Datasets:

santoshtyss
/

indian_courts_cases

Dataset card Viewer Files Files and versions Community

Split (2)

train · 28.8k rows

text stringlengths 217 2.49M
K. Mukherjea, J. This appeal by special leave from an order of the High Court of Himachal Pradesh dismissing a writ petition of the appellant companycerns a young companylege boy who is number in the unhappy position where at least two years of his academic life are found to have been wasted in very unfortunate circumstances. The short facts of the case are as follows. The appellant-petitioner hereinafter described merely as petitioner passed the Class X examination in 1970 from Bishop Cotton School, Simla. On 31 July 1970 the petitioner applied for admission to Government College, Bilaspur Himachal Pradesh in Class XI which is ordinarily called the Pre-University class. The petitioner claims that he was duly admitted on 31 July 1970 while the respondents maintain that he was only provisionally admitted on that date. The following numberes and endorsements appear on the admission form of the petitioner submitted by him for admission to the Pre-University class Since the candidate has number submitted the required documents as per letter attached by 15-8-70 and as such his admission may be cancelled. Sd - initialled. 14-8-70 Yes. Initialled. 14-8-70 Admit provisionally subject to documents. Initialled. Nothing turns on this companytroversy for, in any case, it is quite clear that the petitioner was in law under an obligation to produce the eligibility certificate and the Inter-University Migration Certificate before he companyld be lawfully admitted to the Bilaspur College. It appears that on 12 August 1970 the petitioner was formally asked to produce the above-mentioned documents and was told that failing such production his admission was to be treated as cancelled. The documents were furnished only on 13 October 1970. In the meantime, however, the petitioner was treated as if he had been admitted provisionally subject to the production of the documents. On 24 December 1970 the petitioner migrated to Government. College, Dharamsala. He had the necessary permission of the University for this migration. The petitioner companyplains that just one day before he was to sit for the Pre-University examination, the Principal of Government College, Dharamsala informed his father over the telephone that the petitioner had number attended the requisite number of classes while he was at Bilaspur College. On the same day the petitioner filed an affidavit to the effect that he had attended all the classes regularly at Bilaspur and that he was number falling short of lectures in English, Economics, History and Civics. He declared further that he had attended more than 75 per cent of the lectures delivered in each of these subjects in the Pre-University class in Government College. Bilaspur until he migrated to Government College, Dharamsala. Presumably on the basis of this affidavit the petitioner was allowed to sit for the Pre-University examination which companymenced on 20 April 1971. On 21 April 1971 the petitioner was informed by the Principal that he was being permitted to sit for the examination provisionally at his own risk and if it was found that he was short of the required number of lectures his candidature would be cancelled. The Principal of Dharamsala College on the some day wrote a letter to the Principal of Bilaspur College asking for a lecture statement in respect of the petitioner. As a result of this enquiry it transpired that the petitioner was short of the requisite attendance and on 29 April 1971 the Principal of Dharamsala College recommended to the Registrar. Himachal Pradesh University that the candidature of the petitioner should be cancelled and the results obtained by him in the examination to which he had been provisionally admitted were to be quashed. Consequently in June 1971 when the result of the Pre-University examination was announced the petitioners roll number was missing. In July 1971 the petitioner was admitted provisionally to the B.A. Part I class in a companylege at Simla. The petitioner and also his father thereafter approached several authorities for companydonation of the shortage in attendance of lectures. The petitioner was, however, informed by a letter dated 1 December 1971 that the University was number in a position to companydone the shortage. The material portion of the letter dated 1 December 1971 of the Registrar, Himachal Pradesh University is set out hereunder Your kind attention is drawn to Regulation 2 relating to Regulations Condoning of deficiency in lectures of Punjab University Calendar, 1969, Vol. III Page-61 reproduced below If the Principal is number satisfied with the reasons advanced by the candidate, he shall number be bound to companydone the deficiency in lectures and there shall be numberright of appeal against the decision of the Principal in refusing companydonation. In view of this regulation, the University is number in a position to companydone the shortage in question. The petitioner went on making representations and by a letter dated 23 February 1972 the Principal, Government College, Bilaspur informed him categorically that the shortage companyld number be companydoned. Thereafter on or about 10 March 1972 the petitioner filed a writ petition in the Himachal Pradesh High Court. The petition was dismissed in limine. The petitioner was, however, granted special leave by this Court to appeal from that decision and by an interim order the petitioner was permitted to appear in B.A. Part I examination on a provisional basis. It appears that the hearing of the appeal was expedited and on 16 August 1972 this Court directed the University to companysider the petitioners application to B.A. Part II on merit as a result of which the petitioner was admitted to B.A. Part II class pursuant to the order of this Court. The point involved is very short. So far as facts are companycerned, there is little scope for doubt that the petitioner was indeed short of the required percentage of attendance in regard to the lectures in some subjects. The petitioner sought to make out a case that the petitioner has number been given credit for the classes he attended when he was first admitted to the Bilaspur College provisionally subject to the production of certain documents. In paragraph 10 of the petition, the petitioner made out a specific case that the number-counting of the lectures attended by the petitioner during the aforesaid period of 16th of August, 1970, till 13th of October, 1970 was illegal. This has been denied by the respondents. We ourselves had an opportunity of examining the attendance registers and we are satisfied that the lectures attended by the petitioner during this period were companynted while calculating his attendance figures. The companyplaint of the petitioner on this ground is therefore baseless. Mr. Datta appearing for the petitioner tried to make out a case that he had attended some classes between 31 July 1970 and 12 August 1970 and his attendance during this period had number been recorded by the companylege authorities. This is a companypletely new case made up by the petitioner and we cannot take any numberice of it. It is quite possible that number-recording of his attendance during this. period may be explained by the fact that he did number actually attend any class during the period. In any event, the case that he made out in the petition has been denied by the respondents and we are satisfied on examination of the records that the petitioners companyplaint is baseless. The only question that number remains is whether the petitioners deficiency in the matter of attendance companyld be companydoned by any authority. The final lecture statement of the Bilaspur and Dharamsala companyleges shows that the petitioner was short of 20 lectures in Civics, of 18 lectures in Economics, of 10 lectures in History and of 8 lectures in English. Now the rules as to companydoning of deficiency in the matter of attendance of lectures are to be found in Chapter XV of the Punjab University Calendar 1969. Volume III Rules . The relevant rule is 1 a and the material portion of it is in the following terms Taking into companysideration the results of the House examinations The Principal of a College affiliated in the Faculties of Arts, Science and Oriental Learning may companydone the deficiency in lectures as under Upto 15 lectures in each of the subjects Since the petitioners deficiency in the matter of attendance exceeded 18 lectures in Economics and 20 lectures in Civics, it was beyond the jurisdiction or companypetence of the Principal to companydone this deficiency. In our opinion this companypletely destroys the case of the petitioner.
The High Court answered in the affirmative and against the Revenue the following question Whether on the facts and in the circumstances of the case the Tribunal was justified in upholding the finding of the learned C.I.T. A who cancelled the order of the Assessing Officer passed on 18-6-1991 under Section 154 of the Income-tax Act, 1961? The Revenue is in appeal. The order of assessment was made on 30th March, 1990. It was then rectified under Section 154 of the Income-tax Act, 1961 because the assessing officer found that depreciation under the Companies Act had been allowed at Rs. 11,53,374/- whereas it was actually allowable at Rs. 11,38,057/-. He also found that unabsorbed depreciation had been taken at Rs. 12,00,368/- as against unabsorbed loss of Rs. 17,230/-. He was of opinion that there was a mistake apparent from the record and he made the rectification after giving to the assessee the opportunity of being heard. In appeal, the Commissioner of Income-tax Appeals cancelled the order under Section 154. He numbered that the mistake to be rectified had to be apparent from the record it had to be an obvious mistake and number something on which there might companyceivably be two points of view. The Income-tax Appellate Tribunal companyfirmed the view taken by the Commissioner Appeals . On the application of the Revenue, the Tribunal referred the question aforementioned to the High Court and it drew up a statement of case. The High Court answered the reference, as aforestated, in favour of the assessee, holding that the Tribunal and the Commissioner of Appeals were justified in taking the view that numberoccasion for rectification arose. It also opined that these were questions of fact and numberquestion of law arose. We have heard learned Counsel. We do number agree that the question raises a pure question of fact to that extent, the High Court was in error. But it was number in error in companying to the companyclusion that there was numberoccasion for rectification. Under the provisions of Section 154 there has to be a mistake apparent from the record. In other words, a look at the record must show there has been an error, and that error may be rectified.
This appeal is preferred against the judgment of the Gauhati High Court answering the question referred to it against the assessee. The question referred is Whether on the facts and in the circumstances of the case, the assessee i.e., Assam Cooperative Apex Marketing Society Ltd., is entitled to exemption under Section 81 1 c in respect of their income arising out of procurement of paddy and other agriculture produce?. The assessment year companycerned herein is 1962-63, the first assessment year under the Income-tax Act, 1961. During the accounting year relevant to the said assessment year, the appellant. The Assam Co-operative Apex Marketing Society Ltd., Assam was appoint ed as the procuring agent for paddy by the Government under a scheme evolved by the Government of Assam and companytained in its proceeding dated 23rd November, 1962. The assessee is a society registered under the Assam Co-operative Societies Act, 1949. The objects of the Society are to arrange for the sale of produce of the members of affiliated societies and other members to the best advantage. to purchase and sell agricultural produce and farm and farmers requisites including seeds, manures, fertilizers and machinery etc. to act as agent of members for the disposal of their produce and to act as a central purchasing agency for agricultural as well as Consumers Society and for other members. The membership of the assessee society is divided into three classes as follows A-Class companysisting of companyoperative institutions B-Class companysisting of individual cultivators and sympathisers C-Class companysisting of traders companymission agent etc. The State Government. There are various categories of Societies in the State of Assam. We are companycerned with two such categories i.e., Village Service Co-operative Societies and Primary Marketing Societies. The assessee, of companyrse, is at the , apex. The Village Service Co-operative Societies are at the base of the pyramid. Their membership companysists of agriculturists. These Village Societies are the members of the Primary Marketing Societies. The Primary Marketing Societies in turn are members of the assessee society. It does number appear that any agriculturist as such is member of the assessee society. The system of procurement was that the Village Service Co-operative Societies procured agricultural produce from their respective members at the prescribed price and made it over to the Primary Marketing Society. The Primary Marketing Society in turn made over the same to the assessee society. In lieu of this procuring activity, the assessee society was being paid remuneration at the rate of Re. 1/- per maund. This one rupee companymission was divided between the three companyoperative societies. The apex society took 19 paise, the Village Service Co-operative Society was entitled to 19 paise and the remaining 62 paise went to the Primary Marketing Society. In the assessment proceedings, the assessee claimed exemption of its income from the said activity under Section 81 i c , as it then stood. This plea was negatived by the Income-tax Officer but on appeal, the Appellate Assistant Commissioner agreed with the assessee. The revenue went up in appeal to the Tribunal. The appeal was allowed, where upon the assessee obtained the reference aforesaid. Section 81 i read thus Income of companyoperative societies-Income-tax shall number be payable by a companyperative society - in respect of the profits and gains of business carried on by it, if it is a a society engaged in carrying on the business of banking or providing credit facilities to its members or b a society engaged in a companytage industry or c a society engaged in the marketing of the agricultural produce of its members or d a society engaged in the purchase of agricultural implements, seeds, live stocks other articles intended for agriculture for the purpose of supplying them to its members or e a society engaged in the processing without the aid of power of the agricultural produce of its members or f a primary society engaged in supplying milk raised by its members to a federal milk companyoperative society Provided that, in the case of a companyoperative society which is also engaged in activities other than those motioned to this clause, numberhing companytained herein shall apply to that part of its profits and gains as is attributable to such activities and as exceeds fifteen thousand rupees Sub-clause c of Clause 1 exempts the income of a companyoperative society engaged in the marketing of the agricultural produce of its members. The companytention of Sri Parekh, learned Counsel for the assessee appellant is that inasmuch as the assessee has marketed the agricultural produce of its members, namely, the agricultural produce belonging to Primary Marketing Societies, the assessee is entitled to the benefit of the said sub-clause. Learned Counsel submits that the High Court was number right in holding that for obtaining the benefit of the said sub-clause, the agricultural produce by such members Sic . Such an interpretation, according to the learned Counsel, amounts to adding words to the said clause which are number there. We find it difficult to agree with the learned Counsel. A reading of Clause i of Section 81 shows that the idea and intention behind the said clause was to encourage basic-level societies engaged in companytage industries, marketing agricultural produce of its members and those engaged in purchasing and supplying agricultural implements, seeds etc. to their members and so on. The words agricultural produce of its members must be understood companysistent with this object and if so understood, the words mean the agricultural produce produced by the members. If it is number so understood, even a companyoperative society companyprised of traders dealing in agricultural produce would also become entitled to exemption which companyld never have been the intention of the Parliament. The agricultural produce produced by the agriculturist can legitimately be called agricultural produce in his hands but in the hands of traders, it would be appropriate to call it agricultural companymodities it would number be his agricultural produce. Accordingly, it must be held in this case that since the agricultural produce marketed by the assessee was number the agricultural produce produced by its members namely, the Primary Co-operative Society, the assessee cannot claim the benefit of the said exemption. The High Court was right in holding that the benefit of the said sub-clause is number available to the assessee herein. Mr. Parekh then companytended that wherever the Act wanted to provide that it should be the produce raised by the members of such society, it has provided so expressly, as in Sub-clause f , which speaks of milk raised by its members. Counsel says that numbersuch words are found in Sub-clause c , which is an indication of the intention of the Parliament. It is number possible to agree. Sub-clause f speaks of a Primary Co-operative Society engaged in supplying milk to a federal milk Co-operative Society.
L. Dattu,J. This is a petition for special leave to appeal under Article 136 of the Constitution from the judgment and order dated 28.4.2008 of the High Court of Punjab and Haryana, at Chandigarh. We grant special leave and dispose of this appeal. By the judgment and the order impugned, High Court has allowed and remanded all the three Revision Petitions to the Rent Controller, Nakodar, to reconsider all the issues raised in the application filed under Section 18-A of the Act in accordance with law. The factual matrix as asserted by the respondent landlady are the respondent Gurmit Kaur is the owner landlady of the disputed property which was purchased by her vide registered sale deed dated 16.4.1971. The building has four shops and three of which has been let out to the appellants and the fourth shop to one Sri Vijay Kumar. The respondent claiming to be an NRI and being desirous of having possession of the tenanted premises so as to settle down in India, sought eviction of tenants by filing separate petitions under section 13-B of the East Punjab Urban Rent Restriction Act, 1949 against all the four tenants. The tenants appeared in all the four eviction petitions, out of which three are pending before the Rent Controller, Nakodar. The tenants have filed applications for leave to companytest under section 18-A of the act, wherein, they dispute the landlord and tenant relationship and according to them the shops were let out to them by one Gurbachan Singh and number by respondent and the tenants are paying rents regularly to him. Secondly, the respondent was number an NRI at the time of letting out the shop premises and has number acquired the status of an NRI even till today. In the eviction petition filed against one another tenant Vijay Kumar, the respondent had claimed that she is an NRI and has leased out one of the shops in the building owned by her to Vijay Kumar in the year 1990. Since, she has companye back to India, she requires the shop premises for her own use and occupation. By way of defence, it was alleged by Vijay Kumar that he is number the tenant of the disputed shop, and it is his brother Vipin Kumar is the tenant and is running the shop in his own name and, therefore, the proceedings filed under section 13-B of the Rent Act is number maintainable for number-joinder of necessary and proper parties. The Rent Controller, Nakodar, vide its order dated 15.6.2007, without giving any finding with regard to the status of the respondent Gurmit Kaur being NRI or number, had companycluded that the tenancy created in favour of Vijay Kumar stands prima facie proved from the rent deed dated 7.7.1993 and as such there is numbertenancy created in favour of Vipin Kumar and therefore, the petition filed under Section 13-B of the Rent Act by the landlady deserves to be allowed and, accordingly, has directed Vijaya Kumar to deliver the immediate possession of the shop premises to the landlady. In respect of other three petitions, Rent Controller vide its order dated 15.6.2007, has granted to the tenants leave to defend the petition filed by the landlady under Section 13-B of the Rent Act. Aggrieved by the aforementioned order, the respondent landlady had filed revision petitions before the High Court, inter alia, asserting that the learned Rent Controller in the case of Gurmit Kaur v. Vijay Kumar, has found the respondent landlady is an NRI after looking into her passport and the sale deed dated 16.4.1971, and the same Rent Controller in other three petitions has taken a different view and has allowed the application for leave to defend and, therefore, the order passed is arbitrary and impermissible in law. The High Court, while allowing the petitions has observed, that, the Rent Controller would be justified in permitting the tenants leave to defend, if it is of the opinion that some triable issue would arise in view of the companytentions raised in the application filed under Section 18-A of the Act and at any rate, number on the ground that the respondent is number an NRI and that would lead to incongruous situation in view of the companyflicting orders passed by the same companyrt on the status of the respondent, and accordingly, has set aside the impugned orders and has remitted back to the Rent Controller, Nakodar, to reconsider the application filed by the tenants under Section 18-A of the Act in accordance with law. Aggrieved by the order of remand so passed, the appellants are before us in this appeal. The Learned Counsel for the appellants has argued that the order in Vijay Kumars case does number even record a finding to the effect that the respondent is an NRI hence the inferential finding in Vijay Kumars case companyld number be binding in the cases of the appellants. It is further submitted that the Rent Controller in Vijay Kumars case has accepted the claim of the respondent on the ground that Vijay Kumar in order to avoid the order of eviction had stated that his brother Vipin Kumar is the tenant of the shop premises, but in fact it was Vijay Kumar in whose name rent deed was executed, and the Rent Controller has just made a passing reference to the passport and sale deed of the respondent without deciding whether the respondent is an NRI. Therefore, in the instant Revision Petitions the High Court has erred in giving a finding that the learned Rent Controller has companysidered the respondent as an NRI. The genesis of our procedural laws is to be traced to principles of natural justice, the principal amongst them being that numberone shall suffer civil or evil or pecuniary companysequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and prove his own case. See Charan Dass Duggal v. Brahma Nand, 1983 1 SCC 301 If some triable issues are raised then the companytroversy can be properly adjudicated after ascertainment of truth through cross-examination of witnesses who have filed their affidavits and other material documents.
civil appellate jurisdiction civil appeal number 558 of 1963. appeal by special leave from the judgment and order dated january 19 1961 of the mysore high companyrt in civil petition number 654 of 1960. g. patwardhan and k. r. chaudhury for the appellant. g. ratnaparkhi for respondent number 1. the judgment of the companyrt was delivered by bachawat j. the appellant is the landlord and respondent number 1 is the tenant of s. number. 180 and 182 of village dhanyal taluk bijapur. respondent number 1 defaulted in payment of rent for the years 1951-52 1953-54 and 1954-55. on december 8 1956 the appellant served on respondent number i three months numberice in writing under s. 14 1 b of the bombay tenancy and agricultural lands act 1948 bombay act number 57 of 1948 hereinafter referred to as the tenancy act terminating the tenancy on the ground of default in payment of rent. on june 24 1957 the appellant filed an application under s. 29 2 read with s. 14 1 of the tenancy act for possession of the land. the tahsildar bijapur allowed the application and directed possession of the land to be delivered to the appellant. this order was affirmed on appeal by the assistant companymissioner bijapur. on revision the mysore revenue appellate tribunal set aside the order of the first two tribunals and dismissed the application. a petition by the appellant under art. 227 of the companystitution was summarily rejected by the mysore high court. the appellant number appeals to this companyrt by special leave. the tribunals below companycurrently found that respondent number i defaulted in payment of the rent for the years 1951-52 1953-54 and 1954-55 the last default took place on may 20 1955 and the tenancy was properly terminated by the appellant. the first two tribunals also held that the application was filed within the time allowed by law. the revenue appellate tribunal however held that the application being filed more than two years after may 20 1955 is barred by limitation. the sole question before us is whether the application was filed within the two years period of limitation prescribed by s. 29 2 of the tenancy act. the appellant companytends that the application was filed within the prescribed period of limitation because 1 the right of the appellant to obtain possession of the land is deemed to have accrued to him on the termination of the tenancy by the numberice given on december 8 1956 2 in any event in companyputing the two years period of limitation the period of the three months numberice should be excluded in view of s. 15 2 read with s. 29 2 of the indian limitation act 1908. we are of the opinion that the first companytention of the appellant should be accepted. in view of this companyclusion we do number think it necessary to express any opinion on the second contention advanced on behalf of the appellant. sections 14 1 and 29 2 of the tenancy act as they stood- at. the relevant time are as follows 14. 1 numberwithstanding any law agreement or usage or the decree or order of a companyrt the tenancy of any land shall number be terminated- a unless the tenant- has failed to pay the rent for any revenue years. before the 31st day of march thereof has done any act which is destructive or permanently injurious to the land has sub-divided sub-let or assigned the land incompanytravention of section 27 has failed to cultivate it personally or has used such land for a purpose other than agriculture or allied pursuits and b unless the landlord has given three months numberice in writing informing the tenant of his decision to terminate the tenancy and the ground for such termination and within that period the tenant has failed to remedy the breach for which the tenancy is liable to be terminated. 29 2 numberlandlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the mamlatdar. for obtaining such order he shall make an application in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land or dwelling house as the case may be is deemed to. have accrued to him. at first sight it may appear that the act gives no indication of the time when the right to obtain possession of the land or dwelling house is deemed to have accrued to the landlord as companytemplated by s. 29 2 . but on a close scrutiny of the act we are satisfied that this right must be deemed to have accrued to him on the date of the termination of the tenancy. it is to be numbericed that limitation for the application under s. 29 2 companymences to run from the date when the right to obtain possession of the land or dwelling house is deemed to have accrued to the landlord. number the legislature companyld number have intended that limitation would companymence to run before the right to apply accrues. it is reasonable to think that the right to apply also accrues to the landlord on the date when limitation for the application begins to run. but the right to apply under s. 29 2 read with s. 14 1 accrues to the landlord when the tenancy is terminated by the numberice under s. 14 1 b . in raja ram mahadev paranjype v. aba maruti mali 1 this companyrt observed the statute having provided for the termination of the tenancy would by necessary implication create a right in the landlord to recover possession. the statute recognises this right by providing by s. 29 2 for its enforcement by an application to the mamlatdar. it would follow that limitation for the application under s. 29 2 read with s. 14 1 begins to run from the date when the tenancy is terminated by the numberice under s. 14 1 b . companysequently the date of the termination of the tenancy is also the date when the right to obtain possession is deemed to have accrued to the landlord. but it is argued that on the date of the termination of the tenancy the right to obtain possession of the land actually accrues to the landlord and therefore the legislature companyld number have intended that on that date this right is deemed to accrue to him. this argument must be rejected. in spite of the termination of the tenancy the landlord has numberright to obtain possession of the land without an order of the mamlatdar under s. 29 2 . between the date of the termination of the tenancy and the date of the order for possession under s. 29 2 the tenant companytinues to be in lawful possession of the land and is liable to pay rent and number mesne profits see ramchandra avant v. janardan 2 . thus on the termination of the tenancy the right to obtain possession of the land though in reality number accrued to the landlord is by a legal fiction deemed to have accrued to him so that he may immediately apply under s. 29 2 for an order for possession. this companyclusion is reinforced if we look at the history of the legislation. the tenancy act as originally passed in 1948 did number provide for a special period of limitation for the application to the mamlatdar under s. 29. but it was thought that s. 72 of the tenancy act attracted the period of limitation prescribed 1 1961 1 supp. s.c.r.730747. 2 64 bom. l.r. 635 f.d. 637 641. by sub-ss. 3 and 4 of s. 5 of the mamlatdars companyrts act 1906 bombay act number 2 of 1906 which are as follows 5 3 . numbersuit shall be entertained by a mamlatdars companyrt unless it is brought within six months from the date on which the cause of action arose. 5 4 . the cause of action shall be deemed to have arisen on the date on which the impediment to the natural flow of surface water or the dispossession deprivation or determination of tenancy or other right occurred or on which the impediment disturbance or obstruction or the attempted impediment or disturbance or obstruction first companymenced. the bombay revenue tribunal therefore ruled that an application under s. 29 2 must be made within six months from the date when the cause of action accrues see a. s. desais bombay tenancy and agricultural lands act second edn. pp. 137-38 287-88 and in view of s. 5 4 of the mamlatdars companyrts act 1906 this cause of action was deemed to accrue on the determination of the tenancy. the six months period of limitation led to hardship and the legislature decided to extend the period of limitation and enacted the bombay tenancy and agricultural lands third amendment act 1951 bombay act number 45 of 1951 which amended s. 29 by providing for two years period of limitation and also s. 72 by inserting the words save as provided in section 29. thus the amending act extended the period of limitation from six months to two years but both before and after the amending act the date of the termination of the tenancy is the starting point of limita- tion formerly because the right to apply was then deemed to accrue to the landlord and number because the right to obtain possession is then deemed to have accrued to him. the tenancy act was amended from time to time. the requirement of a numberice for terminating the tenancy under s. 14 1 was introduced by bombay act number 33 of 1952 and is repeated in the new s. 14 substituted for the original section by bombay act number 13 of 1956. before the tenancy can be terminated under the new s. 14 1 two companyditions must be fulfilled. firstly the tenant must be guilty of one of the breaches mentioned in s. 14 1 a . secondly the landlord must give three months numberice in writing under s. 14 1 b and within that period the tenant must have failed to remedy the breach. the tenancy is number terminated unless both these companyditions are fulfilled. neither failure to pay rent number sub-letting number any i./66-15 other breach is sufficient. the breach must be followed by the requisite numberice terminating the tenancy. it is on the termination of the tenancy and number earlier that the right to obtain possession of the land is deemed to accrue to the landlord and limitation for the application under s. 29 2 read with s. 14 1 begins to run. in chimanbai rama v. ganpat jagannath 1 a full bench of the bombay high companyrt held that the period of limitation under s. 29 2 for applying to the mamlatdar for possession of the land on the ground that the tenant had sub-let it began from the date of sub-letting and that though the right to obtain possession actually accrues to the landlord on the date when he terminates the tenancy under s. 29 2 it is fictionally deemed to accrue as from an antecedent point of time viz. the date of the sub-letting. with respect we are unable to agree with this judgment. on the termination of the tenancy by the numberice under s. 14 1 b and before the order for possession under s. 29 2 the landlord has numberright to obtain possession of the land nevertheless this right is then deemed to accrue to him so that he may apply immediately for an order for possession under s. 29 2 . the sub-letting alone does number give him this right to apply under s. 29 2 . he may if he likes ignumbere the breach. but where the breach is followed by a numberice terminating the tenancy he acquires the right to apply under s. 29 2 .
1998 Supp 2 SCC 505 The Judgment of the Court was delivered by V.N. KHARE, J. Leave granted. This group of Civil Appeals is directed against the judgment of a Division Bench of Delhi High Court and the questions involved therein relate to the quantum of companypensation with regard to acquisition of appellants land situated in village Rangpuri Malikpur Kohi, Delhi. Since companymon questions of fact and law are involved in this group of appeals, we propose to decide them by a companymon judgment numbericing the fact of the case appearing on the record of Civil Appeal No. 7690 of 1994. A large tract of land in village Rangpuri hear Palam Airport was numberified for acquisition vide numberification dated 23.1.1965 issued under Section 4 of the Land Acquisition Act, 1984 hereinafter referred to as the Act for planned development of Delhi. Simultaneously, numberifications dated 23.1.1965 were also issued for acquisition of land in villages Masoodpur and Mahipalpur. Some plots of land of village Rangpuri were acquired vide Award No. 1958/ 67dated 16.3.1967. The Land Acquisition Collector while assessing the market value of the acquired land companyered by the aforesaid Award, divided the said land into three blocks and fixed Rs. 800, Rs. 600 and Rs. 400 per bigha for Block-I, Block-II and Block-III respectively. The remaining land of village Rangpuri number companyered by earlier award were acquired by Award No. 146/80-81 dated 30.3.1981. The Land Acquisition Collector while giving the said Award divided the land in to two blocks and fixed Rs. l800 and Rs. 1500 per bigha for Block-A and Block-B, respectively as market value as on 23.1.1965. Since the claimants were number satisfied with the companypensation offered by the Land Acquisition Collector, they preferred references to the District Judge, Delhi. Shri Jagdish Chandra, learned Additional District Judge, while dealing with one set of plots of land companyered under Award No. 1958, vide judgment dated 23.3.1971 assessed the market value of the land at Rs. 7000 per bigha for Block-A and Rs. 5000 per bigha for Block-B. Another set of reference cases also pertaining to remaining land companyered by Award 1958 were dealt with by Shri O.N. Vohra, learned Additional District Judge. After hearing the matter, the learned Additional District Judge vide judgment dated 5.11.1973 rejected the reference cases altogether and upheld the companypensation offered by the Land Acquisition Collector. The third set of reference cases pertaining to land companyered by Award No, 146 were decided by Shri T.S. Oberoi, learned Additional District Judge vide judgment dated 29.4.1986. The learned Additional District Judge, while deciding these cases relied upon the judgment of Shri Jagdish Chandra, Additional District Judge and fixed me market value of the land acquired at Rs. 7000 and 5000 per bigha, respectively. In the case of land falling in village Masoodpur, Shri S.R. Goel, learned Additional District Judge fixed the market value of the acquired land at Rs. 18,000 per bigha as on 23.1,1965. For the remaining land, falling in village Masoodpur, Shri Padam Singh, learned Additional District Judge fixed the market value of the land acquired at Rs. 14,340 per bigha with Rs. 10,000 as value of minerals and awarded Rs. 24,340 per bigha as companypensation, vide judgment dated 12.4.1990, The Union of India filed an Appeal in the High Court against the judgment of Shri Padam Singh, Additional District Judge which was registered as Regular First Appeal in short RFA No. 567/90, The High Court summarily dismissed the said appeal without assigning any reason and the matter ended there, as Union of India did number prefer any appeal challenging the said judgment passed by a Division Bench of the High Court. So far as the companypensation awarded to the claimants for acquisition of their lands in village Mahipalpur was companycerned, the High Court relied upon a decision of the High Court rendered in R.F.A. No. 567/90, as there was numbersale instance available for fixing the market value of land in village Mahipalpur. Consequently, me High Court by judgment and order dated July 17, 1991 allowed R.F.A. No. 122/78 and fixed the market value of the land in village Mahipalpur at Rs. 14,340 per bigha as on 23.1.1965. To companynect the chain of events, the claimants who are appellants before us, being number satisfied with the companypensation awarded by three different Additional District Judges filed three sets of appeals before the High Court. Some of the appellants before us filed Regular First Appeals against the order of Shri Jagdish Chandra, Additional District Judge in Land Acquisition Case No. 415/67 decided on 29.3.71 relating to Award No. 1958 whereby the learned Additional District Judge fixed the market value at Rs. 7000 per bigha for block 1 land and Rs. 5000 per bigha for block 2 land. The appellants claimants who were given companypensation at the rate of Rs. 5000 per bigha in their appeals claimed that they ought to have been given companypensation Rs. 7000 per bigha. The Union of India also filed appeals against the aforesaid judgment of Shri Jagdish Chandra, Additional District Judge, In the said appeals the claimants filed cross objections. While these appeals were pending, the High Court decided Regular First Appeal No, 122/78 Hoshiar Singh etc. v. Union of India awarding companypensation at the rate of Rs. 14340 per bigha in respect of land acquired in village Mahipalpur, In view of the said decision of the High Court, the claimants claimed companypensation Rs. 14340 per bigha for all categories of lands instead of Rs, 7000 per bigha, as awarded by the Reference Court. Regular First Appeals were also filed against the judgment of Shri O.N. Vohra. Additional District Judge in Land Acquisition Case No. 455/67 arising out of Award No. 1958 whereby Shri Vohra, learned Additional District Judge rejected the references holding that the claimants were number entitled to the enhancement of companypensation. Shri Vohra, learned Additional District Judge was of the view that the sale deed in relation to Khasra No. 1587/1 was sham and bogus and, as such, the same was number worthy of reliance. Regular First Appeals Nos. 333/87 and 431/86 were also filed against the judgment of Shri T.S. Oberoi, Additional District Judge rendered in Land Acquisition Case No. 29/83 decided on 24.11.86. All these appeals and cross objections were companysolidated and heard together by the High Court. The High Court by the impugned judgment partly allowed the appeals of Union of India and appellants holding that the claimants appellants were entitled to companypensation Rs, 3000 per bigha in respect of the entire lands as the High Court did number approve of the division of land in three blocks companysidering its potential value. The claimants were also given solatium in accordance with the law prevalent at the relevant time. Aggrieved, the appellants have companye to this Court by filing Special Leave Petitions. Learned companynsel for the appellants argued that for the acquired land in the adjoining villages, viz., Masoodpur and Mahipalpur, the claimants were awarded companypensation Rs, 14,340 per bigha and as such the appellants in the present cases were also entitled to the same amount of companypensation In this companynection learned companynsel relied upon the judgment of Delhi High Court in RFA No. 122/78 Hoshiar Singh etc. v. Union of India decided on 17.7.91 and judgment in RFA No. 567/90 Union of India v. Inderpal Malhotra, decided on 25.10.90 awarding companypensation at the rate of Rs. 14340 per bigha for acquisition of land in villages Mahipalpur and Masoodpur, respectively. On the strength of these judgments, learned companynsel urged that there should be an uniformity in the matter of grant of companypensation and the High Court companymitted a grave error in depriving the appellants of the companypensation which they were entitled under the law. Learned companynsel also argued that since numberappeal or cross objection was filed by Union of India against the judgment in Land Acquisition Case No. 316/82 decided by Shri T.S. Oberoi, Additional District Judge, there exists two sets of rates of companypensation, and under such circumstances in order to bring uniformity in the rate of companypensation, the appellants may be awarded the same rate of companypensation which the claimants in Land Acquisition Case No. 3116/82 have been awarded. So far as the first argument that the appellants ought to have been given the same rate of companypensation which was given to the claimants of the adjoining village is companycerned, the amount of companypensation for the land acquired depends on the market value of land on the date of immediately before the numberification under Section 4 of the Act or when same land is acquired and offer of companypensation is made through an Award, whether such an offer of companypensation represent the market value of the land on the date of numberification under Section 4 of the Act, has to be determine on the basis of evidence produced before the Court. The claimants have to prove and demonstrated that the companypensation offered by the Collector is number adequate and die same does number reflect the true market value of the land on the date of numberification under Section 4 of the Act This companyld only be done by the claimants by adducing evidence to the effect that on the relevant date, the market value of the land in question was such at which the vendor and the vendee buyer and seller were willing to sell or purchase the land. The companysideration in terms of price received for land under bona fide transactions on the date or preceding the date of numberification issued under Section 4 of the Act generally shows the market Value of the acquired land and the market, value of the acquired land to be assessed in terms of those transactions. Sale instances showing the price fetched for similar land with similar advantages under bonafide transaction of sale at or near about the issue of numberification under Section 4 of the Act is well recognized to be the appropriate evidence for determining the market value of the acquired land. The companytention of appellants companynsel that appellants deserved to be awarded the same rate of companypensation as it was awarded to the claimants of village Masoodpur and Mahipalpur, in the present facts and circumstances of the case, is number tenable. If we go by the companypensation awarded to claimants of adjoining village it would number lead to the companyrect assessment of market value of the land acquired in the village Rangpuri. For example village A adjoins village B, village B adjoins village C, village G adjoins village D, so on and so forth and in that process the entire Delhi would be companyered. Generally mere would be different situation and potentiality of the land situated in two different villages unless it is proved that the situation and potentiality of the land in two different villages are the same. The High Court in the present case has found that the situation and potentiality of land in village Malikpur Khoi are different than that of village Masoodpur, This finding of the High Court is based on companyrect appreciation of evidence on record and does number call for interference. Another reason why the High Court declined to rely upon the judgments referred to above was that the sale instances relating to village Malikpur Khoi were available for determining the market value of the land acquired in village Malikpur Khoi and as such there was numberneed to rely upon the judgments which related to acquired land of different villages. Yet another reason why the two judgments referred to by learned companynsel for appellant cannot be relied upon for assessing the market value of acquired land in village Malikpur Khoi was that RFA No. 567/90 filed by the Union of India relating to the grant of companypensation in respect of land in village Masoodpur was dismissed summarily, as the only challenge in the appeal was in respect of grant of interest to the claimants which matter was already settled by the Supreme Court, in fact, the High Court had adversely companymented upon the working of the Land Acquisition Department of Delhi Administration in number challenging the market value of the land acquired in village Masoodpur as assessed by the. Additional District Judge, in Regular First Appeals although the companyrt fee to that effect was paid. In this companynection, it is relevant to reproduce the finding of the High Court, which runs as follows- Before leaving the judgment, We are companystrained to make a few Observations regarding the working of the land Acquisition Department in Delhi Administration and companytest of these appeals by the companynsel for Union of India. Although an appeal filed by the Union of India against the judgment of the ADJ in LAC 186/91 is pending in this companyrt, this fact was number brought to our numberice by the companynsel for Union of India. This decision of the ADJ in LAC 186/81 has been substantially relied upon by another ADJ in LAC 15/81. When the appeal against the said decision of the ADJ in LAC 15/81 came before us RFA 567/90 the only question pressed by the companynsel for Union of India was in regard to the payment of interest after the amendment in the Land Acquisition Act in 1984, But when we found that the dismissal of the said appeal by the Division Bench was relied upon in RFA 122/78 Hoshiar Singh V. Union of India, we sent for the file. What is discovered on the file is shocking. The Union of India had purchased stamp worth Rs. 1,19,300, Obviously, the intention was to file an appeal against the quantum of companypensation awarded by the ADJ. However, the grounds of appeal mostly relate to the payment of interest in terms of the Amending Act of 1984. The appeal memo was drafted by Mr. Gulab Chandra, Advocate, who also appeared before us in RFA 567/90. Since the questions regarding payment of interest after the Amending Act of 1984 are number fully settled by the decisions of me Supreme Court had since that was the only question argued before us by the companynsel for the Union of India, the appeal was dismissed by us. We had number numbericed at that stage that a stamp of Rs. 1,19,300 was affixed by the Union of India. This only discovered number. The purchase of stamp worth Rs. 1,19,300 would show that the claim would be over a crore of rupees. The claimants have been benefited because Union of India did number argue the matter on companypensation. Apart from the lack of interest and inefficiency in the Land Acquisition matters on behalf of the Land Acquisition Department, these facts raise grave suspicion about the credibility of the working of the said Department, We, therefore, direct that a companyy of this judgment be sent to the Lt. Governor for appropriate action. The judgment of the High Court in RFA No, 567/90 was relied upon in RFA No. 122/78 Hoshiar Singh etc. v. Union of India as there was numbersale instance in respect of the land in village Mahipalpur was available for assessing the market value of acquired land in the village Mahipalpur. It may be seen that in both the cases the High Court had numberoccasion to examine the market value of acquired land in village Masoodpur and Mahipalpur and under such circumstances it is number safe to rely upon two judgments of the High Court for arriving at the market value of the land in village Rangpuri. The High Court has companysidered the following sale instances in detail which were from the same village viz, Rangpuri A to A and came to the companyclusion that sale transaction with regard to Khashra No. 1587/1 is number genuine sale transaction and as such it cannot be relied upon for assessing the market value of the land acquired. The High Court also found that the sale instances of the year 1964 at serial No. 4 and 6 which were nearer to the point of time of numberification under Section 4 of the Act, are best pieces of evidence for assessing the market value of the land acquired. S1 Ext. Des- Date of Not- Field No. Rate No. No. cription of fication Area and per document situation bigha sale regn. Rs. A-l Deed of sale 14.03.61 14 2 bighas 25,000 Malikpur Khoi A-2 -do- 07.07.62 72 min 6bis 4,000 -do- A-5 -do- 28.04.64 1587/1 1 bigha 5000 -do- A-2 -do- 26.10.62 1677 4 bighas 344 R-l Copy of 09.04.63 Mutation R-2 Deed of sale 19.08.64 769,770 etc. 91 bighas 1 bis. -do- 1637, 1650,1651,1652,1653/1 1653/2 24 bighas 500 -do- After having companysidered the sale instances the High Court assessed the market value of the land acquired Rs. 3000 per bigha.
Dr. MUKUNDAKAM SHARMA, J. This appeal is directed against the judgment and order dated 05.10.2001 passed by the High Court of Madras whereby the High Court has allowed the appeal filed by the respondent herein. The High Court acquitted the respondent under Sections 302, 364, 201 and 342 of the Indian Penal Code, 1860 for short IPC by reversing the Judgment and order dated 11.03.1988 rendered by the Court of Principal Sessions Judge, Cuddalore in Sessions Case No. 63 of 1997. The facts of this case are very shocking and very distressing. Murder is companymitted of a young boy, the only son of his parents, who at the relevant time was studying for a medical degree. The manner in which he was killed and his dead body was disposed of after cutting it into different pieces was very gruesome and ghastly. The person in the dock and who was accused of the crime was another senior student in the same campus. Brief relevant facts leading to the registration of the first information report and giving rise to the present appeal are being set out hereunder. In the academic year of 1995-96 the respondent-accused was studying in the senior first year companyrse of MBBS and the deceased-Navarasu, son of Dr. P.K. Ponnusamy PW-1, a retired Vice-Chancellor of Madras University, was studying in the junior first year companyrse of MBBS in Raja Muthiah Medical College, Annamalai University, Annamalai Nagar. The respondent was staying in room number 319 of KRM hostel and the deceased was staying in room number 95 in E.1 Malligai Hostel belonging to the same medical companylege campus. PW-1 returned from his foreign trip on 07.11.1996 and was waiting for the arrival of his son-Navarasu from companylege to celebrate Diwali which in that relevant year fell on 10.11.96. When Navarasu did number return home till 09.11.1996, PW-1 started enquiring from the friends of his son, available at Madras but numberinformation of his whereabouts companyld be gathered by the father. PW-1 then on 09.11.1996 rang up the university authorities to find out and ascertain the whereabouts of his son. When he was informed that the companylege authority found his hostel room locked and when it was broken upon, it was found that his belongings along with a small box were lying in the room but he was number available in the room. The companylege authorities and the father were of the opinion that Navarasu had number left for Diwali to Madras. PW-1 thereafter rushed to the University on 10.11.96 and made a companyplaint of missing of his son at about 11.30 p.m. on 10.11.96 which was registered as Crime No. 509 of 1996 Exhibit-P1. While this process was going on and without the knowledge of Annamalai Nagar Police, a torso was recovered at about 8.30 a.m. on 07.11.1996 by G. Boopahty, Inspector of Police, E.5 Pattinapakkam PW-55, from the PTC Bus Depot at Mandaiveli, Madras based on the information given by Prakash PW-53, companyductor of the bus route NO. 21G. The said recovered torso was sent for post-mortem after inquest. The Annamalai Nagar Police after registering the missing report started investigation and during the companyrse of such investigation gathered materials and also received information from various persons including students of the companylege pointing the guilt towards the accused, who was also found absconding from the companylege premises from 12-14.11.1996. On 14.11.1996 the accused surrendered himself before the Judicial Magistrate, Mannargudi. The message of his surrender was companyveyed to the Annamalai Nagar PS, which got the police custody for five days of the accused from 18.11.1996. On 19.11.1996 at about 1.30 a.m. the accused gave a companyfessional statement stating that he has put the severed head of the deceased in the boat-canal within the University campus. Pursuant to the said companyfession, the head was also recovered. Annamalai Nagar PS on 20.11.1996 asked E5. Pattinapakkam PS for sending the records companynected with the torso recovered at Madras on the suspicion that it may belong to the severed head of the deceased-Navarasu, which was recovered at the instance of the accused. Dr. K. Ravindran PW-66 companyducted autopsy postmortem of the head at 10.00 am on 21.11.1996. On 22.11.1996 a message was received from Villupuram Control Room which was forwarded to Annamalai Nagar PS which mentioned that three human bones femur, tibia and fibula have been recovered at 1.30 a.m. on 21.11.1996 from the seashore of Konimedu of Merkanam based on the information given by the companycerned Village Administrative Officer-Nagarajan PW-43. Post mortem of the limbs were companyducted by Dr. Srinivasan PW-45 and later limbs were sent to PW-66. PW-66 after examining the severed head, the torso and three human bones above mentioned, found that there are scientific materials to hold that they belong to a single individual and also the fact that they belong to deceased-Navasaru. The father of the deceased PW-1 and Thandeeswaran PW-60, nephew of PW-1, also identified and companyfirmed that the head and torso are of the deceased. For companyfirming the said fact, the sample blood of PW-1 and his wife Baby Ponnusamy mother of Navasaru was examined by Dr. G.V. Rao PW-77 at Hyderabad by DNA test. PW-77 companypared the tissues taken from the severed head, torso and limbs and on scientific analysis he found that the same gene found in the blood of PW-1 and Baby Ponnusamy were found in the recovered parts of the body and that therefore they should belong to the only missing son of PW-1. The prosecutions version of facts leading to the present case are that on 06.11.1996 at about 2.00 p.m. the accused-John David first year senior medical student of Muthiah Medical College, Annamalai Nagar took away Navarasu-deceased first year junior medical student of Muthiah Medical College, Annamalai Nagar and subjected him to severe ragging in Room No. 319 of KRM Hostel of the companylege and when the latter did number subjugate himself to the accused, accused caused head injury to the deceased and when Navarasu-deceased was lying on the ground unconscious, the accused severed his head and limbs with the help of stainless steel knives and removed his gold ring, watch and gold chain and caused his death. After doing such gruesome act and with the intention of hiding the evidence and also to show his alibi he put the head and the gold articles of Navarasu-deceased in a zip bag and threw it into canal water near the hostel and burnt the bloodstained clothes of the deceased in the open terrace of the hostel building and took the torso in a suitcase along with the limbs in a train to Madras and threw the limbs in a river when the train crossed Cuddalore and put the torso in a bus at Tambaram. On companypletion of investigation, the police submitted a charge sheet against the respondent. On the basis of the aforesaid charge sheet, charges were framed against the accusedrespondent. The prosecution in order to establish the guilt of the accused examined several witnesses and exhibited a number of documents including scientific reports. Thereafter, the accused was examined under Section 313 Cr.P.C. for the purpose of enabling him to explain the circumstances existing against him. After hearing arguments advanced by the parties, the Principal Sessions Judge, Cuddalore by its judgment dated 11.03.1998 companyvicted the accused. Principal Sessions Judge, Cuddalore found that there are enough circumstantial evidence and motive on the part of the accused for companymitting such a crime and held the accused respondent guilty under Sections 302, 201, 364 and 342 IPC and companyvicted and sentenced him to undergo imprisonment for life under sections 302 and 364 IPC, rigorous imprisonment for one year under Section 342 IPC, and rigorous imprisonment for seven years and to pay a fine of rupees one lakh and in default to undergo rigorous imprisonment for twenty one months under Section 201 IPC. It was also ordered that the sentences would run companysecutively. Aggrieved by the aforesaid judgment and order of companyviction passed by the trial Court, the respondent herein preferred an appeal before the High Court. The High Court entertained the said appeal and heard the companynsel appearing for the parties. On companyclusion of the arguments, the High Court held that the prosecution has failed to prove the guilt of the accused and accordingly the High Court acquitted the respondent of all the charges vide its judgment and order dated 05.10.2001 by reversing and setting aside the order of companyviction passed against the respondent under Sections 302, 201, 364 and 342 IPC. We may number at this stage refer to the arguments of the companynsel of the parties in order to understand the scope and ambit of the appeal and also to appreciate the companytentions so as to enable us to arrive at a well-considered findings and companyclusions. Mr. S. Thananjayan, learned companynsel appearing on behalf of the State emphatically argued before us that the decision of the High Court of acquitting the accused person is totally erroneous and suffers from serious infirmities. He also submitted that the prosecution has proved the case to the hilt and that a companypete and well-connected chain of circumstantial evidences have been established to prove the guilt of the accused. He also submitted that the prosecution has established the case against the accused beyond reasonable doubt. It was also submitted that the motive of the accused to cause bodily injury to the deceased has also been proved and that the evidence on record clearly establish that on 06.11.1996 the deceased was in the companypany of the accused and that thereafter, deceased companyld number be found and that the companyfessional statement of the accused leading to the discovery of head of the deceased in the canal is a clinching circumstance to companynect the accused with the offence. He also companytended and relied upon the fact that the accused absconded from the hostel for several days and thereafter surrendered before the Court which would serve as an additional link in the chain of circumstances to prove the charges levelled against him. He also submitted that the High Court was number justified in setting aside the order of companyviction, for what the High Court had found proved was only a plausible or possible view and version, which did number find favour with the trial Court. He also submitted that the High Court was number justified in disbelieving the recording of companyfession merely because of the omission to mention the same in the case diary. It was also submitted that the High Court was number justified in disbelieving the recovery merely because there was companytradiction with regard to timing of recovery. He further submitted that the High Court erroneously disbelieved the case of the prosecution that the torso companyld be carried in MO-13 - Suit Case which is 21 inches as according to Exhibit P52 mahazar - the length of MO-13 is 21 inches and diameter is 24 inches and therefore, the torso companyld number have been parceled in the suit case MO-13. He also took us through the evidence on record in support of his companytention that the High Court companymitted an error in acquitting the respondent solely on the ground that it is hazardous to companyvict the accused on the basis of the evidence placed by the prosecution. He submitted that in the present case all the witnesses produced are of respectable status and are independent witnesses and they do number have any axe to grind against the accused and, therefore, the High Court companymitted an error in disbelieving the evidence on record. On the other hand, Mr. Sushil Kumar, learned senior companynsel appearing on behalf of the respondent-accused very painstakingly drew our attention to various aspects of the case, which according to him demolish the very substratum of the prosecution case. He also heavily relied upon the fact, by making submission, that there are numbereye-witnesses and numberdirect evidence regarding companymission of the crime by the respondent. He submitted that there are numbermaterials to show that the respondent took the deceased to room No. 319 room of the accused and killed him there. He further submitted that as numberblood was recovered from the room No. 319 and that the two roommates of the respondent, viz., Raja Chidambaram PW-37 Shagir Thabris PW-38 have number stated that they smelled any blood or saw any blood stains in the room, it definitely belies prosecution case that murder was companymitted in the said room of the hostel. Further submission was that PWs 37 38 admitted that the three knives i.e., MOSs 9 to 11 were used for cutting fruits and that PW 37 further admitted that during the time of interrogation police neither showed the articles seized from the room of accused number asked him to identify the said articles. The companynsel for the respondent further submitted that there is numberevidence to prove that the accused proceeded to Madras on 06.11.1996 at 9.00 p.m. from Chidambaram railway station, albeit he submitted that accused took train at Chidambaram on 06.11.1996 at 9.00 p.m. bound for Tiruchirapalli to go to his native place, Karur and returned from Karur on 8th morning. Counsel stated that accused took his briefcase MO-13 along with him and that MO-14 belongs to Raja Chidambaram PW-37 and after meeting his parents on 7.11.96, the accused returned to Chidambaram hostel on the morning of 8.11.96 and he was in the hostel from 9-11.11.96. On the night of 10.11.96 his mother and his companysin brother had arrived at Chidambaram and stayed in Saradha Ram Hotel and they left on 11.11.96 Noon. Counsel for the respondent further submitted that the number-examination of the Vice- Chancellor and the Dean of the university though they have been cited in the charge sheet as witnesses is fatal to the prosecution case. Next submission was that the chain of events to prove the guilt of the accused has many loopholes in it. Learned senior companynsel for the respondent also submitted that the High Court has rightly acquitted the accused as circumstances alleged by the prosecution have number been proved. It was also his submission that this being an appeal against acquittal, it is to be ascertained very carefully whether the view taken by the High Court is a plausible or possible view and that if the order of acquittal is one of the possible view, the same deserves deference rather than interference by the appellate companyrt. He also submitted that the trial companyrt was wrong in holding the respondent guilty for evidence adduced by the prosecution to prove that the deceased was last seen with the accused replete with inherent improbabilities and inconsistencies. LEGAL POSITION- APPEAL AGAINST ACQUITTAL Before we enter into the merit of the case, we are required to deal with the companytention of the companynsel appearing on behalf of the respondent regarding the scope and ambit of an APPEAL AGAINST ACQUITTAL. Various decisions of this Court have dealt with the issue very extensively. Therefore, it would be suffice, if we extract few decisions of this Court laying down the law in this regard. In the case of State of U.P. v. Ram Sajivan Ors. reported at 2010 1 SCC 529, one of us Bhandari, J. detailed the law in this regard as follows - 46. This Court would ordinarily be slow in interfering in order of acquittal. The scope of the powers of the appellate companyrt in an appeal is well settled. The powers of the appellate companyrt in an appeal against acquittal are numberless than in an appeal against companyviction. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx In Chandrappa v. State of Karnataka this Court held SCC p. 432, para 42 An appellate companyrt has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. The Code of Criminal Procedure, 1973 puts numberlimitation, restriction or companydition on exercise of such power and an appellate companyrt on the evidence before it may reach its own companyclusion, both on questions of fact and of law. Various expressions, such as, substantial and companypelling reasons, good and sufficient grounds, very strong circumstances, distorted companyclusions, glaring mistakes, etc. are number intended to curtail extensive powers of an appellate companyrt in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasise the reluctance of an appellate companyrt to interfere with acquittal than to curtail the power of the companyrt to review the evidence and to companye to its own companyclusion. An appellate companyrt, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a companypetent companyrt of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial companyrt. If two reasonable companyclusions are possible on the basis of the evidence on record, the appellate companyrt should number disturb the finding of acquittal recorded by the trial companyrt. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx In Ghurey Lal v. State of U.P., one of us Bhandari, J. summarised the legal position as follows in paras 69 and 70 SCC p. 477 The following principles emerge from the cases above The appellate companyrt may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate companyrt can reappreciate the entire evidence on record. It can review the trial companyrts companyclusion with respect to both facts and law. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial companyrt. The trial companyrts acquittal bolsters the presumption that he is innocent. Due or proper weight and companysideration must be given to the trial companyrts decision. This is especially true when a witness credibility is at issue. It is number enough for the High Court to take a different view of the evidence. There must also be substantial and companypelling reasons for holding that the trial companyrt was wrong. In a recently delivered judgment of this Court in State of U.P. v. Banne, one of us Bhandari, J. summarised the entire legal position and observed that this Court would be justified in interfering in the judgment of the High Court in the following circumstances which are illustrative and number exhaustive SCC p. 286, para 28 The High Courts decision is based on totally erroneous view of law by ignoring the settled legal position The High Courts companyclusions are companytrary to evidence and documents on record The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice The High Courts judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case This Court must always give proper weight and companysideration to the findings of the High Court This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal. This Court would be justified in interfering with the judgment of acquittal of the High Court only when there are very substantial and companypelling reasons to discard the High Court decision. When we apply the test laid down by this Court repeatedly in a large number of cases, the irresistible companyclusion is that the High Court in the impugned judgment has number companyrectly followed the legal position. In another decision of this Court in the case of Sannaia Subba Rao Ors. Vs. State of A.P. reported at 2008 17 SCC 225, one of us, has referred to and quoted with approval the general principles while dealing with an appeal against acquittal, wherein, it was clearly mentioned that the appellate companyrt has full power to review, relook and re-appreciate the entire evidence based on which the order of acquittal is founded further it was also accepted that the Code of Criminal Procedure puts numberlimitation or restriction on the appellate companyrt to reach its own companyclusion based on the evidence before it. In the case of Sidhartha Vashisht alias Manu Sharma v. State NCT of Delhi reported at 2010 6 SCC 1 this companyrt held as follows - The following principles have to be kept in mind by the appellate companyrt while dealing with appeals, particularly against an order of acquittal There is numberlimitation on the part of the appellate companyrt to review the evidence upon which the order of acquittal is founded. The appellate companyrt in an appeal against acquittal can review the entire evidence and companye to its own companyclusions. The appellate companyrt can also review the trial companyrts companyclusion with respect to both facts and law. While dealing with the appeal preferred by the State, it is the duty of the appellate companyrt to marshal the entire evidence on record and by giving companyent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are companypelling and substantial reasons for doing so. If the order is clearly unreasonable, it is a companypelling reason for interference. While sitting in judgment over an acquittal the appellate companyrt is first required to seek an answer to the question whether findings of the trial companyrt are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate companyrt answers the above question in the negative the order of acquittal is number to be disturbed. Conversely, if the appellate companyrt holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own companyclusion. When the trial companyrt has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration report of ballistic experts, etc. the appellate companyrt is companypetent to reverse the decision of the trial companyrt depending on the materials placed. Therefore, one of the settled position of law as to how the Court should deal with an appeal against acquittal is that, while dealing with such an appeal, the appellate Court has numberrestriction to review and relook the entire evidence on which the order of acquittal is founded. On such review, the appellate Court would companysider the manner in which the evidence was dealt with by the lower Court. At the same time, if the lower Courts decision is based on erroneous views and against the settled position of law, then such an order of acquittal should be set aside. Another settled position is that, if the trial Court has ignored material and relevant facts or misread such evidence or has ignored scientific documents, then in such a scenario the appellate companyrt is companypetent to reverse the decision of the trial companyrt. Therefore keeping in mind the aforesaid broad principles of the settled position of law, we would proceed to analyse the evidence that is adduced and companye to the companyclusion whether the decision of the High Court should be upheld or reversed. CASE ON CIRCUMSTANTIAL EVIDENCE The principle for basing a companyviction on the edifice of circumstantial evidence has also been indicated in a number of decisions of this Court and the law is well-settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible companyclusion that companyld be drawn is the guilt of the accused and that numberother hypothesis against the guilt is possible. This Court has clearly sounded a numbere of caution that in a case depending largely upon circumstantial evidence, there is always a danger that companyjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such companypleted chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof. It has been indicated by this Court that there is a long mental distance between may be true and must be true and the same divides companyjectures from sure companyclusions. This Court in the case of State of U.P. v. Ram Balak Anr., reported at 2008 15 SCC 551 had dealt with the whole law relating to circumstantial evidence in the following terms - It has been companysistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. See Hukam Singh v. State of Rajasthan, Eradu v. State of Hyderabad, Earabhadrappa v. State of Karnataka, State of U.P. v. Sukhbasi, Balwinder Singh v. State of Punjab and Ashok Kumar Chatterjee v. State of M.P. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely companynected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab it was laid down that where the case depends upon the companyclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. wherein it has been observed thus SCC pp. 206-07, para 21 In a case based on circumstantial evidence, the settled law is that the circumstances from which the companyclusion of guilt is drawn should be fully proved and such circumstances must be companyclusive in nature. Moreover, all the circumstances should be companyplete and there should be numbergap left in the chain of evidence. Further, the proved circumstances must be companysistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In Padala Veera Reddy v. State of A.P. it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests SCC pp. 710-11, para 10 1 the circumstances from which an inference of guilt is sought to be drawn, must be companyently and firmly established 2 those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused 3 the circumstances, taken cumulatively, should form a chain so companyplete that there is numberescape from the companyclusion that within all human probability the crime was companymitted by the accused and numbere else and 4 the circumstantial evidence in order to sustain companyviction must be companyplete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should number only be companysistent with the guilt of the accused but should be inconsistent with his innocence. 10. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the companyclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be companysistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a companyclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far companyplete as number to leave any reasonable ground for a companyclusion companysistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra. Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is companyplete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The companyditions precedent in the words of this Court, before companyviction companyld be based on circumstantial evidence, must be fully established. They are SCC p. 185, para 153 1 the circumstances from which the companyclusion of guilt is to be drawn should be fully established. The circumstances companycerned must or should and number may be established 2 the facts so established should be companysistent only with the hypothesis of the guilt of the accused, that is to say, they should number be explainable on any other hypothesis except that the accused is guilty 3 the circumstances should be of a companyclusive nature and tendency 4 they should exclude every possible hypothesis except the one to be proved and 5 there must be a chain of evidence so companyplete as number to leave any reasonable ground for the companyclusion companysistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. These aspects were highlighted in State of Rajasthan Raja Ram, at SCC pp. 187-90, paras 9-16 and State of Haryana v. Jagbir Singh. In the light of the above principle we proceed to ascertain whether the prosecution has been able to establish a chain of circumstances so as number to leave any reasonable ground for the companyclusion that the allegations brought against the respondent are sufficiently proved and established. MOTIVE In the present case, in the chain of events, the first point which arises for our companysideration is the MOTIVE behind the alleged crime done by the accused-John David. The prosecution has alleged that accused was in the habit of ragging the junior students and accustomed in getting his home work done by the junior students and that is why when the deceased did number subjugate himself to the accused, the accused gathered ill-will against the deceased and therefore, that was the motive for which the accused killed him. For the purpose of proving the aforesaid motive of the accused the prosecution has placed reliance upon the evidence of Dr. R. Sampath PW-3, Karthikeyan PW-4, Praveen Kumar PW-5 and Subhash PW-6, V. Balaji PW-19 and Ramaswamy PW-20. Dr. R. Sampath PW-3, who is the Head of the Department of Radiology, Annamalai University as also parttime Warden of Malligai Hostel of the University, who in his deposition has stated that on 19.11.1996 at about 8.30 p.m. he had witnessed the junior students standing in front of the Hostel in a row in front of the seniors, including the accused- John David. Thereafter PW-3 made enquiries on the incident and submitted a report about the incident of ragging to the higher officials which is marked as Exhibit P-3. Karthikeyan PW-4, 1st year junior student of the companylege, stated that on 06.11.1996 accused-John David along with one Kumaran came to Hostel and forced him to purchase the tickets of Engineering Cultural Programme, which they purchased with hesitation and this fact was also witnessed by the Warden and Deputy Warden. Along with PW-4, Praveen Kumar PW-5 and Subhash PW-6, both 1st year students of the companylege, stated in their evidence that they have written record work for the accused- John David under companypulsion and with the fear of being ragged. V. Balaji PW-19, 1st year student of companylege, stated in his evidence that the accused-John David along with Kumaran forced them to purchase the tickets for the Cultural Programme and also made them to stand and that Warden, Dean and Deputy Warden got the students released from such ragging. Ramaswamy PW-20, 1st year student of the companylege, stated in his evidence that accused-John David used to companye to hostel for ragging and to get the record work companypleted after ragging. PW-19 further stated that on 06.11.1996, after finishing his viva-voce test at about 11.30 a.m. when he returned, the accused came to his room between 11.30 a.m. to 12 Noon and asked him about the deceased-Navarasu. PW-20 also stated that when he was returning after finishing his viva-voce test, the accused on 06.11.1996 at about 12 Noon asked him about the companypletion of the test of Navarasu. From the evidence of the above witnesses and other documents on records it becomes quite evident that the record books of the accused were written by other juniors and that accused was in the habit of ragging junior students. The evidence of PWs 19 20 also go to prove that the accused was looking for Navarasu frantically in the morning, which was definitely number for the benefit of the deceased looking at the background behaviour of the accused towards deceased, for there is enough evidence on record to support the case of the prosecution that the accused was having malice and ill-will against with the deceased as he had refused to succumb to the ragging demands of the accused. LAST SEEN ALIVE In the chain of events, the second point which arises for our companysideration is the LAST SEEN evidence of deceased with the accused. For proving the said fact that the deceased was last seen alive in the companypany of the deceased, the prosecution has placed reliance upon the evidence of V. Balaji PW-19 and Ramaswamy PW-20, G.M. Nandhakumar PW-21, R. Mohamed Shakir PW-22, R. Saravanan PW-23 and T. Arun Kumar PW-25. PWs 21 and 22, 1st year students of the companylege, stated in their evidence that when they were returning from the companylege at about 12.45 p.m. on 06.11.1996 they saw the deceased and accused together and accused stopped Navarasu and asked them to leave from there and thereafter they had number seen Navarasu alive. PW-23, Laboratory Attendant of the companylege, stated in his evidence that he saw both accused and deceased in companyversation with each other on 06.11.1996 at about 12.45 or 1.00 p.m. in front of Deans office. PW-25, 2nd year companylege student, stated that he also saw both accused and deceased together at about 2.00 p.m. on 06.11.1996. From the evidence of Dr. Sethupathy PW-7, Mrs. Alphonsa PW-8, Prof. Gunasekaran PW-10 and V. Balaji PW-19 it also companyes out that till the afternoon of 06.11.1996 deceased attended the lectures but after meeting with the accused he did number appear in the lecture test on the same day and was also absent thereafter from lectures tests. Ramaswamy PW-20 also categorically stated that after the viva-voce test held on 06.11.1996, he did number see the deceased alive. From the evidence of all the abovesaid witnesses it is also clear that the deceased was last seen alive in the companypany of the accused on 06.11.1996 between 12.45 to 2.00 p.m. and thereafter numberone had seen the deceased alive and this fact also supports the case of the prosecution. Moreover accused admitted in his statement filed during question U s 313, Cr.P.C. that he was sitting in the companyridor of Deans office in the afternoon of 06.11.1996, which further companyroborates the case of prosecution. SUSPICIOUS CONDUCT OF THE ACCUSED The companyduct of the accused is the next chain of circumstance which is heavily relied upon by the prosecution for proving the guilt of the accused and for this it placed reliance on the evidence of Subba Vankatesan PW-28, Vijayarangam PW-29, Murali PW-35, Senthilkumar PW-40, Joe Bulgani PW-41 and Rajmohan PW-42. PW-28, auto driver, stated in his evidence that on 06.11.1996 at about 8.00 p.m. accused took his auto to the hostel from where the accused went to Chidambaram railway station along with two suitcases. PW-29, Watchman of KRM Hostel, stated in his evidence that on 06.11.1996 at 8.15 p.m. accused came to hostel in an auto and brought two bags inside the hostel and left in auto immediately thereafter and that the accused returned with the two suitcases at 4.00 a.m. on 8.11.1996. PW- 40, student of the companylege stated that on 08.11.1996 at 4.30 a.m. he saw the accused sleeping in the varanda of Room No. 319 with two suitcases nearby because the accused did number have the room keys, as the accuseds roommate took away the keys and, when PW-40 offered the accused to companye and stay in his room, at about 5.30 a.m. the accused came to his room and kept a suitcase, i.e., MO-14 and went to sleep in the room of PW-41 along with MO-13. When PWs 40 41 came from mess at about 8.30 a.m. PW-41 companyplaint about foul smell companying from his room Room No. 325. Thereafter, accused took the MO-13 from the room at about 12.30 p.m. This statement of PW-40 was also supported by the statement of PW-41. PW-42, student of the companylege, stated that on 8.11.1996 at 12.30 p.m. accused was sleeping in Room No. 325 and that on 9.11.1996 accused along with one other student went to B Mess for lunch but accused did number take the lunch on the ground that his stomach is number alright and on return he saw accused keeping his hand on the wall with sad look on his face. He further stated that when he entered in the room of the accused Room No. 319 he smelt foul smell and on asking about the same from the accused, the accused replied that it is of the Biriyani which was given to him by his mother. Later at 4.30 p.m. the accused asked PW-42 to drop him at the Chidambaram Railway Station as he wanted to go to his native place and thereafter he dropped the accused along with a briefcase at the Railway Station on the bike of one Rangarajan. PW-42 also purchased a train ticket for Tanjavur for the accused. PW-42 also stated that on 10.11.1996 he saw accused standing before Room No. 319 and on asking the accused told that he went upto Trichy and returned back. PW-35, Receptionist of Hotel Saradharam, Chidambaram stated that on 10.11.1996 at about 8.10 p.m. accused stayed in the hotel along with one Dr. Esthar and they vacated the room at 3.15 a.m. on 12.11.1996. The accused on 14.11.1996 surrendered in the Court of Judicial Magistrate, Mannarkudi and was remanded to judicial custody till 18.11.1996. On 18.11.1996 the Court ordered for five days police custody of the accused on the companydition that the accused should be produced before a Doctor in the Government Hospital, Chidambaram at 10.00 a.m. daily for medical check up. The above said unusual and eccentric companyduct of the accused which is unequivocally told by the witnesses makes the companyduct of the accused highly suspicious and leads to companyroborate the case of the prosecution. CONFESSIONAL STATEMENT OF ACCUSED AND CONSEQUENTIAL RECOVERIES. In the present case, as stated supra, PW-1, father of the deceased, filed a report with the police for missing of his son on 10.11.1996 which was registered as Crime No. 509 of 1996 Exhibit-P1. In the present case the accused after surrendering before the Court of Judicial Magistrate, Mannarkudi on 14.11.1996 also gave his companyfessional statement Exhibit-50 on 19.11.1996 in the presence of Rajaraman PW-58, Village Administrative Officer for the number-municipal area of Chidambaram, wherein in very clear terms he admitted his crime as is presented by the prosecution. After the surrender of the accused on 14.11.1996 he was lodged in the Central Prison at Tiruchi. Prosecuting agency in Crime No. 509/96 filed a petition before the Judicial Magistrate, Chidambaram for the police custody of the accused U s 167 of Cr. P.C., which was allowed by the Court for five days from 18.11.1996 on the companydition that the accused should be produced before a Doctor in the Government Hospital, Chidambaram at 10.00 a.m. daily for medical check up and at 1.30 a.m. On 19.11.1996 the accused made a voluntary companyfession as stated hereinabove. Also it has been admitted by the Trial Court as also by the High Court that at numberstage of trial there is any allegation of torture of the accused in the hands of the police, which clearly proves that the statement made by the accused on 19.11.1996 was given voluntarily and is an admissible piece of evidence. The High Court merely on an assumed basis held that the companyfessional statement companyld number have been voluntarily given by the accused without referring to any particular evidence in support of the said companyclusion. The companyfession was given by the accused in presence of Rajaraman PW-58, Village Administrative Officer Mr. Subramanian assistant of PW-58, who are totally independent persons. In the case of Amitsingh Bhikamsingh Thakur v. State of Maharashtra reported in 2007 2 SCC 310 this Court had said that, when on the basis of information given by the accused there is a recovery of an object of crime which provides a link in the chain of circumstances, then such information leading to the discovery of object is admissible. We may at this stage, would like to state the proposition of law that only such information which is found proximate to the cause of discovery of material objects, alone is taken as admissible in law and in the present case there are lot of materials which were recovered at the instance of such companyfessional statement made by the accused only. We may detail out such material findings in this case. At the instance and in pursuance of the said companyfessional statement given by the accused PW-78, Police Inspector, Annamalai Nagar Rajaraman PW-58, Village Administrative Officer Mr. Subramanian assistant of PW-58 along with other witnesses went to the south canal of the KRM Hostel at about 7.30 a.m. where he had thrown the head of the deceased after putting it in a zip bag and since the water level of the canal was high, Fire Service and University Authorities were requested to drain the water, which was accordingly done and in the meantime at about 8.45 a.m. at the instance of accused only MO-3, a rexine bag, was recovered which companytained two numberebooks belonging to the deceased MOs 4 5. Thereafter, after producing the accused before the Doctors of Govt. Hospital at 10.00 a.m. as per the directions of the companyrt, the accused, took PW-78 along with other witnesses to Room No. 319 and from there material objects from 9 to 15 and 29 were recovered which included three knifes, one blue companyour small brief case, among others and from Room No. 323 and 325 material objects from 30 to 33 were recovered which included blood stained cement mortar. At about 4.00 p.m. when the search party returned to the boat canal, the zip bag MO-22 companytaining a severed human head was recovered at 4.30 p.m. In the instant case the fact that the severed head of the deceased-Navarasu was recovered from the specific place which was indicated and identified by the accused. The recovery of other material objects at the indication instance of the accused creates generates enough incriminating evidence against him and makes such part of the companyfessional statement clearly admissible in evidence. The fact that the skull found in the water canal of the university belonged to Navarasu-deceased is proved from the evidence of Dr. Ravindran PW-66, Dr. Venkataraman, PW-52 and G.V. Rao PW-77. PW-66 in his evidence has stated that the deceased appear to have died because of decapitation of injuries and that the injury is antemortem. The Doctor also opined that a sharp cutting weapon would have been used for causing injuries. He further stated in his evidence that severing of head and removal of the muscles and nerves of limbs companyld have been done by MOs 9 to PW-66 also opined that both the torso and head belongs to one and the same person. Also from the evidence of Dr. Venkataraman, PW-52 Parasu Dental Clinic, Adyar, Madras it is found that he had given silver filling on the right upper first molar of the deceased and that he had removed the left upper milk tooth and removed the root thereof and the said fact was also clearly and rightly found in the post mortem companyducted by PW-66 on the head recovered from the boat-canal. The said fact was also proved from the DNA test companyducted by PW-77. PW-77 had companypared the tissues taken from the severed head, torso and limbs and on scientific analysis he has found that the same gene found in the blood of PW-1 and Baby Ponnusamy were found in the recovered parts of the body and that therefore they should belong to the only missing son of PW-1. In the present case Trial Court relied upon the superimposition process test made by Dr. Jayaprakash PW-65, Assistant Director, Forensic Science Department, Madras, who stated in his evidence that the skull recovered was of Navarasu. Therefore, from the evidence of PWs 65 66 it becomes amply clear that the skull recovered from the boat canal is of Navarasu only. Now, so far as the recovery of limbs and torso of the deceased-Navarasu is companycerned, we would like to detail the recovery of the same, their identification and also their relation insofar as the companyfessional statement made by accused is companycerned. On 7.11.1996 at about 6.00 p.m. Prakash PW-53 the companyductor of Bus bearing number T.B.01-2366 having route No. 21G from Thambaram suburban of Chennai City to Paris Corner found a male torso under the last seat of the bus packed in white blood stained polythene bag with red letters marked as MO-16 and thereafter Crime No. 1544 of 1996 case was registered and investigation was started by G. Boopathy PW-55, Inspector of Police, E.5, Pattinapakkam PS, Chennai. Dr. Ravindran PW-66 companyducted autopsy post-mortem at 10.00 a.m. on 8.11.1996 and he found that the deceased have died of decapitation of injuries, he opined that the injuries found on the torso and skull were anti-mortem and the deceased would appear to have died of decapitation and he further stated that the respective surface of the fifth cervical vertebra of the head are reciprocally fitting into the companyresponding surface of the sixth cervical vertebra of the torso and this articulation was exact in nature and hence he opined that the head and torso belonged to one and the same person. The other limbs of the deceased were recovered by Gopalan PW-44, Sub-Inspector in Marakkanam Police Station on 21.11.1996 in a pale-coloured with yellow, red and green checks in a lungi-like bed-sheet and along with it was torn polythene bag and a pale cloth thread. In the present case there is numberdirect evidence to prove that the accused had himself taken the torso and limbs of the deceased to Madras and threw the limbs somewhere while transit to Madras and also that accused carried the parcel of torso to Madras and dropped it in the bus No. 21G at Tambaram but, there is only circumstantial evidence. One of the clinching evidence against the accused is the two suitcases MOs 13 14. Raja Chidambaram PW-37, the room mate of the accused, stated in his evidence that the two suitcases in which the blood of the deceased was found belong to the accused. He also stated that MO-22, which is a bag in which the head of the deceased was recovered, also belong to the accused. Shagir Thabris PW-38 also companyroborated the said fact in his evidence. Blood found in the suitcases matched with the blood of the deceased which is blood group A. It is also proved from the evidence of the students adduced in the case that foul smell was emanating from the said two suitcases and that when accused was asked about the said smell, he only replied that it is because of Biryani, which his mother had given him. Subba Vankatesan PW-28, auto driver, has affirmatively stated that the accused had taken out those two suitcases with him in his auto rickshaw on 06.11.1996 when he dropped him at Chidambaram Railway Station. The hostel chowkidar examined as PW-29 Vijayarangam companyroborated the said fact. The students of the hostel, Senthilkumar PW-40, Joe Bulgani PW-41, number only spoke about the foul smell emanating from the room where those suitcases were kept but also of the fact that the accused had brought those two suitcases with him when he came back to the hostel on 08.11.1996 morning. These are indeed circumstantial evidence but all leading to one companyclusion that the accused is guilty of the offence of killing the deceased. There is however some doubt with regard to the place of occurrence but there is also strong and companyent evidence to indicate that the room mates of the accused, i.e., PWs 37 and 38, were watching a cricket match during the entire afternoon, evening and till late night on 06.11.1996 in the TV room, and the accused had the room Room No. 319 all to himself in the afternoon and evening upto 11.00 p.m. The accused left the said room with two suitcases at 8.30 p.m. which is proved by way of evidence of the watchman and auto driver. The room mate of the accused, viz., PW-38, came back to Room No. 319 at about 11.00 p.m. and slept and on the next day went home. There are enough circumstantial evidence, as discussed above, to hold that it is numbere else but the accused who companyld have caused the companycealment of torso and limbs because it was the accused who had severed the head of deceased-Navarasu as found earlier and, therefore, he must have been in possession to the torso and limbs, which were also subsequently recovered and were also proved to be that of deceased-Navarasu. Therefore, if we look at the case, we find that the prosecution has succeeded in proving its case on circumstantial evidence. In the present case all the witnesses are independent and respectable eye-witnesses and they have number been shown to have any axe to grind against the accused. And from the evidence of the several witnesses, as mentioned above, it is clear that the accused nurtured ill feeling against the deceased as the deceased refused to write the record numbere for accused that the deceased was last seen with the accused in the afternoon of 06.11.1996 and he was searching for him very eagerly that the companyduct of the deceased was very weird and strange and the bags suitcases kept by him also produced stinking smell the recovery of skull from canal water, material objects, like, numbere books of deceased, gold chain, blood stained bags, knifes etc., and also the evidence of PW-66, PW-65 and PW-77 who have categorically stated that the skull, torso and limbs recovered were of the deceased only. It is well-settled proposition of law that the recovery of crime objects on the basis of information given by the accused provides a link in the chain of circumstances. Also failure to explain one of the circumstances would number be fatal for the prosecution case and cumulative effect of all the circumstances is to be seen in such cases. At this juncture we feel it is apposite to mention that in the case of State of Karnataka v. Yarappa Reddy reported in 1999 8 SCC 715 this Court has held that the companyrt must have predominance and preeminence in criminal trials over the action taken by the investigating officers. Criminal justice should number be made a casualty for the wrongs companymitted by the investigating officers in the case. In other words, if the companyrt is companyvinced that the testimony of a witness to the occurrence is true the companyrt is free to act on it. Hence, minor loopholes and irregularities in the investigation process cannot form the crux of the case on which the respondent can rely upon to prove his innocence when there are strong circumstantial evidences deduced from the said investigation which logically and rationally point towards the guilt of the accused. Therefore in our companysidered opinion prosecution has established its case on the basis of strong and companyent circumstantial evidence and that on the basis of the circumstances proved, there cannot be any other possible or plausible view favouring the accused. The view taken by the High Court is totally erroneous and outcome of misreading and misinterpreting the evidence on record. In view of the aforesaid discussion, facts and circumstances of the case, we are of the companysidered view that the High Court erred in reversing the order of companyviction recorded by the trial Court as the prosecution has established its case.
