AndresIgnacio/LiciCariola
Updated
judgement
stringlengths 593
62.4k
| summary
stringlengths 0
13.8k
| legal_summaries
stringlengths 358
3.49k
|
|---|---|---|
Appeal No.1539 of 1971.
(From the Judgment and Order dated 5 8 1969 of the Allahabad High Court in Special Appeal No. 58/65).
B.B. Ahuja and R.N. Sachthey, for the Appellant.
A.T.M. Sampath and Ram Lal, for Respondent No. 1. 215 The Judgment of the Court was delivered by SARKARIA, J.
This appeal on certificate is directed against an appellate judgment, dated August 5, 1969, of a Bench of the High Court of Allahabad.
It arises as follows: M/s. S.B. Singar Singh and Sons (hereinafter called the assessee) were assessed to Excess Profits tax for the chargeable accounting periods, ending March 31, 1945 and March 31, 1946.
under two assessment orders dated August 26, 1949.
The previous years 193637 was chosen by the assessee as his standard period.
" The profits of that year were Rs. 38,703/ .
After deducting the profits of the standard year, the Excess Profits Tax Officer, assessed the tax on the remaining amounts of profits.
The Excess Profits Tax thus assessed for the accounting years, was to the tune of Rs. 1,06,181.5 and Rs. 48,978/ , respectively.
In his orders, the assessing Officer said that "for reasons detailed in the earlier assessment orders no adjustments are made for capital variations in the standard period and the chargeable accounting period".
These reasons as given in the earlier assessment order, dated October 30, 1947, per taining to the chargeable accounting period ending March 31, 1944, were: "As complete and regular accounts are not maintained by the assessee, it is not possible to make any adjustment for variations in average capital which cannot be accurately ascertained".
Against the orders of assessment, the assessee preferred two appeals on September 24, 1949 to the Assistant Appellate Commissioner.
By two separate applications dated October 24, 1949, the assessee took an additional ground of appeal which obvious ly he had not taken in the original memorandum of appeal that the Excess Profits Tax Officer had erred in not allowing adjustments on account of the increase and decrease of capital in the relevant chargeable accounting period.
The assessee added that he "was always prepared to file his computa tions of average capital".
Dismissing the appeals by his orders, dated November 24, 1949, the Assist ant Appellate Commissioner negatived the assessee 's contention, in these terms: "As in these years no regular accounts have been maintained and it is not possible to make any adjustment for variations in average capital which cannot be exactly ascertained.
No figures have been shown to me, nor has any exact working been fur nished at this stage.
The accounts are left in the same manner as for the earlier years.
Profits in the major accounts had to be worked out by the application of a rate to the turnover.
I am, thus, unable to allow this contention.
" Aggrieved, the assessee carried appeals to the Income tax Appellate Tribunal.
In the memoranda of appeals, one of the specific grounds taken was, that "the Excess Profits Tax Officer and the Assistant Appellate Commissioner had erred in not allowing to the assessee proper standard profits in accordance with the standard period subject to the adjust ment on account of the increase and decrease of capital in the relevant chargeable accounting period.
" It was reiter ated that "the 216 appellant was always prepared to file his computation of average capital.
" This ground relating to standard profits was not dis cussed by the Tribunal and no finding was recorded thereon.
The Excess Profits Tax Appeals and other Income tax appeals filed by the assessee were heard together by the Tribunal and disposed of by common orders dated February 24, 1951.
In the Income tax appeals, some relief was granted, but in the Excess Profits appeals, no relief was granted due to the variation of the capital in the chargeable accounting period of 1945 46 and 1946 47.
The assessee on July 27, 1951, made an application under section 35 of the Income tax Act, 1922 for rectification of its order to the Tribunal on grounds other than the one regarding variation in the standard profits due to increase and decrease of the capital.
This application was dismissed on August 27, 1951 by the Tribunal on the ground that there was no mistake apparent on the record.
No grievance was made in this application that the Tribunal did not consider and decide the ground relating to adjustment of standard profits according to variation in capital during the relevant peri od.
On March 11, 1954, the assessee made a representation to the Central Board of Revenue praying for reopening of the assessments.
In this representation, also, he did not take up Ground No. 1.
Subsequently however on May 24, 1954 he wrote a letter to the Income tax Officer saying that he was sorry to omit 'one important point ' i.e., Ground No. 1, from his representation to the Board, and that the Income tax Officer should "supplement the same while making (his) report to the higher authorities. '
His representation dated March 11, 1954 and the petition dated May 24, 1954, both were rejected and the Commissioner communicated those rejec tions to the assessee by a letter dated May 25, 1955, saying that he did not see any justification for re opening the assessments which had become final and closed.
Thereafter on April 2, 1956, the assessee made a second application to the Tribunal (which in substance was one for review of its orders, dated .February 24, 1951), contending that Ground No. 1 raised in his two appeals, relating to the standard profits of the two chargeable accounting periods and pointing out the failure of lower authorities to make necessary adjustments in such profits according to section 6 of the Excess Profits Tax Act (hereinafter referred to as Ground No. 1 ) was not disposed of by the Tribunal.
It was prayed that the appeals relating to excess profits tax matters which should be deemed to be still pending owing to the non decision of Ground No. 1 be disposed of after hear ing the assessee.
The Tribunal rejected this contention with the remark that the appeals were decided as early as 24th February, 1951 and it is now futile to contend that the matter was pending when the Tribunal had already passed orders and the orders were served on the assessee.
" The Tribunal further observed that the absence of a reference "to the contention of the assessee regarding the standard profits and the necessary adjustments would not render the Tribunal 's order a nullity, nor would it mean that the Tribunal had partially disposed of the appeals and some residue is pending".
In the alternative, it held that even on the assumption that 217 Ground No. 1 was argued and was not disposed of by the Tribunal, the proper remedy for the assessee was either to apply for rectification under section 35 or to move an applica tion under section 66.
The Tribunal refused to treat this application as one for rectification because, in its opinion, such an application would be much too time barred.
In the result, the Tribunal dismissed that application by an order dated June 9, 1956.
The assessee had filed a reference application, also under section 66(1) the Income tax Act in these cases.
That application was dismissed by the Tribunal on August 28, 1951.
The assessee then made applications under section 66(2) of the Income tax Act before the High Court requesting for reference on certain question of law arising out of the order, dated February 24, 1951, of the Tribunal.
In these applications, alsO, he did not ask for reference on a question relating to Ground No. 1 (regarding adjustment of standard profits).
These applications were allowed by the High Court by an order, dated April 12, 1956, whereby the Tribunal was directed to state a case and refer for decision certain questions of law to the High Court.
Thereafter, during the proceedings before the Tribunal for preparation of the statement of the case, the assessee moved an application, dated July 23, 1957, requesting it to refer the question of adjustment of standard profits on account of increase and decrease in the capital in the relevant periods to the High Court, in addition to the questions of law directed by the High Court to be referred to it.
This application was rejected for the reason that the question had not been raised in the reference applica tion, nor did it arise out of the appellate orders of the Tribunal.
On July 24, 1957, the Tribunal stated the case and made a reference on the other question to the High Court in compliance with that Court 's order, dated April 12, 1956.
On November 4, 1968, the assessee filed a writ petition in the High Court praying for a writ of Mandamus requiring the Tribunal to consider his Ground No. 1 mentioned in the Excess Profits Tax Appeals Nos. 651 and 660 of 1949 and 1950 and his subsequent application dated April 2, 1956.
The writ petition was heard by a learned single Judge of the High Court who held that while disposing of the appeals, it was the duty of the Tribunal to record a finding on Ground No. 1 which had been specifically raised in the memoranda of appeals before it, that the Tribunal therefore, could and should have reviewed its orders and rectified its mistake in the exercise of its inherent powers when that mistake was brought to its notice by the assessee by his application dated April 2, 1956; that section 35 of the Income tax Act which provides a period of four years ' limitation for seeking rectification of mistakes in assessment orders, was not applicable to assessment orders made by the.
Tribunal under the Excess Profits Act; that consequently, the Tribunal was in error in refusing to treat the assessee 's application, dated April 2, 1956,.as one for rectification of a mistake of the Tribunal on 16 1003 8C1/76 218 the ground of limitation.
In the result, the learned Judge set aside the Tribunal 's order, dated June 9, 1956, and directed the Tribunal to dispose of the assessee 's applica tion dated April, 2, 1956, afresh in accordance with law.
The Revenue filed a Special Appeal against the order of the learned single Judge before the Appellate Bench of the High Court.
The Bench dismissed the appeal and affirmed the findings and orders of the learned single Judge.
Hence this appeal.
Mr. Ahuja, appearing for the appellant, con tends that the writ petition of the assessee should have been thrown out by the High Court on the preliminary ground that he had not come with clean hands.
In this connection Counsel has pointed out several circumstances which according to him, belie the main plea of the assessee that the Tribunal had not considered his Ground No. 1 although the same was urged before it at the hearing of the appeals.
It is stressed that .Ground No. 1 was not original ly taken by him in the grounds of appeal filed before the Assistant Appellate Commissioner, al though subsequently in the Additional grounds filed about one month after the institution of the ap peals, he, as an after thought, did introduce "Ground No. 1", that he did not make any grievance whatever on the score of Ground No. 1 in his appli cation for rectification of the Tribunal 's orders, filed on July 27, 1951; that for more than 5 years after the announcement of the appellate orders of the Tribunal, he made no application to the Tribu nal for review and rectification of its appellate orders in relation to Ground No. 1; that the assessee delayed the making of the application, dated April 2, 1956 presumably with a view to ensure that at the time of its presentation, none of the members of the Tribunal who had originally decided the assessee 's appeals, was there to hear the application; that even in this inordinately delayed application, review and rectification was not asked for in a straight forward manner but it was disguised as an application for decision of the appeals which on account of non decision of Ground No. 1 were alleged to be still pending; that the writ petition was filed after an abnormal delay of ten years; that a perusal of the assessment orders made by the Excess Profits Tax Officer and the Assistant Appellate Commissioner, and even the memoranda of appeals filed before the Tribunal shows that at no stage the assessee furnished complete accounts or even a statement showing variation in the capital during the relevant peri ods.
It is emphasised that all that the assessee said in the memoranda of appeals was that he was "prepared" to furnish a statement of such computa tion and accounts.
It is further pointed out that no certificate of Shri Surinderjit Singh, Advocate who is supposed to have argued the appeals before the Tribunal, was filed.
It is maintained that the only reasonable inference from these circumstances was that Ground No. 1 was not pressed or argued at all by Shri Surinderjit Singh before the Tribu nal who consequently, did not think it necessary to deal with it.
Mr. Sampath, appearing for the assessee respondent has not been able to deny the existence of the circumstances pointed out by Mr. 219 Ahuja.
His argument is that in the affidavit accompanying the writ petition, the deponent had sworn that Ground No. 1 was, in fact, argued before the Tribunal and that this sworn statement had been believed by the High Court.
This being the case, it is argued, this Court should not re open the question as to whether Ground No. 1 was, in fact, argued or not before the Tribunal.
According to Mr.Sampath, over 5 years ' delay in making the application dated April 2, 1956, partly stood explained by the circumstance that he had made a representation to the Board supplemented by the assessee 's letter of May 24, 1954 to the Income tax Officer, seeking relief on the basis of Ground No. 1.
We find a good deal of force in the submissions made by Mr. Ahuja.
The sheet anchor of the assessee 's case in the writ petition was that at the hearing of the appeals, his Counsel had argued Ground No. 1 set out in the memoranda of appeals, but the Tribunal did not consider it at all.
The question whether or not this Ground had been argued, was one of fact.
The tell tale circumstances enumerated by Mr. Ahuja, unerringly lead to the conclusion that, in all proba bility, Ground No. 1 was not argued by the Counsel, possibly because he was aware that in the absence of a complete statement of accounts showing variations in the capital during the relevant periods, a contention rounded on Ground No. 1 would be an exercise in futility.
It is noteworthy that at no stage before the Revenue authorities or the Tribunal, did the assessee categorically say that he had actually produced a complete statement of accounts and computation of the increase and decrease in capital.
All that he said in his Additional Grounds of appeal before the 'Assistant Appellate Commissioner and the Appellate Tribunal in Ground No. 1, was that he was prepared to file such a statement.
Shri Surinderjit Singh, Counsel who argued the appeals, has not thought it fit to certify that Ground No. 1 was actually argued, and not abandoned, by him.
The affida vit of another person who could not be the best informed person on this point, was of little value and could hardly displace the irresistible inference arising from the sur rounding circumstances and the conduct of the assessee, namely, that his Counsel had not argued on Ground No. 1, at all and had thus given it up.
In the light of what has been observed above, we are of opinion that the High Court could not justifiably interfere in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution with the appellate orders of the Tribunal.
In any case, the question as to whether the omission to record a finding on Ground No. I by the Tribunal was due to the failure of the appellant to urge that ground or due to a lapse on the part of the Tribunal, which de served rectification, was a .matter entirely for the author ities under those Taxation statutes.
It will be well to recall once more what this Court speaking through J.C. Shah J. (as he then was,) had stressed in Shivram Poddar vs Income tax Officer(1) "Resort to the High Court in exercise of its extraordi nary jurisdiction conferred or recognised by the Constitu tion in matters relating to assessment, levy and collection of income tax may be permitted only when questions of infringe ment of fundamental rights arise, or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess.
In attempting to bypass the provisions of the Income tax Act by inviting the High Court to decide questions which are primarily within the jurisdiction of the revenue authorities, the party approaching the court has often to ask the Court to make assumptions of facts which remain to be investigated by the revenue authorities."
In the instant case, the High Court had assumed juris diction on the assumption that a certain ground had been urged before the Income tax Appellate Tribunal which had arbitrarily refused to consider the same and record a find ing thereon.
This assumption, in our opinion, stood thor oughly discounted by the concomitant circumstances of the ease, including the dilatory and questionable conduct of the assessee.
This was therefore not a fit ease for the exer cise of its special jurisdiction under Article 226 by the High Court.
Accordingly, on this short ground we allow the appeal and dismiss the writ petition.
As the appeal succeeds on a preliminary ground, we do not feel it necessary to express any opinion on the question as to whether or not the Appel late Tribunal under the Excess Profits Tax Act has statutory or inherent power to review and rectify mistakes in its orders.
The assessee shall pay one set of the costs of the appellant.
P.B.R. Appeal allowed.
|
Since the assessee had not maintained complete and regular accounts for the purpose of Excess Profits tax, the Excess Profits Tax Officer assessed tax on the basis of accounts of certain previous years chosen by the assessee as his "standard period", pointing out that because of this position it was not possible to make any adjustment for variations in average capital.
The Assistant Appellate CommisSioner upheld the assessment order.
In appeal to the Appellate Tribunal one of the specific grounds taken by the assessee was that the Excess Profits Tax Officer and the Assistant Appellate Commissioner had erred in not allowing proper standard profits in accordance with the standard period subject to the adjustment on account of increase and decrease of capital in the relevant chargeable accounting period and that they were prepared to file computation of average capital.
Without discussing the ground relating to the standard profits the Tribunal disposed of the appeals.
The assessee 's second application alleging that the ground relating to the standard profits was not disposed of by it was rejected by the Tribunal.
In an application under section 66(2) of the Income Tax Act before the High Court, the assessee did not ask for a reference on this ground.
But during proceedings for preparation of statement of case, the assessee 's application requesting the Tribunal to refer this ground to the High Court was rejected by it.
The assessee 's petition for a writ of Mandamus requiring the Tribunal to consider the ground relating to standard profits was allowed by the High Court.
Allowing the Department 's appeal to this Court, HELD: The High Court could not justifiably interfere, in the exercise of its extraordinary jurisdiction under article 226 of the Constitution, with the appellate orders of the Tribunal.
The question as to whether the omission to record a finding on Ground No. 1 by the Tribunal was due to the failure of the appellant to urge that ground or due to a lapse on the part of the Tribunal, which deserved rectifica tion, was a matter entirely for the authorities under the statute to decide.
[219 G] Shivram Poddar vs Income tax Officer (1964) 51, I.T.R. 823, 829 (,S.C.) applied.
In the instant case the High Court had assumed jurisdic tion on the assumPtion that a certain ground had been urged before the Tribunal which had arbitrarily refused to consid er the same and record a finding thereon.
This assumption, stood thoroughly discounted by the concomitant circumstances of the case including the dilatory and questionable conduct of the assessee.
This was not a fit case for the exercise by the High Court of its ' special jurisdiction under article 226.
