dedol-hf/india-case-legal-rag huggingface dataset:
PETITIONER:
JANARDAN REDDY AND OTHERS
        Vs.
RESPONDENT:
THE STATE.
DATE OF JUDGMENT:
14/12/1950
BENCH:
KANIA, HIRALAL J. (CJ)
BENCH:
KANIA, HIRALAL J. (CJ)
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
AIYAR, N. CHANDRASEKHARA
CITATION:
 1951 AIR  124            1950 SCR  940
 CITATOR INFO :
 F          1953 SC 221  (8)
 F          1957 SC 540  (25)
 RF         1963 SC1464  (11)
 D          1973 SC 827  (14)
ACT:
Constitution  of India, Arts. 134, 136,  374(4)--Special
leave  to  appeal--Judgment of Hyderabad High  Court  passed
before 26th Jan. 1950--Application for special  leave--Main-
tainability--Pendency of application for leave to appeal  to
Judicial  Committee of Hyderabad when new constitution  came
into  force,  effect  of--Scope of Art.  136-"Any  court  or
tribunal  in  the territory of  India  "--Interpretation  of
statutes--Presumption  of  prospective  operation--Right  to
appeal.
HEADNOTE:
The petitioners, who were convicted and sentenced
to  death   by a special tribunal in  the  Hyderabad  State,
preferred appeals to the High Court of Hyderabad which  were
dismissed,  and  the applied to the High Court on  the  21st
Jan.,  1950, for leave to appeal  to the Judicial  Committee
of  Hyderabad against the judgments of  the High Court.   On
the  96th  Jan., 1950, the Constitution of India  came  into
force and under the Constitution, Hyderabad became a part of
India, the Judicial Committee of Hyderabad ceased exist, and
all appealls and other proceedings pending before that
 941
Committee  stood transferred to the Supreme Court of  India.
The  applications of the petitioners were amended so  as  to
make  them applications under Art. 134 of the  Ccnstitution,
but they were dismissed on the ground that no such petitions
lay  under Art.134 and also on the merits.  The  petitioners
thereupon made an application to the Supreme Court of  India
under  Art.  136 of the Constitution for  special  leave  to
appeal:
    Held  that,  inasmuch as Art. 136 confers power  on  the
Supreme Court to grant special leave to appeal only from any
judgment,  decree, sentence or order passed or made by  "any
court  or tribunal in the territory of India," and the  Hyd-
erabad High Court was not a Court in the territory of  India
when  the judgments in question were pronounced the  Supreme
Court had no jurisdiction to grant special leave.
    Art. 136 cannot be so construed as to apply to judgments
or  orders pronounced be[ore Hyderabad became part of  India
and  to confer a right of appeal inferentially,  merely  be-
cause the petitioners had a right to appeal to the  Judicial
Committee of Hyderabad when the Constitution came into force
and  they had been deprivecd of this right by the  abolition
of  that Committee without making a provision enabling  them
to appeal to the Supreme Court.
JUDGMENT:
APPELLATE  JURISDITION  (Criminal)  :Criminal  Miscellaneous
Petitions Nos. 71 to 73 of 1950.
    Petitions under Art. 136 of the Constitution praying for
special leave to appeal to the Supreme Court from the orders
of the High Court of Judicature at Hydrabad dated 12th, 13th
and 14th Dccember, 1949, dismissing the appeals prcferred by
the  petitioners against orders of the Special  Tribunal  of
Hyderabad  convicting them of murder and sentencing them  to
death.   The  material facts and arguments  of  the  counsel
appear from the judgmcnt.
    D.N.  Pritt  (K. B. Asthana, Daniel Latifi,  Bhawa  Shiv
Charan Singh and A.S. R. Chari, with him) for the  petition-
ers.
    M.C. Setalvad,  Attorney-General for India, and Raja Ram
Iyer (G. N. Joshi, with them) for the respondent.
    1950. December 14.  The Judgment of the Court was deliv-
ered by
    KANIA C.J.---These are three criminal miscellaneous  Kan
petitions asking for special leave to appeal to the
942
Supreme  Court  under  article 136 of  the  Constitution  of
India.
