dedol-hf/india-case-legal-rag huggingface dataset:
conferred  by sub-section (1), an order made thereunder  may
provide-
    (j)  for any incidental and supplementary  matters,  in-
cluding in particular the entering, and search of  premises,
vehicles,  vessels  and aircraft, the seizure  by  a  person
authorised to make such search of any articles in respect of
which such person has reason to believe that a contravention
of  the order has been, is being, or is about to be  commit-
ted, the grant or issue of licences, permits or other  docu-
ments, and the charging of fees therefor."
    It  was  contended that an order under  sub-section  (1)
should  be in the nature of a rule or regulation of  general
application,  like  the  Sugar and  Sugar  Products  Control
Order, 1947, issued by the Central Government on 4th August,
1947,  as the sub-section confers on the Central  Government
only  the power to "provide for regulating  or  prohibiting"
the  production,  supply, distribution, etc.,  of  essential
commodities, and does not authorise the making of ad hoc  or
special  orders  with respect to any  particular  person  or
thing.   We  see no reason to place such a  restricted  con-
struction on the scope of the power conferred on the Central
Government.  The term "notified order" which is  defined  as
meaning "an
 40
308
order  notified in the official Gazette" is wide  enough  to
cover  special  as well as general orders  relating  to  the
matters  specified  in section 3. The power to  provide  for
regulating  or  prohibiting  production,  distribution   and
supply  conferred on an executive body may well include  the
power  to  regulate or prohibit by issuing directions  to  a
particular  producer or dealer or by requiring any  specific
act  to be done or forborne in regard to  production,  etc.,
and  the provisions of section 4 lend support to that  view.
The Central Government is empowered under the latter section
to  delegate its power to make orders under section 3,  sub-
ject to conditions to be specified, to any officer or subor-
dinate  authority  either  of the Central  or  a  Provincial
Government.   It would be strange, if, as contended for  the
appellant, a subordinate officer in charge, say, of a  small
area,  should, by delegation, exercise powers of a  legisla-
tive  character  in  relation to the  matters  specified  in
section 3, but should not have the power of issuing  special
orders concerning specific individuals or things.  We do not
think  that such a situation could have  been  contemplated.
The  power delegated under section 4 must, in  our  opinion,
include  the power of issuing directions to any producer  or
dealer  in  relation to production, etc., of  any  specified
essential commodity.  If so, the delegating authority itself
must  possess  such power under section  3.   For  instance,
section  7  of the Sugar and Sugar Products  Control  Order,
1947, made by the Central Government empowers the"  Control-
ler"  "to  issue  directions to any producer  or  dealer  to
supply sugar or sugar products" to  specified areas, persons
or  organisations.  This delegation is expressed to be  made
"in exercise of the powers conferred by sections 3 and 4" of
the  Act, but unless the Central Government itself  had  the
power  of issuing such directions under section 3, it  could
not  delegate that power to the Controller under section  4.
This view is reinforced by the language of section 15, which
contemplates  orders  under section 3 being made  against  a
particular  person,  for it speaks of "an order  made  under
section 3 which prohibits him (that
309
is, the person prosecuted for its contravention) from  doing
any  act  or being in possession of a thing  without  lawful
authority  etc."  The restricted construction of  section  3
contended  for by the appellant's counsel would  render  the
scheme of the Act largely unworkable, and we have no hesita-
tion in rejecting it.