[220 C]
|
**Court Case Summary**
The Allahabad High Court's judgment in Special Appeal No. 58/65 was challenged in Appeal No. 1539 of 1971. The case involved M/s. S.B. Singar Singh and Sons, an assessee who was assessed to Excess Profits Tax for the chargeable accounting periods ending March 31, 1945 and March 31, 1946. The assessee claimed that the Excess Profits Tax Officer erred in not allowing adjustments for the increase and decrease of capital in the standard period. The Tribunal dismissed the appeals, and the assessee made several attempts to rectify the mistake, but the Tribunal refused to treat the application as one for rectification.
**Important Mark - Only two paragraphs**
The High Court set aside the Tribunal's order and directed it to dispose of the assessee's application dated April 2, 1956, afresh. However, the Revenue filed a Special Appeal against the order of the High Court, which was allowed by the Appellate Bench of the High Court. The Revenue appealed to the Supreme Court, arguing that the High Court had erred in assuming jurisdiction and interfering with the appellate orders of the Tribunal. The Supreme Court held that the High Court had assumed jurisdiction without sufficient grounds and had made assumptions of facts which remained to be investigated by the Revenue authorities.
|
vil Appeal No. 291 of 1955.
Appeal by special leave from the judgment and order dated March 29, 1955, of the Calcutta High Court in appeal from Appellate Order No. 134 of 1954, affirming the appeal against the judgment and order 361 dated July 29, 1954, of the Court of the District Judge of 24 Parganas in Misc.
Appeal No. 87 of 1954, arising out of the order of the 1st Additional Court of the Munsif at Sealdah dated February 2, 1954, in Misc.
Judicial Case No. 96 of 1953.
N. C. Chatterjee and section N. Mukherjee, for the appellant.
A. V. Viswanatha Sastri and D. N. Mukherjee, for the respondent.
1957 September 10.
The following Judgment of the Court was delivered by GAJENDRAGADKAR J.
This is an appeal by special leave in execution proceedings and the short point which the appellant has raised before us is that, under section 5 (1) of the Calcutta Thika Tenancy Act, 1949 (West Bengal II of 1949) as amended by the Calcutta Thika Tenancy (Amendment) Act, 1953 (West Bengal VI of 1953), execution proceedings taken out by the decrees against him could be entertained only by the controller and not by the civil courts.
This point arises in this way.
The appellant is a thika tenant in respect of a portion of the premises No. 28, R. G. Kar Road in Calcutta.
In Suit No. 46 of 1948 a decree for ejectment was passed against him and in favour of the respondent on March 16, 1949.
This decree was challenged by the appellant by preferring an appeal before the District Court and a second appeal before the High Court at Calcutta; but both those appeals failed and the decree for ejectment passed by the trial court was confirmed.
Then followed several proceedings between the parties and the course of litigation between them turned out to be protracted and tortuous.
Ultimately on May 22, 1953, the respondent filed an execution case before the First Additional Court, Sealdah (Title Execution Case No. 34 of 1953).
By this application the respondent claimed that the possession of the property covered by the decree should be delivered to him.
Thereupon the appellant filed a Miscellaneous Judicial Case under section 47 of the Code of Civil Procedure in the court raising several objections to the decree holder 's claim for execution (Miscellaneous 362 Judicial Case No. 96 of 1953).
This case was dismissed by the executing court on February 2, 1954.
A miscellaneous appeal preferred by the appellant before the learned District Judge, 24 Parganas, as well as the second miscellaneous appeal preferred by him before the High Court at Calcutta were likewise dismissed.
The appellant then applied for leave to prefer an appeal under the Letters Patent.
This application was rejected by Mr. Justice Renupada Mukherjee who had heard the second appeal.
On May 10, 1955, the appellant filed a petition for special leave to appeal to this Court and special leave was granted to him on May 18, 1955.
The courts below have held that the decree holder 's application for execution of the decree passed in his favour can and ought to be entertained by the civil courts and an order has been passed against the appellant that he should vacate the premises in question before the end of Jaistha 1362 B.S. (1 5th June, 1955), failing which execution will proceed according to law.
The appellant 's contention is that the view taken by the courts below about the competence of the civil courts to entertain the decree holder 's execution application proceeds on a misconstruction of section 5 (1) of the Calcutta Thika Tenancy Act.
That is how the only question which arises for our decision is about the construction of the said relevant section.
Before dealing with this point, it would be useful to consider briefly the history of legislation passed by the West Bengal Legislature with the object of affording protection to the thika tenants.
Until 1948 the rights and liabilities of the landlords and their thika tenants were governed by the provisions of the Transfer of Property Act.
On October 26, 1948, the Calcutta Thika Tenancy Ordinance XI of 1948, was promulgated because it was thought expedient, pending the enactment of appropriate legislation to provide for the temporary stay of the execution of certain decrees and orders of ejectment of thika tenants in Calcutta.
Section 2 of the Ordinance defined the thika tenant.
Section 3 provided that no decree or order for the ejectment of a thika tenant shall be executed during the continuance in operation of the Ordinance, From the 363 operation of this section were excluded decrees or orders for ejectment passed against, thika tenants on the ground of non payment of rent unless the tenants deposited in court the amount of the decree or order as required by the proviso.
The object of the Ordinance clearly appears to be to give protection to the thika tenants in Calcutta and to afford them interim ' relief by staying execution of certain decrees and orders as mentioned in section 3 until an appropriate Act was passed by the Legislature in that behalf.
Then followed Act II of 1949 on February 28, 1949.
Section 2, sub section
(5) of this Act defines a thika tenant.
Section 3 lays down the grounds on which a thika tenant may be ejected.
The effect of this section is that it is only where one or more of the six grounds recognized by section 3 is proved against a thika tenant that a decree for ejectment against him can be passed.
In other words, grounds other than those mentioned in section 3 on which a landlord would have been entitled to eject his thika tenant under the provisions of the Transfer of Property Act became inapplicable to the case of the thika tenants by virtue of section 3.
Section 5, sub section (1) reads thus: "section 5.
(1) Notwithstanding anything contained in any other law for the time being in force, a landlord wishing to eject a thika tenant on one or more of the grounds specified in section 3 shall apply in the prescribed manner to the Controller for an order in that behalf and, on receipt of such application, the Controller shall, after giving the thika tenant a notice to show cause within thirty days from the date of service of the notice why the application shall not be allowed and after making an inquiry in the prescribed manner either allow the application or reject it after recording the reasons for making such order, and, if he allows the application, shall make an order directing the thika tenant to vacate the holding and, subject to the provisions of section 10, to put the landlord in possession thereof." This section requires the landlord wishing to eject his thika tenant on one or more of the grounds specified in section 3 to apply in the prescribed manner to the Controller 47 364 for an order in that behalf.
This section further provides for the procedure to be followed by the Controller in dealing with such an application.
Two other sections of this Act need to be considered.
Section 28 deals with cases where decrees or orders for the recovery of possession of any holding from a thika tenant have been passed before the date of the commencement of the Act and it lays down that if possession has not been obtained by the decree holder in execution of such decrees or orders the court may consider whether the decree or order in question is or is not in conformity with any of the provisions of the Act other than subs.
(1) of section 5 or section 27.
On considering this matter jurisdiction is given to the court to rescind or vary the decree or the order for the purpose of giving effect to the relevant provisions of this Act.
A decree or order so varied has then to be sent to the Controller for execution as if it were an order made under and in accordance with the provisions of the Act.
Having thus dealt with decrees and orders for ejectment passed against thika tenants prior to the commencement of this Act, section 29 proceeds to deal with pending, proceedings for ejectment between the landlords and the thika tenants.
This section lays down that all pending proceedings of this character shall be transferred to the Controller who shall thereupon deal with them in accordance with the provisions of this Act as if this Act had been in operation on the date of the institution of the suit or proceeding.
The proviso to this section exempts the application of section 4 of this Act to such proceedings for obvious reasons.
It appears that the definition of the expression thika tenant " contained in the Act gave rise to some difficulties and it was discovered that some of the tenants in Calcutta who were in substance thika tenants failed to obtain the protection of the Act owing to some words used in the said definition.
In order to afford protection to the whole class of thika tenants in Calcutta, West Bengal Ordinance No. XV of 1952 was promulgated on October 21, 1952.
Accordingly, section 2 of this Ordinance amended section 2, sub section
(5) of the Calcutta Thika Tenancy Act II of 1949.
This is one important 365 change introduced by this Ordinance.
The other important change introduced by this Ordinance is to be found in section 5 of the Ordinance.
Section 5, sub section
(1) lays down that all cases pending before a court or Controller on the date of the commencement of this Ordinance shall be governed by the provisions of Act II of 1949, as amended by this Ordinance.
Sub section (2) of section 5 then deals with cases where decrees or orders have been passed for the recovery of possession at any time between the commencement of the said Act and this Ordinance.
In the present appeal, we are dealing with a decree falling under section 5, sub section
(2) of this Ordinance.
In respect of such decrees this sub section lays down that the judgment debtor could apply within three months of the commencement of the Ordinance to the court or the Controller as the case may be and invite his decision on the question of his status as thika tenant; according to the provisions of this subsection, the status of the judgment debtor as a thika tenant would then have to be determined under the amended definition of the expression "thika tenant".
If the finding on the question of status is in favour of the judgment debtor then the decree or order would have to be set aside and execution proceedings annulled, and the matter sent back to the court or Controller for disposal in accordance with law.
Subsection (3) of section 5 enables the court or the Controller to stay proceedings, if any, in execution pending the disposal of an application made under sub section
In other words, the effect of sub section
(2) of section 5 clearly appears to be that, in regard to decrees passed during the period mentioned by this subsection, a judgment debt or was given a right to challenge the validity of the said decree or order on the ground that he was a thika tenant under the amended definition of the said expression and this right could be exercised by making an appropriate application within the prescribed period of three months.
If no such application is made by the judgment debtor within the prescribed period, then the decree or order for ejectment passed against him would be executed under the ordinary law.
366 This Ordinance was followed by the Calcutta Thika Tenancy (Amendment) Act, 1953 (West Bengal VI of 1953).
This Act came into force immediately on the Calcutta Thika Tenancy (Amendment) Ordinance, 1952 (West Bengal Ordinance No. XV of 1952), ceasing to operate.
Under the proviso to section 1, sub section (2) of this Act, the provisions of the Calcutta Thika Tenancy Act II of 1949, as amended by this Act, shall also apply and be deemed to always apply to all suits, appeals and proceedings pending before any court or before the Controller or before a person deciding an appeal under section 27 of this Act on the date of the commencement of the said Ordinance of 1952.
It must, however, be added that this proviso was subject to the provisions of section 9 of this Act.
We will presently refer to section 9.
Section 2 of this Act adopted the amendment of the definition of the expression, " thika tenancy" introduced by the amending Ordinance of 1952.
Section 4 of this amending Act has amended a. 5, sub section
(1) of the original Act by deleting the words "but subject to the provisions of section 28" which occurred in the said section.
By s.8 of this Act, sections 28 and 29 in the original Act II of 1949 have been omitted and by a. 9 it is laid down that any proceedings commenced under sub section
(2) of section 5 of the amending Ordinance of 1952 shall, on the said Ordinance ceasing to operate be continued as if sub sections
(2), (3) and (4) of that section and the explanations to that section were in force.
It would thus appear that though the Ordinance ceased to be operative the remedy provided by section 5, sub section
(2) of the Ordinance to judgment debtors continued to be available to them and the applications made by them to seek.
the protection of the said provision bad to be dealt with as if the material provisions of the Ordinance were in operation.
It is true that section 9 of the amending Act has not been incorporated in the original Act II of 1949 but it is conceded that the omission to include this section in the original Act does not make any difference.
Mr. N. C. Chatterjee, for the appellant, has contended that the object in enacting the relevant 367 Thika Tenancy Acts and Ordinances is absolutely clear.
It is a piece of welfare legislation and as such its operative provisions should receive a beneficient construction from the courts.
If the scheme of the Act and the object underlying it is to afford full protection to the thika tenants, says Mr. Chatterjee, courts should be slow to reach the conclusion that any class of thika tenants are excluded from the benefit of the said Act.
In support of his argument Mr. Chatterjee hasnaturally relied on the observations made by Barons of the Exchequer in Heydon 's case (1).Indeed these observations have been so frequently cited with approval by courts administering provisions of welfare enactments that they have now attained the status of a classic on the subject and their validity cannot be challenged.
However, in applying these observations to the provisions of any statute, it must always be borne in mind that the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself.
If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act.
The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise.
When the material words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, then the courts would prefer to adopt the latter construction.
It is only in such cases that it becomes relevant to consider the mischief and defect which the, Act purports to remedy and correct.
Indeed Mr. Chatterjee himself fairly conceded that be would not be justified in asking the court to put an undue strain on the words used in the section in order (1) (1584) 3 Co. Rep. 8. 368 that a construction favourable to the thika tenants should be deduced.
It is in the light of this legal position that we must now consider section 5, sub section
(1) of West Bengal Act II of 1949, amended by West Bengal Act VI of 1953.
Under the provisions of sections 5 and 28 of the original West Bengal Act II of 1949, the position was clear.
If a landlord wished to eject his tenant he could have obtained an order for ejectment only if his claim was justified on one or more of the grounds recognized by section 3 of the Act.
If, after the commencement of the Act, the landlord wanted to enforce his claim for ejectment, he had to apply for the said relief before the Controller under section 5 in the prescribed manner.
The application of section 5, sub section
(1) was, however, subject to the provisions of section 28.
As we have already pointed out, section 28 dealt with decrees or orders already passed whereas section 29 dealt with suits and proceedings pending at the commencement of the Act.
The appellant 's contention is that the effect of sections 5, 28 and 29 was to submit the claims of landlords for ejectment of the thika tenants to a scrutiny in the light of the provisions of section 3 and other relevant sections of the Act.
Whether the claim had merged in a decree or was pending in a proceeding at the time when the Act came into force or it was made after the commencement of the Act, in every case the test laid down by section 3 had to be applied; and the argument is that/ this position is not altered by the amendments made by Act VI of 1953.
In our opinion, this argument cannot be accepted.
Section 3 clearly refers to the claim for ejectment made by the landlord in a proceeding instituted by him.
It is difficult to understand how section 3 could be invoked against a landlord who has obtained a decree for ejectment of his thika tenant.
It is quite plain that when a decree holder seeks to obtain possession of his property in execution of a decree he cannot be said to obtain such possession on any of the grounds mentioned in section 3.
All that he does is to rely upon the decree passed by a court of competent jurisdiction and to insist upon its execution.
Similarly the proceedings contemplated by section 5, sub section
(1), cannot in 369 our opinion, be said to include execution proceedings of this type.
Section 5, sub section
(1) deals with cases where the landlord initiates original proceedings for ejecting his thika tenant.
This sub section refers to a landlord wishing to eject a thika tenant on one or more of the grounds specified in section 3.
Now this description is wholly inapplicable to a landlord who holds ' a decree for ejectment in his favour.
That is why we feel no hesitation in coming to the conclusion that landlords who have obtained decrees of ejectment against their thika tenants cannot be required to apply under the provisions of section 5, sub section
(1) of the Act.
That is one aspect of the matter.
The other provisions of the said sub section also point to the same conclusion.
When an application for ejectment is made under section 5, sub section
(1), notice is ordered to be issued to the thika tenant and enquiry follows in the light of the pro visions of section 3.
It is only if the Controller is satisfied that one or more of the grounds recognized by section 3 is proved by the landlord that an order for ejectment would be passed by him and this order would be followed by a direction in consequence of which the landlord would be put in possession of the premises.
Section 5, sub section
(1) thus provides for a self contained procedure for dealing with applications for ejectment made by a landlord against his thika tenant before the Controller.
Mr. Chatterjee, however, suggests that the deletion of the words " subject to the provisions of section 28 " which originally occurred in section 5 indicates that the Controller has been given jurisdiction not only to entertain original applications for ejectment made by the landlords but also to deal with decrees already passed in their favour.
Whether or not the use of the deleted words in the original section 5 (1) served any useful purpose and what exactly was their denotation are matters on which it is unnecessary to pronounce a judgment in the present case.
It is clear that since section 28 along with section 29 has been deleted from the Act by the subsequent amending Act VI of 1953, any reference to section 28 in section 5 (1) would have been entirely out of place.
But the deletion of the material words does not enlarge the 370 jurisdiction of the Controller to reopen disputes between the landlords and their thika tenants when in respect of such disputes decrees have already been passed by courts of competent jurisdiction in favour of landlords.