   All  the accused were charged with being members of  the
Communist  Party  wedded to the policy of  overthrowing  the
existing Government at Hyderabad by violence and  establish-
ing  in  its place a communist regime.  It is  alleged  that
they demanded subscriptions towards their communist  organi-
zation  and  some of the villagers who did  not  meet  their
demands  were abducted  on  the  21st of   September,  1948,
and  murdered.   They  were charged  with  various  offences
including murder before a special tribunal established under
the  regulations promulgated by the Military Governor  under
the  :authority  of  H.E. 'H. the Nizam  and  convicted  and
sentenced  to  death on the 9th, 13th and  14th  of  August,
1949,  by separate judgments. The petitioners appealed  from
those  judgments  to  the Hyderabad High Court and the  High
Court,by its judgments dated the 12th, 13th and 14th  Decem-
ber,  1949, respectively, dismissed the appeals.  The  peti-
tioners  applied  to  the High Court for  a  certificate  to
appeal  to the Judicial Committee of the Hyderabad State  on
the 21st of January, 1950.  It appears that H.E.H. the Nizam
issued a firman on the 23rd of November, 1949, stating  that
the  proposed  Constitution of India was  suitable  for  the
government  of Hyderabad and he accepted it as the Constitu-
tion  of the Hyderabad State as one of the States of Part  B
in  the  First Schedule. On the 26th of January,  1950,  the
Constitution  of  India became applicable to  the  Union  of
India and the Part B States. 'the petitions originally filed
for  a certificate for leave to appeal to the Judicial  Com-
mittee of the Privy Council of the Hyderabad State were,  by
leave  of the Court, amended, and made into petitions  under
article 134 of the Constitution of India.  A Division  Bench
of the High Court at Hyderabad considered the petitions  and
dismissed  them  on the ground that no  such  petitions  lay
under article 134 and they also declared that on the  merits
no case was made out for a certificate as asked by the peti-
tioners.  The petitioners have now filed their petitions  to
this Court under
943
article 136 of the Constitution of India, for special  leave
to  appeal  from the judgments of the High Court  dated  the
12th,  13th and 14th of December, 1949.
Two questions arise for consideration.  The first is, wheth-
er  any  application under article 136,  under  the  circum-
stances of the case, can be made to the Supreme Court,  and,
the  second is, whether on a consideration of the facts,  if
it  has jurisdiction to entertain the petitions,  the  Court
should grant special leave.  The first question  depends  on
the  construction of the relevant articles in the  Constitu-
tion  of India. Under article 374 (4) on and from  the  com-
mencement  of  this  Constitution the  jurisdiction  of  the
authority functioning as the Privy Council in a State speci-
fied  in Part B to the First Schedule to entertain and  dis-
pose  of  appeals and petitions from or in  respect  of  any
judgment,  decree  or order of any court within  that  State
ceased, and all appeals and other proceedings pending before
the said authority at such commencement stand transferred to
and have to be disposed of by the Supreme Court.  This  sub-
clause thus abolishes the jurisdiction of the Privy  Council
of  the Hyderabad State and after the Constitution of  India
came  into force that body and its  jurisdiction  altogether
ceased.  On  the  facts before us, it is clear  that  as  no
proceeding  or appeal in respect of these judgments  of  the
Hyderabad High Court was pending before the Hyderabad  Privy
Council before its abolition, nothing got transferred to the
Supreme Court by operation of this subclause.
    It  was argued on behalf of the petitioners that on  the
25th January, 1950, they had a right to move the High  Court
at Hyderabad for a certificate granting them leave to appeal
to  the Privy Council of the Hyderabad State. In  fact  such
petitions were pending on that day.  It was therefore argued
that a right to appeal which existed on the 25th of January,
1950, cannot be impliedly taken away by the Constitution  of
India being  made applicable  to  the State of Hyderabad. It
was  pointed out that in respect of convictions all  persons
who had rights of appeal, or
944
who  had time to file their applications for a  certificate,
as  also  persons whose petitions were  pending  before  the
Hyderabad High Court asking for such certificates and  which
had  not been disposed of because of the congestion of  work
in  the High Court would lose their right to appeal  to  the
higher court if article 136 is not construed so as to give a
right  of  appeal  to the Supreme Court of  India.   It  was
pointed out by the Attorney General, appearing on behalf  of
the  State, that if a wide construction is given to  article
136  it  will not only permit persons who are stated  to  be
under such hardship to apply for leave under article 136 but
several  other  rights will be created.   Such  rights  will
arise not only in criminal cases but in civil cases also and
they  can  be  exercised without any limitation  as  to  the
period within which the application has to be made, with the
result that old judgments may also be called into  question.
