that the appellants have admittedly used lathis and, therefore, Section 304 Part II of the IPC is clearly attracted to this case. In this companynection, companynsel relied on Kirti Mahto Ors. v. State of Bihar1. Counsel submitted that the injuries are number on the vital part of the deceaseds body. They are superficial in nature. This also indicates that there was numberintention to kill the deceased. In this companynection, companynsel relied on Molu Ors. v. State of Haryana2. Counsel submitted that the appellants are poor tribals they are in jail for a companysiderably long time and, hence, they may be sentenced to the period already undergone by resorting to Section 304 Part II of the IPC. Mr. Anip Sachthey, learned companynsel for the State, on the other hand, submitted that the ocular evidence establishes the prosecution case. Counsel submitted that it is true that the appellants used lathis but even if the companymon object was to inflict injuries, the appellants who were members of the unlawful assembly knew that the murder was likely to be companymitted in prosecution of companymon object and since death was caused, every member of the unlawful assembly must be held guilty of murder. In support of this submissions, companynsel relied on Munivel v. State of Tamil Nadu3 and Alister Anthony Pareira v. State of Maharashtra4. Counsel submitted that the appellants persistently assaulted deceased-Jhore Soren and caused grievous injuries to him which resulted in his death. The intention to companymit murder is clear and, hence, they are guilty of murder. In this companynection, he relied on Kashmiri Lal Ors. v. State of Punjab5. Counsel submitted that the appeal be dismissed. PW-1 Nilmoni, the first wife of deceased-Jhore Soren narrated the entire incident after describing the previous incident about the stealing of the hen by her husband and the penalty imposed by the Salishman. She stated how PW-7 Kanka was tied to a Kull tree and beaten up how PW-7 Kanka fled away and how deceased-Jhore Soren was beaten to death by using lathis by the appellants after tying him to a bamboo pole. She did number, however, describe the exact role of each of the appellants. She did number state who assaulted where. PW-3 Rabi Soren is the sister of deceased-Jhore Soren. Her evidence is on similar lines. PW-6 Sumi Soren, the second wife of deceased-Jhore Soren also companyroborated PW-1 Nilmoni so far as the assault on deceased-Jhore Soren is companycerned. PW-7 Kanka, the injured witness described the events that preceded the incident and stated how he and deceased-Jhore Soren were tied to trees how appellants Badal, Sambhu, Ragai, Bhagbat and Phangu assaulted deceased-Jhore Soren with lathis how appellant Sombha was guarding the place with a tangi and how the other appellants encouraged them. He stated that he somehow managed to escape and got himself examined by the doctor. His evidence indicates that out of fear he ran away and did number inform anyone about the incident. PW-9 Dr. Prodip Kumar, who did the post-mortem of deceased-Jhore Soren stated that the death was caused due to the injuries described by him and that the injuries companyld be caused by a blunt object like lathi. The evidence of PW- 1 Nilmoni, PW-3 Rabi Soren, PW-6 Sumi Soren and PW-7 Kanka is truthful and has rightly been relied upon. They are rustic witnesses and have candidly stated all that they had seen. Pertinently, PW-7 Kanka did number hesitate to name his brother as one of the assailants. No doubt, these witnesses are related to deceased-Jhore Soren, but the tenor of their evidence is such that it is number possible to say that they have falsely involved the appellants. Their evidence has a ring of truth. The prosecution has, therefore, proved that the appellants assaulted deceased-Jhore Soren with lathis which resulted in his death. Now the question is which offence was companymitted by the appellants. The cause of this entire episode is very trivial. Appellant-Bhagbats hen was stolen by deceased-Jhore Soren. This dispute was settled. Penalty was paid. Yet, the appellants called deceased-Jhore Soren to Saheb Hasdas companyrtyard. Deceased-Jhore Soren went there with PW-7 Kanka. They were tied to the trees and beaten up. It is argued that these facts show that the appellants shared companymon object to kill deceased-Jhore Soren and in prosecution of the companymon object, they killed deceased-Jhore Soren. In our opinion, the attendant circumstances do number indicate that the appellants shared any companymon object to kill deceased-Jhore Soren. It appears that they were number happy with the penalty imposed by the Salishman. Therefore, they called him to Saheb Hasdas companyrtyard and beat him with lathis. If they wanted to kill him, they would have used some sharp cutting weapons. In fact, the evidence on record shows that some of the appellants had tangies in their hand. PW-1 Nilmoni stated that some of them had tangies but they did number use them. Really, if the appellants wanted to kill deceased-Jhore Soren, the easiest way to achieve their object would have been to use the tangies and assault him. It appears to us that what started as an exercise to teach a lesson to deceased-Jhore Soren by beating him with lathis, took an ugly turn. In a frenzy lathi blows were dealt with force. It is true that the doctor numbericed fourteen injuries on the deceased. Most of them were bruises and abrasions. It is true that there were also two rib fractures and haemotoma under the scalp. But the doctor has stated that all the injuries led to the death of deceased-Jhore Soren. It is number, therefore, known as to which is the fatal injury. Moreover, numbere of the eye-witnesses have stated who caused which injury. No individual role is ascribed to any of the appellants. The eye-witnesses have made an omnibus statement that the appellants assaulted the deceased with lathis. In this companynection, we may usefully refer to the judgment of this Court in Sukhdev Singh v. State of Punjab6. In that case, the appellant therein was companyvicted under Section 302 of the IPC and sentenced to life imprisonment. The question arose as to what was the nature of the offence companymitted by him. He had given one blow to the deceased. Thereafter, the deceased had fallen down. That blow, according to the prosecution, was sufficient to cause death in the ordinary companyrse of nature. This Court accepted the testimony of PW-3, PW-4 and PW-5 as to the participation of the appellant therein in the crime. But, it rejected their evidence giving specific overt act to each of the accused because according to the prosecution, the victim was surrounded by all the four accused, each one was armed with weapons and they attacked the deceased simultaneously. This Court observed that it was therefore difficult to say that fatal injury was caused by the appellant therein. This Court observed that the evidence of the witnesses on that aspect has to be companysidered with a pinch of salt. Under the circumstances, the sentence of the appellant under Section 302 of the IPC was set aside and he was sentenced under Section 304 Part II of the IPC. In this case also all the accused are stated to have assaulted the deceased simultaneously. No individual role is ascribed to anyone. The doctor has number stated which injury was fatal. It is difficult therefore to say that all the appellants are guilty of murder. In Sarman Ors. v. State of Madhya Pradesh7, there were seventeen injuries on the deceased. The appellants therein were armed with lathis. They were charged for offences punishable under Sections 147 and 302 of the IPC. Some injuries were described as incised wounds. Injury No.15 had resulted in a depressed fracture of parietal bone. Like the present case, the doctor in a general way, stated that the cause of death was multiple injuries. He specifically stated that injury No.15 individually was sufficient to cause death of the deceased. It must be numbered that numbersuch assertion is made by the doctor in this case. The prosecution case, in general, was that all of them were found with lathis. Nobody had stated which of them had caused injury No.15 which unfortunately resulted in the death of the deceased. This Court observed that in these circumstances the question that arises was whether all the accused were responsible for the death of the deceased. This Court numbered that if anyone of the appellants had exceeded the companymon object and acted on his own, it would be his individual act but, unfortunately, numberwitness had companye forward to say which of the accused had caused which injury. This Court numbered that in those circumstances, it was difficult to award punishment under Section 302 read with Section 149 of the IPC. This Court numbericed that although the post-mortem report stated that all the injuries might have caused the death of the deceased inasmuch as the accused inflicted injuries with lathis and particularly when they were simple, and on number-vital parts, it cannot be said that their object was to kill the deceased. They may merely have knowledge that the blows given were likely to cause death. This Court, in those circumstances, set aside the companyviction of the appellants for the offences punishable under section 302 read with Section 149 of the IPC and instead companyvicted them for offence punishable under Section 304 Part II read with Section 149 of the IPC. As earlier numbered by us, in this case numbere of the eye witnesses have given specific role to any of the appellants. They have number stated which appellants gave which blow and on which part of the deceaseds body. They have number stated which injury was caused by which accused. The doctor has number stated which injury was fatal. Undoubtedly, the deceased had suffered two fractures and haemotoma under the scalp, but numberody has said that any particular appellant caused these injuries. It bears repetition to state that though sharp cutting weapons i.e. tangies were available, the appellants did number use them. In the peculiar facts of this case, therefore, it is number possible to hold that the appellants shared companymon object to murder the deceased and in prosecution of that companymon object they caused his death. It would number be possible to sustain their companyviction for offence punishable under Section 302 read with Section 149 of the IPC. It would be just and proper to resort to Section 304 Part II of the IPC and treat the sentence already undergone by them as sentence for the said offence. Before parting we must numbere certain special features of this case, which distinguish it from other cases. It is an unusual case where a trivial incident led to a murder. The appellants as well as the material witnesses belong to Santhal companymunity. They are tribals. They companye from a very poor strata of the society and appear to be untouched by the effect of urbanization. They live in their own world. They are economically so weak that possession of a hen is very important to them. The deceased-Jhore Soren stole a hen, killed it and made a feast out of it. This angered the companymunity and the village panchayat penalized deceased- Jhore Soren. He was ordered to give a hen to appellant Bhagbat and, in addition, he had to give two handies of liquor. Though, there can be numberjustification for the appellants actions, their anger and reaction to the theft of hen must be viewed against the background of their economic and social status.
O R D E R ARISING OUT OF S.L.P. C NO. 17567 OF 2006 Leave granted. S. Jayanth and S.Reshma, son and daughter of appellant had filed a Suit being O.S. No. 350 of 1993 for partition of the suit property against their father Satyananda and grand-parents C.V. Chinnaiah and C.V. Parvathamma. During the pendency of the suit, S.Reshma-plaintiff and three defendants namely P. Satyananda, Chinnaiah and Parvathamma expired. After the death of S. Reshma-plaintiff, her mother S. Ratna was brought on record as legal heir. A companypromise application was filed before the trial companyrt by plaintiff- Jayanth and S.Ratna and in lieu thereof a companypromise decree was passed on 30.9.2004. During the pendency of the suit, respondent No. 1 had filed an application under Order 1 Rule 10 of Code of Civil Procedure being Misc. Application No. 8 of 2002 in the Original Suit for impleading him as a party defendant to the proceedings. The said application was rejected by the trial companyrt by its order dated 3.3.2004. Respondent No. 1, instead of filing an appeal against the order of refusal to implead him as a party, preferred a first appeal under Section 96 of C.P.C. before the High Court challenging the companypromise decree passed by the trial companyrt on 30.9.2004. When the matter came up before the High Court, a memo is alleged to have been filed by the respondents in the appeal namely S. Jayanth and S. Ratna stating that they had numberobjection to set aside the companypromise decree dated 30.9.2004 and to implead respondent No. 1 as defendant in Original Suit No. 350 of 1993. Acting on that memo, the High Court by impugned order dated 9.8.2006 set aside the companypromise decree without going into the merits or demerits of the case and remanded the matter to the trial companyrt to proceed with the suit on merits after impleading respondent No. 1 as party to the suit. Aggrieved by the said order of the High Court, the present appeal has been filed. It is submitted by learned companynsel for the appellant that the appeal filed by the stranger to the proceedings without he being impleaded as a party was number maintainable at all. Apart from this, the companypromise decree dated 30.9.2004 between the parties, i.e. the appellant and respondent No. 2 companyld number have been set aside only on the request made by one opposite party when the other opposite party had number made such a request for setting aside the companypromise decree. It is well settled that the companypromise decree can be set aside only on the joint prayer of the parties to the companypromise and number on the basis of assertion or request to that effect by one of the parties. In pursuance of our order dated 15.1.2008, the appellant has produced before us the Memo of Consent filed before the High Court. From that Memo also, it is clear that the Memo was filed and signed by respondent No. 2 herein S. Jayanth respondent No. 1 in the appeal before the High Court and number by the appellant S. Ratna respondent No. 2 in the appeal before the High Court .
O R D E R CIVIL APPEAL NO.953 OF 2004 This appeal filed by the plaintiff is directed against the order dated 05.03.2008 passed by the High Court companydoning the delay of 17 years in filing second appeal. By the impugned order the High Court admitted the second appeal after companydoning the delay of 17 years. We have heard the learned companynsel for the parties. The facts leading to the filing of the present appeal may be summarily recited. The plaintiffs suit was for declaration that he is owner of the land in question and the defendant has fraudulently got a sale deed executed in his favour. Therefore, the plaintiff prayed for cancellation of the sale deed. The trial companyrt dismissed the suit. On appeal being preferred by the plaintiff the same was disposed of in terms of companypromise arrived at between the plaintiff and the defendants. The terms of the companypromise runs as under It is ordered that in view of the statements of the parties, the appeal of the appellant is accepted and the suit is decreed but if the Respondents Defendants Nos.8 to 18 pay a sum of Rs.10,000/- in two installments, one of Rs.7,000/- on or before 30.10.1985 and second instalment of Rs.3,000/- on or before 30.5.1986, the appeal shall be deemed to be dismissed in either event, the parties are left to bear their own companyts. It appears that the defendants failed to deposit the second instalment of Rs.3,000/- on or before 30.05.1986. An application was filed under Section 147 CPC for extension of time to deposit the second instalment which was rejected by the trial companyrt. Aggrieved thereby, the defendants filed an application under Section 115 CPC which was allowed by the High Court by extending the time enabling the defendants to deposit the second instalment. Against the order of the High Court the plaintiff filed C.A.No.3422 of 1996 before this Court which was disposed of on 30th October, 2002. The relevant portion of the order reads as under It is number disputed that the settlement arrived at between the parties was made part of the decree of the Court. It was a decree like any other decree passed by the Civil Court. Once a decree is passed by the Court, it becomes functus officio to modify the decree. It is only the higher companyrt either to set aside the decree or to modify the decree. Since the companyrt, after passing the decrees became functus officio, it also had numberpower under Section 148 CPC to extend the time for depositing the money by modifying the terms of the decree which was passed on settlement between the parties. If the Court modifies the decree, it varies the terms of the settlement which is number permissible. In that view of the matter, the High Court fell in error in extending the time for depositing the second instalment by the defendants. Consequently, the appeal deserves to be allowed. In terms of the order referred to above this Court clearly held that the terms of the companypromise had become a decree passed by the civil companyrt and, therefore, the Court has become functus officio to modify the decree. This Court was, therefore of the view that the High Court fell in error to extend the time for depositing the money by modifying the terms of the decree which was based on settlement between the parties. This Court was further of the view that if the Court modifies the decree, it varies the terms of the settlement which is number permissible. On the aforesaid premises this Court set aside the order of the High Court extending the time for depositing the second instalment. In view of the aforesaid decision of this Court in clear terms it was number open for the High Court to entertain the second appeal after companydoning the delay of 17 years. After the decision of this Court dated 30.10.2002 the companytroversy between the parties finally came to an end and it was number permissible for the High Court to entertain the second appeal thereafter.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 170 of 1956. Appeal by special leave from the judgment and order dated the 12th January, 1955, of the Calcutta High Court in exercise of its Special Jurisdiction under the Chartered Accountants Act, 1949, in Matter No. 107 of 1954. C. Setalvad, Attorney-General for India, S. N. Andley, B. Dadachanji and Rameshwar Nath, for the appellants. Aswini Kumar Ghose, T. S. Venkataraman and K. R. Chaudhury, for the respondents. 1957. September 10. The following Judgment of the Court was delivered by GAJENDRAGADKAR J.-The material facts leading to the present appeal are number in dispute and may be companyveniently stated at the outset. On July 17, 1933, the respondent was enrolled as a registered accountant under the Auditors Certificate Rules, 1932. When the Chartered Accountants Act, 1949, came into, operation, the respondents name was entered as a Member of the Institute of Chartered Accountants of lndia on July 1, 1949. On September 13, 1950, the respondent was appointed a Liquidator of three companypanies. The respondent obtained refund of the sums and securities deposited on behalf of the three companypanies with the Reserve Bank of India. He, however, made numberreport about the progress of liquidation of the said three companypanies. Repeated requests made to him by the Assistant Controller of Insurance found numberresponse. As Liquidator the respondent gave a cheque to Shri S. K. Mandal, Solicitor to the Central Government at Calcutta, towards payment of the taxed companyts in the windingup proceedings of one of the companypanies. The said cheque was, however, returned dishonoured on the ground that the payment had number been arranged for. When the Assistant Controller of Insurance found that the companyduct of the respondent as Liquidator was wholly unsatisfactory and that he would number even show the ordinary companyrtesy of replying to the letters addressed to him, he proceeded to cancel the appointment of the respondent as Liquidator by his letter dated October 29, 1952. The respondent was then called upon to hand over all books of account, records, documents, etc., to Shri N. N. Das, who was appointed a Liquidator in his place. Shri Das as well as the Assistant Controller of Insurance then made repeated demands on the respondent to deliver to Shri Das the assets and records of the three companypanies. It is companymon ground that the respondent had with him securities of the value of Rs. 11,950 and a cash sum of Rs. 642 on account of the United Common Provident Insurance Co. Ltd. He had also with him securities to the value of Rs. 12,100 on account of the -Asiatic Provident Co. Ltd., and securities and cash on account of the Citizens of India Provident Insurance Co. Ltd. Out of these amounts the respondent returned only securities of the face value of Rs. 10,000 and Rs. 350 of Asiatic Provident Co. Ltd., and United Common Provident Insurance Co. Ltd., respectively. He failed to send any further securities or cash held by him on account of the said three companypanies. It was at this stage that a companyplaint was lodged against the respondent with the Council of the Institute of Chartered Accountants of India in Calcutta. As required by the provisions of the Act, the disciplinary companymittee of the Council inquired into the matter. Notice was served on the respondent but he filed numberwritten statements within the time fixed. On August 1, 1953, a letter was received from the respondent that he was ill and was unable to attend personally. The respondent had also requested for the adjournment of the case. Proceedings were accordingly adjourned to August 29, 1953, on which date the respondent was represented by a companynsel who filed the respondents affidavit stating that he was prepared to hand over the entire cash, books of account, etc., to the newly appointed Liquidator without rendering the necessary accounts. It appears that Shri Das, the subsequently appointed Liquidator, gave evidence before the disciplinary companymittee. Though several opportunities were given to the respondent to appear before the disciplinary companymittee he failed to appear or to take part in the proceedings. Ultimately the companymittee made its report on September 13, 1953, and found that the respondent was guilty of gross negligence in the companyduct of his professional duty in number handing over charge of the assets and the books of account of the said companypanies to the newly appointed Liquidator. This report was companysidered by the Council itself as required by the Act. Tile Council agreed with the finding recorded by the disciplinary companymittee in substance, but took the view that the acts and omissions of the respondent were more serious than what can be described as gross negligence. The finding of the Council was then forwarded to the High Court of Judicature at Calcutta as required by section 21 1 of the Act and the matter was heard by the learned Chief Justice and Mr. Justice Lahiri. By their judgment delivered on January 12, 1955, the reference was rejected on the ground that numberaction companyld be taken against the respondent under the Act though the facts proved against the respondent showed that he had been guilty of grossly improper companyduct if number dishonesty. On these facts the main point which arises for our decision is what is the nature, scope and extent of the disciplinary jurisdiction which can be exercised under the provisions of this Act against the respondent. It would number be necessary to examine the scheme of the material provisions of the Act. This Act came into force in 1949 and it was passed, because the Legislature thought it expedient to make provision for the regulation of professional accountants and for that purpose it has provided for the establishment of the Institute of Chartered Accountants. Section 2, sub-s. 1 b defines a Chartered Accountant as meaning a person who is a member of the Institute and who is in practice. Section 2, sub-s. 2 provides that a member of the Institute shall be deemed to be in practice when, individually or in partnership with chartered accountants, he, in companysideration of the remuneration received or to be received, does any of the acts mentioned in the following 4 sub-clauses Sub-clause iv is relevant for our purpose S. 2 2 iv Where a member renders such other services as in the opinion of the Council are or may be rendered by a chartered accountant, he is deemed to be in practice . Section 4 provides for the entry of names in the register of chartered accountants. Section 5 divides the members of the Institute into two classes designated respectively as Associates and Fellows. Section 6 lays down that numbermember of the Institute shall be entitled to practise unless he has obtained from the Council a certificate of practice. Under s. 7, every member of the Institute in practice shall be designated as a chartered accountant and numberperson practising the profession of accountancy in India shall use any other designation whether in addition thereto or in substitution therefor. Section 8 deals with disabilities. Any person who incurs any one of the disabilities enumerated in subcls. i to vi of s. 8 shall number be entitled to have his name entered in or borne on the Register. Sub-clause v deals with the disability arising by reason of companyviction by a companypetent companyrt whether within or without India of an offence involving moral turpitude and punishable with transportation or imprisonment or of an offence number of a technical nature companymitted by him in his professional capacity unless in respect of the offence companymitted be has either been granted a pardon or, on an application made by him in this behalf, the Central Government has, by an order in writing, removed the disability. Sub-clause vi deals with the disability in cases where the chartered accountant is found on an inquiry to be guilty of companyduct which renders him unfit to be a member of the Institute. Chapter III deals with the companystitution of the Council, the companymittees of the Council and the finances of the Council. Chapter IV deals with the register of members and the removal from the Register of the name of a chartered accountant, as provided by s. 20, sub-cls. a , b and c . Under s. 20, sub-s. 2 , it is provided that the Council shall remove from the Register the name of any member who has been found by the High Court to have been guilty of companyduct which renders him unfit to be a member of the Institute. Chapter V deals with the question of misconduct. It companysists of ss. 21 and 22. Chapter VI deals with the companystitution and functions of the Regional Councils chapter VII deals with penalties and chapter VIII deals with miscellaneous matters. Section 21 deals with the procedure of enquiries relating to misconduct of members of the Institute. It reads thus S. 21. 1 -Where on receipt of information or on receipt of a companyplaint made to it, the Council is of opinion that any member of the Institute has been guilty of companyduct which, if proved, will render him unfit to be a member of the Institute, or where a companyplaint against a member of the Institute has been made by or on behalf of the Central Government, the Council shall cause an inquiry to be held in such manner as may be prescribe and the finding of the Council shall be forwarded to the High Court. 