All the relevant provisions of section 5, sub section
(1) are absolutely inapplicable to cases of such decrees and so we are unable to accept the argument that even where a decree has been passed in favour of the landlord a claim for the execution of the decree would have to be entertained and considered by the Controller under section 5, sub section
Then it is urged that it would be unreasonable to hold that a certain class of thika tenants was precluded from obtaining the benefit of the Act merely because decrees for ejectment were passed before the Act came into force; and it is emphasised that the scheme of the original Act as evidenced by sections 5, 28 and 29 clearly was to afford protection to all thika tenants even where decrees for ejectment had been passed against them.
It must be conceded that under the original Act, section 28 purported to give protection to judgmentdebtors ' and required that the decrees passed against thika tenants should be examined by the courts that passed the decrees in the light of the provisions of the Thika Tenancy Act.
But, later on, it appears to have been thought prudent to limit the protection to such judgment debtors in the manner contemplated by section 5, sub section
(2) of the amending Ordinance of 1952.
Such judgment debtors were allowed liberty to apply for setting aside the decrees passed against them within three months after the commencement of the said Ordinance and such applications were required to be dealt with according to law even after the Ordinance ceased to be operative.
As we have already pointed out, the decree with which we are concerned in the present appeal falls within the purview of the provision of section 5, sub section
(2) of the Ordinance.
If the judgment.
debtor did not avail himself of the right conferred on him by this provision, he cannot now seek to rectify the omission by relying on the provisions of section 5, sub section
(1) as amended.
It may be unfortunate that owing to the steps that he was taking in several 371 proceedings adopted by him in the present litigation he was probably not advised to make a proper application under section 5, sub section
(2) of the Ordinance; but that is the only protection that he and judgment debtors of his class were entitled to after the amending Ordinance of 1952 came into force.
It would, therefore, not be reasonable to complain that no protection whatever has been given to this class of thika tenants.
It may be that the extent of the protection now afforded to this class may not be as wide as it originally was under section 28 of Act II of 1949 but the deletion of section 28 clearly indicates that the Legislature wanted to revise its policy in this matter.
The position, therefore, is that the conclusion which follows from a reasonable construction of section 5, sub section
(1) is corroborated by the deletion of section 28 from the Act and by the provision of section 5, sub section
(2) of the amending Ordinance of 1952 and section 9 of the amending Act VI of 1953.
We must,accordingly, hold that the Calcutta High Court was right in rejecting the appellant 's argument that civil courts had no jurisdiction to entertain the execution petition filed by the respondent against the appellant.
In the result, the appeal fails and must be dismissed with costs.
Appeal dismissed.
|
Respondent obtained a decree for ejectment against the appellant, a thika tenant, and filed an application for execution of the decree before the civil Court.
Appellant resisted the application on the ground that in view Of section 5(1) Of the Calcutta Thika Tenancy Act, 1949, the civil Court had no jurisdiction to entertain the application.
Section 5(1) provides that a landlord wishing to eject a thika tenant on the grounds specified in section 3 shall apply to the Controller in that behalf.
Held that section 5(1) did not apply to a case where the landlord had already obtained a decree for ejectment against his thika tenant and consequently the civil Court had jurisdiction to entertain the execution application.
The operative provisions of welfare legislation should receive a beneficent construction from the Courts.
But the words used in a statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of adopting the construction which is more consistent with the policy of the Act arises.
Heydon 's Case, (1584) 3 Co. Rep. 8, referred to.
|
Here is a two-paragraph summary of the court case:
The appellant, a thika tenant, appealed to the Supreme Court after his execution petition was dismissed by the Calcutta High Court. The issue at hand was whether the civil courts had the jurisdiction to entertain the execution petition filed by the respondent against the appellant. The appellant argued that, under section 5(1) of the Calcutta Thika Tenancy Act, 1949, as amended by the Calcutta Thika Tenancy (Amendment) Act, 1953, execution proceedings could only be entertained by the Controller and not by the civil courts.
The Supreme Court held that the civil courts did have the jurisdiction to entertain the execution petition. The Court interpreted section 5(1) as requiring the landlord to apply to the Controller for an order to eject the thika tenant on one or more of the grounds specified in section 3, and that execution proceedings against a thika tenant were not subject to this provision. The Court also noted that the deletion of section 28 of the Act and the provision of section 5(2) of the amending Ordinance of 1952 and section 9 of the amending Act VI of 1953 supported its conclusion. The appeal was dismissed with costs.
|
s (Nos. 513, 566, 568, 570, 591,595, 596, 601, 616, 617, 623, 625, 631 and 632 of 1951) under article 32 of the Constitution for writs in the nature of habeas corpus.
The facts are stated in the judg ment.
Raghbir Singh (amicus curiae) for the petitioners in Petitions Nos.
513, 566, 568, 570.
595, 596, 609, 616, 617, 623,625 and 631.
A.S.R. Chari (amicus curiae) for the petitioner in Petition No. 591.
Shiv Charan Singh (amicus curiae) for the petitioner in Petition No. 632.
section M Sikri, Advocate General of the Punjab (Jindra Lal, with him) for the State of the Punjab.
January 25.
The Judgment of the Court was deliv ered by PATANJALI SASTRI C.J.
This is a petition under article 32 of the Constitution submitted through the Super intendent, Central Jail, Ambala, for the issue of a writ of habeas corpus for the release of the petitioner from custo dy.
On 5th July, 1950, the petitioner was arrested and detained under an order of the District Magistrate of Amrit sar in exercise of the powers conferred on him under section 3 of the , and the grounds of his detention were served on him as required by section 7 of the Act on 10th July, 1950.
The Act having been amended by the Preventive Detention (Amendment) Act, 1951, with effect from 22nd February, 1951, a fresh order No. 7853 ADSB, dated 17th May, 1951, was issued in the following terms : "Whereas the Governor of Punjab is satisfied with re spect to the person known as Naranjan Singh Nathawan, s/o Lehna Singh of village Chak Sikandar, 397 P.S. Ramdas, Amritsar District, that with a view to prevent ing him from acting in a manner prejudicial to the security of the State, it is necessary to make the following order: Now, therefore.
in exercise of the powers conferred by sub section (1) of section 3 and section 4 of the Preven tive Detention Act, 1950, as amended by the Preventive Detention (Amendment) Act, 1951, the Governor of Punjab hereby directs that the said Naranjan Singh Nathawan be committed to the custody of the Inspector General of Pris ons, Punjab, and detained in any jail of the State till 31st March, 1952, subject to such conditions as to maintenance, discipline and punishment for breaches of discipline as have been specified by general order or as contained in the Punjab Detenu Rules, 1950.
" This order was served on the petitioner on 23rd May, 1951, but no grounds in support of this order were served on him.
The petitioner thereupon presented this petition for his release contending that the aforesaid order was illegal inasmuch as (1) the grounds of detention communicated to him on 10th July, 1950, were "quite vague, false and imaginary" and (2) he was not furnished with the grounds on which the order dated 17th May, 1951, was based.
The petition was heard ex parte on 12th November, 1951, when this Court issued a rule nisi calling upon the respondent to show cause why the petitioner should not be released, and it was posted for final hearing on 23rd November, 1951.
Meanwhile, the State Government issued an order on 18th November, 1951.
revoking the order of detention dated 17th May, 1951, and on the same date the District Magistrate, Amritsar, issued yet another order for the detention of the petitioner under sections a and 4 of the amended Act; this last order along with the grounds on which it was based was served on the petitioner on 19th November, 1951.
Thereupon the petitioner submitted a supplemental peti tion to this Court on 28th November, 1951, challenging the validity of the last order on the ground 398 that "it was only a device to defeat the habeas corpus petition of the petitioner in which a rule had already been issued , and he put forward an additional ground of attack on the legality of the earlier order dated 17th may, 1951, namely, that it fixed the term of detention till 31st March, 1952, before obtaining the opinion of the Advisory Board as required by section 11 of the amended Act.
This ground was evidently based on the view expressed by this Court that the specification of the period of detention in the initial order of detention under section 3 of the amended Act before obtaining the opinion of the Advisory Board rendered the order illegal.
In the return to the rule showing cause filed on behalf of the respondent, the Under Secretary (Home) to the Govern ment explained the circumstances which led to the issue of the fresh order of detention dated 18th November, 1951.
After stating that the petitioner 's case was referred to and considered by the Advisory Board constituted under section 8 of the amended Act and that the Board reported on 30th May, 1951, that there was sufficient cause for the detention of the petitioner, the affidavit proceeded as follows: "That the Government was advised that the orders made under section 11 of the , as amended by the Preventive Detention (Amendment) Act, 1951, but carried out in the form of orders under section 3 of the said Act, should be followed by grounds of detention and, as this had not been done in most cases, the detentions were likely to be called in question.
The Government was further advised there were other technical defects which might render the detention of various detenus untenable.
In view of this, the Government decided that the cases of all dete nus should be reviewed by the District Magistrates con cerned.
Accordingly, the Punjab Government instructed the District Magistrates to review the cases and apply their minds afresh and emphasised that there must exist rational grounds with the detaining authority to justify the deten tion of a person and they were asked to report clearly in each case if the District 399 Magistrate concerned wanted the detenus to be detained.
The Punjab Government also reviewed some cases.
Accordingly all cases including the case of the petitioner were reviewed and in this case the District Magistrate was again satisfied that it was necessary that the detenu be detained with a view to prevent him from acting in a manner prejudicial to the security of the State and the maintenance of public order." And it concluded by stating "that the petitioner is detained now under the orders of the District Magistrate, Amritsar.
" The original and supplementary petitions came on in due course for hearing before Fazl Ali and Vivian Bose JJ.
on 17th December, 1951, when reliance was placed on behalf of t he petitioner on certain observations in an unreported decision of this Court in Petition No. 334 of 1951 (Naranjan Singh vs The State of Punjab) and it was claimed that in view of those observations and of the provisions of Part III of the Constitution, the decision in Basant Chandra Ghose vs King Emperor(1), on which the respondent relied.
was no longer good law.
The learned Judges thought that the matter should be considered by a Constitution bench and the case was accordingly placed before us.
It will be seen from the affidavit filed on behalf of the respondent that the case of the petitioner, along with his representation against the detention order of 17th May, 1951, was placed before the Advisory Board for its consider ation, and the Board reported on 30th May, 1951, that in its opinion there was sufficient cause for the detention of the petitioner.
It is said that, on the basis of that report, the Government decided that the petitioner should be de tained till 31st March, 1952, but while a properly framed order under section 11 should "confirm" the detention order and "continue" the detention for a specified period, the order of 17th May, 1951, was issued under a misapprehension in the form of an initial order under section 3 of the amended Act.
on the same grounds as before without any fresh communication thereof to the petitioner.
To (1) 52 400 avoid arguments based on possible defects of a technical and formal character, the said order was revoked under section 13, and on a review of the case by the District Magistrate, a fresh order of detention was issued under section 3 on 18th November, 1951, and this was followed by a formal communication of the same grounds as before as there could be no fresh grounds, the petitioner having throughout been under detention.
It is contended by the Advocate General of the Punjab that the decision reported in is clear authority in support of the validity of the aforesaid order.
On essentially similar facts the court laid down two propo sitions both of which have application here.
(1) Where an earlier order of detention is defective merely on formal grounds, there is nothing to preclude a proper order of detention being based on the pre existing grounds them selves, especially in cases in which the sufficiency of the grounds is not examinable by the courts, and (2) if at any time before the court directs the release of the detenu, a valid order directing his detention is produced, the court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention.
The question is not whether the later order validates the earli er detention but whether in the face of the later valid order the court can direct the release of the petitioner.
The learned Judges point out that the analogy of civil proceedings in which the rights of parties have ordinarily to be ascertained as on the date of the institution of the proceedings has no application to proceedings in the nature of habeas corpus where the court is concerned solely with the question whether the applicant is being lawfully de tained or not.
The petitioner 's learned counsel conceded that he could not challenge the correctness of the second proposition, but took exception to the first as being no longer tenable after the Indian Constitution came into force.
It was urged that article 22 lays down the procedure to be followed in cases of preventive detention and the said procedure must be strictly observed 401 as the only prospect of release by a court must be on the basis of technical or formal defects, a long line of deci sions having held that the scope of judicial review in matters of preventive detention is practically limited to an enquiry as to whether there has been strict compliance with the requirements of the law.
This is undoubtedly true and this Court had occasion in the recent case of Makhan Singh Tarsikka vs The State of Punjab (Petition No. 308 of 1951)(1) to observe "it cannot too often be emphasised that before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected".
This proposition, however, applied with equal force to cases of preventive detention before the commence ment of the Constitution, and it is difficult to see what difference the Constitution makes in regard to the position.
Indeed, the position is now made more clear by the express provisions of section 13 of the Act which provides that a detention order may at any time be revoked or modified and that such revocation shall not bar the making of a fresh detention order under section 3 against the same person.
Once it is conceded that in habeas corpus proceedings the court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the date of the institution of the proceeding, it is difficult to hold, in the absence of proof of bad faith, that the detaining authority cannot supersede an earlier order of detention challenged as illegal and make a fresh order wherever possible which is free from defects and duly complies with the requirements of the law in that behalf.
As regards the observations in Naranjan Singh 's case, we do not understand them as laying down any general proposi tion to the effect that no fresh order of detention could be made when once a petition challenging the validity of an earlier order has been filed in court.
The learned Judges appear to have inferred from the facts of that case that the later order was (1) Since reported as ; 402 not made bona fide on being satisfied that the petitioner 's detention was still necessary but it was "obviously to defeat the present petition".
The question of bad faith, if raised would certainly have to be decided with reference to the circumstances of each case, but the observations in one case cannot be regarded as a precedent in dealing with other cases.
We accordingly remit the case for further hearing.
This order will govern the other petitions where the same ques tion was raised.
Petitions remitted.
|
In the absence of bad faith the detaining authority can supersede an earlier order of detention which has been challenged as defective on merely formal grounds and make a fresh order wherever possible which is free from defects and duly complies with the requirements of the law in that behalf.
The question of bad faith, if raised, must be decided with reference to the circumstances of each case.
In habeas corpus proceedings the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the date of the institution of the proceedings.
396 Basanta Chandra Ghose vs King Emperor ([1945] F.C.R. 81) followed.
Naranjan Singh vs The State of Punjab unreported) explained.
Makhan Singh Tarsikka vs The State of Punjab ([1952] S.C.R. 368) referred to.
|
Here's a two-paragraph summary of the court case:
The case revolves around the preventive detention of Naranjan Singh Nathawan by the State of Punjab under the Preventive Detention Act, 1950. Singh was arrested on July 5, 1950, and detained under an order of the District Magistrate of Amritsar, citing grounds that were considered vague, false, and imaginary. However, the State Government later issued a fresh order of detention on November 18, 1951, after reviewing Singh's case and obtaining a report from the Advisory Board, which stated that there was sufficient cause for Singh's detention.
The court was asked to decide whether the fresh order of detention was valid, despite the earlier order being defective. The Advocate General of Punjab argued that the decision in Basant Chandra Ghose vs King Emperor was a clear authority in support of the validity of the fresh order. The court ultimately remitted the case for further hearing, citing the absence of proof of bad faith on the part of the detaining authority. The court also noted that the Constitution does not preclude the detaining authority from superseding an earlier order of detention and making a fresh order that complies with the requirements of the law.
|
Appeal No. 395 of 1959.
Appeal by special leave from the Award dated November 25, 1957 of the Industrial Tribunal, Bombay, in Reference (I. T.) No. 24 of 1956.
N. C. Chatterjee, D. H. Buch and K. L. Hathi, for the appellants.
M. C. Setalvad, Attorney General for India, J. B. Dadachanji and section N. Andley, for the respondent Nos. 1 and 2.
M. C. Setalvad, Attorney General for India, Dewan Chaman Lal Pandhi and I. N. Shroff, for the respondent No. 3. 1960.
November 30.
The Judgment of the Court was delivered by WANCHOO, J.
This is an appeal by special leave in an industrial matter.
It appears that the appellants were originally in the service of the Scindia Steam Navigation Co. Ltd. (hereinafter called the Scindias).
Their services were transferred by way of loan to the Air Services of India Limited (hereinafter referred to as the ASI).
The ASI was formed in 1937 and was 813 purchased by the Scindias in 1943 and by 1946 was a full subsidiary of the Scindias.
Therefore from 1946 to about 1951, a large number of employees of the, Scindias were transferred to the ASI for indefinite periods.
The Scindias had a number of subsidiaries and it was usual for the Scindias to transfer their employees to their subsidiary companies and take them back whenever they found necessary to do so.