Moreover,  on the wider construction of article  136,  judg-
ments which had become final in those States in which  there
existed  no  court like the Privy Council  to  whom  appeals
could lie from the judgments of their High Courts, x,viIi be
subject to appeal though no such appeal lay before.  It  was
therefore  argued  that  on the ground  of  convenience  the
balance  if at all. is against the argument advanced by  the
petitioners.  It was strenuously urged that this is a  wrong
approach  to the question altogether.  Articles of the  Con-
stitution  have  to be construed according  to  their  plain
natural meaning and cases of hardship should not be  brought
to bear on the natural construction.  Hard cases should  not
be permitted to make bad law. In our opinion, this  argument
of  the Attorney-General is sound. The question of  hardship
cannot  be  and  should not be allowed to  affect  the  true
meaning of the words used in the Constitution.  It is there-
fore proper to approach the articles irrespective of consid-
erations of hardship.
    In  order to decide whether on the facts of  this  case,
the  Supreme Court has jurisdiction to grant special  leave,
it is necessary only to consider articles 133, 134, 135  and
136  of  the Constitution of India.  Article  133,  in  sub-
stance, retains the old provisions of the Civil
    945
Procedure  Code in respect of appeals to the  Privy  Council
from High Courts in civil matters.  Under article 134, it is
provided that an appeal shall lie to the Supreme Court  from
any judgment, final order or sentence in a criminal proceed-
ing  of a High Court in the territory of India if  the  High
Court.........  (then follow three contingencies under which
such  appeals can lie),  In article 133 also the  words  "in
the territory of India" are used.  Article 135 provides  for
matters  to which the provisions of articles |33 or  134  do
not  apply.  It is there provided that until  Parliament  by
law  otherwise provides, the Supreme Court shall  also  have
jurisdiction and powers with respect to any matter to  which
the provisions of article 133 or 134 do not apply, if juris-
diction and powers in relation to that matter were exercisa-
ble by the Federal Court immediately before the commencement
of  this Constitution under any existing law.  This  article
was included in the Constitution to enable the Supreme Court
to exercise jurisdiction in cases which were not covered  by
articles 133 and 134, in respect of matters where the Feder-
al Court had jurisdiction to entertain appeals etc. from the
High  Courts  under the previously existing  law.   This  is
obviously  a  provision  to vest in the  Supreme  Court  the
jurisdiction enjoyed by the Federal Court, under the  Aboli-
tion  of  Privy Council Jurisdiction Act, 1949.  It  may  be
mentioned  that  the jurisdiction of the  Privy  Council  to
entertain appeals from High Courts, except those which  were
already  pending  before it on the 10th  October  1949,  was
taken away by this Act.  Provision had therefore to be  made
in  respect of appeals which were already pending or   which
were  not covered by the provisions of articles 133 and 134.
Article  136 of the Constitution of India is in these  terms
:--
    "136.   (1) "Notwithstanding  anything in this  Chapter,
the  Supreme  Court may, in its  discretion,  grant  special
leave  to appeal from any judgment,  decree,  determination,
sentence  or order in any cause or matter passed or made  by
any Court or tribunal in the territory of India."
121
946
    (2)  ............."
    The expression "territory of India" is defined in  arti-
cle 1 in these terms
      "1.  The territory of India shall comprise
    (a)  the territories of the States (meaning  the  States
mentioned in Parts A, B and C of the First Schedule),
        (b) the territories specified in Part D of the First
Schedule, (viz., The Andaman and Nicobar Islands) and
     (c)  such other territories as may be  acquired."  The'
question  for consideratioh is whether on the facts  of  the
present  case the Supreme Court can grant special  leave  to
appeal  from a judgment, sentence or order which was  passed
and  made by the Hyderabad High Court before  26th  January,
1950.  The  important fact to be borne in mind is  that  the
Hyderabad  courts were not courts within the.  territory  of
India when they pronounced their judgments on the 12th, 13th
and  14th of December, 1949. It is argued on behalf  of  the
petitioners  that a narrow construction will take  away  the
valuable  rights of appeal which had existed in  persons  in
the  position of petitioners when the Constitution of  India
was  directed  by H.E.H. the Nizam by his firman to  be  ap-
plicable  to  the Hyderabad State on the  26th  of  January,
1950,  it  should be held that as no substantive  right  was
provided in the Constitution separately, the words of  arti-
cle 135 were wide enough to give such right to the petition-
ers.   On the other hand, it was then argued by the  learned
Attorney   General  that  every  legislation  is   primarily
prospective and not retrospective.  A right of appeal has to
be  given specifically by a statute and it is not  merely  a
procedural  right.   If therefore there exists no  right  of
appeal under the Constitution such right cannot be  inferen-
tially  held  to come into being on the application  of  the
Constitution  to  the Hyderabad State.  For  this,  reliance
was  placed  on the decision of the Privy Council  in  Delhi
Cloth  and  General Mills Ltd. v. Income  Tax  Commissioner,
Delhi & Another(1) and The Colonial Sugar Refining Co.  Ltd.
v. Irving(2).