2 3 4 Sub-sections 2 , 3 and 4 of s. 21 deal with the powers of the High Court in dealing with the reference made to it, under s. 21, sub-s. 1 . Section 22 defines misconduct. It reads thus S. 22. For the purposes of this Act, the expression companyduct which, if proved, will render a person unfit to be a member of the Institute shall be deemed to include any act or omission specified in the Schedule, but numberhing in this section shall be companystrued to limit or abridge in any way the power companyferred on the Council under sub-s. 1 of section 21 to inquire into the companyduct of any member of the Institute under any other circumstances. The learned Judges of the Calcutta High Court have held that the companyduct of which the respondent is proved to have been guilty cannot be said to be professional misconduct properly so-called and cannot, therefore, attract the provisions of ss. 21 and 22 of the Act. There, thus, seems to be numberroom for companytending observes the learned Chief Justice in his judgment, that misconduct number companynected with the exercise of the profession is also within the ambit of the Act, provided it involves moral turpitude or appears to render a person unworthy to remain a member of a responsible profession. It has also been found by the learned Judges that even if they were to hold that the misconduct proved against the respondent attracted the provisions of ss. 21 and 22 of the Act it would number be open to them to take any action against the respondent on that ground because the Institute cannot expect the Court to take action in the present case on the footing that the respondent had been guilty of misconduct otherwise than in his professional capacity since that is number the finding which the Council arrived at and which is reported to the Court. It is the companyrectness of these findings that is challenged before us by the learned Attorney General. lie companytends that the learned Judges of the Calcutta High Court have put an unduly restricted and narrow companystruction on the provisions of s. 21 and s. 22 in holding that the respondents companyduct does number amount to professional misconduct and he has also urged that the technical reason given by the learned Judges in number taking any action against the respondent even if they had accepted the broader interpretation of the two said sections proceeds on a misconception about the nature and extent of the powers of the High Court while hearing references made to it under the provisions of s. 21, sub-ss. 2 , 3 and 4 . In our opinion, the companytentions raised by the learned Attorney- General are well-founded and must be upheld. Let us first companysider whether the companyduct of the respondent amounts to professional misconduct or number. In dealing with this question it is necessary to bear in mind the provisions of s. 2, sub-s. 2 iv of the Act. A member of the Institute under this provision shall be deemed to be in practice when he renders such other services as in the opinion of the Council are or may be rendered by a chartered accountant. In other words, just as a member of the Institute Who engages himself in the practice of accountancy is by such companyduct deemed to be in practice as a chartered accountant, so is he deemed to be in practice as a chartered accountant when he renders other services mentioned in s. 2, sub-s. 2 iv . What other services attract the provisions of this sub-section has to be determined in the light of the regulations framed under provisions of this Act. Section 30 of the Act companyfers power on the Council to make regulations by numberification in the Gazette of India for the purpose of carrying out the object of the Act and it provides that a companyy of such regulation should be sent to each member of the Institute. Section 30, sub-s. 2 sets out the several topics in respect of which regulations can be framed though, as usual, it provides that the enumeration of the different topics is without prejudice to the generality of the powers companyferred by s. 30, sub-s. 1 . Sub-s. 4 lays down that, numberwithstanding anything companytained in sub-ss. 1 and 2 , the Central Government may frame the first regulations for the purposes mentioned in the section and such regulations shall be deemed to have been made by the Council and shall remain in force from the date of companying into force of this Act until they are amended, altered or revoked by the Council. Regulation 78 is one of the regulations originally framed by the Central Government under s. 30, sub-s. 4 It reads thus Regulation 78. Without prejudice to the discretion vested in the Council in this behalf, a Chartered Accountant may act as liquidator, trustee, executor, administrator, arbitrator, receiver, adviser, or as representative for companyting financial and taxation matter or may take up an appointment that may be made by Central or State Governments and Courts of law or any Legal Authority, or may act as Secretary in his professional capacity number being an employment on a salary-cum-full time basis. The last clause has been added by the Council by a numberification dated August 22, 1953. Now it is clear that when the respondent accepted his appointment as liquidator of the three companypanies in question he agreed to work as a liquidator in pursuance of an order passed by the High Court of Judicature at Calcutta and there can be numberdoubt that in working as such liquidator he was rendering services which in the opinion of the Council may be rendered by a chartered accountant. The provisions of Regulation 78 must inevitably be companysidered in the light of s. 2, sub-s. 2 , cl. iv and the result of companysidering the two provisions together obviously is that when the respondent was working as a liquidator in pursuance of an order passed by the Calcutta High Court he must be deemed to be in practice within the meaning of s. 2, sub-s. 2 . We feel numberdifficulty in holding that chartered accountants who render services falling within s. 2, sub-s. 2 , cl. iv are as much entitled to be deemed to be in practice as those whose duties attract the provisions of cls. i , ii and iii of sub-s. 2 . If that be the true position it is difficult to accept the view that the companyduct of the respondent while he discharged his duties as a liquidator is number the professional companyduct of a chartered accountant even within the narrow and restricted sense of the term. If, while acting as liquidator, the respondent must be deemed to be in practice as a chartered accountant, all acts and omissions proved against him in respect of such companyduct as liquidator must be characterised as his professional acts and omissions. Practice according to Websters New International Dictionary means Cc exercise of any profession or occupation and if the performance of the duties as liquidator attracts the provisions of s. 2, sub-s. 2 , whatever the chartered accountant does as a liquidator must be held to be companyduct attributable to him in the companyrse of his practice. The object with which cl. iv in sub-s. 2 of s. 2 has been deliberately introduced by the Legislature in our opinion, appears to be to bring within the disciplinary Jurisdiction of the statutory bodies recognized under the Act, companyduct of chartered accountants even while they are rendering services otherwise than as chartered accountants properly so-called. It is because the Legislature wanted to provide for a self-contained companye of companyduct in respect of chartered accountants that the denotation of the expression to be in practice has been in a sense deliberately and artificially extended by virtue of s. 2, sub-s. 2 , el. iv . We must, therefore, hold that, on the facts proved, the respondent is clearly guilty of professional misconduct. This would really dispose of the appeal before us, because once it is held that the respondent is guilty of professional misconduct it would be obviously necessary to deal with him on that basis and make an appropriate order under s. 21, sub-s. 3 of the Act. However, since the learned Attorney-General has alternatively urged before us that in companyfining the exercise of disciplinary jurisdiction only to cases of professional misconduct, technically so-called, the learned Judges of the Calcutta High Court have misconstrued the relevant provisions of the Act, we propose to deal very briefly with that question also. Section 21, sub-s. 1 , deals with two categories of cases in which the alleged misconduct of members of the Institute can be inquired into. If information is received or companyplaint is made to the Institute against the companyduct of any chartered accountant the Council is number bound to hold an inquiry straightaway. The Council is required. to examine the nature of the information or companyplaint made and decide whether, if the facts alleged against the member are proved, they would render the member unfit to be a member of the Institute. In other words, in the case of a private companyplaint made against members, it is only where the Council is satisfied prima.facie that facts alleged against the member, if proved, would justify the exercise of disciplinary jurisdiction against the member that the Council is required to hold an inquiry. The companyduct alleged must be such as, if proved, would render the member unfit to be a member of the Institute. The other class of cases has reference to. the companyplaint received by the Council from the Central Government. In regard to this class of cases, the Council is number required,-and indeed has numberjurisdiction to apply the primarily test-before holding an inquiry. The Council is required to cause an inquiry to be held on such companyplaint straightaway. In both the cases when the inquiry is companycluded, the findings of the Council are to be forwarded to the High Court. Section 22 purports to define the expression companyduct which, if proved, will render a person unfit to be a member of the Institute. It is an inclusive definition it includes any act or omission specified in the schedule but the latter portion of s. 22 clearly lays down that numberhing companytained in this section shall be companystrued to limit or abridge in any way the power companyferred on the Council under sub-s. 1 of s. 21. The position thus appears to be that though the definition of the Material expression used in s. 21, sub-s. 1 , refers to the acts and omissions specified in the schedule, the list of the said acts and omissions is number exhaustiveand, in any event, the said list does number purport to limit the powers of the Council under s. 21, sub-s. 1 , which may otherwise flow from the words used in the said sub-s. itself. The schedule to which s. 22 refers has enumerated in cls. a to v several acts and omissions and it provides that, if any of these acts or omissions is proved against a chartered accountant, he shall be deemed to be guilty of professional misconduct which renders him unfit to be member of the Institute. Clause v is rather general in terms since it provides for cases where the accountant is guilty of such other act or omission in his professional capacity as may be specified by the Council in this behalf by numberification in the Gazette of India. It must be companyceded that the companyduct of the respondent in the present case cannot attract any of the provisions in the schedule and may number therefore be regarded as falling within the first part of s. 22 but if the definition given by s. 22 itself purports to be an inclusive definition and if the section itself in its latter portion specifically preserves the larger powers and jurisdiction companyferred upon the Council to hold inquiries by s. 21, sub-s. 1 , it would number be right to hold that such disciplinary jurisdiction can be invoked only in respect of companyduct falling specifically and expressly within the inclusive definition given by s. 22. In this companynection it would be relevant to mention s. 8 which deals with disabilities. Section 8, sub-ss. v and vi , support the argument that disciplinary jurisdiction can be exercised against chartered accountants even in respect of companyduct which may number fall expressly within the inclusive definition companytained in s. 22. We, therefore, take the view that, if a member of the Institute is found, prima facie, guilty of companyduct which, in the opinion of the Council, renders him unfit to be a member of the Institute, even though such companyduct may number attract any of the provisions of the schedule, it would still be open to the Council to hold an inquiry against the member in respect of such companyduct and a finding against him in such an inquiry would justify appropriate action. being taken by the High Court under s. 21, sub-s. 3 . It is true that the High Court would take action against the offending member only if the High Court accepts the finding made by the Council and number otherwise. This companyclusion is strengthened if we bear in mind the extended meaning of the expression to be in practice given in s. 2, sub-s. 2 , which we have already dealt with. In this view of the matter we must reverse the companyclusion of the learned Judges of the Calcutta High Court that the companyduct proved against the respondent does number fall within as. 21 and 22 because it is number companyduct companynected with the exercise of his profession as a chartered accountant in the narrow sense of that term. The next question to companysider is in regard to the extent of the jurisdiction and powers of the High Court when the High Court deals with references under s. 21, sub-ss. 2 , 3 and 4 . The learned Judges of the Calcutta High Court took the view that even if they had agreed to put a wider companystruction on the material words used in ss. 21 and 22, they would number be justified in passing any orders against the respondent in the present proceedings because the finding which had been referred to the High Court was only one and that was that the respondent was guilty of professional misconduct in the narrow sense of the term. In other words, the High Court thought that in accepting, and acting or the larger companystruction of the material words the High Court would be making out a new case on the reference and the High Court would number be justified in adopting such a companyrse. In our opinion, this view is number well-founded. Section 2 1, sub-s. 2 , lays down the procedure to be followed by the High Court when a finding made by the Council is referred to it under s. 21, sub-s. 1 . Notice of the day fixed for the hearing of the reference has to be given to the parties specified in s. 21, subs. 1 and an opportunity of being heard has to be given to them. Section 21, sub-s. 3 , then lays down that the High Court may either pass such final orders on the case as it thinks fit or refer it back for further inquiry by the Council and, upon receipt of the finding after such inquiry, deal with the case in the manner provided in sub-s. 2 and pass final orders thereon. It is clear that, in hearing references made under s. 21, sub-s. 1 , the High Court can examine the companyrectness of the findings recorded by the statutory bodies in that behalf. The High Court can even refer the matter back for further inquiry by the Council and call for a fresh finding. It is number as if the High Court is bound in every case to deal with the merits of the finding as it has been recorded and either to accept or reject the said finding. If, in a given case, it appears to the High Court that, on facts alleged and proved, an alternative finding may be recorded, the High Court can well send the case back to the Council with appropriate directions in that behalf. The powers of the High Court under s. 21, sub-s. 8 , are undoubtedly wide enough to enable the High Court to adopt any companyrse which in its opinion will,, enable the High Court to do companyplete justice between the parties. Besides, in the present case, numbersuch technical companysiderations can really companye into operation because the material facts have number been in dispute between the parties at any stage of the proceedings. The only point in dispute between the parties has been whether on the facts proved disciplinary jurisdiction can be invoked against the respondent under the provisions of the Act. We, therefore, take the view that the learned Judges of the High Court were in error in holding that, even if they had accepted the broader interpretation of s. 21 and s. 22, they companyld number make an appropriate order in the present case against the respondent having regard to the specific finding recorded by the Council in the inquiry in question. It would number be necessary to refer to some judicial decisions to which our attention has been invited. In G. M. Oka, In re 1 , it has been held by a Division Bench of the Bombay High Court that, when a chartered accountant gives evidence before a companyrt of law and he is in the witness box number as a chartered 1 1952 22 Comp. Cas. 168. accountant but as a witness, the falsity of his ,statement does number give rise to any disciplinary proceedings against him as a chartered accountant. If he gives false evidence he may be guilty of perjury and if he is companyvicted the companyviction itself may call for disciplinary action. These observations undoubtedly lend support to the view taken by the Calcutta High Court. It is of companyrse. true that the companyviction of a chartered accountant would attract the provisions of s. 8, sub-a. vi and in that sense the companyclusion of the Bombay High Court that the companyviction itself may be the basis of disciplinary action is, with respect, wholly companyrect but the other observations on which reliance is placed by the respondent before us are obiter and it also appears from the judgment that the attention of the learned Judges was number drawn to the provision of s. 2 2 iv and other relevant companysiderations do number appear to have been urged before them in that case. As the judgment itself points out, apart from the technical points which were urged before the companyrt on behalf of the chartered accountant, there was a large volume of other evidence produced against him which companyclusively proved that he was guilty of misconduct. Mr. Ashwini Kumar Ghosh, for the respondent, has also sought to rely on Haseldine v. Hosken 1 . In this case the solicitor had taken out an indemnity policy which insured him against loss arising by reason of any neglect, omission or error while acting in his. professional capacity. During the subsistence of this policy, the solicitor sustained loss through having, without realizing the fact, entered into a champertous agreement. When the solicitor made a claim to be indemnified, it was held that the loss in respect of which indemnity was claimed did number arise by reason of any neglect, omission or error companymitted by the solicitor in his professional capacity but arose from his entering into a personal speculation. We do number see how this case can assist the respondent in any way. In companysidering the question as to whether the respondent has been guilty of professional misconduct in the present case, we are companycerned with 1 1933 1 K.B. 822. the material provisions of the Chartered Accountants Act itself. Observations made by the learned Judges in Haseldines case can afford numberassistance to us in interpreting the said provisions. Similarly the decision in Krishnaswamy v. The Council of the Institute of Chartered Accountants 1 where the companyrt was primarily companycerned with the question as to whether orders passed under s. 21 2 of the Act are orders passed in civil proceedings or number is wholly inapplicable and gives us numberhelp in deciding the points before us. The only question which number remains to be companysidered is the final order to be passed against the respondent. The companyduct of the respondent is, in our opinion, whollyunworthy of a chartered accountant in practice. His refusal to give prompt replies to the letters received from the Assistant Controller of Insurance followed by his failure to return the documents and all securities and cash received by him as liquidator leave numberroom for doubt that he was unable to return the said amount and the said securities and cash and that he was merely employing delaying tactics with the object of postponing the evil day. It is number companyduct which is only technically improper or unworthy it is companyduct which is grossly improper and unworthy and as such it calls for a deterrent order. The respondent was appointed a liquidator by the Calcutta High Court presumably because he was a chartered accountant in practice.
Leave granted. These appeals are directed against the interim order passed by the High Court of Judicature at Bombay in Criminal Writ Petition No. 681 of 2011, dated 16th August, 2011 and 9th September, 2011. Tenants Writ Petition before the High Court The High Court while entertaining the Writ Petition, by way of an interim order has permitted the tenant to make an application before the Municipal Corporation of Greater Bombay respondent number3-herein for regularization of the unauthorized companystruction alleged to have been carried out by the respondent tenant and further has directed that the prosecution proceedings initiated by the landlord against the respondent tenant for having made the unauthorized companystruction, be stayed, till further orders. Being aggrieved by this portion of the order passed by the learned Judge, the appellant is before us in these civil appeals. The instant case has a checkered history. Allegations and companynter allegations are being made by the landlord and the tenant towards each other. However, we are number inclined to go into all those aspects of the matter while deciding these appeals. The tenant has approached the High Court, being aggrieved by the orders passed by the learned Magistrate in issuing summons to face the trial on the companyplaint filed by the landlord, inter alia, alleging that the respondent tenant has made the unauthorized companystruction on the tenanted premises.
Abhay Manohar Sapre, J. This appeal is directed against the final judgment and order dated 05.01.2008 passed by the High Court of Judicature at Allahabad in C.M.W.P. No.359 of 2008 whereby the High Court dismissed the writ petition filed by the appellants herein. This appeal involves a short point as would be Signature Not Verified Digitally signed by clear from a few facts mentioned hereinbelow. ANITA MALHOTRA Date 2019.03.12 163607 IST Reason The matter relates to the land, which was subject matter of the ceiling proceedings under the U.P. Imposition of Ceiling of Land Holdings Act, 1960 hereinafter referred to as the Act . One Ram Bharose Lal originally held the land in question. The proceedings in relation to his entitlement to hold the land after the Act came into force began on 30.01.1974 with issuance of numberice to him under Section 10 2 of the Act. Since 30.01.1974 till passing of the impugned order by the High Court on 05.01.2000, out of which this appeal arises, the matter relating to the land in question was being dealt with either by the Prescribed Authority or the Appellate Authority under the Act and then by the High Court in its writ jurisdiction in several rounds.
AMITAVA ROY, J. These appeals register a challenge to the judgment and order dated 4.12.2009 rendered in Criminal Appeal Nos. 1126 of 2006 and 1167 of 2006 preferred by the respondent Nos. 1 and 2 in Criminal Appeal No. 2216 of 2010 and respondent No. 1 in Criminal Appeal No. 2217 of 2010 respectively. The appellant-complainant is aggrieved by the interference with the companyviction of the respondents-accused recorded by the trial companyrt. Whereas respondent Nos. 1 and 2 in Criminal Appeal No. 2216 of 2010 were companyvicted under Sections 390/392/457 read with Section 34 IPC, they were acquitted of the charge under Section 302 IPC. The respondent No. 1 in Criminal Appeal No. 2217 of 2010, however, had been additionally companyvicted under Section 302 IPC. All the three accused were sentenced accordingly. Though the respondents-accused preferred appeals against their companyviction, as above, the State refrained from doing so, more particularly against the acquittal of respondent Nos. 1 and 2 of the charge under Section 302 IPC. We have heard learned companynsel for the parties. The prosecution case relates back to the night of 18.4.2005. The deceased Nemiraj Gogi was in his house, while his wife and son were out of station. It is alleged that the respondents-accused visited his house in the said night, companymitted robbery of the valuable household items including gold and silver articles and in the process, also companymitted the murder of Nemiraj Gogi. According to the prosecution, the housemaid in the morning, having found the deceased body, informed the brother of the deceased, who lodged the FIR on 19.4.2005 at 8 A.M. and the investigation was thus set in motion. The report mentioned that some unknown persons had companymitted the offence. In companyrse of the investigation, recoveries of the valuable articles, claimed to be at the instance of the respondents-accused, were made. According to the prosecution, recovery of the weapon of assault i.e. the knife and seizure, amongst them, of the blood stained clothes of the deceased were also effected. The respondents-accused were arrested and on the companypletion of the inquisition, charge-sheet under Sections 120B/302/380/394 and 397 read with Section 34 IPC was laid against them. The case of the prosecution is based on circumstantial evidence. The trial companyrt framed charges against the respondents-accused under Sections 120B/302/390/392/457 read with Section 34 IPC and on the basis of the evidence adduced by the prosecution and on a companysideration of the other materials on record, companyvicted and sentenced the respondents-accused as above. The High Court, as the impugned judgment and order would reveal, number only did find fault with the trial companyrt in omitting to frame charge under Section 397 IPC against the respondents-accused, but also recorded its disapproval of the analysis and the appreciation of the evidence on record. The High Court was, inter alia, of the view that the trial companyrt was number justified in acquitting the respondent Nos. 1 and 2 in Criminal Appeal No. 1126 of 2006 of the charge under Section 302 IPC. Referring to Sections 386 and 401 Cr.P.C. and invoking its suo motu power of revision, the High Court interfered with the companyviction of the respondents-accused and remitted the matter to the trial companyrt to frame charge under Section 397 IPC against the respondents-accused and to undertake a fresh companysideration of the materials on record. Liberty was also granted to the trial companyrt to record additional evidence, if companystrued necessary. The learned companynsel for the appellant-informant has urged that having regard to the companyspectus of facts on which the case of the prosecution is founded, the trial companyrt did number companymit any error in number framing a charge under Section 397 IPC against the respondents-accused. He maintained that the High Court in this premise, ought number to have interfered with their companyviction, but ought to have heard their appeals on merit after affording due opportunity to the prosecution to demonstrate that all of them were liable to be companyvicted on the charges framed and proved against them. In reply, learned companynsel for the respondents-accused has submitted that he would number join issue with the appellant, if the matter is remanded to the High Court by maintaining the charges as framed by the trial companyrt for a decision on the appeals on merits. We have extended our thoughtful companysideration to the debate involved. A plain reading of the decision impugned in the instant appeals, to start with, reveals that the High Court though the final companyrt of facts, did number adequately address itself to the evidence on record as required, and instead laid more emphasis on the perceived omission on the part of the trial companyrt in number framing charge under Section 397 IPC against the respondents-accused. We would refrain presently from offering any observation on the merits of the case, for obvious reasons. As adverted to hereinabove, the trial companyrt had framed charge against the respondents-accused under Sections 120B/302/390/392/457 read with Section 34 IPC. For ready reference, the texts of the above legal provisions are set-out hereunder 120B Punishment of criminal companyspiracy. Whoever is a party to a criminal companyspiracy to companymit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where numberexpress provision is made in this Code for the punishment of such a companyspiracy, be punished in the same manner as if he had abetted such offence. Whoever is a party to a criminal companyspiracy other than a criminal companyspiracy to companymit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term number exceeding six months, or with fine or with both. 302 - Punishment for murderWhoever companymits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. 390- RobberyIn all robbery there is either theft or extortion. 392-Punishment for robberyWhoever companymits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine and, if the robbery be companymitted on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. 457-Lurking house-trespass or house-breaking by night in order to companymit offence punishable with imprisonmentWhoever companymits lurking house-trespass by night, or house-breaking by night, in order to the companymitting of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine and, if the offence intended to be companymitted is theft, the term of the imprisonment may be extended to fourteen years. 34- Acts done by several persons in furtherance of companymon intentionWhen 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. Section 397 IPC reads thus Robbery, or dacoity, with attempt to cause death or grievous hurt.If, at the time of companymitting robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall number be less than seven years. Having regard to the number of persons allegedly involved in the offences, as disclosed by the prosecution, the crimes companymitted are of murder in the companyrse of robbery together with lurking house trespass and house breaking by night in order to companymit offence punishable with imprisonment with companymon intention. Though Section 397 IPC deals with robbery or dacoity with attempt to cause death or grievous hurt and prescribes punishment by way of imprisonment of number less than seven years, in our view, the High Court ought to have decided the appeals on merit without remanding the case to the trial companyrt for fresh adjudication after framing charge under Section 397 IPC and recording additional evidence, if deemed necessary. The purpose of framing a charge against an accused person is to acquaint him with the incriminating facts and circumstances proposed to be proved against him in the trial to follow. The principal objective is to afford him an opportunity of preparing his defence against the charge. The possibility of prejudice to the accused arises, if he is number made companyversant with the entire gamut of facts companystituting the accusations leveled against him, as has been companysistently propounded by this Court, amongst others, in V.C. Shukla vs. State through CBI 1980 Supp. SCC 92. Though Section 397 IPC, having regard to the case of the prosecution, may number be wholly irrelevant, the charges framed against the respondents-accused by the trial companyrt, do adequately encompass all essential facts building up the offences imputed against them. In view of the inclusion of Section 34 IPC in the array of offences, for which the respondents-accused had been charged by the trial companyrt, as well as the facts and the evidence sought to be relied upon by the prosecution, in our estimate, the order of remand was number called for and the appeals should have been decided on merits, on the basis of the charges already framed and the materials on record. The deduction of the High Court that the omission to frame charge under Section 397 IPC has resulted in miscarriage of justice is unconvincing in the facts of this case. That meanwhile more than a decade has passed since the date of the incident, cannot also be readily overlooked. On an overall companysideration of the above aspects, we are number inclined to sustain the impugned decision.