The ' appellants who were thus transferred to the ASI were to get the same scale of pay as the employees of the Scindias and the same terms and conditions of service (including bonus whenever the Scindias paid it) were to apply.
The Scindias retained the right to recall these loaned employees and it is the case of the appellants that they were entitled to go back to the Scindias if they so desired.
Thus the terms and conditions of service of these loaned employees of the ASI were different from those employees of the ASI who were recruited by the ASI itself.
This state of affairs continued till 1952 when the Government of India contemplated nationalisation of the existing air lines operating in India with effect from June 1953 or thereabouts.
When legislation for this purpose was on the anvil the appellants felt perturbed about their status in the ASI which was going to be taken over by the Indian Air Lines Corporation (hereinafter called the Corporation), which was expected to be established after the , No. XXVII of 1953, (hereinafter called the Act) came into force.
They therefore addressed a letter to the Scindias on April 6, 1953, requesting that as the Government of India intended to nationalise all the air lines in India with effect from 1 June, 1953, or subsequent thereto, they wanted to be taken back by the Scindias.
On April 24, the Scindias sent a reply to this letter in which they pointed out that all persons working in the ASI would be governed by cl. 20 of the Air Corporation Bill of 1953, when the Bill was enacted into law.
It was also pointed out that this clause would apply to all those actually working with the ASI on 103 814 the appointed day irrespective of whether they were recruited by the ASI directly or transferred to the ASI from the Scindias or other associated concerns.
It was further pointed out that if the loaned employees or others, employed under the 'ASI, did not want to join ,the proposed Corporation they would have the option not to do so under the proviso to cl.
20(1) of the 'Bill; but in case any employee of the ASI whether loaned or otherwise made the option not to join the proposed Corporation, the Scindias would treat them as having resigned from service, as the Scindias could not absorb them.
In that case such employees would be entitled only to the usual retirement benefits and would not be entitled to retrenchment compensation.
Finally, it was hoped that all those in the employ of the ASI, whether loaned or otherwise, having been guaranteed continuity of employment in the new set up would see that the Scindias would not be burdened with surplus staff, requiring consequential retrenchment of the same or more junior personnel by the Scindias.
On April 29, 1953, a reply was sent by the union on behalf of the appellants to the Scindias.
It was pointed out that the loaned staff should not be forced to go to the proposed Corporation without any consideration of their claim for re absorption into the Scindias.
It was suggested that the matter might be taken up with the Government of India and the persons directly recruited by the ASI who were with other subsidiary companies might be taken by the proposed Corporation in place of the appellants.
It seems that this suggestion was taken up with the Government of India but nothing came out of it, particularly because the persons directly recruited by the ASI.
who were employed in other subsidiary companies did not want to go back to the ASI.
In the meantime, the Scindias issued a circular on May 6,1953, to all the employees under the ASI including the loaned employees, in which they pointed out that all the persons working with the ASI would be governed by cl.
20(1) when the Bill became law and would be absorbed in the proposed Corporation, unless 815 they took advantage of the proviso to cl.
20(1).
It was also pointed out that such employees as took advantage of the proviso to el.
20(1) would be treated as having resigned from service and would be entitled to usual retirement benefits as on voluntary retirement, and to nothing more.
It was also said that their conditions of service would be the same until duly altered or amended by the proposed Corporation.
The circular then dealt with certain matters relating to provident fund with which we are however not concerned.
It appears that the Act was passed on May 28, 1953.
20(1) of the Act, with which we are concerned, is in these terms: "(1) Every officer or other employee of an existing air company (except a director, managing agent, manager or any other person entitled to manage the whole or a substantial part of the business and affairs of the company under a special agreement) employed by that company prior to the first day of July, 1952, and still in its employment immediately before the appointed day shall, in so far as such officer or other employee is employed in connection with the undertaking which has vested in either of the Corporations by virtue of this Act, become as from the appointed date an officer or other employee, as the case may be, of the Corporation in which the undertaking has vested and shall hold his office or service therein by the same tenure, at the same remuneration and upon the same terms and conditions and with the same rights and privileges as to pension and gratuity and other matters as he would have held the same under the existing air company if its undertaking had not vested in the Corporation and shall continue to do so unless and until his employment in the Corporation is terminated or until his remuneration, terms or conditions are duly altered by the Corporation : Provided nothing contained in this section shall apply to any officer or other employee who has, by notice in writing given to the Corporation concerned prior to such date as may be fixed by the Central Government by notification in the official gazette 816 intimated his intention of not becoming an officer or other employee of the Corporation." After the Act was passed, notice was sent on June 17, 1953, to each employee of all the air companies which were being taken over by the proposed Corporation m and he was asked to inform the officer on special duty by July 10, 1953, if he desired to give the notice contemplated by the proviso to section 20(1).
A form was sent in which the notice was to be given and it was ordered that it should reach the Chairman of the Corporation by registered post by July 10.
The appellants admittedly did not give this notice as required by the proviso to section 20(1).
In the meantime on June 8, 1953, a demand was made on behalf of the appellants in which the Scindias were asked to give an assurance to them that in the event of retrenchment of any loaned staff by the proposed Corporation within the first five years without any fault, the said staff would be taken back by the Scindias.
Certain other demands were also made.
The Scindias replied to this letter on July 3 and pointed out that they could not agree to give an assurance to take back the loaned staff in case it was retrenched by the proposed Corporation within the next five years.
We are not concerned with the other demands and the replies thereto.
On July 8, a letter was written on behalf of the appellants to the Scindias in which it was said that the appellants could not accept the contention contained in the circular of May 6, 1953.
Though the appellants were carrying on this correspondence with the Scindias, they did not exercise the option which was given to them under the proviso to section 20(1) of the Act,.
by July 10, 1953.
First of August, 1953, was notified the appointed day under section 16 of the Act and from that date the undertakings of the "existing air companies" vested in the Corporation established under the Act (except the Air India International).
So on August:1, 1953, the ASI vested in the Corporation and section 20(1) of the Act came into force.
Hence as none of the appellants had exercised the option given to them under the proviso, they would also be governed by the said provision, 817 unless the contention.
raised on their behalf that they could in no case be governed by section 20(1), is accepted.
The tribunal came to the conclusion that, whatever the position of the appellants as loaned staff from the Scindias to the ASI, as they were informed on May 6, 1953, of the exact position by the Scindias and they did not ask for a reference of an industrial dispute immediately thereafter with the Scindias and as they" ' did not exercise the option given to them by the proviso to section 20(1) before July 10, 1953, they would be governed by section 20(1) of the Act.
In consequence, they became the employees.
of the Corporation as from August 1, 1953 and would thus have no right there after to claim that they were still the employees of the Scindias and had a right to revert to them.
The consequence of all this was that they were held not to be entitled to any of the benefits which they claimed in the alternative according to the order of reference.
It is this order of the tribunal rejecting the reference which has been impugned before us in the present appeal.
The main contention of Mr. Chatterjee on behalf of the appellants is that they are not governed by section 20 (1) of the Act and in any case the contract of service between the appellants and the Scindias was not assignable and transferable even by law and finally that even if section 20(1) applied, the Scindias were bound to take back the appellants.
We are of opinion that there is no force in any of these contentions.
20(1) lays down that every officer or employee of the "existing air companies" employed by them prior to the first day of July, 1952, and still in their employment immediately before the appointed day shall become as I from the appointed day an officer or employee, as the case may be, of the Corporation in which the undertakings are vested.
The object of this provision was to ensure continuity of service to the employees of the "existing air companies" which were being taken over by the Corporation and was thus for the benefit of the officers and employees concerned.
It is further provided in section 20(1) that the terms of service etc. would be the same until they are duly altered by the Corporation.
One should have thought that the employees of the air 818 companies would welcome this provision as it ensured them continuity of service on the same terms till they were duly altered.
Further there was no compulsion on the employees or the officers of the "existing air companies" to serve the Corporation if they did not want to do so.
The proviso laid down that any officer or other employee who did not want to go into the service of the Corporation could get out of service by notice in writing given to the Corporation before the date fixed, which was in this case July 10, 1953.
Therefore, even if the argument of Mr. Chatterjee that the contract of service between the appellants and their employers had been transferred or assigned by this section and that this could not be done,, be correct, it loses all its force, for the proviso made it clear that any one who did not want to join the Corporation, was free not to do so, after giving notice upto a certain date.
Mr. Chatterjee in this connection relied on Nokes vs Doncaster Amalgamated Collieries Ltd. where it was observed at p. 1018 "It is, of course, indisputable that (apart from statutory provision to the contrary) the benefit of a contract entered into by A to render personal service to X cannot be transferred by X to Y without A 's consent, which is the same thing as saying that, in order to produce the desired result,, the old contract between A and X would have to be terminated by notice or by mutual consent and a new contract of service entered into by agreement between A and Y." This observation itself shows that a contract of service may be transferred by a statutory provision; but in the present case, as we have already said, there was no compulsory transfer of the contract of service between the "existing air companies", and their officers and employees to the Corporation for each of them was given the option not to join the Corporation, if he gave notice to that effect.
The provision of section 20(1) read with the proviso is a perfectly reasonable provision and, as a matter of fact, in the interest of employees themselves.
But, Mr. Chatterjee argues that section 20(1) will only apply to those who were in the employ of the "existing air companies"; it would not (1) , 819 apply to those who might be working for the "existing air companies" on being loaned from some other company.
In other words, the argument is that the, appellants were in the employ not of the ASI but of the Scinaias and therefore section 20(1) would not apply to them and they would not become the employees of the Corporation by virtue of that provision when they failed to exercise the option given to them by the proviso.
According to him, only those employees of the ASI who were directly recruited by it, would be covered by section 20(1).
We are of opinion that this argument is fallacious.
It is true that the appellants were not originally recruited by the ASI.
They were recruited by the Scindias and were transferred on loan to the ASI on various dates from 1946 to 1951.
But for the purposes of section 20(1) we have to see two things: namely, (i) whether the officer or employee was employed by the existing air company on July 1, 1952, and (ii) whether he was still in its employment on the appointed day, (namely, August 1,1953).
Now it is not disputed that the appellants were working in fact for the ASI on July 1, 1952, and were also working for it on August 1, 1953.
But it is contended that though they were working for the ASI they were still not in its employment in law and were in the employment of the Scindias because at one time they had been loaned by the Scindias to the ASI.
Let us examine the exact position of the appellants in order to determine whether they were in the employ of the ASI or not.
It is not disputed that they were working for the ASI and were being paid by it; their hours of work as well as control over their work was all by the ASI.
From this it would naturally follow that they were the employees of the ASI, even though they might not have been directly recruited by it.
It is true that there were certain special features of their employment with the ASI.
These special features were that they were on the same terms and conditions of service as were enjoyed by the employees of the Scindias in the matter of remuneration, leave, bonus, etc.
It may also be that they could not be, dismissed by the ASI and the Scindias may have had to take action in case it was 820 desired to dismiss them.
Further it may be that they could be recalled by the Scindias and it may even be that they might have the option to go back to the Scindias.
But these are only three special terms of their employment with the ASI.
Subject to these special terms, they would for all purposes be the employees of the ASI and thus would in law be in the employment of the ASI both on July 1, 1952 and on August 1, 1953.
The existence of these special terms in the case of these appellants would not in law make them any the less employees of the ASI, for whom they were working and who were paying them, who had power of control and direction over them; who would grant them leave, fix their hours of work and so on.
There can in our opinion be no doubt that subject to these special terms the appellants were in the employ of the ASI in law.
They would therefore be in the employ of the ASI prior to July 1, 1952 and would still be in its employ immediately before August 1, 1953.
Consequently, they would clearly be governed by section 20(1).
As they did not exercise the option given to them by the proviso to section 20(1), they became the employees of the Corporation from August 1, 1953, by the terms of the statute.
The last point that has been urged is that even if section 20(1) applies, the Scindias are bound to take back the appellants.
Suffice it to say that there is no force in this contention either.
As soon as the appellants became by force of law the employees of the Corporation, as they did so become on August 1, 1953, in the circumstances of this case, they had no further right against the Scindias and could not; claim to be taken back in their employment on the ground that they were still their employees, in spite of the operation of section 20(1) of the Act.
Nor could they claim any of the alternative benefits specified in the order of reference, as from August 1, 1953, they are by operation of law only the employees of the Corporation and can have no rights whatsoever against the Scindias.
We are therefore of opinion that the tribunal 's decision is correct.
The appeal fails and is thereby dismissed.
There will be no order as to costs.
Appeal dismissed.
|
Section 20(1) of the (XXVII of 1953), read with the proviso, is a perfectly reasonable provision and in the interest of the employees and it is not correct to say that it can apply only to the direct recruits of the existing air 812 companies and not at all to loaned employees working under them.
The two conditions of its applications are (i) that the officer or employee was employed by the existing air company on July 1, 1952, and (ii) that he was still in its employment on August 1, 1953, the appointed day.
In the instant case where the appellants who had been recruited by the Scindia Steam Navigation Co., Ltd., and on purchase by it of the Air Services of India Ltd., loaned to the latter, and were working under its direction and control on and between the said dates and being paid by it, Held, that in law they were the employees of the Air Ser vices of India from the appointed day, notwithstanding the existence of certain special features of their employment, and as such governed by section 20(1) of the Act and since they did not exercise the option given to them under the proviso, they became employees of the Corporation established under the Act and ceased to have any rights against the original employers.
Nokes vs Doncaster Amalgamated Collieries Ltd., [1940] A.C. 1014, considered.
|
**Legal Summary of Court Case**
This is an appeal by special leave in an industrial matter, where the appellants were originally in the service of the Scindia Steam Navigation Co. Ltd. and were transferred to the Air Services of India Limited (ASI) on loan. The ASI was later taken over by the Indian Air Lines Corporation (Corporation) under the Air Corporation Act, 1953. The appellants claimed that they should be taken back by the Scindias, their original employer, when they were retrenched by the Corporation. The Industrial Tribunal, however, ruled that the appellants became employees of the Corporation under section 20(1) of the Act and lost their right to revert to their original employer.
**Court Decision**
The court held that the appellants were governed by section 20(1) of the Act, which provided that employees of the existing air companies, employed prior to July 1, 1952, and still in employment on August 1, 1953, would become employees of the Corporation. The court rejected the appellants' argument that their contract of service was not assignable and transferable even by law. The court also held that the appellants were employees of the ASI, subject to certain special terms, and therefore fell within the scope of section 20(1). As they did not exercise the option given to them by the proviso to section 20(1), they became employees of the Corporation from August 1, 1953. The court dismissed the appeal, upholding the decision of the Industrial Tribunal.
|
Appeals Nos. 195 and 196 of 1959.
Appeals by special leave from the Award dated April 15, 1957, of the Third Industrial Tribunal, West Bengal, in Case No. VIII 7 of 1956.
B. Sen, P. K. Chakravarty and B. N. Ghosh, for the appellants (in C. A. No. 195 of 59) and respondents (in C. A. No. 196 of 59).
N. C. Chatterjee, D. L. Sen Gupta and B. P. Maheshwari, for the respondents (in C. A. No. 195 of 59) and appellants (in C. A. No. 196 of 59).
March 30.
The Judgment of the Court was delivered by WANCHOO, J.
These are two appeals by special leave against the same award of the Third Industrial Tribunal, West Bengal and shall be disposed of by this judgment.
Appeal No. 195 is by Messrs. Burn and Co. Limited (hereinafter called the company) and Appeal No. 196 is by the workmen of Messrs. Burn and Co. Limited (hereinafter called the workmen).
There were disputes between the company and the workmen on various matters, which were referred to the tribunal for adjudication.
Of these disputes, only two now survive in the two appeals.
The company 's appeal is with respect to that part of the award which deals with incentive bonus to the clerical and subordinate staff while the workmen 's appeal is with respect to that part of the award which appeals with the cash benefit of Annas eight per head per working day for the period the canteen was not in operation.
We shall first take up the company 's appeal.
The company has introduced incentive bonus for manual workers including Sarkars and Checkers but there is no provision for incentive bonus to the clerical and subordinate staff.
The workmen therefore claimed that these two categories should also be given incentive bonus like the manual workers and pointed out 425 that in other concerns this was done.
The company resisted the claim on two grounds: (i) that the clerical staff got what is known as the Bengal Chamber of Commerce dearness allowance, which is higher than, the dearness allowance paid to the manual workers and (ii) that the clerical staff and the subordinate staff do not actually produce anything and if they are given incentive bonus it will mean that they would be paid on the 'production of others, namely, the manual workers.