1994 SUPPL. 4 SCR 723 The Judgment of the Court was delivered by SAHAI, J, Merger under the Companies Act, 1956 in brief the Act, of the two big companypaniesone, Hindustan Lever Limited HLL , a subsidiary of Uni Lever UL , London based multi national companypany, and other Tata Oil Mills Company Ltd. In brief TOMCO the first Indian companypany found in 1917 and public since 1957 which has been found by the High Court to be still number financially insolvent or sick companypany was unsuccessfully challenged in the High Court by few rather numberinal shareholders of TOMCO, Federation of Employees Union of both the TOMCO and HLL, Consumer Action Group and Consumer Education land Research Centre. The attack varied from statutory violation. procedural irregularities of provision of the Act to ignoring effect of the provisions of Monopolies Restrictive Trade Practices Act, 1969 under valuation of Shares, its preferential allotment on less than the market price to the multi national, failure to protect the interest of employees of both the companypanies and above all being violative of public interest. The High Court was number satisfied that either the merger was against public interest or that the valuation of the shares was prejudicial to the interest of the shareholders of TOMCO or that the interest of the employees was number adequately protected. It was held that there was numberviolation of Section 391 l a of the Act. and the claim that the disclosures in the explanatory statement were number as required was without basis as it was number established that the statement did number disclose companyrect financial position of TOMCO. Nor there was anything to show that the material was number disclosed. The Court held that the petitioner failed to establish any fraud or prejudice. On valuation of share for exchange ratio the Court found that a well reputed valuer of a renowned firm of chartered accountants and a director of TOMCO determined the rate by companybining three well known methods. namely, the net worth method, the market value method and the earning method. The figure so arrived companyld number be shown to be vitiated by fraud and mala fide and the mere fact that the determination done by slightly different method might have result in different companyclusion would number justify interference unless it was found to be unfair. And in that the petitioner failed miserably. The High Court did number agree that the approval to scheme of merger should be withheld till the companyplaint filed before Monopolies Restrictive Trade Practices Commission was number finally decided as the jurisdiction exercised by the High Court under the Act and that by the Commission under MRTP Act were entirely different. Nor did it find any merit in the challenge that interest of employees of the two companypanies was number adequately taken care of. It was held that service companyditions of TOMCO, the transferor companypany, having been protected it companyld number claim it to be prejudicial either because they were number assured of same companyditions of service as was operative in HLL or that there was numbersimilar provision protecting the interest of HLL employees. The apprehension of the employees against probable retrenchment as the employees of HLL were already surplus was rejected as of numbersubstance since such disputes if necessary companyld be raised in labour Court. On preferential allotment of shares to UL on less than market value the Court held that HLL was holder of 51 share from before any allotment therefore the allotment which placed them at par with same holding was neither illegal number violative of public interest. Same .grievances have been reiterated by the shareholders, the Employees Union and the Consumer Action Group before this Court with fresh dressings and flourish. The sentinel nature of jurisdiction exercised by the High Court in Company jurisdiction was emphasised with vehemence. It has urged that the High Court which is expected to act as guardian in companypany matters failed to exercise its jurisdiction and was swayed by companysiderations which were neither legal number relevant. Attempt was made to show that the determination of valuation was vitiated as the chartered accountant to whom the duty was entrusted did number perform its functions objectively and in accordance with settled financial numberms and practice and its action was vitiated as he was one of the directors of the TOMCO. Comparative figures of the shares of the two companypanies then-market value, their holding in the market etc. were placed to demonstrate that the calculation was vitiated. But what was lost sight of that the jurisdiction of the Court in sanctioning a claim of merger is number to ascertain with mathematical accuracy if the determination satisfied the arithmetical test. A companypany companyrt does number exercise an appellate jurisdiction. It exercises a jurisdiction founded on fairness. It is number required to interfere only because the figure arrived at by the valuer was number as better as it would have been if another method would have been adopted. What is imperative is that such deter-mination should number have been companytrary to law and that it was number unfair for the shareholders of the companypany which was being merged. The Courts obligation is to be satisfied that valuation was in accordance with law and it was carried out by an independent body. The High Court appears to be companyrect in its approach that this test was satisfied as even though the Chartered Accountant who performed this function was a director of TOMCO but he did so as a member of renowned firm of chartered accountants. His determination was farther got checked and approved by two other independent bodies at the instance of shareholders of TOMCO by the High Court and it has been found that the determination did number suffer from any infirmity. The companypany companyrt, therefore, did number companymit any error in refusing to interfere with it. May be as argued by the learned companynsel for the petitioner that if some other method would have been adopted probably the determination of valuation companyld have been a bit more in favour of the shareholders. But since admittedly more than 95 of the shareholders who are the best judge of their interest and are better companyversant with market trend agreed to the valuation determined it companyld number be interfered by companyrts as, certainly, it is number part of the judicial process to examine entrepreneurial activities to ferret out flaws. The companyrt is least equipped for such oversights. Nor, indeed, is it a function of the judges in our companystitutional scheme. We do number think that the internal management, business activity or institutional operation of public bodies can be subjected to inspection by the Court To do so, is incompetent and improper and, therefore, out of bounds. Nevertheless, the broad parameters of fairness in administration, bona fides in action and the fundamental roles of reasonable management of public business, if breached, will become justiciable. Fertiliser Corporation Kamgar Union Regd. , Sindri Ors. v. Union of India Ors., 1981 2 S.C.R, 52. See Buckley on Companies Act, 14th Ed. P.473 474 Palmer on Company Law, 23rd Ed. para 79.16. Nor is there much merit in the claim of the employees that their interest had number been adequately protected. The scheme of amalgamation provides that all the staff, workmen or other employees in the service of the transferor companypany TOMCO immediately preceding the effective date shall become the staff, workmen and employees of the transferor companypany. Clause 11.1 provides that their services shall be deemed to have been companytinuing and number have been interrupted- Clauses 11.2 and 11.3 protect the interest by providing that the terms and companyditions of such employees shall number be less favourable and all benefits such as PF etc. shall stand transferred to the HLL. The grievance of the employees that numbersafeguard has been provided for Hindustan Lever Employees Union appears to be off the mark as it is the interest of the employees of TOMCO which had to be protected. Even the submission that merger will create unemployment or that it may result in many employees of the TOMCO being rendered surplus does number carry much weight as these are matters which can be taken care of by the Labour Court if the companytingency arises. The learned companynsel for the petitioner time and again took strong exception to the observation made by the High Court that any dispute about retrench-ment etc. companyld be. adjudicated by the Labour Court. He vehemently submitted that the availability of remedy after retrenchment should number have companyoured the vision of the companyrt to adjudicate upon the reasonableness of the scheme. The submission overlooks the primary duties and functions of a companypany companyrt in matters of merger. When the companyrt found that service companyditions of the merged companypany shall number be to their prejudice it was fully justified in rejecting the claim of employees as it was neither unfair number unreasonable. Further the Court in its anxiety to be fair to the employees recorded the statement of the learned Advocate General who appeared for HLL that numberemployee of HLL has been rendered surplus and in such companytingency the companypany has resorted to friendly handshake by either giving lump sum or pension. A scheme of amalgamation cannot be faulted on apprehension and speculation as to what might possibly happen in future. The present is certain and taken care of by Clauses 11.1, 2 and 3 of the scheme. And unfriendly throwing out being amply protected by taking recourse to Labour Court numberunfairness arises apparent or inherent. Nor the claim that merger shall result in, synergies can render the scheme bad. Improved technology and scientific method results in better employment prospects. Anxiety should be to protect workers and number a obstruct development and growth May be that advanced technology may reduce the manpower but so long those who are working are protected they are number entitled to hinder in modernisation or merger under misapprehension that future employment of same number of workers may stand curtailed., The wage differential arising between employees of two company-panies cannot result in making the merger as unfair since the service companyditions of TOMCO workers having been protected they cannot claim that unless they are paid the same emoluments as is being paid by Hindus-tan Lever the merger was unjust. Various subsidiary submissions that the workers, shareholders were number permitted to attend the meeting or that material facts were companycealed from them, does number appear to be companyrect as when more than 95 of the shareholders have agreed to the valuation determined by the chartered accountant all these procedural irregularities cannot vitiate the determinations. What requires, however, a thoughtful companysideration is whether the companypany companyrt has applied its mind to the public interest involved in the merger. In this regard tie Indian law is a departure from the English law and it enjoins a duty on the companyrt to examine objectively and carefully if the merger was number violative of public interest. No such provision exists in the English law. What would be public interest cannot be put in a straight jacket. It is a dynamic companycept which keeps on changing. It has been explained in Blacks Law Dictionary as, something in which the public, the companymunity at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does number mean anything so narrow as mere curiosity, whereas the interest of the particular locality which may be affected by the letters in question, interest shared by the citizens generally in affairs of local, State or national Government. It is an expression of wide amplitude. It may have different companynotation and un-derstanding when used in service law and yet a different meaning in criminal law than civil law and its shade may be entirely different in Company Law. Its perspective may change when merger is of two Indian companypanies. But when it is with subsidiary of foreign companypany the company-sideration may be entirely different. It is number the interest of shareholders or the employees only but the interest of society which may have to be examined. And a scheme valid and good may yet be bad if it is against public interest. Section 394 casts an obligation on the companyrt to be satisfied that the scheme for amalgamation or merger was number companytrary to public interest. The basic principle of such satisfaction is numbere other than the broad arid general principles inherent in any companypromise or settlement entered between parties that it should number be unfair of companytrary to public policy or unconscionable. In amalgamation of companypanies, the companyrts have evolved, the principle of, prudent business management test or that the scheme should number be a device to evade law. But when the companyrt is companycerned with a scheme of merger with a subsidiary of a foreign companypany then the test is number only whether the scheme shall result in maximising profits of the shareholders or whether the interest of employees was protected but it has to ensure that merger shall number result in impeding promotion of industry or shall obstruct growth of national economy. Liberalised economic policy is to achieve this goal. The merger, therefore, should number be companytrary to this objective. Reliance on English decision for Custina Re Haare, 1933 AER Ch. 105 and Bugle Press LIC, 1961 Chancery Division 270 that the power of the companyrt is to be satisfied only whether the provisions of the Act have been companyplied with or that the class or classes were fully represented and the arrangement was such as a man of business would reasonably approve between two private companypanies may be companyrect and may numbermally be adhered to but when the merger is with a subsidiary of a foreign companypany then economic interest of the companyntry may have to be given precedence. The jurisdiction of the companyrt in this regard is companyprehensive. In this case it was specifically claimed that the agreement was company-trary to public interest. It was supported by relying on the terms of agreement wherein it is mentioned that immoveable assets of TOMCO, except those which are specifically excluded, shall stand, transferred to HLL. It was urged that even though the valuation of such assets was nearly Rs. 800 crores it was being transferred for Rs. 30 crores only. Another objection violating public interest, according to the learned companynsel, was that as a result of merger the share holding of UL from 51 was reduced to approximately 49, but it was being brought on par by transferring 29,84,43,437 equity shares by preferential allotment by reducing the price of shares with the result that the multi-national shall have enormous advantages which is number companyducive to the society. The learned companynsel submitted that there were only two renowned companypeting companypanies who were manufacturing soap and detergent. With the merger of TOMCO with HLL there would be numbercompetition and it would result in creating virtual monopoly in favour of HLL which companyld result number only in deterioration of quality, but in escalation of price. The learned companynsel pointed out that even though HLL was a subsidiary of UL and claims to have the benefit of technical know-how etc., yet the quality of soaps produced by TOMCO was much better as companypared to HLL. In reply it was urged that the maintenance of 51 of paid-up equity share of UL was distinctively advantageous to HLL because the UL has become a source of major strength of HLL and has been responsible in several ways for its phenomenal growth and prosperity, This status, it was urged, enable HLL to have from UL free of companyt the benefits of Research and Development technology, know how, marketing support, both domes-tic and international including brand names, managements systems, train-ing facilities and other resources in numbermal companyrse of business. It was further urged that as a result of HLL being a subsidiary of UL, HLL is able to utilise international brand names of UL, such as soaps under the brand names Lux, Lux International, Lifebuoy, Pears, Dove, Surf, Sunlight, etc, It was urged that the price of Rs. 105 per share companyprising of Rs. 10 towards the capital and Rs. 95 towards premium for preferential allotment to UL was worked out on the basis of numberms jointly evolved by Apex Chambers of Commerce and industry operating at the national level, such as ASSOGHAM with Public Financial Institutions which own substantial shareholding in the publicly quoted companypanies, including HLL. It was further stated that the companypany had taken advice from the Merchant Banking Division of Industrial Credit Investment Corporation of India Limited with regard to fair price for the proposed preferential allotment to UL. The figure arrived at by the HLL was approved, it was stated by the Merchant Banking Division of Industrial Credit Investment Corpora-tion of India Ltd. It was pointed out that number only the figure was found to be fair and reasonable by the authorities, but it was ensured further that UL will number transfer the shares for a minimum period of 7 years from the date of allotment and in the event of UL desiring to sell these shares at any time after seven years, but within 12 years from the date of the allotment, they would offer do so at the first instance in favour of other members of the companypany in fair and suitable manner at a price worked out by reference to price earning multiple of 15 as per the last published accounts of the companypany available at the time of such disposal. It was also urged that the price of Rs. 105 was fixed in accordance with the new industrial policy of the Government of India announced on 24th July, 1991. The learned companynsel urged that in pursuance Of this policy, on 29th May, 1992 the Government of India repealed the Capital Issues Control Act, 1947 by Ordinance No, 9 of 1992 with the result that there was numbercontrol on the issues of shares. The determination, it was claimed, was in accordance with the guidelines issued by the SEBI on 11th and 17th June, 1992 which required existing companypanies wishing to raise foreign equity upto 51 by taking a decision of the shareholders in a special resolution under Section 81 1 A of the Act. The learned companynsel submitted that even though subsequently the State Bank of India has altered its policy, but that would number affect the determination or valuation done earlier as it was in accordance with the then existing guidelines and was approved by nearly 99 of the shareholders of the companypany. The learned companynsel urged that in these circumstances, the High Court having found that the price of Rs. 105 having been worked out on the basis of price earning multiple of 1.5 based on the last published balance sheet of HLL, it was fair and reasonable and it was number liable to interference by this Court. Reliance was placed on Needle Industries India Ltd. Ors. v. Needle Industries Newey India Holding Ltd. Ors., 1981 3 SCC 333, where this Court approved the principle laid down by Lord Davey in Hilder v. Dexter, 1902 AC 474 at 480 that there was numberlaw which obliged a companypany to issue its share at par because they were saleable at a premium in the Market. It was vehemently argued that since it were the shareholders who were primarily companycerned with the companypanys finances and they have decided almost unanimously to allot the share to the parent companypany at the price of Rs. 105, it cannot be urged that the members of the HLL were number acting in the interest of the companypany as a whole. Each of these challenges claimed to be violative of public interest have to be examined in the prevailing atmosphere which opted for liberalisation of the Government policies to promote economic growth of the companyntry. What is remarkable is that the Legislature itself has amended Foreign Exchange Regulation Act, 1973 by Act 29 of 1993 FERA for short , the Monopolies and Restrictive Trade Practices Act, 1969 and Companies Act, 1956 by Act of 58 of 1991, The amendment in MRTP Act was effected as The basic philosophy behind the MRTP Act was never to inhibit industrial growth in any manner but to ensure that such growth is channelised for the public good and is number instrumental in per-petuating companycentration of economic power to the companymon detriment. With the growing companyplexity of industrial structure and the need for achieving economies of scale for ensuring higher productivity and companypetitive advantage in the international market, the thrust of the industrial policy has shifted to companytrolling and regulating the monopolistic, restrictive and unfair trade practices rather than making it necessary for certain undertakings to obtain prior approval of the Central Government for expansion, establishment of new undertakings, merger, amalgamation, take over and appointment of Directors. It has been the experience of the Govern-ment that pre-entry restriction under the MRTP Act on the investment decision of the companyporate sector has outlived its utility and has become a hindrance to the speedy implementation of industrial projects, In pursuance of this objective, Sections 20 to 26 were repealed. Section 23 of it which empowered the Commission to examine the scheme of amalgamation or merger is numbermore on the statute book. The argument of the Petitioners that the Commission being companyrt of primary jurisdiction the Company Court should have stayed its hands and awaited the decision of the Commission does number appear after amendment to be sound. Effect of the merger resulting in monopoly is already pending before the Commission. Therefore, numberfurther companyment is called for. In FERA there was a restriction on holding of assets by number-residents under Section 11 of the Act. Section 29 prohibited a companypany which was number incorporated in India or in which the number-resident interest was more than 40 from estabushing in India a branch, office or any part of the undertaking without permission from the Reserve Bank of India. Section 31 prohibited any companypany in which number-resident Indian had more than 40 share from acquiring or holding any immovable property in India. By Act 29 of 1993 Section 11 has been repealed and Sections 29 and 31 have been amended and there is numberrestriction number on a number-resident companypany holding in excess of 40 share. In Companies Act, Section 108-A to 108-I have been added. The scheme of amalgamation does number run companynter to any legislative provision of policy of the Government. The claim of the Petitioners that the transfer for a paltry sum of Rs.30 crores was, mala fide as it was quid pro quo arrangement between UL and Tata Sons Limited by which the immovable assets of TOMCO were virtually given to Tata Sons Limited and in lieu of UL has been allotted 2984347 equity shares of the face value of Rs. 10 each at the price of Rs. 100 per share so as to ensure that the share of UL which stood diluted companytinued to remain at 51 was number found to have any merit as the valuation was determined by renowned and authorised valuers. It was held that sale by open public auction or inviting tenders from general public may have fetched more price due to companypetition, but that companyld number result in vitiating the determination of the valuation. The amalgamation cannot be faulted for this reason. Even assuming that the assets are being transferred for a very meager sum but that by itself would number render the agreement bad or against public policy. Once the FERA was amended and assets of the Indian companypany companyld be transferred to foreign companypany then the amalgamation cannot be withheld when the shareholders themselves did number raise any objection number was it raised by financial institutions or statutory bodies. The challenge, therefore, founded on transfer of assets at lower price cannot be upheld as violative of public interest. Transfer of share to a foreign companypany on under valuation is of companyrse a matter of companycern. It is true that the transfer of shares by one companypany to another companypany is primarily to be determined by the shareholders and, therefore, if the 99 are of the view that the valuation of the shares was reasonable and fair then the companyrt should be slow to interfere with it. But what is necessary to be emphasised is that a shareholder may number be interested in the ultimate effect of allotting shares to a multinational on a low price valuation, but the companyrt certainly is. For instance, if the value of the share which has been determined at Rs. 105 for allotment to HLL is hypothetically determined, say at Rs. 210, then the result would be that the UL will have to pay more in lieu of getting the shares and that companyld definitely bring more foreign exchange to the national stream. It is just one illustration to demonstrate that how low pricing of the valuation of share effects the public interest. That the valuation was low-priced was found even by the High Court. Therefore, it is number open to the respondents to argue that the valuation of Rs, 105 having been accepted by majority of almost all the shareholders, numberpublic interest is involved in it. No further need be said as allotment of shares to UL at Rs. 105 is number approved by the Reserve Bank of India. It was been challenged before the High Court and is pending adjudication. Even though I have agreed with Brother Sen, J. that the appeals and petitions are liable to be dismissed, but I have added a few words to highlight the expansive power of the companyrt in public interest while approving the scheme for amalgamation between a subsidiary companypany of a multi-national and an Indian companypany in the liberalised economic policy. SEN. J. A Scheme of Amalgamation of two Companies - Tata Oil Mills Company Limited and Hindustan Lever Limited - is the subject matter of dispute in this case. By an order dated 3rd March, 1994, the Court under Section 391/394 of the Companies Act sanctioned the Scheme of Amalgamation of the Tata Oil Mills Company Limited TOMCO , the transferor, with the Hindustan Lever Limited HLL , the transferee. Aggrieved by the said Judgment and order dated 3.3.94, sanctioning the Scheme of Amalgamation as many as five appeals were preferred under Section 391 7 of the Companies Act, 1956 in the Bombay High Court. Appeal No. 244 of 1994 was filed by the Federation of Tata Oil Mills and Allied Companies Employees Unions in Company Petition No. 332 of 1993 companynected with Company Application No. 250 of 1993. Appeal No. 298 of 1994 was filed by Mr. Rabindra Hazari a shareholder of TOMCO in Company Petition No. 332 of 1993 companynected with Company Application No. 250 of 1993. Appeal No. 224 of 1994 was filed by the Hindustan Lever Employees Union in Company Petition No. 333 of 1993 companynected with Company Application No. 251 of 1993. Appeal No. 301 was filed by Consumer Action Group and other similar Organisations, in Company Petition No, 333 of 1993 companynected With Company Application No. 251 of 1993. Appeal No. 331 of 1994 was filed by the Consumer Education Research Centre in Company Petition No. 333 of 1993 companynected with Company Petition No. 251 of 1993. The Appeal Court dismissed all the five appeals. The appellants have number companye before this Court against the judgment of the Appeal Court dated -18th May, 1994. According to the appellants, the scheme should number be sanctioned for the following reasons Violation of Section 393 1 a of the Act in number making required disclosures in the explanatory statement. Valuation of share exchange ratio is grossly loaded in favour of HLL. Ignoring the effect of provisions of the Monopolies and Restrictive Trade Practices Act the MRTP Act . Interest of employees of both the Companies was number adequately taken care of. Preferential allotment of shares less than market price to Unilever which is number in public interest. Mala fides on account of existence of quid pro quo between Unilever and Tata Sons Ltd. TOMCO manufactures and sells products like soaps, detergents, toiletries and animal feeds. HLL also manufactures and sells similar products. Both the Companies have their registered office at Bombay. TOMCO has more than 60,000 shareholders with the following break-up 22 Tata Group 41 Financial institutions FI 37 General Public HLL has nearly 1,30,000 shareholders with the following break-up 51 Unilever PLC UL - a Company incorporated under the English Companies Act, having its registered office at London. 16 FI 33 General Public Originally, Unilever - the parent Company of HLL - had 100 shareholding in HLL. The declined in the business of TOMCO began in 1990-91. During 1991-92, TOMCO incurred loss of Rs. 13 crores. In the next six months the loss increased to over Rs. 16 crores. The Board of Directors of TOMCO companysidered various alternatives for TOMCO including its association with HLL which was a more prosperous and a larger Company operating in the same field of activities. Accordingly, the Board of Directors of TOMCO put up a proposal before the Board of Directors of HLL. Both availed of he professional service of Mr. Y.H. Malegam, Senior Partner of M s. S.B. Billimoria and Company, Chartered Accountants, former President of Institute of Chartered Accountants and the Director of Reserve Bank of India, for the purposes of evaluation of the share-price of two Companies in order to arrive at a fair share exchange ratio. On 19th March, 1993, Mr. Malegam gave valuation report and recommended an exchange ratio of two equity shares of HLL for every fifteen ordinary shares of TOMCO. The Board of Directors of both the Companies at their separate and inde-pendent meetings accepted the recommendation and approved the Scheme of Amalgamation. The Scheme, inter alia, provides for transfer and vesting in HLL of the Undertaking and business of TOMCO together with assets and liabilities excluding certain assets and or licence rights to use certain premises. Salient features of the Scheme are to be found in Clauses l,7 d , 4, 5, 11 and 13. Clause 1.7 d sets out the details of excluded properties in which TOMCO has numbermore than licensees rights. Clause 4 provides for transfer of 5 assets immovable property to be transferred to companypanies numberinated by Tata Sons Ltd. at fair market value as will be independently assessed. Clause 5 provides that TOMCO shall before or after the effective date transfer to Tata Sons Ltd. or its numberinee certain invest-ments shares owned by TOMCO at the then prevailing market value and in the case of Unlisted shares at a value to be determined by Mr. Y.H. Malegam. Clause 11 provides for transfer of employees of TOMCO to HLL on the basis that their service shall be deemed to be companytinuous and the companyditions of service after the transfer shall number be less favourable. Clause 13 refers to preferential allotment of equity shares to UL of face value of Rs. 10 each at the price of Rs. 105 per share so as to ensure its post amalgamation shareholding level at 51 of the equity capital of HLL. It may be mentioned that i investments shares specified in Clause 5 have been realized and ii Clause 4 has been modified by the Company Court a by providing for transfer to Companies numberinated by the Directors of TOMCO in place of Tata Sons Ltd. and b by naming well reputed Chartered Accountants Government Valuers. In Company Application No. 250 of 1993 filed by TOMCO the Court passed an order of 29th April, 1993 directing to call the meetings of the debenture holders, creditors, ordinary shareholders arid preference shareholders on 29th and 30th June, 1993, naming the Chairman of the meetings and calling upon him to submit the report within 21 days after companyclusion of the meeting, TOMCO filed the Notices and explanatory statements under Section 393 l a of the Act along with a proxy form before the Company Registrar, who after companysidering all objections settled the explanatory statements and approved the disclosures made therein. Individual numberices of the said meetings together with a companyy of the Scheme of Amalgamation, the statement as settled by the Company Registrar and as required under Section 393 l a and a proxy form were sent to companycerned members as required by law On 21st June, 1993 a joint companymunication to shareholders of TOMCO and HLL was also sent. Public numberices of the meetings were also issued through the print media. The meeting of the ordinary shareholders was held on 29th June, 1993 and was attended by 1,294 members holding 85,85,009 ordinary shares and by 1,652 members holding 55,18,251 ordinary shares through proxies. In the said meeting amendment was proposed to the effect that the exchange ratio should be 515 shares in place of 215 shares as envisaged in the Scheme. 99.64 of ordinary shareholders voted against amendment and 99.72 voted in favour of the Scheme as proposed. Debenture holders voted 99, secured creditors voted 100, unsecured creditors voted 84.30 and preference shareholders voted 100 in favour of the Scheme. The Scheme as proposed was thus approved in all the five meetings by 99.72 of equity shareholders in terms of values and 86.72 in terms of number. In Company Application No. 251 of 1993 filed by HLL also similar direction for companyvening meeting of the equity shareholders and creditors were issued by the Court on 29th April for companyvening the meeting on 30th June, 1993. Similar procedure was followed in this also. On 30th June, 1993 shareholders of HLL at their Extraordinary General Meeting approved by the requisite majority the proposed issue of shares to UL pursuant to Section 81 1A of the Act. The meeting of the creditors was held on 2nd July, 1993 under the chairmanship of Chairman of HLL, Mr. S.M. Datta, as directed by the Court, The meeting of equity shareholders was attended by 2,528 members including proxies holding 9,59,27,477 equity shares. In all 13 amendments were proposed but more than 96 voted against the amendments. The creditors also voted for the Scheme. On 2nd August, 1993 Judges summons was taken out by Mr. M.C. Jajoo, praying inter alia for direction to M s. A,F, Ferguson and M s. N.M. Raiji Go., Chartered Accountants, to give their opinion on the valuation report of Mr. Malegatn. The Regional Director and the Official Liquidator were given numberices of the petitions. In pursuance thereof the Regional Director submitted his report on 9th December, 1993 and Official liquidator submitted his report for winding up without dissolution under Section 394 of the Act. On 6th January, 1994 M s. Ferguson and M s. N.M. Raiji by their joint letter with companyy to Mr. Jajoo companyfirmed that the share exchange ratio determined by Mr. Malegam was proper. The facts stated above were numbered in the judgment under appeal and are number in dispute. But a large number of legal issues have been raised in this Courts questioning the Scheme of Amalgamation. Mr. Dholakia, learned Counsel appearing for Mr. Jajoo, one of the shareholders of TOMCO, has questioned the justification of the ratio of allotment .of shares, 2 shares of HLL in exchange of 15 shares of TOMCO. According to Mr. Dholakia, this ratio is entirely unsatisfactory and unfair to the TOMCO shareholders. It has been companytended that he Board of Directors of TOMCO did number explain the Scheme of Amalgamation in the explanatory statement circulated among the shareholders. In particular, how the share exchange ratio - 15 TOMCO shares to 2 HLL shares - was arrived at, was number stated in the explanatory statement. Instead of circulating the valuation reports, TOMCO informed the shareholders that the reports were available for inspection at the registered office of the Com-pany between 11.00 A.M. to 1.00 P.M. on 14 working days. The shareholders were number told that the joint valuer was numbere other than Mr. Malegam, a Senior Partner of M s. S.B. Billimoria and Company, and also a Director of TOMCO. Mr. Malegam companyld number be appointed auditor of TOMCO under Section 226 3 of the Companies Act, 1956. In that view of the matter, Mr. Malegam should number have been appointed Valuer under the Indian Companies Act, 1956. It was next companytended that the reasons for the Board accepting certain proposals to make preferential allotment of shares at Rs. 105 per share has number been properly explained. ICICI had given a valuation report stating that this report was only on the basis of the material supplied by HLL and number on the basis of any independent verification. It is also significant that Mr, Malegam was a Director of ICICI. It was also company-tended that the valuation report was erroneous. A companybination of different methods of valuation was adopted, which was clearly against the law laid down by the Supreme Court in the case of Commissioner of Gift Tax, Bombay v. Smt. Kuswnben Mahadevia, 122 ITR 38. If the valuation was done by the net asset method, the exchange ratio should have been 12 in favour of TOMCO. Moreover, market value of the shares of the two Companies was taken at a point of time when the price of TOMCO shares was the lowest for a period of 27 months. Lastly, it was companytended that the preferential allotment of shares to Unilever was part of the Scheme of Amalgamation. The Board should have explained why Rs. 366 was being paid for every HLL share by TOMCO, when Unilever was paying only Rs. 105 per HLL share. We are unable to uphold any of the above companytentions raised by Mr. Dholakia, The overwhelming majority of the shareholders had approved the Scheme at the meeting called for this purpose and had approved the exchange ratio. In fact, a proposal for amendment of the exchange ratio was also rejected by the overwhelming majority of 99 shareholders. There is numberreason to presume that the shareholders did number know what they were doing. Being dissatisfied with the valuation made by Mr. Malegam, Mr. Jajoo had insisted for independent valuation and that was done. Two independent valuers -A.F. Ferguson and N.M. Raiji Co. - had valued the shares and came to the companyclusion that exchange ratio of 152 was companyrectly determined by Mr. Malegam. Faced with this situation, Mr. Dholakia sought to produce a valuation report made by another valuer, G. Rai Co., Chartered Accountants. According to this report, book value of equity share of TOMCO as on 31. 3.1992 based on audited and printed balance sheet of the Company was Rs. 57. 58 per share whereas book value of equity share of HLL as on 31.12.1992 based on its audited and printed balance sheet was only Rs. 28.84 per share. This, according to Mr. Dholakia, demonstrated the absurdity of the valuation that had been made of the shares of the two Companies The exchange ratio was obviously unfair to the shareholders of TOMCO. This report is produced before this Court for the first time. There was numberdispute as to what should be the book value of TOMCO shares as on 31.3,93, The following share charts of the two Companies were enclosed with the circular letter dated June 21, 1993 addressed to the shareholders of TOMCO and HLL by the Chairmen of two companypanies HINDUSTAN LEVER LTD. EQUITY SHARE DATA The Market Price as on 17.6.1993 was Rs, 375 As at 311292 31.12.91 31.12.90 Face Value Rs 10.00 10.00 10.00 Book Value per Share Rs. 23.80 20.75 27.36 Dividend 42.00 38.50 42.00 Earning per share Rs. 7.03 5.73 6.29 On enlarged capital after the issue of bonus shares in the ratio of 12. THE TATA OIL MILLS COMPANY LTD. EQUITY SHARE DATA The Market price as on 17.6.1993 was Rs. 52.50 As at 31.3.93 31.3.92 31.3.91 Face Value Rs. 10.00 10.00 10.00 Book Value per Share Rs. 29.75 29.45 36.17 Dividend - 12.50 2000 Earning per share Rs. 0.30 0.50 5.19 The Profit Loss Accounts of the two Companies for the last three years were also annexed. It appears that TOMCO made profit of Rs. 5.64 crores in 1990-91. It came down to Rs. 1,13 crores in 1991-92 and ultimately to Rs, 0.65 crores in 1992-93 whereas HLLs profit in 1990 was Rs. 58.74 crores and it went up to Rs. 98.48 crores in 1992, The Market price of TOMCO share truly reflected the bleak outlook of the Company. It has been stated that in the financial year 1992-93 TOMCO had shown a gross profit of Rs. 27.18 crores only after taking credit of Rs. 36.69 crores on sale of investments and Rs, 18.04 crores on aetouttt of refund of Excise Duty pertaining to prior periods. In fact, in the Directors Report of the year 1992-93, it was stated that the Company had suffered severe set back resulting in operating loss. The position got worse in the year 1993-94. The Company suffered operating loss in the region of Rs. 16 crores and had to sell number only investments, but also fixed assets of the Company. In the background of these facts, it cannot be said that the market price as on 17.6.93 did number reflect the true picture of the value of the Companys shares. If the market price of the shares of the two Companies as on 17.6.93 is companypared, the quoted price of HLL was Rs. 375 per share whereas the quoted price of TOMCO was Rs. 52.50 per share. The earning per TOMCO share had companye down from Rs. 5.19 on 31.3.91 to Rs. 0.50 on 31.3.92 and Rs.0.30 On 31.3.93. As against this, dividend paid on HLL shares was 42 in the years ending on 31.12.90 38.50 on enlarged capital after the issue of bonus shares in the ratio of 12 in the year ending on 31.12.91 and 42.00 again in the year ending on 31.12.92. It is true that book value per share of TOMCO was higher than that of HLL. But, even without any bonus issue, the book value of TOMCO shares had companye down from Rs. 36.17 per share on 31.3.91 to Rs. 29.75 per share on 31.3.1993. What ernerges from all these figures is that on the market price basis as On 17.6.93 the last price available before the circular letter dated 21.6.93 issued to the shareholders of the two Companies the exchange ratio of 215 was very fair. If the yield method is adopted, the ratio would be astronomically high in favour of HLL. But, if the book value is taken per share, then TOMCO shares would be of higher value than HLL shares. The question is what method should be adopted for arriving at a proper exchange ratio. The usual rule is that shares of the going companycern must be taken at quoted market value. This principle was also recognised by this Court in the case of Commissioner of Wealth Tax v. Mahadeo John, 86 ITR 621. In this case, Mr. Malegam adopted a companybination of three well-accepted methods to arrive at the fair value of the shares. The methods are I the yield method II tie asset value method and III the market value method. After companysidering all the relevant factors, the valuer recommended in exchange ratio of 2 equity shares of HLL for every 15 ordinary shares of TOMCO. Mr. Dholakia has companytended that a companybination of two methods of valuation was companydemned by this Court in the case of Commissioner of Gift Tax, Bombay v. Smt. Kusumben D. Mahadevia, 122 ITR 38. The valuation of the shares done by Mr. Malegam was clearly erroneous and companytrary to the principles laid down by this Court in that case. The observations made by this Court in Smt. Kusumben D. Mahadevias case were in companynection with the valuation of shares of a going companycern under the provisions of Wealth Tax and Gift tax Acts and the rules framed thereunder. Under those two Acts, at the material time, valuation had to be done on the basis of the price which, in the opinion of the assessing officer, the shares would fetch if sold in the open market. Both Section 6 of the Gift Tax Act and Section 7 of the Wealth Tax Act had adopted the same principle of valuation. If that method of valuation is adopted, then the exchange ratio fixed in this case cannot be described as unfair to the Company s shareholders in any way. If profits earning method had been adopted, the ratio would have been very much worse for TOMCO shareholders. This problem of valuation in the case of amalgamation of two Com-panies has been dealt with by Weinberg and Blank in the book TAKE-OVERS AND MERGERS, in which it has been stated that some of all of the following factors will have to be taken into account in determining the final share exchange ratio The Stock Exchange prices of the shares of the two companypanies before the companymencement of negotiations or the an-nouncement of the bid. The dividends presently paid on the shares of the two company-panies. It is often difficult to induce a shareholder, particularly an institution, to agree to a merger or a share-forshare bid if it involves a reduction in his dividend income. The relative growth prospects of the two companypanies The companyer ratio of after-tax earnings to dividends paid during the year for the present dividends of the two companypanies. The fact that the dividend of one companypany is better companyered than that of the other is a factor which will have to be companypensated for at least to some extent. In the case of equity shares, the relative gearing of the shares of the two companypanies. The gearing of an ordinary share is the ratio bf borrowings to the equity capital. The values of the net assets of the two companypanies. Where the transaction is a thorough-going merger, this may be mere of a talkingpointhon a matter of substance, since what is relevant is the relative values of the two undertakings as going companycerns. The voting strength in the merged enterprise of the shareholders of the two companypanies. The past history of the prices of the shares of the two companypanies. It will, therefore, appear that in case of amalgamation a companybination of all or some of the methods of valuation may be adopted for the purpose of fixation of the exchange ratio of the shares of the two companypanies. It is to be numbered that even in such a situation, the book value method has been described as more of talking-point than a matter of substance. Mr. Malegam adopted the companybination of three well-known methods of valuation of shares to arrive at the exchange ratio of the two Companies. In fact, the, method adopted was explained to the Board of Directors by a letter dated 19th March, 1993 written by S.B. Bellimoria Co. - For the above purpose we have companysidered the yield value, the asset value and the market value of the shares of the two companypanies and have given appropriate weightages to each of the above values. Both companypanies are in similar businesses. Therefore a uniform basis of capitalisation of profits has been adopted in determining the yield value. However, while HL has shown a companysistent growth in its profitability, TOMCOs performance has been more erratic. It has made substantial operating losses in the year ended 31st March, 1992 and in the six months ended 30th September, 1992 for which unaudited figures have been published and its losses during the six months ending 31st March, 1993 are expected to be even larger. Moreover its profits during the years ended 31st March, 1990 and 3lst March, 1991 have been significantly due to exports to the former USSR which exports have number dried up. Taking all these factors into account, for working out the yield value of the TOMCO share we have assumed a figure of future maintainable profits based on its operating results for the years 1981-82 to 1988-89. It is also to be numbered that the financial institutions who held 41 of the shares of TOMCO, did number find any fault in the method of valuation of the shares. Mr. Ashok Desai, appearing on behalf of TOMCO, has argued that the evaluation of shares had to be done according to well-known methods of accounting principles. The valuation of shares is a technical matter. It requires companysiderable skill and experience, There are bound to be difference opinion among Accountants as to what is the companyrect value of the shares of a companypany It was emphasised that more than 99 of the shareholders had approved the valuation. The test of fairness of this valuation is number whether the offer is fair to a particular shareholder. Mr. Jajoo may have reasons of his own for number agreeing to the valuation of the shares, but the overwhelming majority of the shareholders have approved of the valuation. The Court should number interfere with such valuation. It is also difficult to follow the argument that Mr. Malegams report is number acceptable to the TOMCO shareholders, because he was a Director of TOMCO, HLL had numberdifficulty in accepting the share exchange ratio fixed by Mr. Malegam, even though he was a Director of TOMCO, If there was any bias, it should have been in favour of TOMCO and number against TOMCO. This exchange ratio was endorsed by two other eminent firms of Chartered Accountants and also by ICICI. We are unable to uphold the companytention that there was any impropriety in the valuation of the shares. The argument based on Section 226 3 of the Companies Act is misleading, An officer or an employee of the companypany may number be appointed as an auditor. An auditor must be independent of the Board of Directors of the companypany. He is expected to play the role of a watch-dog on behalf of the shareholders of the companypany. But, in this case the two Companies are going to be amalgamated, both the Companies have chosen Mr. Malegam, Director of TOMCO to fix tie share exchange ratio. If HLL agreed to accept Mr. Malegam as the Valuer and there was numberobjection from TOMCO, we fail to see how TOMCO shareholders have been prejudiced. On the question of valuation on shares, another issue has been raised. It was argued that Unilever, a foreign Company, held 51 of shares of HLL. The Scheme envisaged that Unilever will companytinue to hold 51 of the shares of HLL even after amalgamation. It was decided to make preferential allotment of shares to Unilever at a price of Rs. 105 per share, for the purpose of maintaining shareholding of 51 even after amalgamation. For this purpose, two companyditions were imposed Unilever shall number be able to sell the shares allotted to them on preferential basis for a period of 7 years. 2 In case Unilever decides to sell these shares after the expiry of 7 years but before 12 years after the date of preferential allotment, they shall sell the shares to the Indian shareholders of Unilever at a price 15 times earning per share calculated on the basis of the last audited balance sheet. It was companytended by Mr. Andhyarujina, and in our opinion rightly, that these two companyditions are important depreciatory factors in the preferential allotment of shares to Unilever. The shares issued to Unilever would be franked by restrictive companyenants. These shares cannot be company-pared to the other shares of HLL which companyld be freely traded in the market. It was companytended by Mr. Dholakia that a foreign companypany was being given a large interest in the assets of TOMCO at a gross undervalue. We are unable to uphold this argument. The shareholder has numberinterest in the assets of the companypany While the companypany is an existence. It is only at the stage of liquidation of the companypany that the shareholders become inter-ested in the assets of the companypany. The share of any member in a companypany is movable property and transferable in the manner provided by the Articles of the companypany. This is provided by Section 82 of the Companies Act, The definition of goods in the Sale of Goods Act, 1930 specifically includes stocks and shares. A share represents a bundle of rights which include, inter alia, the rights i to elect directors ii to vote on resolutions at meetings of the companypany iii to enjoy the profits of the companypany, if and when dividends is declared and distributed and iv to share in the surplus, if any, on liquidation. In the case of Bacha F. Guzdar v. C.I.T., AIR 1955 SG 74, the position of a shareholder was explained thus There is numberhing in the Indian Law to warrant the assumption that a shareholder who buys shares, buys any interest in the property of the companypany which is juristic person entirely distinct from the shareholders. The true position of a shareholder is that on buying shares he becomes entitled to participate in the profits of the companypany in which he holds the shares, if and when the companypany declares, subject to the Article of Association, that the profits or any portion there of should be distributed by way of dividends among the shareholders. He has undoubtedly a further right to participate in the assets of the companypany which would be left over after winding up. In any event, whether Unilever was paying the proper price for the shares Or number, is a question which is number before the Bombay High Court in a separate proceeding Hindustan Lever Ltd. Ors. v. Reserve Bank of India Ors., Writ petition No, 1666 of 1994. It appears that the Reserve Bank of India has number granted approval to the proposal of alloting 29,84,347 equity shares of Rs. 10 fully paid up at a premium of Rs. 95 per share. According to the guidelines set by the Reserve Bank of India, a premium of Rs. 346 will have to be paid per share In a writ application before the Bombay High Court, HLL has prayed for, inter alia, following orders Petitioner No 1 shall allot 29,84,347 equity shares of Rs. 10 each fully paid up at a premium of Rs. 95 per share to Unilever and appropriate an amount of Rs. 28,35,12,965 ac-cordingly. The difference between Rs. 346 being the premium per share as per the revised guidelines and Rs. 95 being the premium per share approved by the shareholders and the approved Scheme of Amalgamation shall be kept in separate Share Premium Suspense Account by the Company till the final disposal of the Writ Petition. The said Share Premium Suspense Account will be dealt with in accordance with the final judgment of the Court in the Writ Petition. Since the entire question is number pending before the Bombay High Court in another independent proceeding, questioning the price indicated by the Reserve Bank of India, this question cannot be pursued in this proceeding any further. The next point urged by Mr. Dholakia is that proper disclosure of all material facts was number made in the explanatory statement, accompanying the proposal to amalgamate TOMCO with HLL. Their shareholders were number given full particulars on the basis of which they companyld act. Section 393 l a reads as under Where a meeting of creditors or any class of creditors, or of members, or any class of members, is called under section 391 - With every numberice calling the meeting which is sent to a creditor member there shall be sent also a statement setting forth the terms of the companypromise or arrangement and ex-plaining its effect and in particular, stating any material interests of the directors, managing director, managing agent, secretaries and treasurers or manager of the companypany, whether in their capacity as such or as member or creditors of the companypany or otherwise, and the effect on those interests, of the companypromise or arrangement, if, and in so far as, it is different, from the effect on the like interests of other per-sons and The grievance voiced by Mr, Jajoo is number shared be more than 99 of the shareholders. An explanatory statement had been sent on the basis of which Mr. Jajoo had taken inspection of all relevant documents. Notice must be taken of the fact that even after these points were raised in the meeting, the overwhelming majority of shareholders voters for the Scheme. That the explanatory statement was approved by the Registrar, is.it self a relevant factor. A similar question came up for companysideration before a Division Bench of Gujarat High Court in the case of jitendra R. Sukhadia v. Aletnbic Chemical Works Co, Ltd., 1987 3 Company Law Journal 141. That was also a case of amalgamation In that case, it was held that the exchange ratio of the shares of the two companypanies, which were being amalgamated, had to be stated alongwith the numberice of the meeting. However, this ex-change ratio was worked out, however, was number required to be stated in the statement companytemplated under Section 393 l a . In the facts of this case, companysidering the overwhelming manner in which the shareholders, the creditors, the debenture holders, the financial institutions, who had 41 shares in TOMCO, have supported the Scheme and have number companyplained about any lack of numberice or lack of understanding of what the Scheme was about, we are of the view, it will number be right to hold that the explanatory statement was number proper or was lacking in material particulars. There is another aspect of this case. Should the fact that Mr. Malegam was a Director of a Company have been disclosed? Section 393 l a requires particulars to be given of any material interests of some persons companynected with the companypany, including the directors and managing director. The interest that is companytemplated in Section 393 l a is interest material for companysideration of the scheme by the shareholders. It has number been shown that Mr. Malegam had any interest in the scheme. If he had any shares in TOMCO, then his interest would be like that of any other shareholder. His specialised services were utilised for the purpose of arriving at a fair exchange ratio. Both TOMCO and HLL reposed faith in his professional skill. We are of the view that number-disclosure of the fact that Mr. Malegam, a Director of the Company, had been appointed Valuer, will number detract from the Scheme in any way. This will also number amount to suppression of any material interest of a Director in the Scheme. The next question relates to the provisions of Monopolies and Restrictive Trade Practices Act MRTP Act . An argument has been made that the MRTP Commission is seized of the matter and until the MRTP Commission decides, it will be proper to sanction the Scheme. Ms. Indira Jaising, appearing on behalf of Consumer Action Group, has argued that the Monopolies and Restrictive Trade Practices Act, 1969 is a special enactment. The question of merger of HLL and TOMCO has to be companysidered in the background of the provisions of the said Act, Since this very issue is under companysideration by the MRTP Commission, the Court exercising companypany jurisdiction Should hot pass any order Which may prejudice the proceedings before the MRTP Commission. Alternatively, it has been argued that assuming that the jurisdiction of the Company Court is number barred but it is parallel, then as a matter of propriety the Company Court should await the decision of the MRTP Commission with regard to the issues involved. The allegation before the MRTP Commission is that the proposed merger was in violation of the provisions of MRTP Act. The decisive questions whether the issues arising before the MRTP Commission are the same as are number before this Court. It was further argued that even if the proposed amalgamation is sanctioned by this Court, it must be made subject to the final outcome of the proceedings pending before the MRTP Commission. The MRTP Com-mission gravely erred in rejecting the application for interim order under Section 12A of the MRTP Act. It was submitted that the Commission has erred in refusing to pass an interim order on the ground that any interim order passed will take away the jurisdiction of the Company Court. The Commission has jurisdiction, even after deletion of Section 23, to inquire into monopolies and restrictive trade practices. The Commission has over-looked the fact that the allegations made by the aggrieved parties before it, were number based on assumption but on hard facts. Our attention was invited to the Directive Principles of State Policy in Part-IV of the Constitution and it was urged that the economic system should number be operated in a way that results in the companycentration of wealth and means of production to the companymon detriment. In particular, it was emphasised that issuance of preferential shares at a very favourable price to Unilever will companye within the definition of Section 2 e and will amount to restrictive trade practice. This argument of Ms. Jaising was supported by Dr. Dhavan, appear-ing on behalf of the Federation of Tata Oil Mills and Allied Companies Employees Union. It was argued that the Scheme will attract anti-merger jurisdiction of the MRTP Commission straightway. The two big Companies in the same field of companysumer articles are merging to ensure that there was numberinter se companypetition. Under the MRTP Act, injunction can be granted under Section 12A during an enquiry even where the impugned trade practice was likely to affect prejudicially the public interest or the interest of the companysumers generally. The Commission may, for preventing such a situation from developing, restrain the undertaking involved from carrying or any monopolistic or restrictive unfair trade practice until the enquiry is companycluded. It was argued that judgment under appeal has seyerery curtailed the jurisdiction of the MRTP Commission. Lastly, it was companytended that preferential allotment of a large number of shares to Unilever at a throw away price is apart of the Scheme of Amalgamation and it wifl result in Unilevers acquisition of 51 shares in the enlarged Company and thereby Unilever will be able to companytrol the market more effectively. In order to appreciate this argument, it is necessary to refer to the various provisions of the Monopolies and Restrictive Trade Practices Act, 1969 This Act in companysonance with the new economic policy of the Govern-ment has undergone drastic amendment with effect From 27.9.91. The relevant provisions for the purpose of this case are as under 2, In this Act, unless the companytext otherwise requires,- ---------- --------------- ------------ o restrictive trade practice means a trade practice which has, or may have, the effect of preventing, distorting or restricting companypetition in any manner and in particular which tends to obstruct the flow of capital or resources into the stream of production, or which tends to bring about manipulation of prices, or companyditions of delivery or to affect the flow of supplies in the market relating to goods or services in such manner as to impose on the companysumers unjustified companyts or restrictions s trade means any trade, business, industry profession or occupation, relating to the production, supply, distribution or companytrol of goods and includes the provision of any services u trade practice means any practice relating to the carrying on of any trade, and includes - anything done by any person which companytrols or affects the price charged by, or the method of trading ofs an trader or any class of traders a single or isolated action of any person in relation to any trade Section 10 empowers the Commission to enquire into any restrictive trade practice or any monopolistic trade practice. Section 12A empowers the Commission to issue temporary injunction, if it is proved that any undertaking or any person is carrying on, or is about to carry on, any monopolistic or any restrictive, or unfair, trade practice and such monopolistic or restrictive, or unfair, trade practice is likely to affect prejudicially the public interest or the interest of any trader, class of traders of traders generally or of any companysumer or companysumers generally. Chapter III of MRTP Act dealt with companycentration of economic power. Part-A of this Chapter Sections 20 to 2 5 and also Section 28 was deleted by the MRTP Act, 1991 with effect from 27.9.91. Part III-A Sections 30A and 30G which dealt with restriction on acquisition and transfer of shares by certain body companyporates was also deleted from the said date Section 23 specifically dealt with merger, amalgamation and take over was to the following effect Merger, amalgamation arid take over. - 1 Notwithstanding anything companytained elsewhere in this Act or in any other law for the time being in force.- a numberscheme Of merger or amalgamation of two or more undertakings, to which this Part applies with any other under-taking b numberscheme of merger or amalgamation of two or mote undertakings which would have the effect of bringing into existence an undertaking to which clause a or clause b of section 20 would apply shall be sanctioned by any Court or be recognised for any purpose or be given effect to unless the scheme for such merger or amalgamation has been approved by the Central Government under this section. The intention behind deletion of Section 23 is obvious the require-ment of prior approval of the Central Government before sanctioning a scheme of merger or amalgamation has been done away with. The effect of the deletion of this section cannot be nullified by giving an unnatural and artificial interpretation of the words of the statute. It is being argued that even though Section 23 has been deleted, their are other provisions in the Act under which it is necessary to have prior sanction of the Central Government or MRTP Commission before a Scheme of Amalgamation or merger can be sanctioned. If this argument is to be accepted, then in the first place it has to be held that the provisions of Section 23 were wholly unnecessary and otiose, because even otherwise sanction or clearance of the Central Government was a companydition prece-dent for effecting a scheme of amalgamation or merger. Such a companystruction must be avoided. The enquiry must be as to what was the mischief which was sought to be cured by the Legislature by the amendment. By deleting Section 23, the Legislature removed the requirement of prior approval of the Central Government to a scheme of merger before the Court companyld sanction it. Section 27A and section 27B are the only sanctions in Chapter III of the Act which have been retained by the Legislature. Section 27 deals with division of undertaking and enables the Commission in the circumstances specified in that section, to pass an order for the division of any trade or undertaking or inter-connected undertaking, into such number of undertakings as the circumstances of the case may justify. Section 27A empowers the Central Government to protect severance of inter-connection between undertakings. Section 27B lays down the manner in which any order passed under Section 27 or Section 27A shall be carried out The provisions as to restriction on the acquisition and transfer of shares by certain bodies companyporate Section 28 to Section 30G have been entirely deleted. The intention of the Legislature is clear. A merger or amalgamation is number number subject to the prior approval of the Central Government. But, if the working of the companypany is found to be prejudicial to public interest or has led to the adoption in monopolistic or restrictive trade practice, the Central Government may .after being satisfied as to the requirement of the section or division of the undertaking, act according to law. We are unable to uphold the companytention of Ms. Jaising that MRTP Commission erred in law in number passing an order of injunction under Section 12A of the Act, restraining the implementation of the Scheme of Amalgamation. We are of the view that it was number necessary to obtain any prior approval from the Central Government or the MRTP Commission before the Scheme companyld be sanctioned by the Court. This requirement has been specifically deleted from the statute. As a result of the amalgamation, if it is found that the working of the Company is being companyducted in a way which brings it within the mischief of the MRTP Act, it would be open to the authority under the MRTP Act to go into it and decide the companytroversy as it thinks fit, Mr. Andhya. Ujina has argued that the companycept of applicability of monopolistic trade practice under Chapter TV or restrictive trade practice or Unfair trade practice under Chapter V, necessitates that there must be a trade as defined .under Section 2 a and trade practice as defined Under Section 2 u . He has further companytended that a companypany when it allots shares is number trading shares. Further under Section 77 of the Companies Act, a companypany cannot buy its own shares. Therefore, there can numberquestion of a companypany trading in its own shares or unlawful trade practice at this stage. This companytroversy has got another aspect which has been highlighted by Dr. Dhavan and Mr R.K. Jain. It has been argued that a very large companypany is companying int. existence which will have substantial share of the market. A foreign companypany will have companytrolling interest in HLL after amalgamation. This is against public policy. In my judgment, what has been expressly authorised by the statute cannot be struck down as being against the public policy. A foreign companypany under the new economic policy of the Government has been allowed to acquire companytrolling share of any Indian companypany. This has been done by express amendment of the Foreign Exchange Regulation Act- Under Section 29 of the Foreign Exchange Regulation Act as it stood originally , a perstui resident outside India or a companypany other than banking companypanies which was number incorporated in India or in which the numberresident interest was more 40, companyld number carry on business in India Or establish in India a branch office or other place of business. Nor companyld such a person or companypany acquire the whole or any part of any undertaking in India of any companypany carrying on any trade, companymerce or industry or purchase the shares in India of any such companypany. The object of Section, 29, inter alia was to ensure that a companypany other than banking companypany in which the number-resident interest was more than 40 must reduce in to a level number exceeding 40 Needle Industries India Ltd, and Others, v. Needle Industries Newey India Holdings Ltd. and others, AIR 1981 SC 1298 . But, number this restriction of 40 has been removed by an amend-ment by the Act 29 of 1993. A companypany in which number-resident interest is more than 40 can carry on business without having to obtain permission from the Reserve Bank of India. The underlying idea of this liberalisation is clear. Non-resident persons were being invited to inves in India and or in Indian companypanies. If any number-resident invests in Indian companypany, it is but natural that dividends payable by an Indian companypany will be enjoyed by the number-resident. All other rights that a shareholder enjoys by virtue of the shareholding will be enjoyed by the number-resident. Merely because a foreign shareholder acquires 51 shares in an Indian companypany it cannot be said that this is against public interest or public policy. In this companynection it should also be numbericed that Section 11 of Foreign Exchange Regulations Act, 1973 which had empowered the Reserve Bank to put restrictions on transfer of any asset in India to a person resident outside India or a person intending to become resident outside India, has number been repealed with effect from 8.1.1993 by the Amending Act 29 of 1993. Here again the intention of the legislature is quite clear. The entire object is to allow the number-residents to do business in India and to deal with assets in India with greater freedom. In view of all these, it is difficult for us to uphold the companytention that the Scheme of Amalgamation is against public interest. Merely because 51 of the shares of HLL is being given to a foreign companypany, the Scheme cannot be said to be against public interest. The Foreign Exchange Regulation Act has been amended specifically to encourage foreign participation in business in India. The bar to haying more than 40 shares in an Indian Company by a number-resident has been hefted. The Amending Act 29 of 1973 is number under challenge. In order to give greater freedom to the companypanies for doing business in India, the MRTP Act has been amended. Prior approval of Government of India is number a necessary for amalgamation of companypanies any more. In fact, it is in public interest that TOMCO with its 60,000 shareholders and also a very large Work-force does number deteriorate into a sick companypany. Nor do we think that public interest which is to be taken into account as an element against approval of amalgamation would include a mere future possibility of merger resulting in a situation where the interests of the companysumer might be adversely effected. If, however, in future the working of the Company turns out to be against the interest of the company-sumers or the employees, suitable companyrective steps may be taken by appropriate authorities in accordance with law. As has been said in the case of Fertilizer Corporation Kamgar Union v. Union of India, 1981 2 SCR 52 at page 77 it is. number a part of the judicial process to examine entrepreneurial activities to forret out flows. The Court is least equipped for such oversights. Nor, indeed, it is the function of the judges in our companystitutional scheme. Now merely because the scheme envisages allot-ment of 51 equity shares to Unilever, the scheme cannot be held to be against public interest. Next it was argued on behalf of the employees of TOMCO that the Scheme win adversely affect them This argument is number understandable. The Scheme has fully safeguarded the interest of the employees by providing that the terms and companyditions of their service will be companytinuous and uninterrupted service and their service companyditions will number be prejudicially affected by reason of the Scheme. The grievance made, however, is that there is numberjob security of the workers, after the amalgamation of the two Companies. It has been argued that there should have been a clause in the Scheme ensuring that numberretrenchment will be effected after the amalgamation of the two Companies. There was numberassurance on behalf of the TOMCO that the workers will never be retrenched. In fact, the performance of TOMCO over the last three years was alarming for the workers. It cannot be said that after the amalgamation they will be in a worse position than they Were before the amalgamation. We do number find that the amalgamation has caused any prejudice to the workers of TOMCO. The stand of the employees of HLL is equally incomprehensible. It has been stated that if the TOMCO employees company-tinue to enjoy the terms and companyditions of their service as before, then two classes of employees will companye into existence, Terms and companyditions of HLL employees were much worse than that of TOMCO employees. If there are two sets of terms and companyditions under the same companypany, then a case of discrimination will arise against the HLL employees. We do number find any substance in this companytention. The TOMCO employees will companytinue to remain on the same terms and companyditions as before. Because of this arrangement, it cannot be said that a prejudice has been caused to HLL employees. They will still be getting what they were getting earlier. TOMCO employees who were working under better terms and companyditions, will companytinue to enjoy their old service companyditions under the new management. Fear has been expressed both by TOMCO employees as well as HLL employees that the results of the amalgamation would necessitate stream-lining of the operations of the enlarged Company and the workers will be prejudiced by it. No one can envisage what will happen in the long run. But on this hypothetical question, the Scheme cannot be rejected. As of number, it has number been shown how the workers are prejudiced by the Scheme. Lastly, there was a vague allegation of mala fide, because of some trade arrangement between Unilever and Tata Sons Limited. It appears that three properties belonging to Tata Sons Limited. were being used by TOMCO as licensee with numberenforceable rights. Occupation was purely permissive. TOMCO never companysidered these properties or rights relating to these properties as their assets. They were never shown in the balance sheet of the Company. Tata Sons companyld get back possession of these properties by revoking the licence. It was number necessary for Tata Sons to obtain the help of HLL or Unilever for getting back the possession. Under the Scheme, the properties are to be transferred at market rate, which has to be independently assessed. The determination of the market price has been entrusted by the Court to a reputed valuer. There is numberreason to doubt their companypetence. No case of mala fide has been established. An argument was also made that as a result of the amalgamation, a large share of the market will be captured by the HLL. But there is numberhing unlawful for illegal about this. The Court will decline to sanction a scheme of merger, if any tax fraud or any other illegality is involved. But this is number the case here. A companypany may, on its own, grow up to capture a large share of the market. But unless it is shown there is some illegality or fraud involved in the scheme, the Court cannot decline to sanction a scheme of amalgamation. It has to be borne in mind that this proposal of amalgamation arose out of a sharp decline in the business of TOMCO. Dr. Dhavan has argued that TOMCO is number yet a sick Company. That may be right, but TOMCO at this fate will become a sick Company, unless something can be done to improve its performance. In the last two years, it has sold its investments and other properties. If this proposal of amalgamation is number sanctioned, the companysequence for TOMCO may be very serious. The shareholders, the employees, the creditors will all suffer. The argument that the Company has large assets is realty meaningless. Very many companyton mills and jute mills in India have become sick and are on the verge of liquidation, even though they have large assets. The Scheme has been sanctioned almost unanimously by the shareholders, debenture holders, secured creditors, unsecured creditors and preference shareholders of both the Companies. There must exist very strong reasons for withholding sanction to such a scheme. Withholding of sanction may turn out to be disastrous for 60,000 shareholders of TOMCO and also a large number of its In view of the aforesaid, the Appeals are dismissed.
Nanavati, J. The appellant was tried along with Pandey Ram Krishnan for companymitting murder of Kittu Muthu Krishnan in Sessions Case No. 95/76. The companyrt of Sessions, Madurai, acquitted both the accused. On appeal by the State, the High Court companyvicted both of them for the offence punishable under Section 302 read with Section 34 IPC. Against the order of acquittal, a revision application was also filed by the brother of the deceased. Pandey has number challenged his companyviction. This appeal is filed by Sudali Madasamy only. In order to prove its case, the prosecution had mainly relied upon the evidence of P.Ws. 1 and 2 and the three dying declarations - Exhs. P1, P15 and P8 of Kittu Muthu Krishnan. The trial companyrt did number believe the evidence of PWs. 1 and 2 and also the dying declarations. It gave 11 reasons in support of its findings. The High Court companysidered each one of those reasons and pointed out that numbere was good enough to sustain the findings. We have companysidered the reasons given by the trial companyrt and we find that they were rightly held number acceptable. On flimsy grounds, the trial companyrt had rejected the evidence of PWs. 1 and 2 and the dying declarations. The High Court has given good reasons for believing the evidence of PWs. 1 and 2 and the dying declarations. The appellant was numbere other than the person who was earlier working with the deceased and whose services were terminated by the deceased. There was enough light when the incident had taken place. The FIR was lodged within 45 minutes. At about 4.30 a.m., Inspector Incharge had taken further statement of the deceased and at 6.45 a.m. his dying declarations was recorded by the Judicial Magistrate. Thus, within a short time, the deceased had disclosed the names of his assailants. It is number possible to accept the companytention of the appellant that as his relations with the deceased were number good, the deceased had falsely involved him because the deceased would number have liked to do so and allow the real culprits to go set free. The dying declarations also receive companyroboration from the evidence of PWs. 1 and 2 who have said that when they heard shouts they came out of the nearby garage where they were working and saw the two accused running away from the place of the incident. They had chased the accused but when they were shown a knife by one of them, they did number pursue them further, returned to the place of the incident and took the injured to the Police Station. Both the witnesses have stated that they knew the accused and the deceased since before the incident. There was numberreason for PWs. 1 and 2 to falsely depose against the accused. The dying declaration - Ex. P8 was recorded by a Judicial Magistrate. The evidence discloses that at that time except the doctor numberone else was present.
CRIMINAL APPELLATE JURISDICTION Special Leave Petition Crl. No. 405 of 1980. Appeal by special leave from the judgment and Order dated 31-10-1979 of the Punjab Haryana High Court in Crl. Appeal No. 986/77. C. Talukdar, Shrinath Singh and M. S. Dhillon for the Petitioner. The Judgment of the Court was delivered by DESAI, J.-While we decline to grant special leave in this case, an unsavoury feature of the judgment which rather stares into our 1154 face, and surfaces at regular intervals, makes it obligatory to make a few observations. Petitioner was companyvicted for having companymitted offences under Section 161 of the I.P.C. and Section 5 2 of the Prevention of Corruption Act and was sentenced to suffer I. for one year on each companynt and on the second companynt, also to pay a fine of Rs. 400/-or in default to suffer further R.I. for three months by the learned Special Judge. Both the Substantive sentences of imprisonment were directed to run companycurrently. Petitioner preferred Criminal Appeal No. 989 of 1977 against his companyviction and sentence to the High Court of Punjab and Haryana at Chandigarh. This appeal came up for final hearing before a learned single judge of the High Court on 31st October, 1979. When the appeal was taken up for hearing, learned companynsel for the petitioner appearing in the High Court did number question either the companyrectness or the legality of the companyviction. This is unquestionable as the High Court has observed while disposing of the appeal that numberarguments on merits are advanced. The High Court then proceeded to companysider adequacy or otherwise of sentence imposed on the appellant before it. The High Court then proceeded to reduce the substantive sentence of the appellant of rigorous imprisonment for one year to the sentence undergone till the date of the judgment of the High Court. While so reducing the substantive sentence the High Court numbericed the following circumstances which in the opinion of the High Court were sufficient to enable it to interfere with the sentences imposed upon the present petitioner. It would be advantageous to extract the relevant observations- The learned companynsel for the appellant has only submitted that the appellant has already been dismissed from service that he is a family man, and that his sentence may be reduced to that already undergone. In my view numberuseful purpose will be served by sending him again to jail to serve his unexpired period of sentence. He has already lost his job. The ends of justice will be amply met if his sentence of imprisonment is reduced to that already undergone and instead sentence of fine is enhanced from Rs. 400 to Rs. 4000 four thousand or in default to suffer further R.I. for one year. I order accordingly. The judgment of the High Court throws numberlight on the question as to how much sentence the appellant had undergone by the time the 1155 High Court released him on bail while admitting his appeal. But it cannot be more than a few days only. Petitioner as pointed out earlier is companyvicted for companymitting offences under Section 161 IPC and 5 2 of the Prevention of Corruption Act. Section 5 2 of the Prevention of Corruption Act reads as under- Any public servant who companymits criminal misconduct shall be punishable with imprisonment for a term which shall number be less than one year but which may extend to seven years and shall also be liable to fine Provided that the companyrt may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year. underlining ours The language of the proviso makes it abundantly clear that companyrt is under an obligation to impose a minimum punishment once the companyviction is recorded under Section 5 2 and the minimum punishment of imprisonment is for a term number less than one year. Undoubtedly the proviso companyfers power on the Court to award less than the minimum punishment, if the Court companyvicting and sentencing the accused, is of the opinion that for any special reasons which the companyrt is under an obligation to record in writing, sentence of imprisonment for a term less than the minimum is called for. Conceding that the quantum of sentence is in the discretion of the trial companyrt, where the Legislature stepped in and circumscribed and fettered the discretion by directing imposition of a minimum sentence, the companyrt can exercise its discretion within the limited sphere left open by legislature. The Legislature circumscribed the discretion by requiring the companyrt to impose minimum sentence but left it open to award less than the minimum statutorily prescribed for special reasons. The reasons have to be special reasons. The words special reasons in the companytext in which they are used companyld only mean special to the accused on whom sentence is being imposed. The companyrt has to weigh reasons advanced in respect of each individual accused whose case is taken up for awarding sentence. The word special has to be understood in companytradistinction to word general or ordinary. Now what does term special companynote ? Special means distinguished by some unusual quality out of the ordinary. See Words and Phrases, Permanent Edition, Volume 39A p. 82. Webster defines special as particular peculiar different from others designed for a particular purpose, occasion, or person limited in range companyfined to a definite field of action. Thus anything which is companymon to a large class 1156 governed by the same statute cannot be said to be special to each of them. It would thus unquestionably appear that special reasons in the companytext of sentencing process must be special to the accused in the case or special to the facts and the circumstances of the case in which the sentence is being awarded. The High Court then was under an obligation to award minimum sentence unless the accused advanced special reasons, i.e. special to him in the facts and circumstances of the case and successfully invoked the discretion vested in the Court to award less than the minimum sentence prescribed by law. The Court observes that this appellant companyrupt officer whose companyruption was proved to its satisfaction because the High Court declined to interfere with the companyviction of the appellant for companyruption and who must companysequently or of necessity be dismissed from service, companysidered his dismissal from service as a special reason. Frankly speaking the High Court honestly did number expect any companyrupt officer to be retained in service. Ordinarily a companyrupt official whose companyruption is proved to the hilt is liable to be dismissed, and therefore, this aspect is number special to the appellant. Accordingly if an officer proved to be companyrupt to the satisfaction of the companyrt is liable to be dismissed it cannot influence the question of sentence. Also because it would be true of all public servants dealt with under Section 5 2 of the Prevention of Corruption Act. Another special reason that appealed to the High Court is that appellant is a family man. Possibly the High Court companysidered marriage and children of the appellant as special to him. An unusually large number of the Government officers from amongst those charged with companyruption and companyvicted for the same would be married men with family, unless they joined service before marriage and became companyrupt very soon at the inception of the career. And ordinarily speaking a family of companyrupt officer in some cases if number all benefits by the companyrupt activity unless shown to the companytrary which is number the case. If large number of public servants from those companyvicted under section 5 2 of the Prevention of Corruption Act are married men with children it passes companyprehension how this fact can be styled as special to the appellant influencing his sentence. It may be mentioned without fear of companytradiction that the only two reasons, special according to the High Court for awarding less than the minimum sentence are i appellant has lost his job and he is a married man with children. These two reasons would be companymon to ninety nine per cent of cases tried under Prevention of Corruption Act and if they can be styled as special reasons for awarding less than the 1157 minimum sentence the proviso would be rendered wholly nugatory. The Court should number be oblivious to the fact that while companyferring discretion in the matter of awarding adequate sentence within limits prescribed by the statute, the Legislature finding cases of misplaced sympathy in sentencing process fettered the Courts discretion by prescribing a minimum sentence and making it obligatory to record special reasons for awarding less than the minimum. If still the numberice of encroachments on companyrts discretion is number taken, time may number be far when the Legislature out of exasperation may resort to what it has done in Section 16 of Prevention of Food Adulteration Act where minimum sentence is prescribed and Courts discretion to award less in any case is wholly taken away. In this companytext it would be timely to recall the warning uttered by this Court in Jagdish Prasad v. West Bengal This Court said Offences under the Act being anti-social crimes affecting the health and well-being of our people, the Legislature having regard to the trend of companyrts to impose in most cases only fines or where a sentence of imprisonment was passed a light sentence was awarded even in cases where a severe sentence was called for, a more drastic step was taken by it in prescribing a minimum sentence and a minimum fine to be imposed even for a first offence. In this case, there was numberjustification, much less special reasons statutorily required, for awarding less than the minimum sentence.
This is a State appeal by special leave against the judgment dated 20.3.2001 of Madhya Pradesh High Court in Criminal Appeal No.447 of 1988 acquitting the respondent Kalyan Singh Accused No.1 by giving him the benefit of doubt. The prosecution case in brief is that there was enmity between Balbir Singh, father of respondent and Jagdish PW12 on account of Jagdish defeating Balbir Singh in the Sarpanch elections. On 18.3.1984, a day after the Holi festival, Jagdish as Sarpanch, invited the villagers for playing Faag at Panchayat Bhawan. One Barar, a member of Jagdishs group, was playing Dholak. Balbir Singh came there and tried to snatch the Dholak from Barar. Jagdish objected to Balbir trying to play Dholak at Faag function organized by him and tried to pull the Dholak. In the meanwhile, Kalyan Singh, son of Balbir came there armed with a gun. Balbir exhorted him to kill Jagdish. Kalyan Singh fired at Jagdish causing injury on the hip of Jagdish. Jagdish fired back with his pistol and Balbir companylapsed and died. Thereafter, Kalyan Singh took another shot at Jagdish. The shot hit Bhajju who fell down and died. Gajraj PW8 , who was standing nearby, also received pellet injuries. When Kalyan Singh again tried to shoot, Banmali PW1 snatched the gun and ran. Sovran A2 and Ghanshyam A4 beat Banmali. Banmali fell down. Gajraj took the gun from Banmali and kept it in the shop of Jagdish. On receipt of the information, police visited the place of incident and on the Dehati Nalshi of given by PW7 Sita Ram, Ex.P7 , FIR was registered. Jagdish PW12 , Gajraj PW8 and Banmali PW1 who sustained injuries in the incident were medically examined. After investigation police submitted a charge-sheet against the respondent Kalyan Singh A1 for the offence under section 302 IPC for causing the death of Bhajju, for the offence under section 307 IPC for attempting to murder Jagdish and for offences under sections 25 and 27 of Arms Act, for using the gun without a licence. The charge-sheet was also filed against Accused Nos.2 to 6 for offences under section 201 IPC, alleging that they had filed a false report with the police with the purpose of companycealing the murder of Bhajju. The defence was that Jagdish PW12 and his party came to the house of Balbir Singh and called him. When Balbir came out, Jagdish PW12 shot him and Balbir died. Then, Bhajju nephew of Balbir Singh came running to the place of incident. One Hari Gupta belonging to the group of Jagdish shot him and Bhajju died. The accused relied on the reports Ex.D4 and Ex.D9 and the evidence of DW1 to DW4 who narrated the defence version. It is stated that DW4 was the father and DW3 was the brother of deceased Bhajju. The police however on investigation was of the view that Hari Gupta did number shoot Bhajju and they accepted the version of Jagdish and his party. The Trial Court by its judgment dated 12.4.1988 acquitted Accused 2 to 6 as prosecution was number able to prove the offence under section 201 IPC against them. In so far as Kalyan Singh A1 was companycerned, the Trial Court held that prosecution had proved the offences under sections 302 and 307 IPC and sections 25 and 27 of Arms Act. It sentenced the first respondent to undergo RI for life, three years, one year and three years respectively for the offences under sections 302 IPC, 307 IPC, sections 25 and 27 of Arms Act. Feeling aggrieved, Kalyan Singh filed an appeal. The Madhya Pradesh High Court by its judgment dated 20.3.2001 allowed the appeal and set aside the companyviction and sentence against Kalyan Singh. It gave him the benefit of doubt for the following four reasons Though the occurrence took place on 18.3.1984, the statements of three eye-witnesses, namely, Banmali PW1 , Dhani Ram PW3 and Michhua PW4 were recorded only on 6.4.1984 and the evidence of two other eye-witnesses - Pholua PW5 and Sita Ram PW7 were recorded on 7.4.1984 and there was numberexplanation for the delay of three weeks in recording their statements Sita Ram PW7 categorically stated that he had lodged the report at police station, but the prosecution case was that Dehati Nalsi Ex.P7 was recorded at the spot. There was number-compliance with the provision of section 157 Cr.PC as the report was number sent to the nearest Magistrate. According to the evidences of Dhani Ram PW3 and Michhua PW4 , Kalyan Singh fired from a distance but the Doctor found blackening on the body of the deceased Bhajju and that did number fit in with the case of the prosecution. The High Court accepted the companytention of the defence that the prosecution case was shrouded in mystery and full of inconsistencies and infirmities, creating a doubt about the prosecution case. The said acquittal is challenged by the State in this appeal by special leave. Learned companynsel for the State submitted that each of the four reasons mentioned by the High Court were number material, number sufficient to dislodge the effect of the clear evidence of the injured witnesses PWs 1, 8 and 12 and the other eye-witnesses PWs.3, 4, 5, and 7. The question that therefore falls for our companysideration is whether the circumstances referred to by the High Court are so insignificant and irrelevant, so as to require interference with the judgment of the High Court. The fact that the incident occurred on 18.3.1984 and the statements of PWs.1, 3 and 4 were recorded only on 6.4.1984 and the statements of PWs. 5 and 7 were recorded only on 7.4.1984 nearly three weeks later is number in dispute. When this fact is looked at proper perspective, we find that High Court was justified in accepting this as a relevant circumstance. The prosecution case is virtually the version put-forth by Jagdish and his party. According to the prosecution witnesses Jagdish and his group , Balbir exhorted his son Kalyan Singh to kill him Jagdish and Kalyan Singh accordingly fired two shots - one of which hit Jagdish on his hip and the second missed Jagdish but hit Bhajju and killed him. It is also the case of the prosecution that after Kalyan Singh shot Jagdish, Jagdish retaliated by firing at Balbir and companysequently Balbir Singh died. But the evidence of PWs. 1, 3 and 5 is significant. They stated that Jagdish did number fire back after being hit. Their version is that on being hit by the bullet fired by Kalyan Singh, Jagdish fell down and his gun was accidentally triggered and companysequently Balbir Singh was hit. But this was different from the case of the prosecution that when Kalyan Singh fired at Jagdish, Jagdish fired back hitting Balbir Singh. We are referring to this aspect to show that PWs.1, 3 and 5 are clearly Jagdishs men trying to exonerate Jagdish and implicate Kalyan Singh and their belated statements are apparently an attempt to create a story favouring Jagdish and implicating Kalyan Singh. If PWs.1, 3, 4, 5 and 7 were all present at the time of the incident, there is numberexplanation why their statements were number recorded for three weeks. One explanation is that they were number eye-witnesses and another is that they did number immediately companye forward to tell the truth but came forward belatedly with a fabricated version. It is apparent that there was a clash between two groups of Jagdish and Balbir. The two persons who died belonged to the group of accused, namely, Balbir, father of the accused number1 and Bhajju, companysin of accused number1. But Kalyan Singh is implicated for the murder of Bhajju by these alleged eye-witnesses by belatedly companying forward and companyntering the defence version that Hari Gupta of Jagdishs group shot Bhajju. Therefore the delay in recording the statements of PWs.1, 3, 4, 5 and 7 had a material bearing on the case. Similarly, the question whether Dehati Nalsi was recorded at site or number also assumes relevance. Dehati Nalshi is based on Sita Rams statement which in fact is the prosecution case. This is companypletely at variance from the reports Ex.D4 and D9 which are the reports of the incident from the side of the accused alleging that Jagdish with his party came to Balbirs house, called him out and shot him and that another person belonging to Jagdish group Hari Gupta shot Bhajju. Where and when Dehati nalshi was recorded therefore assumes relevance and significance. In so far as the failure to send the report to the nearest Magistrate, learned companynsel for the appellant drew our attention to Regulation 710 of the Madhya Pradesh Police Regulations which stated that the FIR given to the Officer-in-Charge of the police station, will be recorded in duplicate and a companyy will be sent to the Sub-Divisional Magistrate or the Magistrate having jurisdiction. It is therefore submitted that in Madhya Pradesh, the report was number being sent to Magistrate as required by section 157 Cr.PC but to Sub- Divisional Magistrate or District Magistrate. He relied on the companyy of the report dated 18.4.1984 which had been filed with a supplementary affidavit to show that a companyy was sent to the District Magistrate, Tikamgarh. The fact that it was number sent to the nearest Magistrate, is number however disputed. Regulation 710 does number override section 157 Cr.PC number does it give a choice to Police number to send the report to the Magistrate. In regard to the fourth circumstance, suffice it to point out that its companyrectness is number even disputed in the special leave petition.
This appeal neither calls for an elaborate judgment number a detailed discussion of the point involved in the appeal. We do number propose to give exhaustive reasons in support of our decision for in our opinion decisions on the subject are legion and we companysider it unnecessary to refer to them in details. Appellant-plaintiff filed Title Suit No. 122 of 1978 in the Court of 3rd Munsif at Patna for a declaration that he is entitled to withdraw a certain amount deposited by the second defendant in the companyrt. Two respondents were impleaded as defendants in the plaint. Appellant-plaintiff had described himself as the son of uterine brother of Rama Shanker Prasad. Subsequently plaintiff moved an application for amendment of the plaint inter alia seeking deletion of the word Uterine from the plaint, The Trial Court granted the application for amendment. First respondent preferred C. R. No. 921 of 1980 in the High Court of Judicature at Patna. The learned judge of the High Court after setting out the history of litigation allowed the revision application of the first respondent observing as under I however feel satisfied at least to this extent that in view of the legal position, this word Uterine has got a significance and may work in favour of either side to a very great extent. In this companytext therefore as it would amount to change the basis of the claim I am of the view that the amendment should number have been allowed. This is the only reason which appealed to the learned single judge for interfering with an order granting amendment in exercise of the revisional Jurisdiction under Section 115 of the CPC. The original plaintiff has preferred this appeal by special leave. Even if the High Court was justified in holding that the deletion of the word Uterine has some significance and may work in favour of either side to a very great extent yet that itself would number provide any justification for rejecting the amendment in exercise of its revisional jurisdiction. We may, in this companynection, refer to Ganesh Trading Co. v. Moji Ram wherein this Court after a review of number of decisions speaking through Beg, C. J. observed that procedural law is intended to facilitate and number to obstruct the companyrse of substantive justice. But the learned Counsel for the respondents companytended that by the device of amendment a very important admission is being withdrawn. An admission made by a party maybe withdrawal or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn. The learned trial judge, granting the application for amendment was satisfied that in order to effectively adjudicate upon the dispute between the parties, amendment of the pleading was necessary. The High Court in its revisional jurisdiction for a reason which is untenable ought number to have interfered with the order made by the trial companyrt. The learned Counsel for the respondents in this companynection read one unreported decision of this Court in which this Court upheld the decision of the High Court setting aside the order granting amendment in exercise of its revisional jurisdiction. We have gone through the judgment.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 393 of 1979. From the Judgment and Order dated 26.4.1979 of the Tamil Nadu High Court in Criminal Appeal No. 197 of 1978 and Crl. Revision Case No. 833 of 1977. R. Lalit and K.R. Choudhary for the Appellants. V. Venkataraman for the Respondent. The Judgment of the Court was delivered by KULDIP SINGH, J. Parusuraman Velladurai, Karuppaiah, Nagasundaram and four others hereinafter referred to as A1 to A7 were tried for the murder of one Jawahar. Three charges were framed against them. A7 was charged under Section 302 read with Section 109, I.P.C. for instigating A1 to 6 to companymit the murder. The second charge related to rioting wherein A1, A2, A4, A5 and A3, A6 were tried under Sections 147 and 148 I.P.C. respectively. The third charge under Section 302 read with Section 149, I.P.C. was against Al to A6 on the allegations that Al, A2, A4 and A5 armed with sticks, A3 armed with aruval bill-hook and A6 armed with vel-stick spear-stick , attacked Jawahar at about 8.30 M. on January 2.8, 1977 and caused him multiple injuries as a result of which he died on the same day. All the accused persons were acquitted by the learned Trial Judge. On appeal the High Court maintained the acquittal of A4 to A7 but reversed the findings in respect. of A1to A3. Believing the prosecution evidence, the High Court came to the companyclusion that the companymission of offence by A1 to A3 was proved. They were companyvicted under Section 304 Part I read with Section 34, I.P.C. and were sentenced to undergo rigorous imprisonment for five years. This appeal by A1 to A3 via special leave petition is against the judgment of the High Court. While granting special leave to appeal this Court by its order dated August 10, 1979 allowed bail to the appellants. We have heard learned companynsel for the parties. We agree with the High Court that the participation of the appellants in the occurrence which resulted in the death of Jawahar has been proved beyond doubt. We are, however, of the view that keeping in view the nature of injuries on the person of the deceased and the facts and circumstances of this case the offence companymitted by the appellants companye within the mischief of Section 325 read with 34, I.P.C. Thirteen external injuries were found on the dead body of Jawahar. Out of those 11 were on lower legs and arms. The High Court while companysidering the nature of offence observed as under- These accused and their associates who be set themselves on Jawahar companyld never have intended to cause the death of Jawahar for, if such was their intention, they companyld have certainly killed him especially after carrying him into the cholam field and left him dead there instead of merely causing simple and grievous injuries to him. Even with reference to the aspect whether the accused persons companyld have, intended to cause such injuries as would be sufficient, in the ordinary companyrse of nature, to cause death, we are number able to give a finding in favour of the prosecution. Even according to Jawahars statement Exhibit P-6 all that first accused had remarked was that the attack on him was in retaliation for the injuries Jawahar had caused on the first accused a few weeks earlier. Agreeing with the above observations of the High Court we are of the opinion that the intention of the appellants was to cause grievous hurt and as such the offence companymitted by them companyes within the parameters of Section 325, I.P.C. We, therefore, set aside the companyviction and sentence of the appellants under Section 304 Part I, I.P.C. read with Section 34, I.P.C. and instead companyvict them under Section 325, P.C. read with Section 34, I.P.C. We impose the sentence of imprisonment already undergone by the appellants. We also impose the sentence of Rs. 7,000 each as fine on the appellants. The appellants shall deposit Rs. 7,000 each before the Trial Court within four months from today. In the event of number payment of fine the appellants shall undergo rigorous imprisonment for five years. The amount of Rs. 21,000 realised as fine from the appellants be paid to the father mother of deceased Jawahar. In the event of numbere of them surviving the amount shall be paid to Indra sister of deceased Jawahar.
Delay companydoned. Leave granted. This appeal is directed against the impugned order dated 26th of May, 2005 passed in LPA SW No. 52/2005 and order dated 10th of August, 2007 in APLPA OW No. 50/2005 passed by the High Court of Jammu Kashmir at Jammu by which the order of the learned Single Judge was set aside and the Writ Petition was dismissed.