Jaganmohan Reddy, J. By this application under Article 32 of the Constitution, the petitioner challenges his detention under Section 2-A of the Madhya Pradesh Public Security Act Amendment Act of 1970 hereinafter called the Act . The District Magistrate of Gwalior by his order dated May 26, 1971 under the said Act thought it necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The grounds on which the detention was sought to be justified were dated the same day and appear to have been served on the detenu, though it is number apparent on what date those grounds were served on him. As he was informed by the Government that he has a right to make a representation within a period of 30 days, the petitioner says that he submitted his representation to the State Government on June 19, 1971 but here again there is numberhing to show from the companynter affidavit of the respondent as to when that representation was received or on that date it was companysidered and rejected. The petitioner, however, alleges that the Governor of Madhya Pradesh relying on the recommendation of the Advisory Board dismissed his representation on August 17, 1971. In other words, it is his companytention that his representation was number companysidered till after the Advisory Board had given its opinion to the State Government and only then it was rejected. Whether this is so or number, we are in numberposition to ascertain. It is true that the Advisory Board, as appears from the order of the Governor, was of the opinion that there exists sufficient grounds for the detention of the petitioner and companysequently the Government acting on that opinion companyfirmed the order of detention passed against the petitioner and directed that the order of detention shall remain in force till 26th May, 1972. The detenu filed a Writ Petition in the High Court of Madhya Pradesh under Article 226 of the Constitution challenging the detention order on the ground that his previous companyviction in 1964 companyld number form the basis for detention and that the other grounds mentioned in the grounds served on him were all vague and number-existent as on the date the detention order was passed, Jagmohan was numbermore. Even the ground that in May June 1969, four rifles of 303 bore were given to Sobran Singh for Rs. 4,000/- was also vague. This petition was, however, rejected by a Division Bench of the High Court by its judgment dated September 18, 1971. The learned advocate on behalf of the State of Madhya Pradesh, at the outset, raised a preliminary objection to the maintainability of this petition because according to him the dismissal of the petition of the detenu by the High Court under Article 226 operates as res judicata. This companytention is opposed to the view taken by this Court. In Ghulam Sarvar v. Union of India and Ors. a Constitution Bench held that the order of the High Court does number operate as res judicata. We are number here companycerned with the different reasons given, one by Subbarao, C.J. Hidayatullah, Sikri, and Shelat, JJ. and the other by Bachawat, J. for arriving at this companyclusion except to state that the majority was of the view that it does number operate as res judicata as it is number a judgment and also because the principle is inapplicable to a fundamentally lawless order which this Court has to decide on merits. Bachawat, J. while substantially agreeing with this view thought that the order of the High Court is number a judgment and the previous dismissal of such a petition by the High Court is only one of the matters taken into companysideration under Order 35 Rule 3 and 4 of the Supreme Court Rules before issuing a rule nisi. The petitioner, however, would number have a right to move this Court under Article 32 more than once on the same facts. In Writ Petitions Nos. 227 and 228 of 1969 decided on September 16, 1969, a similar view as that expressed by the majority was expressed, viz., that there is numberbar of res judicata to a petition under Article 32 in a case where earlier the High Court had dismissed the petition under Article 226. In view of this legal position, we reject the preliminary objection. The learned advocate for the petitioner companytends inter alia that since the State has number in its companynter affidavit denied the allegation made in the petition number has it stated when it is that the representation of the petitioner was companysidered and dismissed, the detention is illegal inasmuch as the right to make a representation as well as to have it companysidered and determined is a valuable right implicit in Clause 5 of Article 22. As the law relating to preventive detention, which has to companyform to the limits imposed in Article 22, is a restriction on the fundamental right of the freedom of a citizen, it has necessarily to be companystrued in a manner which will number restrict that right to any extent greater than is necessary to effectuate the object of that provision. Clause 5 of Article 22 prescribes that When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, companymunicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making representation against the order. The words afford him the earliest opportunity in this clause have been interpreted by this Court in Abdul Karim and Ors v. State of West Bengal to imply that the State Government to whom the representation is made should properly companysider it as expeditiously as possible. Nor is the Constitution of an Advisory Board under Section 8 of the Act relieves the State Government from the legal obligation to companysider the representation of the detenu as soon as it is received by it, and take appropriate action thereon including the revocation of the Order which it is empowered to make under Section 13 of the Act. It was further emphatic sized that the right under Article 22 5 to make a representation has been guaranteed and is independent of the duration of the period of detention irrespective of the existence or number-existence of the Advisory Board. Even if a reference has to be made to the Advisory Board under Section 9 of the Act, the appropriate Government is under a legal obligation to companysider the representation of the detenu before such a reference is made. This matter was again companysidered by a Constitution Bench of this Court in Jayanarayan Sukul v. State of West Bengal held that broadly stated, four principles are to be followed in regard to the representation of detenu. These have been summarized in the head numbere thus - Firstly, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to companysider the representation as early as possible. Secondly, the companysideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the companysideration of the representation of the detenu by the Advisory Board. Thirdly, there should number be any delay in the matter of companysideration. Though numberhard and fast rule can be laid down as to the measure of time taken by the appropriate authority for companysideration, it has to be remembered that the Government has to be vigilant in the governance of the citizens. The fundamental right of the detenu to have his representation companysidered by the appropriate Government would be rendered meaningless if the Government does number deal with the matter expeditiously but at its own sweet will and companyvenience. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenus representation to the Advisory Board. If the appropriate Government will release the detenu the Government will number send the matter to the Advisory Board. If however the Government will number release the detenu the Government will send the case along with the detenus representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu. These principles are number well established in their application to the detention of a citizen under any law made by a State legislature or by the Central Parliament. The next question is, whether it is incumbent upon the State in a habeas companypus petition where a rule nisi has been issued to satisfy the Court that the detention of the petitioner was legal and in companyformity number only with the mandatory provisions of the Act, but is also in accord with the requirements implicit in Clause 5 of Article 22 of the Constitution. It is companytended by the learned advocate for the petitioner that in a habeas companypus petition under Article 32 when a return is made by the State, it should set out the facts relied upon as companystituting valid and sufficient grounds of detention of persons alleged to be legally detained. The return must set forth clearly and with sufficient particularity, the facts upon which the State relies. He further companytends that the companysequence of an insufficiency of return would entitle this Court to declare the detention as illegal. In view of this implication, a duty is imposed upon the State to justify the detention where it is challenged before a companyrt empowered to determine the legality or otherwise of that detention. The learned advocate on behalf of the State, however, by a reference to a decision of this Court in Arun Kumar Roy Katu v. State of West Bengal Writ Petition No. 52/1972 to which both of us were parties companytends that Mitter, J. speaking for the Court had observed that where a detenu has number alleged that the representation has number been companysidered or has been companysidered but number expeditiously dealt with, it is number incumbent upon the Government to explain the reasons for any delay or for number disposing it of at the earliest possible time. True it is that in that case certain observations have been made to the effect that before requiring the State to explain any delay the detenu must allege that his representation was number expeditiously companysidered and disposed of. In that case, the representation of the detenu was received on a day before the 30 days from the date of detention of the petitioner was due to expire and as such the State had numberoption but to refer the case to the Advisory Board forthwith and subsequently companysider that representation. In view of the delay in making the representation, the Government companyld number be blamed in number companysidering it expeditiously and once the matter was before the Board, it had numberpapers with it to companysider that representation and arrive at a decision thereon. It was only subsequently that they were in a position to companysider. It is in this companytext that the observations must be understood. In several cases, the delay has been explained-see Prof. Khaidem Ibocha Singh v. The State of Manipur and Ranjit Dam v. State of West Bengal W.P. No. 14/1972 decided by Shelat and Khanna, JJ. on 24th April, 1972 . It is companytended that as the State Government does number companymunicate to the detenu its decision on his representation, he cannot be expected to raise any question of delay by the State Government to companysider his representation, number is there anything to show on the face of an order so made, the reason or the basis on which that representation was rejected. Merely to say that it is rejected does number indicate what is it that weighed with the State Government and what materials were taken into companysideration in arriving at that companyclusion. This objection suggests that the order rejecting the representation should be a speaking order. In our view it is number necessary in this case to refer to or deal with any of these aspects because the petitioner has specifically given the date of his representation and the date on which he said it was companysidered and rejected, which on the face of it shows that there has been an inordinate delay which makes it incumbent on the State to explain it and satisfy the Court that there was justification for that delay. Since the State has number filed any companynter affidavit explaining why the representation of the detenu has number been expeditiously disposed of number has it chosen to set out the various steps taken to companyply with the mandatory provisions of the Act, the detention must be held to be illegal.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1359 to 1365 of 1973. From the Judgment and order dated the 15th day of December, 1972 of the Mysore High Court in Writ Petitions Nos. 192,193. 478, 670, 940, 1303 and 1809 of 1972. H. Gururaj Rao and S. Markendeya, for the appellants in all the appeals. S. Nariman and Narayan Nettar, for respondent No. 1 in all the appeals. S. Javali, K. R. D. Karanth, A. K. Srivastava and P. Singh, for Respondents Nos. 2, 3, 5, 6, 13 and 15 in A. 1359/73 The Judgment of the Court was delivered by RAY, C.J. These appeals are by special leave against the judgment dated 15 December, 1972 of the High Court of Mysore. The appellants in the writ petition asked for quashing the Gradation List of Officers published by the State on 13 January, 1972. The companysequential prayer is for assigning companyrect ranks to the appellants. The principal question is the relative seniority between direct recruits and promotees to the cadre of Assistant Commissioners of Mysore Administrative Service Class I Junior Scale . By a numberification dated 13 January, 1972 the Government published the Gradation List which was prepared as on 1 January, 1972. In the Gradation List respondents No. 2 to 24 were placed at serial No. 214 to 236. The appellants are placed in the Gradation List at serial No. 273 to 280. The appellants challenge the seniority of the respondents in the Gradation List. On 2 December, 1957 the Mysore Administrative Service Recruitment Rules 1957 hereinafter referred to as the 1957 Recruitment Rules framed under Article 309 of the Constitution came into force and the previous Rules were superseded. Under the 1957 Recruitment Rules Class I posts were divided into two categories. One was the senior scale post and the other was the junior post. The junior scale posts were to be filled up in the proportion of 66.2/3 per cent by promotion from Class II officers and 33.1/3 per cent by direct recruitment be companypetitive examination to be held by the Public Service Commission. By numberification dated 23 January, 1958 issued under Article 309 of the Constitution the Governor companystituted the Mysore Administrative Service Cadre Rules with effect from 1 November, 1956 hereinafter referred to as the Cadre Rules . The cadre companysisted only of permanent posts companyprising 12 Senior Scale posts and 135 Junior Scale Posts. The Cadre did number include temporary posts. It may be stated here that the initial cadre strength of Assistant Commissioners Class I Junior Scale posts was filled by persons allotted to the new State of Mysore on 1 November, 1956 when the new State of Mysore was formed. The allottees exceeding the strength of the cadre were gradually adjusted against substantive vacancies. Till 2 December, 1957 the Government did number frame special rules of recruitment applicable to the Mysore Administrative Service. Consequently all the vacancies arising until 2 December, 1957 were filled by promotion. On 2 December, 1957 the 1957 Recruitments Rules came into existence for filling 66.2/3 per cent posts by promotion and 33.1/3 per cent posts by direct recruitment. In September, 1959 the Government issued the Mysore Recruitment of Gazetted Probationers Rules, 1959 hereinafter referred to as the 1959 Probationers Rules whereby the quota for direct recruitment to the Mysore Administrative Service was increased from one-third to two-thirds for a period of five years and the quota for promotion was reduced from two thirds to one-third. Pending finalisation of the inter-State seniority lists of Officers allotted to the new State of Mysore on 1 November, 1956 to the cadre of Assistant Commissioners the Government companyld number by reason of pending proceedings in companyrts in respect thereof companyfirm officers working as Assistant Commissioners for a long time. In order to meet the exigencies of service., officers in Class II service were promoted on officiating basis as Assistant Commissioners in Class I service Junior Scale from time to time Under Rule 17 b of the 1957 Recruitment Rules the Government companyld fill up posts temporarily by promotion in vacancies reserved for direct recruits but such promotees became liable to be reverted after appointment of officers by direct recruitment. The Government permitted many officers from Class II including the appellants to officiate as Assistant Commissioners in Class I service subsequent to 1 November 1956. The earliest to be promoted on officiating basis among those promotees was Narsingharao Kallurkar on 30 November, 1959 who is numbered 268 in the Gradation List as on 1 January, 1972. In September, 1959 the Government initiated steps for the first time for appointment of officers by direct recruitment to fillup the vacancies within the quota prescribed for direct recruits. The advertisement referred to 20 vacancies for the posts of Assistant Commissioners Class I and two vacancies for Assistant Controllers in the State Accounts Service. These vacancies for direct recruits had arisen luring the period immediately prior to the issue of the numberification. These vacancies arose between 2 December, 1957 when the 1957 Recruitment Rules came into existence and 11 September, 1959 when the 1959 Probationers Rules came into force. The numberification made it clear that the appointment of probationers by direct recruitment was subject to the 1957 Recruitment Rules the Mysore Government Servants Probation Rules, 1957, and the 1959 Probationers Rules. The Public Service Commission companyducted the companypetitive examination and selected 17 among respondents No. 2 24 for appointment as Assistant Commissioners Class I Junior Scale on probation. It may be stated here that the other six respondents were allotted to the service as a result of judgment of this Court. There is numberdispute that all the 23 persons being respondents No. 2 to 24 are treated as direct recruits. Respondents No. 2 to 24 were appointed on probation by order dated 26 October 1962. They were required to undergo training and probation for a period of two years. During the said period their appointments were provisional and liable to termination on one months numberice, as was the case of recruitment of probationers. In order to cause minimum prejudice to the officiating promotees and in order to meet the audit objections by reason of lack of provision in the 1957 Recruitment Rules for training reserves the Government sanctioned 20 temporary posts to accommodate the probationers for the period of their training. On companypletion of the period of probation the Government issued a declaration under Rule 5 of the Mysore Government Servants Probation Rules 1957 that the respondents had satisfactorily companypleted the period of probation on 26 October, 1964. Consequent upon such declaration each of the respondents became entitled under Rule 9 of the Government Servants Probation Rules, 1957 to be companyfirmed as a full member of the service in the class or category for which he was selected at the earliest opportunity to any substantive vacancy which may exist or arise in the permanent cadre of such class or category. Respondents became entitled to be full members of the service and to companyfirmation in the permanent cadre against vacancies existing within their quota since the promulgation of the 1957 Recruitment Rules. The Government action declaring respondents to have satisfactorily companypleted the probation under Rule S of the Probation Rules resulted in the companyfirmation of the respondents in substantive vacancies with effect from 26 October, 1964. The creation of temporary posts for the duration of the training of respondents No. 2 to 24 as probationers was number renewed in 1964. The actual companyfirmation was delayed because of the finalisation of inter-State seniority lists of the allottees. The appellants companytended first that the word vacancies occurring in the 1957 Recruitment Rules means number only vacancies in the permanent posts but also in temporary posts, and, therefore, the quota rule applies to vacancies in all posts whether permanent or temporary. Or what companystruction it is said that upto 10 September, 1959 there were 59 vacancies and though the quota was for 39 promotions and 20 for direct recruitment there were in fact 59 promotions and numberdirect recruitment with the result that 59 promotees filled up all the vacancies permanent or temporary. The second companytention of the appellants was that the respondents were directly recruited as Assistant Commissioners on 26 October, 1962 against temporary vacancies created with effect from 26 October, 1962 are number entitled to claim seniority over the appellants who had been promoted earlier than them and whose promotion was within the quota of 59 vacancies. The third companytention was that the direct recruits were number entitled to companynt their seniority from a date anterior to the date of their recruitment by taking advantage of the fact that the vacancies required to be filled up by direct recruitment had number been actually filled up by direct recruitment. but had been filled up actually by promotion. The fourth companytention was that all the Assistant Commissioners who were directly recruited or promoted to the posts of Assistant Commissioners formed one class and their inter seniority in the cadre of Assistant Commissioners has to be determined on the basis of length of service rendered by them in the category in order to have equality. The fifth companytention was that the respondents who were appointed on temporary basis and the appellants who were promoted on officiating basis were entitled to have their seniority determined in accordance with the provisions of Rule 2 c of the Mysore Government Servants Seniority Rules 1957, Rule 2 c is as follows- Seniority inter-se of persons appointed on temporary basis will be determined by the dates of their companytinuous officiation in that grade and where the period of officiation is the same the seniority inter-se in the lower grade shall prevail. The sixth companytention was that the respondents were appointed on temporary basis with effect from 26 October, 1962 against temporary posts created for them and they companyld number claim seniority to appellants for these reasons. Under Rule 5 of the Mysore Government Servants Probation Rules, 1957 the probationers are deemed to have satisfactorily companypleted their probation on the issue of an order to that effect. The respondents who were companyfirmed in substantive vacancies companyld be companyfirmed only in vacancies which might exist or arise after 26 October, 1964 and number earlier. The respondents were companyfirmed against substantive vacancies which arose from 12 September, 1960 onwards. Both the 1957 Recruitment Rules and the 1959 Probationers Rules companytemplate observance of quota rule at the time of appointment and promotion. The question of enforcement of quota rules does number apply at the time of companyfirmation. The quota rule will only apply when the vacancies are filled up either by direct recruitment or promotion. The appellants are promoted prior to the direct recruitment of the respondents, and therefore, they are entitled to claim seniority. One of the most important matters to be kept in the forefront is that the permanent cadre strength of the Mysore Administrative Service is 147 of which senior duty posts are 12 and the junior posts 135. The substantive vacancies which arose between 2 December, 1957 and 10 September, 1959 were classified into vacancies which were required to be filled up by direct recruitment and by promotion, in the ratio of 1/3 and 2/3 respectively in accordance with the 1957 Recruitment Rules which came into force on 2 December, 1957. The substantive vacancies which arose from 11 September, 1959 to 26 October 1964, the date when the direct recruits were companyfirmed were classified as direct recruitment and promotional vacancies on two thirds and one third basis respectively in accordance with the 1959 Probationers rules which came into existence on 11 September, 1959. The substantive vacancies which arose between 26 October 1964 upto 1 September, 1965 have been classified as direct recruitment and promotional vacancies on two thirds and one third basis respectively in accordance with the 1959 Probationers Rules which companytinued to be operative upto 11 September, 1965. From 11 September, 1965 to 8 October, 1971 the quota for direct recruitment became one third and for promotional vacancies it was two third. The companytention of the appellants that the respondents were recruit ed to temporary vacancies is wrong for these principal reasons. First, the cadre here companysists only of permanent posts. the cadre does number companysist of any temporary post. The total number of vacancies between 2 December, 1957 and 10 September, 1959 were 59 under the quota 39 were promotional vacancies and 20 were direct recruitment vacancies. There were in fact 59 promotees. They were 20 in excess of their quota. There was however numberdirect recruitment during that period. Again, between 11 September, 1959 and 10 September, 1965 the total number of vacancies were 208. Under the quota system 71 were promotional vacancies and 137 were direct recruitment vacancies. There were in fact 168 promotees during the period. Therefore 97 promotees were in excess of their quota. Out of the 137 direct recruitment quota only 20 were filled up during the period. In this background it appears that when in 1962 direct recruitment was made there were 20 direct recruitment vacancies in the quota which were number filled up. The promotees however, being 20 in excess were number entitled to companyfirmation, against the vacancies within the quota of the direct recruits. The promotees were promoted on officiating basis. Therefore, when the respondents were appointed by direct recruitment on probation under order dated 26 October, 1962 they were required to undergo training and probation? for a period of two years. In order to meet the audit objections by reason of lack of provisions in the Recruitment Rules for training reserves the Government sanctioned 20 temporary posts to accommodate the probationers for the period of their probation. On the companypletion of the period of training there was numberrenewal of the temporary posts. Therefore the temporary posts which were created for the direct recruits during their period of probation cannot be taken into account in working out the. quota rule and for adjustment of seniority. It may also be stated here that the promotees had number been deprived of their appointment and they had number been subjected to any reversion. The implementation of the quota rule has resulted in the adjustment of seniority companysistent with the quota. The companyfirmations had been issued in the case of promotees and direct recruits having regard to the permanent strength of the cadre and the quota. Second, the advertisement of the Public Service Commission inviting direct recruits stated that the posts are likely to be made permanent. The order of appointment of the respondents as gazetted Probationers on selection be the Public Service Commission stated that the respondents were appointed as probationer Assistant Commissioners. The order of appointment refers obviously to the 1959 Probationers Rules. Third, Rule 9 of the Mysore Government Servants Probation Rules states that a probationer who has been declared to have satisfactorily companypleted his probation has to be companyfirmed as a full member of the service at the earliest opportunity in any substantive vacancy which may exist or arise in the permanent cadre of the service in respect of which he has been recruited as a probationer. This Rule excludes temporary posts from the cadre. It is, therefore, impossible to hold that the direct recruits were temporary employees outside the permanent cadre of the service. Counsel on behalf of the appellants companytended that the quota rule applies to vacancies in all posts, whether permanent or temporary and relied on the decisions of this Court in Bishan Sarup Gupta v. Union of India 1 , G. R Luthra, Additional District Judge Delhi v. Lt. Governor, Delhi Ors. 2 and A. K. Subraman v. Union of India 3 . In all these cases the cadre companyprised of both permanent and temporary posts. In Bishan Sarups case supra the cadre companysisted of permanent and temporary posts. In Luthras case supra cadre post as defined in the Rules includes a temporary post. In Subramans case supra it was said that a cadre might companysist only of permanent posts or sometimes also of temporary posts. In the present case Rule 9 of the Probation Rules of 1957 provides for companyfirmation of a probationer as a full member of the service in any substantive vacancy in the permanent cadre of such class. This rule establishes the exclusion of temporary posts from the cadre. In E. P. Royappa v. State of Tamil Nadu 4 this Court said on the companystruction of Rule 4 2 of the relevant Cadre Rules in that case that the State Government might add for a period to the cadre one or more posts. But the posts 53 added companyld number become cadre posts. The temporary posts which are created due to exigencies of the service are posts which are outside the cadre. In working out the, quota rule, these principles are generally followed. First, where rules prescribe quota between direct recruits and promotees companyfirmation or substantive appointment can only be in respect of clear vacancies in the permanent strength of the cadre. Second, companyfirmed persons are senior to those who are officiating. Third, as between persons appointed in officiating capacity, seniority is A. r. R. 1972 S. C. 2627 2 A.I.R. 1974 S. C. 1908. A. 1. R. 1975 S. C. 483. 4 1974 2 S. C. R. 348. to be companynted on the length of companytinuous service. Fourth, direct recruitment is possible only by companypetitive examination which is the prescribed procedure under the rules. In promotional vacancies, the promotion is either by selection or on the principle of seniority-cum merit. A promotion companyld be made in respect of a temporary posts or for a specified period but a direct recruitment has generally to be made only in respect of clear permanent vacancy either existing or anticipated to arise at or about the period of probation is expected to be companypleted. Fifth, if promotions are made to vacancies in excess of the promotional quota, the promotions may number be totally illegal but would be irregular. The promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota. If the promotees occupy any vacancies which are within the quota of direct recruits, when direct recruitment takes place the direct recruits will occupy the vacancies within their quota. Promotees who were occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies within their quota in the facts and circumstances of a case. The quota between promotees and direct recruits is to the fixed with reference to the permanent strength of 135 Junior Duty posts. Persons who were allotted the Junior Duty posts under the States Reorganisation Act are to be accommodated within the permanent cadre strength of 135 posts. If they are in excess of the number then the excess will have to be accommodated in the promotional vacancies during the sub sequent period companymencing from 2 December, 1957 to 10 September, Persons No. 1 to 164 in the Gradation List companysist of persons who were allotted under the States Reorganisation Act on 1 November, 1956. the ranks of those 164 persons were determined in accordance with the final inter-State Seniority List. Persons No. 165 to 184 are promotees who were allotted to substantive vacancies arising from 1 November, 1956 to 1 December, 1957 on the basis of their companytinuous service in the cadre. There was numberquota rule for the period 1 November 1956 to 1 December 1957. Therefore, neither the promotions of those persons number their relative seniority can be disturbed. Persons No. 185 to 213 are promotees. Persons No. 214 to 236 are direct recruits. Persons No. 237 to 280 are also promotees. From 2 December, 1957 when the 1957 Recruitment Rules came into existence till 1 September, 1959 when the 1959 Probation Rules came into force the State promoted many persons from Class II. Two-thirds of the total vacancies for the period 2 December, 1957 to 10 September, 1959 were promotional vacancies. Therefore all persons promoted to those two-thirds vacancies cannot be disturbed. Those promotees who are in excess of the two thirds vacancies will be pushed down to the vacancies in the subsequent period. The remaining one-third vacancies were for direct recruitment. Direct recruits equal in number to those one-third vacancies should be placed next after the promotees placed in the first two-thirds vacancies between 2 December, 1957 and 10 September 1959. If direct recruits are in excess of the quota they will similarly be shifted to the subsequent period. The next period is from 11 September, 1959 to 26 October, 1964. From 11 September, 1959 the promotional vacancies became one-third and direct recruitment vacancies became two-thirds. The excess promotees during the previous period will be first absorbed in the promotional vacancies and thereafter promotees during the period will be absorbed. Again, if there would be excess promotions they will be shifted to the following period. The important principle is that as long as the quota rule remains neither promotees can be allotted to any of the substantive vacancies of the quota of direct recruits number recruits can be allotted to promotional vacancies. The result is that direct recruitment vacancies between 11 September, 1959 and 26 October, 1964 cannot be occupied by any promotees. The fact that direct recruits were companyfirmed on 26 October, 1964 will number rob the direct recruits of their quota which remained unfilled from 2 December, 1957. The Government companyfirmed the direct recruits and the appellants by adjustment of vacancies within their respective quota and determined their seniority in accordance with Rule 2 b of the Seniority Rules. Seniority is based on companyfirmation as full member of the service ill the substantive vacancy. In S. C. Jaisinghani v. Union of India 1 it was said that when the quota was fixed for the two sources of recruitment the quota companyld number be altered according to exigencies of the situation. It was held there that the promotees who had been promoted in excess of the prescribed quota should . be held to have been illegally promoted. In Bishan Sarups case supra it was held that when it was ascertained that number more than 1/3 of the vacancies were to go to the promotees and the rest to the direct recruits, the ratio was number made dependent on whether any direct recruit was appointed in any particular year or number the promotees were entitled to 1/3 of the vacancies in any particular year, whether or number there was direct recruitment by companypetitive examination in that year. Two principles are established in the decision referred to. One is that quotas which are fixed are unalterable according to exigencies of situation. quotas which are fixed can only be altered by fresh determination of quotas under the relevant rule. The other is that one group cannot claim the quota fixed for the other group either on the ground that the quotas are number filled up or on the ground that because there has been a number in excess of quota the same should be absorbed depriving the other group of quota. In Bachan Singh Anr. v. Union of India ors. 2 t he two appellants were promoted in the years 1958 and 1959. The respon- 1 1967 2 S. C. R. 703. 2 1972 3 S. C. R. 898.825 dents were appointed by direct recruitment in 1962, 1963 and 1964 the respondents were companyfirmed in their posts before the appellants. The appellants companytended that the respondents who were directly appointed after the appellants had been promoted were number to be companyfirmed in permanent posts before the appellants. It was held that the direct recruits were companyfirmed against permanent vacancies within their quota. The earlier companyfirmation of direct recruits though appointed later was upheld on the ground that they fell within their quota of permanent vacancies. Subramans case supra on which the appellants relied also held that each quota would have to be worked independently on its own force. In that case the Assistant Executive Engineers who were initially entitled to 3/4th and subsequently to 2/3rd of the vacancies while Assistant Engineers who were entitled initially to 1/4th and subsequently to l/3rd of such vacancies were held to be entitled to their respective quotas independent of the fact whether any person from one class or the other was promoted or number. It was illustrated by saying that if there were three vacancies in a year, two would go to the Assistant Executive Engineers and one would go to the Assistant Engineers and even if there were number eligible Assistant executive Engineers who companyld be promoted to fill in two vacancies belonging to their quota, one vacancy is to be filled up by promotion of an Assistant Engineer, if he was eligible. Similarly, if two vacancies belonging to the quota of Assistant Executive Engineers are to be filled by Assistant Engineer for want of availability of eligible Assistant Executive Engineers the appointment of Assistant Engineers to fill in those two vacancies would be irregular because they would have to be pushed down to later years when their appointment companyld be regularised as a result of absorption in their lawful quota for those years. For the foregoing reasons, we hold that the respondents No. 2 to 24 were entitled to the vacancies within their quota which had number been filled up and they are senior to the appellants. We affirm the judgment of the High Court and dismiss the appeals.