The tribunal was of the view that the fact that the clerks got the Bengal Chamber of Commerce dearness allowance was no reason for their total exclusion from the benefit of the incentive bonus scheme.
It also pointed out that the subordinate staff did not get the Bengal Chamber of Commerce dearness allowance and there was no difference between their dearness allowance and the dearness allowance of the manual workers.
Further the tribunal was conscious of the fact that the clerical staff and the subordinate staff do not directly produce goods but that in its opinion was no justification for their total exclusion, particularly when other comparable concerns like the Indian Iron and Steel Co. Ltd. at Burnpur, Bridge and Roof Co. (India) Limited, Howrah, and Tatas were paying incentive bonus to the clerical and subordinate staff also.
It therefore ordered that the company should extend the scheme of incentive bonus to the clerical and subordinate staff also and lay down the rates and conditions for the same.
The main contention of the company before us is that as the clerical staff and the subordinate staff have no part in actual production they should not be given any incentive bonus, particularly as their work does not increase at all because of the increased production.
It is, however, difficult to accept that there will be no increase in the work of the clerical staff in particular and also of the subordinate staff because of higher production, though it may be accepted that the increase may not be in proportion to the increase of production.
It is also true that the clerical staff and the subordinate staff do not directly produce goods like manual workers and that may be a reason 426 for treating them somewhat differently in the matter of incentive bonus and that is what the tribunal seems to have done, for it has directed the company to extend the scheme of incentive bonus to the clerical and subordinate staff and to lay down the rates and conditions of the same and has not said that exactly the same rates and conditions should apply, to the clerical and subordinate staff as apply to the manual workers.
But there can be no doubt that economically speaking the clerical staff and the subordinate staff also take part in the production and there is no reason therefore for excluding them altogether from the scheme of incentive bonus.
Besides, as the tribunal has pointed out, in other comparable concerns incentive bonus is being paid to the clerical and subordinate staff.
The fact that dearness allowance was paid to the clerical staff at a higher scale is also, in our opinion, no reason for depriving them altogether of the benefits of the incentive bonus scheme.
It is also urged on behalf of the company that the introduction of incentive bonus is a management function and the tribunal should not impose it on the management and reference in this connection has been made to Messrs. Titaghur Paper Mills Co. Ltd. vs Their Workmen (1).
In the present case, however, the incentive bonus scheme has already been introduced by the company for the major part of its workmen and all that is now asked for is that the benefit of the scheme should be extended to the remainder of the workmen.
This prayer is, in our opinion, very different from asking a tribunal to impose an incentive bonus scheme for the first time in a concern.
We can see no reason why where an incentive bonus is in force in a concern for the majority of its workmen, the tribunal should not be able to extend the same to the remainder of the workmen.
We therefore see no reason to interfere with the order of the tribunal in this behalf Turning now to the appeal of the workmen with respect to eight annas tiffin allowance during the period the canteen was riot working, it is enough to say that this matter was examined at length by the (1) [1959] SUPP.
2 S.C.R. 1012.
427 tribunal.
It has dealt with the history relating to this tiffin allowance and exhaustively considered all the points raised on behalf of the workmen.
Nothing has been brought to our notice which would induce us to interfere with the considered order of the tribunal in this behalf.
All the points that Sri Chatterjee has raised on behalf of the workmen have been dealt with by the tribunal and the conclusion it has reached is that halving regard to the circumstances, the workmen were not eligible to the tiffin allowance of annas eight per head per working day.
All that we need say is that the correspondence between the workmen and the company shows that though the workmen were keen on the provision of a canteen before the tiffin allowance was granted by the award dated July 24, 1953, their keenness disappeared after the award.
The company seems to have taken steps even before the award to start a canteen and pursued the matter vigorously after the award; but the workmen started objecting to the arrangements made and some of the objections were fantastic.
It seems that having been given the tiffin allowance they preferred to have it rather than go to the canteen.
In the circumstances we are of opi nion that the conclusion of the tribunal is correct and there is no reason for interference.
The appeals are hereby dismissed, but in the circumstances we pass no order as to costs.
Appeals dismissed.
|
There can be no doubt from the point of view of Economics that the clerical and subordinate staff of an industry like its manual workers contribute to its production and there can, therefore, be no reason for excluding them wholly from the benefits of a scheme of incentive bonus.
The fact that the clerical staff are paid dearness allowance at a higher scale can be no reason for their exclusion.
(1)[1956] 424 Where, as in the instant case, the company had already Introduced a scheme of incentive bonus for the majority of its workmen, there could be no reason why the Industrial Tribunal should not be able to extend that scheme to the clerical and subordinate staff.
M/s. Titaghur Paper Mills Co. Ltd. vs Their Workmen, [1959] Supp. 2 S.C.R. 1012, considered.
|
Here's a two-paragraph summary of the court case:
This court case refers to two appeals by special leave against the award of the Third Industrial Tribunal, West Bengal. The appeals were filed by Messrs. Burn and Co. Limited (the company) and the workmen of the company. The disputes between the company and the workmen were referred to the tribunal for adjudication, and two specific issues now survived in the appeals. The first issue concerned the incentive bonus to the clerical and subordinate staff, while the second issue related to the cash benefit of eight annas per head per working day for the period the canteen was not in operation.
The court upheld the decisions of the tribunal on both issues. In relation to the incentive bonus, the court agreed with the tribunal that the clerical and subordinate staff should also be entitled to the benefit, despite not directly producing goods like manual workers. The court also rejected the company's argument that introducing incentive bonus was a management function and that the tribunal should not impose it. On the second issue, the court agreed with the tribunal's conclusion that the workmen were not eligible to the tiffin allowance of eight annas per head per working day. The appeals were therefore dismissed, but the court passed no order as to costs.
|
ivil Appeal Nos.
1186 to 201 of 1975.
Appeals by Special Leave from the Judgment and orders dated the 11th November, 1974, 6th December, 1974 and 27th November, 1974 of the Allahabad High Court in Civil Misc.
Writ Nos. 4139, 5354, 5352 5353, 5355 5357, 4065, 4912, 4326, 4212, 4218, 4545, 4328, 4543 and 4769 of 1972 respectively.
804 G. section Pathak (In CA 1186/75), section Swarup Shri Narain for the appellants (In CAs.
Nos.1186, 1194 1195 and 1196 1197/75).
V. Gupte, R. N. Bhalgotra and S.S. Khanduja for the appellants (In CA No. 1187/75).
section section Khanduja for the appellants (In CAs.
1188 1192 of 1975) .
V. J. Francis of M/s Ramamurthy & Co. for the appellants (In CA No. 1193/75).
Yogeshwar Prasad and Miss Rani Arora for the appellants (In CA No. 1198/75) and (1199/75).
N. N. Goswamy and Arvind Minocha for the appellant (In CA No. 1201/75).
The Judgment of the Court was delivered by KRISHNA IYER, J.
We should have made short shift of this batch of appeals on the brief but fatal ground that the appellants all sugar millers who had over priced this essential consumer article and had failed in their challenge of the controlled price had no moral nor legal claim to keep the huge sums which the High Court had right to directed them to disgorge.
When the price of 'levy sugar ' was pegged down by the State, these factory owners rushed to the Court impeaching the validity of the control and secured a stay of operation of the order.
Under cover of the Court 's stay order which was granted, on bank guarantee for the excess price being furnished to the court, the appellants sold sugar at free market rates, a euphemism for blackmarket racket unfortunately, with judicial sanction.
Crores of rupees were admittedly funnelled into the millers ' tills.
But, eventually, the High Court upheld the control of price and the unhappy obligation to restore the unjust enrichment arose.
The High Court, whose process kept the control price in cold storage, had to do justice by the community of consumers who were the unwitting victims of this judicially declared holiday from control which was quickly converted into a fleece as you please seller situation.
And so the Court made the following direction: "We, therefore, direct that the Registrar will take immediate steps to encash the security and recover the amount so over charged by the petitioners and pay the same to the State Government which will keep it in a separate account.
The petitioners will furnish to the State Government, within a period of six weeks of this order, a list of all such persons to whom they sold the levy sugar of 1971 72 season, together with their addresses, quantity of such sugar sold to and the amount of excess price charged from each of them.
The State Government will then refund to the persons concerned the excess amount realised from each of them, if necessary, after verifying the claim for refund of such amount made by such persons.
" 805 The reluctant millers have sought and got leave to appeal against this just direction and in the course of arguments have made some suggestions about the disposal of the moneys.
The inarticulate assumption was, presumably, that crores of rupees could remain with them until a suitable schemes for percolation of the excess prices to the ultimate small buyer could be fashioned.
Indeed, at some stage, a hesitant proposal was made that since the sugar industry has allegedly had lean years, these considerable sums 'picked ' from the pockets of a considerable number of consumers had better be allowed to be retained by the millers.
Another diffident hint was made that these several crores of rupees be used for stablising the sugar cane growers ' economic position.
The easy to see through design behind these 'developmental ' ideas was to have use of this large windfall till some distant project was evolved.
Indubitably, the appellants are in unrighteous enjoyment of colossal sums which belong to small consumers.
Not amount more can the millers keep what the Court has ordered the Registrar to collect by enforcing the bank guarantees.
Indeed, they have had dubious business use of these vast sums for a few years nearly a year, soon after the High Court 's final judgment.
Once we disenchanted them, as arguments proceeded, that the conscience of the Court would unconditionally compel the money to be called in forthwith, their interest in making fertile pro bono public.co suggestions as to how best to organise the disbursement of the small sums to the actual buyers flagged and, later in the day, Shri Dadachanji, Advocate on record in these cases, even moved that if leave had not been formally granted, the special leave petitions be allowed to be withdrawn and if leave had been already granted, Court fee exemption for these many appeals may be directed.
This shows up the public concern of these sugar manufacturers.
Anyway, the Registrar of the High Court shall take immediate steps to encash the security furnished by the appellants.
The money of the many little men gotten by the few millers by selling an essential commodity to the community at what is frankly black market price under the umbrella of Court order of stay shall get back to the scattered crowd of a small consumers as early and as inexpensively as possible.
A public injury perpetrated by calling in aid Court process must quicken judicial conscience to improvise an ad hoc procedure to restore through the Court 's authority what has been nibbled from the numerous buyers.
Innovative realism is obligated on the Court on the broad basis actus curiae neminem gravabit.
Why did the buyers pay higher prices for levy sugar ? Because, they respected the High Court 's order.
In this justice situation conventional procedures of each small claimant being left to litigate for his little sum from the miller or wholesaler is to write off the remedy and allow the ill gotten wealth to be in the coffers of the wrong doer (who got the charter to charge high, from a Court order).
Nor is the seemingly sweet suggestion, that a representative action under order 1.
r. 8 C.P.C., be instituted on be half of the class of consumers, feasible.
Who is to start? Against whom ? How is he to meet the huge litigative costs and how long (O, Lord, how long!) is he to wait with long drawn out trial procedures appeal, second appeal, special appeal" and Supreme Court appeal ? For, on the other side is the miller with the millions to be coughed up 806 The handling of small claims is probably the most deplorable feature of the administration of civil justice and yet small claims are in many respects more significant than large ones, involving large numbers and inter class disputes.
If the confidence of the community in the justice system, especially consumer protection, is to be created, radical reform of the processual law is needed now and here.
Rejecting, therefore, the recommendations for solution of the problem arising here.
as put forward by counsel for the appellants, we have to devise other measures.
We are aware of our limitations .
"The judge" even when he is free, is still not wholly free.
He is not to innovate at pleasure.
He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness.
He is to draw his inspiration from consecrated principles.
He is not to yield to spasmodic santiment, to value and unregulated benevolence.
He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in social life. ' Wide enough in all conscience is the field of discretion that remains.
" (1) The difficulty we face here cannot force us to abandon the inherent powers of the Court to do.
"The inherent power has its roots in necessity and its breadth is co extensive with the necessity".(2) Certainly, we cannot go against any statutory prescription.
Had India had a developed system of class actions or popular organisation taking up public interest litigation, we could have hoped for relief otherwise than by this Court 's order.
We lag in this regard" although people are poor and claims are individually trivial.
Legal aid lo the poor has a processual dimension As things stand, if each victim were remitted to an individual suit the remedy could be illusory, for the individual loss may be too small, a suit too prohibitive in time and money and the wrong would go without redress.
If there is to be relief, we must construct it here by simple legal engineering.
The Solicitor General appearing for the State of U.P. and the Union of India, informed us that legislation was about to be enacted to take care of these situations.
If it did come, it were welcome.
After all, the Legislature must show better legal concern for the small marl, as this class of consumers who are wronged or deceived are on the increase In the present case, we think that the following complex of directions will pragmatically meet the needs both of the appellants and the range of buyers from whom higher prices were charged : A.
The security by way of bank guarantee furnished by every appellant will be encashed by the Registrar.
Of the High Court and kept in short term deposit in the State Bank of India r (1) Benjamin Cardozo 's 'The Nature of the Judicial Process ' Yale university Press (1921) (2) Theoretical Basis Inherent Powers Doctrine Text material prepared by Jim R. Carrigan Publication of National College of The state Judiciary, U.S.A. 807 B. The appellants will be given complete immunity from liability to any sugar buyer, wholesaler or other" to whom sugar has been sold by the appellants at higher prices during the period covered by the High Court 's stay order.
If any exceptional case of claim were to be made by any buyer, it . . should be done by motion before the High Court which will I be justly disposed of.
The Registrar, under orders of the High Court, will directly or by making over to the State Government, receive and dispose of claims from the ultimate consumer for excess price paid on proper proof.
If the State Government is to undertake this task, a proper, easy and cheap machinery for distribution to the real, last buyers will be produced before the High Court and orders obtained.
The process should not be too expensive or too formalised.
D. Wide publicity will be given about the project and method of returning small claims and the money sent by post or otherwise.
The claims also would be received by post or otherwise and verified without delay.
The interest accruing from the bank deposits will be used for the incidentals to work out the distribution.
F. It will be open to the wholesaler to prove by vouchers the retailers and the latter in turn may prove who the ultimate , buyers are.
The High Court may devise modifications of this scheme or direct the State Government to act on any scheme subject to the moneys reaching the real small buyers from the retailers.
If any further directions in the mechanics of the scheme are felt necessary, the High Court will report to this court.
If, within one year from today, any amounts remain unclaimed they will go into a separate deposit in the High Court to be operated on application by any claimant.
If any legislation dealing with this subject were to be made before the amounts are disbursed, the legislative scheme will pro tanto prevail over the directions given above.
The court fee on these civil appeals will be exempted in the special circumstances of the case.
K. Parties will bear their own costs in this Court.
May be the procedure we have suggested above is somewhat unconventional but where public interest is involved.
"Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go where only 808 private interests are involved.
Accordingly, the granting or withholding of relief may properly be dependent upon considerations as of public interest . "(1) We hope the vigilant legislature will activise itself on behalf of the little men and the law and make quick moving, easily accessible and free of cost consumer protection measures.
Slogans are not law and the rule of law in a welfare oriented constitutional order demands 'poverty law none too soon; with emphasis on the delivery of legal services with distances shortened and road hazards removed.
It is not for the Court to spell out more, but it is for the State to awaken to a overlooked, but not infrequent, legal phenomenon.
P.H.P. Appeals dismissed.
|
The appellants challenged the validity of fixation of price of levy the high Court.
During the pendency of the petitions, the appellants a stay order from the High Court for charging the price in eyes price fixed by the State on furnishing Bank guarantees for the excess price Ultimately, the High Court upheld the control of price and directed appellants to restore the excess money recovered from the consumer to the through the State Government.
The appellants filed the present Special Leave against the said order of the High Court and contended that since the Sugar Industry had lean year, the excess amount should be allowed to retained by the appellant or that the excess amount should be to be utilised for stabilising the sugarcane growers ' economic position alternative, it was prayed that the excess amount could remain with the appellant unite a suitable scheme for the return of the excess amount to the was made.
Dismissing the appeals, ^ HELD : 1.
The appellants had doubt business use of these crores of rupees for nearly a year even after the High Court 's final judgment.
The money of the many little men got by the few millers by selling an essential commodity to the community at what is frankly black market price under the umbrella of court order of stay shall get back to the scattered crowd of small consumers as early and as inexpensively as possible.
A public injury perpetrated by calling in aid court process must waken judicial conscience to improvise an ad hoc procedure to restore through the court 's authority what has been nibbled from the numerous buyers.
The handling of small claims is probably a must deplorable features of the administration of civil justice and yet small claims are in many respect more signification than large ones, involving large numbers and inter class disputes.