    Even  so, it was argued, an order for seizure  could  be
made  only subject to the conditions and limitations  speci-
fied in clause (j) of sub-section (2) of section 3, that  is
to say, only where the person authorised in that behalf "has
reason  to  believe that a contravention of  the  order  [an
order made under sub-section (1)] has been, is being, or  is
about to be committed ".  In the present case, the order  of
5th December, 1947, directing the seizure of 5,000 maunds of
the company's sugar, in the execution of which the appellant
has  been found to have obstructed the officers of the  Pro-
vincial  Government, recited that the company was "about  to
commit a contravention of the order of the Chief  Controller
of Prices and Supplies, Bihar, made under cl. 7. (1) (ii) of
the Sugar and Sugar Products Control Order, 1947, and issued
in  order No. 1613 P.C.R. dated 27th September, 1947, in  so
far  as  the said order relates to the said  company".   The
latter 'order, while it directed the company, among  others,
"to supply sugar at the prices fixed to the approved dealers
of certain Districts", left it to the District or  Sub-divi-
sional Officer to fix quotas for the approved dealers of his
District or Sub-division from the District or Sub-divisional
allotment  and  to  inform the company when  and  where  the
supplies  are to be made.  It has been found by  the  courts
below  that  the  total quantity of sugar  which  the  order
required to be supplied was varied from time to time, and no
quotas  to approved dealers were ever fixed nor  information
sent to the company as to when and where supplies were to be
made.  The  order of the 27th September, 1947,  having  thus
remained  inchoate and incomplete and so incapable of  being
carried  out or contravened till the 5th December, 1947,  it
was submitted that no seizure and removal could be  lawfully
ordered on the basis of an anticipated contravention
310
of  such  an order, and that the officers concerned  in  the
illegal  and  unauthorised  removal of the  sugar  were  not
acting in the discharge of their public functions. Reference
was made in this connection to the decisions of the Calcutta
High  Court  in Lilla Singh v. Queen  Empress(1)  and  Queen
Empress v. Jogendra Nath Mukerjee(2) where it was held  that
the  public  function  in the discharge of  which  a  public
servant  was  obstructed  must be a  legal  or  legitimately
authorised  function,  in order that the  obstruction  might
constitute an offence under section 186 of the Indian  Penal
Code.  On the other hand, counsel for the  respondent  main-
tained  that  for an offence under that section it  was  not
necessary  that  the act which was obstructed must  be  duly
authorised and otherwise lawful if it was being done or  was
sought  to be done by a public servant honestly and in  good
faith  believing that it was part of his  public  functions,
and  reliance  was  placed in support of this  view  on  the
decisions  of  the  Madras High Court in  Queen  Empress  v.
Poomalai  Udayan(3),  Public Prosecutor  v.  Madava   Bhonjo
Santos(4)  and Peer Masthan Rowther v. Emperor(5). We  think
it  is  unnecessary for the purpose of this appeal  to  pro-
nounce on the true scope of section 186 of the Indian  Penal
Code as we are of opinion that the appellant's argument must
fail on another ground.
    It is manifest that sub-section (2) of section 3 confers
no  further  or other  powers  on  the   Central  Government
than what are conferred under sub-section (1), for it is "an
order made thereunder" that may provide for one or the other
of  the matters specifically enumerated in  sub-section  (2)
which are only illustrative, as such enumeration is "without
prejudice to the generality of the powers conferred by  sub-
section (1)" Seizure of an article being thus shown to  fall
within the purview of sub-section (1), it must be  competent
for  the Central Government or its delegate, the  Provincial
Government, to make an order for seizure under
(1) I.L.R. 22.               (4) 31 M.L.J. 505.
(2) I.L.R. 24 Cal. 320.      (5) 1938 M. W. N. 418.
(3) I.L.R. 21 Mad. 296.
311
that sub-section apart from and irrespective of the  antici-
pated  contravention of any other order as  contemplated  in
clause  (j) of sub-section (2). The order' of 5th  December,
1947, must, therefore, be held to be a valid order, notwith-
standing  its reference to the order of the 27th  September,
1947, as being about to be contravened.  If the latter order
was incomplete and inoperative and consequently there  could
be  no question  of  its  contravention,  as  contended  for
the  appellant, the reference to it in the order  dated  the
5th  December, 1947, would be an immaterial  redundancy  and
could  not  affect  the validity of the  latter  order.  The
seizure of the company's sugar must, therefore, be  regarded
as  duly  authorised and lawful, and the  appellant  by  ob-
structing  its removal, committed an offence  under  section
186 of the Indian Penal Code even on the stricter  construc-
tion placed on that provision by the Calcutta High Court.
    The  view we have expressed above receives support  from
the  decision  of the Privy Council  in  Sibnath  Banerjee's
case(1). Section 2(1) of the Defence of India Act, 1939,  as
amended  by  section 2 of the Defence of  India  (Amendment)
Act,  1940, empowered the Central Government to  make  rules
for securing the defence of British India, the public  safe-
ty,  the  maintenance of public  order,   etc.,   and   sub-
section   (2)  enacted "without prejudice to the  generality
of  the powers conferred by sub-section (1), the  rules  may
provide for all or any of the following matters  ......   ".
Among such matters was the detention of any person "reasona-
bly suspected" of having acted etc.  in a manner prejudicial
to  the  public safety etc.  [clause (x)]. Rule  26  of  the
Rules  made under the section, however, authorised the  Gov-
ernment to detain a person "if it is satisfied" that it  was
necessary  to  detain him with a view to  prevent  him  from
acting  prejudicially..'   .....The Federal Court  held  (2)
that  this rule was ultra vires as it Went beyond the  scope
of clause (x) in that it left it to the satisfaction of  the
Government  to  decide whether or not it  was  necessary  to
detain a
(1)  [1945]  F. C. R.195; 72 I. A.241,  248.     (2)  [1944]
F.C.R. 1.