Leave granted. We have heard learned companynsel for the appellant as well as learned companynsel for the Insurance Company who has remained present to oppose these proceedings. Other respondents are served. They have number chosen to companytest these proceedings. An unfortunate accident took place where the appellants eldest son, aged about 18 years was run over by the offending truck insured by the respondent-Insurance Company on 17-4-1991. In the claim petition a large amount was claimed by way of companypensation amounting to Rs. 10 lakhs which prima facie appeared to be unreasonable. The Tribunal after recording evidence awarded Rs. 40,000, The High Court dismissed the first appeal. In our view, as the victim was aged 18 years and belonged to a labour class and even his younger brother was doing labour work and getting Rs. 10 per day, it is obvious that the deceased, had he survived, would have earned a substantial amount per month for the benefit of the family as the appellants are his destitute mother and her minor children. In our view, total companypensation of Rs. 40,000 is too meagre. Even taking a reasonable view of the amount which the deceased would have earned, had he survived, companysidering the future economic prospects of the deceased we deem it fit to increase the award to a lump sum amount of Rs. 1,50,000. Meaning thereby, the appellant will be entitled to an additional amount of Rs. 1,10,000 as Rs. 40,000 have already been awarded by the Tribunal. This additional amount of Rs. 1,10,000 shall be deposited by the respondent-Insurance Company with 12 interest from the date of the claim petition till actual deposit. The said deposit shall be made within eight weeks from the date of the receipt of the companyy of this order by the Insurance Company at its end. Office of this Court shall forthwith send the said companyy to the respondent-Insurance Company for due companypliance. The additional deposited amount subject to investment as indicated hereinafter will he permitted by the Tribunal to be withdrawn by the appellants on due identification. As Appellants 2 and 3 are the younger brothers of the deceased, in our view, out of the amount of Rs. 1,10,000 with interest to be deposited by the respondent-Insurance Company 50 of the total deposited amount should be invested by the Tribunal in a fixed deposit of a nationalised bank for a period of five years in the name of Appellants 2 and 3.
SURINDER SINGH NIJJAR, J. Leave granted. Heard the learned companynsel. Since this appeal by special leave is directed against an order granting interim relief the same may be disposed of by briefly stating the relevant facts. The appellant claims to have lent certain sums of money to respondent No.2, namely, Rafique Sarang. Subsequently, the disputes arose between the parties, which were referred to a named Arbitrator on 29.5.2001. The Arbitrator passed an award declaring the respondent No.2 liable to pay a sum of Rs.78,96,300/- to the appellant i.e. Babu Bhai Thiba. The appellant sought execution of the Award in the Bombay High Court. It appears that an order was passed by the Bombay High Court in the execution application on 1.8.2003 directing attachment of several properties including the premises No.108 Palm Spring CGHS Limited, First Floor, Swamy Samarth Nagar, Andheri W , Mumbai. At this stage, respondent No.1, Ashok Ravi Shankar Naval, filed Chamber Summons No.1277/2003 seeking an order for raising attachment of the aforesaid premises, on the ground that he is the owner, thereof. In support of his plea he relied upon two agreements dated 1.10.1999 executed by respondent No.2, Rafiq Sarang, his wife Mrs. Shahnaz Rafiq Sarang, with respondent No.1 and his wife. He claimed that under one agreement he had paid a sum of Rs.9,53,000/- in cash as a loan transaction. The second agreement was for sale of the aforesaid premises in case of failure to repay the loan amount. Since Rafique Sarang failed to repay the loan, the premises were duly transferred in the name of respondent No.1 by the Society. Upon companysideration of the entire matter, the learned Single Judge observed that both the agreements are bogus documents and cannot be accepted. Therefore, the Chambers Summons came to be dismissed by the learned Single Judge by order dated 9.3.2005. Respondent No.1 carried the matter in appeal before the Division Bench. By order dated 4.6.2007 the Division Bench restrained the appellant from taking further steps to dispose of the properties in execution of the award dated May 29, 2001. This order is challenged in this appeal by special leave by the appellant who is seeking to execute the Award. Initially at the time when the numberice was issued on 17.8.2007 this Court directed that until further orders, numberthird party rights shall be created in the subject of dispute. Upon companysideration of the entire matter, we are of the opinion that the interim relief granted earlier by this Court needs to be companytinued during the pendency of the proceedings in the High Court. However, we direct that the aforesaid order of injunction will be subject to the appellant depositing a sum of Rs.15 lakhs with the Prothonotary and Senior Master of the Bombay High Court.
criminal appellate jurisdiction criminal appeal number 88 of 1962. appeal by special leave from the judgment and order dated numberember 30 1961 of the calcutta high companyrt in cr. r. number 1117 of 1961. r. prem r. n. sachthey and r. h. dhebar for the appellant. s. r. chari ravinder narain j. b. dadachanji and 0. mathur for the respondent. 1962. september 11. the judgment of the companyrt was delivered by gajendragadkar j.-the principal point which the appellant the state of west bengal has raised for our decision in the present appeal is whether the provisions of section 540 of the companye of criminal procedure apply to a case tried by the magistrate under section 207a of the companye. that question arises in this way. on the 7th july 1960 a charge-sheet was submitted under s. 173 of the companye by inspector bhuromal of the special police establishment new delhi in the companyrt of the chief presidency magistrate calcutta against hari das mundhra accused number 1 and the respondent tulsidas mundhra accused number 2 under section 12ob/409 and sections 409 and 477-a of the indian penal companye. on the 5th august 1960 both the accused persons appeared before the learned chief presidency magistrate and furnished bail. thereafter the case was transferred to m. roy the presidency magistrate 5th companyrt for further proceedings. on the 10th october 1960 companyies of the documents were furnished to the accused persons and since the record was voluminumbers the hearing of the case was adjourned to the 7th december 1960. on the 1st march 1961 parties were heard and in view of the nature of the offences and the amounts involved the magistrate took the view that the proper companyrse to follow would be to adopt the companymitment proceedings as laid down in s. 207a of the companye. subsequently the procedure prescribed by the said section was followed. it appears that accused number 1 who had in the meanwhile been companyvicted in anumberher case was undergoing a sentence of imprisonment in the district jail at kanpur and so he companyld number be produced before the magistrate until the 7th july 1961. that is why the case had to be adjourned on some occasions and effective hearings did number make a material progress until the 7th july. on the 6th july 1961 the respondent filed a petition before the magistrate alleging that amongst the documentary evidence sought to be relied upon against him by the prosecution were included three cheques and the prosecution case was that the writing on the cheques was in the handwriting of the respondent. the respondent disputed this allegation pan prayed that he should be allowed an opportunity to examine defence witnesses to prove that the impugned handwriting was number his. on the 7th july 1961 when the case was taken up for hearing before the magistrate he first companysidered the application made by the respondent to call defence witnesses and on the merits he rejected the said application. then he proceeded to make an order of companymitment. in rejecting the application of the respondent for examining defence witnesses the magistrate took into account the fact that the application had been deliberately made at a very late stage in order to prolong the proceedings in his companyrt and so that was one reason why he thought that an unconsciousably delayed petition which had been made solely with the object of gaining time should number be granted. he also held that the application was misconceived. it was urged before the magistrate that he companyld examine the said witnesses and in support of this argument reliance was placed on a decision of the bombay high companyrt in the case of arunachalam swami v. state of bombay 1 . the learned magistrate took the view that the said decision was distinguishable on facts. whilst the learned magistrate was delivering this order an application was made before him that the respondent wanted to move the higher companyrt for a transfer of the case and though the learned magistrate felt that this application also was intended merely to prolong the proceedings in his companyrt he adjourned the case because under s. 526 8 it was obligatory on him to do so. that is why he adjourned the hearing of the case to the 20th july 1961 for passing the remaining portion of the final order in case the respondent failed to obtain from the higher court the necessary order of transfer. this order was challenged by the respondent by moving the calcutta high companyrt in its criminal revisional jurisdiction. the high companyrt took the view that s. 540 applied to cases tried under s. 207a and it directed the magistrate to consider afresh whether he should summon and examine the defence witnesses mentioned by the respondent in his application of the 6th july 61 under the provisions of the said section. incidentally the high companyrt also observed that the accused persons had number been examined under s.362 and so it thought that an opportunity should be given to them to explain the circumstances appearing against them by asking them questions under s. 342 this observation was made even though the high companyrt did number think it necessary to decide the general question whether in a companymitment enquiry examination of the accused under s.342 is compulsory or number. in the result the order passed by the.magistrate on the 7th july 1961 was set aside and the matter was sent back to his companyrt for disposal in accordance with law. it is against this order that the appellant has come to this companyrt by special leave and on its behalf a. 1. r. 1956 bom. 695. mr. prem has companytended that the high companyrt was in error in holding that s. 540 of the companye applied to proceedings under s. 207a. in the alternative he has argued that the magistrate had himself companysidered the question as to whether the witnesses should be examined in the light of his powers under s. 540 and so even if his first point failed he was entitled to companytend that the high companyrt was number justified in sending the case back to the magistrate. there is numberpoint he argues in asking the magistrate to companysider the question once again. there is numberdoubt that the new provisions under s.207a have been introduced for the purpose of expediting the companymitment proceedings so as to shorten the duration of criminal cases which are exclusively triable by the companyrt of session or high companyrt. section-206 inter alia companyfers powers on the magistrates specified in the section to companymit any person for trial to the companyrt of session or high companyrt for any offence triable by such companyrt. under s.207 it is provided that in regard to a case which is triable exclusively by a court of session or high companyrt or which in the opinion of the magistrate ought to be tried by such companyrt the magistrate shall a in any proceeding instituted on a police report follow the procedure specified in s.207a and b in any other proceeding follow the procedure specified in the other provisions of this chapter. thus s. 207a is applicable to proceedings in respect of offences which are exclusively triable by the companyrt of session or high companyrt or which in the opinion of the magistrate ought to be tried by such companyrt. this section companysists of 16 subsections which in a sense companystitute a self-contained code which has to be followed in dealing with cases under the said section. sub-section 2 authorises the magistrate to issue a process to companypel the attendance of any witness or the production of any document or thing. under sub- section 3 the magistrate has to satisfy himself that the documents referred to in section 173 have been furnished to the accused and if they are number so furnished he has to cause the same to be so furnished. sub-section 4 then deals with the stage where the magistrate proceeds to take evidence of such persons if any as may be produced by the prosecution as witnesses to the actual companymission of the offence alleged and it adds that if the magistrate is of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution he may take such evidence also. by sub-section 5 the accused is given liberty to cross- examine the witnesses examined under sub-section 4 . sub- section 6 then lays down that if evidence is recorded under sub-section 4 and the magistrate has companysidered all the documents referred to in s.173 and has if necessary examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard he shall if he is of opinion that such evidence and documents disclose numbergrounds for companymitting the accused person for trial record his reasons and discharge him unless he thinks that such person should be tried before himself or some other magistrate in which case he shall proceed accordingly. sub-section 7 deals with a case where on companysidering the evidence and the documents produced and after giving opportunity to the prosecution and the accused to be heard the magistrate is of opinion that the accused should be companymitted for trial he shall frame a charge under his hand declaring with what offence the accused is charged. sub-section 8 then lays down that as soon as the charge has been framed it shall be read and explained to the accused and a companyy thereof given to him free of companyt. under sub-section 9 the accused shall be required at once to give in orally or in writing a list of the persons if any whom he wishes to be summoned to give evidence on his trial. there is a proviso to this sub-section which entitles the magistrate in his discretion to allow such list to be given later but we are number companycerned with that proviso in the present appeal. the rest of the clauses are number relevant for our purpose. it will thus be seen that before the magistrate decides either to discharge the accused person or to direct that he should he tried by himself or by any other magistrate or to commit him to the companyrt of session or high companyrt he has to consider the evidence recorded before him under sub-section 4 and the documents referred to in s. 173. it is open to him to examine the accused person also if he thinks it necessary to do so for the purpose of enabling him to explain circumstances appearing against him in the evidence. he has of companyrse to hear the prosecution and the accused person before making the order. the scheme of s. 207a thus does number appear to provide for a defence witness to be examined before an order is passed either under sub-section 6 or sub-section 7 and that may be because it was thought by the legislature that in dealing with criminal cases instituted on a police report it may ordinarily number be necessary to prolong the enquiry by allowing the accused person to lead evidence in defence and so numberprovision in that behalf has been made. even the examination of the accused person has been left to the discretion of the magistrate under sub-section 6 sub-section 7 also shows that the examination of the accused person is in the discretion of the magistrate. as we have already seen it is after the charge is framed and read and explained to the accused person under ss. 8 that the stage is reached for him to give in a list of person whom he wants to examine under ss. 9 . this position shows a striking companytrast to the relevant provisions of s. 208. section 208 deals with cases where proceedings are instituted otherwise than on a police report and it provides that when the accused person is brought before . the magistrate he shall proceed to hear the companyplainant if any and take all such evidence as may be produced in support of the prosecution or on behalf of the accused or as may be called for by the magistrate. section 208 3 provides inter alia that if the accused applies to the magistrate to issue process to compel the attendance of any witness or the production of any document or thing the magistrate shall issue such process unless for reasons to be recorded he deems it unnecessary to do so. in other words in regard to the proceedings tried under s. 208 an accused person is entitled to lead evidence in defence and the magistrate is bound to allow such evidence to be led except of companyrse where he companyes to the companyclusion that such evidence need number be led in which case he has to record his reasons for. companying to that companyclusion. when we companysider the relevant provisions of s. 207a and companytrast them with the corresponding provisions of s. 208 it becomes clear that an accused person has numberright to lead evidence in defence in proceedings governed by s. 207a whereas he has a right to call for such evidence in proceedings governed by section 208. this position however does number affect the question as to whether s. 540 applies even to the proceedings governed by s. 207a. section 540 gives power to the companyrt to summon material witness or examine a per-son in attendance though number summoned as a witness or recall and re-examine any person already examined and the section specifically provides that the companyrt shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case. it would be numbericed that this section companyfers on criminal companyrts very wide powers. it is numberdoubt for the companyrt to companysider whether its power under this section should be exercised or number. but if it is satisfied that the evidence of any person number examined or further evidence of any person already examined is essential to the just decision of the case it is its duty to take such evidence. the exercise of the power companyferred by s. 540 is conditioned by the requirement that such exercise would be essential to the just decision of the case. that being so it is difficult to appreciate the argument that the scheme of s. 207a excludes the application of s. 540 to the proceedings governed by the former section. it is true that s.207a does number give an accused person a right to lead evidence in defence and so he would number be entitled to make an application in that behalf but that is very different from saying that in proceedings under s. 207a the magistrate has numberjurisdiction to examine a witness by exercising his powers under s. 540. the denial to the accused person of the right to lead evidence in defence has numbermaterial bearing on the question as to whether the magistrate can exercise his powers under s. 540. we do number think that the scheme of the special provisions companytained in s. 207a legitimately leads to the inference that the applicability of s. 540 is thereby excluded. sometimes if a statute companytains a special or particular provision dealing with a special or particular case or topic and also includes a general provision dealing with the said special or particular topic or case as well as others the particular or the special provision excludes the application of the general provision in respect of the topic or case companyered by the former. that however is number the position in the present case because section 207a suggests by necessary implication for the. exclusion of the accused persons right to lead evidence whereas s. 540 does number refer to the right of the accused person or the prosecution to lead any evidence but deals with the companyrts power to examine witnesses as companyrt witnesses in the interest of justice. section 540 in terms applies at any stage of any enquiry trial or other proceeding under this companye. this section is wide enumbergh to include a proceeding under s. 207a and so it would be unreasonable to companytend that the scheme of s.207a makes section 540 inapplicable to the proceedings governed by s. 207a. the power of the companyrt under s. 540 can be exercised as much in regard to cases governed-by s. 207a as in regard to other proceedings governed by the other relevant provisions of the companye. therefore we are satisfied that mr. prem is number justified in arguing that the magistrate had numberjurisdiction to examine witnesses as companyrt witnesses even if he had held that the examination of such witnesses would be essential to the just decision of the case. the alternative argument urged by mr. prem still remains to be companysidered. the high companyrt seems to have thought that in rejecting the application of the respondent for examining defence witnesses the magistrate took the view that he had numberpower to do so in the present proceedings because his jurisdiction was circumscribed by the provisions of s. 207 that appears to be the sole basis of the decision of the high companyrt in reversing the order of the magistrate and sending the proceedings back to his companyrt. in our opinion the high companyrt was in error in assuming that the magistrate had number companysidered the question on the basis of the applicability of s. 540. in fact as we have already pointed out when the magistrates attention was drawn to the decision of the bombay high companyrt in the case of arunachalam swami 1 he observed that the case was distin- guishable on facts he did number say that the case was irrelevant because s.540 was inapplicable to the proceedings before him. if he had taken the view that s.540 did number apply at all the magistrate would obviously have said that the bombay decision had numberrelevance. the reason given by the magistrate that the case was distinguishable on facts postulates that s.540 was applicable but in his opinion the particular decision was of numberassistance to the respon- dent having regard to the difference of facts between the case before the magistrate and the bombay case. therefore the order passed by the magistrate cannumber be successfully challenged on the ground that the a. i. r. 1956 bom. 695. magistrate did number companysider the question under s. 540 of the code. it appears from the order passed by the learned magistrate that he took the view that having regard to the voluminumbers evidence adduced by the prosecution there was numbersubstance in the allegation of the respondent that the evidence of the witnesses whom he proposed to examine was material or would be decisive. he has observed that the documentary evidence adduced by the prosecution was voluminumbers and it clearly showed a prima facie case against both the accused persons. in that companynection he has also companymented on the companyduct of the respondent. the photostat companyies of the disputed cheques had been given to both the accused persons nearly nine months before the 6th july 1961. arguments in respect of these documents were urged before the magistrate nearly two months before the said date. at numberstage was it ever suggested to the magistrate that the respondent wanted to lead evidence to show that the writings on the cheques were number in his handwriting and that the said fact if proved would materially affect the prosecution case. the conclusion of the magistrate was that the application made by the respondent was vexatious and so was intended merely to delay the proceedings in his companyrt. in view of the reasons given by the learned magistrate in rejecting the application of the respondent it is very difficult to sustain the view taken by the high companyrt that the magistrate was inclined to hold that s.540 did number apply to the proceedings in the present case. the high companyrt has also referred to the fact that the accused persons have number been examined under s.342 of the code and it has apparently asked the magistrate to examine the accused persons under that section without companysidering the question as to whether it was necessary that the magistrate should examine them at this stage. we have already referred to the relevant provisions of s.207 a 6 .
ORIGINAL JURISDICTION Writ Petitions Nos. 55 and 56 of 1965. Petitions under Art. 32 of the Constitution of India for the enforcement of Fundamental Rights. Gopalakrishnan, for the petitioners in both the petitions Ganapathy Iyer and R. N. Sachthey, for the respondent in both the petitions . The Judgment of the Court was delivered by Wanchoo, J. These two writ petitions under Art. 32 of the ,Constitution for a writ of habeas companypus raise companymon questions .and will be dealt with together. We may set out the facts in one of the petitions namely Petition 55 in order to highlight the points raised on behalf of the petitioners. It is unnecessary to referred to the facts in the other petition as they are similar except that in the other case the original arrest took place on December 6 instead of December 8. Sahib Singh Dugal, petitioner, was employed in the Posts and Telegraph Directorate of the Central Government. He was arrested on December 8, 1964 and put in jail as an under trial prisoner for an offence under S. 3 of the Official Secrets Act, Various remands were taken up to March 11, 1965 in companynection with the criminal case against the petitioner. It appears the besides Dugal, eight other persons were also involved in the case under S. 3 of the Official Secrets Act, including Jagdev Kumar Gupta petitioner in petition No. 56 of 1965. On March 11, 1965, the Deputy Superintendent of Police who was apparently in-charge of the investigation made a report to the companyrt to the affect that all the nine persons involved in that criminal Case might be discharged as sufficient evidence for their companyviction companyld number be discovered during the investigation. Consequently, the magistrate discharged all the nine persons including Sahib Singh Dugal and Jagdev Kumar Gupta petitioners and they were released from jail that very evening. Immediately after Sahib Singh Dugal came out of the jail, he was served with an order under. 30 1 b of the Defence of India Rules hereinafter referred to as the Rules , This order was passed by the Government of India and provided that Dugal be detained in order to prevent him from acting in an manner prejudicial to the defence of India, public safety and Indias relations with foreign powers. Dugal was then arrested and detained in the Central Jail, Tehar, New Delhi in accordance with the further order of the Government of India under r. 30 4 of the Rules. The case of the petitioners before us is two-fold. In the first place they rely on the decision of this Court in Rameshwar Shaw V. District Magistrate, Burdwan 1 and their case is that in view of that decision the order of their detention and the service of hat order are illegal and they are therefore entitled to release. In the second place, it is urged that the order of detention is mala fide in the circumstances of the case and therefore should be set aside. The Union companytests the petitions and urges that Rameshwar Shaws case 1 has numberapplication to the present cases and that there was numbermala fide intention in making the orders of detention. We shall first companysider whether the orders in the present cases are companyered by the decision of this Court in Rameshwar Shaws case 1 and should therefore be set aside. It is necessary in this companynection to refer to the facts in that case. Rameshwar Shaw was ordered to be detained by an order passed on February 9, 1963. This order was served on him on February 15, 1963. At that time he was in Burdwan jail. He had been in that jail for time past in companynection with a criminal companyplaint pending against him. Therefore, both when the order was passed and when it was served on Rameshwar Shaw, he was already in jail in companynection with the criminal case pending against him and it was number known how long he would remain in jail in that companynection. It was also impossible to say at that stage whether he would be companyvicted in the criminal case or acquitted. It may be mentioned that that was a case of detention under the Preventive Detention Act where grounds and particulars are supplied to the detenu. But the main question that was decided therein was that where a person was already in jail for an indefinite length of time in companynection with a criminal case pending against him it would number be possible for the authority to companye to the companyclusion that such a persons detention is necessary in order to prevent him from acting in a manner prejudicial to the public safety etc. It was pointed out that the scheme of the section postulates that if an order of detention is number passed against a person he would be free and able to act in a prejudicial manner but when the person against whom an order is passed is already in jail for an indefinite length of time or for a long time to companye say when be is undergoing sentence of imprisonment for a number of years it companyld hardly be said that such a person would act in a manner prejudicial to the public safety etc. unless he is detained. In such a case preven- 1 1964 S. C. R. 921. tive detention would be unnecessary for the person companycerned is already in jail for an indefinite length of time or for a long time, In Rameshwar Shaws case 1 , he was in jail in companynection with the criminal case pending against him for an indefinite length of time. It was in those circumstances that this Court held that the authority ordering detention companyld number legitimately companye to the companyclusion that the detention of the person was necessary to prevent him from acting in a manner prejudicial to the public safety etc. for in companying to that companyclusion the authority had to be satisfies that if the person is number detained, he would act in a prejudicial manner and that inevitably postulates freedom of action to the said person at the relevant time. If such a person was already in jail custody for an indefinite length of time it companyld number be postulated about him that if he was number detained he would act in a prejudicial manner. This matter was again companysidered by this Court in Smt. Godavari Shamrao v. The State of Maharashtra. 1 That was a case where a certain person had been detained under the Defence of India Rules. Later, this order was revoked and another order was passed to remove some technical defects. The latter order was challenged as illegal as it was passed at the time when the person companycerned was in detention and it was also served on her in jail. This Court held that the second order of the State Government after it had decided to revoke the earlier order was perfectly valid so far as the time of making the order was companycerned and its service on the detenu who was detained number as an under trial or as a companyvicted person companyld number be assailed, and the case of Rameshwar Shaw 1 was distinguished. It will be numbericed that the facts of the present two cases differ from the facts of Rameshwar Shaws case 1 in one material particular. Rameshwar Shaw was in jail in companynection with the criminal case pending against him for an indefinite duration. The order of detention as well as the service of that order was made on Rameshwar Shaw when he was in jail for an indefinite period in companynection with the criminal case pending against him. In the present cases it is true that the petitioners had been in jail for about three months before the order of detention was made against them. But there is a significant difference in the present cases, namely, that the executive authorities had decided that the criminal case against the petitioners companyld number succeed for want of sufficient evidence and applied for the discharge of the petitioners. It was in these circumstances that the executive authorities decided to 1 1964 4 S. C. R. 921. 2 A. 1. R. 1964 C. 1128 pass an order of detention. So on March 11 a report was made to the magistrate that the petitioners should be discharged as there was number sufficient evidence for their companyviction and on the same date the order for their detention was passed under the Rules. Further it was served on the petitioners immediately after their release from jail. In these circumstances, the ratio decidendi of Rameshwar Shaws case 1 will number apply, for the authorities had decided to drop the criminal case and ask for the discharge of the accused. Then they companysidered whether there was justification for the detention of the petitioners under the Rules and decided to, detain them. As was pointed out by this Court in Rameshwar Shaws case 1 detention is made generally in the light of the evidence about the past activities of the person companycerned. But these past activities should ordinarily be proximate in point of time in order to justify the order of detention. In the present cases the petitioners had been in jail for only three months before the order of detention was passed. It cannot be said that the companyduct of the petitioners before this period of three months is number proximate enough to justify an order of detention based on that companyduct. As a matter of fact, the affidavit on behalf of the Government of India is that the material in respect of the activities of the petitioners ranged over a period of two years before the, date of detention and that was taken into account to companye to the, companyclusion whether the detention under the Rules was justified or number. We are therefore of opinion that the petitioners cannot get advantage of the decision of this Court in Rameshwar Shawscase on the facts in the present cases. The next companytention on behalf of the petitioners is that the order is mala fide. The reason for this companytention is that it was originally intended to prosecute the petitioners under s. 3 of the Official Secrets Act and when the authorities were unable to get sufficient evidence to obtain a companyviction they decided to drop the criminal proceedings and to order the detention of the petitioners. This by itself is number sufficient to lead to the inference that the action of the detaining authority was mala fide. It may very well be that the executive authorities felt that it was number possible to obtain a companyviction for a particular offence under the Official Secrets Act at the same time they might reasonably companye to the companyclusion that the activities of the petitioners which had been watched for over two years before the order of detention was passed were of such a nature as to justify the order of detention. We cannot infer merely from the fact that the authorities decided 1 1964 4 S. C. R. 921, sup.CI/65-6 to drop the case under the Official Secrets Act and thereafter to order the detention of the petitioners under the Rules that the order of detention was mala fide. As we have already said, it may number be possible to obtain a companyviction for a particular offence but the authorities may still be justified in ordering detention of a person in view of his past activities which will be of a wider range than the mere proof of a particular offence in a companyrt of law. We are number therefore prepared to hold that the orders of detention in these cases were mala fide.
ORDER One Ishwar Dutta was the owner of the Property. He died leaving behind three Sons- Mahadeo, Hira and Mahabir died issueless. His Interest in the Property, therefore, vested in Mahadeo and Mewa son of Hira who predecessor him. Mewa died in 1921-22 leaving behind a Son Damoder. Koleshra Devi was the widow of Damodar whose exact date of death is number known but he is Said to have expired sometime after 1932. The plaintiffs herein are heris of Ram Layakone of the sons of Mahadeo whereas the respondent herein are heirs of Raja, another son of Mahadeo. The Properties in question bearing plot Nos. 901, 902 and 907 were acquired under the provisions of the Land Acquisition Act. The properties were mutated in the name of Damoder. The amount of companypensation was paid to respondent Mona Devi. The appellants herein filed an application under section 30 of the Land Acquisition Act before the Collector whereupon a reference was made. One of the issues which fell for companysideration before the Reference Judge under the Land Acquisition Act was as to whether the deed of gift executed by Koleshra Devi in respect of her half share of Plot No. 901 full share of plot No. 902 and three fourth share of plot No. 907 in Favour of the appellants herein by deed of gift dated 7.5.1960 was valid in law. It was inter alia held that Koleshra Devi being possessed of the Share which vested in her on the death of her husband-Damoder in lieu of maintenance,, she become the absolute owner in terms of Section 14 1 of the Hindu Succession Act, 1956. The judgment and decree passed by the Reference Court was reversed by the First Appellate Court. The High Court by reason of the impugned judgment allowed the appeal preferred by the respondents herein and affirmed judgment of the trial Court opining It is number in dispute that mostt. Kauleshwara was maintenance holder and her husband had died before the year 1937. Nothing has companye on record that she was put in possession over the lands, in lieu of maintenance, which she gifted to the respondents. In absence of such evidence, she was number authorised to make a gift and Ext.1 was invalid. The extent of the share of the parties herein are said to be as under Plot Originally in Share of petitioners Share of No. name of respondents 901 Mahadeo Half Half 902 Mewa Full gifted by Koleshra Devi ----- 903 Mahabir Mewa Three Fourth Half of Mawa One fourth one Mahadeo gifted by Koleshra Devi One fourth of Mahadeo fourth of Mahadeo Total Three fourth One fourth The learned companyncel appearing on behalf of the appellants would companytend that having regard to the fact that a finding of fact had been arrived at that Koleshra Devi was possessed of the property in question, the High Court companymitted a manifest error in interfering therewith. Our attention in this behalf has been drawn to a decision of this Court in Raghubar Singh and Ors. v. Gulab Singh Ors., 1998 6 SCC 314. Mr. Upadhyay, learned senior companynsel appearing on behalf of the respondents on the other hand would support the judgment. We may before adverting to the question raised before us must observe that the High Court dealt with the matter in a very slipshod manner. It interfered with the finding of fact arrived at by the First Appellate Court without assigning any reason therefor .While exercising its Jurisdiction under Section 100 of the Code of Civil Procedure. The High Court is required to formulate a substantial question of law in relation to a finding of fact. The High Court exercise a limited jurisdiction in that behalf. Ordinarily unless there exists a sufficient and companyent reasons, the findings of fact arrived at by the Courts below are binding on the High Court. The First Appellate Court clearly came to the following companyclusion Mewa Mahto died leaving behind Demoder Mahto and Damodar Mahto died leaving behind Kaulashwari who according to the discussed evidence came into possession as limited owner and number as maintenance holder only as alleged by the respondent. Before passing of the Hindu Succession Act 1956 She was limited owner and in that capacity she was companypetent enough to remain in possession of the lands recorded in the name of Mewa Mahto and fter passing of the Hindu Succeession Act she become absolute owner. The gift deed dated 7.5.1960 was executed after passing of the Hindu Succession Act when she has full authority to execute the gift deed. The learned Subordinate Judge has given numberimportance to the gift deed Ext.1 and hold that in the lost it importance in eye of law. As mentioned above Kauleshwari has executed the deed after passing of the Hindu Succession Act and in that circumstances it being documents of 30 years old carried presumption of genuineness. Once it was found that Koleshra Devi was possessed of the land in question in lieu of her right of maintenance, in our opinion, Sub-Section 1 of Section 14 of the Hindu Succession Act, 1956 will clearly be attracted. In Raghubar Singh and Ors. v. Gulab Singh Ors., 1998 6 SCC 314 this Court stated the law in the following terms The obligations, under the Shastric Hindu Law, to maintain a Hindu widow out of the properties of her deceased husband received a statutory recognition with the companying into force of the Hindu Womens Rights to Property Act, 1937. the law on the subject was, thereafter, companysolidated and companyified by the Hindu Married Womens Right to Separate Residence and Maintenance Act, 1946 which came into force on 23.4.1946. The right to maintenance of the Hindu widow, as a Pre-existing right, was thus recognised by the two statutes referred to above but it was number created for the first time by any of those statutes. Her right to maintenance exited under the Shastric Hindu law long before statutory enactments came into force. After the attainment of independence, the need for emancipation of women from feudal bondage because even more imperative. There was growing agitation by Hindu women for enlargement of their rights as provided by the Shastric Hindu law in various spheres. It was at this juncture that Parliament stepped in and enacted various statutes like the Hindu Marriage Act, 1956 the Hindu Adoption and Maintenance Act, 1956 and the Hindu Succession Act, 1956 providing for intestate succession. The Hindu Succession Act, 1936 made far-reaching charges in the structure of Hindu law by removing the traditional limitations on the powers of a Hindu widow to deal with the property of her deceased husband in her possession in lieu of her right to maintenance and the Act made her an absolute owner of the property, over which hitherto fore, she had only a limited right. It was further held 24Accordingly, we hold that the right to maintenance of a Hindu female flows from the social and temporal relationship between the husband and the wife that right in the case of a widow is a pre-existing right , which existed under the Shastric Hindu Law before the passing of the 1937 or the 1946 Acts. Those Acts merely recognised the position as was existing under the Shastric Hindu law and gave it a statutory backing. Where a Hindu widows is in possession of the property of her husband, she has a right to be maintained out of it and she is entitled to retain the possession of that property in lieu of her right to maintenance. In Shakuntala Devi v. Kamla and Ors., 2005 5 SCC 390 it was observed However, the decision of this Court in the case of Balwant Singh, 1997 7 SCC 137 would have a bearing on the merits of this case wherein it is held that suit for possession would number be maintable on the basis of a declaratory decree as the declaratory decree did number companyvey any title in favour of the reversioners. This was a case under the Hindu Law wherein the widow of the original owner in the year 1954 made a gift and got the land mutated in favour of her adopted sons. The reversioners filed a suit seeking a decree that the alienation made by the widow was number binding on their reversionery rights. The suit was decreed and it was held that the gift made by the widow would number affect the rights of the reversioners. The property was remutated in the name of the widow. In the year 1970, the widow again gifted the suit property to the adopted sons and she died in the year 1973. In a suit for recovery of possession by the reversioners on the basis of the earlier decree, the companyrt held that since the widow companytinued to be in possession of the property even after the declaratory decree obtained by the reversioners because of the enlarged rights she got under the Hindu Succession Act, 1956 which made her the absolute owner of the property, the gifts of the property made by her to her adopted sons in the year 1970 companyld number be set aside. Almost similar are the facts of this case inasmuch as in this case also since on the companying into force of the Hindu Succession Act by virtue of Section 14 1 , the limited right got by Uttamdassi under the will got enlarged to an absolute right in the suit property. Thus, she became absolute owner of the property hence, any declaratory right obtained earlier by the reversioner as companytemplated in the will cannot be the basis on which the suit for Possession companyld be maintained unless, of companyrse, the claimants in the suit for possession established a better title independent of the declaratory decree obtained by them.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 2436 to 2438 of 1989. From the Judgment and Orders dated 7.4.83 and 2.5. 1986 of the Orissa High Court in O.J.C. Nos. 108 and 109 of 1986 and 6 of 1984 respectively. U. Mehta, Gobind Das and Vinoo Bhagat for the Appellants. L. Sanghi, R.K. Mehta and A.K. Panda for the Respondents. The Judgment of the Court was delivered by OJHA, J. Special leave granted. These three appeals raise a companymon question about the interpretation of the term family in Section 37 b of the Orissa Land Reforms Act, 1960 hereinafter referred to as the Act . According to clause a of Section 37 of the Act the term person includes inter alia family. Clause b of Section 37 being the clause under companysideration may usefully be reproduced. It reads b family in relation to an individual, means the individual, the husband or wife, as the case may be, of such individual and their children, whether major or minor, but does number include a major married son who as such had separated by partition or otherwise before the 26th day of September, 1970. According to the appellants in these three appeals partition in their respective families had been taken place in the year 1965. The Act except Chapters III and IV came into force on Ist October, 1965. Chapter IV of the Act which companytains the provisions relating to ceiling and disposal of surplus land came into force on 7th January, 1972. Suo motu proceedings under Section 42 of the Act for declaration of surplus land and companysequential purposes were initiated in the year 1974. Objections were filed asserting inter alia that in view of the partition in the families of the appellants in the year 1965 the land in the ancestral properties which fell in the share of the appellants companyld number be clubbed with those of their father. This companytention, however, was number accepted on the definition of the term family companytained in Section 37 b of the Act. Such of the major married sons who as such had separated by partition before the 26th day of September, 1970 as companytemplated by the definition of the term family were allotted separate ceiling units but so far as the appellants are companycerned their shares were clubbed with those of their father and only one ceiling unit was allotted as companytemplated by the relevant provision of the Act. The appellants having failed to get relief in the appeals and revisions filed by them under the Act challenged the orders passed by the various authorities under the Act in writ petitions before the .High Court of Orissa. These writ petitions were dismissed relying on the decision of a Full Bench of that Court in Nityananda Guru v. State of Orissa and others, A.1.R. 1983 Orissa Page 54 F.B. . It is these orders of the High Court which have been challenged in these appeals. The validity of Section 37 b of the Act does number appear to have been challenged before the High Court number has it been seriously challenged even before us except by making a faint submission that even if by virtue of the said provision being incorporated in the 9th Schedule, it may be immune from challenge in view of Article 3lB of the Constitution, the protection under Article 31C would number be available to it and it would be hit by Article 14 unless it was established that it had nexus with the policy of the State towards securing any of the principles laid down in Part IV of the Constitution. This submission even if it is permitted to be raised for the first time in this Court has obviously numbersubstance in view of the undisputed position that the Act aims at agrarian reform and the provisions with regard to declaration of surplus land and its distribution among the have-nots namely landless persons is apparently to give effect to the policy of the State towards securing the principle laid down in Article 39 b of the Constitution occurring in Part IV thereof and Section 37 b has a clear nexus with that policy. The aforesaid submission has, therefore, numbersubstance. At this place it may also be pointed out that validity of analogous provisions dealing with laws for declaration and distribution of surplus land framed by the States of Andhra Pradesh, Haryana and Maharashtra has already been upheld by this Court after rejecting challenges to them on various grounds in Tumati Venkaish etc. etc. v. State of Andhra Pradesh, 1980 3 SCR 1143 Seth Nand Lal Anr. v. State of Haryana Ors., 1980 3 SCR 1181 and Waman Rao Ors. etc. etc. v. Union of India and Ors., 1981 2 SCR 1. The main attack against the judgment of the Full Bench of the Orissa High Court in the case of Nityananda Guru supra relying on which the writ petition filed by the appellants were dismissed by the High COurt has been on the ground that partition in the respective families of the appellants in the year 1965 having been accepted, Section 37 b of the Act had to be read in such a manner as to exclude the land which had fallen to the share of the appellants even though they did number fall within the category of a major married son who as such had separated by partition or otherwise before the 26th day of September, 1970 as companytemplated by the definition of the term family in the said section. It was urged that this purpose companyld be achieved by adding the word or between the words major and married. According to learned companynsel if that is done the term individual would number include a major son who had separated by partition before the 26th day of September, 1970 even if he had number married prior to that date. We find it difficult to take recourse to this mode of interpretation of Section 37 b in view of its plain language. 1n British India General Insurance Co., Ltd. v. Captain Itbar Singh and Others, 1960 1 SCR 168 sub-section 2 of Section 96 of the Motor Vehicles Act, 1939 was sought to be interpreted by the learned Solicitor General in a manner which involved addition of certain words. The submission was repelled and it was held The learned Solicitor General companycedes this and says that the only word that has to be added is the word also after the word grounds. But even this the rules of interpretation do number permit us to do unless the section as it stands is meaningless or of doubtful meaning, neither of which we think it is. On a plain reading of the definition of the term family in Section 37 b of the Act we are of the view that the said definition as it stands is neither meaningless number of doubtful meaning. In this companynection, it may be pointed out that keeping in view the agrarian reform which was companytemplated by the Act and particularly the provisions of Chapter IV relating to ceiling and disposal of surplus land which were calculated to distribute the surplus land of big tenure holders among the overwhelming have-nots of the State the Legislature in its wisdom gave an artificial meaning to the term family. The main provision companytaining the definition of the term is to be found in the first part of Section 37 b namely family in relating to an individual means the individual, the husband or wife as the case may be of such individual and their children whether major or minor. The later part of Section 37 b namely but does number include a major married son who as such had separated by partition or otherwise before the 26th day of September, 1970 does number on the face of it companytain a matter which may in substance be treated as a fresh enactment adding something to the main provision but is apparently and unequivocally a proviso companytaining an exception. This admits of numberdoubt in view of the words but does number include. In the Commissioner of Income Tax, Mysore The Indo Mercantile Bank Limited, 1959 Supp. 2 SCR 256. it was held Ordinarily the effect of an excepting or a qualifying proviso is to carve something out of the preceding enactment or to qualify something enacted therein which but for the proviso would be in it and such a proviso cannot be companystrued as enlarging the scope of an enactment when it can be fairly and properly companystrued without attributing to it that effect. Emphasis supplied That apart the submission made by learned companynsel for the appellants would also lead to an anomalous situation if the word or is added between the words major and married. Not only a major unmarried son who had separated by partition before the 26th day of September, 1970 would get excluded from the definition of the term family even a minor married son would get so excluded. The result would be that even though marriage of a minor son is prohibited by law such son would be placed at an advantageous position to a minor son who was law-abiding and had number married. Further the submission made by learned companynsel for the appellants companypletely ignores the words as such used in the later part of Section 37 b which companytains the exception referred to above. Given its proper meaning the words as such can only be interpreted to mean that it is only such son who would get the benefit of the exception who had separated by partition or otherwise before the 26th day of September, 1970 as major married son. The submission by companynsel for the appellants that the words as such qualify only son and number major married son and are meant to distinguish son from brother or uncle etc. is misconceived on the plain language of Section 37 b which companytemplates clubbing of land of spouse and children only and number of brother and uncle etc. So, the question of using the words as such to distinguish son from brother or uncle etc. does number arise. Further, for accepting this submission the words major married will have to be omitted as superfluous which cannot be done in the garb of interpretation. Learned companynsel for the appellants also urged that a son who had separated by partition or otherwise from his father was himself an individual and if his land was clubbed with that of his father, he will be subjected twice to the provisions relating to declaration of surplus land. This submission too is equally untenable. Land of such son alone who does number fall within the exception is to be clubbed with that of his father and with regard to land which had been so clubbed the son obviously cannot be treated as another individual in his own right for purposes of declaration of surplus land. Only such son who falls within the exception will be liable to be dealt with as an individual in his own right, as his land has number been clubbed with that of his father. Even on the facts of these appeals numberhing has been brought to our numberice to indicate that the land of the appellants which was clubbed with that of their father was subjected twice to the provisions relating to declaration of surplus land treating the appellants also as individuals. It was then urged by learned companynsel for the appellants that according to the definition of the term family as companytained in Section 37 b of the Act, land of a married daughter is liable to be clubbed twice firstly, with that of her father and secondly, with that of her husband. Accompanyding to him it is against the spirit of the law dealing with the question of declaration of surplus land. Suffice it to say, so far as this submission is companycerned that numbere of appellants in these appeals is a married daughter and as such we do number find it necessary to go into this question. We may also point out that dealing with an almost similar submission with regard to interpretation of Section 123 7 of the Representation of the People Act, 1951 it was held by a Constitution Bench of this Court in Rananjaya Singh v. Baijnath Singh and others, 1955 S.C.R. Page 671 at 676 The learned advocate, however, companytended that such a companystruction would be against the spirit of the election laws in that candidates who have rich friends or relations would have an unfair advantage over a poor rival. The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly number be given effect to in opposition to the plain language of the sections of the Act and the rules made thereunder. If all that can be said of these statutory provisions is that companystrued according to the ordinary. grammatical and natural meaning of their language they work injustice by placing the poorer candidates at a disadvantage the appeal must be to Parliament and number to this Court. In view of the foregoing discussion we are of the opinion that the Full Bench of the Orissa High Court in the case of Nityananda Guru supra lays down the companyrect law. One more submission has been made by learned companynsel for the appellants in the Civil Appeal arising out of SLP Civil No. 9079 of 1986. It has been urged that certain Home-Stead urban land of the appellants number companynected with agricultural lying inside Udala Notified Area Council has wrongly been included as agricultural land in the draft statement. This submission does number appear to have been made either before the High Court or before the authorities under the Act. In the companynter affidavit filed by the Additional District Magistrate Land Reforms , Mayurbhanj, Orissa it has been stated in reply to paragraphs 21 to 24 of the SLP that there is numberHome-Stead land and numbernon-agricultural land belonging to the appellant-land holders in the Notified Area Council of Udala. It has also been stated in paragraph 3 c of the said companynter affidavit that numberNotification as companytemplated by Section 73 c of the Orissa Land Reforms Act has been made by the State Government. It has further been stated therein that the Urban Land Ceiling and Regulation Act, 1976 has number been made applicable so far to the Udala Notified Area Council. In this view of the matter it is number possible for us to record any finding with regard to this submission, and companysequently we express numberopinion in this behalf.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 437-437 and 1460 of 1970. Appeals by Special Leave from the Judgments and orders dated 24-3-1969 10-11-1969 of the Kerala High Court in Writ Appeal Nos, 451/79, 630/69 807/69. B. Divan, M. Vellapally and T. M. Ansari for the Appellant in CA 437/70. Vellapally and T. M. Ansari for the Appellant in A. 438/ 70. Kapil Sibal, Vellapally and T. M. Ansari for the Appellant in A. 438/70. Kapil Sibal, M. Vellapally and T.M. Ansari for the Appellant in 1460/70. T. Harindranath and K. M. K. Nair for the Respondents in all the appeals. The Judgment of the Court was delivered by KAILASAM, J. These three appeals are by special leave granted by this Court against the judgment and order of the High Court of Kerala in Writ Appeals Nos. 451, 630 and 807 of 1969 respectively. The questions that arise for companysideration in all the three appeals and the same and can be dealt with together. As the facts so far as they are necessary for decision in these appeals are similar, we will companyfine the judgment to the facts in Civil Appeal No. 437 of 1970. The appellant in Civil Appeal No. 437 of 1970 is Travancore tea Estates Co. Ltd. Vandiperiyar in Kerala State. The 1st respondent is the State of Kerala and respondents number. 2 and 4 are the authorities functioning under the Kerala Motor Vehicles taxation Act Act 24 of 1963 which will hereafter be referred to as the Act, was brought into force on 1-7-1963. The Act provides that a tax at the rates fixed by the Government by numberification in the Gazette number exceeding the maximum rates specified i the First Schedule shall be levied on all Motor Vehicles used or kept for use in the State. The appellant companypany owned 17 motor Vehicles, tractors, trailers and lorries all of which are registered in the companypanys name under the Motor Vehicles Act. The companypany alleged that the vehicles were purchased by it solely and exclusively for use in the estates and intended to be used only for agricultural purpose and were number used number kept for use in the State as companytemplated under s. 3 of the Act. The companypany is a tea plantation having eight estates which lie companytiguous to each other and have an extent of 1391 9422.44 acres in the aggregate. The companypany for the purpose af plantation are maintaining roads fit for vehicular traffic in the eight estates companyering a length of 131 miles in the aggregate on 23rd September, 1964 a Bedford Lorry owned by the companypany and bearing registration No. KLK-1540 was seized by the police and taken into custody under s. 13 of the Act. According to the appellant the seizure was effected in Tengamullay Estate which is one of the eight estates owned by the companypany. The companypany wrote to the Department on 28-12-1964 stating that the vehicle was being used for agricultural purpose on private roads in the Estates and the companypany is number liable to pay tax and asked for the release of the vehicle. On the companypany paying a sum of Rs. 3,150/- as tax under protest for the period between 1-7-63 to 31-12-94, the vehicle was released. The department proceeded to prosecute the appellant in the Peermade 1st Class Magistrates Court and the case is still pending, The appellant companypany filed o. P. No. 199/65 before the High Court of Kerala claim in that they were number liable to pay any tax on the motor vehicles. The High Court by its judgment dt. 3rd March, 1966 directed the Regional Transport officer, Kottayam-2nd respondent herein, to examine the question raised in the writ petition and to pass final orders. It also directed that if the petitioner was aggrieved with the order he was at liberty to approach the High Court. In the meanwhile it directed stay of prosecution and companylection of tax the matter was taken up for companysideration by the 2nd respondent. The 2nd respondent rejected the pleas of the appellant and by his order dt. 12- 4-68 held that the 13 vehicles mentioned in the original Petition were liable to pay was under they act. The appellant filed a petition before the High Court for appropriate relief. The High Court disposed of the petition- P. No. 2173/68 along with o. P No. 2081/68 filed by Peermade Tea Co. who are the appellants in C.A. 438/70 in this Court, by a companymon order dt. 19th December, 1968. The learned Judge held that the language in s. 3 of the Act showed that there is a departure from the legislative policy of restricting the tax liability only to vehicles using pubic roads. It held that the tax is imposed by s. 3 on alt the motor vehicles used or kept for use in the State irrespective of any question as to whether they are used or kept for G use on pubic roads or number. It rejected the companytention on behalf of the appellant that legislature must be taken to have intended to levy such tax only on motor vehicles using or kept for use on public roads. The learned Judge also held that the Act is number beyond the companypetence of the legislative powers of the State as the tax is leviable by the State in respect of all motor vehicles are used or kept for use in the State quite irrespective of any question as whether or number such vehicles are used on public roads. 1392 Aggrieved by the decision of the single Judge the appellant took the matter up on Letters Patent Appeal. The main companytention raised - on behalf off the appellant was that the learned single Judge was in error in holding that all motor vehicles used or kept for use in the State quite irrespective of any question as to whether or number they are used on public roads, is erroneous in so far as it related to motor vehicles used or kept exclusively for use in private estate and number used or kept for use on the public roads of the State. The Letters Patent Bench affirmed the decision of the single Judge and rejected the appeal. The companystitutional validity of the Act was number questioned before the Bench. Holding that the legislative Entry 57 if the State list only required that the vehicles should be suitable for use on roads and the charging section only provided that the vehicle should be used or kept for use in the State the required companyditions were satisfied and there would be numberjustification for reading into the statute words that and number there, and restricting the levy only on vehicles using public roads. While number companytesting the companyrectness of the observation of the Bench of the Kerala High Court that the levy cannot be restricted to vehicles using the public roads, it was submitted that the words in s. 3 cl. 1 of he Act shall be levied on all motor vehicles used or kept for use in the State should be companyfined to vehicles used or kept for use on the public roads of the State, and number to vehicles that arc intended to be companyfined within the premises of the Estate. In other words the companytroversy between the parties before the R.T.O. the single Judge of the High Court and the Bench of the High Court can be stated by extracting the question at issue as framed by the R.T.O. I understand that the roads used by these vehicles even those within the estates companye under the definition of Public Roads and Public Place since at present I have . number afforded opportunity to the companypany to refute the basis on which that fact is to be found. I make it clear that I am number relying on that matter as a basis for this order and I reserve my right to investigate that matter if needed be later. I assume for argument sake without companyceding that the estate roads are private roads. Even in that case, I am of . the view that the companypanys vehicles are liable to pay tax. It is number in dispute that the vehicles are used and are kept for use within the State The companypany roads arc within the Kerala State . It is also number disputed that the vehicles are registered and their registration certificates are current and they are usable motor vehicles. The tax levied under the M.V.T. Act is a tax on the possession of usable motor 1393 vehicle and it is realised for the propose of State Revenue. Such being the nature of the levy according to me, I feel that irrespective of the question whether the road on which the vehicle is intended to be used is private or public, the tax is attracted. The question that falls for decision is whether on the assumption that the motor vehicles are used or kept for use within the estate, and number intended to be used on public roads of the State the tax is leviable? In order to appreciate the question raised, it is necessary to refer to the relevant entry in the Constitution, the provisions of the Act and the Motor Vehicles Act and the decision relating to the question rendered by this Court. Entry 57 in List II of the Constitution relates to taxes on vehicles, whether mechanically propelled or number, suitable for use on roads, including tramcars subject to the provisions of entry 35 of List III. This entry enables the State Government to levy a tax on all vehicles whether mechanically propelled or number, suitable for use on roads. emphasis supplied . There is numberdispute that the vehicles are mechanically propelled and suitable for use on roads. Section 3 of the impugned Act Kerala Motor Vehicles Taxation Act Act 24 of 1963 provides that a tax shall be levied on all motor vehicles used or kept for use in the State. The levy is within the companypetence of the State legislature as entry 57 in List II authorises by on vehicles suitable for use on roads. It has been laid down by this Court in Bolani Ores Ltd. v. Orissa, that under Entry 57 of List II, the power of taxation cannot exceed companypensatory nature which must have some nexus with the vehicles using the roads i.e. public roads. If the vehicles do number use the roads, numberwithstanding that they are registered under the Act, they cannot be taxed. If the words used or kept for use in the State is companystrued as used or kept for use on the public roads of the State, the Act would be in companyformity with the powers companyferred on the State legislature under Entry 57 of List II. If the vehicle are suitable for use on public roads they are liable to be taxed. In order to levy a tax on vehicles used or kept for use on public roads of the State and at the same time to avoid evasion of tax the legislature has prescribed the procedure. Subsection 2 of sec. 3 provides that the registered owner or any person having possession of or companytrol of a motor vehicle of which a certificate of registration is current shall for the purpose of this Act be deemed to use or kept such vehicles for use 1394 in the State except during any period for which the Regional Transport Authority has certified in the prescribed manner that the motor vehicle has number been used or kept for use. Under this sub-section there is a presumption that a motor vehicle for which the certificate of registration is current shall be deemed to be used or kept for use in the State. This provision safeguards the revenue of the State by relieving it from the burden of proving that the vehicle was used or kept for use on the public roads of the State. At the same time the interest of the bonafide owner is safeguarded by enabling him to claim and obtain a certificate of number-user from the prescribed authority. In order to enable the owner of the vehicle or the person who is in possession or being in companytrol of the motor vehicle of which the certificate of registration is current to claim exempting from tax he should get a certificate in the prescribed manner from the Regional Transport Officer. Section 5 of the Act provides for exemption from payment of tax under certain circumstances. It enables the registered owner or the person having possession or companytrol of such vehicle to give previous intimation in writing to the R.T.O. that the vehicle would number be used for such period and at the same time surrender certificate of registration and permit of the vehicle. Section 6 enables the registered owner or a person in possession or companytrol of such a vehicle to get refund of tax if companyditions specified in s. 6 are satisfied. Thus in order to enable the registered owner or person in possession or companytrol of a vehicle to get exemption of tax, advance intimation of the T.O. along with the surrender of certificate of registration is necessary. The provision of s. 3, sub-sec. 2 as well as 6. 5 and s. 6 are meant to prevent evasion of tax and to provide for exemption from tax in proper cases. Though the purpose of the Act is to tax vehicles that are used or kept for use on the public roads of the State, the State is entitled for the purpose of safeguarding the revenues of the state and to prevent evasion of the tax, to enact provision like provision as in s. 3 raising a presumption that the vehicle is used or kept for use in the Situate without any further proof unless exemption is claimed under s. 3 2 , s. 5 and s.6. It may be observed that reading sections 3, 5 and 6 it is clear that a levy of tax is companytemplated only on the vehicles. that are used or kept for use on the public roads of the state. While we agree with the companytentions of the learned companynsel for the appellant that the tax is only eligible on vehicles used or kept for use on public roads, we must deserve that in order to claim exemption from payment of tax requirements of s. 3 2 or ss. 5 and 6 should be satisfied. Surrender of the registration certificate 1395 companytemplated under s. 5 is for making sure that the motor vehicle is number being put to any use and does number have the effect of annulling the certificate of registration. If the requirement companytemplated under the Act is number satisfied the registered owner or person m possession or companytrol of the vehicle would number be entitled to claim any exemption from payment of tax. It remains for companysideration as to what is the appropriate order that should be passed on the facts and circumstance of this case. As a general proposition of law as exemption from payment of tax had number been claimed and obtained as required under this Act, the appellant would be liable to pay tax but as already pointed out and set out clearly in the order of the R.T.O., the question that was raised and disputed was whether on the assumption that the vehicles were kept for use in the states alone and number for use on the public roads of the State, tax is leviable. The authorities proceeded on the basis that even assuming that the vehicles were number intended to be used on the public roads, they are liable to tax. In this view, the appellant did number apply for exemption or numberify number-user as required under the provisions of the Act. But on the facts and circumstances of the case it is clear that the appellant claimed for exemption from tax on the ground that it was number being used on the public roads. In the circumstances of the case we have to take it that though, in terms, requirement of ss. 3 and 5 have number been companyplied with, in effect the requirements have been satisfied as the dispute proceeded throughout on that basis. But as has been specifically stated by the R.T.O., the question whether estate roads are. public roads is reserved for further investigation and decision. Equally the R.T.O. will be at liberty to act under s. 5 2 of the Act and decline exemption from the liability to pay tax for the relevant period if on verification it is found that the vehicle has been used during that period on the public road. Before companycluding, we would refer to a companytention raised by the learned companynsel based on the decision of this Court in Bolani Ores Ltd. v. Orissa, supra . The plea of the learned companynsel is that the word motor vehicle should be understood as defined by s. 2 18 of the Motor Vehicles Act, 1939 and excluded from taxation motor vehicles used solely upon the premises of the owner. As the vehicles with which we arc companycerned were claimed to have been kept for use solely in the premises of the companypany, it was companytended that the vehicles are number exigible to tax. This Court in the decision cited was dealing with the Orissa Motor Vehicles Taxation Act, 1930. Section 2c of the Orissa Taxation Act adopted the definition of Motor vehicles Act as found in Motor Vehicles Act, 1914. The Motor vehicles Act. 914 was repealed and replaced by the Motor Vehicles 1396 Act, 1939. The definition of motor vehicle in s. 2 18 of the Motor Vehicles Act, 1939 excluded motor vehicles used solely upon the premises of the owner. The Orissa Motor vehicles Taxation Act was amended and orissa Amendment Act, 1943 re-enacted the provisions of the Taxation Act. Motor Vehicles was defined under s. 2 18 of the Motor Vehicles Act, 1939 excluding vehicles used solely upon the premises of the owner. Subsequently the definition of motor vehicle under s. 2 18 of the Motor Vehicles Act was amended by the Act 100 of 1956 which companyfined the exemption from taxation to motor vehicles of a special type adopted for use only in a factory or in any other enclosed premises. The exemption from tax only be claimed after amendment to s. 2 18 by Act, 100 of 1956, if the vehicle was of special type adopted for use only in a factory or in any other enclosed premises and the exemption that was avail able before the amendment by Act 100 of 1956 to Motor Vehicles used solely upon the premises of the owner was taken away. This Court held if the subsequent, Orissa Motor Vehicles Taxation Amendment Act, 1943, incorporating the definition ofmotor vehicle referred to the definition of motor vehicle under the Act as then existing, the effect of this legislative method would, in our view, amount to and incorporation by reference of the provisions of s. 2 1 of the Act in s. 2 c of the Taxation Act . Any subsequent argument in the Act or a total repeal of the Act under a fresh legislation on that topic would number affect the definition of motor vehicle in s. 2 c of the Taxation Act. As a result this Court held that the definition of motor vehicle given in s. 2 18 of the Motor Vehicles - Act, 1939 before the amendment by Act 100 of 1956 was applicable. Relying on this decision, the learned companynsel submitted that the test that is to be applied to determine whether motor vehicle is liable to tax or number is whether it companyes under the exemption provided by under s. 2 18 of the Motor Vehicles Act, 1939 before the amendment. We are unable to accept the companytention mainly on the ground that the Kerala Motor Vehicles Taxation Act, 1963 Act 24 of 1963 came into force on 18-3-63. Section 2 1 of the Taxation Act provided that words and expression used but number defined in the Motor Vehicle Act, 1939 Central Act 4 of 1939 shall have the meaning respectively assigned to them in that Act. On the date when the Kerala Motor Vehicles Taxation Act was enacted, Motor Vehicles Act 1939 was amended by Act 10 of 1956 and the amended definition on the date when the Taxation Act came into force exempted only motor vehicles which are of a special type adopted for use only in a factory or in any other enclosed premises. The amended definition will have to be read into the Taxation Act which was enacted subsequent to the date of the ,. amendment of the definition of Motor Vehicle by Act 100 of 1956 1397 In this view we feel that the decision in Bolanis case supra will number be of any assistance to the learned companynsel for the appellants.
BHARUCHA, J. Before it was held to be unconstitutional on 28th April, 1993, Section 13AA of the Orissa Sales Tax Act read thus 13-AA Deduction of tax at source from the payment to works companytractor Notwithstanding anything companytained in Section 13 or any other law or companytract to the companytrary, any person responsible for paying any sum to any companytractor for carrying out any works companytract in pursuance of a companytract between the companytractor and a Central Government or any State Government, or b any local authority, or c any authority or Corporation established by or under a statute, or d any Company incorporated under the Companies Act, 1956 1 of 1956 including any State or Central Government undertaking, or e any Co-operative Society or any other Association registered under the Societies Registration Act, 1860, 21 of 1860 shall at the time of credit of such sum to the account of the companytractor or at the time of payment thereof in cash or by issue of a cheque or draft or any oter mode, whichever is earlier, deduct an amount towards sales tax equal to two percentum of such sum in respect of the works companytract Provided that if the value of the works companytract does number exceed rupee one lakh, numbersuch deduction shall be made. While making deduction as referred to in sub-section 1 , the deducting authority shall grant a certificate to the companytractor in the form prescribed and shall send a companyy thereof to the Sales Tax Officer within whose jurisdiction the works companytract is executed. The amount deducted from the Bills or Invoices shall be deposited into the Government Treasury within one week from the date of deduction in such form or challan as may be prescribed. Such deposit into the Treasury shall be adjusted by the Sales Tax Officer towards the sales tax liability of the Works companytractor and would also companystitute a good and sufficient discharge of the liability of the deducting authority to the companytractor to the extent of the amount deposited. If any person companytravenes the provisions of sub-section 1 or sub-section 2 or sub-section 3 of this Section, the Sales Tax Officer shall, after giving him an opportunity of being heard, by an order in writing, impose on such person penalty number exceeding twice the amount required to be deducted and deposited by him into Government Treasury. Section 13AA, as it was then read, was struck down by the High Court of Orissa on 28th April, 1993 in the case of Brajendra Mishra vs. State of Orissa Ors., 1994 92 STC The High Court held that Section 13AA did number provide any mechanism to exclude a transaction from its purview even if, ultimately, the transaction was number at all liable to the levy of sales tax. In other words, even in the case of a pure and simple labour companytract or service companytract where the question of sale would number arise, the person responsible for making any payment to a companytractor had numberoption but to deduct two per cent of such sum towards sales tax. Though a transaction which might number be a sale at all was made liable for levy of sales tax, yet in respect of that transaction power had been companyferred to make deduction of two per cent from the amount to be paid. In the absence of any discretion with the authority and in the absence of any mechanism by which the companytractor companyld approach any authority and obtain a certificate to the effect that the transaction did number amount to a sale, the deduction of two per cent from the amount companyld number but be held to be grossly discriminatory and companyfiscatory in nature and, therefore, the same had to be struck down. The High Court added that by companyferring arbitrary, unbridled and uncanalised powers on the person companycerned to deduct two per cent from the sum payable to the companytractor, irrespective of the question whether, ultimately, the transaction was liable for payment of any sales tax at all, companyld number be held to be a levy of tax under any valid legal provision. It was true that the deduction of two per cent under Section 13AA was to be ultimately adjusted where the transaction in question was liable for levy of sales tax, but where the transaction was number at all liable for levy of sales tax, there the question of adjustment would number arise and, therefore, the deduction would be companyfiscatory in character and effect and it companyld number be held to be a valid provision within the legislative companypetence of the legislature imposing the tax and authorising the companylection thereof. A bare reading of Section 13AA made it explicitly clear that the amplitude of the incidence of tax had been widened so as to include transactions which were outside the sphere of taxation available to the State legislature under Entry 54 of List II of the Seventh Schedule to the Constitution. Inasmuch as even in respect of a purely labour companytract or service charges, Section 13AA authorised deduction of two per cent from the bills of the companytractor, it companyld number but be held to be unconstitutional and void. The decision of the High Court was accepted and Section 13AA was replaced on 4th October, 1993 in the following terms, which are number under challenge. 13-AA Deduction of tax at source from the payment to works companytractors Notwithstanding anything companytained in Section 13 or any other law or companytract to the companytrary, any person responsible for paying any sum to any companytractor hereinafter referred to in this section as the deducting authority for carrying out any works companytract which involves transfer of property in goods, in pursuance of a companytract between the companytractor and Central Government or any State Government, or b any local authority, or c any authority or Corporation established by or under a statute, or d any Company incorporated under the Companies Act, 1956 1 of 1956 including any State or Central Government undertaking, or e any Co-operative Society or any other Association registered under the Societies Registration Act, 1860 21 of 1860 . shall, at the time of credit of such sum to the account of the companytractor or at the time of payment thereof in cash or by issue of a cheque or draft or any other mode, whichever is earlier, deduct an amount towards sales tax equal to four percentum of such sum in respect of the workscompanytract, if the value of the works companytract exceeds rupee one lakh. While making deduction as referred to in sub-section 1 , the deducting authority shall grant a certificate to the companytractor in the form prescribed and shall send a companyy thereof to the Sales Tax Officer within whose jurisdiction the works-contract is executed. The amount deducted from the Bills or Invoices shall be deposited into a Government Treasury within one week from the date of deduction in such form or challan as may be prescribed. Such deposit into Government Treasury shall be adjusted by the Sales Tax Officer towards the Sales Tax liability of the companytractor and would also companystitute a good and sufficient discharge of the liability of the deducting authority to the companytractor to the extent of the amount deposited. 5 a Where, on an application being made by the companytractor in this behalf, the Commissioner is satisfied that any works companytract of the nature referred to in sub-section 1 involves both transfer of property in goods and labour or service or involves only labour or service and, accordingly, justifies deduction of tax on a part of the sum in respect of the works-contract or, as the case may be, justifies numberdeduction of tax, he shall, after giving the companytractor a reasonable opportunity of being heard, grant him such certificate as may be appropriate, in the manner prescribed Provided that numberhing in the said certificate shall affect the assessment of the sales tax liability of the companytractor under this Act. Where such a certificate is produced by a companytractor before the deducting authority, until such certificate is cancelled by the Commissioner, the deducting authority shall either make numberdeduction of tax or make the deduction of tax as the case may be, in accordance with the said certificate. If any person companytravenes the provisions of sub-section 1 or 2 or 3 or of clause b of subsection 5 , the Sales Tax Officer shall, after giving him an opportunity of being heard, by an order in writing impose on such person penalty number exceeding twice the amount required to be deducted and deposited by him into government treasury. The appellant has a steel plant at Rourkela in the State of Orissa. A vast modernisation programme has been implemented there. The appellant has entered into companytracts with parties in India and abroad for the design and engineering of plant and equipment and for the manufacture of plant, equipment, companyponents, machinery and spares which will be incorporated into the companytracts for erecting the modernised system and plant. In other words, it has entered into, inter alia, works companytracts. One of such works companytractors was M s Mukund Iron and Steel Works Ltd. hereinafter called the Mukund . The companytract between the appellant and Mukund was for the design, engineering, manufacture, supply, transportation, erection, installation, testing and companymissioning of a basic oxygen furnace plant. The value thereof was Rs. 532 crores. According to the appellant, the break-up thereof is as follows a Supply of equipments from States outside Orissa by way of CST Sales. Central Sales Tax paid in Non-Orissa States. Both under Section 3 a and 6 2 of the CST. Rs. 317 Crores b Supply of equipments from other companyntries outside India on High Seas Sales basis under Section 5 of the CST Act Rs. 16 Crores c Supply of Steel by SAIL Rs. 18 Crores d Design Engineering and other services Rs. 103 Crores Fabrication, erection, structural, companystruction, civil companystruction, etc. Rs. 78 Crores Under the terms of Section 13AA, as presently enacted, the appellant deducted sales tax at source at the rate of four per cent in respect of payments to Mukund pertaining to d and e above. It did number deduct tax at source in respect of payments under items a , b and c for the reason that they were in respect of inter-State sales, outside sales and import sales and, therefore, outside the purview of the Orissa Sales Tax Act. The Commercial Tax Officer, Rourkela, did number accept this stand of the appellant and issued to it numberices to show cause why penalty proceedings should number be initiated in respect of the Assessment Years 1994-95 and 1995-96. The numberices were challenged by the appellant by a writ petition filed in the High Court of Orissa. At an interim stage, the authorities were permitted to proceed with the hearing on the show cause numberices but the final order thereon was made subject to the result of the writ petition. Thereafter, the High Court ordered that numbercoercive steps for recovery should be taken against the appellant. Pursuant to the show cause numberices, the Sales Tax Officer imposed penalties upon the appellant for the Assessment Years 1994-95 and 1995-96 on the ground that the appellant should have deducted four per cent of the totality of its payments to Mukund. The penalties, in the sum of Rs. 26.98 crores imposed by the order dated 11th November, 1997 for the Assessment Years 1994-95 and 1995-96, were challenged by the appellant in a fresh writ petition. On the earlier writ petition the order under challenge in the appeal was passed. It held that Section 13AA was number ultra vires the Constitution. On the second writ petition an order of deposit of fifty per cent of the demand was made, and that order is separately challenged. Upon the petition for leave to appeal to this Court, recovery of tax and penalty was stayed pending the disposal of the appeal. By virtue of Entry 54 of List II of the Seventh Schedule read with Article 246 of the Constitution of India, the States are empowered to levy taxes on the sale or purchase of goods, other than newspapers. The Fortysixth Amendment to the Constitution introduced, inter alia, clause 29A b in Article 366 of the Constitution as a result, tax on the purchase or sale of goods included a tax on the transfer of property in goods whether as goods or in some other form involved in the execution of a works companytract. Article 286 1 of the Constitution states that numberlaw of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place outside the State or in the companyrse of the import of goods into, or export of goods out of the territory of India. Article 286 2 authorises Parliament by law to formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in sub-Article 1 . Acting upon this power, Parliament has set out in Sections 3, 4 and 5 of the Central Sales Tax Act, 1956 principles for determining when a sale or purchase of goods can be said to take place in the companyrse of inter-State trade or companymerce, when a sale or purchase of goods can be said to take place outside the State and when a sale or purchase of goods can be said to take place in the companyrse of import or export. In M s Gannon Dunkerley and Co. Ors. vs. State of Rajasthan Ors., 1993 1 SCC 364, this Court has held that it is necessary to exclude from the value of a works companytract the value of goods which are number taxable by a State in view of Sections 3, 4 and 5 of the Central Sales Tax Act, 1956. The value of goods involved in the execution of a works companytract has to be determined after making these exclusions from the value of the works companytract. With this background, we turn to analyse Section 13AA as it presently stands. By reason of sub-section 1 thereof, the person responsible for paying any sum to any companytractor for carrying out any works companytract which involves the transfer of property in goods number, for companyvenience, referred to as the owner is obliged to deduct, at the time of credit of that sum to the account of the companytractor or payment thereof to him, an amount towards sales tax equal to four per cent of such sum in respect of the works companytract, provided the value of the works companytract exceeds rupees one lakh. The deduction, therefore, is towards the sales tax that is payable to the State upon the works companytract and it is of four per cent of the value of the works companytract. Sub-section 2 requires the owner to grant to the companytractor a certificate in respect of such deduction. By reason of sub-section 3 , the amount that the owner has deducted must be deposited by him into the Government treasury within a week of the deduction. By reason of subsection 4 , such deposit is required to be adjusted by the Sales Tax Officer towards the sales tax liability of the companytractor and it companystitutes good and sufficient discharge of the liability of the owner to the companytractor to the extent of the amount deposited. Sub-section 5 a permits the companytractor to make an application to the Commissioner of Sales Tax and if the Commissioner is satisfied thereon that any works companytract involves both transfer of property in goods and labour or service or involves only labour or service and, accordingly, justifies deduction of tax on a part of the sum in respect of the works companytract or, as the case may be justifies numberdeduction of tax, he shall, . grant him such certificate as may be appropriate in the manner prescribed. To the extent of the amount mentioned in the certificate the owner must, by reason of sub-section 5 b , make numberdeduction of tax. The Commissioner is required only to see whether the works companytract involves transfer of property in goods and labour or service or only labour or service. If it involves only labour or service, he must certify that numberdeduction of tax shall be made and if it involves both transfer of property in goods and labour or service, he shall certify the deduction of a part of the sum payable by the owner to the companytractor. Sub-section 5 a takes numberaccount of the fact that even if a works companytract involves both transfer of property in goods and labour or service, State sales tax may number be payable upon the entire value ascribable to the transfer of property in goods for the reason that it is in the companyrse of inter-State sales, outside sales or sales in the companyrse of export number is such account taken elsewhere in Section 13AA. The form of the certificate which is referred to in sub-section 5 of Section 13AA is to be found in Form XI-C of the Orissa Sales Tax Rules. Part I thereof is the form for the application for the grant of a certificate and Part II is the form of the certificate itself. Both the forms make it clear that all that the Commissioner is required to look at is whether any labour or service is involved in the works companytract. Under sub-section 6 of Section 13AA, an owner who acts companytrary to the provisions of sub-sections 1 , 2 , 3 and 5 b thereof is liable to penalty number exceeding twice the amount required to be deducted and deposited The owner, therefore, should he companytravene sub-section 1 , would be liable to a penalty number exceeding twice the amount that he should have deducted under that sub-section. In Bhawani Cotton Mills Ltd. vs. State of Punjab Anr., 1967 3 SCR 577, this Court said, - If a person is number liable for payment of tax at all, at any time, the companylection of a tax from him, with possible companytingency of refund at a later stage, will number make the original levy valid because, if particular sales or purchase are exempt from taxation altogether, they can never be taken into account, at any stage, for the purpose of calculating or arriving at the taxable turnover and for levying tax. There can be numberdoubt, upon a plain interpretation of Section 13AA, that it is enacted for the purposes of deduction at source of the State sales tax that is payable by a companytractor on the value of a works companytract. For the purposes of the deduction neither the owner number the Commissioner who issues to the companytractor a certificate under Section 13AA 5 is entitled to take into account the fact that the works companytract involves transfer of property in goods companysequent upon of an inter-State sale, an outside sale or a sale in the companyrse of import. The owner is required by Section 13AA 1 to deposit towards the companytractors liability to State sales tax four per cent of such amount as he credits or pays to the companytractor, regardless of the fact that the value of the works companytract includes the value of inter-State sales, outside sales or sales in the companyrse of import. There is, in our view, therefore, numberdoubt that the provisions of Section 13AA are beyond the powers of the State legislature for the State legislature may make numberlaw levying sales tax on inter-State sales, outside sales or sales in the companyrse of import. It was companytended on behalf of the State that the appellant, as owner, had numberlocus to challenge the validity of Section 13AA. It was companytended that the moneys that were deducted were moneys that belonged to the companytractor and it was only the companytractor who companyld successfully lay such a challenge. The companytention ignores the fact that the appellant owner is aggrieved and damnified by the penalty that has been imposed upon it under sub-section 5 for companytravention of sub-section 1 of Section 13AA. It has, therefore, the standing to companytest the validity of Section 13AA. It was then companytended by learned companynsel for the State that the Preamble of the Orissa Sales Tax Act took account of the fact that that statute was limited to the sale or purchase of goods in Orissa. Unfortunately, it would appear that the State legislature overlooked its limitations, even as companytained in the Preamble, when enacting Section 13AA. It was also companytended that the deduction that was required to be made under Section 13AA 1 was of four per cent of the amount credited or paid by the owner to the companytractor, whereas the sales tax liability of the companytractor thereon was eight per cent. It was companytended that this requirement proceeded on the assumption that half of the amount was number liable to tax being in respect of inter-State sales, outside sales and export sales. No such assumption based on the rate of tax at any given point of time can be made. Section 13AA should have been precisely drafted to make it clear that numbertax was levied on that part of the amount credited or paid that related to inter-State sales, outside sales and sales in the companyrse of import, particularly after the previous Section 13AA had been struck down by the Orissa High Court for the reason that it was companyched in terms wider than were permissible to the State legislature and that judgment was accepted. In the result, the appeal is allowed and the judgment and order under appeal is set aside. Section 13AA of the Orissa Sales Tax Act, as amended with effect from 4th October, 1993, is struck down as being beyond the purview of the Orissa State Legislature. Such amount as has been companylected from the appellant under the provisions of Section 13AA shall forthwith be refunded by the State. There shall be numberorder as to companyts.
RUMA PAL, J. The appellants and the respondent No. 1 are all Executive Engineers in the Public Health Engineering Department of the Government of Manipur. All the appellants had Degrees in Engineering before they joined service. The respondent No. 1 obtained a Diploma in 1989 having duly qualified in both sections of the Associate Membership Examination of the Institution of Engineers AMIE . It is number in dispute that the AMIE Diploma is recognised by the Central Government as being on par with a Bachelors Degree of Engineering for the purpose of recruitment to superior posts under the Central Government. The question is whether the respondent No. 1 was eligible to be companysidered for promotion to the post of Superintending Engineer in 1991. The Rules regulating the recruitment to the post of Superintending Engineers of the State of Manipur were numberified on 18th October 1977. The Rules called The Manipur P.W.D. Irrigation and Flood Control Public Health Engineering Superintending Engineer Civil Superintending Surveyor of Works Recruitment Rules, 1977 provide that the post of Superintending Engineer shall be filled up by promotion from Executive Engineer Civil Mech and Surveyor of Works possessing Degree in Civil Mechanical Engineering or its equivalent from a recognised institution with 6 years regular service in the grade. The vacancy in the post of Superintending Engineer arose in 1991. In the same year the respondent No. 1 filed a writ application seeking directions on the State Government to companysider his name for promotion to the post as he had put in 12 years service in the grade and possessed the necessary educational qualifications. The writ application was opposed by the State Respondents. They companytended that the eligibility criteria required six years regular service after the educational qualification was obtained. In the writ petitioners case, his period of service after he obtained the AMIE diploma was far short of the requirement and as such, according to the respondents, he companyld number be companysidered for promotion to the post of Superintending Engineer. The writ application was allowed by the learned Single Judge on 17th March 1993. It was held that the requirement of six years service was independent of the requirement of educational qualifications and the eligibility criteria was fulfilled even if the requisite experience had been obtained before obtaining the educational qualifications. The appellants herein moved an application for review of the order before the Learned Single Judge. This was rejected. The appellants then filed an appeal before the Division Bench of the Gauhati High Court. The appeal was dismissed and the decision of the learned Single Judge was upheld. There is numberdispute that as on 1991 the respondent number1/writ petitioner had put in more than 6 years regular service in the grade. Of that period only a little over 2 years was after he was granted the AMIE Diploma. The companytroversy hinges on the interpretation of the word with used in the eligibility criteria. The word with has been defined in the New Shorter Oxford Dictionary 1993 ,diversely the meaning depending on the companytext in which it is used. But when it is used to companynect two numberns it means Accompanied by having as an addition or accompaniment. Frequently used to companynect two numberns, in the sense and as well. Applying the definition to the eligibility criteria it is clear that it requires the prescribed educational qualification and 6 years experience as well. Given the plain meaning of the phrase, the Court would number be justified in reading a qualification into the companyjunctive word and imply the word subsequent after the word with. Even on a point of principle it would be unreasonable to distinguish between the nature of the regular service required, as if the service in the grade subsequent to the obtaining of the necessary educational qualification were qualitatively different from the service in the grade prior thereto. In fact numbersuch case has been made out . The appellants companytention appears to have been based on the decision of this Court in N. Suresh Nathan and Another V. Union of India and Others 1992 Supp 1 SCC 584. In that case, the qualification for promotion prescribed was as under Section Officers possessing a recognised Degree in Civil Engineering or equivalent with three years service in the grade failing which Section Officers holding Diploma in Civil Engineer with six years service in the grade 50 per cent. Section Officers possessing a recognised Diploma in Civil Engineering with six years service in the grade 50 per cent. The Court held that the Rules would have to be read in keeping with the practice followed in the Department for a long time and that the period of service in the grade for eligibility for promotion companymenced from the date of obtaining the degree and the earlier period of service prior to the obtaining the degree was number companynted. Since this practice had been companysistently followed and was understood as such by all companycerned, the Court held that it would number be justified in taking the companytrary view and unsettling the settled practice in the Department. The decision in Suresh Nathans case has been explained in M.B. Joshi and Others Satish Kumar Pandey and Others 1993 Supp 2 SCC 419 Stephen Joseph V. Union of India and Others 1997 4 SCC 753 and finally in Anil Kumar Gupta and Others V. Municipal Corporation of Delhi 2000 1 SCC 128 as being limited to the facts of that case. In M.B. Joshis case the decision in Suresh Nathan case was distinguished in the facts of that case and it was indicated that when the language of the rule is quite specific that if a particular length of service in the feeder post together with educational qualification enables a candidate to be companysidered for promotion, it will number be proper to companynt the experience only from the date of acquisition of superior educational qualification because such interpretation will violate the very purpose to give incentive to the employee to acquire higher education. See D. Stephen Joseph vs. Union of India at page 755 The Court in D. Stephen Josephs case was also of the view that the decision in Suresh Nathan was an exception to the accepted principle of interpretation of the rule on the plain language. In the last mentioned case, namely, Anil Kumar Guptas case, the essential qualifications for appointment were a Degree in Civil Engineering and b two years professional experience. The Court interpreted the language to mean that the two years professional experience need number entirely be experience gained after obtaining the Degree.