If the confidence of the community in the justice system especially consumer protection.
is to be created, radical reform of the processual law is needed now and here.
The inherent power of the court has its roots in the necessity and its breadth is co extensive with the necessity.
The Court directed that the Bank guarantees furnished by the appellants should be encashed by the Registrar and kept in short term deposit.
That he claims of the consumers should be settled by the Registrar of the High Court under the order of the High Court through an easy and cheap machinery.
That wide publicity should be given about the method of returning and that small claims might be accepted by cost and money also returned by post.
[804 C E. 806 A. D 807 BD]
|
Here is a two-paragraph summary of the court case:
The Allahabad High Court had earlier ordered sugar millers to disgorge excess profits earned by selling sugar at higher prices during a period when the government had imposed a controlled price. The sugar millers had challenged the controlled price but secured a stay order from the court, which allowed them to sell sugar at higher prices. The High Court later upheld the controlled price and directed the millers to return the excess profits to the consumers. However, the millers sought leave to appeal against this direction and argued that the excess profits should be retained by them.
The Supreme Court refused to allow the millers to retain the excess profits and directed the Registrar of the High Court to encash the bank guarantees furnished by the millers. The court also ordered that the money collected from the millers should be distributed to the small consumers who had paid higher prices for sugar. To facilitate the distribution of the money, the court devised a complex of directions, including the setting up of a machinery for receiving and disposing of claims from the ultimate consumers, wide publicity about the project, and a provision for the interest accruing from the bank deposits to be used for the incidentals to work out the distribution. The court also exempted the court fee on these civil appeals and directed the parties to bear their own costs.
|
Appeal No. 147 of 1951.
Appeal from the Judgment and Decree dated September 4, 1946, of the late Chief Court of Oudh (now the High Court of Judicature at Allahabad, Lucknow Bench) (Misra and Wallford JJ.) in First Civil Appeal No. 139 of 1941, arising out of the Judgment,and Decree dated October 23, 1941, of the Court of the Civil Judge, Bahraich, in Regular Suit No. I of 1941.
234 Onkar Nath Srivastava for the appellant.
Bishan Singh for the respondent.
November 7.
The Judgment of the Court was delivered by MUKHERJEA J.
This appeal is on behalf of the plaintiff and is directed against a judgment and decree of the Chief Court of Avadh dated September 4, 1946, affirming, on appeal, those of the Civil Judge, Bahraich, passed in Regular Suit No. 1 of 1941.
To appreciate the controversy between the parties to this appeal it would be necessary to state a few facts.
One Raja Bisheshwar Bux Singh, the father of the plaintiff and of the defendant 's husband, was a taluqdar of Oudh, and the estate known as Gangwat Estate, to which he succeeded in 1925 on the death of the widow of the last holder, is one to which the Oudh Estates Act (I of,1869) applies.
Raja Bisheshwar died on 16th October, 1930, leaving behind him two sons, the elder of whom, Bajrang Bahadur, is the plaintiff in the present litigation, while the younger, whose name was Dhuj Singh, has died since then, being survived by his widow Bakhtraj Kuer.
who is the defendant in the suit.
Shortly before his death Raja Bisheshwar executed a will dated 11th September, 1929, by which five properties, described in lists A and B attached to the plaint, were bequeathed to Dhuj Singh, the younger son, by way of making provisions for the maintenance of the said son and his heirs.
On the death of Raja Bisheshwar,the estatement to the plaintiff as his eldest son under the provisions of the Oudh Estates Act and Dhuj Singh got only he five properties mentioned above under the terms of his father 's will.
Dhuj Singh had no issue of his own and on his death in 1940 disputes arose in respect of these properties between the plaintiff on the one land and Dhuj Singh 's widow on the other.
The plaintiff succeeded at first in having his name mutated as owner of these properties in the revenue records in place of his deceased brother, but the appellate 235 revenue authority ultimately set aside this order and directed mutation to be made in the name of the defendant.
The plaintiff thereupon commenced the suit out of which this appeal arises, praying for declaration of his title to the five properties mentioned above on the allegation that they vested in him on the death of Dhuj Singh and that the defendant could not) in law, assert any right to, the same.
It may be stated here that four out of these five properties have been described in list A to the plaint and there is no dispute that they are taluqdari properties.
The fifth item is set out in list B and admittedly this property is not taluqdari in its character.
Besides lists A and B there is a third list, viz., Catached to the plaint, which mentions two other properties as being in possession of the defendant and in the plaint a claim was made on behalf of the plaintiff in respect to these properties as well, although they were not covered by the will of Bisheshwar.
This claim, however, was abandoned in course of the trial and we are not concerned with it in the present appeal.
The plaintiff really rested his case on a two fold ground.
It was averred in the first place that Dhuj Singh hadonly a life interest in the properties bequeathed to him by Bisheshwar and on the termination of his life interest, the property vested in the plaintiff as the heir of the late Raja.
In the alternative the case put forward was that even if Dhuj Singh had an absolute interest created in his favour under the terms of his father 's will, the plaintiff was entitled to succeed to the taluqdari properties at any rate, under the provision of section 14(b) read with section 22 (5) of the Oudh Estates Act.
The defendant in her written statement resisted the plaintiff 's claim primarily on the ground that Bisheshwar Bux Singh, as the full owner of the properties, was competent to dispose of them in any way he liked and under his will it was the defendant and not the plaintiff in whom the properties vested after the death of Dhuj Singh.
The contention, in .
substance, was that the will created a life estate for Dhuj 236 Singh followed by a devise in favour of the widow as his personal heir.
The decision of the point in dispute between the parties thus hinges on the proper construction of the will left by Bisheshwar.
The trial court after an elaborate consideration of the different portions of the will, viewed in the light of surrounding circumstances, came to the conclusion that Dhuj Singh got a life interest in the devised properties but there were similar life estates created in favour of his personal heirs in succession, the ultimate remainder being given to the holder of the estate when the line of personal heirs would become extinct.
The defendant, therefore, was held entitled to the suit properties so long as she was alive and in that view the plaintiff 's suit was dismissed.
Against this decision, the plaintiff took an appeal to the Chief Court of Avadh and the Chief Court affirmed the decision of the trial judge and dismissed the appeal.
The plaintiff has now come, up to this court on the strength of a certificate granted by the High Court of Allahabad with which the Chief Court of Avadh was amalgamated sometime after the disposal of this case.
The learned counsel appearing for the appellant first of all drew our attention to the provisions contained in certain sections of the Oudh Estates Act and it was urged by him on the basis of these provisions that as Dhuj Singh, who got the suit properties under the will of his father, the late.
Taluqdar, came within the category of persons enumerated in clause (1) of section 13 A, Oudh Estates Act, he could, under section 14 of the Act, hold the properties subject to the same conditions and the same rules of succession as were applicable to the, taluqdari himself.
In these circumstances, it is said that the provisions of section 22 (5) of the Act would be attracted to the facts of this case and the plaintiff, as the brother of Dhuj Siugh, would be entitled to succeed to the properties of the latter in preference to his widow.
The argument formulated in this way does not I appear to us to be helpful to the appellant.
Section.
11 237 of the Oudh Estates Act confers very wide powers of disposition upon a taluqdar and he is competent under the section "to transfer the whole or any portion of his estate, or of his right and interest therein, during his lifetime, by sale, exchange, mortgage, lease or gift, and to bequeath by his will to any person the whole or any portion of such estate, and interest.
" Sections 13 and 13 A make certain special provisions in cases of transfers by way of gift and bequest in favour of certain specified persons and lay down the formalities which are to be complied with in such cases.
Section 14 then provides that "if any taluqdar or grantee, or his heir or legatee, shall heretofore have transferred or bequeathed, or if any taluqdar:or grantee, or his heir or legatee shall hereafter transfer or bequeath the whole or any portion of his estate (a) . . . (b) to any of the persons mentioned in clauses (1) and (2) of section.
13 A, the transferee or legatee and his heirs and legatees shall have same rights and powers in regard to the property to which he or they may have become entitled under or by virtue of such transfer or bequest, and shall hold the same subject to the same conditions and to the same rules of succession as the transferor or testator.
" It is true that Dhuj Singh being a younger son of the testator came within the purview of clause (1) of section 13 A of the Oudh Estates Act and if he became full owner of the properties under the will of his father, succession to such properties after his death would certainly be regulated by the special rules of succession laid down in the Oudh Estates Act, and not by the ordinary law of inheritance.
But section 14 would have no application if the disposition by the will did not make Dhuj Singh an absolute owner of the properties and he was given only an interest for life which was followed by subsequent interests created in favour of 31 238 It cannot also be contended that a taluqdar governed by the Oudh Estates Act cannot convey anything less than his absolute proprietary right in a property by transfer inter vivos or by will, or that 'it is not competent for him to create any limited interest or future estate.
Apart from the plenary provision contained in section 11, section 12 of the Act which makes the rule against perpetuity applicable to transfers made by a taluqdar, furnishes a clear indication that the Act does not interdict the creation of future; estates and limitations provided they do not trans gress the perpetuity rule.
The questions, therefore, which require consideration in this case are really two in number.
The first is whether Dhuj Singh got an absolute estate or an estate for life in the properties given to, him by the will of Raja Bisheshwar? If he got an absolute estate, the contention of the appellant should undoubtedly prevail with regard to the taluqdari properties specified in list A of the plaint.
If, on the other hand,, the interest was one which was to inure only for the period of his life, the further question would arise as to whether any subsequent interest was validly created by the will in favour of the widow on the strength of which she can resist the plaintiff 's claim.
If the life estate was created in favour of Dhuj Singh alone, obviously the plaintiff as the heir of the grantor would be entitled to come in as reversioner after his death .
The answers to both the questions would have to be given on a proper construction of the will left by Raja Bisheshwar.
The will has been rightly described by the trial judge as a most inartistic document with no pretension to any precision of language, and apparently it was drawn up by a man who was not acquainted with legal phraseology.
The Civil Judge himself made a translation of the document, dividing its contents into several paragraphs and this was found useful and convenient by the learned Judges of the Chief Court.
The material portions of the will, as translated by the trial judge, may be set out as follows: 239 "As I have become sufficiently old and no reliance can be placed on life, by God 's grace I have got two sons namely, Bajrang Bahadur Singh, the elder, and Dhuj Singh the younger.
After my death the elder son would according to rule, become the Raja, the younger one is simply entitled to maintenance.
Consequently with a view that after my death the younger son and his heirs and successors, generation after generation, may not feel any trouble and that there may not be any quarrel between them.
I have decided after a full consideration that I should execute a will in favour of Dhuj Singh with respect to the villages detailed below.
So that after my death Dhuj Singh may remain in possession of those villages as an absolute owner with the reservation that he will have no right of transfer.
If God forbid, Dhuj Singh may not be living a the time of my death, his son or whoever may be his male heir or widow may remain in possession of the said villages on payment of the Government revenue as an absolute owner.
The liability for the land revenue of the said villages will be with Dhuj Singh and his heirs and successors; the estate will have no concern with it.
Although Dhuj Singh and his heirs are not given: the power of transfer, they will exercise all other rights of absolute ownership that is to say, the result is that the proprietor of the estate or my other heirs and successors will not eject Dhuj Singh or his heirs or successors in any way.
Of course if Dhuj Singh or his heirs become ever heirless then the said villages will not escheat to the Government but will revert and form part of the estate.
Hence with the soundness of my mind without any force or pressure and after having fully under , stood and also having thought it proper I execute this will in favour of Dhuj Singh, my own ;on, with the above mentioned terms.
" 240 The learned counsel for the appellant naturally lays stress upon the words "absolute owner " (Malik kamil) and " 'generation after generation? ' (naslan bad naslan) used in reference to the interest which Dhuj Singh was to, take under the will.
These words, it cannot be, disputed, are descriptive of a heritable and alienable estate in the donee, and they connote full proprietary rights unless there is something in the context or in the surrounding circumstances which indicate that absolute rights were not intended to, be conferred.
In all such cases the true intention of the testor has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory.
"The object of the testator in executing the will clearly set out in the preamble to the document and in spite of the somewhat clumsy drafting that object to have been kept in view by the testator throughout, in making the provisions.
The language and tenor of the document leave no doubt in OUT minds that the dominant intention of the testator was to make provision not for Dhuj Singh alone but for the benefit of his heirs and successors, " generation after generation " as the expression has been used.
The expression " heirs" in this context obviously means and refers to the personal heirs of Dhuj Singh determined according to the, general law of inheritance and not the successors to the estate under the special provisions of the Oudh Estates Act, for paragraph 6 of the will mentioned above is expressly intended to protect the personal heirs of Dhuj Singh from eviction from the properties in question by the future holders of the estate.
Thus the beneficiaries under the will are Dhuj Singh himself and his heirs in succession and to each such heir or set of heirs the rights of malik are given but without any power of alienation.
On the total, extinction of this line of heirs the properties affected by the will are to revert to the estate.
As it was the intention of the testator that the properties should 241 remain intact till the line of Dhuj Singh was exhausted and each successor was to enjoy and hold the properties without any power of alienation, obviously what the testator wanted was to create a series of life estates one after another, the ultimate reversion being given to the parent estate when there was a complete failure of heirs.
To what extent such intention could be, given effect to by law is another matter and that we shall consider presently.
But it can be said without hesitation that it was not the intention of the testator to confer anything but a life estate upon Dhuj Singh in respect of the properties covered by the will.
The clause in the will imposing total restraint on alienation is also a pointer in the same direction.
In cases where the intention of the testator is to grant an absolute estate, an attempt to reduce the powers of the owner by imposing restraint on alienation would certainly be repelled on the ground 'of repugnancy; but where the restrictions are the primary things which the testator desires and they are consistent with the whole tenor of the Will, it is a material circumstance to be relied upon for displacing the presumption of absolute ownership implied in the use of the word "malik".
We hold, therefore, that the courts below were right in holding that Dhuj Singh had only a life interest in the properties under the terms of his father 's will.
Of course this by itself gives no comfort to the defendant; she has to establish, in order that she may be able to resist the plaintiff 's claim, that the will created an independent interest in her favour following the death of Dhuj Singh.
As we have said already, the testator did intend to create successive life estates in favour of the successive heirs of Dhuj Singh.
This, it is contended by the Appellant is not permissible in law and he relies on the case of Tagore vs Tagore(1).
It is quite true that no interest could be created in favour of an unborn person but when the gift is made to a class or series of persons, some of (1) 18 Weekly Report 359.
242 whom are in existence and some are not, it does not fail in its entirety; it is valid with regard to the persons who are in existence at the time of the testator 's death and is invalid as to the rest.
The Widow, who is the next heir of Dhuj Singh, was in existence when the testator died and the life interest created in her favour should certainly take effect.
She thus acquired under the will an interest in the suit properties after the death of her husband, commensurate with the period of her own natural life and the plaintiff consequently has no present right to, possession.
The result, therefore, is that the appeal fails and is dismissed with costs.
Appeal dismissed.
Agent for the appellant Rajinder Narain.
|
The Oudh Estates Act (Act I of 1869) does not interdict the creation of future estates and limitations provided they do not transgress the rule of perpetuities and where a disposition by a will made by a taluqdar does not make the legatee an absolute owner but gives him only an interest for life which is followed by subsequent interests created in favour of other persons the rule of succession laid down in section 14 of the Act will not apply on the death of the donee and the property bequeathed to him will pass according to the will to the next person entitled to it under the will, 233 The words malik kamil (absolute owner) and naslan bad naslan (generation after generation) are descriptive of a heritable and alienable estate in the donee and they connote full proprietary rights unless there is something in the context or in the surrounding circumstances which indicate that absolute rights were not intended to be conferred.
In all such cases the true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory.
In cases where the intention of the testator is to grant an absolute estate, an attempt to reduce the powers of the owner by imposing restraint on alienation would be repelled on the ground of repugnancy; but where the restrictions are the primary things which the testator desires and they are consistent with the whole tenor of the will, it is a material circumstance to be relied on for displacing the presumption of absolute ownership implied in the use of the word malik.
Though under the rule laid down in Tagore vs Tagore no interest could be created in favour of unborn persons, yet when a gift is made to a class or series of persons, some of whom are in existence at the time of the testator 's death and some are not, it does not fail in its entirety ; it will be valid with regard to the persons who are in existence at the time of the testator 's death and invalid as to the rest.