(1) 54 I.A. 421.                (2,) [1905]  A. C. 369.
947
    In  our opinion, the contention of the Attorney  general
on  this point is correct.  There appears no reason  why  in
the   present  case  the  normal  mode  of  interpreting   a
legislation as prospective only should be departed from.  It
was contended.by Mr. Pritt that the interpretation sought to
be  put  by  the  State on' article  136  will  require  the
insertion  of the word "hereafter" in the clause, for  which
there  was no justification.  We are unable to  accept  this
contention  because,  prima  facie,  every  legislation   is
prospective and even without the use of the word "hereafter"
the  language  of article 136 conveys the same  meaning.  It
should be noticed in this case that before the 26th January,
1950, the Government of H.E.H. the Nizam was an  independent
State  in the sense that no court in India or  the  Judicial
Committee   of   the  Privy  Council  in  London   had   any
jurisdiction  over  the  decisions of  the  Hyderabad  State
Courts.   To  give the Supreme Court of  India  jurisdiction
over  the decisions of courts of such a state, one  requires
specific  provisions or provisions which necessarily  confer
jurisdiction to deal, on appeal, with the decisions of  such
courts.   It  is  common ground that  there  is  no  express
provision  of  that kind.  There appear to us also  no  such
necessary  circumstances  which on  reasonable  construction
should be treated as impliedly giving such right of  appeal.
Indeed  the  words "territory of India" lead to  a  contrary
conclusion.   Under  the  words used  in  article  136   the
-courts  which passed judgments or sentence must  be  courts
within  the  territory  of  India.   The  territory  of  the
Government  of H.E.H. the Nizam was never the  territory  of
India  before the 26th of January, 1950, and  therefore  the
judgment and sentence passed by the High Court of H.E.H. the
Nizam  on the 12th, lath and 14th December, 1949, cannot  be
considered  as  judgments and sentence "passed  by  a  court
within the territory of India".  On that short ground  alone
it seems that the petitioners' contention must fail.
It was argued by Mr. Pritt on behalf of the  petitioners
that  if  such construction were put, the territory  of  the
Province of Bombay also may be excluded from
948
the operation of article 136.  The answer however is that  a
right to file an appeal from the judgments of the High Court
at  Bombay in both civil and criminal matters existed  under
the   Civil Procedure Code, Criminal Procedure Code and  the
Letters Patent of The High Court before the 26th of January,
1950. Such right of appeal to the Judicial Committee of  the
Privy Council, which previously existed, was transferred  to
the Federal Court by the appropriate legislation and eventu-
ally  by article 135 to the Supreme Court. Therefore by  the
interpretation, which we think is the proper  interpretation
of  article 136 of the Constitution of India, the  right  of
appeal  from  the judgment of the Bombay High Court  is  not
taken away. It is true that having regard to the words  used
in  article  136 which can bear a wider meaning a  right  to
apply  for leave to appeal to the Supreme Court is given  in
respect  of decisions not only of High Courts but  of  other
tribunals  also.   That larger right, if it  did  not  exist
before the 26th January, 1950, can be legitimately construed
as newly conferred by article 136 and such construction does
not give rise to any anomaly.  In our opinion, therefore  as
the  judgments were  pronounced and sentences passed in  all
these  matters  before us by the High  Court  of  Hyderabad,
which  was  in the territory of H.E.H. the Nizam  and  which
territory was not the territory of India before the 26th  of
January, 1950, and as those judgments were passed before the
Constitution  came into force they do not fall.  within  the
class of judgments against which special leave to appeal  to
the Supreme Court can be asked for under article 136.  It is
obvious  that such judgments are not covered  under  article
135 of the Constitution of India.
    In our opinion this Court has therefore no  jurisdiction
to  entertain  these petitions for special leave  to  appeal
against such judgments of the High Court of Hyderabad  under
Article  136  of  the Constitution. Cases like those of  the
petitioners are thus not covered by articles 134, 135 or 136
and therefore the Supreme Court in the present state of  the
legislation is unable to
    949
render  any assistance to them.  An omission to provide  for
such  relief in the Constitution cannot  be remedied by  the
Supreme  Court and assumption of jurisdiction which  is  not
warranted  by  the clear words of articles 134, 135  or  136
will  be  tantamount to making legislation  by  the  Supreme
Court which it is never its function to do.
The petitions, under the circumstances, are rejected.
                           Petitions dismissed.
Agent  for  the  petitioners :1. N. Shroff.
Agent for the respondent: P.A. Mehta.
PETITIONER:
RAM KRISHNA RAMNATH AGARWALOF KAMPTEE
        Vs.