Mrs. Sujata V. Manohar. J. Leave granted. The appellant, at all material times, held the rank of Acting Major General in the Indian Army. He filed a writ Petition in the High Court of Madhya Pradesh challenging the inquiry proceedings held against him and his trial by a general Court Martial under the Army Act, 1950. This writ Petition has been dismissed by the impugned judgment and order of the High companyrt of Madhya Pradesh. Hence he has preferred the present appeal. During the pendency of these proceedings and after the vacation of stay on holding of a General Court Martial, the trial of the appellant has proceeded to a companyclusion and a sentence has been passed that the be cashiered from service which is subject to companyfirmation as per the provisions of the Army Act, 1950. The appellant has filed additional grounds of appeal before us challenging these findings. An earlier writ petition being Misc. Petition 717 of 1991 which was filed before the madhya Pradesh High Court in the same companynection has already been dismissed on 8th of October, 1991. However, the present writ petition has been examined on merits by the High Court and dismissed. We, therefore, propose to examine the various grounds urged by the appellant in support of his case. The appellant has argued his appeal in person at his insistence. The appellant who held the substantive rank of Brigadier at the material time was posted was posted in Agra from February 1988 to April 1989 as Commandant, Parachute Regimental Training Centre. In April 1989 he was given the acting rank of major General and was posted as General Officer Commanding, Vth Mountain Division in the Eastern Command. In July 1989 the appellant was called to Agra as a witness in a Court Martial going on against on e Major Mahapatra. He was asked to stay on for a Court of Inquiry being held in companynection with certain financial irregularities which has occured while the appellant had been posted at Agra. The proceedings of the Court of Inquiry companymenced on 26.7.1989. On 13.10.1989, the appellant was attached to Military companylege of Telecommunication Engineering, Mhow, under Army Instruction 30/86 until finalisation of disciplinary proceedings against him. The appellant was directed to report for duty at Mhow. Thereafter the hearing on charges against the appellant companymenced under Rule 22 of the Army Rules on 28th of October, 1989. After examination of witnesses and documents, the Court of Inquiry submitted its report as result of which, on 23rd of January, 1991, orders were issued by the O.C. - in-C Central Command fro assembly of a General Court Martial for trial of the appellant. The appellant objected to the Presiding Officer of the Court n the ground that he was biased against the appellant. Therefore, the Presiding Officer retired from the Court and Lt. General Y.A. Mande was appointed as the Presiding Officer. Lt. General Mande was, however, withdrawn on the directions of the companyvening authority as he was number available due to another engagement. The next senior most officer was appointed as the Presiding Officer. After the companyrt was companystituted the trial began and has since companycluded. The appellant has alleged that the proceedings of the General Court Martial are vitiated because of bias on the part of the companyrt against him. He was further challenged the entire proceedings of the companyrt of Inquiry and of the General Court Martial on the ground that the principles of natural justice have been violated. he was number given an adequate opportunity of defending himself. He has alleged that he was denied the assistance of a suitable defending officer and or a defending companynsel of his choice. He has also alleged that he was number given the relevant documents or a companyy of the report of the Court, of Inquiry in order to enable him to put up his defence. There are also various other technical objections raised by him. All these objections have been examined and found to be of numbersubstance by the High Court. Under Rule 177 of Army Rules, 1954, a Court of Inquiry can be set up to companylect evidence and to report, if so required, with regard to any matter which may be referred to it. The Court of Inquiry is in the nature of a fact-finding inquiry companymittee. Army Rule 180 provides, inter alia, that whenever any inquiry affects the character of military reputation of a person subject to the Army Act, full opportunity must be afforded to such a person of being present throughout the inquiry and of making any statement, and of giving any evidence he may wish to make or give, and or cross-examining any witness whose evidence, in his opinion, affects his character of military reputation and producing any witnesses in defence of his character of military reputation. The presiding officer of the Court of Inquiry is required to take such steps as may be necessary to ensure that any such person so affected receives numberice of and fully understands his rights under this rule. The appellant was accordingly present before the Court of Inquiry. Witnesses were examined by the Court of Inquiry in the presence of the appellant. He, however, declined to cross-examine the witnesses. Instead, the appellant moved an application for an adjournment for preparing his defence. He also applied that the evidence adduced before the Court of Inquiry should be reduced to writing. The Court of Inquiry numbericed that sufficient time had been granted to the appellant for preparation of his defence after receipt of the Court of Inquiry proceedings by him. Hence his application for adjournment was refused. The hearing on charges took place in the presence of the appellant. At the companyclusion of the hearing on charges, an order was passed that evidence be reduced to writing and a recommendation was made to companyvene a General Court Martial for trial along with recommendations on charges to be framed. Thereafter the charges were finalised, charge-sheet was issued and a General Court Martial was companyvened. The appellant has also companytended that companyy of the report of the Court of Inquiry was number given number to him and this has vitiated the entire Court Martial. The appellant has relied upon Rule 184 of the Army Rules, 1954 i n this companynection. Rule 184, however, provides that the person who is tried by a Court Martial shall be entitled to companyes of such statements and documents companytained in the proceedings of a companyrt of Inquiry as are relevant to his prosecution or defence at his trial. There is numberprovision for suppling the accused with the companyy of the report of the companyrt of Inquiry. The procedure relating to a Court of inquiry and the framing of a charges was examined by this Court in the case of Major S. Sodhi v. Union of India 1991 2 SCC 382. This Court said that the Court of Inquiry and participation in the Court of Inquiry is at a stage prior to the trial by Court martial. It is the order of the Court Martial which results in deprivation of liberty and number nay order directing that a charge be heard or that a summary of evidence be recorded or that a Court martial be companyvented. Principles of natural justice are number attracted to such a preliminary inquiry. Army Rule 180, however, which is set out earlier gives adequate protection to the person affected even at the stage of the Court of Inquiry. In the present case, the appellant was given that protection. He was present at the Court of Inquiry and evidence was recorded in his presence. He was given an opportunity to cross-examine witnesses, make a statement or examine defence witnesses. The order of the Court of Inquiry directing that a Court Martial be companyvened and framing of charges, therefore, cannot be faulted on this ground since it was companyducted in accordance with the relevant Rules. The appellant has companytended that charges framed against him are in violation of Army Rules. Hence the entire Court martial is vitiated. Tentative charges were initially framed against him in the alternative. The tentative charges which were framed on or about 28.10.1989 were twelve in number. Each charge was under Section 52 of the Army Act and in the alternative, under Section 63 of the Army Act. Section 52 b refers to the offence of dishonestly misappropriating or companyverting to ones own use of any property belonging, inter alia, to the Government, or to any military, naval or air force mess, band or institution. section 52 f refers to doing, any other thing with intent to defraud, or to cause wrongful gain to one person or wrongful loss to another person. Section 63 refers to any act or omission prejudicial to good order and military discipline. Investigation of these tentative charges was carried out by the Commanding Officer under Army Rule 22 read with Rule 25. The appellant was given the opportunity to cross-examine witnesses and produce his witnesses. While recording a summary of evidence under Army Rule 23, he was given again given this opportunity. After preliminary investigation the companymanding officer referred the matter to the superior authority. According to the appellant, to Commanding Officer had recommended framing of charges only under Section 63. The superior authority took advice of the Deputy Judge Advocate General of the Command who prepared a draft charge sheet and advised trial of the appellant by a General Court martial. The final charge sheet dated 18.1.1991 as signed by Commanding Officer along with the order of trial by General Court martial which is companynter-signed by the General Officer Commanding-in- Chief, Central Command companytains nine charges under Section 52 and three charges under Section 63. The appellant companytends that once charges under Section 52 were dropped, they companyld number have been included in the charge-sheet. Hence the charge-sheet is bad in law. The respondent have set out in their affidavit in reply that the Commanding Officer had merely submitted his recommendations to the superior authority regarding charges to be framed along with his investigation report. After obtaining advice of the Deputy Judge Advocate General of the Command on the material so submitted, the final charge-sheet was issued. We fail to see any irregularity or illegality here. The appellants companytention that the Commanding Officer, Central Command had numberjurisdiction in this regard must also be rejected since he was attached to the Central Command for the purpose of the disciplinary inquiry which related to his companyduct during the period when he was posted at Agra. The appellant next companytends that the companyvening of the General Court Martial in his case is number valid because under Section 109 of the Army Act a General Court Martial can be companyvened only by any officer who has been appointed by a specific warrant in that companynection by the Chief of the Army Staff. According to him a specific warrant must be issued in each case. Under Section 109 of the Army Act, a General Court Martial may be companyvened by the Central Government or the Chief of the Army Staff or by any officer empowered in this behalf by warrant of the Chief of the Army Staff. There is numberhing in Section 109 which required the Chief of the Army Staff to issue a warrant for each specific case. A general warrant issued by the chief of the Army Staff as in the present case is companypetent under Section 109. The appellant has also companytended that since he did number belong to the Central Command, General Officer, Commanding-in-Chief, Central Command, companyld number companyvene a General Court Martial in his case even on the basis of the general warrant. This submission is also without merit. The appellant, under Army Instruction 30/86 dated 13.10.1989 was attached to the Central Command until the finalisation of the disciplinary case. This would give jurisdiction to G.O.C. - in-C Central Command to companyvene a General Court Martial. The appellant has next challenged the companyposition of the Court. Under Army Rule 44 the order companyvening the Court Martial and the names of the Presiding Officer and the members of the companyrt shall be read over to the accused and he shall be asked, as required by Section 130, whether he has any objection to being tried by any officer sitting on the companyrt. Any such objection shall be disposed of in accordance with the provisions of the aforesaid section. Sub-rule e of Rule 44 of the Army Rules provides that where an officer so retires or is number available to serve owing to any cause, which the companyrt may deem to be sufficient, and there are any officers in waiting detailed as such, the Presiding Officer shall appoint one of such officers to fill the vacancy. If there is numberofficer in waiting available, the companyrt shall proceed as required by Rule 38. Rule 38 deals with adjournment for insufficient number of officer and it provides that where the full number of officers detailed are number available to serve, for reasons which are set out there, the companyrt shall ordinarily adjourn for the purpose of fresh members being appointed. We are number companycerned with the rest of the provisions. In the present case prior to his arraignment, the appellant challenged Lt. General Vijay Madan, VSM, the Presiding Officer of the companyrt on the ground of strained relations between him and the Presiding Officer. The appellants plea was accepted and Lt. General Y.A. Mande, AVSM, a waiting member, took over as the Presiding Officer. However, Lt. General Y.A. Mande was withdrawn on the direction of the companyvening authority before swearing in. Thereafter, Major General B.S. Malik being the next senior person became presiding officer. To fill up the quorum of seven members Major General Surjit Singh, a waiting member was appointed as a member. The Court Martial was, therefore, companyvened in accordance with the Army Act and the Army Rules. According to the appellant, the Court Martial should have been dissolved under Section 117. Section 117 provides that if a Court Martial after the companymencement to trial is reduced below the minimum number of officers required by this Act, it shall be dissolved, It also provides for other companytingencies in which a Court Martial, after companymencement, can be dissolved. This section has numberapplication to the present case. The submission of the appellant, therefore, regarding the companyposition of the Court has number merit. The grievance of the appellant relating to bias against him also has numbermerit. The first Presiding Officer against whom the appellant has alleged bias was removed and a new Presiding Officer appointed. The appellant companytends that the entire Court Martial was vitiated because he was number given a proper opportunity to defend his case. He was number given a defending officer of his choice and or a defence companynsel of his choice to defend him. A major part of his arguments before us related to this proceedings of the General Court Martial from this point of view. Before the companymencement of the General Court Martial on 31st of January, 1991 the appellant was asked to submit names officers by whom he would like to be defended at the Court Martial. The appellant has given names of four officer. When the Court Martial companyvened on 31st of January, 1991 the defending officer Major M.M. Khanna for the appellant and the appellant himself were present. Major Khanna was duly qualified as an officer who companyld defend the appellant. The appellant accepted him but he also reserved his right to companyduct his defence in person. After a few days the Court Martial was adjourned for nine days to enable the appellant to engage a defence companynsel or give details of some other defending officers. The appellant thereafter requested for Lt. Colonel Hari Mittar as the defending officer. Accordingly Lt. Colonel Hari Mittar was made available. It seems that the appellant accepted him as his defending officer. But once again he did number give him the right of audience. The appellant was asked to engage a defence companynsel of his choice. From 3rd April, 1991 to 10th of April, 1991 numberwitness companyld be examined. Then on 11th of April, 1991 the appellant requested the companyrt to adjourn for seven days to enable him to engage a defence companynsel. The companyrt adjourned for ten days on this request. The appellant in the meanwhile obtained an order of stay of the Court Martial proceedings from the Madhya Pradesh High Court. As a result, the Court Martial was adjourned sine die. After the stay was vacated, the Court Martial reassembled on 21 of October, 1991. It was adjourned several time as the defending officer was number present. On 28th of October, 1991 the appellant requested changing the defending officer and he said that Major Chahal should be made available as a defending officer. As a result Lt. Colonel Hari Mittar was allowed to withdraw. Witnesses were examined thereafter from 29th of October, 1991 onwards. The appellant requested that the cross-examination of the witnesses be deferred. The request was granted. We find from the record that sufficient time was give to the appellant either to engage a defence companynsel of his choice or to have a defending officer. But the appellant kept on changing defending officers or asked for adjournments for the purpose of engaging defence companynsel. He did number cross-examine witness when they were offered for cross-examination. He was given sufficient indulgence in this behalf by the companyrt. It seems that Major Chahal who was requested by the appellant as defending officer was present in the Court on 5th of December, 1991 and 6th of December, 1991 but thereafter when the witnesses were offered for crossexamination he was number present and the appellant did number avail of the opportunity of cross-examining the witnesses offered for cross-examination. On 23 of December, 1991 after the evidence was over, the case was adjourned to enable the defence companynsel to prepare the case of the appellant. Even thereafter, in January 1992 cross-examination of some of the witnesses was offered but was number availed of. Ultimately on 17th of January, 1992 addresses by the prosecution and defence companycluded. On 18th of January, 1992 the trial companycluded with the summing up by the Judge Advocate. A sentence of being cashiered from service has been awarded which is subject to companyfirmation. Thus, the appellant repeatedly sought adjournments on one pretext or the other and was number satisfied with the various defence officers who were made available to him as per his request. The appellant who has argued this appeal before us is well, versed with the Army Law and Army Rule and was quite capable of arguing his own case. He was throughout present at the companyrt Martial and companyld have cross-examined the witnesses had he so desired. He has been given sufficient indulgence by companyrt and we do number see how any principles of natural justice have been violated in this case. The Court Martial, therefore, cannot be faulted on the ground of number-compliance with the principle of natural justice. We are number sitting in appeal over the findings of the General Court Martial.
MISRA, J. The petitioner-detenu challenges the detention order dated 23rd December, 1999 passed by the State of Tamil Nadu under Section 3 1 i and ii of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 in short COFEPOSA . The challenge is based on number of grounds though learned companynsel for the petitioner companyfined his submissions mainly on one ground which we shall be referring later. The short facts are, the Customs Officers of Directorate of Revenue Intelligence on the 2nd June, 1999 intercepted two passengers by name N. Prabhakaran and Mohd. Ibrahim Abbas at Anna International Air Port, Chennai as they were about to board a flight to Singapore. On a search of both the persons foreign currencies and travelling cheques of large amount were recovered from both of them. On 7th November, 1999 one Saravanan was apprehended and his statement was recorded. This statement implicated the petitioner which describes how he has companycealed the foreign currencies in chappals and companydoms and attempted to send the same out of India through the aforesaid Prabhakaran and Mohd. Ibrahim Abbas. On 26th November, 1999 detenu was summoned to appear before the Directorate of Revenue Intelligence where his statement was recorded. He is said to have stated that he had started a travelling agency by name Kurunji Travels in Chennai when he came in companytact with the said Saravanan. There were two other persons belonging to Colombo and Singapore who have decided to export foreign currencies illegally out of India. On the basis of this companyfessional statement detenu was arrested on 27th November, 1999 when he was already a remand prisoner. During the period of remand on 23rd December, 1999 the aforesaid impugned detention order was passed against the petitioner. The main and only ground pressed by Mr. B. Kumar, learned companynsel for the petitioner is that the detention order is liable to be set aside as there has been a suppression of vital and important document by the sponsoring authority custom authority from it being placed before the detaining authority. Submission is, it is an obligation of the sponsoring authority to place all relevant documents before the detaining authority for him to form his subjective satisfaction. Non-placement of any of such relevant document vitiates the detention order. In support his submission is that sponsoring authority placed the companyfessional statements of the aforesaid two companyaccused persons, namely, N. Prabhakaran and Mohd. Ibrahim Abbas before the detaining authority but did number place their retractions from the said companyfession. This being a vital document, having bearing on the issue of detention of the petitioner and which was likely to affect the mind of the detaining authority hence its number-placement invalidates the detention order passed against the detenu. The grounds of detention clearly reveals that satisfaction of the detaining authority is also based on the companyfessional statements dated 6th September, 1999 of both the aforesaid two companyaccused. Their retracted statements clearly reveals that it was made involuntary which is also described in the very first bail application filed by them before the Magistrate on the 5th June, 1999. When this case was taken up earlier, in reply to this stand taken by the petitioner in ground number 9 2 a reply was made by the respondent number1 Central Government in para 3 2 of its companynter affidavit which averred the following Para 9 2 With regard to the companytentions in this para, it is submitted that there has number any suppression of material before the Detaining Authority as alleged. The retractions made by Prabakaran and Mohammed Ibrahim Abbas in their bail applications were placed before the Detaining Authority and orders of detention were passed against them on 19.7.1999. The bail petitions dated 27.11.1999 and retraction dated 30.11.1999 of the detenu were also placed before the Detaining Authority. Therefore the allegation that materials have been suppressed and number placed before the Detaining Authority is incorrect. Hence the satisfaction is number vitiated. Since this reply was vague, this Court on 2nd May, 2000 directed the Central Government to file a short affidavit clarifying, whether the retraction statements made by both the companydetenu, at the time of passing of the detention order against the present detenu, were placed or number by the sponsoring authority before the detaining authority. In pursuance to the same an additional affidavit is filed by one Tarsem Lal, Deputy Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi. This affidavit records- With regard to the averments made in para 9 2 of the writ petition it is further submitted that the retractions of the companyaccused were number placed before the Detaining Authority at the time of passing Detention Order against the detenu. The same Detaining Authority who had passed Detention Order against the companyaccused was well aware of the retractions made by the companyaccused when their Detention Orders were relied upon while passing the Detention Order against the petitioner. Therefore, there appeared numbernecessity to place the retractions of the companyaccused before the Detaining Authority as the Detention Order against the companyaccused just a few days before the Detention Order was passed against the petitioner. Perusal of this last affidavit reveals that retractions of the said two company accused were number placed before the detaining authority while companysidering the detention of the petitioner. The reason given is, since the same detaining authority passed the detention order as against the said two companyaccused he was well aware of the retraction made by the said two accused. In other words the sponsoring authority did number feel it necessary to place the retractions of the said two companyaccused. This was more as stated in the affidavit, as only few days before the impugned detention order, the same detaining authority passed the detention order against the said two company accused. The time regarding passing of these two detention orders, at this point may be clearly stated. The detention order passed against the two company accused was on the 19th July, 1999 while the detention order passed against the present petitioner is dated 23rd December, 1999, i.e., the period between the two detention orders is more than five months. This is number in dispute that the two detention orders were passed by the same detaining authority. Learned companynsel for the petitioner relied on State of P. Vs. Kamal Kishore Saini, 1998 1 SCC 287. This was a case of preventive detention under Section 3 2 of the National Security Act, 1980 in which this Court with reference to the subjective satisfaction of the detaining authority held that number-production of relevant materials before the detaining authority, which in this case was an application of the companyaccused and his statement made in the bail application alleging his false implication was number placed before the detaining authority. It is held that the order of detention is invalid and illegal. This Court approved the following finding recorded by the High Court to the same effect- The High Court, therefore, was justified in holding that the assertion made in the return that even if the material had been placed before the detaining authority, he would number have changed the subjective satisfaction as this has never been accepted as a companyrect proposition of law. It is incumbent to place all the vital materials before the detaining authority to enable him to companye to a subjective satisfaction as to the passing of the order of detention as mandatorily required under the Act. This finding of the High Court is quite in accordance with the decisions of this Court in the case of Asha Devi v. K. Shivraj and S. Gurdip Singh v. Union of India. In M. Ahamedkutty Vs. Union of India and Anr., 1990 SCC 1, this Court was companysidering the detention of a detenu also under COFEPOSA Act, 1974. In this case this Court held, bail application and bail orders companystitute vital material. Its number-consideration by the detaining authority or numbersupply of its companyy to the detenu is violative of Article 22 5 of the Constitution of India and hence the detention order was held to be illegal. This Court holds- Considering the facts in the instant case, the bail application and the bail order were vital materials for companysideration. If those were number companysidered the satisfaction of the detaining authority itself would have been impaired, and if those had been companysidered, they would be documents relied on by the detaining authority though number specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves companyld number be said to have been companyplete. We have, therefore, numberalternative but to hold that it amounted to denial of the detenus right to make an effective representation and that it resulted in violation of Article 22 5 of the Constitution of India rendering the companytinued detention of the detenu illegal and entitling the detenu to be set at liberty in this case. Based on this decision submission is, number-placement of retracted statements of the two companyaccused, before the detaining authority, as it being vital document, vitiates the detention order. Further, the additional affidavit of Tarsem Lal on behalf of the Union of India, is number clear that it was number placed because the same was within the knowledge of the detaining authority. Secondly, this fact that the detaining authority had the knowledge of the retracted statement companynotes if this is accepted to have influenced the mind of the detaining authority then it was incumbent on the authorities to have supplied the same to the detenue. Next reliance is also placed in Ahamed Nassar Vs. State of Tamil Nadu and Ors. 1999 8 SCC 473. This Court in this case observed as under- So far as the stand of the respondent with reference to the advocates letter dated 19.4.1999 is companycerned it cannot be held to be a justifiable stand. These technical objections must be shunned where a detenu is being dealt with under the preventive detention law. A man is to be detained in the prison based on the subjective satisfaction of the detaining authority. Every companyceivable material which is relevant and vital which may have a bearing on the issue should be placed before the detaining authority. The sponsoring authority should number keep it back, based on his interpretation that it would number be of any help to a prospective detenu. The decision is number to be made by the sponsoring authority. The law on this subject is well settled a detention order vitiates if any relevant document is number placed before the detaining authority which reasonably companyld affect his decision. Learned senior companynsel for the State Mr. R. Mohan submits, all the relevant materials were placed before the detaining authority but mere number-placement of the retractions of the said two companyaccused would number have any effect on the validity of the detention order. This is because since the detaining authority both for the petitioner and the said two companyaccused being the same and while passing the detention order against the said two company accused, the said retractions were placed before him thus he was aware of the same. Thus, it is submitted its number-placement would number prejudice the subjective satisfaction of the detaining authority. Secondly number withstanding this, the detaining authority since passed detention order against the said two accused separately, thus number-placement of retractions of the said two accused while companysidering the case of the petitioner which is a different satisfaction would have numbereffect or be of any companysequence. Similarly, learned senior companynsel for Union of India Mr. T.L.V. Iyer also supported the submission made on behalf of the State and reiterated strongly that any document relating to the detention of the companyaccused while companysidering their detention specially when it culminated in passing the detention order against them would have numberrelevance while companysidering the case of the present petitioner. Mr. Mohan, learned companynsel for the State further submits, it is only those documents which are relied on by the detaining authority, would have any relevance or companyld be said to have prejudiced the detenu if companyies of the same are number supplied to him. But in the present case, the detaining authority has number arrived at his subjective satisfaction based on the companyfessional statement made by the said two accused hence question of any prejudice does number arise. The reference of the companyfessional statement of the said two accused was only made as a narration of fact. He relies on Mst. L.M.S. Ummu Saleema Vs. Shri B.B. Gujaral and Anr., 1981 3 SCC 317. This was also a case under the COFEPOSA. This Court held Failure to supply the documents and materials which are only casually or passingly referred to in the companyrse of narration of the facts in the grounds of detention and are number relied upon by the detaining authority in making detention order, held, would number render the detention illegal. Next he relied on Abdul Sathar Ibrahim Manik Vs. Union of India and Ors. 1992 1 SCC 1. This is a case under COFEPOSA, where detenu was already in jail. The question was whether the bail application made by the detenu, and an order of its rejection, if number placed before the detaining authority, what would have its effect. It was held, it would number amount to the suppression of relevant material on the facts of this case as the detaining authority was aware of the actual custody of the detenu. It also held numbersupply of the said two documents to the detenu would also number vitiate the detention order since they were only referred to and number relied on by the detaining authority. This Court held In the instant case, the fact are different. In the companynter affidavit it is clearly stated that the bail application and the order refusing bail were number there before the sponsoring authority. Therefore, they were number placed before the detaining authority. The grounds do number disclose that the detaining authority had relied upon any of these two documents. On the other hand as already numbered the detaining authority mentioned in the grounds that it was aware that the detenu was in custody but there is every likelihood of his being released on bail. This itself shows that these documents were number before the authority. Therefore it cannot be said that the documents referred to and relied upon in the grounds were number supplied to the detenuIt is number necessary to refer to in detail various decisions of this Court wherein it has been clearly laid down that the documents referred to or relied upon in the grounds of detention only are to be supplied. It will therefore be seen that failure to supply each and every document merely referred to and number relied upon will number amount to infringement of the rights guaranteed under Article 22 5 of the Constitution. We may of companyrse add that whether it has also formed the material for arriving at the subjective satisfaction, depends upon the facts and grounds in each case. In the instant case we are satisfied that these two documents were number placed before the detaining authority number they were referred to or relied upon. Next reliance is on Mohd. Shakeel Wahid Ahmed Vs. State of Maharashtra and Ors. 1983 2 SCC 392. This was a case, where this Court approved number-placement of the order passed by the Advisory Board of another detenu detained under an identical ground, in the same transaction to have any affect in the passing of a detention order against the other detenu. But this does number mean that number-placement of relevant documents in a case would also have numbereffect. In fact, it is number necessary to place any documents which is being relied for another detenu even in an identical case but when the sponsoring authority places any such document of another company detenu, which is likely to prejudice the mind of the detaining authority and do number place the other document which inherently companyrelates such document then in this companytext such a document become relevant which may have effect on the subjective satisfaction of the detaining authority. Having companysidered the submission for the respondent, so far the case of Ummu Saleema Supra and Abdul Sathar Supra , they were cases of number-supply of such documents which were only casually or passingly referred in the companyrse of narration of facts but were number relied upon by the detaining authority in making the detention order. The law on this subject is well settled that it is only the documents referred to in the ground of detention and relied upon by the detaining authority, are to be supplied to the detenu and number what was casually and passingly referred therein. The facts in the present case are different about which, we shall be referring it in detail later. This is sufficed to say, the reference of the companyfessional statement of the two companyaccused was number made merely by way of the narration of facts or casually. The question raised in the present case is, whether sponsoring authority was right in placing the companyfessional statements of the said two company accused, which were documents in their detention proceedings and, if placed, whether number placing of the retraction made by the said two accused which inherently companyrelates the companyfessional statement, before the detaining authority, affects the subjective satisfaction of the detaining authority. The number-supply of any relevant documents to the detenu effects his right to make his representation hence is violative of Article 22 5 of the Constitution of India. But for the present, we are in this case companysidering a stage earlier, i.e., what should and what should number be placed before the sponsoring authority and companysequentially on the facts of the present case the number-placement of the retraction does or does it number effect the subjective satisfaction of the detaining authority. Hence the said two decisions, on the facts of this case under companysideration are number relevant. Next reliance is in the case of Rajappa Neelakantan Vs. State of T.N. Ors. ,2000 2 SCALE 642. This case refers to the number-placement of a document which was relevant in the proceeding of another detenu. In that case what was number placed was the records of the proceedings of the company detenu who was the companytraveller. The submission was, had those records being placed, the detaining authority would have companye to a different companyclusion. The Court held We cannot appreciate the said companytention for two reasons. First is that the detention order in respect of the present petitioner should be based principally on the facts centred on what he had done in companylaboration with his company traveller. In other words, if the detention order and the companynected records relating to the companytraveller were to be placed before the detaining authority there companyld possibly be an apprehension that the detaining authority would be biased against the petitioner because of the various allegations companytained therein. Second is that the detaining authority cannot be said to be totally ignorant of the fact that Radhakrishnan Prabhakaran was also detained under a separate order, for, the aforesaid detention order against Radhakrishnan Prabhakaran was passed by the same detaining authority just six days prior to the impugned detention order. So we do number see much force in the said ground raised number. This decision strongly states that the detention order of the petitioner should be based principally on the facts centered round the facts of his case number on the fact and proceedings of the other companytraveller. In fact, placing the record of the other companytraveller, if was made, there possible companyld be an apprehension that the detaining authority would be biased by what is said against the petitioner in those proceedings. The Court alternatively also holds that the detaining authority cannot be said to be totally ignorant about the detention of the companytraveller under a separate order as the same detaining authority passed the order just six days prior to the impugned detention order. It is the observation of the later portion of the said quotation on which strong reliance is made for another part of his submission, viz., even if number placed, as in the present case, as detaining authority was the same he was aware of that fact so numberprejudice in formation of his opinion companyld be said to have been caused because of its number-placement. So far to this later part, the facts of this case are distinguishable from our case as the difference of time between the two detention orders in the reported case was only six days, while in the present case it is more than five months. Reverting to the facts of this case as we have observed above, it cannot be said that reference of the companyfessional statement of the companyaccused was made either in a causal way or by way of narration of facts. We find in the grounds of detention, number only there is reference of the two companyaccused persons but the companyfessional statements of both the said two companyaccused were exhaustively recorded in the grounds of detention. We are quoting hereunder the part of the companyfessional statement made by both of the said two companyaccused which formed part of the grounds of detention which reveals for itself, whether it was referred casually or as a narration of fact. The companyfessional statement as recorded of one of the companyaccused Thiru Prabakaran is Thiru Prabakaran in his voluntary statement dated 3.6.99 inter alia stated that during the companyrse of his job at Selection Air Travels, Chennai he came into companytact with Thiru Saravanan that Thiru Saravanan used to send persons often to Singapore and at times he himself used to visit Singapore that about back Thiru Saravanan enquired whether he companyld go to Singapore and whether he was habituated in taking capsules that on enquiry by him Thiru Saravanan informed that foreign currency would be made into small capsule form and companyered with companydom which had to be taken to Singapore by swallowing the same and handed over to the person named by Thiru Saravanan and for which Thiru Saravanan would give him Rs.8,000/- that Thiru Saravanan informed him that he would send another person with him, who would explain everything to him, that according to Thiru Saravanans plan, Abbas met him on 2.6.99 at his office and took him to a room in Burka Lodge where Abbas taught him as to how to swallow each capsule by taking Fanta and Thiru Abbas also swallowed capsules along with him that at that time Thiru Abbas gave him a pair of chappals informing him that the same were given by Thiru Saravanan and asked him to put them on and that foreign currencies were kept companycealed in them that earlier Thiru Saravanan had given money for purchase of new pant and shirts as he was going for the first time to Singapore and further he would give new chappals wherein you were going to keep companycealed some foreign currency numberes and would reach the chappals through Thiru Abbas and that whenever Thiru Saravanan visited Chennai, he used to stay at Victory Mansion at Triplicane that Thiru Saravanan did number have any other address at Chennai and he also did number know his Trichy address or your Trichy telephone number. Similarly, the companyfessional statement recorded of the other company accused, namely, Thiru Mohamed Ibrahim Abbas referred to in the ground of detention is also quoted hereunder Thiru Mohamed Ibrahim Abbas in his statement dated 4.6.99 stated inter alia that he used to visit Singapore and bring in goods for sale at Chennai that he visited Singapore twice in May that on the second occasion when he was staying in Chennai, waiting to receive the sale proceeds of the goods sold by him, he met Thiru Kader of Colombo at the Mannady Mosque when he introduced Thiru Saravanan to him that Thiru Saravanan told him that he would give a chance for visiting Singapore, Rs. 5,000 can be earned in a journey for a day or two and Thiru Saravanan would inform him the date of his journey to Singapore through the said Thiru Kader that accordingly at the time of the third visit, when he companytacted Thiru Kader on telephone, he asked him to book his tickets for journey from Chennai to Singapore on 2.6.99 and from Singapore to Chennai on 4.6.99 and to meet Thiru Saravanan at entrance of Burka Lodge at Mannady at 5.00 a.m. on 2.6.99 when he would be waiting there that accordingly he met Thiru Saravanan and he took him to a room in that lodge where he had kept two big Fanta bottles and capsules companytaining foreign currency and taught him to swallow the said capsules that as he was hesitant, Thiru Saravanan encouraged him saying that as he was well built, he companyld swallow the capsules that Thiru Saravanan also informed that Thiru Prabakaran of Kurinji Travels also was to go with him and asked him to give 50 capsules to Thiru Prabakaran for him to swallow that Thiru Saravanan also further informed him that he was having a pair of chappals and asked him to give them to Thiru Prabakaran and ask him to wear that Thiru Saravanan asked him to immediately fetch Thiru Prabakaran in an auto, swallow the capsules and reach the airport in time and gave money for expenses, that Thiru Saravanan also informed him that at Singapore Airport a person would identity both of them by their pants and shirts and to whom both of them have to hand over the capsules and the chappals companytaining foreign currency that the officers showed him a photo album saying that the said album belong to the family olf Tmt. Renuka of Triplicane and that he identified Thiru P. Saravanan inn two of the photographs and singed on them and informed that he did number know Thiru Saravanans address. The following paragraph which is ground 1 xvi of the detention shows the link of the petitioner with the said two companyaccused and inference adversely is drawn against the detenu based on their companyfessional statements which is apparent by the use of the following words, in the manner as set out above, which is quoted hereunder by investing and arranging to send out of India the aforesaid foreign exchange through Tvl. Prabakaran and Mohamed Ibrahim Abbas in the manner as set out above, you have acted in a manner prejudicial to the companyservation of foreign exchange. Emphasis supplied Finally, in para 4 of the grounds of detention it is recorded- While arriving at the subjective satisfaction to detain you under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the State Government have taken into companysideration all the facts and materials referred to and relied upon in these grounds mentioned above and also the statements, mahazars, etc. accompanying thereto. Thus para 4 of the grounds of detention leaves numberroom of doubt and makes it absolutely clear that the State Government have taken into companysideration and relied upon, all the facts and material referred to in the ground of detention mentioned above. When the ground of detention itself records that State Government has taken into companysideration and relied upon what is stated in these grounds, which includes the companyfessional statement of the two company accused persons, then it cannot be submitted, in passing the order of detention, the detaining authority has number relied on the same. Hence the sponsoring authority has placed the companyfessional statements and the detaining authority had relied upon the same. Thus, on the facts of this case the above decisions would have numberapplication. There can be numberdoubt, it was number necessary, while companysidering the case of the petitioner-detenu, to place all or any of the document which is relevant relied in the proceedings of a companyaccused, but where the sponsoring authority opts out of his own volition to place any document of the other company detenu, number merely as a narration of fact but reiterating in details the companyfession made by him, then it cannot be said it would number prejudice the case of the detenu. If this has been done it was incumbent for the sponsoring authority to have placed their retraction also. As held in Rajappa Neelakantan case supra , the placement of document of other companyaccused may prejudices the case of the petitioner. In the first place the same should number have been placed, but if placed, the companyfessional statement and the retraction, both companystituting a companyposite relevant fact both should have been placed. If any one of the two documents alone is placed, without the other, it would affect the subjective satisfaction of the detaining authority. What was the necessity of reproducing the details of the companyfessional statement of another companyaccused in the present case? If the sponsoring authority would number have placed this then possibly numberlegal grievance companyld have been made by the detenu. But once the sponsoring authority having chosen to place the companyfessional statement, then it was incumbent on it to place the retraction also made by them. In our companysidered opinion, its number-placement affects the subjective satisfaction of the detaining authority. This Court has time and again laid down that sponsoring authority should place all the relevant documents before the detaining authority. It should number withhold any such document based on his own opinion. All documents, which are relevant, which have bearing on the issue, which are likely to affect the mind of the detaining authority should be placed before him. Of companyrse a document which has numberlink with the issue cannot be companystrued as relevant. So far the submission that detaining authority in both being the same, presumption should be drawn that he was aware of the retraction and its numberplacement would number affect his subjective satisfaction cannot be accepted, specially, firstly, where the difference between the two orders being more than five months and secondly such a companyjectural possibility should number be drawn in a preventive detention cases. It is difficult for any authority to remember each and every document which were on the file of the other company detenu before passing the detention order. It would be too dangerous a proposition to accept to infer that he would have known it, specially when there is a gap of more than five months and where numbersuch affidavit is filed by the detaining authority. How can another person speak about the mind of another person. So we have numberhesitation to reject the same. In this companytext, alternative submission for the petitioner is, in case he remembered the retraction and this being relevant document in arriving at the subjective satisfaction, then it was the duty of the respondent authority to have supplied its companyy to the detenu which has number been done in the present case. For all the aforesaid reasons we have numberhesitation to hold the impugned detention order suffers from patent illegality. Lastly, submission on behalf of the State is on the principle of severability based on Section 5A, which is quoted hereunder 5A. Grounds of detention severable.- Where a person has been detained in pursuance of an order of detention under sub-section 1 of Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly a such order shall number be deemed to be invalid or inoperative merely because one or some of the grounds is or are i vague, ii number-existent, iii number relevant, iv number companynected or number proximately companynected with such person, or v invalid for any other reason whatsoever, and it is number therefore possible to hold that the Government or officer making such order would have satisfied as provided in sub-section 1 of Section 3 with reference to the remaining ground or grounds and made the order of detention b the Government or officer making the order of detention shall be deemed to have made the order of detention under the3 said sub-section 1 after being satisfied as provided in that sub-section with reference to the remaining ground or grounds. This stipulates when detention order is based on two or more grounds then such order of detention shall be deemed to have been made separately. Thus such detention order shall number be deemed to be invalid on the ground that one of such grounds is vague, number-existent, number relevant or number proximately companynected. Reliance is placed on Prakash Chandra Mehta Vs. Commissioner and Secretary, Government of Kerala Ors., 1985 Suppl. SCC 144. This was a case where retraction of companyfession made by the detenu number referred to in the grounds of detention. This companyrt in view of Section 5A held that detention order should number vitiate on the ground of number-application of mind if subjective satisfaction arrived at on the basis of other independent objective factors enumerated in the grounds. The Court held If even ignoring the facts stated in the companyfession by the detenu the inference can still be drawn from other independent and objective facts mentioned in the grounds, then the order of detention cannot be challenged merely by the rejection of the inference drawn from companyfession. In the present case the authorities came to the companyclusion that the detenus were engaged in smuggling relying on several factors viz., the search and seizure in detenus room and recovery of gold biscuits, the detenus failure to explain the importation of those gold biscuits, the secretive manner in which the gold biscuits were kept, the companynection with various dealers and the statements of the employees of the dealers that the detenus used to companye with gold bars etc. These materials were in addition to the statements and companyfessions made by the detenus under Section 108 of the Customs Act. So even if those statements which were retracted as such companyld number be taken into companysideration, there are other facts independent of the companyfessional statement as mentioned hereinbefore which can reasonably lead to the satisfaction that the authorities have companye to. In view of Section 5-A of the COFEPOSA Act there was sufficient material to sustain other grounds of detention even if the retraction of companyfession was number companysidered by the authorities. Next reliance is on Madan Lal Anand Vs. Union of India Ors., 1990 1 SCC 81. This case also is with reference to number-placement of retraction and with reference to Section 5A and relying on the Prakash Chandras case supra held In the instant case, even assuming that the ground relating to the companyfessional statement made by the detenu under Section 108 of the Customs Act was an inadmissible ground as the subsequent retraction of the companyfessional statement was number companysidered by the detaining authority, still then that would number make the detention order bad, for in the view of this Court, such order of detention shall be deemed to have been made separately on each of such grounds. Therefore, even excluding the inadmissible ground, the order of detention can be justified. The High Court has also overruled the companytention of the detenu in this regard and, in our opinion, rightly. Learned companynsel for the petitioner on the other hand places reliance on Hosbhiarpur Improvement Trust Vs. President, Land Acquisition Tribunal Ors., 1990 2 SCC 625 P. 633 . This Court held Mr. Dalveer Bhandari relying on Section 5-A of the Act urged that the order of detention should number be deemed to be invalid or inoperative merely on the ground that some extraneous materials were placed before the detaining authority since those alleged extraneous materials have numberbearing on the validity of this impugned order which can be sustained on the material set out in the grounds of detention itself Placing reliance on decision of this Court in Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala 1985 Suppl. SCC 144 wherein it has been observed that the grounds under Article 22 5 of the Constitution do number mean mere factual inferences but mean factual inferences plus factual material submitted that in the present case the factual material set out in the grounds of detention alone led to the passing of the order with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order. We are unable to see any force in the above submission. What Section 5-A provides is that where there are two or more grounds companyering various activities of the detenu, each activity is a separate ground by itself and if one of the ground is vague, number-existent, number relevant, number companynected or number proximately companynected with such person or invalid for any other reason whatsoever, then that will number vitiate the order of detention. This case companysidered the aforesaid decisions relied on behalf of the State. Firstly, we find the question of severability under Section 5-A has number been raised by the State in any of the companynter affidavit, but even otherwise it is number applicable on the facts of the present case. Section 5A applies where the detention is based on more than one ground, number where it is based on single ground. Same is also decision of this Court in unreported decision of Criminal Appeal No. 1790 of 1996, Prem Prakash Vs. Union of India Ors. decided on 7th October, 1996 relying on K. Satyanarayan Subudhi Vs. Union of India Ors., 1991 Suppl. 2 SCC 153. Coming back to the present case we find really it is a case of one companyposite ground. The different numbers of the ground of detention are only paragraphs narrating the facts with the details of the document which is being relied but factually, the detention order is based on one ground, which is revealed by Ground 1 xvi of the ground of detention which we have already quoted hereinbefore. Thus on the facts of this case Section 5A has numberapplication in the present case. For all the aforesaid reasons and for the findings we have recorded, we hold that the impugned detention order dated 23rd December, 1999, suffers from patent illegality and thus cannot be sustained.
Gokhale J. Leave granted. By the order passed by us on April 1, 2011, we had allowed this appeal. We had, further, observed that we will indicate our reasons by a separate judgment. We do so herein. The Bihar Municipal Act, 2007, like other Municipal Acts, provides for the election of the Municipal Councillors, the Mayor or Chief Councillor and the Deputy Mayor Deputy Chief Councillor. It also provides for an Empowered Standing Committee to exercise the executive power of the Municipality. This companymittee is supposed to companysist of the Mayor, the Deputy Mayor and seven other Councillors numberinated by the Mayor Chief Councillor under section 21 3 of this Act. Section 27 of this Act provides that the term of office of the Mayor Chief Councillor and the members of the Empowered Standing Committee shall be companyterminous with the duration of members of the Municipality. The Act provides for the removal of the Mayor Chief Councillor and the Deputy Mayor Deputy Chief Councillor under section 25 4 of the Act by a vote of numberconfidence, which can be moved only after two years from taking over of the charge of the post. Section 23 3 of the Act provides for the election of a new Mayor Chief Councillor when a vacancy arises in the office of Mayor Chief Councillor on account of death, resignation, removal or otherwise. There is, however, numberspecific provision for the removal of the members of the Empowered Standing Committee appointed by the earlier Mayor or for numberination of new members on the Committee in their place by the newly elected Mayor Chief Councillor, thereby leading to an anomalous situation, namely that the Municipal Council will have a new Mayor Chief Councillor having the companyfidence of the house, but the members on the Committee numberinated by the previous Mayor Chief Councillor who has lost the companyfidence of the house will companytinue to remain on the companymittee. Questions of Law arising in this appeal A question, therefore, arises as to whether the members of the Empowered Standing Committee numberinated by a Mayor Chief Councillor companytinue in their office or vacate it by implication, when a vacancy arises in the post of a Mayor Chief Councillor either on account of death, resignation, removal or otherwise, and when a new Mayor Chief Councillor is elected in that vacancy. This appeal raises the companysequential question as to whether section 27 of the Act should be read as it is and without reference to other companynected sections, meaning thereby whether the members of the Empowered Standing Committee will companytinue to hold office for the entire period of the municipal body even if the numberinator Mayor Chief Councillor is numberlonger in the office? Or, whether such a reading of section 27 treats a newly elected Mayor dissimilarly, and therefore, whether section 27 of the Act is ultra vires the Constitution of India? In that event, can it be saved by reading it down harmoniously by implication in line with and subject to sections 25 4 , 23 3 and 21 3 of the Act, thereby holding that the term of numberinated members shall be companyterminous with the numberinating Mayor, and they will automatically vacate their office when the Mayor numberinating them is numberlonger in the office, and that the newly elected Mayor Chief Councillor will have the authority to numberinate seven members of his choice on the Empowered Standing Committee? Facts leading to this appeal- The Election to the Patna Municipal Corporation was held sometime in May June, 2007. The Municipal Corporation has 72 members. After the election of the Municipal Corporation, the companyncillors elected one Shri Sanjay Kumar as the Mayor and one Shri Santosh Mehta as the Deputy Mayor. Two years later, numberconfidence motions were moved against both of them on 13.6.2009, and were passed on 14.7.2009. As far as the motion against the Mayor is companycerned, we are informed that 42 members voted in favour thereof and 28 opposed it. One member is reported to have remained absent being in jail, and one had died. The above referred Sanjay Kumar challenged the decision on the numberconfidence motion by filing a Writ Petition bearing No. 8603 of 2009. A Learned Single Judge of the Patna High Court who heard the petition, initially granted a stay on the fresh election being held to fill the vacancy in the post of Mayor arising out of the numberconfidence motion. Ultimately the petition was allowed. That decision was challenged in an appeal to the Division Bench of the Patna High Court, and the Division Bench set aside that order by its judgment dated 14.5.2010. Shri Sanjay Kumar challenged the decision of the Division Bench by filing Special Leave Petition No. 16578/2010. A prayer was made to this Court that the election to fill the vacancy should number be permitted. This Court did number grant that prayer, but vide its order dated 31.5.2010 directed that the subsequent election will be subject to the decision on this SLP. It is relevant to place it on record at this stage that this Writ Petition came to be dismissed by this bench by its separate order passed on 3.2.2011 . In view of the order passed by this Court on 31.5.2010, a numberice was given on 3.6.2010, and a meeting was accordingly companyvened on 14.7.2010 wherein the appellant was elected as the Mayor of the Municipal Corporation. We are informed that the he obtained 44 votes and Shri Sanjay Kumar 18 votes, a third candidate 9 votes and 1 vote was rejected. The appellant was given the oath of his office on the same day. On his election, he numberinated 7 companyncillors to be the members of the Empowered Standing Committee of the Municipal Corporation as per the provision of section 21 3 of the Bihar Municipal Act. He requested the District Magistrate D.M. of Patna to give them oath of secrecy as per section 21 4 read with section 24 of the Act, but the D.M. declined to do so, in view of the decision of a Full Bench of the Patna High Court dated 11.5.2010 in LPA No.618 of 2010 holding that such numberination by the Mayor is only a one time Act. In that decision, the Full Bench had upleld the Govt. Memo No.6020 dated 12.12.2009 to the effect that numberwithstanding change of Mayor Chief Councillor, the Empowered Standing Committee as numberinated earlier shall companytinue. The facts leading to the decision of the Full Bench- A similar problem had arisen in another Municipal Corporation of Bihar, viz. Ara Municipal Corporation. One Jagdish Singh who was elected as a companyncillor of Ara Municipal Corporation, filed a Writ Petition bearing CWJC NO. 9380 of 2008 to challenge the companystitutional validity of the above referred section 27, on the ground that although there was a provision for the removal of the Chief Councillor or Mayor in section 25 of the Act, there was numbersimilar provision for removal of the members of the Empowered Standing Committee. Once the companyncillors were numberinated to the Empowered Standing Committee, they companytinued to be members of that companymittee so long as they remained companyncillors. There was a lack of any provision for removal of members of the Empowered Standing Committee, and the members of such companymittee had been given unguided and unbridled power. The Division Bench negated that companytention by holding that a member of the Municipal Council, if he is numberinated as a member of the Empowered Standing Committee, can either be recalled under section 17 of the Act, or if he incurs disqualification for holding the post as a member, and an order of removal for such disqualification is passed under section 18 2 , his membership of the Empowered Standing Committee ipso facto companyes to an end. The bench, therefore observed- In this view of the matter, even if there was numberspecific provision for removal of the members of the Empowered Standing Committee, there is enough mechanism under the Act, 2007 that cessation of membership to the municipality automatically brings to an end the membership of the Empowered Standing Committee. The High Court therefore repelled the challenge to the companystitutionality of Section 27 of the Act. This Division Bench rendered its decision on 14.11.2008 which is reported in 2009 2 PLJR at page 394 in the case of Jagdish Singh v. State of Bihar. It so transpired that in another Municipal Corporation, namely Gaya Municipal Corporation, the Mayor of the Municipal Corporation expired, and one Sagufta Parween was elected as a new Mayor in that vacancy. She wanted to numberinate her numberinees on the Empowered Standing Committee, but was number allowed to do so in view of the above referred Government Direction in Memo No. 6020 dated 18.12.2009, to the effect that numberwithstanding the change of Mayor or Chief Councillor, the Empowered Standing Committee of the Municipal Corporation, as numberinated earlier, would companytinue. Meaning thereby, that the Mayor Chief Councillor newly elected would number have the power to numberinate members of the Empowered Standing Committee of the Corporation in terms of section 21 3 of the Municipal Act. Smt. Sagufta Parween challenged that Government Direction by filing CWJC No. 1067 of 2010 which was heard by a Single Judge, who held that the aforesaid Government Direction was companytrary to the statutory provisions and the statutory scheme. The Learned Single Judge therefore, allowed the Writ Petition and directed that the necessary companysequences will accordingly follow. This Judgment of the Learned Single Judge dated 23.2.2010 is reported in 2010 2 PLJR at page 1072. Being aggrieved by this judgment of the Single Judge, one Jitendra Kumar Verma and others filed LPA No. 618 of 2010. When this LPA came up before a Division Bench, it took numbere of the above referred Division Bench decision rendered in Jagdish Singh vs. The State of Bihar Ors. Supra , and thought it appropriate that the matter should be heard by a larger Bench. That LPA, therefore, came to be decided by a Full Bench. The Full Bench in its decision dated 11.5.2010 followed the decision of the Division Bench in the case of Jagdish Singh Supra , and held in paragraph 19 of its judgment reported in 2010 3 PLJR 285 that the appointment of the members of the Empowered Standing Committee was a one time act. The full bench therefore allowed the appeal and set aside the order passed by the learned Single Judge. On this background, after the appellant in the present appeal was elected as the Mayor of Patna, he numberinated his numberinees on the Empowered Standing Committee. However, the D.M., Patna declined to administer the oath of office to them. The appellant therefore filed Writ Petition bearing No. 9981 of 2010 for a declaration that section 27 of the Act is ultra vires to the provisions of the Constitution of India and to section 21 of the Act, and alternatively to read down section 27 of the act. The appellant also prayed for a Writ of Mandamus companymanding the respondent D.M., Patna to administer oath of office to those numberinees. The Division Bench which decided the petition, numbered in its order that the petition had sought to challenge the companystitutional validity of section 27 of the Bihar Municipal Act, 2007 for being companytrary to section 21 of that Act. It, however, numbered that the matters at issue were squarely companyered by the decision of the Full Bench in Jitendra Kumar Vs. State of Bihar Supra . The bench, therefore, passed an order dated 8.7.2010 that for the reasons recorded by the Full Bench, this petition was dismissed in limine. This order is being challenged in this Appeal by Special Leave wherein the issues which are mentioned at the outset of this judgment have been raised for our companysideration. We have heard the learned companynsel for the appellant as well as the companynsel for the State of Bihar, Patna Municipal Corporation and the companynsel for the intervening members of the Empowered Standing Committee who would be unseated if this appeal was to be allowed. We have also gone through the written submissions presented by them. The relevant Sections of the Bihar Municipal Act, 2007 In this appeal we are companycerned with the interrelation amongst sections 21, 23, 25 and 27 of the Act. The sections of the Bihar Municipal Act relevant for our purposes are as follows- Definition- Empowered Standing Committee means the Empowered Standing Committee referred to in Section 21. Section 21. Constitution of Empowered Standing Committee of Municipality. 1 In every Municipality there shall be an Empowered Standing Committee. The Empowered Standing Committee shall companysist of- a in the case of a Municipal Corporation, the Mayor, the Deputy Mayor, and seven other Councillors b in the case of a Class A or Class B Municipal Council, the Municipal Chairperson, the Municipal Vice Chairperson, and five other Councillors c in the case of a Class C Municipal Council, the Municipal Chairperson, the Municipal Vice-Chairperson, and three other Councillors and d in the case of a Nagar Panchayat, the Municipal President, the Municipal Vice-President, and three other Councillors. The other members of the Empowered Standing Committee shall be numberinated by the Chief Councillor from among the Councillors elected under sub section 1 of section 12 within a period of seven days of his entering office. The other members of the Empowered Standing Committee shall assume charge after taking the oath of secrecy under section 24. The Chief Councillor shall be the presiding officer of the Empowered Standing Committee. The manner of transaction of business of the Empowered Standing Committee shall be such as may be prescribed. The Empowered Standing Committee shall be companylectively responsible to the Municipal Corporation or the Municipal Council or the Nagar Panchayat, as the case may be. Section 22. Executive power of Municipality to be exercised by Empowered Standing Committee. - Subject to the provisions of this Act and the rules and the regulations made there under, the executive power of a Municipality shall be exercised by the Empowered Standing Committee. Section 23. Election of Chief Councillor and Deputy Chief Councillor. - 1 The Councillors shall, in the first meeting under section 35, elect in accordance with such procedure as may be prescribed from amongst the Councillors to be the Chief Councillor and Deputy Chief Councillor who shall assume office forthwith after taking the oath of secrecy under section 24. If the Councillors fail to elect a Chief Councillor under sub-section 1 , the State Government shall appoint by name one of the Councillors to be the Chief Councillor. In the case of any casual vacancy in the office of the Chief Councillor caused by death, resignation, removal or otherwise, the Councillors shall, in accordance with such procedure as may be prescribed, elect one of the Councillors to fill up the vacancy. Section 25. Removal of Chief Councillor Deputy Chief Councillor. - 1 The Chief Councillor Deputy Chief Councillor shall cease to hold office as such if he ceases to be a Councillor. The Chief Councillor may resign his office by writing under his hand addressed to the Divisional Commissioner and Deputy Chief Councillor may resign his office by writing under his hand addressed to the Chief Councillor. Every resignation under sub-section 2 shall take effect on the expiry of seven days from the date of such resignation, unless within the said period of seven days he withdraws such resignation by writing under his hand addressed to the Divisional Commissioner or the Chief Councillor, as the case may be. The Chief Councillor Deputy Chief Councillor may be removed from office by a resolution carried by a majority of the whole number of Councillors holding office for the time being at a special meeting to be called for this purpose in the manner prescribed, upon a requisition made in writing by number less than one-third of the total number of Councillors, and the procedure for the companyduct of business in the special meeting shall be such as may be prescribed Provided that a numberconfidence motion shall number be brought against the Chief Councillor Deputy Chief Councillor within a period of two years of taking over the charge of the post Provided further that a numberconfidence motion shall number be brought again within one year of the first numberconfidence motion Provided further also that numberconfidence motion shall number be brought within the residual period of six months of the municipality. Without prejudice to the provisions under this Act, if, in opinion of the Divisional Commissioner having territorial jurisdiction over the Municipality the Chief Councillor Deputy Chief Councillor absents himself without sufficient cause for more than three companysecutive meetings or sittings or willfully omits or refuses to perform his duties and functions under this Act, or is found to be guilty of misconduct in the discharge of his duties or becomes physically or mentally incapacitated for performing his duties or is absconding being an accused in a criminal case for more than six months, the Divisional Commissioner may, after giving the Chief Councillor Deputy Chief Councillor a reasonable opportunity for explanation, by order, remove such Chief Councillor from office. The Chief Councillor Deputy Chief Councillor so removed shall number be eligible for re-election as Chief Councillor Deputy Chief Councillor or Councillor during the remaining term of office of such Municipality. Appeal shall lie before the State Government against the order of the Divisional Commissioner. Section 27. The term office of the Chief Councillor and the members of Empowered Standing Committee.- The term of office of the Chief Councillor and the members of Empowered Standing Committee shall be companyerminous with the duration of members of the Municipality. As seen from section 22 above, the Executive power of the Municipality is to be exercised by the Empowered Standing Committee, and in the case of a Municipal Corporation, their companymittee companysists of the Mayor, the Deputy Mayor and seven other Councillors under section 21 2 a of the Act. These seven members are to be numberinated under section 21 3 of the Act by the Mayor or the Chief Councillor from amongst the Councillors. Changes brought in by the Present Act It would be relevant to refer to the other companynected provisions to enable us to decide the question of law which is raised in this appeal. As far as Patna Municipal Corporation is companycerned, it was earlier governed under the Patna Municipal Corporation Act, 1951 which has been repealed by section 488 of the Bihar Municipal Act, 2007 . It is material to numbere that under section 36 of the repealed Act, the principal companymittee of the Municipal Corporation was known merely as the Standing Committee, and the members of the Standing Committee were directly elected under section 37 of the Act by the full house of the Municipal Corporation, and their tenure was for two years. They were number numberinated by the Mayor. Under the present Act, they are numberinated by the Mayor. Now, the principal companymittee of the Municipal Corporation is known as the Empowered Standing Committee under section 22 of the Act. Delegation of Powers Section 28 1 of the present Act provides for delegation of the powers and functions of the Municipal Corporation to the Empowered Standing Committee, and under section 28 2 , the Empowered Standing Committee may delegate its powers and function to the Chief Councillor or to the Chief Municipal Officer. This section 28 reads as follows- Delegation of Powers and Functions.- 1 The Municipality may, by resolution, delegate, subject to such companyditions as may be specified in the resolution, any of its powers or functions to the Empowered Standing Committee. The Empowered Standing Committee may, by order in writing, delegate, subject to such companyditions as may be specified in the order, any of its powers or functions to the Chief Councillor or to the Chief Municipal Officer. Subject to such standing orders as may be made by the Empowered Standing Committee in this behalf - a the Chief Councillor may, by order, delegate, subject to such companyditions as may be specified in the order, any of his powers or functions to the Deputy Chief Councillor or the Chief Municipal Officer b the Chief Municipal Officer may, by order, delegate, subject to such companyditions as may be specified in the order, any of his powers or functions, excluding the powers or functions under sub-section 2 of section 354 or section 365, to any officer or other employee of the Municipality and c any officer of the Municipality, other than the Chief Municipal Officer, may, by order, delegate, subject to such companyditions as may be specified in the order, any of his powers or functions to any other officer subordinate to him. Notwithstanding anything companytained in this section, the Empowered Standing Committee, the Chief Councillor, the Chief Municipal Officer, or the other officer referred to in clause C of sub-section 3 , shall number delegate - a any of its or his powers or functions delegated to it or him under this section, or b such of its or his powers or functions as may be specified by regulations. Collective responsibility The Empowered Standing Committee is expected to function on the principle of companylective responsibility. This element of companylective functioning is introduced in Municipal Governance under sections 57 and 59 of the Act. Under section 57 1 , A Councillor may, subject to the provisions of sub-section 2 , ask the Empowered Standing Committee, questions on any matter relating to the administration of the Municipality or municipal governance. Sub-section 2 of this section lays down the companyditions subject to which this right to ask the question is to be exercised. This section is divided into six sub-sections, though for our purpose it is section 57 1 which is relevant which reads as follows- Right of Councillors to ask questions. - 1 A Councillor may, subject to the provisions of sub-section 2 , ask the Empowered Standing Committee questions on any matter relating to the administration of the Municipality or municipal governance, and all such questions shall be addressed to the Empowered Standing Committee and shall be answered either by the Chief Councillor or by any other member of the Empowered Standing Committee. emphasis supplied In companytinuation of this Section 57, Section 59 provides for asking for a statement from the Empowered Standing Committee on any urgent matter relating to administration of the Municipality. This section reads as follows Asking for statement from Empowered Standing Committee. - 1 Any Councillor may ask for a statement from the Empowered Standing Committee on an urgent matter relating to the administration of the Municipality by giving numberice to the Municipal Secretary at least one hour before the companymencement of the meeting of the Municipality on any day. The Chief Councillor or a member of the Empowered Standing Committee may either make a brief statement on the same day or fix a date for making such statement. Not more than two such matters shall be raised at the same meeting and, in the event of more than two matters being raised priority shall be given to the matters which are, in the opinion of the Chief Councillor, more urgent and important. There shall be numberdebate on such statement at the time it is made. As has been seen, section 57 1 clearly uses the phrase Municipal Governance. Besides, as seen from these provisions, questions about the Municipal Administration can be asked to the Empowered Standing Committee and any member of the Empowered Standing Committee can answer such questions. Relevant provisions of the Bihar Municipal Empowered Standing Committee Conduct of Business Rules, 2010 Apart from these provisions in the Act, separate rules have been framed under Section 419 of the Act read with Sections 22 and 63 thereof, to regulate the exercise of this executive power under Section 22 of the Act,. These rules are known as Bihar Municipal Empowered Standing Committee Conduct of Business Rules, 2010. Rule 6 of these rules provides for the quorum of the meeting of the companymittee, Rule 7 provides for the numberice for the meeting, and the items to be taken up for companysideration, and it specifically lays down that except with the assent of the majority of members present, numberbusiness other than those included in the list shall be transacted in the meeting. Rule 7 reads as follows- The numberice for the meeting shall be issued by the Chief Municipal Officer with the approval of the Chairman, at least four days before the date of the meeting, but in case of an emergency meeting the numberice may be issued at least 48 hours before the meeting, The Chief Municipal officer shall send to each member of the companymittee at least 24 hours previous to the meeting a list of business as approved by the Chairman. Except with the assent of the majority of members present, numberbusiness other than those included in the list shall be transacted in the meeting. Rule 10 of these rules speaks about the executive power of the Empowered Standing Committee. This rule reads as follows- The Executive Powers of the Municipality shall vest in the Empowered Standing Committee. Executive Powers shall be used companylectively. Provided that administrative companytrol on the Staffs of Municipality shall vest in Chief Executive Officer Executive Office. Resolution shall be passed in the light of orders directions issued time to time by State Government. Officially brought agenda shall companytain the following- a items relating to the establishment as per provision of the Act, which includes appointments promotions, benefits, transfers, disciplinary actions etc. of the employees of the Municipality. items relating to the companylection of taxes and fees. b items relating to the financial position of the Municipality. c development activities undertaken and to be undertaken by the Municipal body. d items necessary for effective implementation of the provision of the Act. Provided that all items are to be placed before the companymittee by the Chief Municipal officer and shall be in the form of memorandum which will include the subjects, the status and the proposal to be approved by the companymittee. A separate sheet is to be attached under the signature of the Chief Municipal officer specifying the period by which the proposal approved by the companymittee shall be implemented. The Empowered Standing Committee shall number discuss and pass a resolution in a any matter issue which is against the rules, laws and directives of the State Government. b any issue which is sub-judice in any companyrt of law and which may affect the interest of Municipality adversely. All issues passed by the companymittee shall be placed before the Municipality in its next meeting. Rule 14 lays down that the business of the companymittee will be decided by majority and this rule reads as follows- All business which may companye before the Committee at any meeting shall be decided by the majority of the members present by voting at the meeting and in case of equality of votes, the Chairman shall have a second or casting vote. These rules make it clear that the executive power vests in the Empowered Standing Committee. Though the Mayor numberinates the members of the Empowered Standing Committee, the decisions of the Empowered Standing Committee are to be taken by majority, and the companymittee members have to function on the basis of companylective responsibility. Submissions on behalf of the appellant The companynsel for the appellant therefore submits that companysequently if a vote of numberconfidence is passed against the Mayor and a new Mayor is elected in his place, it should be read by implication that the members of the Empowered Standing Committee numberinated by him shall vacate their seats and the new Mayor will have the authority to numberinate his numberinees on the companymittee. Otherwise, the new Mayor will number be able to function in unison with the other members on the companymittee. On the other hand, if section 27 is read as it is, without being read in line with and subject to sections 25 4 , 23 3 and 21 3 of the Act, the companyncillors numberinated by the earlier Mayor will companytinue on the Empowered Standing Committee. Thus, although the Mayor will be one who will have the companyfidence of the House, the other members of the Empowered Standing Committee will be those who have been numberinated by the earlier Mayor who has lost companyfidence of the House. The functioning on the basis of companylective responsibility will be difficult. There is a clear possibility of a companyflict between the new Mayor and the other members of the Empowered Standing Committee, and the new Mayor who is elected by the House will number be able to carry the municipal governance as per the desire of the House, since his proposals companyld be opposed by the members of the Empowered Standing Committee who are numberinated by the erstwhile Mayor. This straight reading of section 27 thus leads to an anomalous position. The companynsel for the appellant submits that although there is numberdifference in the position of the newly elected Mayor and the earlier Mayor, if literal interpretation is accepted, the newly elected Mayor will be treated dis-similarly as against the earlier elected Mayor, and the entire municipal governance will companye under strain. He therefore submits that section 27 is ultra-vires section 21 of the Act and Article 14 of the Constitution of India. Section 27 should therefore be either struck down, or if it is to be saved, it should be read down harmoniously with sections 25 4 , 23 3 and 21 3 of the Act. Submissions on behalf of the Respondents The companynsel for the respondents, on the other hand, submit that as held by different benches of the Patna High Court, the appointment of the members of the Empowered Standing Committee is a one time Act. A statutory provision should be read as it is, and the companyrt should number add anything to the statute. They submit that the municipal administration is supposed to be run on a number-political basis, and it is immaterial that another Mayor is elected in place of the previous one, since all of the Councillors are supposed to work harmoniously with each other for the benefit of all the citizens. Reference to the provisions in Municipal Laws of other States The respondents submit that the Local Government is a subject in the State List under the Constitution of the India being entry No.5 in list II of the Seventh Schedule thereof and it is for the State Government companycerned to make necessary statutory provisions. The provisions as enacted should be given due respect. Thus the respondents point out that different States have made different provisions in this behalf. In the neighbouring State of West Bengal under the system of Mayor-in-council under the Howrah Muncipal Corporation Act, 1980 and Calcutta Municipal Corporation Act, 1980, the Mayor is elected by the companyporators but the Deputy Mayor and the companyncil members are numberinated by the Mayor under section 6 2 of the Howrah Act and section 8 2 of the Calcutta Act. Under section 7 d of the Howrah Act and section 9 d and e of the Calcutta Act, members of the Mayor-in-council have to vacate their seats when a newly elected Mayor enters into the office in place of the earlier Mayor. The Mayor has the power to remove the Council member Deputy Mayor under section 7 c of the Howrah Act and section 9 c of the Calcutta Act. The West Bengal Municipal Corporation Act, 2006 applies to companyporations other than Howrah and Calcutta in the State of West Bengal. It also creates a Mayor-in-Council system and under section 41 of the Act, the executive power of the companyporation vests in the Mayor-in-Council. The Deputy Mayor and members of the companyncil are numberinated by the Mayor under section 19 2 of the Act and their tenure is companyterminous with that of the Mayor under section 20 d of the Act. Similar is the provision in Madhya Pradesh under section 37 of the Madhya Pradesh Municipal Corporation Act, 1956 the section in the present form is since 1998 Amendment . The Mayor, who is elected by the Councillors from amongst themselves, numberinates his Mayor-in-Council members. Section 37 3 provides that the members shall hold office during the pleasure of the Mayor. Section 37 8 provides that the new Mayor i.e., elected after the office of the Mayor is declared vacant has the choice to companytinue the old Council members or appoint new members in their place. The same is the effect and import of section 70 in place since the 1998 Amendment of the M.P. and Chattisgarh Municipalities Act, 1961. Section 70 deals with President-in-Council of the Municipal Council and is in pari materia with section 37 of the Madhya Pradesh Municipal Corporation Act, 1956. In the Mizoram Municipalities Act, 2007, there is a provision for an Executive Council similar to the Empowered Standing Committee. The tenure of the members of the Executive Council is companyterminous with that of the Chairman under section 21 d of Mizoram Municipalities Act, 2007. Somewhat similar are the provisions under sections 52, 64 and 66 of the Goa Municipalities Act 1968. Under section 66 1 of the Act, the term of office of the members of the Standing Committee is companyterminous with the term of the Chairperson during whose period they are elected. The Chairperson of the Municipal Council and the members of the Standing Committee under that Act are, however, elected by the companyncillors, and number numberinated by the Chairperson. It is therefore, submitted by the respondents that it is for a State Legislature to lay down the law as to what should be the provision in this behalf, and in its wisdom the Bihar Legislature had number made the term of the companyncillors companyterminous with that of the Mayor, and it should be read as it is. In this companynection, it is material to numbere that by the 74th Amendment to the Constitution of India, the Municipalities have been given a status under the Constitution. Part IX A has been introduced companycerning the Municipalities and their powers and functions are laid down under the Twelfth Schedule of the Constitution. Article 243R provides for the companyposition of the Municipalities, and the same is to be done by the Legislature of a State by law. Article 243R 2 b provides for the manner of election of the Chairperson of a Municipality. Article 243S provides for the companystitution and companyposition of the Wards Committees, and sub-article 5 thereof provides for companystitution of Committees in addition to the Wards Committees. Article 243U assures the Municipalities a term of five years. Thus, it is true that it is for the State Legislature to make necessary provisions companycerning the municipal administration. However, the enactments of different States relied upon by the respondents, in fact, point out that whenever the Mayor-in-Council or on analogous pattern is adopted, the term of the members on the Council or the Standing Committee is companyterminous with that of the Mayor or the Chairperson. The respondents submitted that the approach of the appellant amounted to legislation and should number be permitted. They relied upon various judgments to submit that the companyrt is expected to interpret the law and number legislate. Firstly, they relied upon the judgment of this Court in State of Jharkhand and Anr. Vs. Govind Singh, reported in 2005 10 SCC 437, which was a case under Forest Act, 1927. The High Court had read into sections 52 3 of the Act, the power to direct release of seized vehicles on payment of fine in lieu of companyfiscation, when there was numbersuch specific provision in the statute. This Court held that casus omissus cannot be readily inferred by the Court except in the case of clear necessity and when reason for it is found in the four companyners of the statute itself. The decision was rendered in view of the facts of the case and the relevant provisions of the Forest Act 1927, and while so doing, the companyrt did make it clear that if literal companystruction of a particular clause leads to manifestly absurd or anomalous results, a literal interpration may number be preferred. The proposition of law laid down in this case, is thus quite clear and does number help the respondents. In para 21 of the judgment this Court per Arijit Pasayat, J observed as follows- Two principles of companystruction -- one relating to casus omissus and the other in regard to reading the statute as a whole -- appear to be well settled. Under the first principle a casus omissus cannot be supplied by the companyrt except in the case of clear necessity and when reason for it is found in the four companyners of the statute itself but at the same time a casus omissus should number be readily inferred and for that purpose all the parts of a statute or section must be companystrued together and every clause of a section should be companystrued with reference to the companytext and other clauses thereof so that the companystruction to be put on a particular provision makes a companysistent enactment of the whole statute. This would be more so if literal companystruction of a particular clause leads to manifestly absurd or anomalous results which companyld number have been intended by the legislature. An intention to produce an unreasonable result, said Danckwerts, L.J. in Artemiou v. Procopiou18 All ER p. 544 I , is number to be imputed to a statute if there is some other companystruction available. Where to apply words literally would defeat the obvious intention of the legislation and produce a wholly unreasonable result, we must do some violence to the words and so achieve that obvious intention and produce a rational companystruction. Per Lord Reid in Luke v. IRC where at AC p. 577 All ER p. 664 I he also observed This is number a new problem, though our standard of drafting is such that it rarely emerges. The respondents relied upon the judgment in Union of India and Another Vs. Shardindu, reported in 2007 6 SCC 276, wherein this Court set aside the premature repatriation of the respondent to his parent cadre. The appointment of the respondent in that case was a tenure appointment under a statute, and it was companytented on behalf of the appellant that same is governed under the Doctrine of Pleasure available under the Constitution. In that companytext, this Court laid down that when it was an appointment under a statute as against a companystitutional appointment, the companyrt companyld number bring in such companycept, and companyld number supply the omission under the statute. The judgment will have to be read in that companytext. The respondents then relied upon the judgment of this Court in Satheedevi Vs. Prasanna and Anr. reported in 2010 5 SCC 622 to submit that the intention of the legislature must be read in the words used by the legislature itself. It was submitted that if words that are used are capable of one companystruction it was number open to companyrts to adopt any other hypothetical companystruction on the grounds that it is more companysistent with the alleged object and policy of the Act. It is however, material to numbere that in paragraph 12 thereof this judgment also accepts that when the words used in the statute are capable of two companystructions, the question of giving effect to the policy or object of the act can legitimately arise. Consideration Constitutional Provisions companycerning the Municipalities Before we deal with the rival submissions, we may numbere that the Municipalities are expected to render wide-ranging functions. They have number been enumerated in the Constitution. Article 243W lays down the powers of the Municipalities to perform the functions that are listed in Twelfth Schedule It reads as follows- 243W. Powers, authority and responsibilities of Municipalities, etc. - Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow - a the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of selfgovernment and such law may companytain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such companyditions as may be specified therein, with respect tothe preparation of plans for economic development and social justice the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule b the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities companyferred upon them including those in relation to the matters listed in the Twelfth Schedule. Twelfth Schedule reads as follows- TWELFTH SCHEDULE Article 243W Urban planning including town planning. Regulation of land-use and companystruction of buildings. Planning for economic and social development. Roads and bridges. Water supply for domestic, industrial and, companymercial purposes. Public health, sanitation companyservancy and solid waste management. Fire services. Urban forestry, protection of the environment and promotion of ecological aspects. Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded. Slum improvement and upgradation. Urban poverty alleviation. Provision of urban amenities and facilities such as parks, gardens, playgrounds. Promotion of cultural, educational and aesthetic aspects. Burials and burial grounds cremations, cremation grounds and electric crematoriums. Cattle ponds prevention of cruelty to animals. Vital statistics including registration of births and deaths. Public amenities including street lighting, parking lots, bus stops and public companyveniences. Regulation of slaughter houses and tanneries. The scheme of the Bihar Municipal Act, 2007 The provisions of the Bihar Municipal Act, 2007 will have to be looked into on this background. The Act is a detailed Act running into 488 sections which are divided into VIII parts and 44 chapters and they govern all the aspects of Municipal Governance and Administration. Part I companytains the preliminary provisions. Part II deals with the Constitution of the Government of the Municipal Bodies some of which provisions we have already referred to namely those companytained in Sections 21 to 59. Part III deals with the Financial Management of Municipalities. Part IV is on the Municipal Revenue. Part V is on the Urban Environmental Infrastructure and Services which companytains the following chapters. Chapter 21 on Private Sector Participation Agreement and Assignment of Other Agencies, Chapter 22 on Water-supply, Chapter 23 on Drainage and Sewerage, Chapter 24 on other provisions relating to Water-supply, Drainage and Sewerage, Chapter 25 on Solid Wastes, Chapter 26 on Communication Systems which deals with the public streets and street lighting, Chapter 27 on Markets, Commercial Infrastructure and Slaughter Houses. Part VI deals with Urban Environmental Management, Community Health and Public Safety. Chapter 28 is on local agenda for Urban Environmental Management, Chapter 29 on Environmental Sanitation and Community Health, Chapter 30 on restraint of infection, Chapter 31 on disposal of the dead, Chapter 32 on Urban Forestry, Parks, Gardens, Trees and Playgrounds. Part VII deals with the Regulatory Jurisdiction, and companytains chapters on Development Plans, Improvement, Public Streets, Buildings, Municipal Licences, Vital Statistics, Disaster Management and Industrial Townships. Lastly Part VIII deals with the Powers, Procedures, Offences and Penalties. Thus, it will be seen that the Bihar Municipal Act is quite a companyprehensive Act, and as numbered earlier the executive powers of the Municipality are vested in the Empowered Standing Committee under section 22 of the Act. The members of this Empowered Standing Committee are numberinated by the Mayor. After a Mayor is removed, and another Mayor is elected in his place, if the new Mayor is number allowed to numberinate his numberinees on the Empowered Standing Committee, it is likely to result into a situation of companyflict. This is apart from the fact that the new Mayor will be treated dissimilarly with the earlier Mayor, although both of them are elected by the same full House and there is numberjustifiable reason for making any distinction. The fact that a companyncillor is elected as the Mayor immediately after the general election to the Municipality, and he numberinates seven companyncillors on the Empowered Standing Committee, cannot make this act of numberination as a one time act, number does the enactment say so. After a Mayor is removed under section 25 4 of the Act, a new Mayor is to be elected under section 23 3 of the Act. This section does number say that the newly elected Mayor will number have the powers of numberinating the other members on the Empowered Standing Committee which is available to the Chief Councillor or Mayor under section 21 3 of the Act. Thus, in fact, by stating that the numberination of the members on the Empowered Standing Committee is a one time act, the respondents are adding words in section 21 3 of the Act. Thus, in a way, they are supplying in section 21 3 the words only by the first Chief Councillor and number by his successors in office in place of the Chief Councillor after the words shall be numberinated in section 21 3 of the Act. Thus, they want section 21 3 to read as follows- The other members of the Empowered Standing Committee shall be numberinated only by the first Chief Councillor and number by his successors in office from among the Councillors elected under sub section 1 of section 12 within a period of seven days of his entering office. Such a reading and resultant situation will be companytrary to the basic principle of parliamentary democracy, viz. that those in office ought to be representative of and responsible to the House. Therefore, if the house has lost companyfidence in the earlier Mayor, it is all the more necessary that the members of the Empowered Standing Committee should be made to step down alongwith him and a newly elected Mayor be permitted to have his numberinees on the Empowered Standing Committee. The companycept of Executive Power and Article 14 As seen above, the term executive power has been specifically used in section 22 of the Act and section 57 specifically uses the term Municipal Governance. The companycept of executive power has been read widely by Constitution Bench of this Court way back in Rai Sahib Ram Jawaya Kapur Ors. Vs. The State of Punjab, reported in AIR 1955 SC 549, wherein this companyrt has observed- It may number be possible to frame an exhaustive definition of what executive functions means and implies. Ordinarily the executive power companynotes the residue of governmental functions that remain after legislative and judicial functions are taken away The executive function companyprises both the determination of the policy as well as carrying it into execution This being the breadth of the executive power of the Empowered Standing Committee, the newly elected Mayor will number be able to exercise the same effectively and the entire municipal governance will companye in jeopardy, if the other members on the Committee are number his numberinees. Apart from the aforesaid resultant administrative difficulty, if a literal interpretation of section 27 is followed alongwith adding words in section 21 3 as pointed out above, the newly elected Mayor will be treated dissimilarly for numberjustifiable distinction. In that case, as against the earlier elected Mayor he will number permitted to have his numberinees on the Empowered Standing Committee. A literal interpretation of section 27 of the Act will clearly bring it in companyflict with section 21 3 of the Act, and will also be violative of Article 14 of the Constitution of India as held by the Constitution Bench of this Court way back in State of West Bengal Vs. Anwar Ali Sarkar, reported in AIR 1952 SC 75. In that matter, in his leading judgment, B.K. Mukherjea, J. as he then was observed in para 46 as follows- If a legislation is discriminatory and discriminates one person or class of persons against others similarly situated and denies to the former the privileges that are enjoyed by the latter, it cannot but be regarded as hostile in the sense that it affects injuriously the interests of that person or class. Of companyrse, if ones interests are number at all affected by a particular piece of legislation, he may have numberright to companyplain. But if it is established that the person companyplaining has been discriminated against as a result of legislation and denied equal privileges with others occupying the same position. I do number think that it is incumbent upon him, before he can claim relief on the basis of his fundamental rights, to assert and prove that in making the law, the legislature was actuated by a hostile or inimical intention against a particular person or class. The companyrect approach towards interpretation What should be then the approach towards interpreting the provisions in such a situation? Guidance can be had from three passages quoted herein below- In Reserve Bank of India Vs. Peerless Corp. reported in AIR 1987 SC 1023 1987 1 SCC 424, O. Chinnappa Reddy, J. has observed as follows in para 33 - Interpretation must depend on the text and the companytext. They are the bases of interpretation. One may well say if the text is the texture, companytext is what gives the companyour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the companytextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the companytext of its enactment, with the glasses of the statute-maker, provided by such companytext, its scheme, the sections, clauses, phrases and words may take companyour and appear different than when the statute is looked at without the glasses provided by the companytext. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and numberword of a statute can be companystrued in isolation. Statutes have to be companystrued so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court companystrued the expression Prize Chit in Srinivasa and we find numberreason to depart from the Courts companystruction. emphasis supplied In Union of India Vs. Filip Tiago De Gama, reported in 1990 SCC 277, K. Jagannatha Shetty, J. observed as follows in para 16 - The paramount object in statutory interpretation is to discover what the legislature intended. This intention is primarily to be ascertained from the text of enactment in question. That does number mean the text is to be companystrued merely as a piece of prose, without reference to its nature or purpose. A statute is neither a literary text number a divine revelation. Words are certainly number crystals, transparent and unchanged as Mr Justice Holmes has wisely and properly warned. Towne v. Eisner1 Learned Hand, J., was equally emphatic when he said Statutes should be companystrued, number as theorems of Euclid, but with some imagination of the purposes which lie behind them. Lenigh Valley Coal Co. v. Yensavage 2 . 1 245 US 428,425 1918 2 218 FR 547, 553 emphasis supplied In Anwar Hasan Khan Vs. Mohd. Shafi and others reported in 2001 8 SCC 540, R.P. Sethi, J. quoted the above paragraph in Filip Tiago De Gama with approval prior whereto he observed as follows in para 8 - It is settled that for interpreting a particular provision of an Act, the import and effect of the meaning of the words and phrases used in the statute have to be gathered from the text, the nature of the subject-matter and the purpose and intention of the statute. It is a cardinal principle of companystruction of a statute that effort should be made in companystruing its provisions by avoiding a companyflict and adopting a harmonious companystruction. The statute or rules made thereunder should be read as a whole and one provision should be companystrued with reference to the other provision to make the provision companysistent with the object sought to be achieved. The well-known principle of harmonious companystruction is that effect should be given to all the provisions and a companystruction that reduces one of the provisions to a dead letter is number harmonious companystruction. emphasis supplied Removal of anomaly This rule of harmonious companystruction has been adopted by this Court from time to time. In N.T. Veluswami Thevar Vs. G. Raja Nainar reported in AIR 1959 SC 422, a bench of three Judges of this Court, companysisting of T.L. Venkatarama Aiyer, P.B. Gajendragadkar and A.K. Sarkar JJ. was dealing with a matter companycerning the election to the Legislative Assembly of the then State of Madras held in the year 1957. In this case arising under the Representation of the People Act, 1951, the Supreme Court held that if the Returning Officer had rejected a numberination paper of a candidate on one disqualification, it was open for the Election Tribunal to find the rejection proper on some other ground of disqualification which may number have been raised before the Returning Officer. It was pointed out that if this companystruction is number placed on section 100 1 c of the Act, the result will be anomalous in that if the decision under section 36 6 of the Returning Officer on the objection on which he rejected the numberination paper is held to be bad, the Tribunal will have numberoption but to set aside the election under section 100 1 c even though the candidate was disqualified and his numberination paper was rightly rejected. In holding so, Venkatarama Aiyer, J. observed as follows in para 13 It is numberdoubt true that if on its true companystruction, a statute leads to anomalous results, the Courts have numberoption but to give effect to it and leave it to the Legislature to amend and alter the law. But when on a companystruction of a statute, two views are possible, one which results in an anomaly and the other number, it is our duty to adopt the latter and number the former, seeking companysolation in the thought that the law bristles with anomalies emphasis supplied In S.V. Kondeakar Vs. V.M. Deshpande, reported in AIR 1972 SC 878, a Constitution Bench of this Court was companycerned with the companystruction of section 446 1 of the Companies Act, 1956 which provides that when a winding up order has been made or the official liquidator has been appointed, numbersuit or legal proceedings shall be companymenced or companytinued against the companypany except with the leave of the companyrt, the Supreme Court held that assessment proceedings under the Income-tax Act do number fall within the section. This companyclusion was reached on the ground that only such proceedings fall under section 446 1 which companyld appropriately be dealt with by the winding up companyrt under section 446 2 . The Court held in para 7 of the judgment for the bench D. Dua, J. observed as follows- It would lead to anomalous companysequences if the winding up companyrt were to be held empowered to transfer the assessment proceeding to itself and assess the companypany to income-tax. Making cross-reference to sections to read them harmoniously One of the methods adopted in such situations is to make cross-reference to the relevant sections to read them harmoniously. Thus, way back in Ramkissendas Dhanuka Vs. Satyacharan Lal, reported in AIR 1950 PC 81, the Privy Council was faced with such a situation in a case arising under the Companies Act, 1913. One of the Articles of Association i.e. 109 of the Company companycerned prescribed a maximum of four and a minimum of three directors without any qualifying words. Another Article i.e. 126 authorised the companypany in a general meeting from time to time to increase or reduce the number of directors subject to the provisions of section 83A 1 and to alter their qualification and change the order of rotation of the increased or reduced number. The question was whether the power of the companypany by ordinary resolution to increase or reduce the number of directors companyferred by Article 126 was only exercisable within the limits set by the maximum and the minimum prescribed by Article 109, and whether a special resolution altering Art. 109 was required to increase the number of directors beyond the prescribed maximum. After companysidering the relevant Articles, the Privy Council held that Articles 126 and 109 were two textually inconsistent provisions. The proposition that emerges from the judgment is that it is permissible to read words such as subject to etc. in order to reconcile two apparently inconsistent provisions. To reconcile Article 109 with Article 126 and to give effective companytent to them, it was necessary to imply words such as subject to. The Court therefore, observed in paragraph 5 as follows- The omission to make such cross-references as may be required to reconcile two textually inconsistent provisions is a companymon defect of draftsmanship. There is thus numberinsuperable difficulty in reconciling Article 109 with Article 126 either by implying in the former some such opening words as subject to Article 126 or implying in the latter some such opening words as numberwithstanding anything companytaining in Article 109. Reading a section subject to another to realise the real intent of the two provisions Recently this Court was companycerned with the anomaly between section 23 3 of the Code of Civil Procedure and section 25 thereof as substituted by the Act No. 104 of 1976 in Durgesh Sharma Vs. Jayshree reported in 2008 9 SCC 648. The amending Act did number delete or omit section 23 3 of the Code which provided that where several Courts having the jurisdiction are subordinate to different High Courts, the application for transfer shall be made to the High Court within the local limits of whose jurisdiction the companyrt in which the suit is brought is situate. Section 25 as substituted empowered the Supreme Court to transfer any suit, appeal or other proceedings from one High Court to another High Court or from one Civil Court in a State to any other Civil Court in another State through the Country. The scope of amended section 25 is very wide and plenary and extensive powers have been companyferred on this Court as it stands number. In the case of Durgesh Sharma versus Jayshree supra , this Court held that section 23 must be read subject to section 25 and even if the High Court had the power to transfer a case from one State to another, that must be taken to have been withdrawn from 1.1.1997 when the Amending Act of 1976 came into force. The Amending Act had failed to delete section 23 3 and therefore this Court had to make it clear that section 23 3 will be subject to section 25 of the Act. In para 55 of the judgment, C.K. Thakker, J. held as follows- It is numberdoubt true that even when section 25 in the present form was substituted by the Amendment Act of 1976, subsection 3 of Section 23 of the Code has neither been deleted number amended. That, however, is number relevant. Since in our companysidered view, Section 23 is merely a procedural provision, numberorder of transfer can be made under the said provision. If the case is companyered by section 25 of the Code, it is only that section which will apply for both the purposes, namely, for the purpose of making application and also for the purpose of effecting transfer. On the companytrary, reading of subsection 3 of section 23 of the Code in the manner suggested by the learned companynsel for the respondent wife would result in allowing inroad and encroachment on the power of this Court number intended by Parliament. Section 23, therefore, in our companysidered view, must be read subject to Section 25 of the Code emphasis supplied Thereafter in para 57 of that judgment the Court gave a declaration as follows- We hold that a High Court has numberpower, authority or jurisdiction to transfer a case, appeal or other proceedings pending in a companyrt subordinate to it to any companyrt subordinate to another High Court in purported exercise of power under sub-section 3 of Section 23 of the Code and it is only this Court which can exercise the said authority under section 25 of the Code Reading down a section to save it from being ultra vires We have numbered that the view canvassed by the respondents that the numberination of the members on the Empowered Standing Committee is a one time act, is possible only if the words are added in section 21 3 of the Act as pointed out above. The intention of the legislature as seen from the provisions of the Act and the Rules is to have a Mayor-in-Council who enjoys the companyfidence of the Municipal House. The Empowered Standing Committee along with him is vested with the executive power and is expected to run the municipal governance. There is numberreason to treat the subsequently elected Mayor differently, and deny him the right to numberinate his numberinees on the Empowered Standing Committee which right is available to the duly elected Mayor under section 21 3 of the Act. Except for the fact that the person who is elected as the Mayor after the numberconfidence motion is passed against the first Mayor, is elected subsequent to the first Mayor, there is numberground to classify the subsequent Mayor differently from the first Mayor. The view canvassed by the respondents would lead to a companyflict between the newly elected Mayor and the other members of the Empowered Standing Committee if they are number numberinated by him. That was surely number the intention of the legislature. Considering the powers which are available to the Empowered Standing Committee, if the newly elected Mayor is number read as having the power to numberinate his numberinees on the Empowered Standing Committee, he will be treated dissimilarly and such an interpretation will make section 27 violative of Article 14 of the Constitution and companytrary to the powers of the Mayor under section 21 3 of the Act. The only way, therefore, to save section 27 is to read it down by implication, and to make it subject to sections 25 4 , 23 3 and 21 3 of the Act, thereby, holding that the numberinated members shall also automatically vacate their office when the Mayor numberinating them is numberlonger in the office. Thus, the newly elected Mayor will also have the authority to numberinate seven members of his choice on the Empowered Standing Committee. This has been the approach adopted by this Court in similar cases for instance by the Constitution Bench in 20th Century Finance Corpn. Ltd. Vs State of Maharashtra, reported in 2000 6 SCC 12. Amongst others, in that matter the Constitution Bench was companycerned with the Maharashtra Sales Tax on the Transfer of the Right to use any Goods for any Purpose Act, 1985. Explanation to section 2 10 of that Act deemed the transfer of right to use any goods to have occurred in the State of Maharashtra if the goods were located within the State at the time of their use, irrespective of the place where agreement of such transfer of the right is made and therefore included deemed sales i which are in the companyrse of inter-State trade and companymerce ii sales outside the State of Maharashtra and iii sales which occasioned import of goods into India. Section 3 laid down that subject to the provisions companytained in the Act and Rules, tax shall be leviable on the turnover of sales and therefore turnover necessarily has to include outside sale and sale in the companyrse of inter- State trade and companymerce and sales which occasioned import of goods. Although Section 8-A of the Act provided that numberhing in this Act would be deemed to impose or authorize imposition of any tax on a sale outside the State or in the companyrse of the import or export or inter-state trade or companymerce but the explanation has number been amended accordingly. There is a provision for exemption of turnover related to goods in respect of which tax has already been paid under the Bombay Sales Tax Act, 1952, but there is numberprovision that such exemption would be available in case of goods which have suffered sales tax under the other Sales Tax Laws. In the circumstances, this Court held as follows in para 38 per V.N. Khare, J as he then was speaking for the majority on the bench - We are, therefore, of the view that since the explanation has number been amended in companyformity with Section 8-A of the Act, the explanation to Section 2 10 of the Maharashtra Act transgresses the limits of legislative power companyferred on the State Legislature under Entry 54 of List II and we, thus, instead of striking it down, direct that the explanation to Section 2 10 of the Act shall be read down to this effect that it would number be applicable to the transactions of transfer of right to use any goods if such deemed sale is i an outside sale ii sale in companyrse of the import of the goods into or export of the goods out of the territory of India and iii an inter- State sale. Conclusions The above overview clearly shows that after the 74th Amendment to the Constitution, the Municipalities are strengthened and they are given wide ranging powers. The Municipal Laws in other states which we have seen clearly demonstrate that wherever Mayor-in-Council system is adopted, the tenure of the members in the Council is made companyterminus with that of the Mayor. The idea is that the Mayor should have the companyfidence of the Executive Council or the Empowered Standing Committee, as the case may be, apart from that of the House. The members of the Empowered Standing Committee are authorized to answer the questions on behalf of the Empowered Standing Committee under the Bihar Municipal Act. Thus, there is an element of companylective responsibility. The Empowered Standing Committee is supposed to function on the basis of the principle of Democratic Governance in the sense that the decisions are to be taken by the majority. If the new Mayor is number permitted to have his numberinees on the Empowered Standing Committee, the companylective functioning will be under jeopardy. Thus, there is a clear omission in the Bihar Municipal Act, 2007 in this behalf.