A will made by a taluqdar of Oudh recited that with a view that after his death his younger son D and his heirs and successors, generation after generation, may not feel any trouble or create any quarrel, D shall after the testator 's death remain in possession of certain villages as absolute owner, with the reservation that he will have no right to transfer, that if D may not be living at the time of his death D 's son or whoever may be his male heir or widow may remain in possession and that although D and his heirs are not given the power of transfer they will exercise all other rights of absolute ownership: Held, that the will did not confer an absolute estate on D and on D 's death the succession was not governed by section 14 of the Oudh Estates Act and D 's widow was entitled to succeed in preference to D 's elder brother.
|
In the case of Appeal No. 147 of 1951, the plaintiff, Bajrang Bahadur Singh, sought to challenge the judgment and decree of the Chief Court of Oudh, which had dismissed his claim to the properties of the Gangwat Estate. The estate was inherited by Raja Bisheshwar Bux Singh, the father of the plaintiff and the husband of Dhuj Singh's widow, who had died in 1930. Before his death, Raja Bisheshwar had executed a will bequeathing five properties to Dhuj Singh, the younger son. The plaintiff claimed that the properties vested in him on Dhuj Singh's death in 1940, while the defendant, Dhuj Singh's widow, claimed that she was entitled to the properties under the will.
The trial court and the Chief Court found that Dhuj Singh had only a life interest in the properties under the terms of his father's will, with successive life estates created in favour of his personal heirs. The will did not create an independent interest in the defendant, but only a life interest that would expire with her own natural life. The court held that the plaintiff had no present right to possession of the properties, as the defendant had acquired an interest in them under the will.
The plaintiff appealed to the High Court, arguing that the provisions of the Oudh Estates Act should be applied to determine the succession to the properties. However, the court held that the will did not create an absolute estate in Dhuj Singh, but only a life interest, and that the subsequent interests created in favour of his personal heirs were not valid. The appeal was dismissed, with costs.
|
N: Civil Appeal Nos.
1629 to 1631 of 1968.
Appeals from the judgment and order dated January 29, 1965 of the Calcutta High Court in Wealth Tax Matter No. 372 of 1961.
B. Sen, T.A. Ramachandran, R.N. Sachthey and B.D. Sharma, for the appellant (in 'all the appeals).
M.C. Chagla, R.K. Choudhury and B.P. Maheshwari, for the respondent (in all the appeals).
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought by certificate granted under section 29(1) of the Wealth Tax Act,1957 (hereinafter referred to as the Act) against the judgment of the Calcutta High Court dated January 29, 1965 in Wealth Tax Matter No. 372 of 1961.
The respondent is a company which is assessed to wealthtax for the assessment years 1957 58,1958 59 and 1959 60.
In computing the net wealth of the respondent on the respective valuation dates the Wealth Tax Officer proceeded under section 7(2)(a) of the Act and included the full value of the fixed assets as shown by the respondent in the respective balance sheets without any adjustment, after rejecting its contention that the fixed assets should be assessed at their written down value as computed for the purposes of income tax.
In the assessment order 791 for 1957 58 the Wealth tax Officer gave his reasons as follows : "The assessee claimed that since the full amount of depreciation which was admissible under the Incometax Act was not provided in the balance sheet the amount of depreciation not provided for earlier should now be deducted from the value of the assets in order to arrive at the net wealth.
This contention can hardly be accepted.
The depreciation allowable under the Income tax Act does not determine the market value of the assets.
The object of allowing depreciation in the income tax assess ment is quite different For the purpose of the wealth tax assessment the value of the assets as estimated by the assessee itself in its balance sheet has been accepted".
Similarly in his assessment order for 1958 59 the Wealth tax Officer stated as follows : "Excluding the value of land, the total value of the fixed assets as per balance sheet amounts to Rs. 60,53,811 whereas the assessee has shown in its return the value of the same at Rs. 7,69,435.
These values have been shown by the assessee on the basis of income tax written down value and not on the basis of the balance sheet values as required under the global system of valuation.
It is common knowledge that the values of the imported machinery has increased considerably during the last few years and, on the valuation date, I do not think that their value should be less than that provided for in the balance sheet".
On appeal the Appellate Assistant Commissioner confirmed the valuation of the fixed assets.
On further appeal the Income tax Appellate Tribunal held that it would be fair in the circumstances of the case to adopt the written down value of the assets as value thereof for all the years under appeal.
In the course of its order the Appellate Tribunal said: "The income tax assessment depreciation is calculated upon the original cost in a scientific and systematic manner with due regard to the nature of the asset.
Therefore, the written down value as determined in the income tax assessment may be taken as the fair index of the net value of the business assets in most cases . .
It cannot however be laid down as an inflexible rule of law that in every case the written down value must be taken to be the net 792 value of the business assets.
If that were so.
the Legislature would have said so in clear terms instead of indulging in the circumlocution in section 7(2)(a).
In this particular case, it appears, the assessee did not make any reserve for depreciation and the assets are old dating back from the inception of the business long ago.
In these circumstances, in our opinion, it would be fair to adopt the written down value of the assets as the value thereof for all the years under appeal . " At the instance of the Commissioner of Income tax the Appellate Tribunal stated a case to the High Court under section 27(1) of the Act on the following question of law : "Whether on the facts and in the circumstances of the case, for the purpose of determining the net value of the assets of the assessee under section 7(2) of the the Tribunal was right in directing that the written down value of the fixed assets of the assessee should be adopted as the value thereof, instead of their balance sheet value ?" By its judgment dated January 29, 1965 the High Court answered the question in the affirmative and in favour of the respondent.
Section 7 of the Act stood as follows at the material time : "(1) The value of any asset, other than cash, for the purposes of this Act, shall be estimated to be the price which in the opinion of the Wealth tax Officer it would fetch if sold in the open market on the valuation date.
(2) Notwithstanding anything contained in subsection (1), (a) where the assessee is carrying on a business for which accounts are maintained by him regularly, the Wealth tax Officer may, instead of determining separately the value of each asset held by the assessee in such business, determine the net value of the assets of the business as a whole having regard to the balance sheet of such business as on the valuation date and making such adjustments therein as the circumstances of the case may require.
793 In Kesoram Industries & Cotton Mills Ltd. vs Commissioner of Wealth Tax, (Central) Calcutta(1) the appellant company had shown in its balance sheet for the period ending March 31, 19.57, the appreciated value on revaluation of its assets, after making certain adjustments, at Rs. 2,60,52,357 and had introduced in the capital reserve surplus a corresponding balancing figure of Rs. 1,45,87,000 representing the increase in the value of the assets upon re valuation.
For the purposes of wealth tax the officer took the sum of Rs. 2,60,52,357 as the value of the assets, whereas the company contended that an adjustment ought to be made in view of the increase in the value shown in the balance sheet on re valuation.
It was held by this Court that as no one could know better the value of the assets than the assessee himself, the Wealth tax Officer was justified in accepting the value of the assets at the vigour shown by the appellant company itself.
It was open to the appellant company to convince the authorities that that figure was inflated for acceptable reasons; but it did not make any such attempt.
It was also open to the Wealth tax Officer to reject the figure given by the appellant company and to adopt another figure if he was, for sufficient reasons, satisfied that the figure given by the appellant was wrong.
It is argued on behalf of the appellant in the present case that the High Court was not right in holding that the principle laid down by this Court in Kesoram Industries(1) case is not applicable.
In our opinion there is justification for this argument.
Under sub section (1 ) of section 7 of the Act the Wealth tax Officer is authorised to estimate for the purpose of determining the value of any asset, the price which it would fetch, if sold in the open market on the valuation date.
But this rule in the case of a running business may often be inconvenient and may not yield a true estimate of the net value of the total assets of the business.
The legislature has, therefore, provided in sub section (2) (a) that where the assessee is carrying on a business for which accounts are maintained by him regularly, the Wealth tax Officer may determine the not value of the assets of the business as a whole, having regard to the balancesheet of such business as on the valuation date and make such adjustments therein as the circumstances of the case may require.
The power conferred upon the tax officer to make adjustments as the circumstances of the case may require is also for the purpose of arriving at the true value of the assets of the business.
It is of course open to the assessee in any particular case to establish after producing relevant materials that the value given of the fixed as.sets in the balance sheet is artificially (1) ; 794 inflated.
It is also open to the assessee to establish by acceptable reasons that the written down value of any particular asset represents the proper value of the asset on the relevant valuation date.
In the absence of any material produced by the assessee to demonstrate that the written down value is the real value, the Wealth tax Officer would be justified in a normal case in taking the value given by the assessee itself to its fixed assets in its balance sheet for the relevant year as the real value of the assets for the purposes of the wealth tax.
It is a question of fact in each case as to whether the depreciation has to be taken into account in ascertaining the true value of the assets.
The onus of proof is on the assessee who must produce reliable material to show that the written down value of the assets and not the balance sheet value is the true value.
If, therefore, the assessee merely claims that the written down value of the assets should be adopted but fails to produce any material to show that the written down value is the true value, the Wealth tax Officer is justified in rejecting the claims and adopting the values shown by the assessee himself in his balance sheet as the true value of his assets.
In our opinion the High Court should have based its decision on the principle of Kesoram Industries(1) case and the question of law should be answered in the manner stated by us in this judgment.
But it is necessary to give certain effective directions in this case.
Section 27(6) of the Act requires the Tribunal on receiving a copy of the judgment of the Supreme Court or the High Court as the case may be to pass such orders as are necessary to dispose of the case conformably to such judgment.
This clearly imposes an obligation upon the Tribunal to dispose of the appeal in the light and conformably with the judgment of the Supreme Court.
Before the Tribunal passes an order disposing of the appeal there would normally be a hearing.
The scope of the hearing must of course depend upon the nature of the order passed by the Supreme Court.
If the Supreme Court agrees with the view of the Tribunal the appeal may be disposed of by a formal order.
But if the Supreme Court disagrees with the Tribunal on a question of law, the Tribunal must modify its order in the light of the order of the Supreme Court.
If the Supreme Court has held that the judgment of the Tribunal is vitiated because it is based on no evidence or because the judgment proceeds upon a misconstruction of the statute, the Tribunal would be under a duty to dispose of the case conformably with the opinion of the Supreme Court and on the merits of the dispute and re hear the appeal.
In all cases, however, opportunity must be afforded to the parties of being heard.
In Income(l) ; 795 tax Appellate Tribunal, Bombay vs
S.C. Cambatta & Co. Ltd.(1) the Bombay High Court has explained the procedure followed in the disposal of an appeal conformably to the judgment of the High Court.
Chagla C.J. in delivering the judgment .of the Court observed : ". . when a reference is made to the High Court e her under section 66(1) or section 66(2) the decision of the Appellate Tribunal cannot be looked upon as final; in other words, the appeal is not finally disposed of.
It is only when the High Court decided the case, exercises its advisory jurisdiction, and gives directions to the Tribunal on questions of law, and the Tribunal reconsiders the matter and decides it, that the appeal finally disposed of . . it is clear that what the Appellate Tribunal is doing after the High Court has heard the case is to exercise its appellate powers under section 33 .
The shape that the appeal would ultimately take and the decision that the Appellate Tribunal would ultimately give would entirely depend upon the view taken by the High Court.
" This passage was quoted with approval by this Court in Esthuri Aswathiah vs Commissioner of Income tax(2).
In the present case, therefore, the answer we have furnished to the question in the reference means that the Appellate Tribunal must now, in conformity with the judgment of this Court, act under section 27(6) of the Act, that is to say, dispose of the case after rehearing the respondent company and the Commissioner in the light of the evidence and according to law.
There will be no order as to costs.
G.C. (1) , 120.
|
The respondent company was assessed to wealth tax for the assessment years 1957 58, 1958 59 and 1959 60.
In computing the net wealth of the respondent on the respective valuation dates the Wealth Tax Officer proceeded under section 7(2)(a) of the Act and included the full value of the fixed assets as shown by the respondent in the respective balance sheets without any adjustment, after rejecting` its contention that the fixed assets should be assessed at their written down value as computed for the purposes of income tax.
The Appellate Assistant Commissioner confirmed the valuation but the Income tax Appellate Tribunal held that it would be fair in the circumstances of the case to adopt the written down value of the asset 's as value thereof for all the years under appeal.
On reference being made to it under section 27(1) of the Wealth Tax Act the High Court held in 'favour of the respondent.
The Revenue appealed, HELD: The rule of valuation on the basis of market value under section 7(1) of the Act may not yield a true estimate of the net value of the total assets in the case of a running business.
The legislature has therefore provided in sub section
(2)(a) that when the assessee is carrying on a business for which accounts are maintained by him 'regularly, the Wealth Tax Officer may determine the net value of the business as a whole, having regard to the balance sheet of such business as on the valuation date and make such adjustments therein as the circumstances of the case may require.
The power conferred upon the tax officer to make adjustments as the circumstances of the case may require is also for the purpose of arriving at the true value of the assets of the business.
It is of course open to the assessee in any particular case to establish after producing relevant materials that the value given of the fixed assets in the balance sheet is artificially inflated.
It is also open to the assessee to establish by acceptable reasons that the written down value of any particular asset represents the proper value of the asset on the relevant valuation date.
In the absence of any material produced by the assessee to demonstrate that the written down value is the real value the Wealth tax Officer would be justified in a normal case in taking the value given by the assessee itself to its fixed assets in the balance sheet for the relevant year as the real value of the assets for the purposes of the Wealth tax.
It is a question of fact in each case as to whether the depreciation has to be taken into account in ascertaining the true value of the assets.
The onus of proof is on the assessee who must produce reliable material to show that the written down value of the assets and not the balance sheet value is the true value.
[793 E 794 C] 790 If, therefore, the assessee merely claims that the written down of the assets should be adopted but fails to produce any material to show that written down value is the true value, the Wealth tax Officer is justified in rejecting the claims and adopting the values shown by the assessee himself in his balance sheet as the true value of his assets.
[794 C D] Kesoram Industries & Cotton Mills Ltd. vs Commissioner of Wealthtax (Central) Calcutta, ; , applied.
(ii) Section 27(6) of the Act requires the Tribunal on receiving a copy of the judgment of the Supreme Court or the High Court as the ease may be to pass such orders as are necessary to dispose of the case conformably to such judgment.
[794 E] If the Supreme Court agrees with the view of the Tribunal the appeal may be disposed of by a formal order.
But if the Supreme Court disagrees with the Tribunal on a question of law, the Tribunal must modify its order in the light of the order of the Supreme Court.
If the Supreme Court has held that the judgment of the Tribunal is vitiated because it is based on no evidence or because the judgment proceeds upon a misconstruction of the statute, the Tribunal would be under a duty to dispose of the case conformably with the opinion of the Supreme Court and on the merits of the dispute and re hear the appeal.
In all cases, however, opportunity must be afforded to the parties of being heard.
[794 F H] Income tax Appellate Tribunal, Bombay, vs S.C. Cambatta vs Commissioner of Income tax, , applied.
|
Here's a two-paragraph summary of the court case:
The case is a civil appeal brought by a respondent company against the judgment of the Calcutta High Court dated January 29, 1965, in Wealth Tax Matter No. 372 of 1961. The company is assessed to wealth tax for the assessment years 1957-58, 1958-59, and 1959-60. The Wealth Tax Officer initially valued the company's fixed assets at their full value as shown in the balance sheet, rejecting the company's contention that the assets should be valued at their written-down value as computed for income tax purposes.
The Appellate Tribunal held that it would be fair to adopt the written-down value of the assets as their value for all the years under appeal. However, the High Court answered the question in the affirmative and in favor of the respondent company, citing the principle laid down in Kesoram Industries & Cotton Mills Ltd. vs Commissioner of Wealth Tax, where the Supreme Court held that the Wealth tax Officer was justified in accepting the value of the assets as shown by the assessee itself if no one could know better the value of the assets than the assessee himself. However, the Supreme Court disagreed with the High Court and held that the written-down value should not be automatically adopted without considering the circumstances of the case.
|
Civil Appeal No. 2050 of 1973.
Appeal by special leave from the judgment and order dated the 14th October, 1971 of the Andhra Pradesh High Court in Writ Appeal No. 691 of 1970.
B. Parthasarthi for the Appellant.
P.N. Poddar for Respondent No. 2.
section Markakandeya for Respondent No. 6.
The Judgment of the Court was delivered by BALAKRISHNA ERADI, J.
This appeal preferred by special leave is against the judgment of the Division Bench of the Andhra Pradesh High Court setting aside the decision of a learned single judge of that Court and dismissing a writ petition filed by the present appellant.