RESPONDENT:
SECRETARY, MUNICIPAL COMMITTEE,KAMPTEE.UNION OF INDIA AND GO
DATE OF JUDGMENT:
14/03/1950
BENCH:
KANIA, HIRALAL J. (CJ)
BENCH:
KANIA, HIRALAL J. (CJ)
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MAHAJAN, MEHR CHAND
DAS, SUDHI RANJAN
MUKHERJEA, B.K.
CITATION:
 1950 AIR   11            1950 SCR   15
 CITATOR INFO :
 RF         1966 SC1089  (55)
ACT:
Government  of India Act, 1935, es. 100, 143,  292;  Sch.
VII,  List 1, Entry 45; List 11, Entry  49--Central  Excises
and Salt Act (1 of 1944, es. 2, 3--Central Provinces Munici-
palities Act (11 of 1922), s. 66 (1) (e)--Import of  tobacco
within municipality .for manufacturing bidis--Tobacco liable
to  Central  excise  duty--Levy of  octroi  duty  by  munic-
ipality--Legality.
HEADNOTE:
    Section 66 (1) (e) of the Central Provinces  Municipali-
ties Act, 1922, empowered municipalities within the Province
to levy an octroi duty on goods brought within their  limits
for sale, consumption or use within those limits.  Section 3
of  the  Central Excises and Salt Act, 1944, an Act  of  the
Central Legislature, provided that there shall be levied and
collected duties of excise on all excisable goods other than
salt which were produced or manufactured  in  British India,
and  included  tobacco in the list of excisable goods.   The
question  being whether a municipality situated in the  Cen-
tral   Provinces could levy octroi duty on  tobacco  brought
within its limits for the purpose of manufacturing bidis, in
view  of  the exclusive power of the Central  Government  to
levy  excise  duty under Entry 45 of List I of  the  Seventh
Schedule  to  the  Government of india Act,  1935,  and  the
provisions the Central Excises and SaIt Act:
Held,  that  excise duty and octroi were  taxes  essentially
different  in their nature and the power of the Province  to
levy  octroi  was  not inconsistent with the  power  of  the
Centre to levy excise duty on the some goods, and a  munici-
pality  could therefore validly levy an octroi duty on  such
tobacco under s. 66 (1)(e) of the Central Provinces  Munici-
palities Act of 1922.
    Held  further,  that there was nothing  in  the  Central
Excises  and   Salt  Act or its provisions contrary  to  the
provisions of s. 66 (1) (e) of the Central Provinces Munici-
palities  Act or to the levy of octroi duty under  the  same
and  s. 143 of the Government of India Act, therefore,  pre-
served  the  right of the municipality to levy  octroi  duty
under the Act of 1922.
    Province  of  Madras v. Boddu Paidanna and  Sons  [1942]
F.C.R..  90,  Governor-General  in Council  v.  Province  of
Madras  [1942] F.C.R. 129, In re the Central  Provinces  and
Berar Act No, XIV of 1938,
16
[1939]  F.C.R.  80, Miss Kishori Sherry v. The  King  [1949]
F.C.R. 650 referred to.
     Administrator, Lahore Municipality v. Daulat Ram [1942]
F.C.R. 31 distinguished.
Judgment of the High Court of Nagpur affirmed.
JUDGMENT:
    APPEAL from the High Court of Judicature at Nagpur: Case
No. III of 1948.
   This was an appeal from a judgment and order of the  High
Court  of  Nagpur  (Mis. Civil No. 158 of  1946)  dated  9th
April,  1948,  made  on a reference under s.  83  (2)of  the
Central  Provinces Municipalities Act (11 of. 1922)  by  the
Extra Assistant Commissioner, Nagpur.  The facts of the case
and the arguments of counsel appear in the judgment.
     T.J. Kedar and B.B. Tawakley (Sir Narain Andley
with them) for the appellant.
Lobo, for the respondent.
    M.   C.  Setalvad,  Attorney-General  of   India,  (S.M.
Sikri with him), for the Union of India.
    1950 March, 14.  The Judgment of the Court was delivered
by
    KANIA  C.J.--This  is an appeal from  the  judgment  and
order of the High Court at Nagpur, made on a reference under
Section  83 (2) of the Central Provinces Municipalities  Act
11  of  1922, by the EXtra Assistant  Commissioner,  Nagput.
The appellant is a trader in Kamptee who manufactures bidis.
On  the 30th of November, 1945, he brought to  Kamptee  from
outside tobacco to make bidis.  A declaration form signed on
his  behalf  stated that the 254 bags of tobacco  liable  to
octroi  duty, which had that day arrived at octroi post  No.