312
person,  The  decision  was reversed  and  Lord  Thankerton,
delivering  the  judgment of the Board,  observed:  "In  the
opinion of their Lordships, the function of subsection(2) is
merely  an illustrative one; the rule-making power  is  con-
ferred  by  sub-section (1), and "the rules" which  are  re-
ferred to in the opening sentence of subsection (2) are  the
rules  which are authorised by, and made under,  sub-section
(1);  the provisions of sub-section (2) are not  restrictive
of  sub-section(1),  as, indeed is expressly stated  by  the
words  "without prejudice to the generality  of  the  powers
conferred  by sub-section (1)".  "There can be no  doubt--as
the learned Judge himself appears to  have thought--that the
general  language  of sub-section (1)  amply  justifies  the
terms of rule 26, and avoids any of the criticisms which the
learned Judge expressed in relation to subsection (2)".
    This accords with our view of the effect of  subsections
(1) and (2) of section 3 of the Act.
    The  appeal is dismissed.  The appellant's bail bond  is
cancelled and he is ordered to surrender.
                     Appeal dismissed.
     Agent for the appellant: Rajinder Narain.
     Agent for respondent and Intervener: P.A. Mehta.
PETITIONER:
V. RAMASWAMI AYYANGAR AND OTHERS
        Vs.
RESPONDENT:
T.N.V. KAILASA THEVAR.
DATE OF JUDGMENT:
05/03/1951
BENCH:
SASTRI, M. PATANJALI
BENCH:
SASTRI, M. PATANJALI
CITATION:
 1951 AIR  189
 CITATOR INFO :
 D          1969 SC  69  (6)
ACT:
    Madras'  Agriculturists' Relief Act (IV of 1938), ss.  7,
19--Joint debtors--Application for scaling down made by some
only--Decree for full amount against ex parte defendants and
for   reduced  amount.  against  others--Legality  and   ef-
fect--Indivisibility  of  debt--Payment of  full  amount  as
sealed down--Whether  extinguishes decree against all.
HEADNOTE:
    Under  the  Madras Agriculturists' Relief Act,  1938,  a
mortgage decree can be sealed down in favour of some of  the
judgment  debtors alone, while as regards the others  it  is
kept intact.
    In  a suit to enforce a mortgage executed  by  defendant
No.  1 on his own behalf and on behalf of defendants Nos.  2
to 7, the defendant No. 1 remained ex parte, and the  others
contested the suit.  A decree for Rs. 1,08,098 was passed by
the  trial  court. The Madras  Agriculturists'  Relief  Act,
1938, was passed during the pendency of an appeal and  cross
appeal,  and  on the application of defendants Nos. 2  to  7
under the said Act the amount of the decree was sealed  down
to  Rs.  49,255 so far as defendants Nos. 2 to 7  were  con-
cerned.  So far as defendant No. 1 was concerned the  decree
for  the  full amount remained as it was.  Defendant  No.  1
thereupon applied for scaling down, but his
293
application was rejected.  Defendants Nos. 2 to 7  deposited
certain amounts and got their properties released.   Defend-
ant No. 1 deposited the balance of the amount that  remained
due  under the decree as scaled down on the  application  of
defendants Nos. 2 to 7, and prayed that full satisfaction of
the decree may be recorded.  The Subordinate Judge  rejected
this  application      but the High Court, on  appeal,  held
that defendant No. 1 was     entitled to the benefit of  the
scaling  down  in favour of defendants Nos. 2 to 7,  as  the
mortgage debt was one and indivisible.  On further appeal:
    Held, that the ratio decidendi of the cases in which  it
was held that a purchaser of mortgaged properties was  enti-
tled to the benefit of a decree which has been scaled  down,
even  though the purchaser himself was not an  agriculturist
was  not applicable to the present case.  According  to  the
plain  provisions  of the Act, there was no objection  to  a
decree for a reduced amount being passed against an agricul-
turist  debtor,  while the same relief is not given  to  his
co-debtors,  and defendant No. 1 was not entitled  to  claim
the benefit of the scaling down of the decree debt in favour
of defendants No. 2 to 7.
    Judgment of the Madras High Court reversed.
Ramier  v. Srinivasiah ( [1940] 2 M.L.J. 872)  referred  to.
Arunachalam  Pillai  v. Seetharam   (119413  1-M.L.J.  561),
Pachigola v. Karatam ( [1942] 1 M.L.J. 506), Subramaniam  v.