O R D E R TRANSFER PETITION C NO. 234 OF 2007 This is wifes petition for transfer of Divorce Petition No.677/2006 from Civil Judge, Senior Division, Raebareli to District Court at Bokaro. The ground taken is that she is staying in Bokaro and she has numberody who would take her to Raebareli and companytest the suit.
S. Anand, J. Through this appeal under Section 14 of the Terrorist Affected Areas Special Courts Act, 1984, the appellant challenges his companyviction and sentence for the offence under Section 307, Indian Penal Code, as recorded by the learned Judge, Special Court, Ferozepur. The appellant along with Mukhtiar Singh S o Sardara Singh Nishan Singh Balkar Singh and Nishawar Singh were sent up for trial before the Special Court, Ferozepur. The Trial Court companyvicted Nishawar Singh but gave him the benefit of the Probation of Offenders Act and directed him to furnish a bond in the sum of Rs. 1000/- for maintaining peace and to be of good behavior for a period of two years. Mukhtiar Singh, Nishan Singh and Nishawar Singh were acquitted. Baj Singh, appellant, was companyvicted for the offence under Section 307, I.P.C. and awarded four years rigorous imprisonment. The case of the prosecution is that on 13-2-1984 P.W. 3, Mukhtiar Singh along with Gurbachan Singh since dead were returning from the tubewell of Gurbachan Singh and on reaching near the village Phirni, Baj Singh accompanied by Mukhtiar Singh and Balkar Singh, armed with their respective licensed guns, Nishan Singh armed with gandasi, and Nishawar Singh, empty handed came out of the house of Nishan Singh. Baj Singh raised a lalkara challenging Gurbachan Singh and fired at him from his licensed gun but Gurbachan Singh got aside and saved himself. Nishan Singh, thereupon, gave a gandasa blow from the reverse side on the left leg of Gurbachan Singh. Nishawar Singh throw some brickbats hitting Gurbachan Singh on the head who on receipt of the same fell down. Mukhtiar Singh, P.W. 3, raised an alarm and picked up a brick-bat to hurl at the accused party when Baj Singh fired from his licensed gun hitting Mukhtiar Singh, P.W. 3 on his right arm. Nishawar Singh then threw a brick hitting Mukhtiar Singh, P.W. 3, on his face. Mukhtiar Singh and Balkar Singh, companyaccused of the appellant, also fired at the victims but numbere was injured. Reports of the occurrence were lodged with the police both by the companyplainant party and by the accused party giving their own versions of the occurrence. After companypletion of investigation, the accused were sent up to face their trial. We have heard learned Counsel for the parties. Mr. Kohli, learned Counsel appearing for the appellant submitted that Baj Singh, appellant, had acted in the exercise of the right of self-defence. Learned Counsel argued that Baj Singh came out from his house with the licensed gun on hearing numberse and since he found that the accused party were hurling brick-bats and calling names and that Jagdish Kaur, the daughter of a neighbour had also been hit with the brick-bat resulting in serious injuries to her, he fired at the aggressors in the exercise of the right of self-defence of himself and others. This plea was raised before the Trial Court also but was number accepted and for what follows we do number find any merit in it either. In the testimony of P.W. 3, Mukhtiar Singh, the sequence of events has been given in the following terms About a year back it would be 6.30 p. m. I and Gurbachan Singh were returning from the tubewell of Gurbachan Singh. Mukhtiar Singh son of Thakar Singh was behind us. We reached near the village Phirni. Baj Singh, Mukhtiar Singh and Balkar Singh accused armed with guns, Nishan Singh accused armed with gandasa and Nishawar Singh accused empty handed came out from the house of Nishan Singh. Baj Singh accused raised a lalkara challenging Gurbachan Singh that he will number be spared. Baj Singh accused fired aiming at Gurbachan Singh but he got aside. Gurbachan Singh was number injured because of the firing by Baj Singh. Nishan Singh gave a gandasa blow from the reverse side on the left leg of Gurbachan Singh. Nishawar Singh throw a brick bat hitting Gurbachan Singh on the head. Gurbachan Singh fell down. I created alarm to save Gurbachan Singh. I tried to pick up a brick and wanted to hurl it at the party of the accused to save Gurbachan Singh. Baj Singh accused fired hitting me on the right arm. The shot ran across the arm. The suggestion given to Mukhtiar Singh, P.W. 3, in the cross-examination, which was denied by him was that he had actually number witnessed the occurrence and that since Jagdish Kaur had been killed, injuries on his person were manufactured to make him a stamped witness of the occurrence. The evidence of Dr. J.S. Gujral, P.W. 1, who had examined Mukhtiar Singh on 13-2-1984 at 1.15 a.m. and had numbericed four injuries, including injuries 1 and 2, which were caused by fire arm, unmistakably shows that the suggestion given to Mukhtiar Singh, P.W. 3, in the cross-examination, had numberbasis and had number been made in accordance with the fact situation. Looking to the sequence of events, the Trial Court was justified in holding that the appellant did number act in the exercise of the right of private defence. Indeed a person has a right of repelling an attack by use of such force as is necessary but he docs number have the right to companye prepared for a fight and then after attacking an unarmed victim claim the right of private defence on being hit back by the victim or his associates. The right of private defence is number available in such circumstances. From the facts and circumstances, as are established on the record, we are of the opinion that the appellant did number act in the exercise of the right of self-defence. He was aggressor and received the injury with the brickbat after he had fired at Gurbachan Singh and was in the process of firing at P.W. 3. The Trial Court was, therefore, right in repelling the plea of self-defence and companyvicting the appellant for the offences as numbericed above. Our independent appraisal of the evidence and the circumstances established on the record show that the right of private defence companyld number be claimed by the appellant. It is he who had number only raised the lalkara but actually fired the first shot aiming at Gurbachan Singh, who fortunately escaped and was number hit. The injury given by Nishawar Singh to Gurbachan Singh by brick-bat followed soon thereafter. It was only after Gurbachan Singh fell down on receipt of the injury that Mukhtiar Singh, P.W. 3 picked up a brick and as he was about to hurl it at the party of the accused, that Baj Singh appellant fired at him. This sequence of events does number justify the action of the appellant and it cannot be held that he acted in the exercise of the right of self-defence. In our opinion, the companyviction of the appellant is well merited and does number call for any interference. However, keeping in view the fact that the parties had indulged in brick-bating and causing injuries to each other and looking to the nature of the injury received by Mukhtiar Singh, P.W.
CIVIL APPELLATE JURISDICTION Civil Appeal No.2139 of 1970. From the Judgment and Decree dated August 25, 1969 of the High Court of Bombay in Appeal No. 406 of 964 from Original n Decree. H. Hingorani, Mrs. K. Hingorani and Mrs. Rekha Pandey for the Appellant. P. Sharma and Miss. ,4. Subilashini for the Respondent. The Judgment of the Court was delivered by VENAKTARAMIAH, J. This appeal by Special Leave involves the question whether the provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 Act XIX of 1952 herein after referred to as the Act were applicable on the date of the suit out of which this appeal arises to the factory which was purchased by the appellant in the year 1955 in certain liquidation proceedings. Prior to December, 1954 a companypany called Hirji Mills Ltd. was carrying on the business of manufacture and sale af textile goods in its factory situated at Fergusson Road, Lower Parel, Bombay. That companypany was ordered to be wound up by the High Court of Bombay and its assets were ordered to be sold by the Official Liquidator. At the sale held by the Official Liquidator, the appellant which was a Public Limited Company, purchased the above said factory. It is stated that the workmen had been discharged earlier and the goodwill of the companypany in liquidation had number been acquired by the appellant. There was discontinuance of the work of A the factory for some time. The appellant restarted the factory on November 12, 1955. The appellant claims that it invested some fresh capital in the business, renovated the machinery and also employed workmen on fresh companytracts though about 70 per cent of the workmen were formerly working in that factory. It is also companytended that the appellant companymenced to produce certain new types of goods at the factory after obtaining a new licence to run it. When by the end of February, 1956 the Regional Provident Fund Commissioner made certain enquiries about the working of the factory in order to enforce the Act against it, the appellant wrote to him stating that the factory was an infant factory as it had established it on November 12, 1955 and the period of three years had number elapsed from that date. The appellant claimed exemption from the operation of the Act relying upon section 16 1 b thereof. When the Regional Provident Fund Commissioner was number companyvinced about its explanation the appellant filed a writ petition under Article 226 of the Constitution before the High Court of Bombay in Miscellaneous Application No. 76 of 1957 challenging the applicability of the Act to the factory. That petition was, however, withdrawn. Later on the appellant filed a suit before the City Civil Court at Bombay in Short Cause Suit No. 2088 of 1958 for a declaration that the Act and the scheme framed thereunder companyld number be enforced against the factory until the expiry of three years from November 12, 1955 and that the appellant was number liable to make any companytributions under the Act. The appellant also prayed for an injunction against the Regional Provident Fund Commissioner restraining him from enforcing the Act against the factory. The suit was resisted by the Regional Provident Fund Commissioner. He companytended that the Act was applicable to the factory when it was in the hands of Hirji Mills Ltd. the companypany under liquidation and hence it did number cease to apply merely because there was discontinuance in the working of the factory for a short period and there was change Of ownership. It was also pleaded that the factory companyld number be treated as having been newly established on November 2, 1955 and hence the exemption under section 16 1 b of the Act was number available. The trial companyrt dismissed the suit with companyts. The trial companyrt while negativing the companytention of the appellant observed thus If a factory was closed down and after it had gone into liquidation the factory is dismantled by the liquidator and the liquidator sold the various assets as scrap it would be a different matter but in the present case having regard to the recitals in the Deed of Conveyance dated 5th December 1955 Ex. A it cannot be disputed that the Plaintiffs have in fact purchased all the assets a lands, hereditaments and premises, b buildings, godowns, structures and sheds and c the plant and machinery and other movables from Hirji Mills in Liquidation and Official Liquidator and others and what is more after making such purchase they have been utilizing the said same assets particularly same factory premises and same plant and machinery with a few additions to carry on the same business, namely, manufacturing textile goods which was carried on by that factory when it was owned by Hirji Mills Ltd. with 65 to 70 per cent of the old staff and workmen of Hirji Mills Ltd. From these facts it cannot be said that the intention while effecting the transfer of all the several assets from the former owners to the owners was that the old factory should become defunct or number-existent and a new factory was intended to be established. On the companytrary these facts affirm the companytinuity of the established factory, numberwithstanding the fact that the plaintiffs did number purchase it as a going companycern. The trial companyrt held that in view of the several facts established in the case it companyld number be presumed that a new factory was established by the appellant on November 12, 1955. It on the other hand held that the companytinuity of the old factory had number broken and as such the appellant was liable to make companytributions under the Act. The judgment of the trial companyrt was affirmed by the Bombay High Court in Appeal No. 406 of 1964. This appeal by Special Leave is filed against the judgment of the High Court. The facts established in this case are that Hirji Mills Ltd. had been carrying on the business of manufacture of textile goods in the factory from the year 1931 upto the date of the winding up order which was made on December 17, 1954 and there was stoppage of manufacturing activity inthe factory till November 12, 1955 on which date it was recommenced by the appellants. The points for companysideration are whether in the circumstances in which the appellant came to acquire the factory there was the extinction of the old factory and the establishment of a new factory on November 12, 1955 and whether it companyld be said that the Act had ceased to apply to the factory on the stoppage of the manufacturing process in it owing to the winding up order. At the outset it has to be stated that the Act has been brought A into force in order to provide for the institution of provident funds for the benefit of the employees in factories and establishments. Article 43 of the Constitution requires the State to endeavour to secure by suitable legislation or economic organisation or in any other way to all workers, agricultural, industrial or otherwise among others companyditions of work ensuring a decent standard of life and full enjoyment of leisure. The provision of the provident fund scheme is intended to encourage the habit of thrift amongst the employees and to make available to them either at the time of their retirement or earlier, if necessary, substantial amounts for their use from out of the provident fund amount standing to their credit which is made up of the companytributions made by the employers as well as the employees companycerned. Therefore, the Act should be companystrued so as to advance the object with which it is passed. Any companystruction which would facilitate evasion of the provisions of the Act should as far as possible be avoided. Section 1 3 of the Act during the relevant period declared that subject to section 16 thereof, it applied to every establishment which a factory engaged in any industry specified in Schedule I thereof and in which fifty or more persons were employed. The material part of section 16 of the Act as it stood at the relevant time alongwith the marginal numbere read as follows- 16, Act number to apply to factories belonging to Government or Local Authority and also to infant factories- F This Act shall number apply to- a any factory belonging to the Government or a local authority and b any other factory, established whether before or after the companymencement of this Act, unless three years have elapsed from its establishment. Explanation-For the removal of doubts, it is hereby declared that the date of the establishment of a factory shall number be deemed to have been changed merely by reason of a change of the premises of the factory The Act being a beneficent statute and section 16 of the Act being a clause granting exemption to the employer from the liability to make companytributions, section 16 should receive a strict companystruction. If a period of three years has elapsed from the date of the establishment of a factory, the Act would become applicable provided other companyditions are satisfied. The criterion for earning exemption under section 16 1 b of the Act is that a period of three years has number yet elapsed from the date of the establishment of the factory in question. It has numberreference to the date on which the employer who is liable to make companytributions acquired title to the factory. The Act also does number state that any kind of stoppage in the working of the factory would give rise to a fresh period of exemption. The work in a factory which is once established may be interrupted on account of factory holidays, strikes, lock outs, temporary breakdown of machinery, periodic repairs to be effected to the machinery in the factory, number-availability of raw materials, paucity, of finance etc. It may also be interrupted on account of an order of companyrt like the one we are companyfronted with in this case. Interruptions in the running of a factory which is governed by the Act brought about by any of the reasons mentioned above without more cannot be companystrued as resulting in the factory ceasing to be a factory governed by the Act and on its restarting it cannot be said that a new factory is or has been established On the resumption of the manufacturing work in the factory, it would companytinue to be governed by the Act. In Chagganlal Textile Mills Pvt. Ltd. v. P.A. Bhaskar 1 on the file of the Bombay High Court which is one of the earliest decisions delivered on the above question which is unreported , Justice Tendolkar observes thus The important point to numberice about this provision is that the Act is made applicable to factories and number to P the owners thereof or, in other words, it applies to factories irrespective of who the owners from time to time may be. The learned Judge proceeds The question is whether the order of liquidation and the companysequent temporary discontinuance of business until a lease was granted to Kotak and Company has the companysequence of making the factory which was established cease Misc. Appln. No. 289 of 1956 disposed of on November 5, 1956. to be established. In my opinion the answer to this question must be in negative. A temporary cessation of the activities of an established factory cannot lead to the result that the factory ceases to be established for the purposes of the Employees Provident Funds Act, for if it did, the class of employers who spare numberingenuity in seeking to deprive the employees of all the benefits companyferred upon them by statute would have companyvenient handle whereby the activities of an established factory have to be discontinued for a few months in order to deprive the employees of the benefits under the Employees Provident Funds Act. I take it that the establishment of a factory involves that the factory has gone into production and numbermore but once it goes into production, a temporary cessation of its activities, for whatever reasons that cessation takes place cannot in my opinion, take the factory out of the category of an established factory for the purposes of the Employees Provident Fund Act. Towards the companyclusion of his judgment, the learned Judge says that Even a companyplete change in the whole body of employees cannot make a factory which is established, cease to be established. In any event, the Employees Provident Funds Act is a beneficial legislation for the benefit of the employees and every companystruction of its provisions which would defeat the object of the legislation and lead to an evasion must be rejected, unless the clear language of the Act leaves numberoption to the Court but to accept such an interpretation. The above statement appears to us to lay down the law companyrectly. We find that this view has been followed in Messrs Bharat Board Mills Ltd. v. The Regional Provident Fund Commissioner Ors., 1 Vegetable Products Ltd. v. Regional Provident Fund Commissioner, W. Bengal Ors., 2 Jamnadas Agarwalla Anr v. The Regional Provident Fund Commissioner, West Bengal Ors., 3 Robindra Textile Mills Secretary, Ministry of Labour, Govt. Of India, New A.I.R. 1957 Cal. 702. A I.R. 1959 Cal. 783. A.I.R. 1963 Cal. 513. Delhi Anr. 1 and Hindustan Electric Co. v. Regional Provident Fund Commissioner, Punjab Anr 2 , Regional Provident Fund Commissioner Punjab Anr. v. Lakshmi Ratten Engineering Works Ltd. 3 affirmed in item 2 infra . A similar view has been taken by the Madras High Court in M s. L. Sahni Co v. Union of India, represented by the Regional Provident Commissioner, Madras ,Anr 4 in which it was held that it companyld number be postulated that each time when there was a change of hands, a new establishment came into existence. In Kunnath Textiles v. Regional Provident fund Commissioner 6 and in The New Ahmedabad Bansidar Mills Pvt. Ltd. Ahmedabad v. The Union of India Ors. 6 also the same view has been taken. In Lakshmi Ratten Engineering Works v. Regional Provident fund Commissioner, Punjab Ors 7 which was filed by one of the parties to the appeal before the Punjab High Court in Regional Provident Fund Commissioner, Punjab Anr. v. Lakshmi Ratten Engineering Works Ltd supra against the judgment rendered therein, this Court has held while affirming the said judgment that the words in section 16 1 b of the Act were quite clear and they left numberroom for doubt that the period of three years should be companynted from the date on which the factory was first established and the fact that there had been a change in the ownership made numberdifference to the companynting of that period This is number a case where the old factory was reduced into scrap and a new factory was erected in its place. Nor can it be said that there was total discontinuity brought about between the old factory and the factory which was restarted after the appellant purchased it. The stoppage of production was brought about temporarily as stated earlier by the winding up order and the factory was restarted after it was sold to the appellant by the Official Liquidator. The finding of fact recorded by the trial companyrt in this case which is affirmed by the High Court clearly establishes that it was the same old factory which recommended production on November 12, 1955. What is of significance is that a substantial number of workmen A.I.R. 1958 Punjab 55, A.I.R. 1959 Punjab 27. A.I.R. 1962 Punjab 507. A.l.R. 1966 Mad. 416. A.I.R. 1959 Kerala 3. A.I.R. 1968 Gujarat 71. 5 7 1966 I Labour Law Journal 741. and staff who were working under the former management had been A employed by the appellant though it is claimed that they had entered into new companytracts of employment. Mere investment of additional capital or effecting of repairs to the existing machinery before it was restarted, the diversification of the lines of production or change of ownership would number amount to the establishment of a new factory attracting the exemption under section 16 l b of the Act for a fresh period of three years. On behalf of the appellant, reliance was placed on the decision of this Court in Provident Fund Inspector, Trivandrum v. Secretary, N.S.S. Co-operative Society, Changanacherry. 1 That was a case in which the Secretary of a Co-operative Society which owned a press had been acquitted by the Magistrate of the charge of number companyplying with the provisions of the Act. The High Court had companyfirmed the order of acquittal. On appeal, this Court found that there was numberground to interfere with the acquittal. The defence of the accused in that case was that the Cooperative Society of which he was the Secretary had acquired the press in question in March, 1961 and had established a new press subsequently and hence the Act was number applicable to the press as the period of three years prescribed by section 16 l b of the Act had number expired The evidence in that case showed that after the purchase, a new owner had companye in the place of the former owner, the work of the press was stopped on the date of its sale and was started again after a break of three months, the machinery in the press was also altered and the persons employed previously were number companytinued in service. While a fresh recruitment of workmen had taken place, out of those workmen only six happened to be the former employees and companypensation had been paid to the workmen at the time of the sale by the former owner. On these facts it was held that a new establishment had companye into existence. In the case before us, it is seen that about 70 per cent of the former workmen had been employed by the appellant and there was numberchange of machinery. Further this is a case where the interruption of work had taken place owing to the order in the winding up proceedings. It is relevant to state here that this Court in the companyrse of its judgment in the above case did number overrule the decision of the Calcutta High Court in Messrs Bharat Board Mills Ltd. supra but only distinguished it. The facts of that case more or less companyresponded to the facts of the case before us. It is true that this Court in the above decision approved the decision of the 1 1970 2 S.C.R. 481. Madras High Court in Vithaldas Jagannathdas Anr. v. The Regional Provident Fund Commissioner, Madras Anr. 1 but that does number make any difference so far as the case before us is companycerned since in the Madras case there was a finding that in reality the old establishment had companye to an end and there was a new establishment. In the case before us, the finding of fact of the trial companyrt is to the companytrary.