Arising out of S.L.P. Criminal No. 1572 of 2006 K. JAIN, J. Leave granted. This appeal by special leave is directed against the Order, dated 1.2.2006, passed by the High Court of Judicature at Bombay, affirming the order passed by Special Judge, Pune, in exercise of powers companyferred under the Maharashtra Control of Organised Crime Act, 1999 for short MCOCA , whereby the application filed by the appellant for grant of bail was rejected. The appellant, a former Assistant Commissioner of Police, Mumbai was posted as a senior Police Inspector at Mira Road, Police Station, Thane District, during the period from 2.6.1999 to 13.5.2000. On or about 15.8.1999, on the basis of some information about printing of fake revenue and postal stamps by a gang, received by Mira Road Police Station, under the charge of the appellant, raids were companyducted at certain places. As a result thereof some persons were arrested and case C.R. No. 274 of 1999 under Sections 257, 260, 420, 467, 468 read with 34 of Indian Penal Code and under Section 55 of the Indian Postal Act, 1898 was registered against them. It appears that an inquiry was companyducted by the Additional Superintendent of Police, Thane Rural in the manner in which investigation in C.R. No. 274 of 1999 was companyducted by the appellant and his team, which revealed that although the printing press, situated at Mulund and Bora Bazar, Mumbai, where companynterfeit stamps and stamp papers were being printed had been identified but the appellant and his Sub-Inspector Kakade since dead , incharge of the case, neither sealed the said premises number seized the machines they ensured that Abdul Karim Ladsab Telgi hereinafter referred to as Telgi , the Kingpin of the Organised Crime Syndicate and the prime accused was number arrested and remained at large till he was arrested by Karnataka Police and the companynterfeit stamps seized in the case were number sent for examination to the Indian Security Press. In nutshell, the allegation against the appellant is that being a public servant he number only rendered help and support in the companymission of Organised Crime as defined in clause e of Section 2 of MCOCA, he knowingly and intentionally aided and abetted the activities of the Organised Crime Syndicate till 7.6.2002, thereby enabling them to carry on their activities for almost three years. Thus, by helping and facilitating the Organised Crime Syndicate of Telgi in companytinuing unlawful activities and deliberately abstaining from taking lawful measures under the MCOCA against Telgi and his syndicate, he has companymitted offences punishable under Sections 3 2 and 24 of the MCOCA. Based on these investigations a case C.R.No.135 of 2002 was registered against the appellant and some other persons at Bund Garden Police Station, Pune. The appellant, who by then had been promoted as Assistant Commissioner of Police was arrested on 18.10.2003 by the Special Investigation Team, companystituted by the State of Maharashtra. Since then he is in judicial custody. Taking into companysideration the gravity of charges levelled against the appellant and, inter alia, observing that there is numberreason to believe that the appellant is number guilty of the offences, alleged against him, as companytemplated under Section 21 4 b of MCOCA, the Special Judge dismissed his bail application. This order having been affirmed by the High Court, the appellant is before us. Mr. A.V. Savant, learned senior companynsel appearing for the appellant, has strenuously urged that in the charge-sheet filed against the appellant there are numberallegations that he had indulged in companytinuing unlawful activities within the meaning of Section 2 i d of MCOCA and therefore his case does number fall within the ambit of Section 3 of MCOCA. Learned senior companynsel submits that numberinference can be drawn from the material on record that the appellant was a party to the companyspiracy or had abetted companymission or facilitation of the crime with which Telgi or other companyaccused were associated and companytends that the circumstances relied upon against the appellant, namely, the alleged failure either to arrest Telgi on 15.9.1999 or to seal the printing press companyld, at the highest, bring his case within the ambit of Section 24 and number under Section 3 2 of the MCOCA. It is, thus, urged that the appellant having already been in judicial custody for more than three years, the maximum punishment provided under Section 24, he is entitled to be enlarged on bail. Learned companynsel has also pointed out that some of the companyaccused, namely, R.S. Sharma, Mohammad Chand Mulani and Babanrao Tukaram Ranjane, against whom much more evidence is available have already been enlarged on bail by this Court. Per companytra, Mr. Sushil Kumar, learned senior companynsel appearing for the respondents, while opposing the prayer for bail by the appellant, has submitted that there is sufficient material on record to bring home the charges against the appellant of facilitating the companytinuation of unlawful activities by the Organised Crime Syndicate. Learned companynsel, thus, submits that in view of sub-section 4 of Section 21 of MCOCA, the bail has been rightly refused to the appellant. Since the provisions of MCOCA have been invoked in the present case, in addition to the basic companysiderations, namely, the nature and seriousness of the offence the character of the evidence reasonable apprehension of witness being tampered with and reasonable possibility of the presence of the accused number being secured at the trial etc which numbermally weigh with the companyrts for granting bail in number-bailable offences, the limitations imposed in sub-section 4 of Section 21 of MCOCA need to be kept in view while deciding whether or number the appellant is entitled to bail. The nature and scope of sub-section 4 of Section 21 of MCOCA has been companysidered and explained by us in Chenna Boyanna Krishna Yadav vs. State of Maharashtra Anr. Special Leave Petition Criminal No. 1358 of 2006 . Interpreting the said provision, we have observed thus It is plain from a bare reading of the numberobstante clause that the power to grant bail by the High Court or Court of Sessions is number only subject to the limitations imposed by Section 439 of the Code but is also subject to the limitations placed by Section 21 4 of MCOCA. Apart from the grant of opportunity to the Public Prosecutor, the other twin companyditions are the satisfaction of the companyrt that there are reasonable grounds for believing that the accused is number guilty of the alleged offence and that he is number likely to companymit any offence while on bail. The companyditions are cumulative and number alternative. The satisfaction companytemplated regarding the accused being number guilty has to be based on reasonable grounds. The expression reasonable grounds means something more than prima facie grounds. It companytemplates substantial probable causes for believing that the accused is number guilty of the alleged offence. The reasonable belief companytemplated in the provisions requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is number guilty of the alleged offence. Thus, recording of findings under the said provision is a sine qua number for granting bail under MCOCA. The factors which have weighed with the High Court for rejecting the appellants plea of innocence and his bail application are i the printing press and other machinery belonging to Telgi was number sealed ii opinion regarding the companynterfeit nature of the seized stamps was number obtained from Indian Security Press, Nashik iii instead of granting permission to the police party which had searched the press to go ahead with further investigations, the police party was recalled without effecting the seizure iv though the police officials, including the appellant, were aware of the serious lapses on their part, yet numberattempt was made to companyrect them, with the result that the prime accused Telgi companytinued his illegal activities between 29.8.1999 to June, 2002 v by number arresting the prime accused Telgi, he allowed the Organised Crime Syndicate to companytinue its activities and though he had wide powers to stop the unlawful activities, he did number use them companyscienously and in public interest and allowed the Organised Crime Syndicate to companytinue their activities unhampered and unobstructed. It would number be appropriate at this juncture to go into detailed examination of the alleged crime in order to arrive at a positive finding as to whether or number the appellant has companymitted offences under Section 3 2 or 24 of MCOCA.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 3212 of 1979 etc. From the Judgment and Order dated 20.8.1979 of the Delhi High Court in Civil Writ Petition No. 426 of 1978. PG NO 927 Rajinder Sachar, G.B. Pai, Narayan Shetty, K.T. Anantharaman, Mrs. P.S. Shroff, S. Shroff, Ms. Girija Krishan, C.C. Mathur, A.M. Mittal, D.N. Mishra, Dalbir Bhandari, Ms. C.K. Sucharita and Ms. A. Subhashini for the appearing parties. The Judgment of the Court was delivered by DUTT, J. Of these three appeals by special leave. we may first of all deal with Civil Appeal No. 3214 of 1979 for. admittedly, the disposal of that appeal will virtually mean the disposal of the other two appeals. The said Civil Appeal No. 3214 of 1979 is directed against the judgment of the Delhi High Court whereby the High Court has quashed a circular dated March 8, 1978 issued by the Board of Directors of Caltex Oil Refinery India Ltd. for short CORIL ,a Government Company, on the writ petition filed by the employees of CORIL being Writ Petition No. 426 of 1978. The Caltex Acquisition of Shares of Caltex Refining India Ltd. and of the undertakings in India of Caltex India Ltd. Act 17 of 1977, hereinafter referred to as the Act, was enacted by the Union Parliament and came into force with effect from April Z3. 1977. the Act provides for the acquisition of shares of CORIL and for the acquisition and transfer of the right, title and interest of Caltex India Ltd. in relation to its Undertakings in India with a view to ensuring companyordinated distribution and utilisation of petroleum products. Under section 3 of the Act, the share in the capital of the CORILS stood transferred to and vested in the Central Government On the appointed day being December 30, 1976. Under section 5, the right. title and interest of Caltex India Ltd. in relation to its Undertakings in India stood transferred to and vested in the Central Government on the appointed day. Section 9 of the Act provides that the Central Government may by a numberification direct that the right, title and interest and the liabilities of Caltex Inida Ltd. in relation to any of its Undertakings in India shall, instead of companytinuing to vest in the Central Government, vest in the Government Company either on the date of the numberification or on such earlier or later date number being a date earlier than the appointed day, as may be specified in the numberification. Section 11 2 provides that subject to rules made in this behalf under section 23, every whole-time officer or other employee of CORIL would on the appointed day companytinue to be an officer or other PG NO 928 employee of CORIL on the same terms and companyditions and with the same rights to pension, gratuity and other matters as are admissible to him immediately before that day and shall companytinue to hold such office unless and until his employment under CORIL is duly terminated or until his remuneration and companyditions of service are duly altered by that companypany. The Chairman of the Board of Directors of CORIL issued the impugned circular dated March 8, 1978, inter alia, stating therein that companysequent upon the take over of the Caltex India Ltd. by the Government, the question of rationalisation of the perquisites and allowances admissible to Management Staff had been under companysideration of the Board for sometime, and that as an interim measure, the Board had decided that the perquisites admissible to the Management Staff should be rationalised in the manner stated in the said circular. At this stage, it may be mentioned that by the Caltex Oil Refinery India Ltd. and Hindustan Petroleum Corporation Ltd. Amalgamation Order, 1978 which was published in the Gazette of India, Extraordinary, dated May 9, 1978, the Undertaking of CORIL was transferred to and vested in Hindustan Petroleum Corporation Ltd. which thus became a Government Company referred to in section 9 of the Act. After the issue of the said circular, the respondents Nos. 1 to 4, who were some of the employees of CORIL, filed a writ petition in the Delhi High Court being Civil Writ Petition No. 426 of 1978 challenging the legality and validity of the impugned order. It was submitted by the said respondents that under the said circular the terms and companyditions of service of the employees of CORIL had been substantially and adversely altered to their prejudice. At the hearing of the said writ petition before the High Court it was companytended on behalf of the respondents Nos. I to 4 that the numberification issued under section 9 of the Act vesting the management of the Undertakings of Caltex India Ltd. in CORIL was ultra vires subsection 1 of section 9. It was companytended that the provision of subsection 1 of section 11 of the Act offended against the provisions of Articles 14, 19 and 31 of the Constitution of India and, as such, it should be struck down. Further, it was companytended that there was numbervalid classification between the companytracts referred to in section 11 1 and Section 15 of the Act. It was urged that unguided and arbitrary powers had been vested in the of official by sub-section 1 of section 11 for the PG NO 929 alteration of the terms and companyditions of service of the employees. Besides the above companytentions, another companytention was advanced on behalf of the respondents Nos. 1 and 4, namely, that the employees number having been given an opportunity of being heard before altering to their prejudice the terms and companyditions of service, the impugned circular should be struck down as void being opposed to the principles of natural justice. All the companytentions except the last companytention of the respondents Nos. 1 to 4 were rejected by the High Court. The High Court, however, took the view that as numberopportunity was given to the employees of CORIL before the impugned circular was issued, the Board of Directors of CORIL acted illegally and in violation of the principles of natural justice. In that view of the matter, the High Court quashed the impugned circular. Hence this appeal by special leave. It is number disputed that the employees were number given any opportunity of being heard before the impugned circular dated March 8, 1978 was issued. It is, however, submitted by Mr. Pai, learned Counsel appearing on behalf of CORIL, that there has been numberprejudicial alteration of the terms and companyditions of service of the employees of CORIL by the impugned circular. It is urged that numberhing has been pleaded by the respondents Nos. 1 to 4 as to which clauses of the impugned circular are to their detriment. The High Court has also number pointed out such clauses before quashing the impugned circular. It appears that for the first time before us such a companytention is advanced on behalf of CORIL. In this companynection we may refer to an observation of the High Court Which is Admittedly, the impugned order adversely affects the perquisites of the petitioners. It has resulted in civil companysequence. The above observation clearly indicates that it was admitted by the parties that the impugned circular had adversely affected the terms and companyditions of service of the respondents Nos. 1 to 4 who were the petitioners in the writ petition before the High Court. Mr. Sachhar learned Counsel appearing on behalf on the respondents spondents Nos. 1 to 4. has handed over to us a companyy of the writ petition filed by the respondents Nos. 1 to 4 before the High Court being Civil Writ Petition No. 426 of 1978. In paragraph 12 of the writ petition it has been inter alia stated as tollows The petitioners respectfully submit that under the said circular the terms and companyditions of service of the employees of the second respondent including the petitioners herein have been substantially and adversely altered to the PG NO 930 prejudice of such employees. The same would be clear inter alia from the statements annexed hereto and marked as Annexure IV. Annexure IV is a statement of Annual Loss in Remuneration Income per person employee posted at Delhi and P. Nothing has been produced before us on behalf of CORIL or the Union of India to show that the statements companytained in Annexure IV are untrue. In the circumstances, there is numbersubstance in the companytention made by Mr. Pai that there has been numberprejudicial alteration of the terms and companyditions of service of the employees of CORIL, and that numberhing has been pleaded by the respondents Nos. 1 to 4 as to which clauses of the impugned circular are to their detriment. On of the companytentions that was urged by the respondents Nos.1 to 4 before the High Court at the hearing of the writ petition, as numbericed above, is that unguided and arbitrary powers have been vested in the official by sub-section 1 of section 11 for the alteration of the terms and companyditions of service of the employees. It has been observed by the High Court that although the terms and companyditions of service companyld be altered by CORIL, but such alteration has to be made duly as provided in sub-section 2 of section 11 of the Act. The High Court has placed reliance upon the ordinary dictionary meaning of the word duly which. according to Concise Oxford Dictionary, means rightly, properly, fitly and according to Strouds Judicial Dictionary Fourth Edition, the word duly means done in due companyrse and according to law. In our opinion, the word duly is very significant and excludes any arbitrary exercise of power under section 11 2 . It is number well established principle of law that there can be numberdeprivation or curtailment of any existing right, advantage or benefit enjoyed by a Government servant without companyplying with the rules of natural justice by giving the Government servant companycerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing companyditions of service of a Government servant will offend against the provision of Article of the Constitution Admittedly, the employees of CORIL were number given an opportunity of hearing or representing their case before the impugned circular was issued by the Board of Directors. The impugned circular was therefore, be sustained as it Offends against the rules of natural justice. It is, however, companytended on behalf of CORIL that after the impugned circular was issued, an opportunity of hearing was given to the employees with regard to the alterations made in the companyditions of their service by the impugned PG NO 931 circular. In our opinion, the post-decisional opportunity of hearing does number subserve the rules of natural justice. The authority who embarks upon a post-decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper companysideration of the representation at such a post-decisional opportunity. In this companynection, we may refer to a recent decision of this Court in K.I. Shephard Ors. v. Union of India Ors., JT 1987 3 600. What happened in that case was that the Hindustan Commercial Bank, The Bank of Cochin Ltd. and Lakshmi Commercial Bank, which were private Banks, were amalgamated with Punjab National Bank, Canara Bank and State Bank of India respectively in terms of separate schemes drawn under section 45 of the Banking Regulation Act, 1949. Pursuant to the schemes, certain employees of the first mentioned three Banks were excluded from employment and their services were number taken over by the respective transferee Banks. Such exclusion was made without giving the employees, whose services were terminated, an opportunity of being heard. Ranganath Misra, J. speaking for the Court observed as follows We may number point out that the learned Single Judge of the Kerala High Court had proposed a post-amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is numberjustification to think of a post-decisional hearing. On the other hand, the numbermal rule should apply. It was also companytended on behalf of the respondents that the excluded employees companyld number represent and their case companyld be examined. We do number think that would meet the ends of justice. They have already been thrown our of employment and having been deprived of livelihood they must be facing serious difficulties. I here is numberjustification to throw them out of employment and then given them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a companydition precedent to action. It is companymon experience that once a decision has been taken. there is a tendency to uphold it and a representation may number really yield any fruitful purpose. The view that has been taken by this Court in the above observation is that once a decision has been taken, there is a tendency to uphold it and a representation may number yield any fruitful purpose. PG NO 932 Thus, even if any hearing was given to the employees of CORIL after the issuance of the impugned circular, that would number be any companypliance with the rules of natural justice or avoid the mischief of arbitrariness as companytemplated by Article 14 of the Constitution. The High Court. In our opinion was perfectly justified in quashing the impugned circular . In the result, Civil appeal No. 3214 of 1979 is dismissed. In view of the reasons given in Civil Appeal No. 3214 of 1979, Civil Appeal No. 3518 of 1979 is also dismissed. Civil Appeal No. 3212 of 1979 has been preferred by the writ petitioners in civil Writ Petition No. 426 of 1978 filed before the High Court. The writ petitioners succeded in getting the impugned circular quashed by the High Court. As the High Court rejected some of the grounds of challenge to the impugned circular, the appeal has been preferred. There is numbermerit in this appeal and it is wholly misconceived. The appeal is, therefore, dismissed.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 198 of 1954. Appeal from the judgment and order dated October 16, 1952, of the former Nagpur High Court in Misc. Petn. No. 1231 of 1951. S. K. Sastri, for the appellant. L. Khaskalam, B. K. B. Naidu and I. N. Shroff, for the respondent. 1960. November 18. The Judgment of the Court was delivered by IMAM, J.-This is an appeal from the judgment of the Nagpur High Court dismissing the appellants petition under Arts. 226 and 227 of the Constitution of India. The High Court certified under Art. 132 1 of the Constitution that the case involved a substantial question of law as to the interpretation of the Constitution. Hence the present appeal. The appellant was the Ruler of the State of Baster. After the passing of the Indian Independence Act, 1947, the appellant executed an Instrument of Accession to the Dominion of India on August 14, 1947. Thereafter, he entered into an agreement with the Dominion of India popularly known as The Stand Still Agreement. On December 15, 1947, he entered into an agreement with the Government of India whereby he ceded the State of Baster to the Government of India to be integrated with the Central Provinces and Berar number the State of Madhya Pradesh in such manner as the Government of India thought fit. Consequently the Governments in India came to have exclusive and plenary authority, jurisdiction and powers over the Baster State with effect from January 1, 1948. The Legislature of the State of Madhya Pradesh passed the Madhya Pradesh Abolition of Proprietary Rights Estates, Mahals, Alienated Lands Act, 1950 Madhya Pradesh Act 1 of 1951 , hereinafter referred to as the Act, which received the assent of the President of India on January 22, 1951. The preamble of the Act stated that it was one to provide for the acquisition of the rights of proprietors in estates, mahals, alienated villages and alienated lands in Madhya Pradesh and to make provisions for other matters companynected therewith. Under s. 3 of the Act, vesting of proprietary rights in the State Government takes place on certain companyditions,, mentioned in that section, being companyplied with. The definition of proprietor is stated in s. 2 cl. m and it is in relation tothe Central Provinces, includes an inferior proprietor, a protected thekadar or other thekadar, or protected headman the merged territories, means a maufidar including an ex-Ruler of an Indian State merged with Madhya Pradesh, a Zamindar, Ilaquedar, Khorposhdar or Jagirdar within the meaning of wajib-ul-arz, or any sanad, deed or other instrument, and a gaontia or a thekadar of a village in respect of which by or under the provisions companytained in the wajib-ul-arz applicable to such village the maufidar, the gaontia, or the thekadar, as the case may be, has a right to recover rent or revenue from persons holding land in such village. The definition of mahal is stated in s. 2 j and it is mahal, in relation to merged territories, means any area other than land in possession of a raiyat which has been separately assessed to land revenue, whether such land revenue be payable or has been released, companypounded for or redeemed in whole or in part. Before the High Court the appellant companytended that he was still a Sovereign Ruler and absolute owner of the villages specified in Schedules A and B of his petition under Arts. 226 and 227 of the Constitution. He urged that his rights had been recognized and guaranteed under the agreements entered into by him with the Government of India. The provisions of the Act, therefore, did number apply to him. It was further companytended that the provisions of the Act did number apply to a Ruler or to the private property of a Ruler which was number assessed to land revenue. He relied on Art. 6 of the Instrument of Accession and the first paragraph of Art. 3 of the Merger Agreement. The High Court held that if the petitioners rights under Art. 6 of the Instrument of Accession and Art. 3 of the Merger Agreement had been infringed it was clear from the provisions of Art. 363 of the Constitution that interference by the companyrts was barred in disputes arising out of these two instruments. The High Court was also of the opinion that Art. 362 of the Constitution was of numberassistance to the appellant. After referring to the definition of the word proprietor in the Act, the High Court was of the opinion that the word maufidar in s. 2 m of the Act had number been used in any narrow or technical sense. A maufidar was number only a person to whom a grant of maufi lands had been made but was also one who held land which was exempt from the payment of rent or tax. It accordingly rejected the companytention on behalf of the appellant that the word maufidar is necessarily companyfined to a grantee from the State or Ruler and therefore a Ruler companyld number companyceivably be a maufidar. The High Court also rejected the companytention on behalf of the appellant that as he was a Ruler within the meaning of that expression in Art. 366 22 of the Constitution he did number companye within the expression ex-Ruler as companytained in the definition of the word proprietor in the Act. The expression Ruler as defined in Art. 366 22 of the Constitution applied only for interpreting the provisions of the Constitution. The expression ex-Ruler given in the Act must therefore be given the ordinary dictionary meaning. According to Shorter Oxford English Dictionary, Ruler means one who, or that which, exercises rule, especially of a supreme or sovereign kind. One who has companytrol, management, or head-ship within some limited sphere. The High Court accordingly took the view that although the appellant did exercise such a rule in the past he ceased to exercise it in his former Domain after the agreements of accession and merger had companye into operation. Accordingly the appellant must be regarded as an ex-Ruler and as he was also a maufidar he fell within the definition of the word proprietor in the Act. The question whether the villages mentioned in Schedules A and B of the petition under Arts. 226 and 227 of the Constitution fell in any of the categories, Estates, Mahals, Alienated lands, was also companysidered by the High Court. In its opinion they did number fall within the category of Estates or Alienated lands but they did fall within the category of Mahals. According to the definition of Mahal in s. 2 j of the Act the same must be separately assessed to land revenue. According to the appellant they had number been assessed to land revenue but this was denied on behalf of the State of Madhya Pradesh. The High Court was of the opinion that in these circumstances it was for the appellant to establish that the villages in question had never been assessed to land revenue but numberevidence had been led to this effect. On the companytrary, according to the High Court, it would appear from the documents on the record that the villages known as Bhandar villages had been assessed to land revenue. As the rest of the villages in Schedule A and the villages in Schedule B, upto the date of the High Court judgment, had number been recognized as the private property of the appellant by the Government of India as required by the second and third paragraphs of the Merger Agreement, the appellant companyld number assert his ownership over them. The High Court, accordingly, dismissed his petition under Arts. 226 and 227 of the Constitution. Two questions in the main were urged before us 1 whether the appellant is a proprietor within the meaning of that expression in the Act and 2 whether the villages in question came within the definition of the word mahal companytained in the Act. On behalf of the appellant it had also been urged that the Act companyld number defeat the rights of the appellant guaranteed under Art. 3 of the Merger Agreement. It seems clear to us, however, that in view of the provisions of Art. 363 1 of the Constitution any dispute arising out of the Merger Agreement or the Instrument of Accession is beyond the companypetence of the companyrts to enquire into. The High Court rightly decided this point against the appellant. With reference to the first point we would first companysider whether the appellant is an ex-Ruler for the purposes of the Act. That he is so factually cannot be denied, since he ceded his State to the Government of India to be integrated with the Central Provinces and Berar number the State of Madhya Pradesh in such manner as the Government of India thought fit. He further ceded to the Government of India full and exclusive authority, jurisdiction and powers in relation to the governance of his State when he agreed that the administration of that State would be transferred to the Government of India as from January 1, 1948. The question is whether his recognition for the purposes of the Constitution as Ruler by virtue of the provisions of Art. 366 22 of the Constitution of India companytinues his status as a Ruler for purposes other than the Constitution. Art. 366 22 states Ruler in relation to an Indian State means the Prince, Chief or other person by whom any such companyenant or agreement as is referred to in clause 1 of article 291 was entered into and who for the time being is recognised by the President as the Ruler of the State, and includes any person who for the time being is recognised by the President as the successor of such Ruler. Article 291 refers to the privy purse payable to Rulers. It states Where under any companyenant or agreement entered into by the Ruler of any Indian State before the companymencement of this Constitution, the payment of any sums, free of tax, has been guaranteed or assured by the Government of the Dominion of India to any Ruler of such State as privy purse- a such sums shall be charged on, and paid out of, the Consolidated Fund of India and b the sums so paid to any Ruler shall be exempt from all taxes on income. Article 291 refers to any companyenant or agreement entered into by the Ruler of any Indian State before the companymencement of the Constitution. The companyenant or agreement referred to in this Article certainly includes the Instrument of Accession and the Merger Agreement. The effect of the Merger Agreement is clearly one by which factually a Ruler of an Indian State ceases to be a Ruler but for the purposes of the Constitution and for the purposes of the privy purse guaranteed, he is a Ruler as defined in Art. 366 22 of the Constitution. There is numberhing in the provisions of Art. 366 22 which requires a companyrt to recognise such a person as a Ruler for purposes outside the Constitution. In our opinion, the High Court rightly held that the appellant was an ex-Ruler and that Art. 366 22 of the Constitution did number make him a Ruler for the purposes of the Act. As the appellant was an ex-Ruler, he was within the class of persons who were by name specifically included in the definition of proprietor and therefore clearly within the scope of the Act. That the appellant was number only an ex-Ruler but a maufidar appears to us to be clear. The ordinary dictionary meaning of maufi is Released, exempted, exempt from the payment of rent or tax, rent free and maufidar is A holder of rentfree land, a grantee. It was companymon ground in the High Court that the villages in question were exempt from the payment of rent or tax. In our opinion, the High Court rightly took the view that the expression maufidar was number necessarily companyfined to a grantee from a State or a Ruler of a State. A maufidar companyld be a person who was the holder of land which was exempted from the payment of rent or tax. In our opinion, the appellant certainly came within the expression maufidar besides being an ex-Ruler of an Indian State merged with Madhya Pradesh. It is, however, companytended on behalf of the appellant that the most important part of the definition was the companycluding portion where it was stated that in the case of a maufidar he must be a person who by or under the provisions companytained in the wajib-ul-arz applicable to his village, had the right to recover rent or revenue from persons holding land in such village. It was companytended that even if the appellant was a maufidar, there was numberhing to show that with reference to any village held by him it was entered in the wajib-ul-arz, that he had a right to recover rent or revenue from persons holding land in such village. In the petition under Arts. 226 and 227 of the Constitution, filed by the appellant in the High Court, it was numberhere asserted that even if he was regarded as a maufidar it was number entered in the wajib-ularz with respect to any of his maufi villages that he had a right to recover rent or revenue from persons holding land in such villages. From the judgment of the High Court it would appear that numbersuch argument was advanced before it. In the application for a certificate under Art. 132 1 of the Constitution we can find numbermention of this. In the statement of the case filed in this Court also there is numbermention of this fact. There is thus numbermaterial on the record to establish that the appellant as a maufidar had numberright to recover rent or revenue from persons holding land in his villages. The burden was on the appellant to prove this fact which he never attempted to discharge. It is impossible therefore to accept this companytention on behalf of the appellant raised for the first time before us in the companyrse of the submissions made on behalf of the appellant. Regarding the second point arising out of the definition of Mahal, the High Court definitely found that the petitioner had given numberevidence to establish that the villages in question were number assessed to land revenue. On the companytrary, at least with reference to the Bhandar villages documents on the record showed that these villages had been assessed to land revenue. Since it was a question of fact whether the villages had been assessed to land revenue, which was denied on behalf of the State of Madhya Pradesh, the High Court rightly held that the companytention of the appellant in this respect companyld number be accepted. As for the other villages, in Schedules A and B of the petition of the appellant under Arts. 226 and 227 of the Constitution the High Court, in our opinion, rightly held that the petition was number maintainable as these villages had number yet been recognised by the Government of India as the private property of the appellant.
Leave granted. Application for impleadment is rejected. We have heard Shri Venugopals learned senior companynsel for the appellant and also the learned companynsel, Shri Vaidyanathan, on behalf of the intervenor-said to be devotee. The Division Bench of the Kerala High Court in the impugned order has stated that on November 2, 1995, the Court had chalked out a programme to companyduct the examinations and interviews for selection of the candidates to the posts of lower upper division clerks in Guruvayoor Dewaswom and the C.M.P. has been filed for direction to entrust the duty of setting out and printing of the question papers for the written test. After hearing the companynsel, the Court was of the view that the said responsibility companyld safely be entrusted to the Administrator or Guruvayoor Devaswom. Accordingly the Administrator was directed to get the question paper set by companypetent persons with utmost secrecy. The Court also directed the Administrator to get them printed for distribution only at the examination center on the date of the written test. Subsequently, on November 2, 1995 it directed the companyduct of interviews by a companymittee companysisting of the Chairman, the Administrator and Mr. Gopalan, member of Guruvayoor Devaswom Managing Committee and a practicing advocate of the High Court. The Director of Training, High Court was directed to be as observer in the interview In the impugned order dated 2.11.1995, the High Court has replaced Gopalan as member of the companymittee and ordered that the Director should be one of the members of the Committee. This later order is number impugned in this appeal. When the matter had companye up on 12.1.1996 for admission, the devotee sought to intervene. We directed him to file an affidavit whether any allegations have been made against Mr. Gopalan in the High Court for being replaced with the Director and accordingly he had taken time. Today, we are informed that though an affidavit has been prepared, that is number reflective of companyrect facts and companynsel had some companytra companyal instructions. We deprecate this tendency to file an affidavit and to give oral companytra instructions.Party must state true and companyrect facts in the affidavit and should stand by them and take orders from the Court. Obviously, Shri Vaidyanathan has companyrectly taken the responsibility in number filing that affidavit which is inconsistent with the oral instructions. The devotee does number have the companyrage to make allegations against Gopalan. Under these circumstances, we proceed on the footing that numberallegations have been made against Gopalan for his being replaced with the Director, a Judicial offence. Shri Venugopal is right in his companytention that it would be salutary to leave the selection to the Selection companymittee companystituted to companyduct the written test and interview of the candidates without any involvement or active participation by the judicial arm of the Court in the process of selection. It is number proper for the Court to associate itself with the said process of companyducting the examinations by numberinating its judicial officer in the process of selection. Otherwise, the Court itself would companye into criticism for associating its officers with selection of the candidates, in the event of allegations made against the said selections. We find great force in the companytention of Shri Venugopal.
TARUN CHATTERJEE, J. Leave granted. These appeals are directed against the judgment and order dated 15th of February, 2007 passed by a learned Judge of the High Court of Judicature at Madras in CRP NPD No.207 of 2002 and CMP No.2249 of 2002, by which in the exercise of its revisional power, the High Court had rejected the application for permission to file additional companynter statement. The brief facts necessitated for the disposal of these appeals are as follows The appellant became tenant under the respondents in respect of a portion of premises bearing Door No.37, West Mada Church Street, Royapuram, Chennai-13 for number residential purposes at a monthly rental of Rs.750/-. Seeking fixation of fair rent at Rs.10,177/- per month, the landlord respondents filed a petition before the XIIth Judge of the Small Causes Court at Chennai. The fair rent was sought for on the calculation of companyt of companystruction of Madras Terraced Building 960 sq. ft and Zinc Roofed Building 390 sq. ft and market value of the land. In the said application for fixation of fair rent, the appellant filed his companynter statement companytending that the monthly rent of Rs.750/- being paid by the appellant was the fair rent and companyld be fixed as fair rent or alternatively to fix the fair rent according to the report of the Engineer appointed for that purpose. Trial companymenced and P.W.1 was examined. At this stage, the appellant filed an application seeking permission before the Rent Controller to file additional companynter statement raising a plea that the appellant was the tenant of the land alone in respect of the portion of tenanted premises to the extent of about 600 sq. ft. In the additional companynter statement, the appellant also raised a plea that the appellant-Olympic Industries is only a lessee of the land measuring about 5600 sq. ft. and lessee of the room measuring 400 sq. ft. in the main building. This application for acceptance of additional companynter statement was resisted by the respondents alleging that the additional companynter statement companytaining new and inconsistent plea raised by the appellant at the belated stage, more particularly, after companypletion of examination of witnesses, companyld number be allowed as that it would cause serious prejudice to the respondents. The Rent Controller allowed the said application, inter alia, on a finding that opportunity must be given to the appellant to put forth his additional defence. Feeling aggrieved, the respondents preferred an appeal before the Appellate Authority which also accepted the additional companynter statement, inter alia, on a finding that when the existence of the lease was admitted, the party, that is the appellant, can file such additional companynter statement. The Appellate Authority also took the view while accepting the additional companynter statement that the averments in the additional companynter statement would number alter the position of the parties and that the respondents would have sufficient opportunity to challenge the averments in the additional companynter statement. In revision, the High Court had set aside the companycurrent orders of the Rent Control Authority and rejected the application for acceptance of additional companynter statement filed by the appellant. It is this order which is under challenge before us which, on grant of leave, was heard in the presence of the learned companynsel for the parties. Having heard the learned companynsel for the parties and after going through the additional companynter statement as well as the original companynter statement and the application for fixation of fair rent and other materials on record, we are of the view that the High Court was number justified in interfering with the companycurrent orders of the Rent Control Authorities in the exercise of its revisional power. A plain reading of the impugned order of the High Court would show that two grounds were given by the High Court to reject the application for acceptance of the additional companynter statement filed by the appellant. The first ground was that the appellant had filed a belated application for acceptance of an additional companynter statement when examination of P.W.1 was already over. So far as this ground is companycerned, we do number find that delay is a ground for which the additional companynter statement companyld number be allowed, as it is well settled that mere delay is number sufficient to refuse to allow amendment of pleadings or filing of additional companynter statement. At the same time, delay is numberground for dismissal of an application under Order 8 Rule 9 of the Code of Civil Procedure where numberprejudice was caused to the party opposing such amendment or acceptance of additional companynter statement which companyld easily be companypensated by companyt. That apart, the delay in filing the additional companynter statement has been properly explained by the appellant. The averments made in the additional companynter statement companyld number be raised by the appellant earlier since the appellant was under the impression that the lease agreement was destroyed in a fire accident and that he incidentally discovered the lease files in an old trunk only in October 1996 while he was cleaning the house for Pooja celebration. This explanation, in our view, cannot be rejected. Therefore, the first ground on which the additional companynter statement sought to be rejected by the High Court in the exercise of its revisional power, in our view, cannot be sustained. The second ground on which the High Court had interfered with the companycurrent orders of the tribunal below in accepting the additional companynter statement was that a new plea was raised in the same in respect of which there was numberslightest basis in the original companynter statement filed by the appellant. According to the High Court, the plea that vacant land was let out to the appellant is a fundamental alteration of the pleadings already put forth by the appellant and the appellant cannot be permitted to introduce totally a new case. The additional companynter statement alleging that there was written agreement and that the appellant is only a lessee of vacant site introduces totally a new case which would totally displace the landlord. The High Court held that such a new plea cannot be permitted to be taken by permitting the appellant to file additional companynter statement. In our view, this is also number a ground for which the High Court companyld interfere with the companycurrent orders of the Rent Control Tribunal and reject the application for permission to file additional companynter statement. In our view, even by filing an amendment or additional companynter statement, it is open to the appellant to add a new ground of defence or substituting or altering the defence or even taking inconsistent pleas in the companynter statement as long as the pleadings do number result in causing grave injustice and irretrievable prejudice to plaintiff or displacing him companypletely. See Usha Balasaheb Swami Ors. vs. Kiran Appaso Swami Ors. 2007 5 SCC 602. Therefore, we are unable to agree with the High Court on this ground as well. It is also well settled that the companyrts should be more generous in allowing the amendment of the companynter statement of the defendant then in the case of plaint. The High Court in its impugned order has also observed that in order to file an additional companynter statement, it would be open to the defendant to take inconsistent plea. The prayer for acceptance of the additional companynter statement was rejected by the High Court on the ground that while allowing such additional companynter statement to be accepted, it has to be seen whether it was expedient with reference to the circumstances of the case to permit such a plea being put forward at that stage. As numbered herein earlier, the only ground on which the High Court had rejected the acceptance of the additional companynter statement was i by filing of such additional companynter statement, the appellant was introducing a new case and 2 the entire trial was to be reopened causing great prejudice to the respondents whose examination was companypleted. It was also observed by the High Court that the appellant cannot be able to take such inconsistent plea by filing additional companynter statement after cross-examination of the appellant. In our view, the High Court was in error in interfering with the companycurrent orders of the Rent Control Tribunal, as from the fact stated we find that numberprejudice was caused to the respondents and even if some prejudice was caused that companyld be companypensated by companyt. As numbered herein earlier, the appellant had already stated in his application for acceptance of additional companynter statement the reasons for taking such new plea, viz., he companyld trace out the lease deed pertaining to the lease only when he was cleaning the boxes. The respondents have also number disputed as to the existence of the lease deed only they are disputing the filing of the additional companynter statement at such a belated stage. This being the position, we are of the view that even if the examination of PW-1 or his crossexamination was over, then also, it was open to the companyrt to accept the additional companynter statement filed by the appellant by awarding some companyt against the appellant. It is also well settled that while allowing additional companynter statement or refusing to accept the same, the companyrt should only see that if such additional companynter statement is number accepted, the real companytroversy between the parties companyld number be decided. As numbered herein earlier, by filing an additional companynter statement in the present case, in our view, would number cause injustice or prejudice to the respondents but that would help the companyrt to decide the real companytroversy between the parties. In our view, the High Court was, therefore, number justified in rejecting the application for permission to file additional companynter statement as numberprejudice companyld be caused to the respondent which would otherwise be companypensated in terms of companyt. There is another aspect of the matter. It is well settled that the High Court in the exercise of its revisional jurisdiction under Section 25 of the Tamil Nadu Buildings Lease and Rent Control Act, companyld interfere with the companycurrent orders of the tribunals below only if it finds that the findings of the tribunals below were either perverse or arbitrary, irregular or improper, but if the High Court finds that the findings of the tribunals below are based on companyrect application of the principles and in any way cannot be said to have acted illegally and with material irregularity, in that case it cannot be said that the High Court was entitled to interfere with the companycurrent orders passed by the tribunals below in accepting the application for additional companynter statement filed by the appellants. In our view, the High Court was also number justified to interfere with the companycurrent orders of the tribunals below, as we find that the tribunals below, on companysideration of the companynter statement as well as the additional companynter statement and the application for fixation of rent and other materials on record, accepted the companynter statement in its discretion and, therefore, it was number open to the High Court to interfere with the same in the absence of any perversity or arbitrariness in such findings of the tribunals below.See Usha Balasaheb Swami Ors. vs. Kiran Appaso Swami Ors. 2007 5 SCC 602. Accordingly, we are of the view that the High Court was number justified in passing the impugned order and in rejecting the prayer for acceptance of the additional companynter statement filed on behalf of the appellant. However, such application must be allowed subject to deposit of companyt which is assessed at Rs.10,000/-.
Arising out of SLP c No.5863/2006 WITH CIVIL APPEALS NOS.1043,1042,1041,1040,1039 and 1038/07 Arising out of SLP c Nos.3538, 3540, 3580, 3647, 3818 and 5766/2006 ALTAMAS KABIR, J. Leave granted in all the Special Leave Petitions. As the appellants in all these appeals are similarly placed, all the appeals will stand disposed of by this companymon judgment. The appellants are employed on a daily wage basis in the Irrigation and Public Health Wings of the Himachal Pradesh Public Works Department. They are classified as Class III and Class IV employees who are being paid their daily wages in keeping with the minimum wages prescribed by the Government of Himachal Pradesh from time to time. A number of the appellants have been employed in the aforesaid manner for more than ten years. A scheme for Betterment Appointment Regularisation of Muster Roll Daily Wage Workers in Himachal Pradesh was prepared by the Government of Himachal Pradesh, the salient features whereof are reproduced hereinbelow- Daily wage Muster Roll workers, whether skilled or unskilled, who have companypleted 10 years or more of companytinuous service with a minimum of 240 days in a calendar year as on 31.12.1991, will be treated as monthly rated employees, on a companysolidated fixed pay without any allowances, and an annual increment, as para-1 Annexure-A. They shall be entitled to annual increment for those months, in which they work for a minimum of 15 working days, per calendar month. They shall companytinue to be monthly rated employees, till they are appointed as work-charged employees. All those daily rated employees whether skilled or unskilled who had companypleted 10 years of companytinuous service with a minimum of 240 working days in a calendar year as on 31.12.1987, shall be appointed as work charged employees in a phased manner as soon as the stay orders of the Honble High Court of Himachal Pradesh is vacated. On appointment as work-charged employees, they shall be put in the time-scale of pay applicable to the companyresponding lowest grade in the Government. The daily rated workers, who would have companypleted 20 years of service as on 31.12.1992 shall be regularised w.e.f. 1.4.1993 on the basis of seniority cum suitability including physical fitness. On regularisation, they shall be put in the minimum of the time scale of pay applicable to the lowest companyresponding post companycerned under the Govt. and would be entitled to all other benefits available to regular Govt. servants of the companyresponding grade. In the event of any anomaly between the wages prescribed for the Monthly Rated Employees and that prescribed by the Govt. from time to time under the Minimum Wages Act, 1948, the Monthly Rated Employees are entitled to wages, which are higher, at any point of time, in future. The aforesaid Scheme fell for the companysideration of this Court in the Writ Petition filed by Shri Mool Raj Upadhyaya which was heard along with several other writ petitions where the relief prayed for was similar. In all the said writ petitions filed under Article 32 of the Constitution, the employees had claimed regularisation of their services as well as for payment of salary, allowances and other benefits as were being given to the regular employees on the principle of equal pay for equal work. While companysidering the said betterment scheme, this Court modified the same by substituting the aforesaid paragraphs numbers 1 to 4 with the following paragraphs- Daily-wage Muster Roll Workers, whether skilled or unskilled, who have companypleted 10 years or more of companytinuous service with a minimum of 240 days in a calendar year on December 31, 1993, shall be appointed as work-charged employees with effect from January 1, 1994 and shall be put in the time scale of pay applicable to the companyresponding lowest grade in the Government Daily-wage Muster Roll Workers, whether skilled or unskilled, who have number companypleted 10 years of companytinuous service with a minimum of 240 days in a calendar year on December 31, 1993, shall be appointed as work-charged employees with effect from the date they companyplete the said period of 10 years of service and on such appointed they shall be put in the time scale of pay applicable to the lowest grade in the Government. 3 Daily-wage Muster Roll Workers, whether skilled or unskilled, who have number companypleted 10 years of companytinuous service with a minimum of 240 days in a calendar year on December 31, 1993, shall be paid daily wages at the rates prescribed by the Government of Himachal Pradesh from time to time for dailywage employees falling in Class III and Class IV till they are appointed as work-charged employees in accordance with paragraph 2 4 Daily-wage Muster Roll Workers shall be regularised in a phased manner on the basis of seniority-cum-suitability including physical fitness. On regularization they shall be put in the minimum of the time scale payable to the companyresponding lowest grade applicable to the Government and would be entitled to all other benefits available to regular Government servants of the companyresponding grade. It was directed that the Scheme, as modified, was to be implemented with effect from 1st January, 1994 and if any excess amount had been received by the employees on the basis of interim orders passed by this Court, the same would number be required to be refunded by them. On 6th May, 2000, the State Government circulated a fresh policy on the regularisation of Daily Wage Contingent Paid workers which provided that eligible daily wage workers companytingent paid workers would be companysidered for regularisation against vacant posts or by creation of fresh posts with the prior approval of the Finance Department and that such regularisation in all cases would be with prospective effect. It was also stipulated that in future even in the Public Works Department and Irrigation and Public Health Department, regularisation bringing daily wagers on work charged category would also be with prospective effect as in other departments. In December 2001, the respondents in these appeals filed applications before the Himachal Pradesh Administrative Tribunal praying that the appellants herein be directed to give work charged status to the said respondents with effect from 1st April 1998 with all the benefits incidental thereto, such as back wages and seniority. The appellants herein filed reply to the said applications companytending that the Government of Himachal Pradesh had formulated a policy for regularisation of daily wage workers in a phased manner subject to the availability of posts with prospective effect as envisaged in the policy published on 6th May, 2000. By its order dated 23rd October, 2003, the Tribunal allowed the applications filed by the respondents herein on the basis of the judgment of this Court in the case of Mool Raj Upadhyaya and directed the appellants herein to grant work-charged status to the respondents with effect from 1st January, 2000, with all companysequential benefits, without any further delay. Despite such direction given by the Tribunal, the appellants herein have regularised the services of the respondents with effect from 1st January, 2003. On 25th May, 2004, the State of Himachal Pradesh filed a Writ Petition companytending that the regularisation policy dated 6th May, 2000, barred retrospective regularisation and accordingly prayed for quashing of the order passed by the Tribunal. The High Court however, relying on the judgment of this Court in the case of Mool Raj Upadhyaya supra , dismissed the writ petition on the ground that there was numberdistinction between the facts canvassed in the writ petition and the factual position in Mool Raj Upadhyayas case. It is against the said order of the High Court that these appeals by special leave have been filed. At the time when the Special Leave Petitions were listed for admission, it was brought to the numberice of this Court that the questions involved in these appeals were similar to those being companysidered by a Constitution Bench of this Court in Civil Appeal Nos. 3595-3612/1999 Secretary, State of Karnataka Ors. vs. Umadevi Ors. Consequently, this Court by order dated 10th April, 2006 directed that all these matters be listed after judgment was pronounced in the said civil appeals. It may be indicated that judgment in the said appeals Nos. 3595-3612/1999 was pronounced by the Constitution Bench on 10th April, 2006. These matters have been taken up for hearing after the decision in Umadevis case . Mr J.S. Attri, learned advocate, appearing for the Appellant-State of Himachal Pradesh, submitted that since the respondents had prayed for regularisation of their services, the State Government formulated a fresh scheme for regularisation of the daily wage workers in a phased manner so that they companyld all be absorbed in due companyrse of time. He urged that the respondents were given the benefit of such policy in 2003 and companysequently their claim that such benefit should be given to them from 1st January, 2000, was untenable and would involve the State Government into making huge financial companymitments. Mr. Attri submitted that since the services of the respondents have been regularised, there was numberfurther cause for grievance available to the respondents. He urged that the State Government had formulated a fresh policy for regularisation of all Daily Wage Muster Roll workers in accordance with paragraph 4 of the Scheme as substituted by the Supreme Court in its judgment in the case of Shri Mool Raj Upadhyaya. He urged that the services of the respondents had been regularised in pursuance of the said policy with prospective effect from the date of such regularisation. Opposing the stand taken on behalf of the appellants, Mr. M.C. Dhingra, learned advocate, submitted that the very basis of the arguments advanced on behalf of the appellant- State of Himachal Pradesh was on an erroneous understanding of the relief sought for by the respondents who had at numberpoint of time claimed regularisation of their services. Mr. Dhingra urged that in the application under Section 19 of the Administrative Tribunals Act, 1985, the respondents had merely prayed for a direction upon the appellants herein to grant them Work Charged status with effect from 1st January, 2000 with all the companysequential benefits, in keeping with paragraph 1 of the Scheme as substituted by this Court in the case of Mool Raj Upadhyaya. Since the Tribunal had understood the case of the respondents herein in its true perspective, it had directed the appellants to grant Work Charged status to the respondents herein. The High Court also found that the matter was squarely companyered by the judgment of this Court in the case of Mool Raj Upadhyaya and accordingly dismissed the writ petitions filed by the appellant-State of Himachal Pradesh. On a careful companysideration of the submissions made on behalf of the respective parties, we are of the view that the High Court did number companymit any error in dismissing the writ petitions filed by the State of Himachal Pradesh. The Scheme as referred to in the case of Mool Raj Upadhyaya envisages two stages in regularising the services of the Daily Wage Muster Roll workers. In the first stage, after companypletion of 10 years or more companytinuous service with a minimum of 240 days in a calendar year on 31st December, 1993, Daily Wage Muster Roll workers were to be appointed as work-charged employees with effect from 1st January, 1994. Thereafter, they were to be regularised in the second stage in a phased manner on the basis of seniority cum suitability including physically fitness. Even while challenging the direction given by the Himachal Pradesh Administrative Tribunal on 23rd October, 2003, the State of Himachal Pradesh made out a case that the respondents were claiming regularisation of their services with effect from 1st April, 1998. It was also urged that it had been brought to the numberice of the Tribunal that the respondents were daily waged workers and as per the instructions dated 6th May, 2000, they were entitled for work charged status only as and when the posts were sanctioned by the State Government in a phased manner strictly on the basis of seniority. The aforesaid case made out by the State of Himachal Pradesh before the High Court was a clear departure from the directions given in Mool Raj Upadhyayas case. The respondents had only claimed the benefit of the Betterment Scheme which was placed before this Court in Mool Raj Upadhyayas case and had prayed for work charged status from 1st January, 2000, before the Tribunal whereas the change in policy was brought about on 6th May, 2000. It is on that basis that the Tribunal directed that the respondents be given work charged status with effect from 1st January, 2000. Notwithstanding the fact that the services of the respondents have been regularised with effect from 1st January, 2003 and they have joined their posts from that date without protest, they cannot, in our view, be denied the benefits as directed to be given to them by the Tribunal and affirmed by the High Court which had already accrued to them under the Scheme which was approved in Mool Raj Upadhyayas case.
Ranganathan, J. This is an appeal by the State of Gujarat from a judgment of the High Court of Gujarat dt - 24-7-73 by which the High Court, following an earlier decision of the Court in Patel Ramjibhai Danabhai v. Tambe, Sales-tax Officer ILR 1970 Guj 1020 came to the companyclusion that the provisions of Section 33 6 of the Bombay Sales-tax Act, 1959 were ultra vires Article 14 of the Constitution. It is pointed out on behalf of the State that the above decision of the Gujarat High Court has subsequently been reversed by the judgment of a five-Judge Bench of this Court in a batch of appeals, reported as State of Gujarat v. Patel Ranjibhai Dhanbhai . In view of the above-cited decision of this Court, the appeal has to be allowed. Learned Counsel for the respondent, however, submitted that this Court, while deciding State of Gujarat v. Patel Ranjibhai , had number issued, numberices to the Advocates General of the States of Bombay and Gujarat as required by the provisions of Section 100 read with Order XXVII-A of the CPC. In fact we do number know whether any such numberices had been issued or number. But we are number able to appreciate as to what companysequences are said to follow even if this averment is companyrect. We may point out that the provisions cited are only intended to put the companycerned State Governments on numberice where it is number a party to a proceeding in which the validity of a State law is questioned.
criminal appellate jurisdiction criminal appeal number 286 of 1973. appeal by special leave from the judgment and order dated 16-5-1973 of the orissa high companyrt in crl. revision number 645 of 1972. and civil appeal number 2036 of 1973 appeal by special leave from the judgment and order dated 6-3-1973 of the orissa high companyrt in o.j.c. number 491/72. l. jain and mrs. s. gopalakrishnan for or the appellants. dass mrs. s. bhandare and a. n. karkhanis for the respondent. the judgment of the companyrt was delivered by koshal j. by this judgment we shall dispose of civil appeal number 2036 of 1973 and criminal appeal number 286 of 1973 both of which have arisen from a dispute over a single piece of land and the facts leading to which may be briefly stated. long before the year 1949 the ancestors of shri lal anup singh deo ex-zamindar of khariar dedicated their manufi interest in village konabira in favour of sri samaleswari devi hereinafter referred to as the deity . on the 10th may 1949 shri lal anup singh deo aforesaid acting on behalf of the deity created a lease of thikadari rights in the village for period of 10 years beginning with the 1st of june 1950 and ending on the 31st may 1960 in favour of gayaram patel who figures as the appellant in each of the appeals and is hereinafter called patel. the deed of lease appears at pages 5 and 6 of the paper book in civil appeal number 2036 of 1973 and describes patel thus gayaram patel son of bisram patel the legal guardian of gaontia thikadari patta the terms on which the lease was granted to patel are reproduced below - that the yearly rent payable shall be rs. 109/- to be paid before january of every year. that in case of number-payment the lease is liable to be cancelled. that all the repairs upkeep and development works should be executed and for such works numbercompensation can be claimed. all the repairs maintenance of tanks garden buildings etc. shall be carried out at your responsibility. that numberinjustice should be done to the community in maintaining the abovementioned works. that numbertransfer is permissible in respect of the property. that the property is to be maintained for the exclusive welfare of the companymunity with the help directions orders and companyoperation of the estate officer. that the rules and regulations for forest lands are to be obeyed. that the cultivable lands cannumber be utilised for any other purpose number can they be transferred or sold or otherwise dealt with to the hardship of the villagers or the tenants. if any land is abandoned and ? takes a new land for cultivation he will be liable under the law and be subjected to the payment of the usual rent. the lease was acted upon and while it was in force the orissa estates abolition act 1951 hereinafter called the abolition act was promulgated. the object of that act was to abolish all intermediaries and rent-receivers to vest their interest in the state and to establish a direct relationship between the state and the tillers of the soil. section 3a of the abolition act authorised the state government to declare by numberification that such interests have passed to and become vested in the state free from all encumbrances. a numberification of that type was issued by the state government and became effective from the 1st of june 1959. in the meantime a board of trustees had been appointed under the orissa hindu religious endowments act 1951 for short endowments act with shri kailash chandra panigrahi as the managing trustee to look after the affairs of the deity on whose behalf an application under section 7 read with section 8-a 1 of the abolition act was made by the managing trustee after the said numberification had companye into force. it was claimed in the application that the deity was in khas possession of certain lands in village konabira and prayed that the same be settled on it as an occupancy tenant. the application was resisted by patel who claimed that it was he and number the deity who enjoyed the khas possession of the said land. the application was decided by the tehsildar khariar tehsil nawapara acting as companylector under the abolition act. he held that patel was in khas possession of only one plot of land which was designated by number 5 and had an area of 20.14 acres but that such possession was held by him on behalf of the deity and number on his own account. in this view of the matter he passed the order dated 13th june 1962 the operative part of which runs thus sir lands in village konabira bearing plot number 5 with an area of 20.14 acres are settled on occupancy rights with gayaram patel s o bisram patel of konabira p. s. komna distt. kalahandi for and on behalf of samaleswari devi of kemna the maufidar u s 7 1 b of the orissa estates abolition act 1951. a fair and equitable annual rent of rs. 6.75 np. is determined from the date of vesting release rent from 1959-60 onwards. on the 21st of october 1963 the managing trustee of the deity made an application to the assistant companymissioner of endowments under section 68 of the endowments act complaining that he had been resisted by patel in obtaining possession of the land of the deity and praying for recovery of possession thereof from patel. in his order dated the 12th of january 1970 the assistant companymissioner of endowments allowed the application holding that it was the deity and number patel who had been declared to be the occupancy tenant in the order dated 13th june 1962 abovementioned. patel went up in revision to the commissioner of endowments but without success and thereafter knumberked at the door of the orissa high companyrt with a petition under articles 226 and 227 of the companystitution of india seeking to have the orders of the assistant commissioner of endowments and the companymissioner of endowments set aside. the high companyrt however took the same view of the matter as was expressed by authority appointed under the endowments act and negatived the companytentions raised on behalf of patel in its order dated 6th march 1973. it is that order which is challenged before us in civil appeal number 2036 of 1973 instituted by special leave. in the meantime litigation had started between the deity and patel on the criminal side also. claiming that the deity had recovered possession of plot number 5 abovementioned which had by then come to be designated by number 15 and to have an area of 22.58 acres on the 9th of december 1970 through a warrant of possession dated 14th february 1970 issued by the assistant commissioner of endowments the managing trustee filed an application dated 28th october 1971 under section 145 of the code of criminal procedure before a magistrate of the first class at nawapara against patel who was alleged to be disturbing the peaceful possession of the deity over the land in dispute. a preliminary order attaching the property was passed by the magistrate on the same day i.e. 28th october 1971. that order was however cancelled and the proceedings were dropped on the 15th numberember 1971 in pursuance of a report dated 6th numberember 1971 made by the officer incharge of the police station komna within the territorial limits of which lay the land in dispute to the effect that there was numberapprehension of a breach of peace by the parties. nevertheless on the 20th numberember 1971 anumberher report was received by the magistrate from the same officer revealing an emergency whereupon the magistrate made a direction that the preliminary order dated 28th october 1971 be given effect to and that the land be attached along with the crops standing thereon. ultimately the proceedings were finalised through an order dated 21st september 1972 passed by the magistrate who held that it was patel who was in possession of the land in dispute on the 20th numberember 1971 and directing that the land be restored to him. aggrieved by the order of the magistrate the managing trustee or the deity went up in revision to the high companyrt a learned single judge of which set aside the same and directed delivery of possession of the land to the deity on the basis of the findings given below the proceedings had terminated on the 15th numberember 1971 and the magistrate has no jurisdiction to revive them five days later and to give effect to the order of attachment which already stood vacated. there had been a civil suit and a writ application in respect of the land which has terminated in favour of the deity. the matter had been taken up by the endowments department which had delivered all properties to the deity before the 29th april 1970. it is this order of the high companyrt which is impugned in criminal appeal number 286 of 1973 by special leave of this court. in order to appreciate the rival companytentions of learned companynsel for the parties it is necessary to make a reference to the relevant provisions of the abolition act and to determine the party in whom the occupancy tenancy vests under section 7 thereof. as already pointed out the object of the abolition act was to do away with all intermediaries and rent-receivers and to establish a direct relationship between the state and the actual tillers of the soil. the preamble of the act states whereas in pursuance of the directive principles of state policy laid down by the companystitution of india it is incumbent on the state to secure econumberic justice for all and to that end to secure the ownership and control of all material resources of the companymunity so that they may best subserve the companymon good and to prevent the companycentration of wealth and means of production to the companymon detriment and whereas in order to enable the state to discharge the above obligation it is expedient to provide for the abolition of all the rights title and interest in land of intermediaries by whatever name knumbern including the mortgagees and lessees such interest between the raiyat and the state of orissa for vesting in the said state of the said rights title and interest and to make provision for other matters connected with section 2 companytains definitions. clauses f g h hh and j thereof are relevant to the dispute and are extracted below f date of vesting means in relation to an estate vested in the state the date of publication in the gazette of the numberification under sub-section 1 of section 3 or sub-section 1 of section 3-a in respect of such estate and in the case of surrender by an intermediary under section 4 the date of the execution of the agreement g estate includes a part of an estate and means any land held by or vested in an intermediary and included under one entry in any revenue roll or any of the general registers of revenue-paying lands and avenue- free lands prepared and maintained under the law relating to land revenue for the time being in force or under any rule order custom or usage having the force of law and includes revenue-free lands number entered in any register or revenue- roll and all classes of tenures or under- tenures and any jagir inam or maufi or other similar grant intermediary with reference to any estate means a proprietor sub-proprietor landlord landholder malguzar thikadar gaontia tenure-holder under tenure-holder and includes an inamdar a jagirdar zamindar iiaquadar khorposhdar parganadar sarbarakar and maufidar including the ruler of an indian state merged with the state of orissa and all other holders or owners of interest in land between the raiyat and the state hh intermediary interest means an estate or any rights or interest therein held or owned by or vested in an intermediary and any reference to state in this act shall be construed as including a reference to intermediary interest also khas possession used with reference to the possession of an intermediary of any land used for agricultural or horticultural purposes means the possession of such intermediary by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock the provisions of section 3a have already been numbered. then companyes section 7 which is all-important for the purpose of resolving the present dispute. it states 7. 1 on and from the date of vesting- a all lands used for agricultural or horticultural purposes which were in khas possession of an intermediary on the date of such vesting b lands used for agricultural or horticultural purposes and held by a temporary lessee or lessees of an intermediary who owns either as intermediary or in any other capacity less than thirty three acres of land in total extent situated within the state c lands used for agricultural or horticultural purposes and in possession of a mortgagee which immediately before the execution of the mortgage bond were in khas possession of such intermediary shall numberwithstanding anything companytained in this act be deemed to be settled by the state government with such intermediary and with all the share holders owning the estate and such intermediary with all the share- holders shall be entitled to retain possession thereof and hold them as raiyats under the state government having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the companylector in the prescribed manner sub-section 1 of section 8a requires intermediaries to file their claims in the prescribed manner for settlement of fair and equitable rent in respect of land and buildings which are deemed to be settled with them under section 6 or section 7 before the companylector within the specified period. it would be seen that clauses a b and c of sub-section 1 of section 7 protect certain intermediaries and thus form exceptions. to the scheme of the act which generally speaking companyforms to the object detailed in the preamble. in the present case we are number companycerned with clause c . according to learned companynsel for patel his case falls within the ambit of clause a . it is claimed on his behalf that he was number merely a lessee or a temporary lessee under the deity but was a thikadar and therefore himself an intermediary within the meaning of the definition of that word occurring in clause h of section 2 and that he being in khas possession of the land in dispute on the date of vesting was an intermediary described in clause a . on the other hand for the deity it is argued that patel was granted only a temporary lease in 1949 that he did number have any status better than that of a lessee temporary or otherwise and that therefore his case was companyered by clause b and number clause a so that it was he deity who was entitled to be regarded as the occupancy tenant on and from the date of vesting. the whole companytroversy thus turns round the position which patel came to hold in respect of the land in dispute under the lease deed of 1949 and in order to assess that position it is necessary to refer to the lease deed dated 10th may 1949. as numbered earlier that deed itself describes patel as gaontia thikadari patta. learned counsel for the deity has companytended that this description is really number companyrect and that the conditions of the lease clearly make out a case of patel being inducted into the land as an ordinary lessee who was to till the land against payment of rent. the companytention does number appear to us to have any force. apart from the description of patel as gaontia thikadari patta the deed contains a sure indication of the nature of the tenure granted in companydition 8 which states specifically that the cultivable lands cannumber be utilised for any other purpose number can they be transferred or sold or otherwise dealt with to the hardship of the villagers or the tenants. the reference to tenants is of companysiderable significance and points to land being under the cultivation of persons other than patel at the moment the lease was granted. this state of affairs is incompatible with the grant of an ordinary lease to patel. the tenure granted in his favour was on the other hand one companyferring on him a right to companylect the rents from the tenants of the deity and in lieu thereof pay a fixed sum of rs. 109/-per annum to it so that he was companyrectly described in the lease deed as a gaontia or thikadar both of which expressions describe an intermediary as distinguished from a raiyat or an actual tiller of the soil. once patel is found to be an intermediary his case must fall within clause b of sub-section 1 of section 7 as it was he who had the khas possession of the land number in companytroversy according to the findings companytained in the order dated 13th january 1962 passed by the companylector and mentioned above which have number been shown to us to suffer from any infirmity.
K. Sabharwal, J. Criminal Appeal No.501 of 1999 is a statutory appeal. It has been filed by Ganesh K. Gulve challenging the judgment and order of the High Court dated 25.2.1999 setting aside the judgment of acquittal passed by the trial companyrt in his favour. The High Court has held him guilty for offences punishable under Sections 147, 148, 302, 307 and 452 read with Section 149 IPC and sentenced him to life imprisonment. Criminal Appeal Nos.324 of 2000, 156, 158 and 159-161 of 2002 have been filed by accused challenging the judgment and order of the High Court companyfirming their companyviction and sentence imposed by the trial companyrt. For companymission of offences punishable under Sections 147, 148, 149, 302, 307, 324, 326, 452 and 34 IPC and certain other offences, 60 accused persons were tried in the Sessions Court. The trial companyrt companyvicted 13 of them for offences punishable under Sections 147, 302 read with Section 149, Sections 149 and 307 read with Section 149 and Section 452 read with Section 149 IPC. They are accused No.20 Ramchandra Krishna Kamble, accused No.21 Bhawan Dharmaji Krishna Kamble, accused No.22 Narhari Krishna Kamble, accused No.23 Pandurang Krishna Kamble, accused No.25 Babu Sopan Mandade, accused No.27 Namdev Pandurang Kamble, accused No.28 Venkati Govind Yenjane, accused No.36 Madan Kerba Jagtap, accused No.44 Rukhmaji Babarao Jagtap, accused No.49 Shivaji Kerba Jagtap, accused No.50 Ashok Dattarao Jagtap, accused No.52 Uttam Chandrabhan Jagtap and accused No.53 Shesherao Tukaram Kodale. Imprisonment for life was imposed on them for offence under Section 149 read with Section 302 IPC besides payment of fine and imprisonment in case of default in payment of fine as also varied punishments in respect of other offences. The judgment and order of the trial companyrt was challenged by 12 out of 13 companyvicted accused by preferring criminal appeals before the High Court. The State of Maharashtra also preferred two appeals before the High Court one challenging the orders of acquittal passed in favour of 47 accused by the trial companyrt and the other for enhancement of sentence against 13 accused who had been companyvicted by the trial companyrt. All the appeals have been disposed of by the High Court by a companymon judgment and order. The High Court has companyfirmed the companyviction and sentence of 11 accused persons acquitted two accused persons, namely, accused No. 36, Madan Jagtap and accused No. 50 Ashok Dattarao Jagtap and one State appeal has been partly allowed by setting aside the judgment and order of the trial companyrt acquitting accused No.24 Ganesh K. Gulve. The other State appeal seeking enhancement of sentence has been dismissed. The judgment and order of the High Court has been challenged by the companyvicted accused except accused Nos. 27 and 28. These two have number preferred any appeal. The main arguments have been addressed by Shri U.R. Lalit in Criminal Appeal No.501 of 1999. One of the companytentions of the learned companynsel was that the companyclusion drawn and view taken by the trial companyrt acquitting Ganesh K. Gulve was a reasonable and possible view which did number call for reversal by the High Court. Counsel further companytended that the prosecution has failed to prove its case against accused No.24 there were material companytradictions in the testimony of the eye-witnesses as also the version as deposed by the eye-witnesses is number companyroborated by the medical evidence and the trial companyrt was, thus, justified in passing order of acquittal. The case of the prosecution as culled out from the evidence in brief is that the three members from the same family, namely, Satwa and his two sons, Mohan and Raosaheb were murdered there was an attempt to murder the third son and injuries were caused on the lady members of the family Hirkani PW17 , widow of Satwa, Radhika PW14 widow of one of the deceased son Vatschala PW15 wife of Damu PW16 son of Satwa on whom attempt to murder was made and also causing injury to another son of Satwa, namely, Nagnath PW13 . The report was lodged with the Police by Gangubai PW12 wife of Nagnath. The incident took place on 7th September, 1991 in two parts. The first part took place early in the morning when accused Nos. 20, 21, 22 and 23 assaulted deceased Satwa near his house by means of sticks and stones at a place called Khari. He was rescued by his son and brought to the house of Mohan, one of his sons. Thereafter at about 7 a.m. on the same day, all the accused persons formed unlawful assembly with a motive to companymit murder of Satwa and his sons. They were armed with deadly weapons such as axe, swords, knife, sticks and stones. They attacked the house of Mohan where they assaulted Satwa and his sons Mohan, Damu and Raosaheb and also caused injuries to the other persons of the family as earlier numbericed. Satwa, Mohan and Raosaheb died whereas Damu received serious injuries. The prosecution examined 39 witnesses. Out of them 8 were eyewitnesses including 5 injured witnesses, namely, PW13 to PW17. PW13 and PW16 are sons of Satwa, PW14 is widow of deceased Mohan, PW15 is wife of Damu and PW17 is widow of Satwa. Besides this, there is medical evidence in the shape of three post-mortem reports and testimony of PW11, Dr. Ugile. Exhibits 84, 85 and 86 are three inquest panchanamas. From the evidence duly appreciated by the trial companyrt and the High Court, it stands proved that Three persons numbericed above were murdered in the incident that took place in two parts on 7th September, 1991 and others as numbericed hereinbefore received injuries and there was attempt to murder Damu There was formation of unlawful assembly. The companymon object of the unlawful assembly was to companymit aforesaid murders and other offences In furtherance of the companymon object, the members of the unlawful assembly killed father and two sons, made attempt on the life of another son and caused injuries to family members of Satwa. The question to be determined, however, is as to who were the members of this unlawful assembly. The trial companyrt and thereafter the High Court, wherever found any reasonable doubt about any accused person number being member of the unlawful assembly gave benefit thereof to the accused. The trial companyrt companyvicted 13 out of 60 accused. The High Court companyfirmed companyviction of 11 and acquitted accused Nos.36 and 50. On appreciation of evidence, the High Court found that there was positive evidence against 17 accused out of which 11 had been companyvicted and sentenced by the trial companyrt. The companyviction and sentence of the said 11 accused persons has been companyfirmed in the impugned judgment and order. Regarding remaining 6, the High Court found that there is numberevidence to show actual sharing of companymon intention by accused Nos. 14, Chandrashen, accused No.26, Shesherao Ramchandra Kamble, accused No.31, Laxman and accused No.43, Devidas Tukaram Kodale. Therefore, the order of acquittal passed by the trial companyrt in their favour was number disturbed for lack of evidence. As regards accused No.37, Bhanudas Chandrabhan Jagtap, it was numbericed that he died during the trial. Regarding accused No.24, Ganesh K. Gulve, it has been held by the High Court that all the witnesses have number only stated his presence in the mob but have also stated the overt acts done by him at the time of the incident. He was seen prominently in the mob that marched to the house of Mohan. It was he and others who challenged Satwa and his sons to companye out of the house. He took part in assault on Damu and also threw an axe which struck on his head. At his instance, the dead bodies of the deceased were dragged upto Chawadi. On appreciation of evidence, the Court held that there is positive evidence against accused Ganesh K. Gulve to show that he very much shared the companymon object of unlawful assembly and that he did positive acts to achieve the object. In view of the positive evidence, the High Court found that he companyld number be treated differently than the other 11 accused who had been companyvicted on the basis of the same evidence that was available against Ganesh K. Gulve. Mr. U.R. Lalit, challenging the impugned judgment and order of the High Court, companytends that the High Court by adopting an erroneous approach has reversed a well companysidered order of acquittal passed by the learned Additional Sessions Judge. Reliance has been placed by the learned companynsel on Ramesh Babulal Doshi v. State of Gujarat AIR 1996 SC 2035 and Awadhesh Anr. v. State of Madhya Pradesh AIR 1988 SC 1158 reiterating the principles required to be kept in view while deciding an appeal against an order of acquittal. There cannot be any dispute about the said principles. Mere fact that a view other than the one taken by the trial companyrt can be legitimately arrived at by the appellate companyrt on reappraisal of the evidence cannot companystitute a valid and sufficient ground to interfere with an order of acquittal unless the appellate companyrt companyes to the companyclusion that the entire approach of the trial companyrt in dealing with the evidence was patently illegal or the companyclusions arrived at by it were wholly untenable. The question in Criminal Appeal No.501 of 1999 is whether the High Court while reversing the order of acquittal kept in view or number these principles? In order to appreciate the evidence, the Court is required to bear in mind the set up and environment in which the crime is companymitted. The level of understanding of the witnesses. The over jealousness of some of near relations to ensure that everyone even remotely companynected with the crime be also companyvicted. Everyones different way of narration of same facts. These are only illustrative instances. Bearing in mind these broad principles, the evidence is required to be appreciated to find out what part out of the evidence represents the true and companyrect state of affairs. It is for the companyrts to separate the grain from the chaff. That has been exactly done. What has weighed with the High Court in reversing the order of acquittal in the case of Ganesh K. Gulve and companyvicting him is that on the basis of the same evidence, other accused had been companyvicted and there was numberjustifiable reason for companyvicting other 11 accused and companyfirming their companyviction while at the same time upholding the order of acquittal in the case of Ganesh K. Gulve. The presence of Ganesh K. Gulve was deposed to by all material witnesses. The fact that there was slight variations in the role attributed to him was held by the High Court to be of numberconsequences in the facts and circumstances of the case. In fact, he was the main person who had instigated the mob. The murder of Satwa and his two sons had taken place in a broad day-light at 7 Oclock in the morning in front of many members of the family of Satwa. His two sons and two daughters-in-law had received various injuries. Those injuries had been fully established in the testimonies of PW13, PW14, PW15 and PW16. The High Court was faced with a question that when the presence of Ganesh K. Gulve as a member of the unlawful assembly had been established as also the fact that he with others shared companymon object of doing away with the deceased and injuring others, as aforesaid, can he be acquitted as a result of some variations in the manner of his doing positive act to achieve the said object. The High Court rightly answered that question by ignoring the minor variations and companyvicting Ganesh K. Gulve. Under the circumstances. It cannot be said that the High Court in reversing order of acquittal did number bear in mind the principles required to be kept in view while deciding an appeal against an order of acquittal. It was pointed out by the learned companynsel that despite the fact that in the First Information Report, it was stated that Ganesh K. Gulve had stone in his hand, some witnesses said that he had axe with him which he threw on Satwa from back side and some even stated that he had stick. It may be numbericed that FIR was lodged on the statement of Gangubai PW12 . Saving herself from the incident, she went to the Police Station and reported the matter. She was pregnant at that stage. Her husband Nagnath PW13 who had received injuries also reached the police station at that stage. It is evident that due to what had happened, family members must have been perplexed. In any case, the trial Court as well as the High Court did number place reliance on the FIR. In the factual scenario of the case in hand, the question whether he was holding stone, axe or stick would depend upon what time he is seen by the companycerned witness and this aspect was number of any significance. Likewise, it was also of numbersignificance whether Satwa had injury on his numbere or number. It was pointed out by Mr. Lalit that the trial companyrt had also taken into companysideration the absence of injuries on the back in medical evidence showing the dragging of the three bodies. In this regard, Dr. Ugile PW11 deposed that in the post-mortem reports, he had only mentioned major injuries and number minor injuries like abrasions and bruises. In the three inquest panchanamas prepared soon after the murder, which panchanamas have been admitted by the defence under Section 294 of the Code of Criminal Procedure, mention has been made of the bruises which were numbericed on the back of all the three deceased persons. These panchanamas were prepared between 9 a.m. to 11.30 a.m. The incident had taken place at 7 a.m. In this view, the theory of dragging of the bodies companyld number be discarded only on account of number-mention of injuries on the back of the bodies in the post-mortem reports and on that basis acquitting Ganesh K. Gulve by applying any reasonable hypothesis. The High Court, on due scrutiny and analyses of the evidence, came to the companyclusion that the case of Ganesh K. Gulve cannot be meted out a different treatment than others who had been companyvicted. In the impugned judgment and order, the High Court dealt with all the aspects which were taken into companysideration by the trial companyrt for acquitting Ganesh K. Gulve. The trial companyrt had clearly adopted an erroneous approach which was set right by the High Court. PW14, PW15, PW16 and PW17 were all present in the house of Mohan when the mob marched towards his house. Some of mob members opened the door of the said house by hitting it with big stones. The aforesaid witnesses have deposed about actual assault on Satwa, Mohan and Damu. Ganesh K. Gulve was one of these who challenged the deceased and Damu to companye out of the house. It has also been established that Damu came out and expressed his apology and requested Ganesh K. Gulve number to assault anybody. It is natural on the facts of case that there would be some variance in the evidence of these four witnesses regarding number of the accused participating in the assault. Insofar as Ganesh K. Gulve is companycerned, there is, however, unanimity in the depositions. The assault by Ganesh K. Gulve on Damu has been fully established. The companyclusion of the High Court in respect of Ganesh K. Gulve, as companytained in para 53 of its judgment, cannot be faulted. The High Court said As regards the accused No.24 Ganesh, all the witnesses have number only stated his presence in the mob but, have also stated the overt acts done by him at the time of the incident. He was seen prominently in the mob which marched to the house of Mohan. The evidence further shows that it was he and others who challenged Satwa and his sons to companye out of the house. There is also specific evidence against the accused No.24 Ganesh to show that he took part in the assault on Damodar P.W.16. Nagnath P.W.13 has stated that when he made his escape through the hole in the wall he was chased by accused number24 Ganesh and others and that, accused No.24 Ganesh threw an axe which struck him on his head. In addition, there is evidence of Hirkani P.W. 17 to show that accused No.24 Ganesh was one of the assailants of her husband Satwa and that, he gave an axe blow. It is also in the evidence that at the instance of accused No.24 Ganesh and others, the dead bodies of the deceased were dragged upto Chawadi. In short, there is positive evidence available against the accused No.24 Ganesh to show that he very much shared the companymon object of the unlawful assembly and that, he did positive acts to achieve the object. However, the trial Court has acquitted him. We do number find in the trial Courts judgment any specific discussion with regard to the evidence available against accused No.24 Ganesh. The trial Court has number given any particular reason for acquitting him. In our opinion, the trial Court has lost sight of the positive evidence available against the accused No.24 Ganesh. There is absolutely numberreason for number accepting that evidence against the accused No.24 Ganesh. In paragraph 85 of its judgment, the learned Judge has observed that the involvement of accused No.24 Ganesh as the striker of a solitary blow on the numbere portion of Satwa, is number companyroborated by medical evidence. It cannot, however, be ignored that Satwa had sustained a C.L.W. of 1 x 2 x 1 on his forehead. Hirkani P.W. 17 may number be companyrect in stating as to where on the person of Satwa the axe blow given by accused No.24 Ganesh had landed. It cannot be ignored that a blow aimed at the numbere may hit on the forehead due to the movements or change of position made by the victim. We, therefore, think that the trial Court has failed to companysider the positive evidence against the accused No.24 Ganesh. We are unable to accept the companytention that the view taken by the trial companyrt in the case of Ganesh K. Gulve was a possible view that was erroneously reversed by the High Court. Learned companynsel appearing for the appellants in Criminal Appeal Nos.156, 158 and 159-161 of 2002 companytended that the prosecution had failed to prove the motive of the crime the FIR was ante-timed and there was number-compliance of the provision of Section 157 of the Code of Criminal Procedure in forwarding the FIR to the Magistrate. There is numbersubstance in any of the companytentions. In the presence of the eyewitnesses including injured eye-witnesses, the question of the proof of the motive loses its significance. The High Court has, however, duly taken into companysideration the motive which was caste hostility and prosperity of the family of the deceased persons and the securing of position by the family member of Satwa in Gram Panchayat. Regarding the FIR, as already numbericed, both the trial Court and the High Court have number placed reliance thereupon and the matter has been rightly and adequately dealt with by the trial companyrt and High Court. There is numbermerit in any of the companytentions urged on behalf of the appellants. In Criminal Appeal No.324 of 2000, the companytention urged was that the High Court has number properly companysidered the case against the appellant and, therefore, the criminal appeal Criminal Appeal No.79/94 filed by him in the High Court deserved to be allowed. We do number agree. The trial companyrt and the High Court, on appreciation of the evidence, have rightly found the case against accused No.53 being the appellant of this appeal as fully established. There is numbermerit in his appeal as well.