Ramachandra ( [1946] 2 M.L.J. 429) distinguished.
JUDGMENT:
    CIVIL APPELLATE JURISDICTION:  Appeal  (Civil Appeal No.
32 of 1950), from a judgment and order of the High Court  of
Judicature  at Madras dated 5th January, 1948, reversing  an
order  of the District Judge of East Tanjore in an  applica-
tion  under s. 47 and O. XXI, r. 2, of the  Civil  Procedure
Code.
R.K. Kesava Aiyangar (T. K. Sundararaman, with him)  for
the appellants.
S. Ramachandra Aiyar for the respondent.
    1951.  March 5.  The judgment of the Court was delivered
by
    MUKHERJEA  J.--This appeal is on behalf of  the  decree-
holders  in  a mortgage suit and it is  directed  against  a
judgment  and order of a Division Bench of the  Madras  High
Court dated January 5, 1948, by which the
294
learned Judges reversed, on appeal, an order of the
District  Judge of East Tanjore made in a  proceeding  under
section  47  and Order 21, rule 2, of  the  Civil  Procedure
Code.
    The  material  facts are not in controversy and  may  be
briefly stated as follows.  The appellants before us are the
representatives of three original plaintiffs who, as mortga-
gees,  instituted a suit (being O.S. No. 30 of 1934) in  the
Court  of the District Judge, East Tanjore, for  enforcement
of  a  mortgage,  against the present  respondent,  who  was
defendant  No.  1 in the suit, and six  other  persons.  The
mortgage bond, upon which the suit was brought, was executed
by  defendant  No.  1 for himself and  his  minor  undivided
brother,  the defendant No. 2, and also as authorised  agent
on  behalf  of defendants 3 to 7 who  were interested  in  a
joint  family  business. The suit was contested by  all  the
defendants except defendant No. 1, against whom it proceeded
ex  parte, and there was a preliminary decree passed on  May
15,1937,  by which a sum of RS. 1,08,098 was directed to  be
paid by defendant No.1  and defendants 3 to 7, in default of
which  the plaintiffs were declared entitled to apply for  a
final decree for sale of the mortgaged properties, and   the
suit  was  dismissed against defendant No. 2.  Against  this
decree, two appeals were taken to the Madras High Court, one
by  defendants  3  to 7--being Appeal No.  48  of  1938--who
contended  that the mortgage was not binding on them  or  on
their shares in the joint family property; and the other  by
the  plaintiffs--being  Appeal No. 248 of 1938  --who  chal-
lenged  the propriety of the judgment of the trial judge  in
so far as it dismissed their claim against defendant No.  2.
During the pendency of these appeals, the Madras Agricultur-
ists' Relief Act (Act IV of 1938) came into force and appli-
cations  were made by defendants 2 to 7 to the  High  Court,
praying  that in the event of a decree being passed  against
them,  the decretal debt might be scaled down in  accordance
with the provisions of the Act. The defendant No. 1, who did
not appear at any stage of the proceeding, did not make  any
such application. The High Court forwarded
295
these  applications to the lower court for enquiry into  the
matter  and for return, with its finding on the question  as
to whether the applicants were agriculturists, and if so, to
what  extent, the decretal dues should be scaled down.   The
District Judge,' after making enquiries, submitted a finding
that  the applicants were agriculturists and that the  debt,
if  scaled down, would amount to Rs. 49,255  with   interest
thereupon at 6% per annum from 1st of October, 1937,  exclu-
sive of costs.  On receipt of this finding, the appeals were
set down for final hearing and by their judgment dated March
23, 1942, the learned Judges of the High Court accepted  the
finding  of the court below and held that defendants 2 to  7
were  entitled  to  have the debts scaled down;  but  as  no
application  had been made on behalf of defendant No. 1,  he
was  held entitled to no relief under the Act. A decree  was
drawn  up in accordance with the  judgment.  The amount  due
by defendants 2 to 7 was stated to be Rs. 49,255 with inter-
est thereon at 6% per annum; while, so far as defendant  No.
1 was concerned, the decree of the trial judge was  affirmed
subject  to  a slight modification  regarding  the  rate  of
interest.   The defendant No. 1 thereupon filed an  applica-
tion  in  the  court of the District  Judge,  East  Tanjore,
claiming relief under the Agriculturists' Relief Act  alleg-
ing  that he too was an agriculturist and hence entitled  to
the  benefits of the Act.  The application was dismissed  on
February  25,  1943, on the ground that as  the  decree  had
already been passed by the High Court definitely  negativing
his  claim  to any relief under the  Agriculturists'  Relief
Act,  such  application was not entertainable by  the  lower
court.  The  next step taken by the defendant No. 1  was  to
file  an application in the High Court itself,  praying  for
setting  aside the ex parte decree which excluded  him  from
the  benefits of Act IV of 1938.  This application  was  re-
jected by the High Court on December 13, 1943.