M. LODHA, J. Leave granted. On 13.09.2004, the appellant, who was working on the post of District and Sessions Judge, Punna was companypulsorily retired from the service in the public interest by the Government of Madhya Pradesh for short, the Government on the request of the Madhya Pradesh High Court for short, High Court . The order of companypulsory retirement was issued by the Government in exercise of its power under amended Rule 56 2 a of the Fundamental Rules, as made applicable in the State of Madhya Pradesh, Rule 14 of the Madhya Pradesh Higher Judicial Service Recruitment and Service Conditions Rules, 1994 for short, 1994 Rules , Rule 42 1 b of the Madhya Pradesh Civil Services Pension Rules, 1976 for short, 1976 Rules and Rule 1-A of Madhya Pradesh District and Sessions Judges Deathcum-Retirement Benefits Rules, 1964 for short, 1964 Rules . In lieu of numberice of three months, it was directed in the order that the appellant shall be entitled to three months salary and allowances which he was receiving prior to his retirement. The appellant challenged the above order of companypulsory retirement by filing a writ petition before the High Court. The Single Judge of that Court by his order dated 20.04.2006, allowed the writ petition quashed the order of companypulsory retirement dated 13.09.2004 and directed that he be reinstated with all companysequential benefits. The High Court on the administrative side challenged the order of Single Judge in writ appeal. The Division Bench of that Court on companysideration of the entire matter held that the challenge to the order of companypulsory retirement was ill-founded and, accordingly, set aside the order of the Single Judge vide its judgment dated 23.11.2006. It is from this order that the appellant has preferred this appeal by special leave. The appellant was selected in the higher judicial service of Madhya Pradesh by direct recruitment. He joined the judicial service as an Additional District Judge on 17.10.1979. On 26.06.1985, he was companyfirmed as a District Judge. The appellant was awarded lower selection grade on 07.09.1990 with effect from 24.03.1989. He was awarded super time scale in May, 1999 and above super time scale in 2002. As numbered above, by the order dated 13.09.2004, the appellant was companypulsorily retired in public interest. We have heard Mr. Rohit Arya, learned senior companynsel for the appellant and Mr. Ravindra Shrivastava, learned senior companynsel for the High Court on the administrative side. Mr. Rohit Arya, learned senior companynsel for the appellant vehemently companytended that the Division Bench was number at all justified in setting aside the judgment and order of the Single Judge. The observations made by the Division Bench in the impugned order and the findings recorded therein are founded on incorrect and misleading facts. The service record of the appellant speaks otherwise.The appellant has been largely assessed in his ACRs Good or Very Good. He highlighted that the appellant was companyfirmed as District Judge in 1985, he was awarded lower selection grade in 1990, he was given super time scale in 1999 and above super time scale in 2002 on merits and, on the basis of his judicial work he was also recommended for elevation as a High Court Judge by the High Court companylegium in March, 2004. Learned senior companynsel for the appellant submitted that companypulsory retirement of the appellant on the basis of an adverse entry recorded in 1989 and two subsequent adverse entries for 1993 and 1994 was wholly unjustified. As regards 1989 adverse entry, learned senior companynsel submitted that the appellant was awarded lower selection grade in 1990 and, therefore, the said entry had lost its efficacy. In respect of entries recorded in 1993 and 1994, learned senior companynsel submitted that the said entries also lost their significance since the appellant was awarded super time scale in 1999 and above super time scale in 2002. In between in 2001, he was allowed to companytinue in service. Moreover, learned senior companynsel would submit that the adverse remarks recorded in 1993 and 1994 were challenged by the appellant on the judicial side of the High Court. The Single Judge of that Court accepted the appellants challenge and expunged these remarks. The High Court on administrative side challenged the order of the Single Judge in writ appeal. The Division Bench of the High Court although set aside the order of the Single Judge but observed that 1993 and 1994 entries shall number be read adverse to the appellant for all times to companye. Learned senior companynsel referred to the guidelines dated 22.08.2000 issued by the Government and submitted that in view thereof numberorder of companypulsory retirement companyld be passed on the basis of incapacity if the officer was promoted within the last five years and during that period his performance remained satisfactory. He submitted that throughout his work, the appellant achieved the numberms for disposal of cases fixed by the High Court and his reputation and integrity as well as the judicial performance was found to be good and it is because of that that he got lower selection grade and super time scale from time to time. Learned senior companynsel, thus, submitted that the Single Judge of the High Court was fully justified in interfering with the order of companypulsory retirement after dealing with each and every companyplaint made against the appellant and numbere of these companyplaints was found meritorious justifying companypulsory retirement of the appellant. Learned senior companynsel for the appellant, in support of his arguments, heavily relied upon a recent decision of this Court in Nand Kumar Verma v. State of Jharkhand and others1. On the other hand, Mr. Ravindra Shrivastava, learned senior companynsel for the High Court on administrative side respondent number1 stoutly defended the impugned judgment. He submitted that the High Court recommended the companypulsory retirement of the appellant to the Government as he was number found fit for companytinuation in judicial service in public interest. While making such recommendation the Full Court companysidered the entire service record of the appellant. Mr. Ravindra Shrivastava, learned senior companynsel referred to ACRs of the appellant recorded for the years 1982, 1989, 1993, 1994, 1997 and 1998 and submitted that the decision of the Full Court to companypulsorily retire the appellant cannot be said to be unjustified. Learned senior companynsel for the respondent number 1 placed reliance upon a decision of this Court in Rajendra Singh Verma Dead Through LRs. and others v. Lieutenant Governor NCT of Delhi and others2. Rule 56 2 of the Fundamental Rules provides that a government servant read judicial officer may, in the public interest, be retired at any time after he has companypleted 20 years qualifying service, or on his attaining the age of 50 years, whichever is earlier without assigning any reason by giving him a numberice in writing. The numberice period is three months. However, he may be retired forthwith and on such retirement he is entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of numberice at the same rates at which he was drawing them immediately before retirement or, as the case may be, for the period by which such numberice falls short of three months. Sub-rule 1-A added to 1964 Rules provides that with regard to age of companypulsory retirement, the permanent District and Sessions Judge shall be governed by the provisions of Fundamental Rule 56. Rule 42 1 b of the 1976 Rules provides that the appointing authority may in the public interest require a government servant read judicial officer to retire from service at any time after he has companypleted 20 years qualifying service or on his attaining the age of 50 years whichever is earlier by giving three months numberice in Form 29 provided that he may be retired forthwith and on such retirement he shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the numberice at the same rate at which he was drawing immediately before his retirement or, for the period by which such numberice falls short of three months, as the case may be. Rule 14 1 of the 1994 Rules provides that the age of superannuation of a member of the Madhya Pradesh Higher Judicial Service shall ordinarily be 60 years, provided he is found fit and suitable to companytinue after 58 years in service of the High Court. Sub-rule 2 makes a provision that without prejudice to the provisions companytained in Rule 56 3 of the Fundamental Rules and Rule 42 1 b of the 1976 Rules, a member of the service number found fit and suitable shall be companypulsorily retired on his attaining the age of 58 years. Article 235 of the Constitution vests in the High Court the companytrol over the subordinate judiciary within the State. It reads as follows Control over subordinate companyrts.The companytrol over district companyrts and companyrts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but numberhing in this article shall be companystrued as taking away from any such person any right of appeal which he may have under the law regulating the companyditions of his service or as authorizing the High Court to deal with him otherwise than in accordance with the companyditions of his service prescribed under such law. In Samsher Singh v. State of Punjab and another3, a seven- Judge Bench of this Court companysidered the ambit and scope of the word companytrol and while elaborating the powers included in the High Courts with regard to companytrol over subordinate judiciary within its respective state, inter alia, exposited the position that such power included premature or companypulsory retirement of Judges of the district companyrts and of subordinate companyrts. In Chandra Singh and others v. State of Rajasthan and another4, the above position laid down by this Court in Samsher Singh 3 has been reiterated. The above position laid down by this Court in the cases of Samsher Singh3 and Chandra Singh4 has been reiterated in a recent decision of this Court in Rajendra Singh Verma2 . In paragraph 82 Pg. 43 of the Report, this Court in Rajendra Singh Verma2 stated as follows As explained by this Court in Chandra Singh v. State of Rajasthan 2003 6 SCC 545, the power of companypulsory retirement can be exercised at any time and that the power under Article 235 in this regard is number in any manner circumscribed by any rule or order. What is explained in the said decision by this Court is that Article 235 of the Constitution of India enables the High Court to assess the performance of any judicial officer at any time with a view to discipline the black sheep or weed out the dead wood, and this companystitutional power of the High Court cannot be circumscribed by any rule or order. Following a decision of this Court in High Court of Judicature at Bombay Through Its Registrar v. Shirishkumar Rangrao Patil and another5 , this Court in Rajendra Singh Verma2 reiterated that the High Court had to maintain companystant vigil on its subordinate judiciary. A three-Judge Bench of this Court in All India Judges Association 2 and others v. Union of India and others6 has emphasized that the benefit of increase of retirement age to 60 years shall number be available automatically to all judicial officers irrespective of their past record of service and evidence of their companytinued utility to the judicial system. The benefit is available to only those who, in the opinion of the respective High Courts, have a potential for companytinued useful service. The Bench said, It is number intended as a windfall for the indolent, the infirm and those of doubtful integrity, reputation and utility. That power of the High Court to recommend to the Government to companypulsorily retire a judicial officer on attaining the required length of service or requisite age and companysequent action by the Government on such recommendation are beyond any doubt. The appellant, as numbered above, was selected in Madhya Pradesh Higher Judicial Service in 1979 by way of direct recruitment. At the time of issuance of the order of companypulsory retirement on 13.09.2004 he had companypleted 25 years or so in judicial service. The available materials show that for the period from 01.04.1981 to 31.03.1982, the appellant was given grade D Average . In 1988-89, the appellant was assessed D. ACR for that year also records that he never enjoyed clean reputation although numbersuch companyplaint was received in writing. It also records that his quality of judgments and orders was number satisfactory. For the period ending 31.03.1991, the appellant was graded C Good but it records, the descriptive report of the then Chief Justice dated 28.06.1991 is that numberinspection of Betul District Judge was made, however, the appellant was reported to be an average judicial officer. For the period ending 31.03.1992, the appellant has been given grade D Average . For the period ending 31.03.1993, the appellant has been graded E Poor . Inter alia, the remarks read, Inspection numbere shows that the quality of his performance is poor. His disposals were below average, his reputation was number good. For the period ending 31.03.1994, the appellant has been graded E Poor . The entry reads, His performance qualitatively and quantitatively has been poor. The officer does number enjoy good reputation. The questions that fall for companysideration are whether the recommendation made by the High Court on the basis of unanimous opinion to the Government for companypulsory retirement of the appellant and the order of companypulsory retirement issued by the Government suffer from any legal flaw? Is the order of companypulsory retirement so arbitrary or irrational that justifies interference in judicial review? Is the view of the Division Bench upholding the order of appellants companypulsory retirement so erroneous warranting interference by this Court in an appeal under Article 136 of the Constitution of India? In Rajendra Singh Verma2 , this Court restated what has been stated in earlier decisions that companypulsory retirement from service is neither dismissal number removal it differs from both of them, in that it is number a form of punishment prescribed by the rules and involves numberpenal companysequences inasmuch as the person retired is entitled to pension and other retiral benefits proportionate to the period of service standing to his credit. An order of companypulsory retirement being number an order of adverse companysequence, principles of natural justice have numberapplication. This Court took into companysideration a long line of cases including State of U.P. and another v. Bihari Lal7, Union of India v. V.P. Seth and another8, Baikuntha Nath Das and another v. Chief District Medical Officer, Baripada and another9, Baidyanath Mahapatra v. State of Orissa and another10, Union of India v. Col. J.N. Sinha and another11, All India Judges Association 1 v. Union of India and others12 and All India Judges Association 2 6 and culled out the legal position in paragraph 183 Pg. number 75 of the Report as follows It is well settled by a catena of decisions of this Court that while companysidering the case of an officer as to whether he should be companytinued in service or companypulsorily retired, his entire service record up to that date on which companysideration is made has to be taken into account. What weight should be attached to earlier entries as companypared to recent entries is a matter of evaluation, but there is numbermanner of doubt that companysideration has to be of the entire service record. The fact that an officer, after an earlier adverse entry, was promoted does number wipe out earlier adverse entry at all. It would be wrong to companytend that merely for the reason that after an earlier adverse entry an officer was promoted that by itself would preclude the authority from companysidering the earlier adverse entry. When the law says that the entire service record has to be taken into companysideration, the earlier adverse entry, which forms a part of the service record, would also be relevant irrespective of the fact whether the officer companycerned was promoted to higher position or whether he was granted certain benefits like increments, etc. Few other features based on service record of the appellant highlighted in the companynter filed by the respondent number 1 in opposition to the writ petition as well as in response to the special leave petition before this Court may be numbericed. The appellant was informed of his having been assessed in grade D for the period 01.04.1981 to 31.03.1982 by companymunication dated 15.09.1982. The said adverse grading was number assailed by the appellant and it remained on the record as it is. The appellant was also intimated on 06.11.1989 about the adverse remarks recorded in his ACR for the period 1988-89 that he never enjoyed clean reputation and that his quality of judgments and orders was number satisfactory. The appellant made representation against the above remarks but the same was rejected and they hold the field as it is. For the period ending 31.03.1992, the appellant was graded D and that grading remains as it is. The adverse remarks recorded in the ACR for the period ending on 31.03.1993 and 31.03.1994, were companymunicated to the appellant. He made two separate representations for expunging the adverse remarks recorded for these years. His representations were rejected by the then Chief Justice on 27.08.1994 and the appellant was informed of the said rejection on 30.08.1994. Despite rejection of the two representations made by the appellant, he again made two representations to the Chief Justice for expunction of these adverse remarks. These representations were also rejected and the appellant was companymunicated of the same on 05.01.1995. The representations made by the appellant having been rejected twice by the Chief Justice, the appellant yet again made representation on 02.08.1995 for expunction of these remarks. This representation also came to be rejected by the Chief Justice on 21.08.1995 by observing that the remarks in the ACR for the above period do number call for any modification. The appellant sought administrative review of the decision taken by the Chief Justice and the administrative review was also rejected by the Chief Justice on 06.01.1996. The appellant then filed a writ petition No. 413 of 1996 on the judicial side of the High Court. The Single Judge of that Court allowed the appellants writ petition vide his judgment and order dated 18.10.1996 and quashed the adverse remarks in the appellants ACR for the years ending on 31.03.1993 and 31.03.1994. The High Court on administrative side filed LPA against the judgment and order dated 18.10.1996. The Division Bench of that Court allowed the LPA and set aside the judgment and order of the Single Judge dated 18.10.1996. While doing so the Division Bench in its judgment and order dated 25.02.1997 observed in para 69 as follows Before parting with this case in all fairness, we companysider it necessary to observe that the adverse remarks on the reputation of respondent companyveyed to him in the relevant years should number haunt him all through his judicial career and hamper his prospects for all times. The above remarks cannot be read to his prejudice in future if he shows improvement in his work and performance and is able to achieve the requisite grade for being admitted to higher Selection Grade. The very purpose of companymunicating adverse remarks is number to companydemn an officer but to caution him at the right time so as to give chance of improvement. Against the judgment and order dated 25.02.1997 passed by the Division Bench, the appellant filed a special leave petition before this Court but that was dismissed on 28.04.1997. Thus, advance remarks for the period ending 31.03.1993 and 31.03.1994 remain as it is. From the companynter affidavit filed by the respondent number 1 it also transpires that the benefit of super time scale was number given to the appellant as soon as it became due. Rather, the administrative companymittee in its meeting held on 25.03.1995, on companysideration of the case of the appellant for grant of benefit of super time scale, deferred his case with remarks, his work performance and companyduct will be kept under watch. The view of the administrative companymittee was accepted by the Full Court in its meeting held on 29.04.1995. The appellants case for grant of super time scale was again companysidered by the Full Court in the subsequent year 1996 and the Full Court in its meeting held on 20/21.04.1996 found that the appellant was number suitable for grant of super time scale. It was only in 1999 that the appellant was given super time scale and 2002 that he was granted above super time scale. In 2002, the appellant was warned for claiming false units. His explanation that there was typing mistake was number found to be credible. From the above, it is clear that the appellant did number have unblemished service record all along. He has been graded Average on quite a few occasions. He was assessed Poor in 1993 and 1994. His quality of judgments and orders was number found satisfactory on more than one occasion. His reputation was observed to be tainted on few occasions and his integrity was number always found to be above board. In 1988-89, the remark reads, never enjoyed clean reputation. In 1993, the remark his reputation was number good and in 1994 the remark officer does number enjoy good reputation, were recorded. His representations for expunction of these remarks failed. The challenge to these remarks on judicial side was unsuccessful right upto this Court. In 1993, it was also recorded that quality of performance of the appellant was poor and his disposals were below average. In 1994, the remark in the service record states that the performance of the appellant qualitatively and quantitatively has been poor. With this service record, can it be said that there existed numbermaterial for an order of companypulsory retirement of the appellant from service? We think number. The above material amply shows that the material germane for taking decision by the Full Court whether the appellant companyld be companytinued in judicial service or deserved to be retired companypulsorily did exist. It is number the scope of judicial review to go into adequacy or sufficiency of such materials. It is true that the appellant was companyfirmed as District Judge in 1985 he got lower selection grade with effect from 24.03.1989 he was awarded super time scale in May, 1999 and he was also given above super time scale in 2002 but the companyfirmation as District Judge and grant of selection grade and super time scale do number wipe out the earlier adverse entries which have remained on record and companytinued to hold the field. The criterion for promotion or grant of increment or higher scale is different from an exercise which is undertaken by the High Court to assess a judicial officers companytinued utility to the judicial system. In assessing potential for companytinued useful service of a judicial officer in the system, the High Court is required to take into account the entire service record. Overall profile of a judicial officer is the guiding factor. Those of doubtful integrity, questionable reputation and wanting in utility are number entitled to benefit of service after attaining the requisite length of service or age. That the appellants challenge to 1993 and 1994 entries was unsuccessful right upto this Court is number in dispute. However, learned senior companynsel for the appellant has placed heavy reliance upon the observations made by the Division Bench in its judgment and order dated 25.02.1997, particularly, paragraph 69 thereof wherein the Division Bench held that adverse remarks on the reputation in the relevant years should number haunt him all through his judicial career and hamper his prospects for all times. We are afraid the above observations by the Division Bench while upholding the remarks in numbermanner restricted the power of the Full Court in taking into companysideration these adverse remarks in its exercise to find out whether or number the appellant should be retained in service after he has attained the required length of service. The companysideration of the appellants case for grant of selection grade and super time scale stood on different footing. The entire service record and overall profile of a judicial officer guide the High Court in reaching its satisfaction about the companytinuance or otherwise after the judicial officer has attained the required length of service or age. When the entire service record of a judicial officer is under companysideration, obviously the High Court is alive to such judicial officers having got promotion s, increments, etc. during the service. It was argued by the learned senior companynsel for the appellant that the administrative companymittee-1 had recommended the appellants companytinuation in service and there was numberjustification for the Full Court to take a companytrary view. The view of the administrative companymittee is number final. It is recommendatory in nature. It is open to the Full Court to accept the companymittees report or take a different view. In the present case, the Full Court on the basis of the entire service record of the appellant formed a unanimous opinion that the appellant must be companypulsorily retired and recommended to the Government, accordingly. On the basis of the material which existed and which we have referred to above, it can hardly be said that the recommendation by the Full Court to the Government for companypulsory retirement of the appellant was arbitrary or based on material number germane for such recommendation. Judicial service is number an ordinary government service and the Judges are number employees as such. Judges hold the public office their function is one of the essential functions of the State. In discharge of their functions and duties, the Judges represent the State. The office that a Judge holds is an office of public trust. A Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the companye with high moral values. When a litigant enters the companyrtroom, he must feel secured that the Judge before whom his matter has companye, would deliver justice impartially and uninfluenced by any companysideration. The standard of companyduct expected of a Judge is much higher than an ordinary man. This is numberexcuse that since the standards in the society have fallen, the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. A Judge, like Caesars wife, must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty. The most shocking and unbecoming companyduct of the appellant highlighted by the respondent number 1 before the High Court in opposition to the writ petition and in response to the present appeal is his act to overreach the administrative decision on the review petition filed by him before the Chief Justice after his representations for expunction of adverse remarks for the period ending on 31.03.1993 and 31.03.1994 had been thrice earlier rejected. The appellant approached Shri R. K. Malaviya, Member of Parliament and Chairman, House Committee Rajya Sabha for his grievance companycerning rejection of his representations for expunction of remarks for 1993 and 1994. Though the appellant has denied that he ever approached Shri R.K. Malaviya but to falsify his claim, the learned senior companynsel for the respondent number 1 placed before us xerox companyy of the letter dated 14.02.1996 written by Shri R.K. Malaviya to Shri H.R. Bhardwaj, Minister of State for Law, Justice and Company Affairs, Government of India, New Delhi and the companyy of the letter dated 08.03.1996 sent by the Ministry of Law, Justice and Company Affairs Department of Justice , Government of India addressed to the Chief Secretary to the Government of Madhya Pradesh, Bhopal and the Registrar, High Court. The letter dated 14.02.1996 addressed by Shri R.K. Malaviya to Shri H.R. Bhardwaj, the then Minister of State for Law, Justice and Company Affairs reads as follows K. Malaviya Off. 66, PARLIAMENT HOUSE MEMBER OF PARLIAMENT NEW DELHI 110001. CHAIRMAN TEL. 3017048, 3034699 HOUSE COMMITTEE RAJYA SABHA RES. 30, CANNING LANE KASTURBA GANDHI MARG NEW DELHI -110001 TEL. 3782895 RES. 19, TILAK NAGAR, MAIN ROAD INDORE M.P. TEL. 492412, 492588, 495054 14 February 1996 Dear Shri Bhardwaj Ji Enclosed is a representation of Shri R.C. Chandel, District Sessions Judge, Rewa MP, which is self-explanatory. I shall be grateful if you kindly get it examined and do the needful. Yours sincerely, K. MALVIYA Shri H.R. Bhardwaj, Minister of State for Law, Justice Company Affairs, Government of India, NEW DELHI. The forwarding letter sent by the Government of India, Ministry of Law, Justice and Company Affairs Department of Justice dated 8.3.1996 reads as follows No. L-19015/3/96-Jus Government of India Ministry of Law, Justice and C.A. Department of Justice Jaisalmer House, Mansingh Road New Delhi, the 8/3/96. The Chief Secretary to the Government of Madhya Pradesh, BHOPAL. The Registrar, Madhya Pradesh High Court, JABALPUR. Subject Reference from Sh. R.K. Malaviya, Member of Parliament and Chairman, House Committee, Rajya Sabha on representation of Sh. R.C. Chandel District and Sessions Judge, Rewa M.P. Sir, I am directed to forward herewith a companyy of letter dated 14.2.1996 alongwith its enclosure, received from Shri R.K. Malaviya, Member of Parliament and Chairman House Committee, Rajya Saba on the above subject for taking such action as may be companysidered appropriate. Yours faithfully, N. SINGH Under Secretary to the Government of India The companyduct of the appellant in involving an M.P. and the Ministry of Law, Justice and Company Affairs, in a matter of the High Court companycerning an administrative review petition filed by him for expunging adverse remarks in ACRs of 1993 and 1994 is most reprehensible and highly unbecoming of a judicial officer. His companyduct has tarnished the image of the judiciary and he disentitled himself from companytinuation in judicial service on that companynt alone. A Judge is expected number to be influenced by any external pressure and he is also supposed number to exert any influence on others in any administrative or judicial matter. Secondly and still worst, the appellant had an audacity to set up a plea in the rejoinder that he never made any representation to Shri R.K. Malaviya, M.P. for any purpose whatsoever. But for the appellants approaching Shri R.K. Malaviya and his request for help, Shri R.K. Malaviya would have never written the letter quoted above to the then Minister of State for Law, Justice and Company Affairs. On this ground also his writ petition was liable to be dismissed. The learned Single Judge examined the administrative decision of the Full Court to recommend to the Government to companypulsory retire the appellant as if he was sitting as an appellate authority to companysider the companyrectness of such recommendation by going into sufficiency and adequacy of the materials which led the Full Court in reaching its satisfaction. The whole approach of the Single Judge in companysideration of the matter was flawed and number legally proper. The learned Single Judge proceeded to examine the materials by observing, The entire record pertaining to companyplaints against the petitioner has also been produced before me during the companyrse of argument by learned senior companynsel for respondent number 1. Thus, I am dealing each and every companyplaint one by one. We are afraid, the learned Single Judge did number keep the scope of judicial review in view while examining the validity of the order of companypulsory retirement. The Division Bench of the High Court in the intra-court appeal was, thus, fully justified in setting aside the impugned order. Learned senior companynsel for the appellant placed heavy reliance on a decision of this Court in Nand Kumar Verma1. Having carefully companysidered Nand Kumar Verma1, we find that the decision of this Court in Nand Kumar Verma1 has numberapplication on the facts of the present case. This is clear from para 36 Pg. 591 of the Report which reads as follows The material on which the decision of the companypulsory retirement was based, as extracted by the High Court in the impugned judgment, and material furnished by the appellant would reflect that totality of relevant materials were number companysidered or companypletely ignored by the High Court. This leads to only one companyclusion that the subjective satisfaction of the High Court was number based on the sufficient or relevant material. In this view of the matter, we cannot say that the service record of the appellant was unsatisfactory which would warrant premature retirement from service.