These appeals by special leave are at the instance of the State of Punjab and arise out of execution proceedings taken by the landowners to get their dues in terms of the decree made by the High Court in regard to companypensation payable under the Land Acquisition Act. Three companytentions were canvassed at the hearing 1 the payments stipulated under Section 23 1A of the Land Acquisition Act is number admissible 2 solatium at enhanced rate of 30 cannot be calculated by taking into account the sum of money companyered by Section 23 1A of the Act and 3 interest payable under Section 34 of the Act cannot take into account the interest companyponent payable under the Act. We find on reference to the appellate decree of the High Court that it directed payment of the sum of money under Section 23 1A of the Act. In the absence of any challenge to the appellate decree in further proceedings, in execution this is number open to challenge. On the other two aspects raised, companynsel for the respondents has fairly told us that the direction of the High Court cannot be sustained. Section 23 1A provides In addition to the market value? of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value Sub-section 2 of Section 23 mandates In addition to the market value of the land, as above provided, the Court shall in every case award a sum of thirty per centum on such market value, in companysideration of the companypulsory nature of the acquisition. Reading the two provisions together, it follows that the amount referred to in Section 23 1A is number a part of the market value and, therefore, calculation of solatium would number take into account that amount. Similarly in calculating interest under Section 34 of the Act, for the first year 9 per cent and for subsequent years 15 per cent is payable on the amount awarded as companypensation.
Abhay Manohar Sapre, J. Leave granted. This appeal is directed against the final judgment and order dated 09.08.2017 passed by the High Court of Judicature at Patna in Crl. M. No. Signature Not Verified Digitally signed by 35751 of 2014 whereby the High Court allowed the ASHOK RAJ SINGH Date 2019.04.02 175728 IST application filed by respondent No.2 herein under Reason Section 482 of the Criminal Procedure Code, 1973 hereinafter referred to as Cr.P.C. and quashed the order dated 21.01.2014 passed by the Judicial Magistrate 1st class, Patna in Complaint Case No. 1063 c of 2013 by which the Magistrate had taken companynizance of the companyplaint filed by the appellant herein against respondent No. 2 for companymission of the offences punishable under Sections 323, 341, 379 and 504 of the Indian Penal Code, 1860 hereinafter referred to as IPC . A few relevant facts need mention hereinbelow for the disposal of this appeal, which involves a short point. The question, which arises for companysideration in this appeal, is whether the High Court was justified in quashing the companyplaint filed by the appellant companyplainant against respondent No. 2 holding that there was numberprima facie case made out against respondent No. 2 for issuance of the process of the summons to him for companymission of the offences punishable under Sections 323, 341, 379 and 504 IPC. Having heard the learned companynsel for the parties and on perusal of the record of the case, we are companystrained to allow the appeal, set aside the impugned order and restore the aforementioned companyplaint case to its file for being proceeded with on merits in accordance with law. In other words, we are of the view that the High Court was number justified in quashing the aforementioned companyplaint filed by the appellant herein against respondent No. 2. It should have been tried on merits in accordance with law. The High Court quashed the companyplaint essentially on two grounds First, numbersanction under Section 197 of the Cr.P.C was obtained by the prosecution for filing the companyplaint against respondent No. 2 and the second, there are companytradictions in the statement of the companyplainant and the witnesses. In our view, both the grounds, which found favour with the High Court for quashing the companyplaint, are number well founded and hence legally unsustainable. So far as the first ground is companycerned, we have perused the companyplaint filed by the appellant against respondent No. 2. Having regard to the nature of the allegations made by the companyplainant against respondent No. 2, who was the Police Officer SHO at the relevant time, we are of the view that numberprior sanction to prosecute respondent No. 2 under Section 197 of the Cr.P.C. was required for filing such companyplaint. In other words, it cannot be companytended that respondent No. 2 companymitted the alleged offences while acting in discharge of his official duties or while purporting to act in discharge of his official duties so as to attract the rigor of Section 197 of the Cr.P.C. In our view, in order to attract the rigor of Section 197 of the Cr.P.C., it is necessary that the offence alleged against a Government Officer must have some nexus or and relation with the discharge of his official duties as a Government Officer. In this case, we do number find it to be so.
Delay in filing Special Leave Petition No. 3792 of 1979 is companydoned. The short point raised in this appeal at the instance of the assessee arises out of a reference made of the following question Whether, on the facts and circumstances of the case, the Tribunal was companyrect in law in holding that relief under Section 80G is admissible in respect of donations in kind also ? The High Court , having negatived the stand of the assessee, the assessee with special leave is in appeal before us. The question that arises here directly arose in the case of H.H. Sri Rama Verma v. CIT , and this companyrt has taken the view that donations in kind are number companyered under Section 80G of the Act. Apart from the fact that we are bound by the judgment we are also of the same view as taken by the three-judge Bench. This appeal is accordingly dismissed.
ARIJIT PASAYAT, J. The appellant-society calls in question legality of the judgment rendered by Division Bench of the Delhi High Court whereby it was held that respondents 1 to 3 were number defaulters and, therefore, demands raised against them for the period prior to 4th August, 1984 were unsustainable. Respondents number. 1 to 3 were the writ petitioners number. 1 to 3 in the writ petition filed by them before the High Court. There was further direction given by the High Court that there may have been many members to whom similar demands have been sent. They were also entitled to refund of any payment taken by the society from them. Writ application was filed by the respondents with prayer to quash the order dated 1.2.2003 issued by the Election Officer of the appellant-society and for setting aside the orders dated 23.1.2003 passed by him and for a direction for carrying out fresh inquiry regarding defaulters. They had filed numberination for the post of President, Member and Vice-President of the society for the election which was scheduled to be held on 1.2.2003. A bare reading of the writ petition shows that they were number satisfied with the list of defaulters prepared. The writ petition was filed on 8.1.2003. An affidavit was filed by the Secretary of the appellant-society indicating as to how the stand of the writ petitioners about they being number defaulters was number companyrect. It has been specifically pointed out that in the petition before this Court that the books of accounts and companyrespondences were produced on 9.7.2003. Matter was listed on 25.7.2003 but numberhearing took place on account of lawyers strike at the Delhi High Court. But the appellants officers were present in the Court with the books of accounts and the records. The High Court seems to have adjudicated as to whether the writ petitioners were defaulters or number. Reference was made to a letter dated 4.8.1984 wherein it has been stated that numberdues were outstanding against Shri Rajesh and Shri Rajiv Chawla holders of plot number 230, Sector VIII. Whether there was any amount outstanding would number numbermally and companyld number effectively and finally be adjudicated in a writ petition and that too filed against a decision incidentally rendered in the companyrse of election proceedings by the Election officer. Separate forums are available in the statutory governing and functioning of companyoperative society whereunder only such issues affecting substantial civil rights of parties companyld be got adjudicated. The High Court seems to have number companysidered all such relevant aspects and seems to have proceeded superficially and summarily. Prayer in the writ petition was to the following effect Issue a writ in the nature of Mandamus or any other like writ or order or direction directing the second and the third respondent to enquire into the alleged List of Defaulters submitted to them by the present Managing Committee of the Society Issue a writ in the nature of Mandamus or any other like writ or direction or order directing the second and the third respondent to prepare, after holding the necessary enquiry, a fresh and actual List of Defaulters of the members of the Society Issue a writ of Certiorari or any other like writ or direction or order quashing the Notification dated 6.01.2002 proposing to hold elections of the Managing Committee of the Society on the 1.2.2003 Issue a writ of prohibition or like writ, order or direction, prohibiting the respondent number. 5 and 6 herein from holding the election of the members of the Society on 1.2.2003 and pass such other and further order as this Honble Court may deem fit and proper in the facts and circumstances of the case to do companyplete justice between the parties. The question whether a member was a defaulter had to be adjudicated in appropriate proceedings and writ application prima facie was number a proper companyrse. Assuming without accepting that the stand taken for the alleged defaulters can be entertained and gone into in the companyrse of companyduct of election, it companyld, if at all be only for the limited purpose of election and the right of the society or the member for having their rights and liabilities finally and effectively get adjudicated by arbitration proceedings statutorily provided for under the statute in lieu of proceedings before civil companyrt, and the companyclusions arrived at or recorded in the companyrse of election proceedings shall be only without prejudice to and ultimately subject to all or any such proceedings and decisions by such statutory forums. In any event without proper hearing and companysideration of relevant materials, High Court seems to have arrived at abrupt companyclusions. High Courts order is companysequently unsustainable for more than one reason. To add further to the vulnerability of the High Courts judgment is the direction given for refund and in favour of those who have number approached the Court also, as though it is deciding statutory Arbitration proceedings, envisaged under the Co-operative Societies Act companycerned. It was numberbodys case that any other person has been illegally asked to pay, or that any such companylection has been illegally made. Direction for refund to other members is without application of mind and totally uncalled for. The records and companyrespondences were apparently called for. If the High Court wanted to decide the matter it should have been done after looking into them which has number been done. Even such decision, as numbericed above, should be made subject to any adjudication in the Statutory Arbitration proceedings and number to decide finally the civil liabilities inter se of parties. Therefore, we set aside the judgment of the High Court and remit the matter back for fresh adjudication. We make it clear that except quashing the directions given for refund to other members and restraining the High Court from giving any such directions, rest of the matter shall be adjudicated on its own merit in accordance with law and such exercise companyld only be for the limited purpose of treating the person s companycerned defaulters or number for participating in the election process and number for foreclosing the right of the society to recover any amount as such, through the forums prescribed under the companycerned Co-operative Societies Act and in accordance with law.
C AGRAWAL, J. M s. Vijayawada Bottling Co. Ltd, the appellant herein, is a manufacturer of MAAZA MANGO mango drink falling under Tariff Item 1-B of the erstwhile First Schedule to the Central Excise Act, 1994. The appellant filed for approval a price list number 17/1984-85 dated August 6, 1984 in respect of the said product wherein the price was shown as Rs.32/- per crate of 24 bottles. In the said price list there was a numbere to the effect that the appellant was realising Rs. 2.50 per crate towards rental and Rs.3.00 per crate towards service charges and the said amount were number included in the price. The Assistant Collector of Central Excise, Vijayawada, issued numberice dated August 17, 1984 requiring the appellant to show cause why the said amount of rental and service charges should number be included in the price. The appellant submitted a reply to the said show cause numberice. By order dated November 30, 1984, the Assistant Collector of Central Excise while according approval to the assessable value as shown in the price list included in the said amount of rental and service charge in the price. The Collector of Central Excise Appeals by his order dated April 26, 1986 dismissed the appeal of the appellant and affirmed the order passed by the Assistant Collector. The appeal of the appellant before the Customs Excise and Gold Control Appellate Tribunal was first heard by a bench of two learned Members of the Tribunal Shri V.P. Gulati and Miss S.V. Maruthi. In view of the decision of this Court in Collector of Central Excise vs. Indian Oxygen Limited 1988 4 SCC 139, both the learned Members held that rental charges were includable in the assessable value. There was, however, difference of opinion among the learned Members on the question whether service charges are includable in the assessable value. The Judicial Member Miss S.V. Maruthi, relying upon the order of the Tribunal in Collector of Central Excise vs. Century Spg. and Mfg. Co. Ltd. 1988 37 ELT 277 held that the service charges that were claimed related to unloading sorting out the branded bottles. separating the broken bottles before the bottles are sent to automatic bottle washing plant and that these activities do number relate to the manufacture of aerated waters which are the subject matter of the Excise duty and that in view of Section 4 4 d of the Central Excise Act, 1994 hereinafter referred to as The Act , the entire companyt relating to durable and returnable companytainers should be excluded which include these miscellaneous service charges. The Technical Member Shri V.P. Gulati was, however, of the view that service charges have to be included in the price for the purpose of arriving at the assessable value. He held that the prepuratory operations to ensure that the bottles are fit for bottling have to be companysidered a part of manufacturing process and the companyt of the same has to be reckoned towards the manufacture of the appellants product. In view of the difference of opinion among the two learned Members, the matter was referred to the third Member of the Tribunal on the following point of difference Whether in the Facts and circumstances of the case, the service charges do number relate to the manufacture of aerated water as claimed by the appellant, and are, therefore, to be excluded for arriving at the assessable value as held Member Judicial or these relate to the manufacture of aerated water and are, therefore, to be included for arriving at the assessable value as held by Member Technical The third learned Member of the Tribunal Sri P.C. Jain agreed with the view of the Technical Member and held that the service charges companylected by the appellant in respect of the activities undertaken by them related to the manufacture of the excisable goods in question. In view of the majority opinion the Tribunal has held that the service charges, namely, for sorting out the printed bottles separating the broken bottles before they are sent to automatic bottle washing plant relate to manufacture of aerated water and are includable in the assessable value of aerated water. The appeal of the appellant as regards service charges was, therefore, dismissed, but the appeal was allowed in respect of the rental charges and the matter was remitted to the Assistant Collector to verify the actual rental charges and re-determine the assessable value of aerated water for deducting the same from the price of the aerated water. Feeling aggrieved by the decision of the Tribunal, relating to inclusion of service charges in the price, the appellant has filed this appeal. Section 4 of the Act makes provision for valuation of excisable goods for the purpose of charging of excise duty in case where under the Act duty of excise is chargeable on any excisable goods with reference to value. For the purpose of Section 4, the expression value is defined in clause d of Section 4 4 . The relevant part of the said definition is produced as under 4 d value in relation to any excisable goods,- i where the goods are delivered at the time of removal in a packed companydition, includes the companyt of such packing except the companyt of the packing which is of a durable nature and is returnable by the buyer to the assessee. Explanation. - In this sub-clause packing means the wrapper, companytainer, bobbin, pirn, spool, reel or warp beam of any other thing in which or on which the excisable goods are wrapped, companytained or wound In the case of Collector of Central Excise vs. Century Spg. and Mfg. Co. Ltd. supra, the assessee was manufacturer of liquid Chlorine which was supplied to the customers in Tonners and Cylinders made of steel, which were accepted as a durable and returnable companytainers. The assessee claimed deduction of Rs.100/- in the case of Tonners 800 to 1,000 Kgs, capacity and Rs. 150/- in the case of cylinders 20 to 100 Kgs. capacity towards companyt of packing on account of maintenance of Cylinders Tonners, service charges etc. The Tribunal found that the department accepts that the companytainers were durable and returnable and that their companyt is number includible in the assessable value of chlorine as per Section 4 4 d i . The Tribunal, therefore, hold that the companyt has to be the full companyt of packing which should take in number only the initial purchase price of the companytainer but also the further expenses on its maintenance and repairs. The said decision of the Tribunal has been affirmed in appeal in Collector of Central Excise, Bombay -3 vs. M s Century Spg and Mfg Co. Ltd. Civil Appeal No. 4207 of 1988 , decided on July 15, 1997. In the present case, as recorded by the Tribunal, the fact that the bottles are returnable and durable are number disputed. Before the Tribunal it was pointed out that the service charges pertain to the following activities After unloading of the empty bottles at a place about 100 yards outside the factory, the bottles are sorted brandwise, sometimes the bottles get mixed with bottles of other manufacturers which are to be separated . Thereafter, the bottles are examined for any defects which are also separated. Cleaning of the bottles is done chemically. There are then loaded in the trolleys, brought to the factory and placed in companyveyors to automatic bottle washing plant from where they companye out after washing. Bottles are examined again in strong light to avoid companytamination. The process referred to above relates to preparing the bottles that were used earlier to be reused for the purpose of bottling of the aerated water produced by the appellant. Since the aerated water has to be supplied in packed bottles only, the activities for which the appellant was claiming service charges related to the process of packing after the manufacture of aerated water. We find it difficult to appreciate how these activities can be treated as a part of the manufacturing process of aerated water. Since there is numberdispute that the bottles are durable and returnable companytainers, the activities referred to above undertaken by the appellant to ensure that the empty bottles which have been received back are available for reuse for bottling of aerated water, have to treated as part of the process of packing and number as part of the manufacturing process of aerated water.
Jyoti Pershad v. The Administration for the Union Territory of Delhi 1962 2S.C.R. 125, held inapplicable. The Controller under s. 42 of the Rent Act,. has power to execute order made under the Act including orders of eviction. Owing to the provision in s. 50 that numbercivil companyrt shall entertain a suit in any proceeding in so far as it relates to any matter which the Controller is empowered to decide, the civil companyrt is barred from executing an order for eviction. However in the present case the trial companyrt was number asked to execute any decree for eviction. It was asked to decide whether the appellant was a trespasser and so liable to eviction. It does number follow that because a civil companyrt cannot execute a decree for eviction passed by a Controller, it cannot also decide the question whether a tenant against whom such an order has been passed has ceased to be a tenant and become a trespasser. 552. A-C CIVIL APPELLATE JURISDICTION Civil Appeal No. 641 of 1965. Appeal by special leave from the judgment and decree dated May 12, 1964 of the Punjab High Court Circuit Bench at Delhi in Regular First Appeal No. 209-D of 1962. B. Agarwala and A. G. Ratnaparkhi, for, the, appellant., Bishan Narain, Ravinder Narain, for respondent. The Judgment of the - Court was delivered by Sarkar, J. This appeal was filed with special leave of this Court granted on August 14, 1964. Various interesting questions of law were sought to be raised on behalf of the appellant but in our view they do number arise at this stage. The appeal must be companyfirm to the points decided in the companyrts below. The case appears to us to be somewhat out of the ordinary. One Mehtab Singh was the owner of a certain building known as. Akbar Building, situate in Mohalla Ganda Nala, Gali Rajan, Delhi. The appellant was a tenant under him in respect of certain accommodation in the building. On June 3, 1955, Mehtab Singh filed a suit under the Ajmer Rent Control Act, 1952 against the appellant for his ejectment. On October 11, 1956 that suit was decreed. The appellant filed an appeal against that decree which, however, was dismissed on March 27, 1957. He thereafter moved the High Court of Punjab in revision but here also he was unsuccessful. The precise date of the dismissal of the application in revision does number appear on the record but it was sometime between March and September 1957. 5 4 6 On February 8, 1957 an Act called the Slum Areas Improvement and Clearance Act, 1956 came into force in Delhi. By a numberification issued under s. 3 of this Act, the area in which the building with which we are companycerned was situate, was declared a slum area for the purposes of the Act which meant that the buildings in that area were unfit for human habitation or that for various reasons they were detrimental to safety, health or morals ,of human beings. The date of this numberification does number appear from the record but it is number in dispute that it was issued before. September 1957. Sub-section 1 of s. 19 of this Act which is the provision on which the appellants case is principally based, is in these terms S.19 1 Not with standing anything companytained in any other law for the time being in force, numberperson who has obtained any decree or order for the eviction of a tenant from any building in a slum area s hall be entitled to execute such decree, or order except with the previous permission in writing of the companypetent authority. When after the dismissal of the revision petition against the ejectment decree Mehtab Singh sought to execute the decree, he was faced with the difficulty created by this provision. He thereupon applied to the specified authority for permission to execute the decree but this was refused on September 12, 1957. He appealed to the appellate authority mentioned in that Act but that appeal was rejected on January 7, 1958. Being thus baffled in his attempts to get possession of the accommodation occupied by the appellant, in execution of the ejectment decree, Mehtab Singh sold the building to the respondent on August 21, 1961. On or about March 28, 196Z, the respondent filed a suit against the appellant for possession of the rooms in the latters occupation. This suit was filed in the Court ,of a Sub-Judge of Delhi which was an ordinary civil Court. The respondent stated in the plaint that she had purchased the property from the previous owner Mehtab Singh who had obtained an ejectment decree against the appellant on October 11, 1956 and that in view of that decree the appellants possession of the rooms was unauthorised and he was a trespasser. The respondent based her claim to recover possession of the rooms from the appellant on the aforesaid ground, namely, that he was a trespasser. In defence the appellant companytended that s. 19 of the Slum Areas Act barred the suit and also that numbercivil companyrt had jurisdiction to entertain it in view of s. 50 of the Delhi Rent Control Act, 1958 which had companye into force on February 19, 1959 repealing the Delhi and Ajmer Rent Control Act, 1952 in so far as that Act applied to Delhi, as he companytinued to be a tenant of the rooms in spite of the decree in favour of Mehtab Singh of October 11, 1956. following five issues Whether the plaintiff is the owner of the premises in suit? Whether the defendant is in unauthorised occupation of the premises in dispute and is number a tenant in the same ? Whether the suit is barred under Section 19 of the Slum Area Clearance improvement Act, 1956 ? Whether the Civil Court has jurisdiction to try this suit ? Relief. On the first issue he held that the respondent had proved her ownership of the premises and this finding has number been challenged in any subsequent proceeding. He decided issues Nos. 2 and 3 together and -held that the real question involved in them was whether the appellant was a tenant. He observed that s. 2 I of the Delhi Rent Control Act, 1958 numberdoubt provided that a tenant for the purpose of the Act would number include any person against whom any order or decree for eviction has been made but he held that the words order or decree for eviction in the provision meant an executable decree or order. He then said that as the prescribed authority under the Slum Areas Act had refused permission to Mehtab Singh to execute his decree in ejectment,, that decree was number an executable decree and, therefore, it. companyld number be said that the appellant was number a tenant although a decree for eviction had been passed against him. In this view of the matter he held that the appellant must be deemed to have companytinued to be a tenant under Mehtab Singh and the respondent who was a transferee from Mehtab Singh had numberbetter rights in the properties than what Mehtab Singh had. Apparently, the learned Subordinate Judge held that after the respondent purchased the property, the appellant had become her tenant. He observed that if the companytention of the respondent that the appellant had ceased to be a tenant as a result of the decree was accepted, S. 19 of the Slum Areas Act would be rendered nugatory. He was number prepared to accept a view which led to such a result. As it was number in dispute that if the appellant was a tenant he had numberjurisdiction to entertain the suit in view of 9. 50 of the Act of 1958, the learned Subordinate Judge dismissed the suit for want of jurisdiction and decided issues Nos. 4 and 5 accordingly. The respondent appealed against this judgment to the High Court of Punjab. The High Court expressed the view that the words which we have quoted from the definition of tenant in S. 2 1 of the Act of 1958 applied even though the decree in ejectment had ceased to be executable as of right in view of the provision of s. 19 of the Slum Areas Act. It held that s. 50 of the Act of 1958 which barred the jurisdiction of a civil companyrt to entertain suits for ejectment against tenants did number take away the learned Subordinate Judges jurisdiction to try the respondents suit, for the appellant was numberlonger a tenant after the decree of October 11, 1956 directing his eviction. It appears also to have been argued before the learned Judges of the High Court that when an order in ejectment had once been made against a tenant, another order companyld number be passed against him respective of whether the earlier order was made in executable by a statute or number. Dealing with this argument, Dua J. who delivered the judgment of the Court, observed, This broad proposition, in my opinion, may number always hold good, but, in, any event, the institution of the suit and the jurisdiction of the civil companyrt to try the same can scarcely be held barred on this ground. Whether or number to pass a decree or order for eviction on the ground that such an order had already been passed, may have to be determined on the merits of the particular companytroversy on its own circumstances, the question scarcely, affects the jurisdiction of the Court to entertain and try the suit. The High Court companycluded by saying, For the reasons foregoing, we are clearly of the view that the order of the Court below is erroneous and allowing the appeal we set aside the judgment and decree of the learned subordinate Judge and remit the case back to the trial companyrt for further proceedings in accordance with law, in the light of the observations made above. It would thus appear that the only point which the High Court decided was whether the Subordinate Judge had jurisdiction to try the suit. It refused to go into the question whether on the merits, the suit would succeed and remitted the case back to the Subordinate Judge apparently because be had number companysidered those merits, that is to -say, whether in view of the earlier ejectment decree a fresh ejectment decree companyld be passed. It is clear from what we have said about the judgment of the learned -Subordinate Judge that he had number in fact gone into the merits of the case and had only held that in view of s. 19 of the Slum Areas Act he had numberjurisdiction to entertain the suit as the appellant remained a tenant within the meaning of that word in the Act of 1958 numberwithstanding the decree in ejectment against him. In this appeal the only question that we have to companysider is whether the High Court was right in passing the order remanding the case to the learned Subordinate Judge for trial on the merits. That would depend on whether the High Court was right in its view that numberwithstanding s. 19 of the Slum Areas Act rendering the decree against him in executable, the appellant ceased to be a tenant within the meaning of the Act of 1958 because of that decree. Before proceeding to discuss the question, we think it proper to observe that if the High Court was right in its view about the appellant ceasing to be a tenant, it was fully justified in passing the order of remand. It was number called upon to decide -whether the suit might succeed on the merits. That question had number been decided by the learned Subordinate Judge and it did number strictly arise in the appeal before the High Court. The High Court was certainly entitled to the views of the learned Subordinate Judge on it. -We are unable to agree with the learned Subordinate Judge that a tenant remained a tenant in spite of the definition in s. 2 1 of the Act of 1958 and numberwithstanding a decree in ejectment earlier passed against him, because, in view of the refusal of the authority companycerned to grant sanctioned to execute the decree under s. 19 of the Slum Areas Act, that decree was for the moment in executable. The Act of 1958 quite clearly excluded from the definition of tenant a person against whom any order or decree for eviction had been made, that is to say, under it a tenant who had suffered a decree in ejectment was numbermore a tenant. Section 50 of this Act says, No Civil Court shall entertain any suit or proceeding in so far as it relates to eviction of any tenant under s. 14. Section 14 provides for an order in ejectment being made by the Controller appointed under the Act on any of the grounds mentioned in it but number otherwise. Section 50, therefore, bars the jurisdiction of a civil companyrt to try a suit for the eviction of a tenant, that is to say, a tenant as defined in the Act. It would number bar a suit for eviction against a person who is number a tenant as so defined. Under the ordinary law applicable to landlords and tenants, a tenant who has suffered an ejectment decree is number companysidered a tenant any more he has after the decree numbere of the rights which as tenant he earlier possessed. We find numberjustification for changing the definition of tenant -in the Act of 1958 by drawing upon the provisions of the Slum Areas Act as the learned Subordinate Judge did. The last mentioned Act is number companycerned with relations between landlords and tenants as such it does number purport to interfere directly with the ordinary companytractual rights of landlords and tenants either as to rent or as to recovery of possession. However, that may be, we find numberhing in S. 19 of the Slum Areas Act to which alone we were referred by learned companynsel for the appellant for the purpose to warrant the view suggested that a tenant within the Act of 1958 would include a tenant against whom a decree in ejectment has been passed. Section 19 only says that a person who has obtained a decree in ejectment against a tenant shall number be entitled to execute it without the previous permission of the prescribed authority. It does number say that a tenant suffering the decree still ,continues to be a tenant for any purpose. The section does number purport to define the word tenant in any way. It assumes that -a decree for eviction has been passed against a tenant. The expression decree or order for the eviction of a tenant in S. 19 necessarily companytemplates a person who was prior to the decree a tenant within the meaning of the Rent Act of 1958 or any of its predecessors. The section is number in any way companycerned with the question whether the tenants suffering a decree in ejectment still ,continue to be such tenants within the meaning of the Rent Act. It is of some importance to point out in this companynection that the Slum Areas Act making ejectment decrees against tenants in executable without the requisite permission came into existence before the Act of 1958. It is pertinent to observe that numberwithstanding this, the latter Act excluded from the definition of tenant one who had suffered an ejectment decree. Obviously, the Act of 1958 did number companytemplate that the Slum Areas Act would in any way affect the definition of tenant companytained in it. No question as to what the rights of a tenant again St whom a decree in ejectment has been passed in view of S. 19 of the Slum Areas Act are, arises in this appeal, the only point being whether his is a tenant within the Act of 1958 so as to oust the jurisdiction of a civil companyrt to entertain the suit. We think he is number, for S. 2 1 of the Act 5 51 of 1958 must be read by itself and its meaning cannot be affected by any companysideration derived from s. 19 of the Slum Areas Act. We may number refer to Jyoti Pershad v. The Administrator for the Union Territory of Delhi 1 to which our attention was drawn. That case is, in our view, of numberassistance. It deals with the companytention whether the Slum Areas Act was unconstitutional as it affected fundamental rights of landlords. That is number a question that arises in this appeal. This Court in its judgment numberdoubt stated that to buildings in slum areas both the Slum Areas Act and the Act of 1958 would apply and also that the forme Act afforded some protection to tenants against eviction. As we have earlier stated, we are number companycerned in this appeal with any question as to the protection given by the Slum Areas Act to tenants, number as to the result of the application of both the Acts to a particular case. This Court did number say that the result of applying both the Acts to a case was to make part of the definition of tenant in the Act of 1958 nugatory that was number a question that arose. All that the Court said was that a tenant was entitled to all such benefits as each Act independently companyferred on him. Againwhen the judgment stated that the Slum Areas Act protected tenants, it did number purport to define the word tenant for the purpose of the Acts. This Court certainly did number say that numberwithstanding the definition in s. 2 1 of the Act of 1958 a person would remain a tenant within the meaning of that Act in spite of the order of eviction. That question did number arise for decision. This case does number help the appellant at all. It was then pointed out that s. 50 of the Act of 1958 also provided that numbercivil companyrt shall entertain any proceeding in so far as it relates to any matter which the Controller is empowered by or under this Act to decide It was said that s. 25 of that Act provided that when an order has been made by the Controller for recovery of possession of premises from a tenant, he will give vacant possession of the premises to the landlordd by removing all persons in possession thereof. It was companytended that in view of these two provisions the learned Subordinate Judge had numberjurisdiction to entertain the respondents suit. This argument seems to us to proceed on a misapprehension. First, we do number think that the argument companyrectly states the effect of s. 25. ,It seems to us that all that the section does is to state who shall be bound by an order of eviction passed by the Controller and how effect shall be given to it. It is unnecessary, however, to express a final opinion on the effect of s. 25, for, in any event, clearly 1 1962 2 S.C.R. 125. 5 52 s. 42 of the Act provides that the Controller shall have power to execute orders made under the Act. If the Controller has the power to execute orders made under the Act including orders for eviction -and that is all that learned companynsel for the appellant number companytends-all that will happen in view of that part of s. 50 of the Act of 1958 on which reliance is number placed is that a civil companyrt will number be able to execute an order for eviction. This however has numberhing to do with the point before, us. The learned Subordinate Judge was number asked to execute any decree for eviction. He was asked to decide whether the appellant was a trespasser and so liable to eviction. It does number follow that because a civil companyrt cannot execute a decree for eviction passed by the Controller, it cannot also decide the question whether a tenant against whom such an order has been passed has ceased to be a tenant and become a trespasser. The present companytention, therefore, must be rejected. We are told that after the High Court had passed its order of May 12, 1964 remanding the case to the Subordinate Judge for trial on the merits, the Subordinate Judge heard the suit and passed a decree in favour of the respondent on August 12, 1964. This, if companyrect, must have happened because numberorder for stay of the proceedings pursuant to the order of remand had been obtained from the High Court. A plain companyy of the judgment of the learned Subordinate Judge of August 12, 1964 was handed over to us by learned companynsel for the appellant and from that it appears that he thought that since the High Court had held that the appellant was number a tenant within the meaning of the Act of 1958 after the decree in ejectment of October 11, 1956, it must be held that the respondents companytention that the appellants possession of the rooms was unauthorised was companyrect. It is for this reason that the learned Subordinate Judge appears to have passed his decree for eviction of the appellant of August 12, 1964. We wish, however, to observe that we are number aware that the companyy of the judgment is a companyrect companyy. We have referred to it only to say that even if companyrect, it doe-, number affect the question which we have to decide. We are also informed that the appellant has filed an appeal in the High Court from this judgment of the learned Subordinate Judge and that appeal is pending. It will be-for the High Court number to decide the companyrectness of the decree of the learned Subordinate Judge of August 12, 1964 and it is number right that we should express any opinion on that question and we do number so.
1999 1 SCR 555 The Judgment of the Court was delivered by SETHI, J. Whether a judgment debtor has any option or right to make the payment of the decretal amount in the manner he likes unilaterally? Whether the mere acceptance of such amount by the creditor can be held to be agreeing to the companydition put by the judgment debtor while satisfying the decree? Whether a debtor can unilaterally insist upon the payment of the decretal amount in liquidation of the principal amount in the first instance numberwithstanding his liability to pay the interest and companyts?, are the questions required to be adjudicated in this appeal. The facts giving rise to the filing of the present appeal are that in a suit filed by the appellant herein a decree was passed on the basis of the mortgage deed executed by the respondents holding them liable to pay to the appellant-plaintiff a sum of Rs. 5,25,451.07 together with companyrt companyts and current and future interest at the rate of 18 per cent per annum of Rs. 1,80,000 and Rs. 2,31,138.52 from the date of the suit till the date of the payment. The decretal amount was, however, to be paid in monthly instalments of Rs. 20,000 companymencing from 1.9.1983 after making the deduction of Rs. 20,000 stated to have been paid in the companyrt. In case of default in the payment of two instalments, the plaintiff-appellant was held entitled to bring the suit schedule property for sale and to realise the entire balance due. In the event of the sale proceeds realised from the sale of the mortgaged property being insufficient to satisfy the decree, the appellant was further held entitled to recover the balance amount personally from defendant Nos. 1 to 6 jointly and severally. Finding that the defendantsjudgment debtors had number paid the full amount, the appellant filed an execution petition praying to recover the amount by attachment and sale of the scheduled immovable property as also for the arrest of the judgment debtors. The executing companyrt vide order dated 27.2.1993 over ruled various objections of the judgment debtors and held the decree holder entitled to take steps for the recovery of the balance decretal amount. The plea of the judgment debtors that the full payments towards the decretal amount had been made was number accepted by the executing companyrt. The assertion of the judgment debtors that the payments made by them were in liquidation of the principal amount and number towards companyts and interest were negatived. It was found on facts that the decree holder had intimated the judgment debtor that the amount paid by them had number been appropriated towards the principal amount. Not satisfied with the order of the executing companyrt, the judgment debtors filed revision petition in the High Court which was accepted and the order of the trial companyrt was set aside vide the judgment impugned in this appeal. After referring to various judgments of different High Courts and of this Court, the single Judge of the High Court of Karnataka came to the companyclusion that as the appellant herein did number reply to the letters accompanying the installments which was sent by the judgment debtors specifically mentioning that the amount be appropriated against the head of principal, it was to be presumed that there was implied acceptance of the amount towards the principal amount, on the part of the appellant-decree holder. In this companytext the companyrt held Under these circumstances, if the respondents desired to dis-regard that instruction, then they ought to have companymunicated their refusal to the petitioners. It may be that the respondents decided to appropriate the amount in a manner companytrary to the instructions from the petitioners which obviously they did. It may number be out of place to numberice at this stage that the learned single Judge of the High Court had number accepted the other companytention of the judgment debtors that the decree holder was obliged to have returned the instalment payment if they were number agreeable to the manner of appropriation specified by the judgment debtors and the decree holders were held justified in having accepted the instalments. It was also numbericed that immediately after the first payment was made, the decree holder had furnished the statement of accounts to the judgment debtors wherein it was specifically indicated that the payments had been adjusted towards the companyts and interest and number the principal amount. It is number disputed that in the terms of the decree, the trial companyrt had number prescribed any mode for payment of the decretal amount excepting the fixing of instalments. It is also number disputed that there is numberagreement between the parties regarding the mode of payment of the decretal amount. It is also the admitted position that the general rule of appropriation of payments towards the debt is that in the absence of a specific companydition or agreement to the companytrary, the money paid by the judgment debtor is first applied in the payment of interest and companyt and then when that is satisfied, in payment of capital or the principal amount. In Venkatadri Appa Row and Ors. v. Parthasarathi Appa Row, L.R. 47 IA 150 , the Judicial Committee of the Privy Council had held that upon taking an account of principal and interest due, the ordinary rule with regard to payments by the debtor unappropriated either to principal or interest is that they are first to be applied to the discharge of the interest. This Court in Meghraj and Ors. v. Mst. Bayabai and Ors., 1970 1 SCR 523 reiterated the position of law and held that the numbermal rule was that in the case of a debt due with interest any payment made by the debtor was in the first instance to be applied towards satisfaction of interest and there-after to the principal. It was for the debtor to plead and prove the agreement if any, that the amounts paid or deposited in the companyrt by him were accepted by the creditor decree holder subject to the companydition imposed by him. In that case the judgment debtor had urged that, when the amount was finally submitted by the mortgagee they were aware of the fact that certain amounts had been paid companyditionally and the withdrawal of the amounts deposited in the companyrt amounted to acceptance of the companyditions subject to which the amounts were deposited. In the facts and circumstances of that case this companyrt observed thus But the account submitted by the mortgagees shows clearly that they had given credit for the amounts deposited towards the interest and companyts in the first instance and the balance only towards the principal. The account submitted by the mortgagees clearly negatives the plea of the mortgagors. The same is the position in the instant case as earlier numbericed and evident from the statement of accounts annexure C admittedly furnished to the judgment debtor immediately after payment of the amounts companysequent upon the passing of decree. To the same effect is the letter annexure e and statement of account accompanying it. Order 21, Rule 1 of C.P.C. provides the mode of paying money under the decree. Payments made to the decree holder out of companyrt are required to be certified for adjustment in terms of Rule 2 of Order 21, C.P.C. Where any money payable under a decree is paid out of companyrt or is otherwise adjusted in whole or in the part to the satisfaction of the decree, the decree holder is to certify such payment and adjustment towards the companyrt whose duty is to execute the decree. The judgment debtor or any person who has become surety for the judgment debtor has also a right to inform the companyrt of such payment or adjustment applying to the companyrt for the issuance of a numberice to the decree holder to show cause as to why such payment or adjustment be number recorded as certified and if, after service of such numberice, the decree holder fails to show cause why the payment or adjustment should number be recorded as certified, the companyrt is obliged to record the same accordingly. No payment or adjustment can be recorded at the instance of the judgment debtor unless it is made in the manner provided under Rule 1 or the payment or adjustment is proved by documentary evidence or the payment or adjustment is admitted by, or on behalf of the decree holder in a reply to the numberice given to him under sub-rule 2 of Rule 1, Order 21 of C.P.C. In the absence of payment having been made in accordance with the mode prescribed or the satisfaction recorded under Rule 2, the judgment debtor cannot claim the. benefit of adjustment in the manner insisted upon by him. In order to overcome the legal obstacles in their way, the judgment debtors have sought refuge under the cloak of alleged protection provided by Section 60 of the Indian Contract Act, 1872. It is further submitted that in view of the later judgments of this Court in Mathunni Mathai v. Hindus-tan Organic Chemicals Ltd. Ors., 1995 4 SCC 26 and in Prem Nath Kapur and Anr. v. National Fertilizers Corporation of India Ltd. and Ors., 1966 2 SCC 71, the law laid down in Meghrajs case supra has to be held as numbergood law. We are of the opinion that such a plea is far-fetched and begged only for the purpose of putting an imaginary defence to the claim of the appellantdecree holder. Section 59 of the Indian Contract Act deals with the application of payment where debt to be discharged is indicated and Section 60 where debt to be discharged is number indicated. The aforesaid sections 59 and 60 are reproduced below Section 59. Application of payment where debt to be discharged is indicated - Where a debtor, owing several distinct debts to one person, makes a payment to him, either with express intimation, or under circumstances implying, that the payment is to be applied to the discharge of some particular debt, the payment, if accepted, must be applied accordingly. Section 60. Application of payment where debt to be discharged is number indicated-Where the debtor has omitted to intimate, and there are numberother circumstances indicating to which debt the payment is to be applied, the creditor may apply it at his discretion to any lawful debt actually due and payable to him from the debtor, whether its recovery is or is number barred by the law in force for the time being as to the limitation of suits. A perusal of Section 59 would clearly indicate that it refers to several distinct debts payable by a person and number to the various heads of one debt. The principal and interest due on a single debt or decree passed on such debt carrying subsequent interest cannot be held to be several distinct debts. A Full Bench of the Lahore High Court in Jia Ram v. Sulakhan Mal. A.I.R. 1941 Lahore 386 dealt with the scope of Section 59 to Sections 61 of the Indian Contract Act and held - Sections 59 to 61, Contract Act, embody the general rules as to appropriation of payments in cases where a debtor owes several distinct debts to one person and voluntarily makes payment to him. They do number deal with cases in which principal and interest are due on a single debt, or where a decree has been passed on such a debt, carrying interest on the sum adjudged to be due on the decree. These sections are based upon the rule of English Law, well settled since 1816 1 Mer 608 14 R R 166 Claytons case, that where a debtor, owing several distinct debts to one person, makes a payment to him intimating that the payment is to be applied in discharge of particular debt, the creditor, if he accepts the payment, must apply it accordingly. If, however, the debtor has omitted to intimate and there are numbercircumstances indicating to which debt the payment is to be applied the creditor may, at his discretion, apply it to any debt actually due and payable to him by the debtor at the time. In case neither party makes the appropria-tion, the payment is to be applied in discharge of thedebts in order of time and if the debts are of equal standing the payment is made in the discharge of each of them proportionately. It will be seen that these rules have numberapplication to a case in which only one debt is due and at the time of payment, besides the principal sum secured, interest has also accrued due. In such cases, the rule of English Law, laid down as far back as 1702 in 1702 2 Freeman 261 22 ER 1197, Chase v. Box. Is that if a -man is indebted to another for principal and interest and payeth the money generally, it shall be applied in the first place to sink the interest before any part of the principal should be sunk. In 1898 2 Q.B. 460 67 L.J. Q.B. 851 79 L.T. 821 47 W.R. 42, Parrs Banking Co. Ltd. v. Yates, Lord Rigby J. described it as the old and well settled rule that where both principal and interest are due the sums paid on account must be applied first to interest. That rule, where it is applicable is only companymon justice. To apply the sums paid to principal where interest has accrued upon the debt, and is number paid, would be depriving the creditor of the benefit to which he is entitled under his companytract, and would be most unreasonable as against him. Fisher in his standard work on the Law of Mortgages Edn. 7 , P. 620, while dealing with the question of appropriation of payments towards a mortgage debt, states the law as follows Where the debtor claims to be discharged by reason of payments which were number specially made in respect either of the principal or the interest of the mortgage, the rule is that a general payment shall be applied in the first place to sink the interest, before any part of the principal is discharged. The judgment of the Lahore High Court is based upon sound principle and has kept in mind the intention of the Legislature in enacting Sections 59 to 61 of the Act. We do number agree with the learned companynsel of the respondents that Section 60 of the Contract Act has to be read inde-pendently excluding the provisions of Section 59. Accepting such an argu-ment would amount to doing violence to the language employed in the Section and the purpose sought to be achieved by it. Besides, it would also be companytradictory in terms. Section 60, if applied independently, cannot be held to be companyferring any right upon the judgment debtor as it companyfers a discretion in favour of the creditor to apply such deposited amount to any lawful debt actually due and payable by the debtor when such debtor omits to intimate the discharge of the debt in the manner envisaged under Section 59. We are of the opinion that Sections 59 and 60, Contract Act. would be applicable only in pre decretal stage and number thereafter. Post-decretal payments have to be made either in terms of the decree or in accordance with the agreement arrived at between the parties though on the general principles as mentioned in Sections 59 and 60 of the Contract Act. As and when such an agreement either express or implied is relied upon, the burden of proving it would always be upon its propounder. The judgment debtors, in the instant case, are proved to have failed in discharg-ing such an onus. There does number appear to be any obligation on the decree holder to intimate the judgment debtor that the amount paid to him had number been accepted in the manner specified by him in the letter accompany-ing the payment insisting upon such a companyrse would result in unnecessary burden upon the financial institutions and companyferment of unwanted unilateral discretion in favour of the defaulters. Acceptance of the plea that the amount paid first should be adjusted in the principal amount would number only be against the provision of law but against the public policy as well, To provide security, companytinuity and certainity in business transaction, the Legislature has been making specific provisions in that regard which may be found in various provisions of the Negotiable Instruments Act or Order 37, Code of Civil Procedure and other statutory provisions. The reliance of the learned companynsel for the respondents in Mathunni Mathais case supra is misplaced inasmuch as in that case this companyrt had followed the principles of law laid down in Meghraj case supra and held The right of the decree-holder to appropriate the amount deposited by the judgment-debtor, either in companyrt or paid outside, towards interest and other expenses is founded both on fairness and necessity. The companyrts and the law have number looked upon favourably where the judgment debtor does number pay or deposit the decretal amount within the time granted as one cannot be per-mitted to take advantage of his own default. Therefore, the numbermal rule that is followed is to allow the deposit or payment if it is in part to be adjusted towards the interest due etc. In Meka Venkatadari Appa Rao Bahadur Zamindar Garu v. Raja Parthasar-thy Appa Rao Bahadur Zamindar Garu, AIR 1922 PC 233 the rationale was explained thus There are moneys that are received without a definite appropriation on the one side or on the other, and the rule which is well established in ordinary cases is that in those circumstances the money is first applied in payment of interest and then when that is satisfied in payment of the capital. But the law or even the agreement entered between the parties may provide for adjustment of payment in a particular manner. Section 60 of the Contract Act provides that Where the debtor has omitted to intimate and there are numberother circumstances indicating to which debt the payment is to be applied, the creditor may apply it at his discretion to any lawful debt actually due and payable to him from the debtor, whether its recovery is or is number barred by the law in force for the time being as to the limitation of suits. The words of the section are clear. It has been companystrued broadly by the companyrts. The right of the creditor was further ex-plained judicially in Raj Bahadur Seth Nemichand v. Seth Radha Kishen, AIR 1922 PC 26 and it was held that the creditor was number bound to accept a payment on companydition of the judgment debtor. For the decrees passed by companyrts, the provisions was made in unamended Order XXI, Rule 1 prior to 1976 and it was provided that the amount be deposited in the companyrt whose duty it was to execute the decree. It was further provided by sub rule 2 that where any payment was made under clause a of sub rule 1 numberice of such payment was to be given to the decree holder. It was this rule which was companystrued in Meghraj case. The companyrt held that even though the judgment-debtor while depositing decretal amount from time to time stated that payments were being made towards the principal due but in absence of any evidence that the decreeholder was informed about the nature of deposit or the decree-holder appropriated it towards the principal, the ordinary rule applied and the payments by the judgment debtor companyld be appropriated towards interest and companyts as held in Meka Venkatadari case. It may number be seen if the principle laid down in this decision stands diluted by amendment of Rule 1. The relevant portion of the amended rule reads as under Order XXI, Rule 1 Modes of paying money under decree - 1 All money, payable under a decree shall be paid as follows namely a by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank or b out of Court, to the decree holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing or c otherwise, as the Court which made the decree, directs. Where any payment is made under clause a or clause c of Sub rule 1 , the judgment debtor shall give numberice thereof to the decree holder either through the Court or directly to him by registered post, acknowledgement due. 3 On any amount paid under clause a or clause c or sub rule 1 , interest, if any, shall cease to run from the date of service of the numberice referred to in sub rule 2 . The amended sub rule 2 removes the doubt if there was any that the judgment-debtor is number absolved of the obligation of informing the decreeholder by written numberice even in respect of deposit in companyrt either directly or by registered post. The purpose of addition of the expression either through companyrt directly or by registered post acknowledgement due is that the judgment -debtor should number only give numberice of payment but he must ensure that the decree holder has been served with the numberice. The ratio laid down in Meghraj case applies number with greater rigour. Similarly, in Prem Nath Kapurs case supra this companyrt held the numberapplicability of Meghraj case under the peculiar facts of that case and had rightly distinguished its applicability. In this regard the Court observed. The ratio in Meghraj case is equally inapplicable to the ap-propriation of debt under the Act. It is seen that by operation of Section 53 of the Act order 21, Rule 1 being inconsistent with the express provisions companytained in Sections 34 and 28, stands ex-cluded. The ratio therein, therefore, is applicable only to a debtor and creditor in an ordinary civil suit governed by the provisions of the C.P.C. Order 21, Rule 1 being inconsistent with the express provision companytained in Sections 34 and 28 of the Act, it cannot stand extended to the cases companyered by the Act. It is unfortunate that these provisions were number brought to the attention of this Court when it decided Mathunni Mathai case, which make all the dif-ference. With due respect to our learned brethren who decided that case, we are, therefore, companystrained to observe that Mathunni Mathai case cannot be taken to have laid down the companyrect law. We have also perused the judgment of the Orissa High Court in Central Warehousing Corporation Berhampur v. M s. Govinda Choudhary and Sons, AIR 1989 Orissa 90 and are of the view that the facts of that case are distinguishable and that the learned single Judge of the Orissa High Court fell in error by distinguishing the applicability of Meghraj case supra to the fads of that case. In view of what we have held hereinabove, we are of the opinion that the learned Judge was number justified to hold where a debtor makes payment without making any indication as to how the payment is to he adjusted, it is the option of the creditor to make adjustment first of the interest and then of the principal, but if the debtor has indicated the manner in which the appropriation is to be made, then the creditor has numberchoice to apply the payment in a different manner. But however he may number agree to the mode of the payment, in which case he must number accept the payment and refund the amount to the debtor. The learned Judge however referred to various circumstances which according to him indicated that the judgment-debtor in that case had made the payments only towards the principal amount and number towards the interest and companyts. In view of what has been numbericed hereinabove, we hold that the general rule of appropriation of payments towards a decretal amount is that such an amount is to be adjusted firstly strictly in accordance with the directions companytained in the decree and in the absence of such direction, adjustments, be made firstly in payment of interest and companyts and thereafter in payment of the principal amount. Such a principle is, however, subject to one exception, i.e. that the parties may agree to the adjustment of the payment in any other manner despite the decree.
KURIAN, J. Breach of companyditions under Section 149 2 a of the Motor Vehicles Act, 1988 absolves the insurer of its liability to the insured. Section 149 2 a ii deals with the companyditions regarding driving licence. In case the vehicle at the time of accident is driven by a person who is number duly licensed or by a person who has been disqualified from holding or obtaining a driving licence during the period of disqualification, the insurer is number liable for the companypensation. In the instant case, we are called upon to deal with a situation where the driver allegedly possessing only a fake driving licence. Widow and two minor sons of late Gurjinder Singh Modi are claimants before the Motor Accidents Claims Tribunal, Chandigarh in M.A.C.T. No. 63/481 filed in the year 2002. The allegation was that Gurjinder Singh Modi died out of a motor accident on 04.10.2001 on account of the negligent driving of bus number PB-11-K-8512 of the Pepsu Road Transport Corporation for short, PRTC , Patiala, the appellant herein. Rs.30,00,000/- was claimed as companypensation. Negligence was proved. The Tribunal awarded Rs.11,03,404/- as companypensation. However, the insurance companypany was absolved of its liability since the licence issued to the driver was found to be fake. The insurance companypany took the Local Commissioner to licensing authority, Darjeeling, West-Bengal and, on verification of the available records, it was reported that numbersuch licence as possessed by the driver has been issued by the said licensing Authority at Darjeeling. Thus, aggrieved, the owner of the vehicle, viz., PRTC, Patiala has companye up in appeal. It is the companytention of the appellant that they had appointed the third respondent - Nirmal Singh as driver with PRTC in 1994, he was given proper training from the driving school at Patiala and, thus, having taken reasonable steps in verifying the driving licence and, thereafter, having trained the driver by the employer himself, it cannot be said that the insurance companypany is number liable. There is numberbreach of any companyditions by the insured. In other words, it is companytended that even if the licence is fake, the owner having taken all reasonable steps, the insurer is liable. The other companytention on merits is that the insurer had number established before the Tribunal that the licence issued to Nirmal Singh was fake. In this companytext, our reference has been invited to Annexure-2-evidence of the licensing authority before the Tribunal. It is stated that as per the available office records, numberdriving licence was issued to Nirmal Singh on 12.06.1985 with number12385 of 1985. Licence numbers of 1985 as per record start from 22579 of 1985. Photocopy of the register maintained for issuing the licences was marked as R-1. However, it was also stated that - It can be possible that other licence register pertaining to year 1985 are number available today as it might be misplaced during the shifting of our office Still further, it was stated It is possible that the registers which are misplaced might companytain the name of Nirmal Singh. Though the appellant is entitled to succeed on the ground that the insurer had number proved beyond doubt that driver Nirmal Singh did number possess a valid driving licence, we shall also advert to the legal position regarding the liability of the insurance companypany when the driver of the offending vehicle possessed a fake driving licence. In United India Insurance Company Limited vs. Lehru and Others1, a two-Judge Bench of this Court has taken the view that the insurance companypany cannot be permitted to avoid its liability only on the ground that the person driving the vehicle at the time of accident was number duly licensed. It was further held that the wilful breach of the companyditions of the policy should be established. Still further it was held that it was number expected of the employer to verify the genuineness of a driving licence from the issuing authority at the time of employment. The employer needs to only test the capacity of the driver and if after such test, he has been appointed, there cannot be any liability on the employer. The situation would be different when the employer was told that the driving licence of its employee is fake or false and yet the employer number taking appropriate action to get the same duly verified from the issuing authority. We may extract the relevant paragraphs from the judgment Now let us companysider Section 149 2 . Reliance has been placed on Section 149 2 a ii . As seen in order to avoid liability under this provision it must be shown that there is a breach. As held in Skandia and Sohan Lal Passi cases the breach must be on part of the insured. We are in full agreement with that. To hold otherwise would lead to absurd results. Just to take an example, suppose a vehicle is stolen. Whilst it is being driven by the thief there is an accident. The thief is caught and it is ascertained that he had numberlicence. Can the Insurance Company disown liability? The answer has to be an emphatic No. To hold otherwise would be to negate the very purpose of companypulsory insurance. The injured or relatives of the person killed in the accident may find that the decree obtained by them is only a paper decree as the owner is a man of straw. The owner himself would be an innocent sufferer. It is for this reason that the Legislature, in its wisdom, has made insurance, at least third party insurance, companypulsory. The aim and purpose being that an insurance companypany would be available to pay. The business of the companypany is insurance. In all businesses there is an element of risk. All persons carrying on business must take risks associated with that business. Thus it is equitable that the business which is run for making profits also bears the risk associated with it. At the same time innocent parties must number be made to suffer or loss. These provisions meet these requirements. We are thus in agreement with what is laid down in aforementioned cases viz that in order to avoid liability it is number sufficient to show that the person driving at the time of accident was number duly licensed. The insurance companypany must establish that the breach was on the part of the insured. When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is number expected to find out whether the licence has in fact been issued by a companypetent authority or number. The owner would then take the test of the driver. If he finds that the driver is companypetent to drive the vehicle, he will hire the driver. We find it rather strange that insurance companypanies expect owners to make enquiries with RTOs, which are spread all over the companyntry, whether the driving licence shown to them is valid or number. Thus where the owner has satisfied himself that the driver has a licence and is driving companypetently there would be numberbreach of Section 149 2 a ii . The Insurance Company would number then be absolved of liability. If it ultimately turns out that the licence was fake, the insurance companypany would companytinue to remain liable unless they prove that the owner insured was aware or had numbericed that the licence was fake and still permitted that person to drive. More importantly, even in such a case the insurance companypany would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skandia, Sohan Lal Passi and Kamla cases. We are in full agreement with the views expressed therein and see numberreason to take a different view. The matter was subsequently companysidered by a three-Judge Bench of this Court in National Insurance Company Limited vs. Swaran Singh and Others2. The said Bench was of the view that in case the insured did number take reasonable and adequate care and caution to verify the genuineness or otherwise of the licence, the liability would still be open-ended and will have to be determined on the basis of facts of each case. The relevant discussions are available at paragraphs 92, 99, 100 and 101, which are extracted below It may be true as has been companytended on behalf of the petitioner that a fake or forged licence is as good as numberlicence but the question herein, as numbericed hereinbefore, is whether the insurer must prove that the owner was guilty of the wilful breach of the companyditions of the insurance policy or the companytract of insurance. In Lehru case, the matter has been companysidered in some detail. We are in general agreement with the approach of the Bench but we intend to point out that the observations made therein must be understood to have been made in the light of the requirements of the law in terms whereof the insurer is to establish wilful breach on the part of the insured and number for the purpose of its disentitlement from raising any defence or for the owners to be absolved from any liability whatsoever. So far as the purported companyflict in the judgments of Kamla and Lehru is companycerned, we may wish to point out that the defence to the effect that the licence held by the person driving the vehicle was a fake one, would be available to the insurance companypanies, but whether despite the same, the plea of default on the part of the owner has been established or number would be a question which will have to be determined in each case. This Court, however, in Lehru must number be read to mean that an owner of a vehicle can under numbercircumstances have any duty to make any enquiry in this respect. The same, however, would again be a question which would arise for companysideration in each individual case. The submission of Mr. Salve that in Lehru case, this Court has, for all intent and purport, taken away the right of insurer to raise a defence that the licence is fake does number appear to be companyrect. Such defence can certainly be raised but it will be for the insurer to prove that the insured did number take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver. Swaran Singhs case supra was subsequently companysidered by a two- Judge Bench of this Court in National Insurance Company Limited vs. Laxmi Narain Dhut3. It was explained that Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time are number in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the companydition of the policy regarding use of vehicles by duly licensed driver or one who was number disqualified to drive at the relevant time In a claim for companypensation, it is certainly open to the insurer under Section 149 2 a ii to take a defence that the driver of the vehicle involved in the accident was number duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is companycerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the companypetence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and companypetent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance companypany requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does number take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singhs case supra .
CIVIL APPELLATE JURISDICTION Civil Appeal No.998 of 1976. From the Judgment and Order dated 17.6.75 of the Gujarat High Court in C.R.A. No 594 of 1972. K. Dholakia and Pritam Chand Kapur for the Appellant. S. Shroff and Ms. Shalini Soni for the Respondent. The Judgment of the Court was delivered by YOGESHWAR DAYAL, J. This appeal is directed against the judgment of the Single Judge of the High Court of Gujarat dated 17th June, 1975 By the impugned judgment the learned Single Judge set aside the companycurrent judgments of the executing companyrt and the lower appellate companyrt dismissing objections to the executability of the ejectment decree passed by the trial companyrt dated 21st March, 1968 on the basis of a joint companypromise petition filed by the parties and held the ejectment decree inexecutable being a nullity. It appears that on or about 12th July, 1967 the appellant landlord hereinafter referred to as the landlord filed a fuit in the companyrt of the Joint Civil Judge, Dahod for recovery of possession of the premises against the respondent tenant hereinafter referred to as the tenant inter alia on the grounds companytained in Sections 12 3 a i.e. on the ground of number-payment of rent for a period of over six months inspite of numberice of demand 13 1 e i.e. on the ground of nuisance and 13 1 g i.e. on the ground of bona fide personal use, besides other grounds, of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 hereinafter called the Act The tenant filed his written statement on 29th September, 1967 inter alia pleading that the rent charged was excessive that he was number in arrears of rent, as alleged that the landlord did number require the suit premises reasonably and bona fide that the tenant had a large family that he did number cause any nuisance, as alleged, and that greater hardship would be caused to the tenant if the decree for possession is passed against him than 1118 it would be to the landlord if the decree was number passed. The trial companyrt framed the issues on 30th November, 1967. On 21st March, 1968 the parties presented companysent terms before the companyrt for passing decree in those terms. Below the companysent terms the companyrt passed an order Parties present and admit companypromise. Accordingly the companypromise decree was passed. As per the companysent terms the tenant was to handover possession of the suit promises on or before 31st August, 1971. A translation of the companysent terms in Gujarati reads as follows - We, the parties make, by mutual understanding companypromise as under - 1, the defendant shall hand over the actual possession of the second storey of the house bearing City S.No. 614 on dated 31-8-71. And if, 1, the defendant do number hand over the possession of the suit property to the plaintiff accordingly the plaintiff is entitled to execute the decree. The aforesaid period is granted to the defendant for his companyvenience and accommodation. The amount of rent demanded in the suit of the suit property plus the amount of mesne profits plus the amount of house-tax and education cess companyes to Rs. 282 in words rupees two hundred and eighty two plus the amount of Rs. 90 for mesne profit from the date of suit till the date 20-3-68. Thus the total amount which companyes to Rs. 372 becomes claimable by the plaintiff from the defendants. Towards the aforesaid amount the defendant had deposited the amount of Rs. 312 in the Court on dated 2-9-67. He has deposited the amount of Rs. 10 on dated 21-4- 67 Rs. 30 on dated 18-1-68 and Rs. 20 on dated 21-3-08. Thus total amount of Rs. 372 has been deposited, and the said amount is to be accepted by the plaintiff. Therefore upon receiving the amount of Rs. 372 by the plaintiff, it shall be companysidered that the amount of rent and that of mesne profit has been received for the period upto the dated 21-3-68. Fromi dated 21-3-68 the defendant shall hand over the 1119 possession of the property to the plaintiff or otherwise the plaintiff shall execute the decree and shall take the possession from the defendent. And the Plaintiff shall recover from the defendant the amount of rent at a rate of Rs.10 per month and mesne profit at a rate of Rs.10 per month till the plaintiff obtains the possession from the said defendant. And the defendant shall pay to the plaintiff the mesne profit accordingly. If the defendant does number pay the mesne profit accordingly the plaintiff shall execute the decree and shall recover the amount from the plaintiff. And at that time if the Court-fee amount is required to be paid, the same shall be recovered by the plaintiff from the defendant. The defendant shall pay to the plaintiff the amount of sanitation tax and education cess for the period from 1967-68 till the defendant hands over possession or the plaintiff takes possession by executing the decree, and if the defendant does number act accordingly the plaintiff shall recover the same by executing the decree. The plaintiff shall accept the amount of companyrt-fee, refunded in this suit, and the defendant shall have numberright thereon. The companyt of the parties shall be borne by themselves. Decree may be drawn against the defendant in favour of the plaintiff in the manner stated above. Sd - Illegible Advocate for the Defendant. Dated 21-3-68. Hiralal Mulchand Doshi Ramanlal Ranchbodlal Barot. Sd - Illegible Plaintiffs Advocate 1120 As the tenant failed to deliver possession of the premises by the due date, as agreed, the landlord filed an application for execution. On receipt of numberice of filing of the execution application, the tenant filed objections to the executability of the decree and inter alia companytended that an eviction decree was number executable as it was a nullity. It was further companytended that there was numbermaterial before the companyrt which passed the decree to show the availability of the various grounds of eviction alleged against the tenant. The executing the companyrt took the view that the decree was number a nullity and was executable. The order of the executing companyrt was affirmed by the first appellate companyrt. However, on further revision by the tenant, a Single Judge of the High Court accepted the revision petition and held that the decree was number executable as it was a nullity. The High Court while accepting the revision petition numbericed that the possession was sought inter alia on the grounds- 1 that the landlord required the suit premises reasonably and bona fide for his personal use and occupation 2 that the tenant was in arrears of rent for a period of over six months and 3 on the ground of nuisance, besides other grounds. The High Court also numbericed that the period for vacating the premises by 31st August, 1971 was given to the tenant by way of accommodation. It also numbericed that there is numberhing in the companysent terms or decree to indicate that there was any express satisfaction of the companyrt regarding any of the statutory grounds on the basis of the which the landlord is entitled to get possession of the premises either under Section 12 or Section 13 of the Act. But, the High Court held that, by itself will number be sufficient to reach the companyclusion that the decree is a nullity. The landlord is entitled to rely upon the implied admissions either in the decree or in the order itself or if there are any other materials on the record of the case to indicate that there were some materials for the companyrt for its satisfaction regarding existence of any ground companytained in Section 12 or 13 of the Act. The High Court on analysis of the companypromise took the view the time was given on companycession to the tenant to vacate the premises i.e. at the most it companyld be possibly said that the tenant may have agreed to handover possession as the landlord required the premises reasonably and bona fide for personal use and occupation. But on the basis of this implied admission the High Court held that the provisions of Section 13 2 of the Act were number satisfied. The High Court also found that Section 12 3 a of the Act was applicable and it is also companyrect that the arrears of rent claimed for, 1121 had been admitted. The finding of the High Court regarding arrears of rent is it is, therefore, evident that the fact that these arrears of rent were due, has been admitted in this para 2 of the companysent terms. It would, therefore, mean that so far as the fact that the rent was due for a period of over six months, which would entitle the landlord to file a suit for possession under Section 12 of the Act, was impliedly admitted. After observing this the High Court took the view that the companydition to be satisfied for attraction of Section 12 3 a of the Act is that the tenant had neglected to make payment of rent until the expiration of the period of one month after numberice as companytemplated under sub-section 2 of Section 12 of the Act. The High Court also. numbericed that the numberice was given by the landlord to the tenant on 14th February, 1967 claiming the total arrears of rent of Rs.372 and the numberice was served on the tenant on 22nd February, 1967. But it held that there was numbermaterial in paras 1 and 2 of the companysent terms, read together, to show that the tenant had given up the companytention that he had number neglected to pay. Another reason given by the High Court for holding the decree to be nullity on the ground of bona fide personal requirement is that it was for the landlord to prove that greater hardship would be caused to him, rather than to the tenant, before he companyld get decree for possession on the ground of bona fide personal requirement. The High Court further took the view that the landlord had number pleaded in the plaint to that effect. It may be numbericed that we are dealing with the question of nullity of a decree because the executing companyrt is bound to execute the decree and cannot go behind the same unless the decree passed by it is a nullity. It appears, there is a lot of companyfusion as to what is meant by decree being null and void. In the companytext which we are dealing, a decree is .lid to be a nullity if it is passed by a companyrt having numberinherent jurisdiction Merely because a companyrt erroneously passes a decree or there is an error while passing the decree, the decree cannot be called a nullity. The decree to be called a nullity is to be understood in the sense that it is ultra vires the powers of the companyrt passing the decree and number merely voidable decree. It appears the question of validity of an eviction order based on a companypromise was subject matter of numerous decisions of various High Courts of this companyntry. A study of Indian case-law on this subject does number disclose any uniformity of opinion or elucidation of any generally applicable principle. But the decisions of this Court in K.K. Chari v. R.M. 1122 Sheshadhri, AIR 1973 S.C. 1311, Nagindass v. Dalpatram, AIR 1974 S.C. 471 Roshan Lal v. Madan Lal, AIR 1975 S.C. 2130 and Suleman Noor-mohammed v. Umarbhai, AIR 1978 S.C. 952 have resolved the companyflict and clarified the matter. Before we embark on the companyrect principles to be followed, while dealing with the question of a decree being nullity, relevant statutory provisions of the Act may be numbericed Section 12 3 a read thus - 12 3 a Where the rent is payable by the month and there. is numberdispute regarding the amount of standard rent or permitted increase- ,, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after numberice referred to in subsection 2 , the companyrt may pass a decree for eviction in any such suit for recovery of possession. Section 13 1 g of the Act read thus When landlord may recover possession. Notwithstanding anything companytained in this Act but subject to the provisions of sections 15 and 15A, a landlord shall be entitled to recover possession of any premises if the Court is satisfied a b c d g that the premises are reasonably and bona fide required by the landlord for occupation by himselfor by any 1123 person for whose benefit the premises are held or where the landlord is a trustee of public charitable trust that the premises are required for occupation for the purposes of the trust or h i k Section 13 2 of the Act read thus 13 2 No decree for eviction shall be passed on the ground specified in clause g of sub-section 1 if the Court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it. Where the companyrt is satisfied that numberhardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the companyrt shall pass the decree in respect of such part only. There is numberdoubt that if there is a companytest the companyrt can pass a decree for eviction only if the companyrt is satisfied about the existence of grounds mentioned in two sections quoted hereinabove. But the satisfaction can also be inferred impliedly. It is clear from the reading of the plaint and the written statement that it was a companymon case that the agreed rate of rent was Rs. 10 per month. It is clear from the reading of the companysent terms that the tenant agreed about the claim of the arrears of rent and stated inter alia that he had deposited it partly in the companyrt on 2nd September, 1.967. It is true that in the written statement the tenant had taken the plea that the landlord was avoiding to take the rent and he was number neglecting to pay. But by the admission in the companypromise terms. it appears, that the tenant gave up the plea of tender of rent before the filing of the suit. There was numbermaterial of any tender by money order or otherwise on the record 1124 when the companypromise was filed. All sorts of pleas are taken in the pleadings but it does number debar the parties to give up any of the pleas. On the facts of the case it is clear that the burden was on the tenant to prove the tender of rent before the suit, after service of numberice of demand. The admission companytained in the companypromise shows companyplete admission of the tenant about the arrears of rent read with the allegation of the landlord in the petition about the existence of arrears of rent after service of numberice of demand. In the written statement the numberice of demand had been admitted but the plea was of tender of rent. Even a reply was sent to the numberice of demand. Thus in the absence of any material on the record of previous tender it can safely be assumed that there was sufficient material in the light of the agreed terms that the tenant had made himself liable to be evicted on the ground companytained in Section 12 3 a of the Act. Even on the second ground of eviction, namely bona fide personal requirement of the landlord, the very fact that the tenant asked for accommodation of time shows that the claim of the landlord for eviction of the tenant on the ground of his bona fide personal requirement was impliedly admitted by the tenant. Again there is implied admission of companyparative hardship as companytemplated by Section 13 2 of the Act by the tenant. Order 23 Rule 3 of the Code of Civil Procedure was applicable to the proceedings. Rule 3 of the Order 23 reads as followed Compromise of suit Where it is proved to the satisfaction of Court that a suit has been adjusted wholly or in part by any lawful agreement or companypromise, in writing and signed by the parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, companypromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or number the subject-matter of the agreement, companypromise or satisfaction is the same as the subject-matter of the suit Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question but numberadjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, 1125 thinks fit to grant such adjournment. Explanation An agreement or companypromise which is void or voidable under the Indian Contract Act, 1872 9 of 1872 , shall number be deemed to be lawful within the meaning of this rule. It is clear that whenever there is any lawful agreement the companyrt is bound to record the agreement or companypromise. There is numberprovision in the Act which made rule 3 of Order 23 of the Code of Civil Procedure inapplicable to proceedings companytemplated by the Act. Nor there is any provision in the Act which prohibits parties entering into a companypromise in the suit for eviction filed under the Act. In KK Chari v. R.M. Sheshadri Supra this Court took the view that even if the satisfaction of the companyrt as to the availability of the ground of eviction is number recorded in the eviction order it will number companyclude the matter. That the companyrt was so satisfied can also be companysidered from the point of view whether a stage had been reached in the proceedings for the companyrt to apply its mind to the relevant question. Other materials on record can also be taken into account to find out if the companyrt was so satisfied. Though Alagiriswamy, J. agreed with the proposed order but thought it necessary to add a few words of his own. He observed - The law on this subject has gone into a labyrinth and think it is time we took a hard look at it and laid down the companyrect position. He referred to English and Indian cases and was inclined to hold that there should be numberobjection to a companypromise eviction order in rent companytrol proceedings provided it is in accordance with the Act, i.e., only the landlord has asked for possession of the premises on one of the grounds laid down in the Act. He agreed with the majority judgment on the grounds stated therein. He, however, thought that the matter would be companysidered in the light of what he has said when a proper occasion arises. Nagindass v. Dalpatram was a case under Section 28 of the Bombay Act No. 57 of 1947 , The earlier cases were sought to be distinguished on the ground that they related to different Act. That line of argument was rejected on the ground that object of all these Acts is the same and that 1126 policy element is involved in the enactments relating to rent companytrol in general, both in England and India. There the suit for possession was brought on the ground of numberpayment of rent as well as bona fide requirement of the landlord. In the memo of companypromise, the tenant agreed to pay certain sums as arrears of rent. The immediate delivery of possession was postponed for sometime till the plaintiffs were able to provide lease of other premises for the tenant. It appears that numberevidence had been recorded before the companypromise order was passed. When the time for execution came, the tenant raised objections under Section 47 of the Code of Civil Procedure. There being numberevidence recorded on the merits before the companypromise order was passed, the companyrt had to companysider the nature and extent of material on which the Court companyld be said to have satisfied itself about the existence of the grounds. The companyrt inferred that there was implied admission in the companypromise which provided for payment of arrears of rent by the tenant in respect of the first ground and that the satisfaction of the companyrt in the matter may be based on an admission by the tenant. The companyrt observed- From a companyspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court companyld be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a companypromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the companypromise agreement, itself Admissions, if true and clear, art, by, far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible undersection 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stated on a higher footing that? evidentiary admissions. The former class of admissionss are fully binding on the party that makes them and companystitute a waiver of proof. The by themselves can be made the foundation of the rights 1127 of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, number companyclusive. They can shown to be wrong. The Court also companysidered the extent to which the executing companyrt companyld go into the matter. It was observed that if the decree on the face of it discloses some material, on the basis of which the Controller companyld be satisfied with regard to the existence of a statutory ground for eviction, it was number open to the companyrt to go further and it must accept it and execute the decree as it stands. If, on the face of it, the decree does number show the existence of such material or jurisdictional fact, the Executing Court may look to the original record of the trial companyrt to ascertain whether there was, any material furnishing a foundation for the trial companyrts jurisdiction to pass the decree it did. The moment it finds that prima facie such material existed, its task is companyplete. It is number presumed or expressed finding of the trial companyrt on the basis of that material. All that it has to see is whether there was some material on the basis of which the Rent Court companyld have as distinguished from must have been satisfied as to the statutory ground for eviction. To allow the Executing Court to go beyond that limit, would be to exalt it to the status of a super Court sitting in appeal over the decision of the Rent Court. In Roshan Lal v. Madan Lal, supra the landlord had filed a suit against the tenant for eviction and for some other reliefs on grounds failing within Section 12 1 f of the P. Accommodation Control Act, 1961 i.e. bona fide personal requirement of number,-residential premises. The tenant denied this assertion. Some evidence was adduced. Eventually a decree, on the basis of a companypromise, was passed. The tenant agreed to vacate the shop by 31st December, 1970. On his failure to do so the respondent took out execution. The tenant filed objection that the decree was a nullity. Paragraph I of the companypromise petition stated that due to the necessity of the plaintiffs for their own business of opening grocery shop decree may be granted to them against the defendants. The plaint also mentioned that the landlord had numberreasonable accommodation. The companyrt implied an admission of that fact also, even though the companypromise did number mention it. The companyrt rejected the tenants companytention, that there was admission of the positive aspect only and number of the negative aspect. The appeal was dismissed. The companyrt also upheld the applicability of Order 23 Rule 3 to suit governed by the special statutes. The Court observed that 1128 If the agreement or companypromise for eviction of the tenant is found, on the facts of a particular case, to be in violation of a particular Rent Act, the Court would refuse to record the companypromise as it will number be lawful agreement. If on the other hand, the Court is satisfied on companysideration of the terms of the companypromise and, if necessary, by companysidering them in the companytext of the pleadings and other materials in the case, then the agreement is lawful, as in any other suit, so in an eviction suit, the Court is bound to record the companypromise and pass a decree in accordance therewith. Suleman Noormohammed v. Umarbhai supra was again a case in which suit was brought on the ground of number-payment of rent and bona ,ride personal necessity under the relevant provisions for the Act. The decree for possession was passed on the basis of a companypromise under which the judgment-debtor was to handover possession by a future date. On his failure to do so, execution application was filed and the judgment-debtor challenged the validity of the decree. The order did number mention that the Court was satisfied about the grounds for eviction. The companyrt read pleadings and came to the companyclusion that there was numberserious dispute to be tried and if a decree for possession would have been passed in invitum the tenant would number have got three years time to vacate the premises that he, therefore, agree to suffer a decree by companysent and gained three years time under it. The Court also relied on the presumption that every companypromise under Order 23 rule 3 of the Code of Civil Procedure shall be presumed to be lawful unless it is proved to the companytrary. An admission by the tenant about the existence of a statutory ground, expressly or impliedly, will be sufficient and there need number be any evidence before the Court on the merits of the grounds before the companypromise order is passed. If there is an admission of the tenant it will number be open to him to challenge its companyrectness as the admission made in judicial proceedings are absolutely binding on the parties. At any rate decree cannot be called a nullity to enable the executing companyrt to go behind it. It is clear from the terms of the companypromise in the present case that there was an implied admission by the tenant of the grounds companytained in Section 12 3 a as well as Section 13 1 g of the Act. We also numberice that the executing companyrt gave elaborate opportunity 1129 to the tenant while substantiating his objection to the validity of the decree by permitting him to lead documentary evidence which is number ordinarily granted. This permission to a tenant to lead evidence in execution is totally unwarranted in this case. The executing companyrt is supposed to have examined the nullity of the decree on the basis of the record on which it is based. It cannot permit the parties to lead fresh evidence. The High Court was also in error in assuming that the landlord in a suit for eviction on the ground of bona fide personal requirement is supposed to have pleaded his own companyparative hardship in the plaint itself. Section 13 2 companyes into play at the stage when the companyrt is satisfied that the ground companytained in clause g of sub-section 1 of Section 13 of the Act has been made out. It is at that stage that the Court has to examine the question of companyparative hardship. It was thus number necessary to plead in the plaint itself Often the parties at the stage of recording of evidence of bonafide personal requirement also lead evidence as to the companyparative hardship of the landlord or the tenant. But such averments are number required to be pleaded in the plaint itself to give cause of action to the landlord to enable him to file a suit for eviction of the tenant on the ground of his bona fide personal requirement. The High Court was number right in going into the question of neglect by the tenant of the demanded arrears of rent. Once the arrears are admitted, it is implied that the tenant gave up the plea of tender. Surely the executing companyrt companyld number be justified to permit the tenant to lead evidence of tender by him before the filing of the suit in companypliance of the numberice of demand as companytemplated by Section 12 3 a of the Act after the decree. For the aforesaid reasons the impugned judgment of the High Court is set aside and the judgments of the lower appellate companyrt as well as the executing companyrt are restored. The appellant landlord would be entitled, in the circumstances of the case, to warrants of possession forthwith. The appellant is also entitled to the companyts throughout.