    As  no payment was made in accordance with the  prelimi-
nary  decree  passed by the High Court, a  final  decree  in
terms of the  same  was passed by the
296
District  Judge  on  September 25,  1943.'  Proceedings  for
execution  of this  final decree were started on August  16,
1944, in E.P. 2 of 1945 of the court of the District  Judge,
East Tanjore.  Two lots of the mortgaged properties were put
up  to sale and purchased by the decree-holders for a  total
sum  of  Rs. 12,005 on July  15,  1946.  The sale  was  con-
firmed   on  August 17, 1946, and part satisfaction  of  the
decree  was entered for that  amount.   Apparently,  certain
terms   of  settlement  were  thereafter  offered   by   the
judgment-debtors.  The estate of the decree-holders  was  in
the  hands of the Receivers and from the  Receivers'  report
dated January 10, 1947, it appears that the Receivers agreed
with  the sanction of the court, to receive Rs. 24,000  only
from or on behalf of defendant No. 2 and release him and his
share  of the mortgaged property from the  decretal  charge.
Likewise, the Receivers were agreeable to receive Rs. 48,000
from defendants 3 to 7 and to release them and their proper-
ties from the decretal debt. With regard to defendant No. 1,
the  proposal,  which  seems to have been  accepted  by  the
Receivers,  was  that the amount payable by  him  under  the
decree  was to be settled at Rs. 37,500 and one Yacob  Nadar
would 'pay this amount on his behalf on consideration of the
decree against defendant No. 1 being assigned to him by  the
Receivers excluding the rights of the latter to execute  the
decree against defendants 2 to 7 as scaled down by the  High
Court.
    The  records of the execution case show that on  January
20, 1947, a sum of Rs. 24,000 was paid on behalf of  defend-
ant  No.  2; and his properties, namely, lots 2 and  6  were
exonerated  from the decree.  On January 27, 1947, a sum  of
Rs. 30,000 was paid by defendants 3 to 7 and on February  17
following, they paid a further sum of Rs. 18,610-12-0. These
three  amounts aggregated to Rs. 72,610-12-0.   Nothing  was
done towards the payment of the sum of Rs. 37,500 by defend-
ant  No.  1  or by Yacob Nadar, but on March  6,  1947,  the
defendant  No. 1 deposited in court a sum of Rs.  3,215  and
put in a petition under section 47 and
297
Order 21, rule 2, Civil Procedure Code, praying that as  the
amount  thus  deposited together with the  payments  already
made completely wiped off the amount due under the decree as
scaled  down by the High Court in favour of defendants 2  to
7, full satisfaction of the decree might be recorded exoner-
ating the mortgaged properties and also the defendant No.  1
himself from any further liability in respect of the  decre-
tal debt.
    The position taken up by defendant No. 1, in  substance,
was that the mortgage debt was one and indivisible and  even
though  different amounts were mentioned as payable  by  two
groups of defendants in the decree, the decree-holders  were
bound  under the terms of the decree to release  the  entire
mortgaged property even on payment of the amount directed to
be  paid by defendants 2 to 7. In other words,  even  though
the  defendant  No. 1 's application for  relief  under  the
Madras Agriculturists' Relief Act was expressly rejected and
he  was  held liable for the entire amount of  the  mortgage
debt,  he  would still be entitled to avail himself  of  the
benefit  of  the  scaling down of the decree  in  favour  of
defendants  2  to 7.  This contention was negatived  by  the
District  Judge,  but  was accepted by the  High  Court   on
appeal, who allowed the application  of defendant No. 1  and
directed that the court below should enter up full satisfac-
tion  of  the mortgage decree. It is against  this  judgment
that  the  decree-holders  have come up on  appeal  to  this
court.
The  learned  Judges of the High Court observed  at  the
outset  that  in the working of the  Madras  Agriculturists'
Relief  Act  alongside  the provisions of  the  Transfer  of
Property Act several curious and novel situations had arisen
for  which it was not possible always to find logical  solu-
tions. They then proceeded to discuss the various  decisions
of  the Madras High Court which had a bearing on this  point
and  the conclusion which they reached may be summed  up  in