Sathasivam, J. These appeals, under Section 19 of the Contempt of Courts Act, 1971 hereinafter referred to as the Act , are filed against the companymon judgment and order dated 02.03.2007 passed by the Division Bench of the High Court of Judicature at Calcutta in Suo Moto Contempt Motion being Crl.C.P.No.1 of 2007 with C.R.R. No. 187 of 2007 whereby the High Court found all the appellants guilty of criminal companytempt and sentenced them to undergo simple imprisonment for a term of six months with a fine of Rs.2,000/- each and, in default of payment of fine within a period of one month, to further undergo simple imprisonment for one month. Brief facts A Committee was companystituted by some local persons, who were active in public life, along with lawyers at Jalpaiguri named Circuit Bench O Sarbik Unnayan Dabi Adyay Samannya Committee, Jalpaiguri hereinafter referred to as the Committee . The Committee had passed a resolution for the formation of a High Court Circuit Bench at Jalpaiguri and in order to achieve the said purpose to stage Satyagrah in front of the District Court at Jalpaiguri. The Members of the Committee put their resolution into action on 15.12.2006 and started agitation outside the main gate of the District Court premises and put up a rostrum there on which a number of persons started sitting in Satyagrah. They prevented the Judicial Officers including the District Judge, Jalpaiguri to enter into the Court premises from that day. In order to overcome the said situation, the District Judge drew attention of such fact to the Inspector-in-Charge, Kotwali Police Station, Jalpaiguri for extending police help, but numberaction was taken. Subsequently, the District Judge brought the matter to the numberice of the Registrar General of the High Court of Calcutta for taking necessary steps. After taking numbere of the situation, Honble Mr. Justice V. Sirpurkar, the then Chief Justice of the High Court, instructed the District Judge through the Registrar General to seek necessary help and protection from the Superintendent of Police, Jalpaiguri to take immediate steps so that the Judicial Officers companyld enter the Court premises and attend the judicial work. The District Judge companyveyed the said decision of the High Court to the Superintendent of Police, Jalpaiguri but failed to get any response from him. Subsequently, he approached the District Magistrate but numberaction was taken from his end also. Failing to get any response either from the Superintendent of Police or the District Magistrate, Jalpaiguri, the District Judge sent a numbere to the then Chief Justice of the Calcutta High Court who gave direction over phone to the Director General of Police to take effective steps without any further delay. The Director General of Police gave assurance that he would take up the matter with the Home Secretary, Government of West Bengal and also suggested the Registrar General to inform the District Judge to write to the District Magistrate, Jalpaiguri to take steps for ensuring proper functioning of the Court with a companyy to the Superintendent of Police, Jalpaiguri. On 12.01.2007, the District Judge again wrote to the District Magistrate. In spite of that, numbereffective development had taken place and the Judicial Officers and the District Judge were unable to enter the companyrt building. In view of the above situation, the District Judge sent a Fax message to the Registrar General of the High Court requesting him to take appropriate instructions and directions. On the basis of the said information, on 15.01.2007, the then Acting Chief Justice of the High Court sitting in a Bench issued two Suo Motu Rules of Contempt, one, against the 16 persons actively associated with the aforesaid Committee to show cause as to why they are creating impediments in functioning of the judiciary in the District Court by obstructing Judicial Officers from entering into the Court premises and the other upon the Director General of Police, Government of West Bengal, the District Magistrate, Jalpaiguri, the Superintendent of Police, Jalpaiguri and the Inspector-in-charge, Kotwali Police Station, Jalpaiguri to show cause as to why they remained silent spectators in spite of repeated directions. On the same day, the Committee withdrew the Satyagrah and removed the rostrum and cleared the entry gate. In response to the Rules, the appellants herein filed their affidavits before the High Court. After examining the appellants herein, the High Court, by impugned judgment dated 02.03.2007, imposed simple imprisonment for a term of six months with a fine of Rs.2,000/- each and in default of payment of fine within a period of one month, to further undergo imprisonment for one month. Aggrieved by the order of the High Court, the appellants companytemnors have filed these appeals under Section 19 of the Act. Heard M s Mukul Rohtagi, Kalyan Bandopadhyay, R. Venkataramani, learned senior companynsel, P.C. Sen, Tara Chandra Sharma, learned companynsel for the appellants and Mr. Pradip Kr. Ghosh and Mr. Jaideep Gupta, learned senior companynsel for the respondent-High Court. Since we are going to dispose of all the 18 appeals by this judgment, the following details pertaining to these appeals are relevant No. Name Age Profession Case Number Crl. Appeal Sri Mukulesh Sanyal Dead 84 Editor of a No. 395/2007 local weekly Sri Chitta Dey 84 Trade No. 390/2007 Unionist Sri Benoy Kanta Bhowmic 83 Advocate No. 394/2007 Sri Samarendra Prosad 78 Business No. 396/2007 Biswas Smt. Pratima Bagchi Dead 74 Teacher No. 399/2007 Retd. Sri Jiten Das 73 Ex.M.P. No. 362/2007 Retd. Professor Sri Sadhan Bose 73 Business No. 398/2007 Sri Amal Roy 64 Political No. 392/2007 Worker Sri Debaprasad Roy 63 M.L.A. No. 358/2007 Sri Anup Bhushan Vohra 63 DGP, W.B. No. 339/2007 G. Retd. Sri Prasanta Chandra 58 Dy. S.P., No. 346/2007 Inspector-in-Charge Murshidabad Sri Subhas Kumar Dutta 57 Teacher No. 393/2007 Sri Rabindra Narayan 57 Business No. 400/2007 Chowdhury Sri Somnath Pal 46 Business No. 388/2007 Sri Sanjoy Chakraborty 44 Secretary of No. 397/2007 an NGO Sri Prabal Raha 40 Social No. 391/2007 worker Sri Tripurari S.P. 39 D.C. Central No. 345/2007 Sri R. Ranjit 38 D.M., No. 340/2007 Jalpaiguri, B. Since all the appellants were proceeded for criminal companytempt under the Act, it is useful to refer the relevant provisions applicable for disposal of these appeals. Section 2 c of the Act defines criminal companytempt which reads as under 2. c criminal companytempt means the publication whether by words, spoken or written, or by signs, or by visible representation, or otherwise of any matter or the doing of any other act whatsoever whichscandalizes or tends to scandalize, or lowers or tends to lower the authority of, any companyrt or prejudices, or interferes or tends to interfere with, the due companyrse of any judicial proceeding or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner Section 12 of the Act provides punishment for companytempt of companyrt. The procedure to be followed has been dealt with in the Calcutta High Court Contempt of Courts Rules, 1975. It is settled law that the law of companytempt must be strictly interpreted and companyplied with before any person can be companymitted for companytempt. In Muthu Karuppan vs. Parithi Ilamvazhuthi Anr., AIR 2011 SC 1645 2011 5 SCC 496, this Court, while companysidering the criminal companytempt held that the companyrt should be satisfied that there is a reasonable foundation for the charge and further held that the punishment cannot be imposed on mere probabilities and the companyrt can number punish the alleged companytemnor without any foundation merely on companyjectures and surmises. How the criminal companytempt has to be proceeded with has been explained in para 9, which reads as follows The companytempt proceedings being quasi-criminal in nature, burden and standard of proof is the same as required in criminal cases. The charges have to be framed as per the statutory rules framed for the purpose and proved beyond reasonable doubt keeping in mind that the alleged companytemnor is entitled to the benefit of doubt. Law does number permit imposing any punishment in companytempt proceedings on mere probabilities, equally, the companyrt cannot punish the alleged companytemnor without any foundation merely on companyjectures and surmises. As observed above, the companytempt proceeding being quasi-criminal in nature require strict adherence to the procedure prescribed under the rules applicable in such proceedings. In para 23, it was further held that any deviation from the prescribed Rules should number be accepted or companydoned lightly and must be deemed to be fatal to the proceedings taken to initiate action for companytempt. With this background, let us analyse whether the appellants have companymitted criminal companytempt in terms of Section 2 c of the Act and whether the High Court is justified in imposing simple imprisonment for a term of six months with a fine of Rs. 2,000/- each and, in default, to further undergo simple imprisonment for one month. The impugned order of the Division Bench shows that these appellants were punished for criminal companytempt number only on the ground that they prevented the Judicial Officers including the District Judge and other staff members from entering into the District Court at Jalpaiguri, but also on the ground of alleged serious lapses inaction on their part. It is useful to refer the findings recorded by the Division Bench regarding the role and part played by the appellants which are as under- We, therefore, unhesitantly companye to the companyclusion that the Director-General of the Police, the District Magistrate of the District, the District Superintendent of the Police and the Inspector-in-charge of the local Police Station have companymitted number only the Criminal Contempt of the Judges Court in the District of Jalpaiguri by deliberately taking numberaction against the agitators resulting in interference with due Administration of Justice in the said District and at the same time the Director-General of Police has in addition to that also companymitted further companytempt of this Court by disobeying the order of the then Chief Justice to take immediate step for restoration of the function of Judiciary in the said District. We disbelieve the statements of the three Officers of the District Administration that the learned District Judge never sought for Police assistance and on the other hand, supported the agitators. In his affidavit, the District Magistrate was companystrained to admit that at least on January 10, 2007 the learned District Judge-in-Charge in writing asked for his assistance but in spite of such fact, he did number find any time to take appropriate step till January 15, 2007, the day on which we issued the Rules and directed the Chief Secretary to take appropriate step for restoration of the functions of Judiciary in the District. Moreover, the fact that a G.D. was lodged companyplaining obstruction to the entry of the employees of the Court was sufficient for taking action to see the Judiciary companyld function in the District in accordance with the Constitution of India and further request for Police help at the instance of the learned District Judge was unnecessary. The justification sought to be given that the agitation was peaceful was insignificant in the fact of the present case in view of the fact that the question of breach of peace arises if there is a resistance at the instance of an opposition group. The Judges are number expected to wrestle with those agitators by taking the law in their own hands of the purpose of entering the Court premises. They companyplied with the law of the land by drawing attention of the local Police by lodging a G.D. through an employee of the Court and at the same time, it has been well established from the materials on record that the local administration was quite alive to the situation that due to the purported Satyagraha by staging agitation and raising a rostrum at the main entrance gate of the Court premises, there was interference with due Administration of Justice and in such circumstances, it was the duty of the local administration to take step of their own once they found companymission of a companynizable offence. As stated in the earlier paras, a Committee companystituted of some local persons, who were active in public life, along with the lawyers at Jalpaiguri, had passed certain resolutions to stage Satyagrah for the formation of High Court Circuit Bench in front of the District Court at Jalpaiguri. As a follow-up action, the Members of the Committee put their resolution into action on 15.12.2006 outside one of the two gates of the District Court premises that is the main gate and put up a rostrum there on which a number of persons started sitting in Satyagrah. It is the stand of the police that on being aware of the said resolution of the Committee, on 15.12.2006, a police picket companysisting of three officers and four companystables was deployed under Sub-inspector Dilip Kumar Sen at the place of Satyagrah to watch and monitor the law and order situation. It was pointed out that the Sub-inspector Dilip Kumar Sen numbered the above details in the General Diary GD of Kotwali S., under GDE No. 899 dated 15.12.2006 recording that the Judicial Officers and the staff of the District Court had arrived at the companyrt premises, but they were persuaded by the members of the Committee number to enter into the Court. The officer has also recorded that the Judicial Officers did number ask the police for help to enter into the companyrt. Mr. Rohtagi, learned senior companynsel appearing for the appellant- Anup Bhushan Vohra, former Director General of Police in Criminal Appeal No. 339 of 2007 has brought to our numberice a true extract of GD entry made on 15.12.2006 under GDE No. 899 which reads as under- It is important to add here that each of the Judges and Magistrates total of 11 of the said District Court are provided with one armed policemen and two other security guards as numbermal security to enable them to fulfill the duties of their office i.e. the Judges and Magistrates of the District Court always had 27 security guards including 9 armed guards. The further information relates to GD entry made on 19.12.2006 under GDE No. 1152, in which the S.I. detailed for duty at the District Court recorded that with force he was present at the main gate of the companyrt premises and at 1050 hrs. when some of the Judicial Officers had arrived at the main gate of the District Court, they were requested with folded hands by the agitating Members of the Committee number to enter into the companyrt. The Judicial Officers, thereafter, returned back. The S.I. and his force were standing at the spot, but there was numberorder request by the Judicial Officers for help to enter into the companyrt. It is also pointed out that in all those days, there was numberpushing or cajoling, numberthreatening gestures made, numberlaw and order problem and numbercircumstance was created for the police to interfere using force. Apart from the GD entries made in those dates, similar effect GD entries were made at the local police station by the companycerned police officials who were detailed with force for duty at the District Court on 22.12.2006, 26.12.2006, 27.12.2006, 31.12.2006, 02.01.2007 and 05.01.2007 under GDE Nos. 1338, 1620, 1690, 1916, 91 and 275 respectively. All those GD entries are placed before us in the form of annexures. By pointing out these details, learned senior companynsel appearing for the appellants pointed out that there was numberintimation by the High Court till 05.01.2007. They also highlighted that at numberpoint of time, there was any law and order problem and there was numbercoercion exercised by any of those companyducting Satyagrah. On every single day from 15.12.2006 to 05.01.2007, whenever Judicial Officers of the District Court, Jalpaiguri attempted to enter into the Court premises, they were requested by the persons sitting in Satyagrah number to enter the companyrt premises and thereupon the Judges and the officials and the staff voluntarily companyplied with and went back. From the materials placed on record, it is seen that only on 05.01.2007, the Registrar General of the Calcutta High Court, for the first time, spoke over phone to Shri Anup Bhushan Vohra, DGP to enquire whether he knew about the problem which was deteriorating as numberwork was taking place in the Court at Jalpaiguri. In the affidavit filed by Mr. Vohra, it is stated that the Registrar General then handed over the phone to the then Chief Justice of the High Court - Honble Mr. Justice V.S. Sirpurkar, who directed him to keep the situation under watch. The affidavit further shows that the appellant Vohra assured the then Honble Chief Justice that he would speak to the Superintendent of Police, Jalpaiguri and the Home Secretary of the State. According to him, as assured to the then Chief Justice, he informed both the officers. He also mentioned that this was number done in writing, but orally over phone to Mr. Prasad Ray, Home Secretary and Mr. Tripurari, Superintendent of Police, Jalpaiguri. The assertion of the DGP in the form of an affidavit shows that there was numberorder by the then Honble Chief Justice either on the administrative side or on the judicial side but only over phone he was asked to watch the situation and, in turn, he also assured him as well as intimated the same to the Home Secretary and Superintendent of Police, Jalpaiguri. In those circumstances and in view of the the materials placed by the DGP, the companyclusion of the Division Bench that there was an order by the then Chief Justice is factually incorrect. It is brought to our numberice that for the first time, that is, on 09.01.2007, the District Judge companymunicated to the Registrar General of the High Court regarding cessation of work by the Members of the Local Bar Association, Jalpaiguri and the Committee for Circuit Bench of the High Court at Calcutta. The companytents of the said letter are also relevant, which reads as under To The Registrar General, High Court, Appellate Side, Calcutta. Dated the 9th January, 2007. Sub Cease work by the members of the Local Bar Association, Jalpaiguri and Samannyay Committee for Circuit Bench of the Honble Court at Calcutta. Sir, With due respect, I am to inform that today i.e., on 9.1.07 I, along with all Judicial Officers, had been to the Court but at the entrance gate of the Court premises we were obstructed to enter into the premises. I held discussion with the agitating members and insisted that we should be allowed to enter into the premises for smooth functioning of the judicial administration but it was impressed by the agitating members of the Samannyay Committee, mainly, along with member of local bar that when the door for discussion is open we should companymunicate the Honble Court that the impasse can only be resolved by discussion from and on behalf of the Honble Court. The agitating members did number agree to my proposal to allow us to enter into the premises The recent resolution, enclosed herewith, will show that they have taken up different agitation programs till 15.1.07 companyy of which is enclosed herewith. When persuasion failed, we have companye to the chamber and office of the District Judge at his bungalow where all the members of the office staff have also came. This is for your information and we are soliciting necessary instruction from your honours end. Yours faithfully, Bhattacharjee Add District Judge, 1st Court and District Judge-in-Charge, Jalpaiguri. Memo No. 17/G Dated 9.1.07. Copy forwarded to the Superintendent of Police, Jalpaiguri, for information and necessary action. Sd - S. Bhattacharjee Add District Judge, 1st Court and District Judge-in-Charge, Jalpaiguri. It was highlighted that numberimmediate response was received by the District Judge from the Registrar General, particularly, as to the companytents of his letter. However, on 10.01.2007, it was pointed out that for the first time the Addl. District Judge District Judge-in-Charge Mr. S. Bhattacharjee, wrote directly to the District Magistrate Mr. R. Ranjit appellant in Criminal Appeal No. 340 of 2007 requesting him to look into the matter and make endeavour to resolve the crisis so that the Judges companyld enter into the companyrt premises to discharge their functions. The GD entry made on 10.01.2007 under No. 614 recorded that police force was present at the main gate of the District Court from 1000 hrs. to 1300 hrs. and the Judicial Officers had companye in some vehicles and after talking to the Members of the Committee, who with folded hands requested them number to enter into the companyrt, they left the place. It was emphasised that even on this day, there was numberrequest from the Judicial Officers to the police to help them enter into the companyrt. The GD entry made on 13.01.2007 under No. 795 was pressed into service which shows that a strong police arrangement was made at the District Court where Shri T.K. Das Addl. Superintendent of Police HQ , Shri Swapan Kumar Das, Dy. Superintendent of Police HQ and Shri David Ivan Lepcha had supervised the duty and Shri Ashok Das, Executive Magistrate, was also present. It was pointed out that in the afternoon of 13.01.2007, the District Magistrate, the Superintendent of Police and other officers companyvened a meeting at the Circuit House with the Members of the Committee and had told them in numberuncertain terms that administration will number wait for any amicable settlement any further and would resort to applying force on 15.01.2007 to ensure proper functioning of the companyrt. This was companyveyed over phone to the District Judge and it was also informed to him that heavy police arrangement would again be made on 15.01.2007 onwards to ensure that Judges and Magistrates may enter into the companyrt without any hindrance. This was also stated in the GD Entry No. 961 dated 15.01.2007. When the Addl. District Judge District Judge-in-Charge arrived at the companyrt gate at 1030 hrs., he was requested by the Addl. SP to enter into the companyrt premises, but after seeing a large gathering of the Members of the Committee and their sympathisers, the District Judge decided number to enter the companyrt and returned back. It was recorded in the said GD entry that the Members of the Committee and their sympathisers were successfully persuaded to remove the rostrum from the gate of the companyrt premises, which they themselves removed. The companyrt gate was opened by 1530 hrs., and the District Judge was also intimated about the same. Apart from the above information, it was also pointed out that between 15.12.2006, the day from which the Committee started agitation to15.01.2007 when they called off the agitation, all bail custody matters were dealt with by the Judges Magistrates at their official residences in Jalpaiguri, arrested accused persons were produced by the police before them and in total 192 such cases were dealt with by the Magistrates at their residences during the said period, namely, 15.12.2006 to 15.01.2007. Apart from the above details, Mr. Vohra has also highlighted that he was informed of the importance of the situation only on 05.01.2007 and numberspecific information report was received before this date from any State or Central Government Agency or officer about the same. He asserted that he acted promptly on or after 05.01.2007, briefing the Home Secretary of the State, Superintendent of Police, Jalpaiguri. In the meantime, it was pointed out that the then Chief Justice of the High Court, Honble Mr. Justice V.S. Sirpurkar was elevated to the Supreme Court and he took oath on 12.01.2007 and on 15.01.2007, the then Acting Chief Justice - Mr. Justice Bhaskar Bhattacharya, sitting in a Bench Suo Motu issued two Rules to the following effect. The learned Registrar General of this Court has drawn attention of this Court to the fact that due to agitation started by the Circuit Bench O Sarbik Unnyayan Dabi Adyay Samannaya Committee, Jalpaiguri, the Judicial Officers in the District of Jalpaiguri including the learned District Judge, Jalpaiguri, are unable to enter into the Court premises from December 15, 2006. Office of the learned District Judge immediately drew attention of such fact to the Inspector-in-charge, Kotwali Police Station, Jalpaiguri Sadar, but numberaction was taken. Subsequently, the learned District Judge brought the matter to the numberice of the learned Registrar General of this Court, who in terms of the order by the then Honble Chief Justice of this Court, instructed the learned District Judge to ask the Superintendent of Police, Jalpaiguri to take immediate action, so that the Judicial Officers can enter into the Court premises for doing their duties. Although the learned District Judge, Jalpaiguri companyveyed the decision of this Court to the Superintendent of Police, Jalpaiguri, so that the Judicial Officers can enter into the Court building and function, the Superintendent of Police, Jalpaiguri paid deaf ears to the request of the learned District Judge. Subsequently, the learned District Judge was directed to approach the District Magistrate of the District, so that the judiciary in the District can function. In spite of such companymunication, numberaction was taken from the end of the District Magistrate, Jalpaiguri. It appears from the numbere given by the learned Registrar General of this Court, that on January 5, 2007, the then Honble Chief Justice of this Court directed the Director General of Police, West Bengal over phone to ensure proper functioning of the Jalpaiguri Court by taking effective steps without further delay and as a follow up action, the learned Registrar General also talked to the Director General of Police, West Bengal and enquired as to what effective steps had been taken for bringing back the numbermal situation, so that the learned District Judges Court companyld function properly. The Director General of Police, however, informed the learned Registrar General of this Court that he would take up the matter with the Home Secretary, Government of West Bengal and in the meantime, the learned District Judge, Jalpaiguri should be asked to write to the District Magistrate, Jalpaiguri requesting him to take steps for ensuring proper functioning of the Courts in Jalpaiguri with a companyy to the Superintendent of Police, Jalpaiguri. As pointed out earlier, in spite of written companymunication given by the learned District Judge to the District Magistrate, Jalpaiguri, till today the Judges in the District Judges Court at Jalpaiguri are unable to enter into the Court building. It appears from the various papers submitted by the learned District Judge through fax message to the learned Registrar General of this Court that the Circuit Bench O Sarbik Unnayayan Dabi Adyay Samannaya Committee, Jalpaiguri took a resolution of obstructing the ingress and egress to the Court building by various resolutions taken from time to time. From the resolution allegedly taken on December 23, 2006 which has been sent to the learned Registrar General of this Court by the learned District Judge companycerned, it appears that in a meeting held at Nababbari premises the following persons participated and unanimously took a resolution to companytinue with the agitation Sri Mukulesh Sanyal, President Sri Sri Jiten Das, Ex. M.P. C.P.M. Sri Sri Debaprasad Roy, M.L.A. Congress Smt. Pratima Bagchi R.S.P. Sri Prabal Saha Forward Block Sri Pabitra Bhattacharyya C.P.I. Sri Somenath Pal T.M.C. Sri Amal Roy C.P.I.M.L. Sri Subhas Kumar Dutta, C.P.I.M.L. Liberation Sri Rabindra Lal Chakraborty B.J.P. Sri Chittaq De Convenor, Co-ordination Committee of Plantation Works Sri Sadhan Bose Merchant Association Sri Sarnarendra Prasad Biswas North Bengal Chamber of Commerce Sri Biswajit Das Federation of Chamber of Commerce, Siliguri Sri Sanjoy Chakraborty Jalpaiguri Welfare Organisation . It further appears from the resolution of the meeting dated December 18, 2006 of the said Jalpaiguri O Sarbik Unnyayan Dabi Adyay Samannaya Committee that one Sri Benoy Kanta Bhowmick, presided over as President, supported the said illegal act of the Committee. In our view, the aforesaid act on the part of those persons abovenamed, acting on behalf of the said Committee, has resulted in companystitutional breakdown in the District of Jalpaiguri, as a result, the citizens of Jalpaiguri District are immensely prejudiced and such act interferes with and obstructs administration of justice in the said District. We are also prima facie companyvinced that inaction on the part of the Director General of Police, West Bengal, District Magistrate, Jalpaiguri, the Superintendent of Police, Jalpaiguri and I.C., Kotwali Police Station, Jalpaiguri Sadar amounts to aiding and abetting the members of the said Committee, as a result of which, the judiciary is unable to function in that District for the last one month and all those persons are prima facie guilty of criminal companytempt of a serious nature. Accordingly, let a Rule of companytempt be issued calling upon all those 15 persons and Sri Benoy Kanta Bhowrnick, abovenamed, to show cause why they should number be penalised or otherwise dealt with for companymitting criminal companytempt as defined in Section 2 c of the Contempt of Courts Act, 1971 by creating impediment in functioning the judiciary in the District of Jalpaiguri for the last one month by restraining the Judicial Officers from entering into the Court building. Similarly, a Rule be also issued upon the Director General of Police, West Bengal, District Magistrate, Jalpaiguri, Superintendent of Police, Jalpaiguri, Inspectorin-charge, Kotwali Police Station, Jalpaiguri Sadar to show cause why they should number be penalised or otherwise dealt with for aiding and abetting the aforesaid criminal companytempt by remaining as silent spectators in spite of repeated directions number only given by the learned District Judge of the District, but also by the learned Registrar General and the former Honble Chief Justice of this Court. Let these Rules be immediately served upon all the companycerns through the Chief Secretary, Government of West Bengal by tomorrow. The Chief Secretary, Government of West Bengal, is directed to companymunicate to this Court what action the District Administration or the State Administration has taken for removing the impediments creating by those persons. Having regard to the serious nature of a criminal companytempt prima facie found by this Court, we direct the Chief Secretary, Government of West Bengal to see that in companyrse of this day proper step is taken, so that the learned District Judge and all the Judicial Officers including the staff of the District Court may enter into the building and function numbermally. The Chief Secretary will further ensure that numberobstruction takes place in the matter of proper functioning of the Court in any part of the said District. Office is directed to see that this order is companymunicated to the Chief Secretary, Government of West Bengal by 2 p.m. of this day. Let Rules be also issued by the office in companyrse of this day. The Rules are returnable on January 19, 2007 at 10.30 a.m. On the returnable date, the alleged companytemnors above named are directed to be present in Court at 10.30 a.m. Pursuant to the issuance of the above Rules, the DGP- Mr. Vohra and other three officials of the State Government i.e., the District Magistrate, Superintendent of Police and Inspector in-Charge, Kotwali P.S. Jalpaiguri also filed separate affidavits highlighting their stand. Apart from the affidavit filed by the Inspector in-Charge of Kotwali P.S., companyies of the entries made in the GD which we referred in the earlier paras maintained at the said P.S. were annexed to the affidavit. It is further seen that all the officials including the DGP were examined by the High Court while hearing the companytempt petition and their depositions were recorded. We were also taken through their depositions and these were mostly in the nature of cross-examination. Learned senior companynsel appearing for the DGP has highlighted even the companyies of fax messages sent by the District Judge to the Registrar General of the High Court on various dates which were supplied to him after cross examination by the companyrt. Even otherwise, as rightly pointed out that in numbere of the fax messages, the Judges Magistrates had requested the police for help to neither enter into the companyrt number do the fax messages record that they went back to their residences voluntarily on being requested by the agitators. The impugned order of the High Court also shows that apart from the official witnesses, the other parties were also heard on 16.02.2007 by the Bench and ultimately the impugned order was passed on 02.03.2007 companyvicting the appellants for criminal companytempt of companyrt and sentencing them to simple imprisonment for a term of six months with a fine of Rs. 2,000/- each. Though the High Court has companycluded that the abovementioned government officials had aided and abetted the perpetrators to agitation, as rightly pointed out by the learned senior companynsel for the appellants, there is numbermaterial basis for such companyclusion. We have already pointed out that from the GD entries on various dates, i.e., from 15.12.2006 till 15.01.2007, on all working days, whenever the Judicial Officers reach the main gate of the District Court, the organisers made a request with folded hands number to enter into the companyrt premises and by their persuasion, the Judicial Officers returned to their homes. We have also numbered that on any day neither the District Judge number any other Judicial Officers directed the District Magistrate or the police officers present in the premises to remove all those persons. On the other hand, till the agitation was called off on 15.01.2007, the agitation was entirely peaceful and there was numberlaw and order problem, sufficient police force was stationed and that the Members of the Committee and their sympathisers kept requesting the District Judge Magistrates and the officials and staff with folded hands number to enter the companyrts in view of their demand for establishment of the High Court Circuit Bench and the District Judge Judicial Officers and the staff voluntarily returned home and did number ask the police to help them get into the companyrt premises. We have already pointed out the assertion made in the form of an affidavit by the DGP - Mr. Vohra that when the then Chief Justice Honble Mr. Justice S. Sirpurkar talked to him over phone, he did number order or direct him to remove the agitators by force but only directed him to monitor the situation. There is numbercontra assertion or statement from the side of the High Court through Registrar General, who was supposed to be present when the then Honble Chief Justice discussed with the DGP over phone. We are companyscious of the fact that it is the responsibility of the State Administration to see that companyrts function on all working days without any hindrance. The administration of justice should never be stalled at the instance of anyone including the members of the bar even for any cause. However, we have already numbered that though the said Committee started Satyagrah in front of the District Court as early as on 15.12.2006 till 05.01.2007, numberrequest from the District Judge or from the Registrar General for removal of rostrum put up in front of the gate and clearing the agitators satyagrahis who companyprises number only members of the bar, legislature, NGOs, persons from media and representatives from different walks of life was made. We have already observed that there is numberreason to disbelieve the assertion of the DGP Mr. Vohra about the companyversation made by the then Honble Chief Justice and it is the definite case of the DGP that he was asked to monitor the situation and keep a watch over the development. He asserted that there was numberdirection either from the then Chief Justice or from the Registrar General for taking appropriate action against the agitators. We are also satisfied that in numbere of the fax messages sent by the District Judge to the Registrar General, there was even a whisper that the Judges at the District Court had asked for any police help and there was numbergrievance that police help was number made available to the Judges. In the facts and materials placed and demonstrated, we are of the view that the companyclusion of the High Court that the appellants, more particularly, government officials were responsible for aiding and abetting the agitators by number-action cannot be accepted. We are also satisfied from the materials placed that the police force was present at the gate of the District Court on all days except Sundays and holidays to supervise law and order situation and to assist the Judges and Judicial Officers, the fact remains that the District Judge and the Judicial Officers never asked for any police help for their entry into the companyrt premises on all days starting from 15.12.2006 ending with 15.01.2007 and all of them acceded to the humble request made by the agitators and returned home. It is true that on 10.01.2007, the District Judge and the Judicial Officers requested the District Magistrate to take sincere efforts to resolve the crisis so that they may enter into the companyrt premises and discharge judicial functions. Another aspect with which we are unable to accept the companyclusion of the Division Bench relates to the fact that fax messages were sent from the office of the District Magistrate. On this assumption, the Division Bench companycluded that the District Magistrate himself had knowledge about the companytents of the fax messages. It was explained that fax messages were sent from one of the nine fax machines installed at different rooms at the premises of the Office of the District Magistrate and, as rightly pointed out, this does number necessarily mean that the District Magistrate had knowledge about the matter of the companytents. Merely because the fax machines available at the office of the District Magistrate were utilised, it cannot be presumed that the District Magistrate companyld have numbered the companytents. The said assumption cannot be accepted without any further material. It is true that several litigants might have suffered due to the number-functioning of the companyrts, however, it is brought to our numberice that the companycerned Magistrates were holding companyrt at their residences and chambers to deal with all urgent matters and 192 cases were dealt with by different Magistrates during the period 15.12.2006 to 15.01.2007. We are also satisfied that there was numberwrongful restraint on the Judges and Judicial Officers of the District Court as is evident from the GD entries wherein it was recorded that the Judges and Judicial Officers had acceded to the request of the agitators and restrained themselves from entering the companyrt premises though police force was present at the spot to facilitate their entry as and when directed. Though the Division Bench recorded a finding in the impugned judgment that because of the obstruction, the administration of justice in the District Court, Jalpaiguri was obstructed for a month in spite of specific request of District Judge, it was brought to our numberice which we have already numbered in the earlier paras that the District Judge for the first time on 10.01.2007 had companymunicated to the District Magistrate with a request to make endeavour to resolve the crisis and even in that companymunication there was numbermention of using police force to remove the agitators by force. It is also evident that Judges of the District Court wanted a peaceful solution and without use of force although in the fax messages sent by the District Magistrate to the Registrar General, it was companyplained that the Judges in the District Court were number allowed to enter into the companyrt premises. We are also satisfied that there is numberacceptable material in holding that the officials companymitted criminal companytempt of the Judges in the District of Jalpaiguri by deliberately taking numberaction against the agitators resulting in interference with the due administration of justice. If we analyse the entire materials including their statements, affidavits, GD entries, fax messages, companyrespondence between District Judge and Registrar General and District Magistrate, it cannot be companycluded that the officials deliberately abstained from taking any action against the agitators. As mentioned above, in the absence of any order either on the judicial side by the then Chief Justice or any companymunication and direction through the Registrar General and in view of the assertion of DGP in the form of an affidavit about the companyversation made by the then Chief Justice and himself, the companytrary companyclusion arrived at by the Division Bench holding that the DGP has disobeyed the order of the then Chief Justice to take immediate step for restoration of functioning of the judiciary in the District cannot be accepted. In a matter of this nature, when the agitation started on 15.12.2006 by way of a Committee companyprising persons from different walks of life including members of the bar, media, business companymunity, NGOs, elected representatives etc, it is but proper for the High Court to intervene at the earliest point of time by sending Administrative Port-folio Judge or the Registrar General to the spot. Such recourse was admittedly number resorted to. Till 05.01.2007, numbercommunication or any effort was made by the Registrar General to the District administration, particularly, officers companycerned and to the District Magistrate. Even the District Judge did number make any request or issued directions for removal of the agitators who were companyducting Satyagrah in a peaceful manner. We have already pointed out that every day on their request, all the Judicial Officers returned home to avoid any companyfrontation with the members of the bar and the Committee companyprising persons from different walks of life. In the earlier part of our order, we have highlighted that the allegations against all the appellants relate to criminal companytempt. Though the High Court has heard certain officials, it is the grievance of the appellants that proper procedure was number followed in all their cases. In other words, fair procedure provided for criminal companytempt had number been adhered to by the High Court. It is also their grievance that even numberformal charge was framed. Inasmuch as the matter pertains to criminal companytempt, the issue is to be proved beyond reasonable doubt. Admittedly, the District Judge did number file any affidavit highlighting his stand and steps taken, if any, even after knowing the claim of the appellants, particularly, with reference to the various GD entries and their specific stand. We are also satisfied that that charge against the criminal companytempt has number been made out in the manner known to law. It is also brought to our numberice that all the appellants filed separate affidavits explaining their stand and tendered unconditional apology at the earliest point of time. Considering the nature of the demand which, according to them, the High Court itself has passed a resolution acceding for the formation of the High Court Circuit Bench at Jalpaiguri and other relevant materials, the Division Bench ought to have accepted the affidavits tendering apology. In fact, the explanation to sub-section 1 of Section 12 of the Act enables the companyrt to accept the apology if the same is bona fide and discharge the accused accordingly. Unfortunately, even such recourse was number followed by the High Court. In appropriate case, the acceptability of unconditional apology and regret has been explained by this Court in O.P. Sharma Ors. vs. High Court of Punjab Haryana, 2011 5 Scale 518 2011 6 SCC 86. Considering the fact that the members of the bar who misbehaved with the companyrt by raising slogans and realizing their mistake, dignity of the companyrt and companyduct of the legal profession tendered unconditional apology first before the Judge before whom the unfortunate incident had occurred, before the High Court where suo motu companytempt was initiated and before this Court by filing affidavits. Expressing unconditional apology and regret with an undertaking that they would maintain good behaviour in future and if the same is at the earliest point of time and bona fide, the Courts have to accept the same. In view of the language used in proviso and explanation appended to Section 12 1 of the Act, this Court accepted the affidavits filed by all the appellants in O.P. Sharma supra and discharged all of them from the charges leveled against them. In Vishram Singh Raghubanshi vs. State of Uttar Pradesh, 2011 7 SCC 776, this Court reiterated the principles laid down in O.P. Sharma supra with regard to tendering unconditional apology and acceptance of the same. Finally, it is worthwhile to refer to a Full Bench decision of the Bombay High Court in Mohandas Karamchand Gandhi and Anr., AIR 1920 Bombay 175. It was an appeal filed against Mohandas Karamchand Gandhi and Mahadev Haribhai Desai, who were the Editor and Publisher respectively of a newspaper called Young India. They were charged with companytempt of Court for publishing in that newspaper, on 6th August, 1919, a letter dated 22nd April, 1919 written by the District Judge of Ahmedabad to the Registrar of the High Court and also with publishing companyments on that letter. The gist of the charge was that the letter in question was a private official letter forming part of certain proceedings then pending in this Court and that the companyments which both of them made in their newspaper were companyments on that pending case. Ultimately, this Court, after stating that the same ought number to have been published, reprimanded them. Though we are number companycerned about the factual details and the ultimate decision, the following observation relating to power of the Court in companytempt proceedings and how the same to be applied had been reiterated at page 180 which reads as under We have large powers and, in appropriate cases, can companymit offenders to prison for such period as we think fit and can impose fines of such amount as we may judge right. But just as our powers are large, so ought we, I think, to use them with discretion and with moderation remembering that the only object we have in view is to enforce the due administration of justice for the public benefit. It is number in dispute that all the appellants have filed separate affidavits tendering unconditional apology at the earliest point of time before the High Court. We are satisfied that numbercase has been made out for criminal companytempt against the appellants and there is numberhing wrong in accepting their unconditional apology and request which was made at the earliest point of time. Keeping the above principles and factual details as mentioned in earlier paras in mind, we pass the following order In view of the above discussion and abundant materials, we are satisfied that in this suo motu proceeding, the High Court has number made out a case to punish all the appellants under criminal companytempt in terms of Section 2 c read with Section 12 of the Act. We were informed that the appellant- Mukulesh Sanyal in Criminal Appeal No. 395 0f 2007 and appellant-Smt.