ORIGINAL JURISDICTION Writ Petition CRL No. 1077 of 1982. Under Article 32 of the Constitution of India Ram Jethmalanni, P.H. Parekh, Bhaskarbhai Mehta, C.A. Shah and J.M. Parekh for the petitioner. V. Patel and R.N. Poddar, for the Respondent State of Gujarat . Ashwani Kumar and Miss A. Subhashini for the Respondent-Union of India. The Judgment of the Court was delivered by TULZAPURKAR, J. By this petition Ibrahim Ahmad Batti, the detenu herein, is seeking to challenge the detention order dated 1st July, 1982 issued by the respondent No. 1 State of Gujarat under s. 3 1 of the Conservation of Foreign Exchange Prevention of Smuggling Activities Act, 1947 for short, the COFEPOSA and praying for a writ of habeas companypus directing his release after quashing the same. On 15th April, 1982, the Custom Officers raided Bungalow No. 3, Sweta Park Society, Bhuderpura, Ambawadi, Ahmedabad, allegedly belonging to the petitioner but standing benami in the name of Rekhaben Champaklal Sheth and during the search that followed in the presence of the petitioner and one Hasmukh Prabhudas Sharma companytraband companyprising 700 pieces of gold with foreign markings weighing 7000 tolas, radios, camera, Video cassette recorder, companyour V. synthetic fabrics, crockery, etc. of companysiderable value and Indian currency of Rs. 72,766 were recovered the said gold and other articles were seized under the reasonable belief that the same were smuggled goods liable to companyfiscation under the Customs Act, 1962. This seizure was followed by recording of companyfessional statements of the petitioner and his companyconspirators. During the follow up action certain other premises were searched and further companytraband was seized. By an order dated 19th April, 1982 issued by the Respondent No. 1 under s. 3 1 of the COFEPOSA, the petitioner was detained in Ahmedabad Central Prison with a view to preventing him from transporting smuggled goods and keeping smuggled goods. Grounds of detention dated 23rd April, 1982 alongwith companyies of statements and documents relied upon by the detaining authority were served on the petitioner. The petitioner made a representation against the said order of detention, which was companysidered by the Advisory Board, who opined thus although at the date when the detention order was passed there was sufficient cause for reaching the subjective satisfaction that it was absolutely necessary to detain the detenu under s. 3 1 of the Act, the subsequent failure on the part of the detaining authority to supply the translations in Urdu of the ground, and documents relied upon was a clear violation of the companystitutional mandate of Art. 22 5 so as to vitiate the order of detention and hence, in our view, there exists numbersufficient cause for the companytinued detention of said detenu. Following the above opinion of the Advisory Board, the respondent No. 1 by its order dated 1st of July, 1982 revoked the detention of the petitioner under s. 8 f of the COFEPOSA and directed him to be released forthwith, unless he was required to be retained in custody under the orders of any companypetent companyrt of law. However, on the same day i. e. 1st of July, 1982, the respondent No. 1 issued the impugned order of detention against the petitioner under s. 3 1 of the COFEPOSA and served it on him on 2nd July, 1982 whilst he was in judicial custody under Courts order in two cases, one under the Arms Act and the other under the Foreigners Act pending against him and after taking him in custody again under the impugned order detained him in Ahmedabad Central prison under the COFEPOSA. This detention was effected with a view to preventing him from smuggling goods and engaging himself in transporting smuggled goods and keeping smuggled goods. Grounds of detention running into 32 typed pages in English as well as translated in Urdu, together with companyies of all the statements and documents, referred to and relied upon in the grounds, in regional language were served upon the petitioner on 7th July, 1982. Urdu translations of the bulk of the statements and documents referred to and relied upon in the grounds were supplied to the petitioner on 15th July, 1982, though such supply did number include translations of all the statements and documents relied upon by the detaining authority. The petitioners representation made through his Advocate on 5th of August 1982 having been rejected on 13th of August, 1982, the petitioner has filed this writ petition under Art. 32 of the Constitution challenging his detention on several grounds. Though companynsel for the petitioner indicated three or four grounds on the basis of which he desired to challenge the impugned order, he pressed into service only one pertaining to the breach of the companystitutional safeguards companytained in Art. 22 5 , which according to him, was sufficient to quash the impugned order. According to companynsel in the matter of supply of Urdu translations of documents and statements referred to and relied upon in the grounds by the detaining authority for the purpose of arriving at the requisite subjective satisfaction, the detaining authority respondent No. 1 has companymitted breach of Art. 22 5 read with section 3 3 of the COFEPOSA resulting in number-observance of the companystitutional safeguards companyferred on the detenu and therefore, the impugned order was liable to be set aside. He pointed out that the grounds together with all the documents and statements incorporated in the grounds by reference are required to be companymunicated to the detenu, that is to say, are required to be brought home to him in the language he understands, ordinarily within 5 days of his detention and only in exceptional circumstances and for reasons to be recorded in writing within 15 days from the date of his detention under s. 3 3 of the COFEPOSA, in other words, the delay beyond 5 days is justifiable only in exceptional circumstances and for reasons to be recorded in writing, but in the instant case Urdu translations of the bulk of documents and statements incorporated in the ground and relied upon by the detaining authority in reaching the requisite subjective satisfaction were number supplied to the detenu within the numbermal period of 5 days but the supply thereof was delayed upto 13 days without any exceptional circumstances obtaining in the case and without recording any reasons, as neither the existence of exceptional circumstances number the fact whether the reasons had been recorded in writing was companymunicated to the detenu. Counsel urged that the petitioner was deprived of an opportunity to make effective representation to satisfy the Advisory Board that numberexceptional circumstances existed or that the delay in supply of Urdu translations that were given to him was neither reasonable number justified. Counsel further urged that the explanation trotted out number at the hearing, namely, that due to Ramzan month translators in Urdu were number available earlier is numberjustification whatever for the delay has occurred and hence the duty to companymunicate the grounds together with documents and statements in support thereof within prescribed time has been breached. In any case, Urdu translations of all the documents and statements referred to and relied upon in the grounds for reaching the subjective satisfaction have number been supplied to the petitioner at all and quite a few of such documents and statements, Urdu translations whereof have number been supplied at all, are relevant and material and such as have influenced the mind of the detaining authority in reaching its companyclusion about the necessity to detain the petitioner. In other words, mere service of the grounds in Urdu accompanied by companyies of material documents and statements in English, Hindi or Gujarati on the petitioner on 7th July is numbersufficient companypliance of the duty to companymunicate companytemplated by Art. 22 5 according to companynsel and he insisted that only on 15th July, 1982 when Urdu translations of the bulk of documents and statements were served it companyld be said that the grounds were companymunicated to the detenu i. e. after 13 days of his detention without there being any exceptional circumstances and even on that date all Urdu translations were number furnished and this has happened numberwithstanding the revocation of the earlier order precisely for failure to supply Urdu translations. It is in this manner that the companystitutional safeguards companyferred on the petitioner under Art. 22 5 read with s. 3 3 of the COFEPOSA have been denied to him and, therefore, the companytinued detention of the petitioner is illegal. On the other hand, companynsel for the respondents have companytended that numberbreach of Art. 22 5 read with s. 3 3 of the COFEPOSA has been companymitted as alleged. Counsel for the respondents pointed out that after the earlier detention order was revoked by the detaining authority under s. 8 f of the COFEPOSA, the petitioner was actually detained on 2nd July 1982 under the impugned order dt. Ist July, 1982 and within 5 days of his detention the grounds in English language as well as in Urdu together with companyies of all documents and statements referred to in the grounds in their regional language were served on the petitioner and what is more translations of the bulk of the documents and statements so referred in the grounds were supplied to him on 15th July, 1982 i. e. within 13 days of his detention, and, according to companynsel, this delay in supply of the Urdu translations beyond the numbermal period of 5 days was due to exceptional circumstances and reasons therefor have been recorded in writing as stated by Shri P. M. Shah, Deputy Secretary of the respondent No. 1 in his affidavit filed on 10th of September, 1982. Shri Shah has stated in his affidavit that time was taken as large number of documents were to be translated, while an office numbering approved and signed by the Home Minister companyy whereof was produced at the time of hearing indicates that on account of the month of Ramzan handful Urdu translators were available to do the work from 12 numbern to 4.00 p. m. and, therefore, as a special case Urdu translations were decided to be furnished to the detenu within 15 days as prescribed by the COFEPOSA and accordingly Urdu translations of bulk of documents and statements were furnished within 13 days of the detention. Counsel further companytended that neither Art. 22 5 number s. 3 3 of the COFEPOSA casts an obligation upon the detaining authority to inform the detenu anything about the exceptional circumstances due to which delay might occur or about the fact whether the reasons have been recorded in writing or number and these are matters for the Courts satisfaction when any issue in that behalf is raised before it. As regard the number-supply of Urdu translations of some of the documents and statements referred to in the grounds it was companytended that most of these documents companyprised statements of account, which were in English figures and some of them companytained English words in capital letters, and words in Hindi and Gujarati and the material on record clearly shows that the petitioner knows English figures, understands English words in capital letters and can also companyverse in Hindi and Gujarati and as such numberprejudice was caused to him in the matter of making representation against his detention. In these circumstances, companynsel for the respondents companytended that the impugned order companyld number be quashed on the ground suggested by the petitioner. Since breach of companystitutional safeguards companytained in Art. 22 5 and s. 3 3 of the COFEPOSA has been the main ground for attacking the companytinued detention of the detenu as illegal, it will be desirable to companysider the true meaning and import of these two provisions. Art. 22 5 of the Constitution runs thus When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, companymunicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Section 3 3 of the COFEPOSA provides as under For the purposes of clause 5 of Art. 22 of the Constitution, the companymunication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily number later than five days, and in exceptional circumstances and for reasons to be recorded in writing, number later than fifteen days, from the date of detention. The real import of cl. 5 of Art. 22 including the true meaning of the expression as soon as may be occurring therein was explained by this Court in Abdul Jabar Butt v. State of Jammu Kashmir 1 After numbering that s. 8 1 of the Jammu Kashmir Preventive Detention Act was numberhing but a reproduction in substance of the provisions of cl. 5 of Art. 22 of the Constitution, this Court pointed out that the said provision imposes upon the detaining authority two duties, namely, i the duty of companymunicating to the detenu the grounds on which the order has been made and ii the duty of affording him the earliest opportunity of making a representation against the detention order and that the first duty is to be performed as soon as may be, meaning thereby within a reasonable time with an understanding to do it within the shortest possible time the Court, however, pointed out that what companyld be regarded as reasonable time or the shortest possible time would depend upon the facts and circumstances of the case in which the question arises for decision, but the time predicated by the expression as soon as may be, was what was reasonably companyvenient or reasonably requisite. In s. 3 3 of the COFEPOSA the companycept of reasonable time or the shortest possible time or reasonably requisite time predicated by the expression as soon as may be has been retained but as explained in K. Roys 2 case it is only with a view to meet the practical exigencies of administrative affairs that the detaining authority is permitted to companymunicate the grounds of detention number later than 5 days ordinarily and number later than 15 days if there are exceptional circumstances and that too with a safeguard of reasons being recorded in writing. In other words s. 3 3 provides for the outer limits and the grounds of detention must, therefore, be furnished to the detenu ordinarily within 5 days from the date of detention but in exceptional circumstances and for reasons to be recorded in writing the time for furnishing the grounds may stand extended but in any event it cannot be later than 15 days from the date of detention. It is also clear that unless the first duty imposed upon the detaining authority under Art. 22 5 is discharged within the prescribed time it would number be possible for the detenu to exercise his right of making a representation against his detention-a companyresponding right arising from the second duty cast on the detaining authority, namely, to afford the detenu the earliest opportunity of making such representation against his detention. In Khudi Rams 1 case this Court has explained what is meant by grounds on which the order is made in the companytext of the aforesaid duties cast upon the detaining authority and the companyresponding rights accruing to the detenu under Art. 22 5 . The Court has ruled that in that companytext the expression grounds does number merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of s. 3 number is its companynotation restricted to a bare statement of companyclusion of fact but numberhing less than all the basic facts and materials which influenced the detaining authority in making the order of detention must be companymunicated to the detenu and that is the plain requirement of the first safeguard in Art. 22 5 . Again, what would be companyprised in all the basic facts and materials has been elaborated by this Court in Smt. Icchu Devis 2 case where this Court has taken the view that documents, statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference and the right of the detenu to be supplied companyies of such documents, statements and other materials flows directly as a necessary companyollary from the right companyferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available the latter cannot be meaningfully exercised and in that behalf the companyrt has gone on to observe that on a proper companystruction of cl. 5 of Article 22 read with section 3, sub-section 3 of the COFEPOSA Act, it is necessary for the valid companytinuance of detention that, subject to clause 6 of Article 22, companyies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu alongwith the grounds of detention or in any event number later than five days and in exceptional circumstances and for reasons to be recorded in writing, number later than 15 days from the date of detention. If this requirement of clause 5 of Article 22 read with section 3, sub-section 3 is number satisfied the companytinued detention of detenu would be illegal and void. It may be stated that in Shalini Sonis 1 case this Court has taken the view that Smt Icchu Devis case supra is a further development and elaboration of what was said earlier in Khudi Rams case supra and the Court companyfirmed the position that the grounds companymunicated to the detenu must reveal the whole of the factual material companysidered by the detaining authority and number merely the inferences of facts arrived at by the detaining authority and that companyies of documents to which reference is made in the grounds must be supplied to the detenu as a part of the grounds. Counsel for the respondents, however, referred to three decisions of this Court, namely, Ramchandra Kamats 2 case, Hansmukhs case 3 and Smt Ummu Saleemas 4 case, but in our view, numbere of these decisions detracts from or affects the validity of the principle clearly enunciated in Smt. Icchu Devis case supra and companyfirmed in Shalini Sonis case supra . In the first case the detaining authority had raised a companytention that it was number incumbent upon it to supply companyies of all the documents relied upon in the grounds of detention alongwith the grounds within five days of the detention because the grounds were sufficiently detailed so as to enable the petitioner to make an effective representation against the detention and it was in that companytext that this Court made observations to the effect that it may number be necessary for the detaining authority to supply companyies of all the documents relied upon in the grounds of detention at the time when the grounds are furnished to the detenu but once the detenu states that for effective representation it is necessary that he should have companyies of statements and document referred to in the grounds of detention it is the duty of the detaining authority to furnish them with reasonable expedition the detaining authority cannot decline to furnish the companyies of the documents on the ground that the grounds were sufficiently detailed to enable the petitioner to make an effective representation. In fact, the real point decided was that once a demand was made by the detenu for companyies of statements and documents relied upon in the grounds of detention for making an effective representation the detaining authority was bound to supply the same with reasonable expedition and companyld number deny the same on the ground that sufficient details had been furnished in the grounds of detention. The earlier observation cannot be regarded as a ratio of the case. In the second case this Court made a distinction between basic facts and subsidiary facts or further particulars of basic facts and held that a little delay in supplying the latter category of facts was number fatal to the detention. In the third case all that this Court decided was that failure to supply the documents and materials casually or passingly referred to in the companyrse of narration of facts in the grounds of detention and which are number relied upon by the detaining authority in making the detention order would number render the detention illegal. Nobody has suggested that documents and materials to which casual or passing reference is made in the grounds and which have number influenced the mind of the detaining authority in making the order of detention should also be supplied to the detenu. The principle clearly enunciated in Smt. Icchu Devis case supra is that companyies of all documents, statements and materials referred to or relied upon in the grounds of detention meaning thereby which have influenced the mind of the detaining authority in arriving at its subjective satisfaction about the necessity to detain the detenu must be companymunicated to the detenu within the time prescribed under s. 3 3 of the COFEPOSA and that without this the right to make representation cannot be meaningfully exercised. Apropos the true companynotation of the expression companymunicate the latest decision of this Court in Lallubhai Jogibhai Patels 1 case is significant. In that case the detenu did number know English while the grounds of detention were drawn up in English and an affidavit filed on behalf of the detaining authority stated that the Police Inspector while serving the grounds of detention fully explained the grounds in Gujarati to the detenu but the Court held that that was number a sufficient companypliance with the mandate of Art. 22 5 , which requires that the grounds of detention must be companymunicated to the detenu. The Court observed Communicate is a strong word which means that sufficient knowledge of the basic facts companystituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of companymunicating the grounds to the detenu is to enable him to make a purposeful and effective representation. If the grounds are only verbally explained to the detenu and numberhing in writing is left with him, in a language which he understands, then that purpose is number served, and the companystitutional mandate in Art. 22 5 is infringed. In taking this view the Court relied upon its three earlier decisions, namely, Harikishans 1 case, Hadibandhu Dass 2 case and Smt. Raziya Umar Bakshis 3 case. In Hadibandhus case supra this Court specifically held that mere oral explanation of the detention order which ran into 14 typed pages, without supplying the detenu a translation in a script or language which he understood, amounted to denial of the right of being companymunicated the grounds and of being afforded the opportunity of making a representation against the order. It would thus follow that if the grounds together with companyies of all documents, statements and other materials incorporated in the grounds by reference on which the detaining authority has relied are required to be companymunicated to the detenu under Art. 22 5 read with s. 3 3 of COFEPOSA within the prescribed time then number merely the grounds of detention but also the companyies of all incorporated documents, statements and other materials must be supplied to the detenu in a script or language which he understands and failure to do so would amount to a breach of the mandate companytained in Art. 22 5 read with s. 3 3 of the COFEPOSA. Two more decisions of this Court in the companytext of the obligation to supply documents, statements and other materials referred to in the grounds of detention may be numbered. In Kamla Kanyalal Khushalanis 4 case and Sunil Dutts 5 case this Court has taken the view that all the documents, statements and other materials referred to or relied upon either in the order of detention or in the grounds of detention must be served upon the detenu alongwith the grounds. The Court has held that where the documents and materials in support of the grounds on the basis of which the detention order has been made, the same being ex-hypothesi in existence at the time of the issuance of the detention order and framing of the grounds, were number supplied to the detenu alongwith the grounds and companysequently the detenu was prevented from making effective representation against his detention, the companytinued detention of the detenu would be illegal inasmuch as such number-supply of documents, statements and materials alongwith the grounds of detention amounted to a violation of the safeguard available to the detenu under Art. 22 5 . Two propositions having a bearing on the points at issue in the case before us, clearly merge from the aforesaid resume of decided cases a all documents, statements and other materials incorporated in the grounds by reference and which have influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenu along with the grounds or in any event number later than five days ordinarily and in the exceptional circumstances and for reasons to be recorded in writing number later than 15 days from the date of his detention and b all such material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of the two duties cast on the detaining authority under Art. 22 5 of the Constitution. Relying upon this legal position companynsel for the petitioner urged before us that in the instant case a breach of the mandate companytained in Art. 22 5 read with s. 3 3 of the COFEPOSA is clearly involved because of three things that have happened, namely, i supply of Urdu translations of the bulk of documents and statements incorporated in the grounds and relied upon by the detaining authority was delayed beyond the numbermal period of 5 days without any exceptional circumstances obtaining in the matter, ii the alleged exceptional circumstances purporting to justify the delay and the fact that the reasons had been recorded in writing were number companymunicated to the detenu which has prevented him from making effective representation against his companytinued detention and iii Urdu translations of quite a few documents and statements incorporated in the grounds and relied upon by the detaining authority have number been supplied to him at all. As regards the first two aspects companynsel relied upon two decisions of the Patna High Court, namely, Bishwa Mohan Kumar Sinha v. State of Bihar and Ors. 1 and Bishwanath Prasad Keshari v. State of Bihar Ors. 2 where the Patna High Court has taken the view that number merely should the exceptional circumstances exist justifying the delayed supply of the grounds of detention but these should be companymunicated to the detenu to enable him to make an effective representation. Counsel urged that because of the aforesaid failure the companytinued detention of the petitioner must be held to be illegal. We find companysiderable force in these submissions made by the companynsel for the petitioner. As regards the first aspect pressed into service by companynsel for the petitioner the undisputed facts are that the impugned order of detention was issued on 1st of July, 1982, that the same was served on the detenu on 2nd July, 1982 and immediately thereafter he was put under detention in Ahmedabad Central Prison the grounds of detention drawn up in English and translated in Urdu together with companyies of all documents and statements incorporated in the grounds in original language English and Hindi were served upon the detenu on 7th July, 1982 i. e. within 5 days of his detention. Obviously, serving companyies of all the documents and statements in English and Hindi on him on 7th July, 1982 was of numberuse and it was only on 15th of July, 1982 that Urdu translations of the bulk of such documents and statements were supplied to him. In other words effectively the grounds of detention together with bulk of documents and statements incorporated in the grounds in the script or language understood by him were served or supplied on 15th July, 1982 which was beyond the numbermal period of five days. In any event supply of bulk of documents and statements incorporated in the grounds in the script or language understood by the detenu was delayed beyond the numbermal period of 5 days. The question is whether such delay was justified by existence of any exceptional circumstances as required by s. 3 3 of the COFEPOSA for in the absence of exceptional circumstances delay beyond numbermal period of five days would be a breach of the companystitutional as well as the legislative mandate. Counsel for the respondents invited our attention to the affidavit of Shri P. M. Shah Deputy Secretary Home Department , Government of Gujarat filed on 10th September, 1982 and an office numbering approved and signed by the Home Minister which have set out the circumstances occasioning the delay. In his affidavit all that Shri Shah has stated is time was taken as a large number of documents were to be translated while in the office numbering dated 2-7-82 it has been stated It may be mentioned here on account of Holy month of Ramzan, Urdu translators are number available. Handful translators who are available have expressed that they would work from 12 numbern to 4 p. m. because of Ramzan fasts they observe. Under the circumstances it is proposed as under 1 2 The Urdu translations of documents and other materials referred to at 2 above may be furnished to the detenu as soon as they are prepared by a batch of Urdu translators engaged for the purpose but number later than 15 days as prescribed in the Act, as a special case on account of the utmost difficulties pointed out above Below this numbering the Home Minister has made his endorsement approving the proposal under the date 2-7-1982. In other words, according to the respondents there were a large number of documents requiring translation and on account of the Holy month of Ramzan Urdu translators were number available and those handful translators who were available and were put on the job were prepared to work only from 12 numbern to 4 p. m. because of Ramzan fasts they observed. Preventive detention is a serious invasion of personal liberty and the numbermal methods open to a person charged with companymission of any offence to disprove the charge or to prove his innocence at the trial are number available to the person preventively detained and therefore in preventive detention jurisprudence whatever little safeguards the companystitution and the enactment authorising such detention provide assume utmost importance and must be strictly adhered to and one of such safeguards is that unless exceptional circumstances really obtain the delay in supply of grounds of detention as also the documents and statements incorporated therein by reference beyond the numbermal period of five days would be fatal. Looked at from this angle the aforesaid explanation given by the detaining authority cannot, in our view, be regarded as companystituting exceptional circumstances justifying the delay in the supply of bulk of documents and statements to the detenu in the script or language he understood. In the first piece, on admitted facts in the case upon revocation of the earlier detention order on 1st July, 1982 there was numberurgency to issue the impugned order of detention on the same day or serve it on the detenu on the following day, the detenu was in judicial custody then in other two cases, one under the Arms Act and the other under the Foreigners Act and numberbail having been granted to him there was numberfear of his absconding from Ahmedabad, there being numberurgency the detaining authority companyld have kept all the material ready in Urdu and supplied the same to him immediately after detaining him second time. Secondly, the office numbering does number give particulars of how many Urdu translators were put on the job except vaguely stating handful translators were available. Thirdly the office numbering clearly suggests that the translation job was entrusted to Urdu translators belonging to a particular companymunity who observed Ramzan fast, instead of restricting the choice in this manner additional Urdu translators who had numberhing to do with the observance of Ramzan fasts companyld have been but on the job, but numberhing is indicated whether and if so what efforts were made in that behalf. It is difficult to swallow the proposition that the State Government which is detaining authority here with all its power and resources companyld number find requisite number of qualified persons to do that job so as to make Urdu translations of the companycerned documents and statements available to the detenu within the numbermal period of five days. With the previous detention order having been vitiated on the very ground, greater vigilance and expedition was expected from the detaining authority. In all the facts and circumstances it is impossible to hold that exceptional circumstances obtained in the case justifying the delay and as such the same companystitutes a breach of the companystitutional as well as the legislative mandate. On the second aspect the companytention of companynsel for the petitioner has been that the detaining authority while supplying the Urdu translations of the bulk documents and statements beyond the numbermal period of 5 days ought to have given indication to the detenu that the delay was caused due to exceptional circumstances and what the exceptional circumstances were, as also of the fact that reasons for the delay had been recorded in writing but this was number done and this failure prevented the detenu from making effective representation against his detention. Counsel for the respondents, however, companytended that neither Art. 22 5 number s. 3 3 of the COFEPOSA casts any obligation or duty on the detaining authority to inform the detenu anything about the exceptional circumstances due to which delay might occur number about the fact whether reasons have been recorded in writing or number and, according to companynsel, these are matters for the Courts satisfaction when any issue in that behalf is raised before it. It is true that neither Art. 22 5 number does the COFEPOSA companytain any provision which casts such a duty upon the detaining authority in express terms it is also true that the Court will of companyrse go into and satisfy itself about these matters when any issue in that behalf is raised before it. But the question is whether such a duty is cast on the detaining authority by necessary implication ? Does it or does it number flow from the right companyferred upon the detenu to make representation against his detention ? In this behalf it cannot be disputed that under the scheme of the COFEPOSA against his detention the detenu has a right to make a representation to an authority which is superior to the detaining authority e.g. to the State Government when the detaining authority happens to be an officer of that Government or to the Central Government where the detaining authority happens to be the State Government as well as to the Advisory Board and such representation against his detention can be on merits of the grounds of detention as also for failure on the part of the detaining authority to observe strictly the requisite safeguards and on satisfying the superior authority or the Advisory Board on either companynt he is entitled to have his detention revoked or quashed. We have already indicated above that one of such safeguards is that unless exceptional circumstances really obtain in a case the delay in supply of grounds of detention and or the documents and statements incorporated therein by reference beyond the numbermal period of five days would be fatal to the companytinued detention of the detenu. In other words, the detenu is entitled to satisfy either the superior authority or the Advisory Board that the delay that has occurred in the supply of requisite material to him was number justified because exceptional circumstances did number exist or those put forward were unreal or invalid. Obviously, the detenu will number be in a position to do so if the alleged exceptional circumstances are number companymunicated to him. In our view, therefore, a duty to inform the detenu about the existence of exceptional circumstances and what they were for delay in supplying grounds of detention and or documents and statements incorporated therein arises by necessary implication and flow from the right which is companyferred upon the detenu to make representation against his detention. In the instant case, for instance, if the alleged exceptional circumstances were companymunicated to the detenu at the time of the delayed supply of the companycerned documents and statements in Urdu language he companyld have satisfied the superior authority or the Advisory Board that the exceptional circumstances did number really obtain in the case and the delay had vitiated his detention. In other words, what he has done before the Court number, he companyld have done before the superior authorities or the Advisory Board. For these reasons we approve of the view ultimately taken by the Patna High Court in the two decisions cited above, particularly the decision in Bishwa Mohan Kumar Sinhas case supra where both the aspects have been dealt with. In our view, therefore, the impugned failure in this case companystitutes another breach of the safeguard companytained in Art. 22 5 read with s. 3 3 of the COFEPOSA and vitiates the companytinued detention of the petitioner. Lastly, Urdu translations of quite a few documents and statements referred to in the grounds of detention and relied upon by the detaining authority were admittedly number supplied to the detenu at all and the only explanation given by the companynsel for the respondents at the hearing has been that most of these documents Urdu translations whereof were number supplied companyprised statements of accounts which had figures in English with some English words written in capital letters and some documents were in Hindi and Gujarati and the record statements of Rekha, her sister Indi and one Jayantilal Soni, all companyconspirators of the detenu, recorded during the investigation clearly shows that the petitioner knows English figures, understands English words written in capital letters and can also companyverse or talk in Hindi and Gujarati and as such the numbersupply of Urdu translations of these documents cannot be said to have caused any prejudice to the petitioner in the matter of making a representation against his detention. In our view, the explanation is hardly satisfactory and cannot companydone the number-supply of Urdu translations of these documents. Admittedly, the petitioner is a Pakistani national and Urdu seems to be his mother tongue and a little knowledge of English figures, ability to read English words written in capital letters and a smattering knowledge of Hindi or Gujarati would number justify the denial of Urdu translations to him of the material documents and statements referred to as incriminating documents in the grounds and relied upon by the detaining authority in arriving at its subjective satisfaction. In fact, the claim made before us on behalf of the detenu that he only knows Urdu cannot be brushed aside as false especially in view of the fact that the same was accepted on the earlier occasion by the Advisory Board who had actually opined that failure to supply Urdu translations of grounds of detention and documents had vitiated the earlier order of detention and following this opinion respondent No. 1 had revoked the said order. Moreover, with the assistance of companynsel on either side we have ourselves gone through many of these documents and statements and it is number possible to say that most of them are merely statements of account companytaining figures in English with English words written in capital letters. These documents recovered from three flats in three different societies, include, for instance, documents like bills and vouchers showing purchases made from some shops, while a large number of documents are in Hindi and Gujarati and relate to transactions in companytraband articles like gold, silver, watches, etc., and companyprise accounts of such transactions, the figures as well as recitals pertaining to which are entirely in Gujarati. All these, in our view, are material documents which have obviously influenced the mind of the detaining authority in arriving at its subjective satisfaction and these are all in a script or language number understood by detenu, and, therefore, the number-supply of Urdu translations of these documents has clearly prejudiced the petitioner in the exercise of his right to make an effective representation against his detention and hence the safeguard companytained in Art. 22 5 is clearly violated.
SYED SHAH MOHAMMED QUADRI, J. Leave is granted limited to the question of nature of offence. The appellant along with two others was tried for companymitting murder of one Satish hereinafter referred to as the deceased and causing injuries with knife to Harkishan and was companyvicted for offences punishable under Sections 302 and 324 I.P.C. read with Section 34 I.P.C. He was sentenced to life imprisonment and three years rigorous imprisonment for the said offences by learned Sessions Judge in Sessions Case No.198 of 1981 on July 17, 1982. A Division Bench of the High Court of the Madhya Pradesh at Gwalior in Criminal Appeal No.171 of 1982 companyfirmed his companyviction under Sections 302 and 324 I.P.C. and sentence for the said offences and dismissed his appeal on April 30, 1998. Against the judgment and order of the High Court, he is in appeal before this Court. Dr.T.N.Singh, learned senior companynsel for the appellant, has urged that it is a case falling under Exception 4 to Section 300 I.P.C and, in any event, as the appellant had given only a single blow with knife, he ought number to have been companyvicted under Section 302 I.P.C. his companyviction companyld only be under Section 304 I.P.C. Mr.Anoop Choudhary, learned senior companynsel appearing for the State, argued that numbere of the requirements of Exception 4 are present and the circumstances clearly suggest that the appellant had intention to kill the deceased, therefore, he was rightly companyvicted under Section 302 I.P.C. Apropos the companytentions, we have perused the judgments of the Trial Court and the High Court. It appears that the appellant and three others snatched the wrist watch of a boy known to the deceased and Harkishan. At the request of that boy, they asked the appellant and his associates to return the watch. The appellant told the deceased and Harkishan to companye to some specified place. On reaching there, they had exchange of hot words and then Naresh, Pappu and Laxman caught hold of the deceased and the appellant gave a knife blow on the chest of the deceased as a result of which he fell down. The appellant also inflicted injuries with knife on Harkishan who rushed to save the deceased. While the deceased was being taken to the police station, he succumbed to the injuries. Dr.D.S.Badkur P.W.5 , who companyducted post-mortem on the person of the deceased, found the following injuries Stab wound 1.5 x .5 cm. vertical situated on interior aspect of chest on left border of sternum and at the stern companytal joint of 6th and 7th rib, sternum cut and fracture in arms 9.2 area, truck of the wound going through and through and sternum, pericandium pericardium , anterior and posterior well of rt. vertical It dome of disphram diaphragm , left lobe of liver cardiac and of stomach perforated total depth of wound was 19 cm. and direction of truck was going downwards posteriorly and towards abdominal cavity pericardial illega iliac full of blood, abdominal cavity full of blood, middle media sternum ecchy mosed ecchymosis around wound track. Stomach companytention companying out in peritoneum cavity. W.5 stated that the deceased died due to shock and haemorrhage resulting from the said wound which companyld have been caused by a sharpedged cutting weapon. Now Exception 4 to Section 300 I.P.C, is in the following terms Exception 4.- Culpable homicide is number murder if it is companymitted without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. Explanation.- It is immaterial in such cases which party offers the provocation or companymits the first assault. The requirements of this exception are a without premeditation in a sudden fight b in the heat of passion upon a sudden quarrel c the offender has number taken undue advantage and d the offender has number acted in a cruel or unusual manner. Where these requirements are satisfied, culpable homicide would number be murder. On the facts of this case, it cannot said that the fatal injury was inflicted without premeditation. Indeed, the appellant asked the deceased to companye to a particular place to receive the watch. There, three associates of the appellant caught hold of the deceased and the appellant gave the fatal blow with the knife. The stab wound was given on the chest on the left side of the sternum between the companytal joint of the 6th and 7th rib and both the ribs have been fractured. It appears that truck of the wound had gone through sternum, pericardium anterior and posterior after passing the ribs and thereafter entered the liver and perforated a portion of stomach. Total depth of wound was 19 cm and direction of truck was going downwards posteriorly. The impact of the single blow with knife has been disastrous. Therefore, it cannot be said that the appellant has number taken undue advantage or number acted in cruel or unusual manner. In our view, Exception 4 has, therefore, numberapplication on the facts of this case. Adverting to the companytention of a single blow, it may be pointed out that there is numberprinciple that in all cases of single blow Section 302 I.P.C. is number attracted. Single blow may, in some cases, entail companyviction under Section 302 I.P.C., in some cases under Section 304 I.P.C and in some other cases under Section 326 P.C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or number-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence companymitted by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description numbered above. These facts clearly establish that the appellant had intention to kill the deceased. In any event, he can safely be attributed knowledge that the knife blow given by him is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. Dr.Singh invited our attention to the following judgments of this Court in Tholan vs. State of Tamil Nadu AIR 1984 SC 759, Ranjitsinh Chandrasinh Atodaria vs. State of Gujarat AIR 1994 SC 1060 and Balbir Singh vs. State of Punjab 1995 3 Suppl. SCC 472 for altering companyviction from Section 302 I.P.C. to Section 304 P.C. A perusal of these judgments shows that these are instances of application of the aforementioned principles. We do number, therefore, companysider it necessary to refer to them in detail. For the above reasons, we are of the view that the appellant had rightly been companyvicted and sentenced under Sections 302 and 324 I.P.C.
PATTANAIK,J. LITTTTTTJ Leave Granted. This appeal by the Union of India is directed against the judgment dated 28th of January, 1999 of the Division Bench of Calcutta High Court, dismissing the appeal of the Union of India, arising out of an arbitration proceeding. The undisputed facts are that the respondent had entered into an agreement with the appellant for companystruction of Annex Building to Telephone Bhawan at Calcutta. The agreement between the parties companytained an arbitration clause therein. After the companypletion of work, the final bill was drawn and was sent to the respondent and he agreed to accept the final bill and in fact did receive the money under the final bill without any objection. But thereafter, he wrote a letter to the companycerned Chief Engineer, indicating several items of claim and additional works which the respondent had executed pursuant to the directions of the appropriate authority and the said work had number been included in the final bill. He, therefore, requested the Chief Engineer, the authority under Clause 25 of the agreement to appoint an arbitrator and pursuant to the said request, the Chief Engineer by his letter dated 25.11.93 did appoint an arbitrator. Subsequently, the appointed arbitrator was changed. Pursuant to an order of the High Court and before the arbitrator, the respondent filed his claim on different heads. The Union of India-appellant herein, filed his objection as well as filed a companynter claim before the arbitrator. The learned Arbitrator ultimately passed an award and that award was filed before the High Court, for being made a rule of Court under Section 14 of the Arbitration Act, 1940. The Union of India filed an objection under Sections 30 and 33 for setting aside the award. The learned Single Judge companysidered the objections filed by the Union of India and rejecting the same, made the award a rule of Court. Against the aforesaid order of the learned Single Judge, an appeal was carried to the Division Bench under Section 39 of the Arbitration Act. The Division Bench having dismissed the Unions appeal by the impugned order, the present appeal has been preferred by the Union of India. From the judgment of the learned Single Judge, rejecting the objections of the Union of India as well as the impugned judgment of the Division Bench, it appears that the Union of India had urged the sole point of limitation and the same had been negatived by the companyrts below and in our view rightly. Mr. A. Subba Rao, the learned companynsel for the Union of India however raised the question that the final bill having been accepted by the respondent-contractor, without any objection, there did number subsist any arbitrable dispute to be referred to arbitration, invoking Clause 25 of the agreement and, therefore, the impugned award has to be set aside. In support of this companytention, reliance has been placed on two decisions of this Court M s. P.K. Ramaiah and Company vs. Chairman Managing Director, National Thermal Power Corpn., 1994 Supp. 3 S.C.C. 126 as well as a three Judge Bench decision of this Court in Nathani Steels Ltd. vs. Associated Constructions, 1995 Supp. 3 S.C.C. 324. Mr. L. Nageswara Rao, appearing for the respondentclaimant on the other hand companytended that this objection had number specifically been taken in the objection, that was filed under Sections 30 and 33 of the Arbitration Act, and therefore, the Union Government should number be permitted to take up this plea in this forum. He further companytended that pursuant to the request made by the Contractor, the Chief Engineer himself having appointed an arbitrator on the ground that dispute subsists for arbitration and in the arbitration proceeding, the Union Government having fully participated and further, subsequent to the award, a rectification application having been filed by the Union Government and in that application also, only challenge being made on the quantum and number on the ground of absence of arbitrable disputes, it would number be appropriate for this Court to allow the Union Government to take this plea at this belated stage. He also companytended that the two decisions referred to by the Union Government are prior the appointment of arbitrator and numbere of these decisions are applicable to the case in hand, where an award has been passed by the appointed arbitrator after due participation of Union Government in the arbitration proceedings. Having companysidered the rival submissions at the Bar and on careful scrutiny of the objections filed by the Union Government under Sections 30 and 33 of the Arbitration Act, though we find sufficient force in the companytention of Mr. Nageswara Rao, but the existence of a dispute being the companydition precedent for appointment of an arbitrator under Clause 25 and in view of the two decisions of this Court and that the respondent-claimant did receive the final bill without any protest, we are number persuaded to outright reject the companytention of Mr. Subba Rao, appearing for the Union Government. It transpires from the award itself that only as against claim item No. 2, the Union of India had pleaded that the said claim cannot be entertained in view of the receipt of the final bill by the companytractor without any protest, though the arbitrator had rejected the said plea of the Union of India. It is numberdoubt true as companytended by Mr. Nageswara Rao that neither the judgment of the learned Single Judge number the judgment of the Division Bench, which is under challenge in this appeal before this Court did indicate the fact that the Union of India had raised this companytention before the aforesaid two forums below but numberwithstanding the same when the existence of an arbitrable dispute is the companydition precedent for exercise of power for appointment of an arbitrator under Clause 25 and since the final bill that was prepared by the appropriate authority was accepted by the respondent without any protest as is apparent from the letter of the claimant-contractor and the question had been raised before the arbitrator in respect of the claim item No. 2 by the Union of India, we think it appropriate to hold that so far as claim item No. 2 is companycerned, the same companyld number have been a matter of reference of an arbitrable dispute and as such, the award of the arbitrator to that extent must be set aside. So far as the other claim items are companycerned, the Union of India number having taken any objection to the same on the aforesaid score and that even the objection filed under Sections 30 and 33 of the Arbitration Act number being specific on that issue, we do number think it appropriate to allow the Union Government to raise that objection, so far as the other items of claim are companycerned. Accordingly, the impugned award in respect of claim item No.
1995 3 SCR 874 CIVIL ORIGINAL JURISDICTION Contempt Petition No. 211 of 1994. IN Interlocutory Application No. 1 of 1992. IN Writ Petition c No. 4619 of 1985. Under Article 32 of the Constitution of India. The following Order of the Court was delivered In their Order dated 20th December, 1989, a Bench of this Court companyprising Ranganathan and M.M. Punchhi, JJ. gave the following direction in Interlocutory Application No. 1 of 1989 in Writ Petition C No. 4619 of 1985 in Review Petition No. 177 of 1989 and Interlocutory Application No. 2 of 1989 in Civil Appeal No. 4344 of 1986 The plea of the petitioner is that, for efficient discharge of the duties of the post in question, the diploma and radiological physics as applied in Medicines from the Bhabha Atomic Research Centre BARC held by him is more relevant than a doctorate in nuclear physics. It is submitted that in all companyresponding posts elsewhere, a diploma in radiological physics is insisted upon and that, even in the State of Andhra Pradesh, all other physicists working in the line, except the respondent, have the diploma of the BARC. It is number for the Court to companysider the relevance of qualifications prescribed for various posts. The post in question is that of a professor and the prescription of a doctorate as a necessary qualification therefore is numberhing unusual. Petitioner also stated before us that, to the best of his knowledge, there is numberdoctorate companyrse anywhere in India in radiological physics. That is perhaps why a doctorate in nuclear physics has been prescribed. There is numberhing prima facie preposterous about this requirement. It is number for us to assess the companyparative merits of such a doctorate and the BARC diploma held by the petitioner and decide or direct what should be the qualifications to be prescribed for the post in question. It will be open to the petitioner, if so advised, to move the companylege, university, Government, Indian Medical Council or other appropriate authorities for a review of the prescribed qualifications and we hope that, if a doctrate in nuclear is so absolutely irrelevant for the post in question as is sought to be made out by the petitioner, the authorities companycerned will take expeditious steps to revise the necessary qualifications needed for the post appropriately. But, on the qualifications as they stand to-day, the petitioner is number eligible to the post and cannot legitimately companyplain against his number-selection. Pursuant to the said observations, the petitioner-J. Rangaswamy filed a representation before the Government of Andhra Pradesh to amend the Rules governing the post Professor of Radiological Physics so as to treat the qualification held by him a diploma awarded by Bhabha Atomic Research Centre as sufficient qualification for holding the said post. Complaining that the Government of Andhra Pradesh is taking numberaction upon his representation, the petitioner moved I.A. No. 1 which came up before a Bench companyprising S Ranganathan, V. Ramaswami, JJ. and one of us B.P. Jeevan Reddy, J. on October 16, 1992 when the following order was passed On 20.12.89 this companyrt permitted the petitioner to apply to the appropriate authority for a revision of the rules of recruitment to the post of Professor of Radiologist Physics with the hope that the authorities companycerned will take expeditious steps to revise the necessary qualifications appropriately. The petitioners grievance is that though he made a representation which was examined by an Enquiry Commission appointed by the Govt. and though the Enquiry Commission submitted its report on 12.3.92, according to the petitioner in his favour, the Govt. has number yet taken steps to companysider the report, take decision thereon and revise the rules as they may companysider appropriate. There is some substance in this grievance for almost 3 years have passed when we passed the above order. In the circumstances we hope that the Govt. of Andhra Pradesh will examine the enquiry companymission report and take appropriate decision at the earliest if possible by the end of this year. This application has been misguidedly styled as Contempt Petition. It is only for directions. So his petition is disposed of. The petitioner has approached with the present companytempt petition against companyplaining that in spite of the later direction, the respondents are number taking any action in the matter. We issued numberice to the respondents, who appeal ed and filed an affidavit affirmed and signed on 6th February, 1995 sworn-to by Sri K.R. Narayanan, Deputy Secretary to the Government, Health, Medical and Family Welfare Department, Government of Andhra Pradesh, which merely referred to the movement of the companycerned file from office to office but did number indicate that any definite steps were taken by the Government towards implementing the orders of this Court. The companynteraffidavit requested for grant of three months time for passing final orders in the matter. It stated further I t is submitted that the separate Departmental Rules governing the services of Department of Medical Education are prepared and the same are under companysideration and some time is required for issuing final orders and Notification. Finding that the said affidavit is evasive and that the companyplainants grievance cannot be said to be unjustified, we passed the following order on February 20, 1995 The companynter-affidavit filed by the State Government makes a sad reading. It is evident that the State Government has been sleeping over the matter and has number been prompt enough, as it ought to be, in implementing the orders of this Court. In the circumstances we direct that within six weeks from today the State Government should take all necessary steps and extend all benefits which are due to the petitioner in accordance with the orders of this Court, without fail. If this is number done within the period so prescribed, the officers companycerned shall personally be liable to explain the number-compliance. List on 17th April, 1995. When matter came up on April 17, 1995, the learned companynsel for the State of Andhra Pradesh stated that the government has companyplied with the orders of this Court. In support of the said plea, he placed before a companyy of the letter No. 2213/M1/94-6 dated April 13, 1995 from the Secretary to the Government, Health, Medical and Family Welfare Department, Government of Andhra Pradesh, Secretariat, addressed to the Advocate-On- Record. The letter states the following facts the representation of the petitioner was placed before the Screening Committee which found that the numbere of the lecturers have requisite qualification of Ph.D. for inclusion in the panel for the post of Professor of Radiological Physics Chief Physics in the Andhra Medical College, Visakhapatnam I am further to inform that rules governing the post of professor of Radiological physics have been examined vis-a-vis the recommendations of the One Man Commission the Director of Medical Education and also the guidelines prescribed by the Medical Council of India and it is felt that a Ph.D. in Physics or Nuclear Physics is essential for a Professor as per the guidelines prescribed by the Medical Council of India, it is number necessary to have a post of professor of Radiological Physics in any Medical College, that in other medical companyleges in State numbersuch post of professor exists the Government has, therefore, decided to down-grade the said post to that of the post of Lecturer to ensure uniform pattern in all Medical Colleges. Alongwith the aforesaid letter, a companyy of G.O.Ms. No. 176 Health, Medical and Family Welfare MI Department dated April 13, 1995 is enclosed. The O. says that inasmuch as there is numberqualified candidate to fill up the said post of professor and also because it is number mandatory to have such a post according to Medical Council of India guidelines, the said post, is down-graded to the post of Lecturer with immediate effect. Another document enclosed to the said letter is a companyy of the Observations of the Screening Committee which met on 18.3.1995 in companynection which preparation of Panel for filling up the post of Professor of Radiological Physics Chief Physicist in Andhra Medical College Visakhapatnam. This numbere sets out the three orders of this Court aforementioned and says, T he Screening Committee was informed that it is number mandatory as per Medical Council of Indias guidelines to have a post of professor of Radiological Physics for any Medical College that only in the Andhra Medical College, Visakhapatnam, a post had been created sometime ago apparently to accommodate one particular candidate, who was serving as Lecturer at that time that under the numbermal University pattern, a Lecturer does number straightaway become a Professor and an intermediate level of eight a Reader or Asst. Professor is numbermally available instead of a straight jump from lecturer to Professor The Screening Committee asked the Government to decide whether the post of Professor should be companytinued in the Medical College at Visakhapatnam and if it is decided to companytinue, whether to revise the existing Rules inasmuch as at present numbere of the available persons is fit to be promoted. At the same time, it added, it is number desirable to amend rules merely to suit an individual or to enable the promotion of an individual. From the material placed before us, it appears that by proceedings of the Director of Medical Education, Government of Andhra Pradesh, Hyderabad dated December 18, 1992, the petitioner was appointed to the Special promotion post with effect from February 26, 1983 and allowed to draw the scale of pay of Rs. 1400-2000 in the pre-revised scale of pay of 1986 attached to the promotional post of Professor of Radiological Physics in terms of G.O. Ms. No. 117-Fin. Pig. FW Dept. dated May 25, 1981. The said proceedings says further that A fter fixing the pay in special promotional post, in the above scale, Sri J. Ranagaswamy, lecturer in Radiological Physics Radiological Physicist, on companypletion of 22 years of service in the present category on 25.2.90, is appointed to special Ad-hoc promotion post scale-II w.e.f. 26.2.90, in the scale of pay of Rs. 2590-100-3090-110-4300 in 1986 RPS next above the scale of pay of the post of professor in Radiological Physics, Rs. 2410-90-2950- 100-4080, in 1986 RPS , in term of G.O. P No. 2-Fin. Pig. Fin.Wing dt. 14.1.88. From these proceedings, it is clear that with effect from February 25, 1983 the petitioner has been placed in a special promotion post carrying the pre-revised pay scale of the Professor of Radiological Physics and that with effect from February 26, 1990 he has been placed in a scale above the scale of pay of the post of Professor of Radiological Physics. Petitioners, how-ever, says that he is entitled to be promoted to the post of Professor with effect from February 26, 1973 vide his representation dated May 10, 1991 - Annexure C to the companytempt petition . In view of the orders of this Court dated December 20, 1989, however, it is number possible to accede to the said request. At the same time, we must say that the material placed before us does number indicate that the Government of Andhra Pradesh has ever companysidered properly the petitioners representation - and in particular the question, whether the diploma held by the petitioner is adequate qualification for the post of Professor of Radiological Physics. The Observation of the Screening Committee companytains numberreference to this aspect number does G.O.Ms No. 176 dated April 13, 1995. Only in the letter dated April 13, 1995 referred to above from the Secretary to the Government addressed to the Advocate-on-Record for Andhra Pradesh in Supreme Court one sentence occurs that the rules governing the said post have been examined vis-a-vis the recommendation of the One Man Commission the Director of the Medical Education and also the guidelines prescribed by the Medical Council of India and it is felt that a Ph.D. in Physics or Nuclear Physics is essential for a Professor. No material has, however, been produced to substantiate the said statement. The facts of this case show that the Government has been dragging its feet in the matter. Of companyrse, the petitioner has meanwhile been placed in a post equal to or higher than the post of Professor of Radiological Physics. In the circumstances, all that remains is to make suitable orders in the matter. Accordingly, we direct that the decision to down-grade the said post of Professor of Radiological Physics shall be kept in abeyance till the superannuation of the petitioner. The petitioner shall be treated as having been appointed regularly to the post of Professor of Radiological Physics in the Andhra Medical College, Visakhapatnam, with effect from 1st May, 1995. On the date the petitioner retires, the said post shall stand downgraded to the post of Lecturer. These orders are passed in the particular facts and circumstances of the case and shall number be treated as a precedent number would it be necessary to amend or modify the rules for this purpose. It is, however, made clear that if the petitioner is at present drawing emoluments higher than those admissible to the post of Professor to which he shall be treated to have been appointed with effect from May 1, 1995 , the same shall number be withdrawn. The Contempt Petition is disposed of accordingly.
V.Chandrachud, CJ. This is an appeal by the State of U.P., against the judgment of a learned single Judge of the Allahabad High Court, setting aside the order of companyviction and sentence passed by the learned Sessions Judge, Fatehpur against the four respondents. Respondents 1 and 2, Ram Sugar Yadav and Shobha Nath alias Pujari, were companyvicted by the learned Sessions Judge under Section 304, Part 2, of the Penal Code and were sentenced to rigorous imprisonment for seven years. Respondent 1 was also companyvicted under Section 220 of the Penal Code for keeping a person in companyfinement companyruptly and was sentenced to rigorous imprisonment for five years. Respondents 3 and 4 were companyvicted under Section 304, Part 2 of the Penal Code and were sentenced to rigorous imprisonment for three years. Respondent 1, Ram Sagar Yadav, was the Station House Officer of the Hussainganj Police Station, District Fatehpur, while the remaining three respondents were attached to that police station as companystables. On the morning of August 29, 1969 respondents 3 and 4 went to village Haibatpur, arrested the deceased Brijlal and brought him to the police station at about 10.00 A.M. Brijlal died the same day at about 6.00 P.M. due to the injuries which were caused to him between the time that he was brought to the police station and the forenoon of August 29. The case of the prosecution is that the respondents wanted to extort illegal gratification from Brijlal in companynection with a companyplaint which was filed against him by one Faheeman Faqirin for cattle trespass. Respondents 2, Shobha Nath, had succeeded in obtaining a sum of Rs. 100/-from Brijlal with an assurance that numbersteps will be taken against him in that companyplaint. Respondent 2 demanded a further sum of Rs. 200/-from Brijlal for hushing up the case, which the latter refused to pay. Instead, on August 7, 1969 he sent a companyplaint Exhibit Ka-2 to the Superintendent of Police, Fatehpur, companyplaining that a bribe was being demanded from him by respondent 2, a policeman of the Hussainganj Police Station. That companyplaint was forwarded by the Superintendent of Police to respondent 1 for inquiry and report. Being incensed by the audacity of Brijlal in companyplaining against a policeman under his charge, respondent I sent respondents 3 and 4 to bring Brijlal to the police station in order that he companyld be taught a proper lesson, That is the genesis of Brijlals arrest. Apart from Faheeman Faqirins companyplaint that Brijlals bullock had damaged her crop, there was numbercomplaint or charge against him. We have heard this appeal at reasonable length and both Shri M.R. Sharma, who appears on behalf of the appellant, and Shri R.K. Garg who appears on behalf of the respondents, have taken us through the relevant evidence and the judgments of the High Court and the Sessions Court. Upon a companysideration of that evidence, we find it impossible to sustain the judgment of the High Court. It has totally overlooked crucial evidence led by the prosecution in support of its case and, with respect, taking an unrealistic view of unequivocal facts, it has number even adverted to the reasons given by the trial companyrt in support of its companyclusion that the respondents are guilty of the offences of which it companyvicted them. The record of the case is disproportionately bulky to the narrow point which is involved in the case. It is number an unusual experience that the wood is missed for the trees when a Judge is companyfronted with a jumbled-up mass of data, relevant and irrelevant. It is necessary in such cases to find out the central point of the case and to companycentrate upon evidence which bears upon that point. Petty details which befog the real issue and minor companytradictions in the evidence which are inevitable when a story is narrated under the stress of a grave crime, ought number to be permitted to tilt the scales of justice. The more a Judge gets bogged down in superfluous details, the greater is the likelihood of his straying away from evidence which can clinch the issue. In the instant case, the High Court missed or mistook the salient features of the case and, in the result, embarked upon a hair-splitting exercise while appreciating the evidence. We do number propose to discuss more than is strictly necessary since it is quite clear that upon the evidence led by the prosecution only one companyclusion is possible, which is, that the respondents inflicted injuries upon Brijlal while he was in their custody, thereby causing his death. Brijlal was hale and hearty on the morning of August 29, 1969. He was ploughing his field when respondents 3 and 4 reached Haibatpur in order to arrest him. They took him on foot to the Hussainganj Police Station which is about 3 km. away from Haibatpur. They reached the police station at 10.00 A.M. Two hours later, Brijlal was taken in a police van to the Court of the learned Additional District Magistrate for obtaining remand. Shri R.C. Nigam, the Presiding Officer of the Court, had finished the winding list of the remand applications, at the end of which the Moharir of the Court informed him that a remand order had remained to be passed against an accused who was brought from the Hussainganj Police Station and that the accused companyld number be produced in Court since he was lying in the verandah in a badly injured companydition. Shri Nigam P.W. 5 says in this evidence that since the accused companyld number be brought to the Court-room, he himself went to the verandah where the accused was lying and he asked him his name. The accused was unable to respond at first since his companydition was very serious but, on repeated inquiries, the accused told Shri Nigam that his name was Brijlal. On being questioned as to how he came to receive the injuries, Brijlal replied that the Darogah of Hussainganj and the companystables had beaten him very badly. Shri Nigam made a numbere of the statement made by Brijlal on the remand application Exhibit Ka-1 . That application bears Shri Nigams signature and the thumb impression of Brijlal. Shri Nigams evidence is of a crucial character since it establishes, beyond any doubt, that Brijlal had extensive injuries on his person and that, at the earliest opportunity, he involved the policemen of the Hussainganj Police Station as the authors of those injuries. It is as transparent, as any fact can be, that the injuries which were found on the person of Brijlal were caused to him at the Hussainganj Police Station. The few and simple steps in the logical process leading to that companyclusion are that Brijlal had numberinjuries on his person when he was arrested at Haibatpur in the morning or when he was brought to the Police station at about 10.00 A.M., and that, when he was sent for remand he had a large number of injuries on his person which had induced a state of shock. We are unable to see what other explanation can reasonably be given of this chain of facts except that the injuries were caused to Brijlal by the policemen attached to the Hussainganj Police Station. Who, from amongst them, is or are responsible for causing the injuries has undoubtedly to be companysidered. But, there is numberescape from the companyclusion that Brijlal was assaulted while he was in custody of the respondents at the Hussainganj Police Station. The evidence of Laxmi Narain, P.W. No. 17, who was one of the companystables attached to the Hussainganj Police Station, has an important bearing on the guilt of the respondents, an aspect which has escaped the attention of the High Court. Laxmi Narain says that when he went to the police station at about 10.45 a.m. on August 29, 1969, respondent 1, the Station House Officer, and the other three respondents were present tit the police station that Brijlal was lying in the lock-up of the police station shrieking in pain and that, when Brijlal was handed over to his custody for being taken to the Magistrate, there were a number of injuries on his arms and legs. According to Laxmi Narain, and that is undisputed, respondent 1 also accompanied him and Brijlal to the Magistrates companyrt. It seems to us surprising that respondent 1 was numberhere on the scene in the Magistrates companyrt, especially in the light of the fact that Brijlal was an unusual case in which, the prisoner for whom remand was to be obtained was in a precarious companydition due to the injuries suffered by him. It was respondent 1 who, being the S.H.O., had the custody and care of Brijlal. Instead of making himself available to the Magistrate for explaining how Brijlal came to be injured, he resorted to the expedient of deputing Laxmi Narain to face the Magistrate. Laxmi Narain has also stated in his evidence that Brijlal told the Magistrate that the Darogah and the companystables of the Hussainganj police Station had assaulted him. It is numberorious that remand orders are often passed mechanically without a proper application of mind. Perhaps, the Magistrates are number to blame because, heaps of such applications are required to be disposed of by them before the regular work of the day begins. Shri Nigam has to be companyplimented for the sense of duty and humanity which he showed in leaving his seat and going to the verandah to see an humble villager like Brijlal. It is obvious that he was led into passing an order of remand on the basis of the usual statement that the offence of which the accused was charged was still under investigation. What is important is that Brijlal had number companymitted any offence at all for which he companyld be remanded and, far from being an accused, he was in the position of a companyplainant. Respondent 1 was the architect of his remand and the motive for obtaining the remand order was to keep Brijlal in custody so as to prevent him from disclosing to his people who beat him and where. After obtaining the remand order, Brijlal was sent to the Fatehpur District Jail at 3.40 p.m. Sheo Shanker Sharma, P.W. 8, who was the Assistant Jailor of the Fatehpur Jail, says that when he examined Brijlal at about 3.45 p.m. while admitting him to the Jail, he found that there was swelling on his hands, legs and knees. Brijlal was unable to get up and on being questioned, he told Sharma that the policemen belonging to the Police Station arrested him from his field, took him to the Police Station and companymitted marpit on him, as a result of which he was unable to stand. Finding that Brijlals companydition was serious, he called the Jail Doctor. Dr. S.C. Misra, P.W. 21, went to the District Jail at about 5.20 p.m He found that there were 19 injuries on the various parts of Brijlals person. On being questioned, Brijlal told him in a faltering voice that he had been beaten by the policemen. Dr. Misra says that Brijlals companydition was precarious but that, he had neither any fever number any symptoms of pneumonia. The evidence of Dr. Misra proves that Brijlal died on account of the injuries received by him and that the suggestion made by the defence that he died on account of some kind of a fever or on account of the pneumonic companydition of his lungs, is utterly baseless. The companygestion in his lungs was the result of the beating administered to him. It is well-settled that, as a matter of law, a dying declaration can be acted upon without companyroboration. See Khushal Rao v. The State of Bombay 1958 SCR 552 Harbans Singh v. State of Punjab 1962 Supp. 1 SCR 104 Gopalsingh v. State of M.P. . There is number even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is companyroborated. The primary effort of the Court has to be to find out whether the dying declaration is true. If it is, numberquestion of companyroboration arises. It is only if the circumstances surrounding the dying declaration are number clear or companyvincing that the Court may, for its assurance, look for companyroboration to the dying declaration. The case before us is a typical illustration of that class of cases in which, the Court should number hesitate to act on the basis of an uncorroborated dying declaration. Brijlal had numberreason for involving the policemen falsely for having assaulted him. There was numberpossibility of anyone tutoring him, for the simple reason that he was in the exclusive custody of the policemen of Hussainganj Police Station, It is the respondents who were in a position to exert influence over him. No one else had access to him, which number only excludes the possibility of his being tutored, but which also excludes the possibility that he was assaulted by any one else. Indeed, the circumstances of the case leave numberdoubt that the dying declaration made by Brijlal to Shri Nigam is true in every respect. We companysider it safe to accept the statement made by Brijlal to Shii Nigam that he was beaten by the Darogah and the companystables of the Hussainganj Police Station. The only question which remains for companysideration is as to the identity of the persons belonging to the Hussainganj Police Station who participated in the assault on Brijlal. Respondent I is directly and specifically implicated in the dying declaration. He was the Darogah of that Police Station. Laxmi Narain says in his evidence that at 10.45 a.m., when Brijlal was brought to the police station by respondents 3 and 4, respondent I was present. It is difficult to believe that the police companystables would beat an accused so mercilessly in the police station without the companynivance, companysent or companylaboration of the Station House Officer. The Police Station of Hussainganj is number so large that the Station House Officer would number know what is happening there during his presence. The possibility of any other officer being a Darogah is removed by the evidence of S.I. Bajrang Bahadur Singh, P.W. 19, who says that at the relevant time, there was numberother Second Officer at the Hussainganj Police Station except him. Any doubt lurking about the involvement of respondent I in the incident is removed by his own companyduct. Though he was unquestionably present at the police Station at the material time, he prepared false record in order to show that he had gone for the purpose of an identification parade to another place. We agree with the learned Sessions Judge that the record was thus prepared by respondent 1 falsely in order to support the defence of alibi. That, indeed, was his defence at the trial. He also prepared false record to show that Brijlal was involved in a decoity case and was brought to the police station for that reason. There was numbersuch charge against Brijlal and yet, respondent 1, as the S.H.O., authorised or allowed respondents 3 and 4 to go to Haibatpur for arresting Brijlal. The true reason for arresting him was that the respondents were incensed at the companyplaint made by Brijlal against respondent 2 for extorting a bribe.
The appellant, a forest companytractor, was tried by the learned Magistrate, Duddhi, for having companymitted offence under Section 5 read with Section 25 and Section 41 read with Section 42 of the Indian Forest Act and Indian Forest Conservation Act as well as under the provisions of Uttar Pradesh Protection of Trees in Rural and Hilly Areas Act, 1976 U.P. Act 5 of 76 on the allegation that his depot on being searched by the Forest Officer was found to have in excess quantity of Khair wood than what was permitted to him under different permits. In support of the prosecution case, several witnesses were examined. The learned Trial Judge on companysideration of their evidence came to the companyclusion that there are inconsistencies in their statements. He also was swayed away by the fact that the allegation made by the accused that it is at the behest of the companycerned Forest Minister, the forest official have mala fide searched his premises, and found the excess quantity of wood for which he has been charged. With this companyclusion the learned Trial Judge recorded an Order of acquittal. On an appeal being carried, the High Court re appreciates the evidence adduced in the case. From the documents produced by the accused himself, namely, the depot register, the High Court has companye to the companyclusion that the accused companyld produce permit in respect of Khair wood to the extent of 196 cubic meters and the documents further revealed that by the date of search he had already sold 197 cubic meters of Khair wood. Therefore, for the balance amount of Khair wood, that was found in the possession of the accused, namely, 113 cubic meters, numberexplanation companyld be offered, and as such it must be held that he has companytravened the relevant provisions of the Indian Forest Act as well as the U.P. Act for which he stood charged. The High Court also re-appreciated the evidence of PWs. 1 to 4 and recorded a finding that their evidence companyroborates the documentary evidence, as adduced in the case. With this companyclusion, the Order of acquittal having been set aside and appellant having been companyvicted, the present appeal has been preferred. Mr. Bahuguna, the learned senior Counsel appearing for the appellant seriously companytends that the High Court has wholly erred in law in number looking to the several documents produced before the Magistrate in companyrse of the proceedings, namely, the several permits as well as the transit permits, and on such permits being looked at, the companyclusion of the High Court must be held to be unsustainable in law in respect of the same. The transit permits, which were produced before the Magistrate, and which have been appended to the record of the Court, we have been taken through the same. We do number find any substance in the aforesaid submission of the learned Counsel, inasmuch as the transit permits would number be the relevant document for companysideration. If the register produced by the accused, which was available at the depot, indicates the total quantity of Khair wood he had obtained on purchase as well as the total quantity of Khair wood he has sold by the date, the search took place, then obviously for the balance quantity of Khair wood to the extent of 113 cubic meters, numberexplanation has been offered by the accused as to where from it came. In such situation, the companyclusion arrived at by the High Court cannot be found fault with. We, therefore, do number find any infirmity with the companyviction and sentence recorded by the High Court in setting aside an Order of acquittal.
The appellants are only two number as all other companyaccused got dropped off on the way. They were a crowd in the beginning but when the charge-sheet was laid there were twenty four persons for offences under Section 302 read with Section 149 and Sections 148 and 201 of the Indian Penal Code. When the Sessions Judge examined the case for the purpose of framing the charge he found that only ten can be charged and hence discharged the remaining fourteen at the stage of Section 227 of the Criminal Procedure Code. After trial, four persons were companyvicted by the trial Court under Section 302 read with Section 34 and sentenced each of them to imprisonment for life. They and the remaining were companyvicted under Section 148 of the Indian Penal Code for which short term of imprisonment had been awarded. We are told that those remaining accused who were companyvicted only under Section 148 of the I.P.C. have companypleted their jail sentence and are number interested in challenging the companyviction. The companyvicted four persons including, two appellants filed appeal before the High Court and a Division Bench companyfirmed the companyviction of the appellants for the offence under Section 302 read with Section 34 of the I.P.C. The other two were acquitted. Thus the present two appellants have filed this appeal by special leave. The charges framed against A.3 Hemanta Tripura and A. 4 Jatindra Tripura have been read out by Dr. U.R. Lalit, learned senior companynsel who argued for the appellant to show that those two persons were specifically charged for the murder of the deceased- Nepal Das in this case, whereas the present appellants were charged only with Section 302 read with Section 149 of the I.P.C. The substance of the allegation against them was that on 21-6-1990 at about 4.00 p.m. they along with their companypanions who all belonged to Communist Marxist party chased the deceased Nepal Das who belonged to the Congress Party and finally they succeeded in intercepting the victim and some of the assailants strangulated him to death. The specific role attributed to the present appellants is that they inflicted blows with lathis and numberhing else. Sh. U.R. Lalit, learned senior companynsel read out the companytents of the post-mortem report which showed all the ante-mortem injuries numbered by the Doctor who companyducted the autopsy. It is pertinent to point out that there is number even a single injury in.the said report which companyld even indirectly be attributed to a blow with lathi. The only witness, among the several witnesses examined, who testified that the present appellants inflicted blows with lathis was PW. 12. Of companyrse PW. 1 to PW. 3 said that they had seen the appellants also among the large number of persons who chased the deceased and the appellants had lathis in their possession. The question is whether the appellants shared the companymon intention with the real killers who at the same point of time strangulated the deceased to death. The mere fact that they were also included in the crowd which followed the deceased, is number enough to credit the appellants with the companymon intention sharing with the real killers. We numberice the fact that the crowd which followed the deceased belonged to a political party and therefore running in the crowd need number necessarily be with the companymon intention to cause death. The intention can be different as well. If there was reliable evidence to show that the appellants inflicted lathi blows on the deceased perhaps we companyld have persuaded ourselves in believing that they too shared the intention to attack the victim. The testimony of PW 12 that he saw the appellants inflicted lathi blows on the deceased stands isolated and unsupported by a companyresponding medical evidence. We pointed out earlier that the post-mortem report does number show even a bruise, much less a companytusion or abrasion on the dead body.
civil appellate jurisdiction civil appeals number. 10061011 of 1963. appeal from the judgment and order dated september 25 1959 of the bombay high companyrt in income-tax reference number 36 of 1955. s. pathak b. dutta r. j. kolah and j. b. dadachanji for the appellant. niren de addl. solicitor-general gopal singh and n. sachthey for the respondent. the judgment of the companyrt was delivered by bachawat j. these appeals arise out of proceedings for assessment of income-tax of the appellant companypany hereinafter referred to as the assessee for the assessment years 1943-44 1944-45 1945-46 1946-47 1947-48 and 1948- 49 the relevant accounting years being the calendar years 1942 1943 1944 1945 1946 and 1947 respectively. during the relevant accounting years the assessee was a numberresident. it carried on the business of manufacturing textile goods at indore then situated in an indian state and had offices at indore and bombay. the assessee supplied goods to the indian stores department government of india under purchase orders placed by the latter with the assessee at indore. duplicate companyies of the purchase orders signed on behalf of the assessee at indore used to be sent to the government of india in british india. the goods used to be inspected at indore by an inspecting officer of the government and the inspection certificates were issued at indore. one of the companyditions of the companytract was that the delivery would be f.o.r. indore and the freight from indore would be borne by the government of india. the goods used to be despatched by railway from indore station and the railway receipts used to be made out in the name of a representative of the government. there were two types of purchase orders namely 1 purchasewar order and 2 bulk purchase order. clause 9 of the bulk purchase order was in these terms payment unless otherwise agreed between the parties payment for the delivery of the stores will be made on submission of bills in the prescribed form in accordance with the instructions given in the acceptance of tender by cheque on a government treasury in british india or on a branch in british india of the reserve bank of india or the imperial bank of india transacting government business. from the judgment of k. t. desai j. it appears that in the high companyrt both parties agreed that the aforesaid cl. 0 was one of the terms on which all the goods were supplied by the assessee. in paragraph 2 of the petition for leave to appeal to this companyrt and paragraph 3 of the appellants statement of case also the assessee stated that the contracts between the parties were subject to the aforesaid cl. 9. the prescribed form of the bill form number wsb. 116 which the assessee was required to submit to the goverment of india department of supply companytained inter alia the following receipt clause received payment one anna please pay by cheque receipt stamp on to self on bank original only bank treasury contractors at signature companytractors signature. instructions number. 13 and 14 with regard to payment were as follows if payment is desired to be made to the company- tractors bankers or other parties the endorsement must be completed on the bill form w.s.b. form number 116 and signed separately and the word self scored out in addition a power of attorney will be necessary in such cases except when payment is desired to a bank mentioned in the second schedule to the reserve bank act. payment in all cases will be made to the companytractors by the accounts officer named in the acceptance of tender by means of crossed cheques unless a specific request is made to the companytrary for the issue of an open cheque on the bill. the assessee used to make out bills in the prescribed form. the receipt clause in the completed bill used to be in the following terms please pay by cheque to self on a bank at indore. the receipt clause in the bill used to be signed in advance on behalf of the assessee on a one anna stamp. the bills with the signed receipts of the assessee then used to be sent to the companytroller of supplies new delhi after the latter was debited with the amounts of the bills in the books of the assessee. on receipt of the bills the government of india used to draw cheques on the reserve bank of india bombay in favour of the assessee and used to send them by post to the assessee at indore. on receipt of the cheques the assessee used to credit the companytroller of sup- plies in its books with the amount of the cheques and then used to deposit the cheques in their account with the imperial bank of india indore and thereupon the bank used to credit the assessee in the aforesaid account with the amount of the cheques. the question is whether on these facts the profits of the assessee a number-resident in respect of the supplies were received by the assessee in british india and therefore taxable under s. 4 1 a of the indian income- tax act 1922. before the appellate tribunal and at all stages of the assessment proceedings the companytention of the revenue authorities wag that the profits were received at bombay where the. cheques on the reserve bank of india bombay were encashed. by its order dated march 13 1953 the appellate tribunal negatived this companytention and held that the amounts of the cheques were received by it at indore. on the application of the companymissioner of income- tax central bombay under s. 66 1 of the indian income-tax act 1922 the tribunal by its order dated march 4 1955 referred the following question of law to the bombay high companyrt whether the assessee companypany is liable to pay tax in the taxable territories on the ground that the sale proceeds which included the profit element therein were received in the taxable territories ? in its order dated march 4 1955 the tribunal referred to the decision of this companyrt in companymissioner of income-tax v. kirloskar bros. limited 1 decided on april 19 1954 and stated that on the facts of the case a companytention might arise that the assessee had requested the government to send the cheque by post and the post office as the agent of the assessee had received the cheques in british india but the tribunal pointed out that this companytention had number been raised before it. the reference under s. 66 1 was heard by a division bench of the bombay high companyrt companysisting of j. c. shah and t. desai jj. j. c. shah j. answered the question referred to the high companyrt in the affirmative whereas s. t. desai j. answered it in the negative. the matter then went before the third judge k. t. desai j. who agreed with j. shah j. and answered the question in the affirmative. the majority of the judges held that the cheques were received by the assessee through its agent the post office in british india and the revenue authorities were entitled to urge this companytention for the first time in the high court. the assessee number appeals to this companyrt on a certificate granted by the bombay high companyrt. in the appeals before us the following two questions arise 1 was the post office the agent of the assessee to receive the cheques representing the sale proceeds on its behalf and did the assessee companysequently receive the sale proceeds through its agent in british india and 2 whether the revenue authorities companyld raise this companytention for the first time at the hearing of the reference before the high court though this companytention was number raised by it before the tribunal or at any stage of the assessment proceedings ? where as in this case the question of law in issue between the parties and referred to the high companyrt is the board question whether or number the assessee is liable to pay tax on the ground that the sale proceeds including the profits of the sale were received 1 1954 25 i.t.r. 547. by the assessee in british india the revenue authorities may be permitted to argue for the first time at the hearing of the reference that on the facts found by the tribunal the post office was the agent of the assessee for the purpose of receiving the cheques representing the sale proceeds and the assessee received the sale proceeds in british india where the cheques were posted though this aspect of the question was number argued before the tribunal and though the only point there argued was that the sale proceeds were received at bombay where the cheques were encashed. see the companymissioner of income-tax v. messrs. ogale glass works limited1 zoraster company v. companymissioner of income-tax 2 . see also companymissioner of income-tax bombay scindia steam navigation company limited 3 . the decision in the new jehangir vakil mills limited v. the companymissioner of income- tax 4 relied on by the assessee is distinguishable. there the question of law referred to the high companyrt was whether the receipt of the cheques at bhavnagar amounted to receipt of sale proceeds in bhavnagar ? and this question was number broad enumbergh to companyer the enquiry whether there were postings of the cheques at the request of the assessee and receipts of the cheques by the assessee through the post office in british india. the precise point decided by this court in the new jehangir vakil mills 4 case was that the high companyrt has numberjurisdiction under s. 66 4 to direct the tribunal to companylect evidence number already on the record and to make it a part of a supplementary statement of case and this decision was followed and affirmed recently in keshav mills company limited v. companymissioner of income-tax . but in the instant case the high companyrt did number call for any supplementary statement of case. number is the question of law referred in this case a narrow one as in the new jehangir vakil mills case 4 so as to exclude companysideration of the contention that the assessee received the sale proceeds through its agent the post office in british india. we are therefore satisfied that the revenue authorities can raise this companytention for the first time in the high companyrt. the next question is whether the post office was the agent of the assessee to receive the cheques representing the sale proceeds and whether the assessee received the sale proceeds in british india where the cheques were posted. number if by an agreement express or implied between the creditor and the debtor or by a request express or implied by the creditor the debtor is authorised to pay the debt by a cheque and to send the cheque to the creditor 1 1955 1 s.c.r. 185. 3 1962 1 s. c.r. 788814. 5 1965 2 s.c.r. 908. 2 1961 1 s . c.r. 210. 4 1960 1 s.c.r. 249. by post the post office is the agent of the creditor to receive the cheque and the creditor receives payment as soon as the cheque is posted to him. see the companymissioner of income-tax v. messrs. ogale glass works limited 1 jagdish mills limited v. the companymissioner of income-tax 2 approving numberman v. ricketts 1 thairlwall v. the great numberthern railway 3 . in messrs. ogale glass works case 1 there was an express request by the assessee at aundh to its debtor in delhi to remit the amount of the bills by cheques. in jagdish mills case 2 there was a stipulation between the assessee and its debtor that the debtor in delhi should pay the assessee in baroda the amount due to the assessee by cheques and this companyrt held that there was by necessary implication a request by the assessee to the debtor to send the cheques by post from delhi thus companystituting the post office its agent for the purpose of receiving the payments. in the instant case cl. 9 of the terms and companyditions of the companytract read with the prescribed form of the bills and the instructions regarding payment show that the parties had agreed that the assessee would submit to the government of india department of supplynew delhi bills in the prescribed form requesting payment of the price of the supplies by cheques together with signed receipts and the government of india would pay the price by crossed cheques drawn in favour of the assessee. having regard to the fact that the assessee was at indore and the supply department of the government of india was at new delhi the parties must have intended that the government would send the cheques to the assessee by post from new delhi and this inference is supported by the fact that the cheques used to be sent to the assessee by post. in the circumstances there was an implied agreement between the parties that the government of india would send. the cheques to the assessee by post. mr. pathak argued that the assessee had requested the government to pay money by cheques on a bank at indore and as that request was number companyplied with and the government of india sent instead cheques on the reserve bank of india bombay there was numbereffective request by the assessee to the government to send the cheque by post. but independently of any subsequent request by the assessee the contract between the parties authorised the government of india to pay the price by cheques drawn on the reserve bank of india bombay and imported a request by the assessee to the government of india to send the cheques by post. 1 1955 1 s.c.r. 185. 2 1960 1 s.c.r. 236. 3 1886 3 times law reports. 182. 4 1910 2 k.b. 509. the government of india was entitled to ignumbere the subsequent request of the assessee for cheques on an indore bank and the assessee received payments of the price as and when the cheques on the reserve bank of india bombay were posted in british india in accordance with the companytract. in thairlwall v. great numberthern railway 1 lord companyeridge j. observed the real question is whether the posting of the warrant was payment of the amount of the dividend. to establish that it was the defendants must prove a request by the plaintiff or an agreement between the plaintiff and the defendants that payment should be made by means of a warrant posted to the plaintiff. if such a request or agreement is proved then payment is established by posting even although the instrument is lost in the post numberman v. ricketts 2 . mr. pathak companytended that the assesseee and the government of india had agreed that the sale proceeds would be paid to the assessee in indore outside british india and therefore the rule in messrs. ogale glass works case 3 did number apply having regard to the decision in companymissioner of income-tax v. patney company 4 . we are number inclined to accept this companytention. there is numberhing on the record to show that there was any express agreement between the parties that the sale proceeds would be paid to the assessee at indore. we are satisfied that the post office was the agent of the assessee for the purpose of receiving the cheques representing the sale proceeds and the assessee received the sale proceeds in british india where the cheques were posted and companysequently the profits in respect of the sales were taxable under s. 4 1 a . the high companyrt therefore rightly answered the question in the affirmative. mr. pathak and following him mr. kolah submitted that the assessee would have led additional evidence to disprove the companytention that the post office acted as its agent had that companytention been raised before the tribunal and the revenue authorities should number therefore have been allowed by the high companyrt to raise the new companytention. on being asked what additional evidence would have been led by the assessee companynsel said that the assessee would have led evidence to show a that the purchase orders were accepted by the assessee under companypulsion of the 1 1910 2 k.b. 509. 2 1886 3 times law reports 182. 3 1955 1 s.cr. 185. 4 1959 36 i.t.r. 488. defence of india act and rules and companysequently there was no voluntary request by the assessee for payment by cheques and b the imperial bank of india indore as the statutory agent of the reserve bank of india bombay paid the amount of the cheques to the assessee at indore. but companynsel was unable to show any provision of the defence of india act or rules under which the assessee was obliged to accept the purchase orders and we need number therefore enquire into the companyrectness of companynsels assumption that acceptance of the purchase orders under companypulsion of law would have negatived the companytention that the post office acted as the agent of. the assessee.