The appellant, who was working as an officer of the Forest Department in the State of Andhra Pradesh, approached the High 161 Court challenging the provisional integrated gradation list of Forest officers of the former Andhra and Hyderabad States published under the provisions of the States Reorganization Act, as annexure to a State Government order dated January 27, 1962.
The contentions raised by the petitioner in the writ petition were mainly two fold.
Firstly, it was urged that the inter se seniority between the appellant and the 6th respondent, both of whom originally belonged to the Andhra Cadre, had been wrongly fixed in the provisional gradation list by showing the 6th respondent as senior to the appellant, whereas the appellant was legally entitled to seniority over the 6th respondent.
Secondly, it was contended that respondents Nos. 3, 4, 5, 7 and 8 who were officers allotted to the State of Andhra Pradesh from the Telengana region of the former Hyderabad State, had been erroneously assigned ranks above the appellant in the integrated gradation list in violation of the principles laid down by the Government of India for equation of posts and the fixation of inter se seniority between the persons drawn from the two sources.
By the time the writ petition came up for hearing before the learned single judge, the Central Government had already set right the appellant 's grievance concerning his ranking and the seniority in relation to respondents 3, 4, 5, 7 and 8.
It therefore became unnecessary for him to pursue the second contention aforementioned and hence he pressed before the learned single judge only the plea concerning his claim for seniority over the 6th respondent was well founded.
Accordingly, the learned single judge found that the contention put forward by the appellant that he was entitled to seniority over the 6th respondent was well founded.
Accordingly, the learned judge allowed the writ petition and issued a writ of mandamus directing the State Government and the Government of India to modify the gradation list by showing the appellant as senior to the 6th respondent.
The 6th respondent carried the matter in appeal before a Division Bench of the High Court by filing Appeal No. 691 of 1978.
The Division Bench took the view that since the prayer contained in the writ petition was for the issue of a writ of mandamus directing respondents No. 1 and 2 to forbear from implementing the provisional gradation list published along with the Government order dated January 27, 1962, and inasmuch as the petitioner had not pressed the said prayer for quashing of the list in so for as it related to the officers of Telengana region (respondents 3, 4, 5, 7 and 8), the writ petition should have been dismissed on that short ground and the question relating to inter se seniority between the petitioner and the 162 6th respondent ought not to have been decided by the learned single judge.
In this view, the Division Bench allowed the writ appeal, set aside the order passed by the learned single judge and dismissed the writ petition.
The appellant has come up to this Court questioning the legality and correctness of the aforesaid reasoning and conclusion of the Division Bench.
It is true that the writ petition contained a prayer for the quashing of the gradation list in so far as it related to the inter se ranking of the petitioner vis a vis respondents Nos. 3 to 8 and the petitioner (appellant) had also sought the issuance of a writ of mandamus directing respondents Nos. 1 and 2 to forbear from implementing or acting upon the said gradation list.
But subsequent to the institution of the writ petition, the Central Government has refixed the ranks of respondents Nos. 3, 4, 5, 7 and 8 (Telengana officers) and placed them below the appellant thereby redressing the grievance of the appellant in so far as it pertained to the ranking of the aforesaid respondents.
It therefore became unnecessary for the appellant to pursue his claim for relief with respect to the ranks assigned to those five respondents.
It was under those circumstances that the appellant submitted before the learned single judge of the High Court, at the time of final hearing of the writ petition, that he was pressing the writ petition only in so far as it related to his claim for seniority over the 6th respondent.
We fail to see how the fact that the appellant had sought in the writ petition the issuance of a writ of mandamus directing respondents 1 and 2 to forbear from implementing or acting upon the provisional gradation list will operate to preclude him from seeking a lesser relief, namely, the quashing of the list only so far as it pertains to the fixation of the inter se seniority between himself and the 6th respondent.
The material facts and circumstances had undergone a substantial change subsequent to the filing of the original petition and it was in consequence thereof that it had become unnecessary for the petitioner to pursue his original prayer for the grant of a larger relief.
Besides ignoring this crucial aspect, the Division Bench of the High Court has also lost sight of the well established principle that in an action where a party has prayed for a larger relief it is always open to the court to grant him any smaller relief that he may be found to be entitled in law and thereby render substantial justice.
The Court can undoubtedly take note of changed circumstances and suitably mould the relief to be granted to the party concerned in order to mete out justice in the case.
As far as possible the anxiety and endeavour of the Court should be to remedy an injustice when it is 163 brought to its notice rather than deny relief to an aggrieved party on purely technical and narrow procedural grounds.
We do not, therefore, find it possible to uphold the view expressed by the Division Bench of the High Court that since the writ petition was not pressed in so far as it related to the officers belonging to the Telengana region the question of inter se seniority between the writ petitioner and the 6th respondent should not have been considered by the single judge and the writ petition should have been dismissed.
Accordingly, we set aside the judgment of the Division Bench and remand the writ appeal to the High Court for fresh disposal in accordance with law.
The parties will bear their respective costs in this appeal.
|
The appellant, an officer of the Forest Department challenged the provisional integrated gradation list of Forest Officers of the former Andhra and Hyderabad States published under the provisions of the States Reorganisation Act, 1947, in his writ petition, contending that (a) the inter se seniority between the appellant and the 6th respondent, both of whom originally belonged to the Andhra Cadre, had been wrongly fixed by showing the 6th respondent as senior to the appellant whereas the appellant was legally entitled to seniority over the 6th respondent, and (b) that respondent nos.
3, 4, 5, 7 and 8 officers allotted to the State of Andhra Pradesh from the Telengana region of the former Hyderabad State, had been erroneously assigned ranks above the appellant in violation of the principles laid down by the Government of India for equation of posts and fixation of inter se seniority.
During the pendency of the writ petition the Central Government set right the appellant 's grievance concerning his ranking and seniority in relation to respondents 3, 4, 5, 7 and 8.
When the writ petition came up for hearing the appellant pressed only his claim for seniority over the 6th respondent and as the contention was well founded, the learned Single Judge, allowed the writ petition and issued a writ of mandamus directing the Government of India to modify the gradation list by showing the appellant as senior to the 6th respondent.
In the appeal to the Division Bench by the 6th respondent, the Division Bench took the view that since the prayer contained in the writ the petition was for the issue of a writ of mandamus directing respondents nos.
1 and 2 to forbear from implementing the provisional gradation list published alongwith the Government Order dated January 27, 1962 and as the appellant had not pressed the prayer for quashing of the list in so far as it related to the officers of Telengana region viz. respondents 3, 4, 5, 7 and 8, the writ petition should have been dismissed on that short ground and the question relating to the inter se seniority between the appellant and the 6th respondent ought not to have been decided.
The Division Bench allowed the writ appeal, set aside the order passed by the single Judge and dismissed the writ petition.
Allowing the appeal to this Court, 160 ^ HELD: In an action where a party has prayed for a larger relief it is always open to the Court to grant him any smaller relief that he may be found to be entitled to in law and thereby render substantial justice.
The Court can take note of changed circumstances and suitably mould the relief to be granted to the party concerned in order to mete out justice.
As far as possible the anxiety and endeavour of the Court should be to remedy an in justice when it is brought to its notice rather than deny relief to an aggrieved party on purely technical and narrow procedural grounds.
[162 G 163 A] In the instant case the writ petition contained the prayer for the quashing of the gradation list in so far as it related to the inter se ranking of the appellant vis a vis respondents nos.
3 to 8 and the appellant had also sought the issuance of a writ of mandamus directing respondents nos.
1 and 2 to forbear from implementing or acting upon the said gradation list.
Subsequent to the institution of the writ petition the Central Government had refixed the ranks of respondents nos.
3, 4, 5, 7 and 8 and placed them below the appellant thereby redressing the grievance of the appellant in so far as it pertained to the ranking of the said respondents.
It, therefore, became unnecessary for the appellant to pursue his claim for relief with respect to the ranks assigned to those five respondents.
It was under those circumstances that the appellant submitted before the single Judge at the time of final hearing of the writ petition that he was pressing the writ petition only in so far as it related to his claim for seniority over the 6th respondent.
This will not operate to preclude him from seeking a lesser relief namely the quashing of the list only in so far as it pertains to the fixation of the inter se seniority between himself and the 6th respondent.
[162 B F]
|
Here's a two-paragraph summary of the court case:
The case revolves around the fixation of seniority between an officer of the Forest Department, B. Parthasarthi (appellant), and another officer, the 6th respondent, who both belonged to the Andhra Cadre. The appellant challenged the provisional integrated gradation list of Forest officers, which showed the 6th respondent as senior to him. The High Court's single judge allowed the writ petition and directed the State Government and the Government of India to modify the gradation list to show the appellant as senior to the 6th respondent. However, the Division Bench of the High Court set aside this order, holding that the writ petition should have been dismissed as it did not seek to quash the gradation list in its entirety.
The Supreme Court, however, disagreed with the Division Bench's reasoning and held that the appellant's prayer for seniority over the 6th respondent was a legitimate aspect of the writ petition. Although the original petition sought the quashing of the gradation list in its entirety, the Central Government had already addressed the appellant's grievances regarding the ranking of officers from the Telengana region. The Court held that the appellant's prayer for seniority over the 6th respondent was a separate issue that could be considered, even though the petition did not specifically seek to quash the list in its entirety. The Court set aside the Division Bench's judgment and remanded the matter for fresh disposal.
|
ivil Appeal No. 3284 of 1992 From the Judgement and Order dated 18.2.1992 of the Delhi High Court in Civil Writ Petition No. 2259 of 1991.
R.K. Garg, K.L. Vohra, Rajeev Sharma and D.K. Garg for the Appellants.
Arun Jaitley, V.B. Saharya, Ashok Bhan and B.K. Prasad for the Respondents.
The Judgement of the Court was delivered by SHARMA,J. Heard the learned counsel for the parties.
Special leave is granted.
The respondents in this appeal have successfully invoked the jurisdiction of the High Court under Article 226 of the Constitution for enforcement of a private right to immovable property against the appellants who are two brothers and who are resisting the claim.
The question is as to whether the writ jurisdiction in the High Court is available for the enforcement of such a right claimed by and against private individuals.
906 3.
The dispute relates to a house property in Delhi.
A suit for eviction of the appellants from the building is pending in the trial court.
According to the case of the respondent No. 1, who is the owner of the property, she had let out the same to one Shri B.K. Pandey who later illegally handed over the possession thereof to the appellant no.1.
According to the further case of the respondent, the portion of the said house property which is subject matter of the present case is beyond the purview of the pending suit.
The occasion for initiating the present proceeding with respect to this portion arose, it is said, on account of the high handedness of the appellants who illegally trespassed beyond the area which is the subject matter of the pending suit, and indulged in several illegal activities.
In other words, the appellants are trespassers and are guilty of mischievous conduct.
However, instead of filing a suit in the civil court or making an appropriate prayer for amendment of her plaint in the pending suit, she through respondent no.2 holding power of attorney, approached the High Court directly by a writ petition under Article 226 for issuance of appropriate direction restraining the appellants from disturbing the lawful possession of the respondents.
The Delhi Administration and the Commissioner of Police, Delhi, were also impleaded as parties with a prayer that appropriate order should be issued against them also and they should be directed not to register any further false and vexatious complaint against them at the instance of the appellants.
It is her case that the appellants have been getting undue police help and are being encouraged to commence frivolous criminal cases against respondent no.1 and her agent.
The appellants denied the allegations of fact made against them and also challenged the maintainability of the writ petition.
Although the fact that a suit between the parties was already pending in the civil court was known to the High Court, it proceeded to pass a short order stating: "There is already a civil suit pending between the parties.
Except the prayer in regard to access to the backyard, no other relief can be granted in this writ petition.
We direct respondents 3 and 4 to remove the grill for access 907 to the backyard in the presence of the police and representatives of the petitioners on Sunday, 23rd February 1922 at 11.00 a.m. so that the access of the petitioner to the servants quarters is not stopped." 6.
Mr. Arun Jaitley, the learned counsel appearing on behalf of respondent No. 1 has supported the impugned judgement on the ground that prayer for issuing a direction against Delhi Administration and Commissioner of Police who were respondent nos.
1 and 2 was also made.
It has to be appreciated that the present appellants were respondent nos.
3 and 4 before the High Court; and the High Court has by the impugned order, considered it fit to allow the prayer of the respondents against them for removal of the grills for access to the backyard.
According to the stand of the landlord respondent, since the police were taking a partisan attitude against her, the filing of a writ petition became necessary.
We are unable to follow this argument.
There is no doubt that the dispute is between two private persons with respect to an immovable property.
Further, a suit covering either directly a portion of the house property which is in dispute in the present case or in any event some other parts of the same property is already pending in the civil court.
The respondent justifies the step of her moving the High Court with a writ petition on the ground of some complaint made by the appellants and the action by the police taken thereon.
We do not agree that on account of this development, the respondent was entitled to maintain a writ petition before the High Court.
It has repeatedly been held by this court as also by various High Courts that a regular suit is the appropriate remedy for settlement of disputes relating to property rights between private persons and that the remedy under Article 226 of the constitution shall not be available except where violation of some statutory duty on the part of a statutory authority is alleged.
And in such a case, the court will issue appropriate direction to the authority concerned.
If the grievance of the respondent is against the initiation of criminal proceedings, and the orders passed and steps taken thereon, she must avail of the remedy under the general law constitutional jurisdiction to be used for deciding disputes, for which remedies, under the general law, civil or criminal, are available.
It is not intended to replace the ordinary remedies by way of a suit or application available to a litigant.
908 The jurisdiction is special and extra ordinary and should not be exercised casually or lightly.
We, therefore, hold that the High Court was in error in issuing the impugned direction against the appellants by their judgement under appeal.
The appeal is accordingly allowed, the impugned judgement is set aside and the writ petition of the respondents filed in the High Court is dismissed.
There will be no order as to costs.
G.N. Appeals allowed.
|
During the pendency of a suit for eviction of the appellants from the property of Respondent No.1, the appellants were alleged to have trespassed beyond the area which was the subject matter of the suit and indulged in several illegal activities.
Thus according to Respondents, the appellants were guilty of mischievous conduct.
The Respondents instead of filing a suit in the Civil Court or making appropriate prayer for amendment of the plaint in the pending suit field a Writ Petition before the High Court for issuance of appropriate direction retraining the appellants from disturbing the lawful possession of the respondents.
The Administration and Commissioner of Police were also impleaded as parties and a direction sought against them not to register any further false and vexatious complaints against the Respondents since undue Police help to the appellants was apprehended.
The High Court gave certain directions to the appellants as regards Respondents ' access to the backyard.
The present appeal by special leave, is against the said orders of the High Court.
On the question whether the Writ jurisdiction of High Court would be available for enforcement of a private right to immovable property claimed by and against private individuals: Allowing the appeals, this Court HELD: 1.
A regular suit is the appropriate remedy for settlement 905 of disputes relating to property rights between private persons and that the remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of statutory authority is alleged.
And in such a case, the Court will issue appropriate direction to the authority concerned.
[907 E, F] 2.
If the real grievance of Respondent No.1 is against the initiation of criminal proceeding and the orders passed and steps taken thereon, she must avail of the remedy under the general law including the Criminal Procedure Code.
The High Court cannot allow the constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal, are available.
It is not intended to replace the ordinary remedies by way of a suit or application available to a litigant.
The jurisdiction is special and extra ordinary and should not be exercised casually or lightly, [907 F H]
|
Here's a two-paragraph summary of the court case:
The case involves a dispute between two private individuals, the appellants (two brothers) and the respondents (a lady and her representative) over a house property in Delhi. The respondents claimed that the appellants had trespassed on the property and were guilty of mischievous conduct, and therefore, the High Court should issue a direction restraining the appellants from disturbing the lawful possession of the respondents. The respondents approached the High Court directly by a writ petition under Article 226 of the Constitution.
The Delhi High Court passed a short order directing the respondents to remove a grill for access to the backyard of the property. However, the Supreme Court held that the High Court was in error in issuing the impugned direction, as the dispute was between private individuals and a regular suit was the appropriate remedy for settlement of property rights disputes. The Supreme Court also held that the writ jurisdiction under Article 226 should not be exercised casually or lightly, and that the respondents should have availed of the remedy under the general law or civil or criminal law. The Supreme Court allowed the appeal, set aside the impugned order, and dismissed the writ petition.
|
End of preview. Expand
in Data Studio
README.md exists but content is empty.
- Downloads last month
- 20
Size of downloaded dataset files:
34.6 MB
Size of the auto-converted Parquet files:
34.6 MB
Number of rows:
3,946
Models trained or fine-tuned on satviksh09/hf_legal_dataset_legal_analysis