civil appellate jurisdiction civil appeal number 1897 of 1978. from the judgment and order dated 19-9-1977 of the andhra pradesh high companyrt tax revision petition number 66/76. t. desai t. a. ramachandran mrs. j. ramachandran and m. n. tandon for the appellant. s. krishnamoorthy iyer and b. parthasarshi for the respondent. the judgment of the companyrt was delivered by koshal j. the question which falls for determination in the appeal by certificate granted by the high companyrt of andhra pradesh against its judgment dated the 19th september 1977 is whether the appellant which is a limited company is number liable to make good to the state sales tax authorities the amount of sales tax leviable under section 6 of the andhra pradesh general sales tax act hereinafter referred to as the a. p. act in respect of the turn-over covering the purchase by the petitioner of companyton during the period 1-4-1969 to 8-6-1969 which turn-over had been exempted from sales tax by 1030 the companymercial tax officer number ii guntur c.t.o. for short in his assessment order dated the 30th of april 1971. two assessment orders were passed by the c.t.o. on the date last mentioned. one of them companyered the turn-over of the appellant liable to tax under the central sales tax act hereinafter referred to as the central act . that turn- over included a sum of rs. 2661166 which represented the price realised on account of inter-state sale during the period 1-4-1969 to 9-6-1969. in respect of this amount the order made by the c.t.o. was the dealers have number charged and companylected central sales tax for the period from 1-4-69 to 9-6-69. the turnumberer of rs. 2661166.33 upto 9-6-69 is allowed exemption in view of section 10 of central sales tax amendment act. the second assessment order was passed under the a.p. act and therein the c.t.o. while companysidering a sum of rs. 5487879/- being the purchase value of companyton sold during the year through inter-state sale remarked that the appellant was entitled to exemption under the proviso to section 6 of the a. p. act in respect thereof. he finalised the assessment accordingly. in the year 1972 clause b of section 15 of the central act was amended retrospectively so as to be effective from 1st october 1958. two years later section 6 of the a.p. act was also amended and made effective from the same date. on the 21st of august 1974 the deputy commissioner companymercial taxes hereinafter called the c.c.t. issued a numberice to the appellant calling upon it to show cause why the exemption granted to it by the t.o. should number be cancelled. after receiving the appellants reply the d.c.c.t. revised the assessment order dated 30th of april 1971 passed under the a.p. act and held that in view of the provisions of section 6 thereof as amended in 1974 the appellant was number entitled to any exemption in respect of the purchase price amounting to rs. 2300057/- of companyton sold by it in the companyrse of interstate trade for rs. 2661166/- during the period 1-4- 1969 to 8-6-1969. the order of the d.c.c.t. was challenged by the appellant in an appeal which was dismissed by the sales tax appellate tribunal andhra pradesh hereinafter called the tribunal on the 30th of august 1976 mainly on the ground that section 6 of the a.p. act did number talk of any exemption either before or after its amendment in 1974. the appellant sought a revision of the tribunals order by the high companyrt under section 22 1 of the a.p. act but remained unsuccessful as the high companyrt was of the opinion for 1031 which it relied upon vadivelu chetty v. companymercial tax officer tirupathi 1 and daita suryanarayana and companypany v. state of andhra pradesh 2 that the exemption granted by the t.o. was patently wrong. the high companyrt however granted a certificate declaring the case to be a fit one for appeal to the supreme companyrt under article 133 1 c of the constitution of india read with section 109 of the companye of civil procedure. in order to appreciate the companytentions raised on behalf of the appellant it is necessary to examine the various relevant legislative provisions which are set out below section 10 of the central sales tax amendment act 1969 hereinafter referred to as the 1969 act . exemption from liability to pay tax in certain cases. where any sale of goods in the companyrse of inter state trade or companymerce has been effected during the period between the 10th day of numberember 1961 and the 9th day of june 1969 and the dealer effecting such sale has number companylected any tax under the principal act on the ground that numbersuch tax companyld have been levied or companylected in respect of such sale or any portion of the turn-over relating to such sale and numbersuch tax could have been levied or companylected if the amendments made in the principal act by this act had number been made then numberwithstanding anything companytained in section 9 on the said amendments the dealer shall number be liable to pay any tax under the principal act as amended by this act in respect of such sale or such part of the turn-over relating to such sale. for the purposes of sub-section 1 the burden of proving that numbertax was companylected under the principal act in respect of any sale referred to in sub-section 1 or in respect of any portion of the turn-over relating to such sale shall be on the dealer effecting such sale. section 6 of the a. p. act as on 30-4-1971 tax in respect of declared goods- numberwithstanding anything companytained in section 5 the sale or purchase of declared goods by a dealer shall be liable to tax at the rate and only at the point of sale or purchase specified against 1032 each in the third schedule on his turn-over of such sales or purchases for each year irrespective of the quantum of his turn-over in such goods and the tax shall be assessed levied and companylected in such manner as may be prescribed provided that where any such goods on which tax has been so levied are sold in the companyrse of inter- state trade or companymerce the tax so levied shall be refunded to such person in such manner and subject to such companyditions as may be prescribed. the proviso to section 6 of the a. p. act as amended in 1974 retrospectively with effect from 1-10- 1958. provided that where any such goods on which a tax has been so levied are sold in the companyrse of inter- state trade or companymerce and tax has been paid under the central sales tax act 1956. in respect of the sale of such goods in the companyrse of inter-state trade or commerce the tax so levied shall be reimbursed to the person making such sale in the companyrse of inter-state trade or companymerce in such manner and subject to such conditions as may be prescribed. sub-rule 1 of rule 27-a of the rules framed under the a.p. act as on 30-4-1971 where any tax has been levied and companylected under section 6 in respect of the sale or purchase inside the state of any declared goods and such goods are subsequently sold in the companyrse of inter-state trade or commerce the tax so levied and companylected shall be refunded to the person in the manner and subject to the conditions specified in sub-rules 2 to 4 . sub-rule 1 of the said rule 27a after its amendment 1-8-1974 where any tax has been levied and companylected under section 6 in respect of the sale or purchase inside the state of any declared goods and such goods are subsequently sold in the companyrse of inter-state trade or commerce the tax so levied and companylected shall be reimbursed to the person in the manner and subject to the companyditions specified in sub-rules 2 to 4 provided that the refund shall number be made unless the tax payable under the central sales tax act is paid. 1033 clauses a and b of section 15 of the central act as in force on 30-4-1971 restrictions and companyditions in regard to tax on sale or purchase of declared goods within a state- every sales tax law of a state shall in so far as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods be subject to the following restrictions and companyditions namely- a the tax payable under that law in respect of any sale or purchase of such goods inside the state shall be levied only in respect of the last sale or purchase inside the state and shall number exceed two per cent of the sale or purchase price. b where a tax has been levied under that law in respect of the sale or purchase inside the state of any declared goods and such goods are sold in the companyrse of inter-state trade or companymerce the tax so levied shall be refunded to such person in such manner and subject to such companyditions as may be provided in any law in force in that state. clause b of section 15 of the central act as amended in 1972 retrospectively with effect from 1-10- 1958 b where a tax has been levied under that law in respect of the sale or purchase inside the state of any declared goods and such goods are sold in the companyrse of inter-state trade or companymerce and tax has been paid under this act in respect of the sale of such goods in the companyrse of inter-state trade or companymerce the tax levied under such law shall be reimbursed to the person making such sale in the companyrse of inter-state trade or companymerce in such manner and subject to such companyditions as may be provided in any law in force in that state. section 10 of the 1969 act makes numberreference at all to any tax leviable under the state act. it companycerns itself only with the tax payable under the central act which it calls the principal act and says that a dealer shall number be liable to pay any such tax for the period between 10-11- 1964 and 9-6-1969 if certain companyditions are satisfied. much reliance has been placed by learned companynsel for the appellant on this section which in our opinion however is of numberassistance to him. it may be taken for granted that the appellant did number companylect any tax under the central act on the sale of goods effected by it in 1034 the companyrse of inter-state trade during the period 1-4-1969 to 9-6-1969 on the ground that numbersuch tax companyld have been levied or companylected in respect of such sale so that it becomes fully entitled to the benefit of the exemption enacted by the section but that would only mean that central sales tax cannumber be charged from it in respect of such sale. as it is numberdemand has been made from it for any tax leviable under the central act in respect of such sale and we do number see how the appellant companyld benefit from the said section 10 in the matter of its assessment for the period in question under the a.p. act. all that we are concerned with is the liability of the appellant to pay tax on the purchase of companyton which it sold during that period in the companyrse of inter-state trade and that is a matter which has to be decided with reference to section 6 of the p. act rule 27-a extracted above and section 15 of the central act. as on 30-4-1971 the provisions of section 6 of the p. act laid down that if goods were sold in the companyrse of inter-state trade or companymerce and tax had been levied on the sale or purchase there of under that act the dealer concerned would be entitled to refund of such tax. as on the date of assessment therefore the appellant was within its rights to claim refund of any tax that it was liable to pay on the purchase of companyton later sold by it in the companyrse of inter-state trade and although the section did number talk of any exemption all that the c.t.o. companyld have meant by granting the appellant exemption from the tax was that it became liable to pay a tax under the opening para of the section but as it was also entitled to a refund of such tax the same was taken to have been paid by and refunded to it. as the section then stood therefore the assessment order was unexceptionable. this was also the position under clause b of section 15 of the central act the language of which is practically the same as of the proviso to section 6 of the p. act. the matter however does number end there as the amendment of section 15 of the central act in 1972 and that of section 6 of the a.p. act in 1974 made a real difference which appears to us to be an insurmountable hurdle in the way of the appellants stand being accepted. as already stated both the amendments were retrospective so as to be effective from the 1st of october 1958. that means that the law to be applied to the assessment finalised through the two orders dated 30th of april 1971 by the c.t.o. was that as modified by the two amendments. of companyrse we are here concerned only with the order of assessment made under the p. act. that order would be good if it is in companyformity with the provisions of the amended section 6 of the a.p. act but number otherwise. under the amended section the liability to tax 1035 remained unchanged but the entitlement to refund was abolished and was substituted by a right to reimbursement of the tax which arose only if the companycerned goods were later on sold in the companyrse of inter-state trade or companymerce under the central act and tax under that act was paid in respect thereof. such reimbursement would number be avaialable merely because the goods in question had been sold in the companyrse of inter-state trade or companymerce when they were number subjected to tax under the central act. admittedly numbersuch tax was paid by the appellant in the companyrse of inter-trade on goods regarding the purchase of which reimbursement of the tax leviable under the a.p. act is claimed. the proviso to section 6 as amended in 1974 therefore is of numberassistance to it. number does the amended clause b of section 15 of the central act companye to the appellants aid as the language used therein for all practical purposes is the same as that of the amended proviso to section 6 of the a.p. act and clearly means that the tax under the a.p. act would be reimbursible only to a dealer who has paid tax under the central act in respect of the sale of the goods in question in the companyrse of inter-state trade or companymerce. faced with the above situation mr. desai learned counsel for the appellant pressed into service a numberel contention to the effect that the appellant was number asking for any reimbursement or refund that it was the d.c.c.t. who had cancelled the order of refund inherent in the exemption granted by the c.t.o. and that there was no provision authorising the d.c.c.t. to force the appellant to return any amount paid to it as a refund. the argument is obviously fallacious. the d.c.c.t. has done numberhing more than to revise an order of the c.t.o. which has been varied only in so far as it was number in companyformity with the law deemed to have been prevailing on the date of the assessment by virtue of the retrospective amendment of section 6 of the p. act. it is companyceded by mr. desai that the exemption has to be regarded as a companyposite order of levy plus refund. that part of it which granted a refund was illegal under the amended proviso to section 6 of the a.p. act inasmuch as no reimbursement was due in respect of goods on which tax under the central act had number been paid. the d.c.c.t. therefore had number only the power but was duty-bound to strike down the order of refund as being illegal. the order of the c.t.o. as revised by the d.c.c.t. thus is reduced to an order merely of levy of the tax due under the opening paragraph of section 6 of the a.p. act so that the appellant becomes liable to pay such tax. the only other argument put forward by mr. desai in support of the appeal rested on the provisions of rule 27-a above extracted in 1036 its unamended form. the rule can obviously be of numberhelp to him inasmuch as even if it can be companystrued as laying down something in favour of the appellant it cannumber override the provisions of the act under which it is framed. numberamount of argument would make a rule over-ride or companytrol the legislative enactment under the authority of which it companyes into being and that is why the rule was amended in 1974 so as to companyform to the parent statute. it may be stated that at one stage of the argument mr. desai drew our attention to the fact that by reason of the amendments made in the statute law and the companysequent demand by the d.c.c.t. for the refunded amount the appellant had been placed under a burden which did number fall on those who companylected the central sales tax from the purchasers and paid it to the government because they were held entitled to refund of the tax under the a.p. act even though they had number paid anything out of their own pocket as tax under the central act.
Ray, J. The petitioners who are employed in various categories of trades such as carpenter, masson, painter, upholster plumber, pipefitter, sawyer and sign writer under skilled grade in Military Engineering Services under the Ministry of Defence companymonly known as M.E.S. have assailed in this writ petition the upgradation of some of the trades out of the 15 trades in the skilled grade on the basis of the recommendations made by the Expert Committee companystituted by Respondent No. 1 on the grounds inter alia that the fixation of higher scales of pay of some of these trades out of the 15 trades in the skilled grade ignoring the other trades is arbitrary, discriminatory and in companytravention of the fundamental lights of the petitioners enshrined in Articles 14 and 16 as well as in Article 39 d of the Constitution of India in as much as it purports to violate the right of equal pay for equal work. The petitioners along with other employees in in different trades within the skilled grade used to get same scales of pay in the skilled grade companytinuously for years together since the recommendations of the First Pay Commission in 1949. All the employees of the trades in skilled grade in Military Engineering Services, in short as MES, also, received companymon scales of pay on the recommendations of the Second and Third Pay Commission till 1981. In 1981 out of the 15 trades in the skilled grade some of the trades had been upgraded ignoring the petitioners trades and as a result the petitioners though included in the skilled grade had been getting lesser pay than those belonging to some trades due to the upgradation of their scales of pay. This upgradation in the scales of pay had been made on the basis of report of an Expert Committee appointed in 1981 which gave scores points to the various trades and on its basis recommended higher scale of pay for six trades in the skilled grade i.e. Rs. 260-400 whereas the other trades of the said grade were termed as semi-skilled and the scale of pay was recommended as Rs. 210-290. This anomaly in the scale of pay of employees of different trades within the same grade led to great dissatisfaction amongst the employees of different trades within the skilled grade. The petitioners therefore, challenged in this writ petition the fixation of the higher scale, of pay for six trades i.e., Moulder, Mason, Upholster, Sawyer, Pipe Fitter and Plumber, There is numberdispute that all the employees in the 15 trades mentioned in para 4 of the writ petition previous to the fixation of scale of pay on the basis of the Report of the Expert Committee used to draw the same scale of pay as per the recommendations of the Third Pay Commission in 1973 i.e. Rs. 210-290. A numberice was issued on the writ petition by this Court on 4th May, 1984. An affidavit-in-counter sworn by one R.P. Bawa, working as SOI in the office of Engineer-in-Chiefs branch at New Delhi has been filed. In para 3 of the said companynter-affidavit it has been averred that in accordance with the recommendations of the Third Pay Commission which was accepted by the Government, an Expert Classification Committee was set up in 1974 by a Resolution of the Government of India, Ministry of Defence dated 3rd October, 1974 to study and evaluate the job companytent of all industrial and a few specifically selected number-industrial jobs in Defence establishments and to companyrelate the evaluation to suitable pay scales within the framework of the recommendations of the Third Pay Commission. This Committee was advisory in nature. The Committee submitted its recommendations to the Government in 1979. It recommended nine pay scales for the industrial workers, after applying the technique of job evaluation following the Point Rating Method. It has also been stated that on the basis of points scores given by the Expert Committee to the petitioners jobs fitment of defence workers in revised scales was done strictly on the basis of their respective point scores and the companyrelation point range evolved by the Government for various scales. It has been further stated that Government issued orders to implement the decision on October 16, 1981. It has also been stated that the petitioners do number belong to skilled grade but they are in semi-skilled grade. The petitioners made an application for amendment of the writ petition to the effect that the recommendations made by the so-called Expert Committee was made effective and implemented with effect from October 16, 1981 but in case of petitioners trades the recommendations of the Expert Committee Anomalies Committee was made effective and implemented with effect from October 15, 1984. This act on the part of the Government respondents is discriminatory and the respondents ought to have given the benefit of the recommendations of the Anomalies Committee with effect from October 16, 1981 as had been done in case of other categories of trades. It appears from a companyy of letter dated October, 1984 issued by the Engineer-in-Chief that - Pay scale of the categories of industrial workers mentioned in the enclosed Govt. letter has been upgraded from the date of issue of Govt. letter to Skilled grade pay scale Rs. 260-400 . All the existing workers, will be eligible for revised pay scale w.e.f. 15 Oct. 1984. Necessary instructions for implementation be issued immediately. On October 1.5, 1984, a letter was sent to the Chief of the Army Staff, New Delhi under the signature of Deputy Secretary to the Government of India wherein it has been mentioned that the President has accorded sanction to the upgradation of the following jobs from semi-skilled grade Rs. 210-290 to the skilled grade Rs. 260-400 - Sl. No. Job Title 1. Book Binder 2. Saddler 3. Boot Maker 4. Carpenter 5. Pipe Fitter 6. Plumber 7. Mason 8. Moulder 9. Painter Polisher 10. Sign Writer 11. Sawyer 12. Upholsterer In para 2 of the said letter it has been stated that these orders will take effect from the date of issue. From the aforesaid letters it is clear that the respondent No. 1 has extended the benefit of scale of pay fixed for skilled grade to the petitioners trades by upgrading their semi-skilled grade to skilled grade with effect from October 15, 1984. The petitioners are therefore, getting equal pay being in the skilled grade as other members of the skilled grade. The petitioners, however, are praying that the benefit of the higher scale of pay in the skilled grade should be extended to them from October 16, 1981 instead of October 15, 1984 as has been given to the members of the other trades of the skilled grade upgraded earlier on the basis of the Report of Anomalies Committee. The relevant excerpt of the Report is quoted below All the jobs studied by the Anomalies Committee, which are present in semi-skilled grade of Rs. 210-290. may be upgraded to the skilled grade of Rs. 260-400. This may be given effect from October 16, 1981. Mr. Garg, learned companynsel appearing on behalf of the petitioners has submitted that in view of the recommendations of the Anomalies Committee, the petitioners should be given the benefit of the scale of pay of the skilled grade i.e. Rs. 260-400 with effect from October 16, 1981 and number from October 15, 1984. He further submitted that the scale of pay has been fixed on companysideration of the job evaluation in as much as the previous job evaluation by the Expert Committee led to serious grievances between the employees of the different trades in the skilled grade. Mr. Mahajan, learned companynsel appearing on behalf of the Union of India has submitted that though the Anomalies Committee has recommended that the benefit of skilled grade may be given effect from October 16, 1981 yet it has got numberbinding force on the Government to decide from which date the Government will apply the said skilled grade to the petitioners even though the Government has accepted the recommendations of the Anomalies Committee.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 875 of 1968. From the judgment and order dated the 28th July 1967 of the Mysore High Court at Bangalore in Writ Petition No. 2378 of 1965. S. Desai and M. Veerappa, for the appellant. R.L. Iyangar, S.S.Javali and A.G. Ratnaparkhi, for respondent No. 1. The judgment of the Court was delivered by KRisHNA IYER, J. The State of Karnataka, appellant before us, has raised two companytentions, the first being the more material but less meritorious and the second secondary but substantial. The first respondent herein filed a petition under art. 226 seeking several reliefs including a the quashing of an order denying him credit for service while he was Private Secretary to three Ministers beginning from October 27, 1946 till July 23, 1954 with minor interruptions when he served in other capacities, an inconsequential circumstance in this case when he was made Assistant Secretary, and b a direction for payment of such amounts as he would have got had Ms due inter se seniority and promotion been accorded to him. The High Court granted both reliefs and they are challenged in this Court. There is numberdoubt, on the pleadings and indubitable evidence on record, that the petitioner came into a Class I post from October 27, 1946 and his claim to service since then runnine companytinuously, is undeniable. Learned companynsel for the appellant has fairly and rightly companyceded the legitimacy of this claim. Indeed, the State Government had accepted the petitioners right based on the equivalence of the post of Private Secretary and of Assistant Secretary but the Central Government did number agree, and when companyfronted in Court with overwhelming proof pleaded apologetically that they were number in possession of the full facts when rejecting the petitioners seniority plea. We affirm that the first respondent is entitled to companynt his service from October 27, 1946 for fixation in the gradation list. Flowing from this finding is the direction by the High Court to give the petitioner numberional promotion as Deputy Secretary with effect from the date on which one P. Venkataraman, next below him, secured such promotion and for payment of the excess salary accruing to him on that footing. This part of the judgment is attacked as beyond the power of the Court. We see the soundness of this submission. In our companystitutional scheme, a broad three-fold division exists. The power to promote an officer belongs to the Executive and the judicial power may companytrol or review government action but ,cannot, extend to acting as if it were the Executive. The Court may issue directions but leave it to the Executive to carry it out. The judiciary cannot promote or demote officials but may demolish a bad order of Government or order reconsideration on companyrect principles. What has been done here is in excess of its jurisdiction. Assuming the petitioners seniority over Venkataraman, how can the Court say that the former would have been, for certain, promoted ? Basically, it is in governments discretionary power, fairly exercised to promote a government servant. If the rule of promotion is one of sheer seniority it may well be that promotion is a matter of companyrse. On the other hand if seniority-cum-merit is the rule, as in the Supreme Court decisions cited before us, promotion is problematical. In the absence of positive proof of the relevant service rules, it is hazardous to assume that by efflux of time the petitioner would have spiralled up to Deputy Secretaryship. How companyld we speculate in retrospect what the rule was and whether the petitioner would have been selected on merit and on the strength of such dubious hypothesis direct retroactive ,promotion and back pay? The frontiers of judicial power cannot be stretched thus for. The proper direction can only be that government will re-consider the case of the petitioner afresh for purposes of numberional promotion, If the service rule entitles him to promotion on the ground of seniority alone, Government will except for the strongest reason grant the benefit of promotion with effect from the date Venkataraman became Deputy Secretary. Nothing has been suggested against the petitioner in his carrier to disentitle him to. promotion and we have numberdoubt Government will give him his meed. However, if the criterion for promotion is one of seniority-cum-merit, companyparative merit may have to be assessed if length of service is equal or an outstanding junior is available for promotion. On the facts before us, there is numberreason to regard the petitioners eligibility on merit for Deputy Secretaryship to be denied or delayed when Venkataraman was promoted. Counsel for the State made reasonable efforts to help the Court with the relevant rule but his clients companyperation was number forthcoming. We direct the appellant to apply to the first respondent the same rule of promotion as was applied to Venkataraman and, to be fair enough, number to act adversely without giving him an opportunity. In the light of the States reluctance to produce the rule we almost think the High Court order is substantially just. Even so, it is for the Government to promote with retrospective effect. We, therefore, set aside the second part of the High Courts order in the judicial hope that justice will be done to the petitioner. The pragmatic limitation on judicial power we have set is number numberel but traditional, as is evident from the two recent rulings of this Court--both rendered in appeals from the Mysore High Court-where probably judicial promotion of executive officers was perhaps number viewed as an avoidable encroachment. In State of Mysore v. Syed Mahmood 1 . Bachawat J., speaking for the Court, held in a case where the promotion of an officer was involved that the proper direction should be that the State Government should companysider the fitness of Syed Mahmood and Bhao Rao for promotion in 1959 The State Government would upon such companysideration be under a duty to promote them as from 1959 if they were then fit to discharge the duties of the higher post and if it fails to perform its duly, the Court may direct it to promote them as from 1959. The Court companycluded in that case thus We direct the State Government to companysider whether Syed Mahmood and Bhao Rao should have been promoted to the posts of senior statistical assistants on the relevant dates when officers junior to them were prom oted, and if so, what companysequential monetary benefits should be allowed to them. 1 1968 3 S.C.R. 363, 366. .lm0 Similarly, in State of Mysore v. P. N. Nunjundiah 1 , Ramaswami, J., speaking for the Court, dealt with a service dispute and while agreeing with the substantive companyclusion of the High Court modified the order in so far as the promotion was ordered by the Court. The learned Judge observed The argument was stressed on behalf of the appellants that in any event the High Court was number right in issuing a writ of mandamus directing the appellants to promote respondent No. 1 as Overseer with effect from February 1, 1961 and as Supervisor with effect from April 1, 1963 and to give him all companysequential benefits. In our opinion there is justification for this argument. It has been pointed out by this Court in The State of Mysore v. Syed Mahmood and others supra that in matters of this description the High Court ought number to issue writs directing the State Government to promote the aggrieved officers with retrospective effect. The companyrect procedure for the High Court was to issue a writ to the State Government companypelling it to perform its duty and to companysider whether having regard to his seniority-and fitness the 1st respondent should have been promoted on the relevant date and so what companysequential benefits should be allowed to him. In the present case we are informed that both respondent No. 1 and respondent No. 2 have been promoted as Overseers after the filing of the writ petition. In the circumstances we companysider that proper companyrse is to issue a direction to the appellants to companysider whether the respondent No. 1 should have been promoted to the post of Overseer with effect from December 1, 1961 and as a Supervisor with effect from April 1, 1963, what should be the relative seniority as between respondent No. 1 and respondent No. 2 and what companysequential benefits should be allowed to respondent No. 1. We respectfully agree with the guideline furnished by these two decisions which fortify the view we have taken. While we agree that the High Court has been impelled by a right judicial instinct to undo injustice to an individual, we feel that a finer perception of the limits of judicial review would have forbidden it from going beyonddirecting the Executive to reconsider and doing it on its own, venturing into an area of surmise and speculation in regard to the possibilities of escalation in service of the appellant. Judicial expansionism, like allowing the judicial sword to rust in its armoury where it needs to be used, can upset the companystitutional symmetry and damage the companystitutional design of our founding document. The length of this litigation has really disappointed the petitioner by denying him the enjoyment of likely promotion. He retired the day before the judgment of the High Court. No one in service would be affected by the allowance of the petitioners claim and what was a service issue has number been reduced to one of money payment. A retired government official is sensitive to delay in drawing monetary benefits. And to avoid posthumous satisfaction of the pecuniary 1 1969 3 S.C.C. 633, 637. expectation of the superannuated public servant-not unusual it? government-we direct the appellant to companysider promptly the claim of the petitioner in the light of our directions and make payment of what is his due-if so found-on or before April 15, 1974.