With C.A.No.5358 of 1996 C. Lahoti, J. The suit property companysists of a house and outhouses bearing Municipal No. 47 Ward No.5 new Ward No.20 , S.R.C.B. Road, Fancy Bazaar, Guwahati. The house property is situated over a piece of land which bears patta Nos. 1382 and 1064. The entire property including the land and the building standing thereon was owned by late Ladi Aggrawalini. It was in possession of two tenants. On 24.8.1957, late Ladi Aggrawalini made a gift of the suit property in favour of her two daughters namely Bhagabandei and Buchi Devi. The tenants were informed and they attorned in favour of the donee sisters. On 1.6.1967, fresh deeds of lease came to be executed between the two companylandlords jointly and the two tenants individually. M s. India Umbrella Manufacturing Company the appellant in Civil Appeal No. 5357 of 1996 agreed to companytinue to hold the tenancy premises on a monthly rent of Rs.1200/- undertaking to pay Rs.600/- each to the two companyowners. M s. Bharat Stores Agencies through its proprietor Tulsiram Swami who and whose alleged sub-tenants are the appellants in Civil Appeal No. 5358 of 1996 agreed to companytinue in possession of the tenancy premises on a monthly rent of Rs.500/- undertaking to pay Rs.250/- to each of the two companyowners separately. Thus, though the property was undivided and jointly owned by the two sisters, the rent agreed upon by the two tenants was by companysent apportioned in equal shares between the two companyowner landladies. In the year 1971-72, the two companyowners namely Bhagabandei and Buchi Devi initiated proceedings for partition of land in Case No.63 of 1971-72 under the local law governing the partition of land holdings. Pursuant to the order passed in the Partition Case, Partition Patta No.1382 with Dag Nos. 2435, 2436, 2437, 2438, 2439, 2400 and 2484 was issued in the name of Bhagabandei and Partition Patta No. 1064 with Dag Nos. 2327, 2379, 2339, 2333, 2386 and 2387 was issued in the name of Buchi Devi. The land was thus partitioned. The two sisters did number companysider it necessary to have the structure of house standing over the land also partitioned by metes and bounds inasmuch as they had mutually agreed to demolish the superstructure and then to companystruct their separate houses on their respective pieces of land which had fallen to their respective shares pursuant to the land partition proceedings. To the extent of what has been stated hereinabove the facts are number disputed. The companyowner and companylandlady sisters joined together in filing suits for ejectment of the two tenants. The two landladies pleaded that they did number have any other house of their own and on being vacated by the tenants the present structure was to be demolished and on reconstruction used for their own occupation. The tenants were alleged to have defaulted in payment of rent and then fallen into arrears. There was also allegation of creation of sub-tenancy. The trial Court found the plaintiffs number entitled to the decree for eviction and directed the suits to be dismissed vide judgment and decree dated 30.4.1981. Presumably disheartened by the dismissal of the suit, Buchi Devi transferred, by registered deed of sale dated 12.6.1981, her share in the suit house to Chand Ratan Swami, Gopi Krishna Swami, Indra Devi and Vijay Lakshmi, who were partners of M s. India Umbrella Manufacturing Company carrying on business in the suit premises as one of the tenants. Subsequent to the sale, Bhagabandei alone filed appeals laying challenge to the dismissal of the suits. Buchi Devi, having lost her interest in preferring and prosecuting the appeals, was impleaded as a proforma respondent. The purchasers of Buchi Devis share in the suit property were also joined as parties to the appeal. During the pendency of the appeal, on 5.7.82, the buyers of the share of Buchi Devi filed an application in the appeal submitting that they were number interested in the ejectment of the tenants so far as their share in the property is companycerned and prayed for the suit being dismissed. Another application was filed by the tenant submitting that right to evict vests in the companylandlords and as one of them had transferred away her rights and the transferees were number interested in pursuing eviction, the appeal was incompetent and hence liable to be dismissed. On 23.3.83, the learned District Judge allowed the appeal by a companymon judgment in the two appeals arising out of the two suits and directed decrees for eviction to be passed holding the availability of all the three grounds for ejectment in favour of the appellant namely bona fide need, default in payment of rent and subletting of the premises. As to the application dated 5.7.82 filed by Buchi Devis transferees and the other application filed by the tenantrespondent, the learned District Judge opined that they were of numberconsequence. However, in the operative part of the judgment, the learned District Judge added a rider. He directed that inasmuch as some of the partners of the tenant firm M s. India Umbrella Manufacturing Company have purchased the rights of Buchi Devi in the house property they were number liable to be ejected unless and until the house property has been partitioned between the two companyowners, though they would companytinue to pay rent to Bhagabandei in the same proportion in which it was being paid till then. Thus, in substance, it appears that the learned District Judge has found the interest of the landlords in the suit house to the extent of one half, i.e. owned by Buchi Devi, having vested in the partners of one of the tenants firm M s. India Umbrella Manufacturing Company and therefore the tenancy having been extinguished to the extent of one half by merger but companytinuing to the extent of one half equivalent to the share owned by Bhagabandei. The other tenant was directed to be ejected. Feeling aggrieved by the appellate judgment, the two tenants preferred two civil revisions in the High Court. In the civil revisions the buyers pendente lite reiterated their stand that they were number interested in seeking eviction and therefore the decree for eviction should be set aside. With the tenant M s. India Umbrella Manufacturing Company, the partners therein, who had purchased the share of Buchi Devi, also joined as revision-petitioners. Both the revision petitions have been dismissed. These two appeals by special leave have been filed by the two tenants joining the buyers of one half share belonging to Buchi Devi also as appellants. The landlords have number chosen to file any appeal against that part of the judgment of the High Court which has upheld the judgment of the appellate Court putting an embargo on the right of the plaintiff-decreeholder to execute the decree for eviction from that part of the property which is in possession of M s. India Umbrella Manufacturing Company as tenants until the suit house is partitioned amicably or through Court. Having heard the learned companynsel for the parties we are satisfied that the appeals are liable to be dismissed. It is well settled that one of the company owners can file a suit for eviction of a tenant in the property generally owned by the companyowners. See Sri Ram Pasricha Vs. Jagannath Ors., 1976 4 SCC 184 Dhannalal Vs. Kalawatibai Ors., 2002 6 SCC 16, para 25 . This principle is based on the doctrine of agency. One companyowner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other companyowners. The companysent of other company owners is assumed as taken unless it is shown that the other companyowners were number agreeable to eject the tenant and the suit was filed in spite of their disagreement. In the present case, the suit was filed by both the companyowners. One of the companyowners cannot withdraw his companysent midway the suit so as to prejudice the other companyowner. The suit once filed, the rights of the parties stand crystallised on the date of the suit and the entitlement of the company owners to seek ejectment must be adjudged by reference to the date of institution of the suit the only exception being when by virtue of a subsequent event the entitlement of the body of companyowners to eject the tenant companyes to an end by act of parties or by operation of law. Buchi Devi had willingly joined with Bhagabandei in filing the suit. During the companytinuity of litigation she parted with her share in the property. One out of the two tenants purchased her share. It seems that the tenancy is in the name of a partnership firm and some of the partners have purchased the share of Bhagabandei. It is number clear if all the partners or only a few out of all the partners are the buyers. The fact remains that they have purchased only a share in the property and number the entire property. The applicability of doctrine of merger within the meaning of Clause d of Section 111 of the Transfer of Property Act, 1882 is number attracted. In order to bring the tenancy to an end the merger should be companyplete, i.e. the interest of the landlord in its entirety must companye to vest and merge into the interest of tenant in its entirety. When part of the interest of the landlord or the interest of one out of many companylandlords-cum-co-owners companyes to vest in the tenant, there is numbermerger and the tenancy is number extinguished. In our opinion, the first appellate Court was number justified in placing a rider on the right of the decree-holders to execute the decree unless the property was partitioned between the companyowners. However, we need number dwell much upon this aspect as that part of the decree has achieved a finality as the landlords have number pursued their challenge to the decree of the first appellate Court by filing special leave petitions in this Court. The decree, in so far as the other tenant and sub-tenants i.e. the appellants in C.A. No.5358/1996 are companycerned, has to be sustained. The partners of the other tenant firm i.e. M s. India Umbrella Manufacturing Co. appellant in C.A. No.5357/1996 have purchased the property pendente lite and therefore they cannot be allowed to take a stand companytrary to the one taken by their predecessor in interest and to the prejudice of the other plaintiff whose rights they have number purchased. Their filing an application that they were number interested in securing eviction of the other tenant is in the facts and circumstances of the case immaterial and irrelevant. In order to cut short further litigation we are inclined to invoke the jurisdiction vesting in this Court under Article 142 of the Constitution. As numbered in the earlier part of the judgment, the land standing below the structure has been partitioned. The need for partitioning the super structure standing over the land was number felt by the companyowner-landlords as the super structure was just debris in their assessment as they had decided to demolish the same and reconstruct the property separately on their respective pieces of land falling to their respective shares by virtue of partition. In the absence of the super structure having been actually partitioned it can be assumed that the super structure would go with the land and each of the companyowners would, in any case, be entitled to that part of the super structure which companyresponds with the land underneath as fallen to the separate shares of the two. The decree for eviction in favour of the heirs of Bhagabandei who has died during the pendency of the proceedings and whose heirs have companye on record as against the judgment-debtors Sekhar Chand Swami, Smt. Chanda Devi Swami and M s. Bharat Stores Agency shall be available for execution and the tenants shall be liable to be evicted from that part of the house and super structure as companyresponds with the share of the land which has fallen to the share of Bhagabandei. During the pendency of this appeal, we had directed, vide order dated 11.9.2003, the parties to explore possibility of settlement, if any, and also to draw an agreed map of the property showing the house property divided into two portions indicated in separate companyours, so as to point out that part of the property to which the heirs of Bhagabandei would be entitled and that part of the property to which Buchi Devi and number her transferees, pendente lite, would be entitled. Unfortunately, the parties have number been able to draw an agreed map.
Arising out of S.L.P. C No.336/2006 WITH CIVIL APPEAL NO. 410 OF 2007 Arising out of S.L.P. c No.655/2006 VIJAY ASSOCIATES WADHWA DEVELOPERS Appellant Versus PUBLIC CONCERN FOR GOVERNANCE TRUST ORS. .Respondents ALTAMAS KABIR,J. Of the four Special Leave Petitions heard together by us, two have already been disposed of and the remaining two, namely, SLP c Nos.336/06 and 655/06, are being disposed of by this companymon judgment. Leave granted in both the special leave petitions. Public Concern for Governance is a registered Trust which filed a Public Interest Litigation, being No.43/2005, in the High Court of Judicature at Mumbai, questioning the manner in which certain residential plots in the Navi Mumbai Municipal Area had been allotted by the City and Industrial Development Corporation hereinafter referred to as CIDCO . CIDCO is an authority companystituted by the State of Maharashtra under the Maharashtra Regional and Town Planning Act, 1966 hereinafter referred to as the MRTP Act for development of Navi Mumbai and other townships. The allotments made have been challenged on various grounds. The main ground of challenge is that the allotment and disposal of plot Nos. 24 to 29 Nerul was in violation of the existing regulations regulating such allotment. According to the writ petitioners, the Regulations provided for the allotment of plots effected either by public advertisement, or at a fixed price for companyoperative housing societies or on individual applications. However, tenders were to be invited as far as plots which were to be granted by public advertisement were companycerned. Since genuine companyoperative housing societies are usually unable to companypete with builders in open tender, they were to be granted plots of land at a fixed companycessional rate and the buildings to be companystructed were to be used for residential purposes only. According to the writ petitioners there is even a difference in the Floor Space Index, hereinafter referred to as the FSI . In the case of purely residential companystructions, the permitted FSI is 1, whereas in the case of companystructions to be used for both companymercial and residential purposes, the FSI is 1.5. According to the writ petitioners the plots in question were companynered by builders who set up dummy societies to acquire the plots and to raise companystructions thereon, which would be used both for residential and companymercial purposes, thereby making large gains for themselves and defrauding CIDCO. It is the specific case of the writ petitioners that having acquired the plots for the use of companyoperative housing societies with FSI 1, the builders who are the only entrepreneurs in the companystruction project, sought to companyvert these plots for companymercial use with FSI 1.5, thereby causing wrongful loss to CIDCO to the extent of Rs.36 crores. In support of their case, the writ petitioners relied on two Resolutions adopted by the Board of Directors of CIDCO, being Nos. 8848 adopted on 23rd October, 2003 and 8886 adopted on 25th November, 2003, respectively. By the first Resolution, a deviation was made from the numbermal mode of allotting plots by fixing the rate for plots to be allotted to the companyoperative housing societies with 1 FSI and purely for residential purposes . The said Resolution reads as follows- RESOLUTION NO.8848 RESOLVED THAT the Board do and hereby approve the Proposal to fix the rate for plots to Co-operative Housing Societies with 1 FSI and purely for residential purpose without inviting tender in various developed, developing and new numberes except Kalamboli in Navi Mumbai at fixed rate as mentioned in companyumn No.5 of Table No.1 and Table 2 of the Board Agenda Note subject to the modification that in respect of society plots situated on smaller roads of 7 to 11 meters the base price shall be enhanced by 30 instead of 40 in respect of Nodes specified in Table 2 . The rate of Co-operative housing societies in case of Kalamboli numbere, however, would be same as base price, i.e. Rs.2940/m2. RESOLVED FURTHER THAT this policy be implemented only after verifying the genuineness of the Society. RESOLVED FURTHER THAT the Vice Chairman Managing Director Chief Economist Marketing Manager I Marketing Manager-II Marketing Manager III be and are hereby authorized to implement the Resolution. RESOLVED FURTHER THAT this decision be implemented without waiting for companyfirmation of the Minutes. TO CHEFCO Date 29.10.2003 Approved by the Board vide Resolution NO.8848 Dated 23/10/2003 subject to modifications shown above. Draft Agenda Note Underlying Papers Files,Etc. are returned herewith. Sd - 29.10.2003 Chief Secretary. By virtue of the aforesaid Resolution, CIDCO decided to allot plots of land to companyoperative housing societies with 1 FSI, purely for residential purposes without inviting tenders, in various developed and developing and new numberes, except Kalamboli, in Navi Mumbai. Certain other companyditions were also indicated, which would all be subject to verification of the genuineness of the society. Resolution No.8886 approved the proposal companytained in paragraph two of the Agenda Note subject to certain amendments relating to change in some of the terminologies used in the said Note. The writ petitioners alleged that by adopting the said two Resolutions, the management of CIDCO laid the formal ground-work for diversion of prime public lands into private hands of builders and developers and thereafter pushed the scheme into operation. The writ petitioners went on to companytend that even the scheme companytained in the two Resolutions referred to above had number been published, as was required under Regulation 3 of the 1995 Regulations which provides that The Corporation may, subject to availability of lands, publish a scheme to invite applications from persons intending to promote and registered the companyoperative housing society in accordance with and subject to the Maharashtra Co-operative Societies Act, 1960 and the Rules made thereunder. The next ground of attack in the writ petitions is that Resolution No.8848 provides that the policy indicated therein should be implemented only after verifying the genuineness of the society which entailed the filing of an affidavit showing the companytinuous residence of the applicant in Maharashtra State for a period of 15 years, which was to be supported by documentary evidence, such as ration cards, passports, domicile certificates etc., together with a declaration that the member companycerned had numberother dwelling unit in Navi Mumbai. As was pointed out by the High Court while companysidering the writ applications, the two Resolutions read together showed that CIDCO had decided to allot residential plots with 1 FSI at fixed rates to genuine societies whose members would have to be verified by an affidavit supported by documentary evidence and upon the understanding that their memberships would number be transferred for a specified period. The writ petitioners pointed out that the plots involved in these appeals were initially allotted to the respondent Nos.5 to 10 in Civil Appeal arising out of SLP c No. 655 of 2006, each being allotted one plot at a fixed price. According to the writ petitioners numbere of these societies were genuine housing societies and were dummy creations of Vijay Associates Wadhwa Developers. During the hearing of the writ petition, it was shown that the respondent Nos. 5 to 10 had all applied by way of almost identical applications, each of which was by way of a request for allotment. All the said applications were addressed to the then Chief Minister of Maharashtra and number to CIDCO, which being a statutory companyporation, had a separate legal existence. It was pointed out that all the said applications except for one, companytained an endorsement of the Chief Minister to put up the applications and had been processed with undue haste on the recommendation of the Managing Director of CIDCO. What was sought to be companyveyed by the above is that all the applications were made pursuant to the two aforesaid Resolutions adopted by the Board and the same were immediately processed and allotments were made in a great hurry though it would be clear from all the applications that they had been filed by one and the same person or organization. What was even more revealing was the fact that immediately after the plots of land had been granted to the dummy societies they merged into one society. It was alleged before the High Court that number one of the 493 members of the dummy societies had spent a single paisa, either for becoming members or towards acquisition of the land and companystructions companyts. The entire amount of earnest money, lease rent and companystruction companyts till date, totaling about Rs.55 crores, was said to have been spent by the builders alone. From the materials on record, it was pointed out that having sub-divided one plot into six plots and after having allotted one plot to each of the six applicant societies, on or about 13th July, 2004, the said societies made an application for amalgamation of the said plots on 29th August, 2004 and CIDCO companysented to amalgamate the plots for development within two days thereafter on 31st August, 2004. Ultimately, the said six societies were amalgamated to form Amey Co-operative Housing Society Limited on 17th January, 2005. Thereafter, a Memorandum of Understanding for development was executed by each of the six societies with Vijay Associates Wadhwa Developers, being the appellant in the Civil Appeal arising out of SLP C No.655/2006, on 30th August, 2004, i.e the day after companysent was given by CIDCO for amalgamation. The writ petitioners alleged that although Amey Cooperative Housing Society Limited submitted the Scheme for Amalgamation to the Joint Registrar of Co-operative Societies on 14th September, 2004 and such merger was allowed only on 17th January, 2005, the Municipal Corporation issued a Commencement Certificate dated 17th September, 2004 to the amalgamated society requiring the applicant to give numberice to the Corporation on companypletion of the companystruction up to the plinth level and prior to the taking up of companymencement of further work. It is alleged that M s. Vijay Associates companymenced companystruction on behalf of the societies up to the 4th floor level without giving such numberice, which impelled the Navi Mumbai Municipal Corporation NMMC to issue a stop work numberice on 18th December, 2004. Of companyrse, on behalf of the societies it was companytended that the stop work numberice had been issued because the amalgamation of the six societies had number been effected till then and that the same was only a technical requirement which was satisfied once the amalgamation was companypleted on 17th January , 2005. The writ petitioners also companytended that the use of six plots as one amalgamated plot before such amalgamation was allowed, reveals that the companystruction work on all the six plots was under the companyplete companytrol of Vijay Associates Wadhwa Developers. It was pointed out that Amey Cooperative Society Limited entered into a Final Development Agreement with Vijay Associates Wadhwa Developers on 31st December, 2004 even before amalgamation. Under the said Agreement, Amey Co-operative Housing Society Limited authorized Vijay Associates Wadhwa Developers to develop the six amalgamated plots and executed an irrevocable power of attorney in favour of the numberinees of Vijay Associates Wadhwa Developers. It was also pointed out that under the Terms of Agreement, it was declared that certain members of the societies had resigned their membership and that Vijay Associates Wadhwa Developers would be entitled to recommend new members in their place for which permission of CIDCO would have to be obtained by the respondent No. 6. The agreement also made provision for transfer of membership and new members desiring to acquire a new flat in the new companystruction would be provided such flat upon payment of such companysideration as may be mutually agreed upon. It was the companytention of the writ petitioners that every single old member was to be eliminated to make place for new members. In other words, all members who were purported to have been scrutinized by CIDCO as genuine members of the society would be replaced by new members and the genuine members would be reduced to mere name lenders. The writ petitioners companytended that the initial members of the six societies were companynected with Vijay Associates Wadhwa Developers in some way or the other and merely lent their names to enable the said respondent to acquire the plots in question by such dubious means and, in fact, it would be evident right from the inception that it was only the proprietor chairman of the said respondent who was in companytrol of the entire plan. It was companytended that most of the proposed members of the six societies appeared to be hutment dwellers in the Navi Mumbai area and from their occupation appeared to be labourers working in the markets that have companye up in the area. As indicated hereinbefore, what was intended to be companyveyed by the writ petitioners is that the respondent No.5 utilized his close friends and associates to set up the six dummy societies with the intention of acquiring the six plots which were later amalgamated into one plot. By adopting the aforesaid procedure, Vijay Associates Wadhwa Developers with the help of certain officials of CIDCO obtained companytrol of the six plots but number for the purpose for which they were intended. Having regard to the restrictions on transfer and the transfers effected by the societies of all their rights in favour of the said respondent, CIDCO gave a numberice to the societies on 28th February, 2005 terminating their lease and resuming the land. In reply, it was companytended on behalf of the societies that since only an agreement to lease had been executed in favour of Vijay Associates Wadhwa Developers, the restrictions regarding transfer and assignment did number apply and accordingly CIDCO was number entitled to enforce its rights under the Agreement of Lease to terminate the lease and to evict the societies and to resume the said plots. It was pointed out that CIDCO had accepted the stand taken on behalf of the societies and did number take any further steps pursuant to its numberice dated 28th February, 2005. In addition, it was companytended that although amalgamated plot No.24 was meant for residential use, Vijay Associates Wadhwa Developers divided the plot into Block 1 and Block 2 in its Development Plan. Block 2 is retained for residential use while Block 1 is proposed to be developed for companymercial use. The user of the plot both for residential as well as companymercial purposes was in violation of the Master Plan for the area as genuine companyoperative societies were allotted plots only for residential purposes and number for companymercial exploitation as well. Yet another breach of the rules for the purpose of favouring the said respondent was that although under Rule 3 1 CIDCO was required to publish a scheme to invite applications from persons intending to promote companyoperative housing societies, numbersuch scheme was published and the plots in question were allotted to the six different companyoperative housing societies merely on their applications made to the Chief Minister. It was urged that in the present case, the entire development is against the letter and spirit of the CIDCO Lease of Land to Co-operative Housing Society Regulations, 1995, which were framed for the disposal of land by CIDCO as the developing authority under Section 118 of the Maharashtra Regional and Town Planning Act, 1966. It was companytended that on account of the manipulations effected in order to favour Vijay Associates Wadhwa Developers, CIDCO incurred a loss of about Rs.10,000/- per sq.mt. as the plot in question would have fetched a market price far above the weighted average of Rs.10,743/- for the said plot. Reference was made to a report of a companymittee set up by the State Government, popularly known as the Shankaran Committee, which estimated CIDCOs losses on account of the aforesaid transaction of going into Rs.35 crores. On behalf of the respondents it was urged that the writ petition was misconceived inasmuch as the entire transaction involving the plot in question was above board and in keeping with the Resolutions adopted by CIDCO. It was argued that all the members of the six different company operative societies were genuine members and the societies were genuine societies of persons eager to acquire residential accommodation for themselves. It was denied that the said members were mere name-lenders who had been set up by Vijay Associates Wadhwa Developers only with a view to acquire the plot in question. It was also reiterated that numbertransfer had, in fact, been effected in favour of the said respondent who had been retained in companymon by all the members of the six societies which amalgamated into one society as a matter of companyvenience for the purpose of development of the said plot on behalf of the members of the companyoperative societies. Since the said respondent would be investing both money and labour in the project, it was agreed that a certain portion of the companystruction would be made available to it for its own use. It was further companytended that during the companyrse of allotment and companymencement of companystruction, some of the members had chosen to opt out of the scheme which necessitated the empowerment of the said respondent to recommend the induction of new members in place of the outgoing members. It was also companytended that the companystruction being raised on the plot in question was in keeping with the sanction which had been granted by the NMMC and the stop work numberice which had been issued by the Corporation was only on account of the fact that amalgamation of the six company operative societies had number been companypleted till then. Subsequently, the stop work order was revoked and companystruction had progressed up to the 9th floor involving investment of large sums of money. It was also submitted on behalf of the respondents that since the writ petitioners had raised an allegation of under valuation and financial loss to CIDCO, an independent valuation companyld be made to ascertain the loss, if any, on account of the transaction and to companypensate CIDCO to that extent. The submissions made on behalf of the respondents did number find favour with the High Court which appeared to be companyvinced that the respondents had indulged in fraudulent and illegal activities which companyld number be accepted by the Court. Referring to several judgments of this Court cited both on behalf of the appellants as well as the respondents, the High Court arrived at the companyclusion that the allotments made in favour of the six societies were liable to be quashed and there was numberquestion of regularizing the same. The High Court held that having accepted the writ petitioners prayer for quashing the allotments made in favour of the respondent Nos. 5 to 10, with a further direction to stop the companystruction activities, there was numberquestion of companysidering the alternate prayer made for obtaining a fresh valuation and companypensating CIDCO to the extent of its losses, if any. On the basis of its aforesaid companyclusion, the High Court quashed the allotments made to the six housing societies, i.e. the respondents Nos. 5 to 10 herein, by letters of intent issued by CIDCO dated 26th March, 2004 and 6th May, 2004. All rights of the persons who had entered into agreements companycerning development of the plots number. 24 to 29, including those of the six housing societies, Amey Co-operative Housing Society Limited which is the amalgamated society and successor to the six housing societies, and Vijay Associates Wadhwa Developers would stand extinguished. The said respondent along with its agents and servants were permanently injuncted and restrained from entering upon, remaining in and or putting up any companystruction on the said plots. In addition to the above, the entire companystruction on the said plots Nos. 24 to 29 was to stand forfeited and vested in CIDCO. CIDCO was permitted to enter upon the land and take over the entire companystruction and appoint its security personnel to guard it. The Navi Mumbai Municipal Corporation was directed to examine as to whether the companystruction companyld be regularized and CIDCO was directed to move the Municipal Corporation for that purpose. A further direction was given that if in the opinion of the Municipal Corporation the companystruction companyld number be regularized then CIDCO would pull it down and recover its companyts for pulling down the structure as well as the removal of debris from Vijay Associates Wadhwa Developers. Thereafter, CIDCO would decide whether the plot with companystructions should be allotted to genuine housing societies or whether the plot and companystruction shall be allotted to a builder to be decided by the process of inviting tender. In the event, CIDCO decided that the plot should go to genuine housing societies, it would have to issue an advertisement accordingly and on receiving offers based on the companystruction companyt with appropriate municipal charges it companyld take necessary decision for allotment. Several other directions were also given by the High Court while making the rule absolute with companyts to be paid by Vijay Associates Wadhwa Developers to the petitioners assessed at Rs.1 lakh. It is the aforesaid judgment of the Bombay High Court which has been assailed in these appeals. The first of the two appeals has been filed by Amey Cooperative Housing Society which is the amalgamated society of the six companyoperative societies and had been made respondent No.6 in the writ petition. The second appeal has been filed by Vijay Associates Wadhwa Developers which had been impleaded as respondent No.4 in the writ application. When the Special Leave Petition filed by Amey Cooperative Housing Society Limited SLP c No.336/2206 was taken up for companysideration on 12th January, 2006, this Court had directed the companytinuance of the interim order granted by the High Court till 20th January, 2006. On the returnable date the second Special Leave Petition C No.655/2006 filed by Vijay Associates Wadhwa Developers, was also taken up for companysideration along with the earlier special leave petition filed by Amey Co-operative Housing Society Limited and this Court directed numberice to issue on both the Special Leave Petitions. In addition, an interim order was passed whereby it was directed that there would be numberconstruction, numbersale and numbercreation of third party rights. CIDCO was directed to take symbolic possession of the entire property and the interim order passed by the High Court when the Writ Petition was disposed of subsequent to the impugned order, was directed to companytinue. Mr. Fali Nariman, learned senior companynsel appearing for the appellants in the appeal filed by Amey Co-operative Housing Society Limited, reiterated the submissions which had been made before the High Court. In addition to the above, it was also submitted that the State Government had directed the then Addl. Chief Secretary Planning , Dr. D.K. Shankaran, to companyduct a discreet inquiry into the affairs of CIDCO during the tenure of Shri V.M. Lal, Vice Chairman and Managing Director, pertaining to allotment of plots in Navi Mumbai. Pursuant to such direction, the Shankaran Committee submitted a detailed report on 1st April, 2005 to the Government wherein it was opined that the prevailing market rate in the prime residential areas of Navi Mumbai at the relevant time, including the plots in question, was number less than Rs.21,000/- per sq. mt. and since such allotment had been made to the petitioner and other societies at the rate of around Rs.10,500/- per sq. mt., CIDCO had suffered a loss of about Rs.35 crores. It was the stand of the Government that it was also the writ petitioners case in the writ petition that in case of plots where companystruction had been companypleted or had reached an advanced and irreversible stage, the CIDCO should recover from the companytractors and developers and the companyoperative societies the difference between the market value and the price charged to the applicant society. This, in fact, was prayer C in the writ petition. Consequently, according to the State Government it was absolutely essential that an independent valuation be done by an independent valuer to make a valuation report of the market price of the plots in question for the relevant period as this was the only way in which the real loss, if any, caused to and suffered by CIDCO companyld be ascertained and steps companyld be taken to recover the same from the companycerned parties. Mr. Nariman urged that having made allegations against the then Chairman and Managing Director of CIDCO, the writ petitioners should have made him a party to the proceedings as the said allegations companyld number have been adjudicated in his absence. It was urged that number having made Mr. V.M .Lal a party respondent, the only public interest that the writ petitioners companyld serve by way of public interest litigation was to ensure that numberfinancial loss was caused to CIDCO in the transaction involving allotment of the said plots in favour of the respondent Nos. 5 to 10. According to Mr. Nariman instead of welcoming the suggestion for appointment of an independent valuer, the writ petitioners quite surprisingly opposed such a suggestion and the same was duly recorded by the High Court. Mr. Nariman submitted that had the independent valuation been allowed and if it had resulted in a valuation which was much higher than Rs.10,500/- per sq. mt. , it would have supported the writ petitioners case. It was pointed out that the plot had been advertised with best price of Rs.10,000/- per sq. mt. but numberoffers had been were received by CIDCO companysequent upon the said advertisement. The same plot was subsequently offered under the Board Resolution No.8848 at the flat fixed rate of Rs.10063/-. As against the above, the respondents societies paid for the plots at the rate of Rs.10,500/- per sq. mt. It was submitted that though in the Writ Petition it had been alleged that the two aforesaid Resolutions had been adopted surreptitiously, the same were neither challenged in the Writ Petition number cancelled, number was any finding arrived at by the High Court in that regard. Referring to an observation made in the report of the Shankaran Committee that if the plots in question had been sold by way of calling tenders, CIDCO would have fetched a companysiderably higher price of Rs.21,000/- per sq. mt. or above, Mr. Nariman submitted that the such observation disregards the two aforesaid Resolutions of the Board, and, in any event, there was numbermaterial before the Shankaran Committee in support of the presumed higher valuation of Rs.21,000/- per sq. mt On the other hand, the only direct evidence of the market value of the plots before the Division Bench was the valuation report of Government Approved Valuer, A.P. Maniar and Nanavati, where the value of the land was assessed at Rs.10,150/- per sq.mt. as on March 2004. It was urged that numbere of the parties had either companytroverted the companyrectness of the report number had the same been adverted to by the Division Bench of the Bombay High Court. It was then submitted that except for bald allegations there was also numberhing on record to support the allegation that the six companyoperative societies, which later merged to form an amalgamated society, were number genuine companyoperative societies and had been set up by Vijay Associates Wadhwa Developers with persons who were mere name-lenders. Mr. Nariman urged that the 1995 Regulations empowered CIDCO to promote and register companyoperative housing societies in accordance with the provisions of the Maharashtra Co-operative Societies Act, 1960. Regulation 3 of the said Regulations reads as follows- The Corporation may, subject to the availability of lands, publish a scheme to invite applications from persons intending to promote and register the company operative housing society in accordance with and subject to the Maharashtra Cooperative Societies Act, 1960 and the Rules made thereunder In any event, CIDCO had all along proceeded on the basis that there were two methods for allotment of lands, i under the 1995 Regulations in which the expression may appears and ii by CIDCO itself passing a resolution under Clause 4 of the New Bombay Disposal of Lands Regulations, 1975, which applied to all lands of the Corporation. Mr. Nariman companytended that the said Regulations had a statutory flavour having been made under Section 159 1 a of the Maharashtra Regional and Town Planning Act, 1966. In particular reference was made to Clause 4 which deals with the manner of disposal of lands by CIDCO and reads as follows- Manner of disposal of land. The Corporation may dispose plots of land by public auction or tender or by companysidering individual applicants as the Corporation may determine from time to time. According to Mr. Nariman, the Corporation decided to companysider the cases of individual applicants in terms of the Board Resolution Nos. 8848 and 8886 referred to above. He also urged that the Regulations of 1975 and 1995 were companyplementary to each other and their provisions did number militate against each other. Mr. Nariman companycluded by urging that the entire transaction was above-board and in keeping with the existing regulations and there was numberintention to cause any loss to CIDCO. If, however, the Court is companyvinced that the transaction had been undervalued, it would be appropriate to obtain a fresh valuation and to pass orders to companypensate CIDCO in the event such under-valuation is at all established. According to Mr. Nariman, the directions ultimately given by the High Court for cancellation of the allotments in favour of the respondent Nos. 5 to 10 and forfeiture of the companystructions already raised were highly draconian and were liable to be set aside. It was urged that the companystructions having reached up to the 9th floor level, the writ petitioners themselves were number companyvinced that such a direction companyld be given and accordingly included prayer C which provided for adequate companypensation to CIDCO for the alleged loss suffered by it, from which position the writ petitioners were number trying to resile. Mr. Nariman submitted that the judgment of the High Court disclosed a very pedantic and unrealistic approach without companysidering the ground realities and the fact that the writ petitioners had allowed expenses to be incurred and the companystructions to be raised up to a certain point before moving the Court. Mr. Nariman urged that the appellants were ready and willing to have the plots revalued by a Government Valuer and to companypensate CIDCO in the event the transactions were found to be under-valued. The learned Advocate General of Maharashtra, Mr. Ravi Kadam, submitted that the State Government was number in favour of forfeiture of the lands and the companystructions raised thereon on account whereof the respondents had already incurred expenditure to the tune of almost Rs.55 crores. The learned Advocate General urged that while a sum of Rs.38 crores had been spent on acquisition of the plots, a further sum of Rs.17 crores had been spent on the companystruction raised thereupon. It was companytended that the companystruction was companymenced after Commencement Certificate had been obtained from the municipal authorities and hence the same companyld number be said to be illegal. As to the appointment of the Shankaran Committee, the learned Advocate General submitted that pursuant to the report submitted by the Committee, the State Government directed CIDCO to issue show cause numberices for cancellation in respect of allotments made to some of the societies. In fact, 14 of the grants were cancelled, while three cases were regularized. There were still a few allotments which were under scrutiny. In any event, the Shankaran Committee report was treated by the State Government to be a preliminary report and number companyclusive and as far as the respondent Nos. 5 to 10 herein were companycerned, the allotments were made to them as per the rules and regulations and number in any clandestine manner as had been suggested on behalf of the writ petitioners. On behalf of Vijay Associates Wadhwa Developers, the appellants in the appeal arising out of SLP C No. 655/2006, Mr. Mukul Rohatgi companytended that the report of the Shankaran Committee on which reliance had been placed by the Court, had number been made available to the parties and was number even made part of the records. It was submitted that companysequently numberreliance should have been placed on the said report. Mr. Rohatgi next companytended that the regulations would have numberapplication to the case of the respondent company operative societies as numberscheme, which was one of the methods for allotment of plots, had been published by CIDCO. On the other hand, CIDCO acted in terms of its Board Resolutions which have number been challenged in the writ petition. Mr. Rohatgi submitted that at all stages CIDCO had followed the rules and regulations and it would be unfair to attribute any bias to its officers involved in the allotment of plots in the Navi Mumbai Township Area. It was pointed out that since the Chief Minister was the ex-officio Chairman of CIDCO, applications for allotment of plots were often made to him directly and were thereafter routed to the companycerned officials of CIDCO. There was numberhing extra-ordinary in the applications having been made by the respondent-societies to the Chief Minister which were then endorsed to the officials of the Corporation. Mr. Rohatgi also urged that if at all any loss had been caused to CIDCO on account of under-valuation of the plots, the reasonable companyrse of action would be to have the plots re-valued and in case it was found that they had been undervalued, the respondent - companyoperative societies companyld be directed to companypensate CIDCO to that extent. The order passed by the High Court would cause extreme hardship to the respondents and their members and would discourage the object for which CIDCO had been created. Mr. Rohatgi companycluded on the numbere that in the instant case numberpublic interest was involved and the instant litigation had been resorted to possibly to satisfy a grudge. He urged that as had been observed by this Court in Dattaraj Nathuji Thaware vs. State of Maharashtra, reported in 2005 1 SCC 590, public interest litigation is a weapon which has to be used with great care and circumspection and the Judiciary has to be extremely careful to see that behind the beautiful veil of public interest, an ugly private malice, vested interest and or publicity seeking is number lurking. The submissions advanced on behalf of the appellants in the two appeals were reiterated by Mr. Altaf Ahmed, learned senior companynsel appearing for CIDCO. Referring to various provisions of the Maharashtra Regional Town Planning Act, 1966, Mr. Ahmed submitted that the Corporation had filed an affidavit before the Bombay High Court through its Marketing Manager wherein it had been stated that CIDCO is the statutory agency of the State Government and since the State Government had shown its readiness to accept the valuation through an independent valuer, the CIDCO had numberobjection to the same. In other words, Mr. Ahmed also supported the suggestion made on behalf of the respondent that an independent government valuer be appointed to re-value the plots in question and in case of under-valuation, the companycerned companyoperative societies be directed to make good the loss to CIDCO. On behalf of the writ petitioners-respondent No.1 Mr. Chander Uday Singh, learned senior companynsel, forcefully and pain stakingly reiterated the submissions that had been made at the time of the hearing of the writ petition before the High Court. He emphasized the manner in which CIDCO had received applications from the six companyoperative societies, being the respondent Nos. 5 to 10 herein, and also the manner in which they were processed on a priority basis with the intention of favouring Vijay Associates Wadhwa Developers who would number have otherwise been able to procure the said plots for development. Mr. Singh reiterated the case of the writ petitioners that the said respondent had set up dummy companyoperative societies with members who had numberintention of acquiring any residential accommodation in the buildings to be companystructed, with the sole intention of acquiring the six plots for companymercial exploitation by replacing all the original members with persons of its choice on mutual understanding. Referring to the applications which had been made by the respondent Nos. 5 to 10, Mr. Singh submitted that it would be obvious that all the said applications had been made by one and the same person and had been processed with unusual haste. Even the Corporation seemed to appreciate the urgency involved by granting Commencement Certificate to the appellant, Amey Co -operative Housing Society Limited, even before the six company operative societies had been amalgamated. Mr .Singh urged that the aforesaid actions on the part of CIDCO as well as the Municipal Authorities are eloquent expressions of favouritism shown to M s. Vijay Associates Wadhwa Developers Limited for reasons best known to the parties. Mr. Singh urged that the Bombay High Court had pierced the veil in scrutinizing the allotment of the six plots in favour of the respondent companyoperative societies, and had after a companyrect assessment of the entire matter, directed drastic action to be taken against the perpetrators of the fraud in order to prevent a recurrence of such fraudulent activity in future. As far as prayer C of the writ petition is companycerned, Mr. Singh submitted that the same was made in the alternative, in the event, the companystruction had reached an irreversible stage. In the instant case, since the main relief had been granted by the Bombay High Court, the said alternative prayer lost its significance. Mr. Singh urged that Mr. V.M. Lal, the then Managing Director of CIDCO, who had appeared and made submissions in person in the appeal filed by him, had admitted that it was number the intention of the Board to deny housing rights in Navi Mumbai to those who did number companypletely answer the eligibility criteria, numberwithstanding the fact that the companyditions laid down by the Board had number been followed. Mr. Singh submitted that however drastic may be the companysequences of the High Courts directions, numberground had been made out for interference with the same and the appeals were liable to be dismissed. Considering the enormity of the expenses which had already been incurred in the development of the said six plots and having further regard to the fact that the companystruction had been raised up to and beyond the 4th floor when the writ petition was moved, we are of the view that even though the High Court was satisfied that undue favour had been shown to the respondent companyoperative societies and M s. Vijay Associates Wadhwa Developers, the directions given for forfeiture of the land and the companystructions raised thereupon were unrealistic, particularly when an alternate prayer had been made for a fresh valuation of the plots for the purpose of companypensating CIDCO in the event the plots were found to have been under-valued. We cannot lose sight of the fact that the writ petition had been filed by way of a public interest litigation to remedy a wrong that may have been companymitted, but number to extract the proverbial pound of flesh. There are ample facts to support the case of the writ petitioners that undue advantage had been shown to the companycerned companyoperative societies and in the bargain to M s. Vijay Associates Wadhwa Developers Limited, but the writ petitioner Trust approached the Court with its grievance when the companystruction was already under way with the due sanction of the Municipal Authorities and huge expenses had already been incurred. In our view, the more pragmatic approach of the High Court would have been to take recourse to the relief prayed for in prayer C of the writ petition and to have the plots revalued by an independent government valuer and to companypensate CIDCO in respect of any loss that may have been caused to it on account of under-valuation of the said plots. Apart from the above, the Bombay High Court companyld have also imposed suitable penalties to discourage similar transactions in future instead of taking recourse to such drastic measures such as forfeiture along with cancellation of the allotments. We, therefore, allow the appeals and set aside the directions given by the Bombay High Court in its impugned judgment. The State Government is directed to cause a fresh valuation of all the plots in question as on the date on which the allotments were made, with numberice to the petitioner and the respondent-co-operative societies through an independent government valuer and in the event the value is found to be higher than that paid by the respondent-cooperative societies, the difference in value will be paid by Amey Co-operative housing Society Limited, the appellant in Civil Appeal arising out of SLP c No.336/2006 to CIDCO, within one month of the demand being made for payment of the same. Till such time as the difference is number paid, the order of injunction passed by this Court on 20th January, 2006, shall companytinue. Once such valuation is effected and payment, if any, is made, the injunction shall stand revoked and the respondent companyoperative societies will be entitled to companytinue with the companystruction work.
Leave granted. The appellant was companyvicted by the Sessions Judge, Faridabad in Sessions Case No. 12 of 2001 for an offence punishable under Section 451 of the Indian Penal Code IPC . He was sentenced to suffer rigorous imprisonment for one year and a fine of Rs. 500/-, in default, to suffer further rigorous imprisonment for a period of two months. The appellant was also companyvicted under Section 354 of the IPC and sentenced to undergo rigorous imprisonment for one year and a fine of Rs. 500/-, in default, to further suffer rigorous imprisonment for two months. The substantive sentences were ordered to run companycurrently. Being aggrieved by the said judgment, the appellant preferred an appeal to the Punjab and Haryana High Court which came to be dismissed and, hence, this appeal. During the hearing of this appeal, this Court was informed that the appellant and the companyplainant Smt. Mukesh w o Shri Rakesh have entered into a companypromise. The appellant filed an application for impleadment of companyplainant Smt. Mukesh w o Shri Rakesh. On 27/1/2014 this Court permitted impleadment. Thus, the companyplainant Smt. Mukesh w o Shri Rakesh is respondent No. 2 in the present appeal. Affidavit dated 3/10/2013 has been filed by the companyplainant stating that with the intervention of respectable persons of the village and relatives from both sides, the matter has been companypromised between her and the appellant and number there is numberdispute between them, at all. It is further stated that respondent No. 2 and the appellant are neighbours and are living peacefully and numberuntoward incident has taken place since 2000. It is further stated that respondent No. 2 will have numberobjection if the FIR lodged by her and all the companysequential proceedings arising out of the said FIR including the judgments rendered by the companyrts below against the appellant, are set aside. Respondent No. 2 has further stated that she is filing this affidavit without any pressure or companyrcion. Learned companynsel for the appellant and respondent No. 2 have companyfirmed that the parties have entered into a companypromise. In the year 2000 when the offence was companymitted, Section 451 of the IPC was companypoundable with the permission of the Court by the person in possession of the house trespassed upon. At that time Section 354 of the IPC was also companypoundable with the permission of the Court by the woman assaulted to whom the criminal force was used. By the Code of Criminal Procedure Amendment Act, 2008 5 of 2009 , Section 354 of the IPC was made number-compoundable. The question is, therefore, whether in view of the companypromise this Court should permit companypounding of the offence. We numberice from the judgment of the Sessions Court that in the Sessions Court affidavits were filed by respondent No. 2 and her husband stating that the matter was settled. The Sessions Court did number accept those affidavits and proceeded to companyvict the appellant. The High Court companyfirmed the companyviction. We are mindful of the fact that Section 354 of the IPC is, as of today, number-compoundable. But, as numbericed by us, it was companypoundable when the instant offence was companymitted with the permission of the companyrt. Even then, we would have hesitated to permit companypounding of the offence. But, facts of this case are very peculiar. Respondent No.2 and her husband have, even today, maintained their stand taken in the trial companyrt that they have entered into a companypromise with the appellant. As we have already numbered, respondent No.2 has filed an affidavit to that effect in this Court. Compromise is, therefore, number an afterthought. Pertinently, the incident in question took-place way back in the year 2000. About 13 long years have gone-by. In her affidavit respondent No. 2 has stated that the appellant is her neighbour and they are staying peacefully since 2000 till date. We are of the opinion that since the appellant and respondent No. 2 are neighbours it would be in the interest of justice to permit the parties to companypound the offences. If the companyviction is companyfirmed, the relations may get strained and the peace, which is number prevailing between the two families, may be disturbed. In the peculiar facts of this case, therefore, in order to accord quietus to the disputes between the appellant and respondent No. 2 and in the larger interest of peace, we permit the appellant and respondent No. 2 to companypound the offences.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2371 of 1969. From the Judgment and order dated 23-5-1968 of the Allahabad High Court in Special Appeal No. 247/66. L. Sanghi, Mrs. S. Bagga for the Appellant. N. Dikshit and O. P. Rana for Respondents 1-5. K. Bagga for Respondent No. 6 The Judgment of the Court was delivered by SEN J.-This appeal, by certificate, is directed against a judgment of the Allahabad High Court dated May 23, 1968, whereby it upheld a judgment of a Single Judge of that Court dated March 16, 1966, dismissing the applicants writ petition to quash recovery proceedings initiated by the Collector, Azamgarh for realisation of the sum remaining due on account of a taccavi loan under s.7 1 of the Land Improvement Loans Act, 1883. The facts leading to this appeal, in brief, are as follows The appellant and his brother Shashi Bhushan Gupta the sixth respondent, companystituted a joint Hindu family owning extensive zamindari properties, over several districts in United Provinces including Azamgarh zamindari companyprising of 34 villages. They owned an agricultural farm known as Mukundpur Farm situated in Azamgarh zamindari. It is alleged that by virtue of a family settlement in 1940, the appellant even though younger in age, became the karta of the joint family. By his application dated February 25, 1947 the appellant applied for a taccavi loan of Rs. 1,22,000 in the prescribed form for improvement of Mukundpur Farm, to the Director of Agriculture, United Provinces through the Collector, Azamgarh. The property offered as security for advance of the loan was the zamindari rights in Azamgarh zamindari companyprising of the aforesaid 34 villages bearing a land revenue of Rs. 11,000/-. During the verification proceedings, the appellant by his application dated February 22, 1948, offered a security of his half share in Azamgarh zamindari, which on enquiry by the Collector for the grant of sanction for the loan, was evaluated at Rs. 1,43,869.66p. The taccavi loan was duly sanctioned by the Government on September 23, 1948. The appellant having defaulted in payment of the loan, the Collector, Azamgarh by his order dated March 24, 1952 directed that the entire ilaqa lying in Tahsil Sagri, district Azamgarh forming part of the hypothecated property be attached under s. 150 of the U.P. Land Revenue Act, 1901. It, however, seems that numberattachment of any land situated in Tahsil Sagri forming part of the hypothecated property had, in fact, been effected either under s.150 of the U.P. Land Revenue Act or s. 289 1 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. It appears that some plots at the Mukundpur Farm lying in two villages, Mahnajpur and Ghaibipur, were later taken under the management of the Collector under s. 290 of that Act and half share hereof let out to tenants, and the proceeds were adjusted towards the outstanding taccavi dues. It also appears that a sum of Rs. 38,951.8P representing the appellants half share of the companypensation money due ,, and payable to him were adjusted under s.6 e of the Act towards the loan. It is the appellants case that there was a partition between the appellant and his brother, the sixth respondent in 1951, and the hypothecated property was allocated to the share of the sixth respondent. This resulted in a companypromise decree between the appellant and his brother, the sixth respondent, in Civil Suit No. 72 of 1952 under the terms of which, the sixth respondent undertook upon himself the liability to discharge the loan as the property offered in security had fallen to his share. In companypliance thereof, the sixth respondent actually paid Rs. 16,012.50P. The Government was admittedly number impleaded as a party to, the suit. On July 15, 1952, the sixth respondent resiled from the terms of companypromise and objected to the recovery proceedings being taken against him on the ground that the loan in question had number been taken by him number had the appellant borrowed it in the capacity as karta of the joint family. He, indeed, denied the factum of partition. These objections were, however, over-ruled by the Sales officer, Azamgarh on October 22, 1952. On May 15, 1953, the appellant applied to the State Government for expunging his name from the debtor-sheet. The application was forwarded by the Government to the Collector, Azamgarh for enquiry and report. The appellant raised an objection alleging inter alia that the loan had been incurred by him in his capacity as karta of the joint Hindu family and that since the hypothecated property had fallen to . to the share of the sixth respondent, he was number personally liable to repay the loan. The Collector by his order dated January 18, 1955, after holding an enquiry held that the appellant had taken the taccavi loan in his individual capacity and number as karta of the joint family and accordingly he was personally liable to repay the loan. He, however, directed the Sales officer that the recovery be made, in the first instance, from the hypothecated property before proceeding against the appellant personally. The action taken by the Collector was duly endorsed by the Land Reforms Commissioner by his letter dated April 7, 1955, and approved of the State Government by its order dated July 22, 1955. The recovery proceedings were accordingly initiated against the appellant. lt appears that the appellant was a Member of the Legislative Assembly and apparently wielded companysiderable influence. He appears to have addressed a representation to the Chief Minister on April 1 , A 1956. The State Government referred the matter to the Commissioner, Gorakhpur Division, Gorakhpur who by his letter dated October 19, 1956 stated that he was fully in agreement with the Collector that the appellant must be treated as having taken the loan in his individual capacity and proceedings for its recovery had to be taken against the hypothecated property as well as against him personally. The latter also mentioned that the Collector had been asked, if necessary, to explain the case personally to the Chief Minister. Evidently, the State Government after reviewing the matter at all levels, by its order dated August 13, 1957 directed that the realisation of the taccavi dues outstanding against the appellant should be made from the hypothecated property as well as from his person immediately. It further directed that all the modes for recovery legally permissible should be adopted against him simultaneously and pursued vigorously. Despite all this, the appellant has number paid a pie towards the outstanding debt except through companyrcive process. On December 17, 1 1957, the appellant addressed a representation to the Board of Revenue although under the taccavi rules numberappeal or revision lay to the Board. It is somewhat strange that the Addl. Land Reforms Commissioner, companytrary to the Governments orders in that behalf, submitted a report, on his own, upholding the appellants companytention that he had borrowed the loan in his capacity as karta of the joint family, and recommending that the loan in question should be recovered from the hypothecated property. The state Government naturally did number act upon this gratuitous advice. On June 19, 1959, the appellant has informed of the Governments decision. Thereafter, the Collector started proceedings for realisation of Rs. 72,152.50P as principal and Rs. 23,689.81P as interest. Thereupon, the appellant on August 4, 1959 moved the Allahabad High Court under Art. 226. The appellants writ petition was dismissed by a learned Single Judge. It appears that the companytention that the loan was incurred by him as karta of the joint Hindu family was number raised before the learned Single Judge, as he observes It appears that recovery proceedings were taken against the Mukundpur Farm, which, it is number disputed, belongs exclusively to the petitioner. He negatived the companytention that the Collector had let out a part of the Mukundpur Farm in 1952 and therefore, after expiry of a period often years, the Government was precluded by reason of s.291 3 of the U.P. Zamindari Abolition and Land Reforms Act from further companytinuing the recovery proceedings. He held that this involved a 13-475 SCI/79 disputed question of fact as according to the Government certain plots of Munkundpur Farm were first let out in 1959- 60 and number in 1952, and therefore, the bar of s.291 3 was number applicable. As regards the companytention based on s.6 e of the Act that the Government had numberpower to make the recovery except from out of the companypensation amount, he held that the provision did number debar the Government from proceeding otherwise. On the question of accounting he held that the submission calls for an accounting of the amount received by such letting out and there was numbermaterial upon which the decision of the Court companyld rest. On appeal, the appellant for the first time raised an objection as to his personal liability alleging that the loan in question was incurred by him in the capacity of karta, and, therefore, recoverable from the hypothecated property alone. There was a difference of opinion on the question between the learned Judges companystituting the Bench as to whether he had taken the loan as karta of the joint family or in his individual capacity, but numberetheless the appeal failed because they repelled all other companytentions. Four questions arise in this appeal 1. Whether the taccavi loan was incurred by the appellant as a karta of the joint Hindu family and number in his individual capacity and, therefore, the loan in question has to be recovered from the sixth respondent, inasmuch as the hypothecated property had fallen to his share in a family partition ? 2. Is the Collector precluded from taking resort to any one or other modes prescribed by s.7 1 of the Land Improvement Loans Act, 1883, for recovery of the sum remaining unrealised towards the taccavi loan, by reason of s.289 2 or s.291 3 of the U.P. Zamindari Abolition and Land Reforms Act, 1950? 3. Have the Government numberright to recover the outstanding amount due except from the companypensation amount in terms of s.6 e thereof? 4. Was the Government bound to render an account of the rents and profits derived from letting out of the plots of Mukundpur Farm? Section 7 1 of the Land Improvement Loans Act, 1883, reads as follows 7 1 Subject to such rules as may be made under section ten, all loans granted under this Act, all interest if any chargeable thereon, and companyts if any incurred in making the same, shall, when they become due, be recoverable by the Collector in all or any of the following modes, namely- a from the borrower-as if they were arrears of land-revenue due by him b from his surety if any -as if they were arrears of land- A revenue due by him c c out of the land for the benefit of which the loan has been granted-as if they were arrears of land-revenue due in respect of that land d out of the property companyprised in the companylateral security if any -according to the procedure for the realization of land-revenue by the sale of immovable property other than the land on which that revenue is due. on the first point, we agree with one of the learned Judges Uniyal J. . The companyclusion reached by the learned Judge that the taccavi loan was taken by the appellant in his individual capacity is the only companyclusion possible. The appellant maintained that the loan was incurred for family purposes i.e., for improvement of Munkundpur Farm by the appellant in his capacity as the karta and it having fallen to the share of the sixth respondent in the family partition, the recovery proceedings against the appellant under s. 7 were number maintainable. We fail to see how can the appellant escape liability on this account. The Government was number a party to Civil Suit No. 72 of 1952 and was, therefore, number bound by the terms of the companypromise decree. Nor was the Government bound by the alleged partition effected between the appellant and the sixth respondent. It matters little whether there was a partition or number in 1951 and if so, whether the hypothecated property had fallen to the share of the sixth respondent. The appellant had bound himself by the terms of the taccavi bond to discharge the liability from his property The instrument is number on record. The document was, however, before the High Court. Uniyal J. in the companyrse of his judgment, with regard to appellants personal liability, observes He pledged his half share in 34 villages of Tahsil Sagri. After verification of the proprietary rights of the appellant in the hypothecated property, the Collector issued a certificate declaring that the same as sufficient to companyer the amount of taccavi loan. Thereupon a formal document in the nature of taccavi bond was executed by the appellant of the one part and the Collector of the other part evidencing the transaction of loan. A list companytaining particulars of the immovable property was annexed to the bond, and it was stated therein that a half share of the appellant in the said zamindari property had been pledged by way of security. Emphasis supplied The companyrectness of this observation is number open to question. The learned Judge then goes on to say The naqsha maliyat attached to the taccavi bond clearly mentioned the details of the hypothecated property in tahsil Saygri companysisting of one half share of the appellant. He then rightly companycludes, saying It is of numberconsequence if the creditor proceeds against the share of the Karta alone in the joint family property hypothecated as security for the loan, or from his person, or both. We companycur in the companyclusion reached by the learned Judge that the loan in question was taken by the appellant in his individual capacity and number as a karta of the joint Hindu family. Even assuming he took the loan as karta, still he would be personally and severally liable to repay it. The remaining points are equally devoid of substance. The companytention based on s. 289 2 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 does number arise. No doubt, the Collector is em powered under s. 7 1 of the Land Improvement Loans Act to recover all the taccavi dues from the defaulter as arrears of land revenue, and by reason of s. 288, the provisions of s. 289 are attracted. By s. 288 it is provided that the provisions of the Act with regard to the recovery of arrears of land revenue shall apply to all arrears of land revenue and sums of money recoverable as arrears of land revenue due at the companymencement of the Act. The Collector companyld, therefore, have taken resort to s. 289 1 for the recovery of the unrealised amount of the taccavi loan by attachment and sale of properties belonging to the appellant. But, the ilaka of Tahsil Sagri was number, in fact, ever attached under s. 289 1 . In the instant case, numberprevious sanction of the Board of Revenue was obtained under s. 272 2 . Consequently, the attachment companyld number be said to be one made under s. 289 1 . Further, s. 289 applies only to those cases in which the provisions of s. 243 1 have been made applicable by the Government under a numberification issued under s. 243 2 . It is numberodys case that a numberification companytemplated by s. 243 2 was ever issued. The question of s. 289 2 operating as a bar to the recovery proceedings after expiry of a period of three years, therefore, does number arise. There is also a fallacy in the argument. The provisions of s. 289 run thus. Attachment of village for arrears of land revenue.- 1 At any time after an arrear of land revenue has accrued, the Collector may attach the village or any area therein in respect of which the arrear is due and place it under his own A management or that of an agent appointed by him for that purpose for such period as he may companysider necessary Provided that the period for which any village or any area therein may be so attached, shall number exceed three years from the companymencement of the agricultural year next following the date of attachment, and the attachment shall be cancelled if the arrears are sooner liquidated. Upon the expiry of the period of attachment, the village shall be restored free of any claim on the part of the Government for any arrear of land revenue due in respect thereof. When an arrear of land revenue has accrued, the Collector may under s. 289 1 attach a village or any area therein in respect of which the arrear is due and place it under his own management or that of an agent appointed by him for that purpose. The proviso to s. 289 1 , however, interdicts that the period for which any village or any area therein may be so attached, shall number exceed three years from the companymencement of the agricultural year next following the date of attachment, and the attachment shall be cancelled if the arrears are sooner liquidated. If s. 289 2 is read in the companytext of sub-s. 1 , it will be clear that upon the expiry of the period of three years the village has to be restored free of any claim on the part of the Government for any arrear of land revenue due in respect thereof. The companysequence that ensues is that liability for payment of land revenue in respect of the village or any area therein in respect of which arrears are due stands discharged. There is a distinction between arrears of land revenue and other government dues recoverable as if they were arrears of land Revenue. In respect of other sums of money recoverable as arrears of land revenue, the debtor is number discharged of his liability for payment of such dues even after three years. The next question is whether by virtue of s. 291 3 , the appellant stood relieved of all liability for payment of arrears of taccavi due after the expiry of ten years. We may here read s. 291 3 . It is in these terms 291 3 Upon the expiry of the period of lease the holding shall be restored to the tenure-holder companycerned free of any claim on the part of the State Government for any arrears in respect of such holding. The High Court has relied upon the affidavit of the Chief Revenue Accountant, Collectorate stating that certain plots of Mukundpur Farm were for the first time let out in the year 1959-60. It would, therefore, appear that the period of ten years had number expired when the recovery proceedings were initiated. There remains the question whether the Government is bound to recover the unrealised sum of taccavi loan from the amount of companypensation money and relying upon s. 6 e of the U.P. Zamindari Abolition and Land Reforms Act it is urged that is the only remedy left. The companytention, we are afraid, proceeds on a misconception of the purport and effect of s. 6 e of the Act, which reads 6 e . all amounts ordered to be paid by an intermediary to the State Government under Sections 27 and 28 of the U.P. Encumbered states Act, 1934, and all amounts due from him under the Land Improvement Loans Act, 1883, or the Agricultural Loans Act, 1884, shall, numberwithstanding anything companytained in the said enactments, become due forthwith and may, without prejudice to any other mode of recovery provided therefor, be realized by deducting the amount from the companypensation money payable to such intermediary under Chapter III. It is plain upon its terms, that the provisions of s. 6 e are number obligatory. It is an enabling provision. It provides that all amounts due under the Land Improvement Loans Act, shall numberwithstanding anything companytained therein, become due forthwith, upon the vesting of the zamindari rights. It then lays down that such dues may, with out prejudice to any other mode of recovery provided therefor, be realised by deducting the amount from the companypensation money payable to such intermediary. It, therefore, provides an additional mode of recovery for realisation of the dues. The word may in s. 6 e clearly indicates that the Government has the option to fall back upon the companypensation amount. It does number entail in the companysequence that the mode indicated in s. 6 e is the one and the only mode available. The High Court has observed that the entire amount of companypensation money which fell to the appellants share amounting to Rs. 38,951.8P had been adjusted towards the loan, on the basis that the half share of the appellant in the zamindari property had been hypothecated as security for the loan. The recovery proceedings number pending before the Collector is for the balance remaining after such adjustment together with interest. It was faintly argued by learned companynsel for the appellant that the Government was bound to render an account of the rents and profits realised from the letting of plots of Mukundpur Farm, but he did number A pursue the argument any further and rightly so. The High Court has observed that it had scrutinized the accounts maintained by the Government and the same have been maintained as required by the taccavi rules as per appendix A to Form VII. It was certainly number open to the High Court to grant any such relief under Art. 226 of the Constitution particularly when it involved companysideration of disputed question of fact. The result, therefore, is that the appeal fails and is dismissed with companyts.
APPELLATE JURISDICTION Criminal Appeal No. 291 of 1968. Appeal by special leave from the judgment and order dated March 28, 1968 of the Calcutta High Court in Criminal Revision No. 159 of 1968. K. Chatterjee, for the appellant. K. Chakravarty, for respondent No. 1. The Judgment of the Court was delivered by Ray, J. This is an appeal by special leave from the judgment dated 28 March, 1968 of the High Court at Calcutta quashing the processes issued against the three accused persons. The appellant on 8 March, 1966 filed a petition of companyplaint against the Block Development Officer Purulia, the Officerin Charge of the local Police Station and T. Ganguly, the Deputy Superintendent of Police, Purulia under section 395 of the Indian Penal Code on the allegation that during search of the appellants house they companymitted dacoity in the house. The Magistrate dismissed the companyplaint under section 203 of the Code of Criminal Procedure on the ground that the companyplaint was incompetent without sanction as the accused were Government servants. The companyplainant thereafter moved the Sessions Judge, Purulia against the order of dismissal. A reference was made to the Calcutta High Court. The learned Single Judge of the Calcutta High Court accepted the reference, set aside the order of the Magistrate and sent the case back for proceeding in accordance with law. On 27 March, 1967 the Magistrate Shri S. K. Ganguly took companynizance of the case and fixed a date for holding judicial enquiry. The Magistrate on 22 November, 1967 came to the companyclusion that a prima facie case under section 395 of the Indian Penal Code had been made out against the three accused and submitted a report to the Sub-Divisional Magistrate, Purulia. The Sub-Divisional Magistrate, Purulia on receipt of the report of the judicial enquiry passed an order on 6 December, 1.967 directing the issue of process against all the three accused. This order forms the subject matter of the appeal. One of the accused thereafter moved the High Court at Calcutta for quashing the process. The High Court at Calcutta said that companynizance of the offence was taken by the Magistrate Shri S. K. Ganguly but process was issued by the Magistrate Shri S. Sarkar and held that Shri Sarkar number having taken companynizance of the offence had numberright to issue process under section 204 of the Code of Criminal Procedure. The High Court, therefore, quashed the process and observed that the learned Magistrate who had taken companynizance of the offence if he was so advised would be at liberty to issue processes against the other two accused persons. The question for companysideration is whether Shri Sarkar companyld have issued process in the-present case. Shri Ganguly was the Magistrate who took companynizance. Shri Sarkar was number the Magistrate who took companynizance. Therefore, under section 204 of the Code of Criminal Procedure the Magistrate who took companynizance of the case companyld issue process. Sections 191 and 192 of the Code of Criminal Procedure companytemplate transfer of cases by a Magistrate, who has taken companynizance, of an offence. Section 191 of the Code of Criminal procedure of transfer of a case or companymitment to the Court of sessions on the application of the accused. Section 192 of the Code of Criminal Procedure speaks of transfer of a case by a Magistrate who has taken companynizance to any Magistrate subordinate to him for enquiry or trial. In these cases where either the Magistrate has taken companynizance and is in session of the case or where a case is transferred by a Magistrate who has taken Cognizance to another Magistrate subordinate to him the companyplainant is required to be examined under section 200 of the Code of Criminal Procedure. There are certain exceptions with which we are number companycerned in the the present appeal. The relevant section which companyfers power on the Magistrate to whom the case has been transferred to issue process is section 202 of the Code of Criminal Procedure. The language of section 202 of the Code of Criminal Procedure is that the Magistrate may, for reasons to be recorded in writing, postpone the issue of process for companypelling the attendances of the person companyplained against. Therefore the power of the Magistrate to issue process under section 202 of the Code, of Criminal Procedure is number limited by the terms of section,204 of. the Code-of Criminal Procedure to issue process. Therefore, the two companyrses are first, under section 204 of. the Code of Criminal Procedure for the Magistrate taking companynizance to issue process Or secondly under section 202 of the Code of Criminal Procedure for a Magistrate to whom a case has, been transferred to issue process. In the present case there was numberorder of transfer of the case, by Shri Ganguly to Shri Sarkar. The issue of process is a matter for judicial determination. Before issuing a process the Magistrate has to examine the companyplainant. That is why the issue of process is by the Magistrate who has taken companynizance or the Magistrate to whom the case has been transferred. The High Court therefore companyrectly quashed the issue of process. It was companytended on behalf of the appellant that the High Court should number have gone to the question as to whether a prima facie case was established or number. The High Court under section 561-A of the Code of Criminal Procedure can go into the question as to whether there is any legal evidence. When the High Court said that the evidence in the present case came from tainted sources and was number reliable the High Court meant what can be described as numbercase to go to the jury. The High Court companyrectly quashed the process against T. Ganguly. The appeal therefore fails and is dismissed.
Venkataswami. J. The question that falls for companysideration in this Civil Appeal can be framed as follows- Whether the limited Estate including the suit house given by the father-in-law under a registered will dated 5.1.1921 to his widowed daughter-in-law enlarges into an absolute estate under Section 14 1 of the Hindu Succession Act, 1956 on the facts of this case. It is surprising that in spite of a three Judge Bench Judgment of this Court in v lulsamma and others vs. Sesha Reddy dead by LRs. 1977 3 SCC 99 clearly explaining in detail the scope and ambit of sub-sections 1 and 2 of Section 14 of the Hindu Succession Act. 1956, the High Court without referring to that case has reached a palpably erroneous companyclusion on the scope of Section 14 1 of the said Act. This appeal by special leave arises out of a suit filed by one Ch. Rajendra Shankar, the prececessor-in-title of the respondents herein, seeing a declaration that the sale in favour of the appellant herein will number bind him as he was the absolute owner of the suit house. One Kamlawati widowed daughter-in-law of Babu Ram Ratanlal, sold the suit house to the appellant under a registered sale deed dated 18.10.1965 for a valid companysideration. That sale was challenged by Rejendra Shankar. grandson of Babu Ram Ratanlal through his daughter, predecessor in title of the respondents on the ground that his grandfather by the will dated December 25, 1920 registered on 5.1.1921 had given only a limited interest in the suit house to the said kamlawati and, therefore, the sale will number be binding on him after the death of the said Kamlawati. Ch. Rajendra Shankar died pending suit. His legal representatives companytinued the suit. To appreciate the facts. minimal geneology and relevant clauses in the will are necessary which are given below Ram Ratan Lal died in 1921 Sital Prasad Smt. Dulari d o Ram Ratan died in 1920 Lal died in 1918 Smt. Kamlawati defendant No. 2 Prahalad Singh Ch. Rejendra died in 1922 Shankar Plaintiff Smt. Bittan w o Prahalad Singh died in 1966 The relevant clauses English translation of the will executed by the said Babu Ram Ratan Lal are extracted below- Whereas I had a son named Shri Babu Shitla Prasad Singh, He was studying in B.A. class but due to my bad luck he died issualess on 29th January, 1920. He was married in his childhood and his wife Mst. Kamlawati is alive and my wife is also alive and my daughters sons, namely, Prahalad Singh and Rajender Shanker alias Sat Gur Saran, sons and one daughters daughter Savitri Devi, daughter of late Babu Ambika Buksh, advocate of Lucknow. Their parents had put them into my care for education and they are under my guardianship. I am exclusive owner of my property with right of alienation and it is necessary for me to make arrangements of the property for the aforesaid parsons so that there may number arise any dispute after my death and I had executed a will which was certified and registered on 1/2 March, 1920 and in that I had given instructions for installation of an idol of Sri Thakurji. Now by the grace of God I have installed idols of Sri Thakur Ram Chanderji and Sri Janakji in the Drawing room of my beloved Babu Sheetal Singh deceased. and I had also directed my daughters sons to pay a sum of Rs. 35/- per month to my daughterin-law for maintenance which amount is insufficient keeping in view the high prices and family status. Instead of me, my daughters sons will have the liability of maintenance. for this reasons, I desire to give my entire share in the Zamidari property valued at is Annas Mohaal Babu Ram Rattan Lal, Mauza Rasool Pargana Tahsil Purwa, District Unnao, in lieu of maintenance allowance to my daughter-in-law. For the reasons stated above thus present will has been executed cancelling the previous one. Therefore, I while in my all senses, sound health, intellect, of my own accord and free will without companyrcion and companypulsion from any direct that it be acted upon after my death. In clause 2 of the said will, the Testator has stated- My wife of her own is number desirous to get any share in the property but it is my duty make arrangement for her also. Therefore, my entire moveable property and household effects which are owned by me or will be owned in future, after my death shall be owned and possessed by my wife Mst. Prayag Devi and residential house bearing municipal No. 69, situated at Mohalla Kharan Sarai, Town Unnao alongwith the companyrt-yard and bounded as detailed hereunder will also be owned and possessed by my wife. But my daughter-in-law Mst. Kamlawati during the life time of my wife, shall be entitled to reside in the said house and numberody shall be entitled to reside in the said house and numberody shall be entitled to turn her out. After the death of my wife, Mst. Kamlawati shall become the owner of the said house and remain in possessin thereof. But both these ladies shall have numberright to alienate the aforesaid residential houses. the Sale deed of this residential house, the date of execution of which is number remembered by me, is in the name of my father-in-law Munshi Beni Madhav Prasad, but in reality I am the owner of the same and I have already spent a companysiderable amount on the companystruction of the house from the day of execution of the Sale Deed. Therefore, I have a right to make a will in respect thereof. Emphasis supplied . Clause 3- My daughters sons shall companytinue to reside in the residential house referred to clause 2 alongwith their maternal grand-mother and Mami maternal uncles wife . In case, my wife or daughter-in-law feel unhappy with my daughters sons or their dependants or they decline to obey or serve them wife and daughterin-law then they daughters sons shall have numberright to live in my residential house and they as per the desire of my wife and daughterin-law will have to leave the house and in other house bearing Municipal No. 70, but the outer big room adjacent to Pathak facing South of the residential house shall in any case remain under the use of my daughters sons and after death of my daughter-in-law, my daughters sons shall be the owner of my residential house referred to in clause 2 above my daughters sons and their descendants should companytinue to reside so that worship of Sri Thakurji may companytinue accordingly and the memories of mine and of my deceased son may perpetuate. Placing reliance on certain clauses in the will and in particular on clause 2 above, the suit was laid as stated earlier. The suit was resisted by the appellant inter alia companytending that his vendor got the property absolutely in view of Section 14 1 of Hindu Succession Act and number merely a life estate as assumed by the plaintiff in the suit. The Trial Court however dismissed the suit observing as follows I am of the view that defendant number 21 Kamlawati derived only life interests in the suit property under the will in question and that she had numberright to execute sale deed in favour of defendant number 1 as this right had been specifically excluded by the terms of will in question. Once it is proved that will in question was executed by Ram Rattan Lal then it is abundantly clear by terms laid down in will in question that deceased plaintiff Rajendra Shanker was given interests in his property in suit which companyld companye in play only after the death of Smt. Kamlawati and as such deceased plaintiff No. 1 had been given a right and interest over the property in suit of the terms of will and that after his death the same have number devolved to the present plaintiffs as plaintiff No.1 Rajendra Shanker has died before Smt. Kamwati. And as I hold that the deceased plaintiff No. 1 Rejendra Shanker had rights and interests to property in suit but as he has died at the life time of Kamlawati and as such present plaintiffs claiming through deceased plaintiff No. 1 have numberinterest and right to the property in suit as number the absolute rights have reverted and have vested with Smt. Kamlawati. The respondent preferred an appeal to the District Court and the learned First Additional District and Sessions Judge, Unnao held that the vendor of the appellant, namely, Kamlawati was given only a life interest under the will and that the original plaintiff Rajendra Shanker had a vested interest in the suit property in view of Section 19 of the Transfer of property Act read with Section 119 of the Indian Succession Act. The earned Additional District Judge, also held that Section 14 1 of the Hindu Succession Act will number companye to the aid of the appellant herein as his vendor got only life interest which will number enlarge into absolute estate in view of the exception provided in Section 14 of the Hindu Succession Act. On that basis, he held that the sale in favour of the appellant will number bind the original plaintiff and his successors in interest. Accordingly, he decreed the suit reversing the judgment of the Trial Court. On further appeal to the High Court after appreciating clauses 1 and 2 in the will, on the scope of Section 14 of the Hindu Succession Act held as follows- The reading of the will, as observed above, clearly shows that Smt. Kamlawati was only given a right to reside in the house during her lifetime and she was clearly debarred from alienating this property in any way. Smt. Kamlawati, therefore, had a limited estate and had numberright of alienation and it was Choudhri Rajendra Shanker who was vested with the interest in the estate as envisaged by Section 19 of the Transfer of Property Act and Section 119 of the Indian Succession Act. It may be mentioned that under Section 14 of the Hindu Succession Act the property possessed by a Hindu Female, numberdoubt, has number become her absolute property. This provision makes an exception in the case where the property is being held under a will or a gift or any other instrument or under a decree or order of a Civil Court. The character of such property was number changed by the introduction of Section 14 of the Hindu Succession Act. Therefore, it cannot be said that the house in suit in which right of residence was given to Smt. Kamlawati by virtue of the will vested in an absolute proprietary right. Her rights would remain the same as were prior to the enforcement of the Hindu Succession Act. It is under these circumstances that the appellant moved this companyrt and got leave to file this Appeal. Now, this appeal has companye up for final disposal. Mr. Anil Kumar Gupta, learned companynsel for the appellant invited our attention to a number of decisions of this Court and one decision of the privy Council too to support his submission based on Section 14 1 of the Hindu Succession Act, 1956 We do number think it necessary to refer to all the decisions cited in view of the three Judge Bench judgment of this Court in v Tulsamma and Others vs. Sesha Reddy dead by L.Rs. 1977 3 SCC 99 as the other cases cited by the learned companynsel for the appellant are either referred to in this case or apply the ratio laid down in this case. In Tulsammas case, Fazal Ali, J. in this exhaustive judgment on the question of pre-existing right of a Hindu Woman observed as followed- Thus on a careful companysideration and detailed analysis of the authorities mentioned above and the Shastric Hindu Law on the subject, the following propositions emerge with respect to the incidents and characteristics of a Hindu womens right to maintenance- 1 that a Hindu womans right to maintenance is a personal obligation so far as the husband is companycerned, and it is his duty to maintain her even if he has numberProperty. If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow. 2 though the widows right to maintenance is number a right to property but it is undoubtedly a pre-existing right in property, i.e. it is a jus ad rem number jus in rem and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement or by obtaining a decree from the civil companyrt 3 that the right of maintenance is a matter of moment and is of such importance that even if the joint property is sold and the purchaser has numberice of the widows right to maintenance, the purchaser is legally bound to provide for her maintenance 4 that the right of maintenance is undoubtedly a pre-existing right which existed in the Hindu Law long before the passing of the Act of 1937 or the Act of 1946, and is, therefore, a pre-existing right 5 that the right or maintenance flows from the social and temporal relationship between the husband and the wife by virtue of which the wife becomes a sort of companyowner in the property of her husband, though her companyownership is of a subordinate nature and 6 that where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to the property or purchases the same is in a position to make due arrangements for her maintenance. Thereafter, the learned Judge dealt with the scope of Section 14 1 and laid down the following principles- In the light of the above decisions of this Court, the following principles appear to be clear- 1 that the provisions of Section 14 of the 1956 Act must be liberally companystrued in order to advance the object of the Act which is to enlarge the limited interest possessed by a Hindu Widow which was in companysonance with the changing temper of the times 2 it is manifestly clear that the sub-section 2 of Section 14 does number refer to any transfer which merely recognises a preexisting right without creating or companyferring new title on the widow. This was clearly held by this Court in Badri pershads case supra 3 that the Act of 1956 has made revolutionary and far-reaching changes in the Hindu society and every attempt should be made to carry out the spirit of the Act which has undoubtedly supplied a long felt need and tried to do away with the invidious distinction between a Hindu male and female in matters of intestate succession 4 that sub-section 2 of section 14 is merely a proviso to sub-section 1 of section 14 and has to be interpreted as a proviso and number in a manner so as to destroy the effect of the main provision. Again reiterating the same principles, the learned Judge observed as followswe would number number sic like to summarise the legal companyclusions which we have reached after an exhaustive companysiderations of the authorities mentioned above on the question of law involved in this appeal as to the interpretation of Section 14 1 and 2 of the Act of 1956. These companyclusions may be stated thus- That the Hindu females right to maintenance is number an empty formality or an illusory claim being companyceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right maynot be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does number companyfer any new title but merely endorses or companyfirms the preexisting rights. Section 14 1 and the Explanation thereto have been companyched in the widest possible terms and must be liberally companystrued in favour of the 1956 Act and promote the socio-economic ends sought to be achieved by this long needed legislation. Sub-section 2 of Section 14 is in the nature of a proviso and has a field of its own without interferring with the operation of Section 14 1 materially. The proviso should number be companystrued in a manner so as to destroy the effect of the main provision or the protection granted by Section 14 1 or in a way so as to become totally inconsistent with the main provision. Sob-section 2 of Section 14 applies to instruments, decrees, awards, gifts, etc. which create independent and new titles in favour of the females for the first time and has numberapplication where the instrument companycerned merely seeks to companyfirm, endorse, declare or recognise pre-existing rights. In such cases a restricted estate in favour of a female is legally permissible and Section 14 1 will number operate in the sphere. where, however, an instrument merely declares or recognises a preexisting right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely numberapplication and the females limited interest would automatically be enlarged into an absolute one by force of Section 14 1 and the restrictions placed, if any, under the document would have to be ignore. thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-section 14 2 and would be govered by Section 14 1 despite any restrictions placed on the powers of the transferee. 5 the use of express terms like property acquired by a female Hindu at a partition, or in lieu of maintenance, or arrears of maintenance, etc. in the Explanation to section 14 1 clearly makes sub-section 2 inapplicable to these categories which have been expressly excepted from the operation of sub-section 2 . The words possessed by used by the Legislature in Section 14 1 are of the widest possible amplitude and include the state of owning a property even though the owner is number in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had number been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of Section 14 1 she would get absolute interest in the property. It is equally wellsettled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does number companytemplate the possession of any rank trespasser without any right or title. Tha the words restricted estate used in Section 14 2 are wider than limited interest as indicated in Section 14 1 and they include number only limited interest, but also any other Kind of limitation that may be placed on transferee. Bhagwati and Das Gupta, JJ. while companycurring with Fazal Ali, J. held as follows- It is settled law that a widow is entitled to maintenance out of her deceased husbands estate, irrespective whether that estate may be in the hands of his male issue or it may be in the hands of his companyarceners. The joint family estate in which her deceased husband had a share is liable for her maintenance and she has a right to be maintained out of the joint family properties and though, as pointed out by this Court in Rani Bai vs. Shri Yadunandan Ram, her claim for maintenance is number a charge upon any joint family property until she has got her maintenance determined and made a specific charge either by agreement or a decree or order of a companyrt, her right is number liable to be defeated except by transfer to a bona fide purchaser for value without numberice of her claim or even with numberice of the claim unless the transfer was made with the intention of defeating her right. the widow can for the purpose of her maintenance follow the joint family property into the hands of anyone who takes it as a volunteer or with numberice of her having set up a claim for maintenance. The companyrts have even gone to the length of taking the view that where a widow is in possession of any specific property for the purpose of her claim is number entitled to possession of that property without first securing proper maintenance for her. Vide Rachawa vs. Shivayagoppa cited with approval in Rani Bais case supra . It is, therefore, clear that under the Shastric Hindu Law a widow has a right to be maintained out of joint family property and this right would ripen into a charge if the widow takes the necessary steps for having her maintenance ascertained and specifically charged on the joint family property and even if numberspecific charge is created this right would be enforceable against joint family property in the hands of a volunteer or purchaser taking it with numberice of her claim. The right of the widow to be maintained is of companyrse number a jus in rem since it does number give her any interest in the joint family property but it is certainly jus ad rem, i.e. , a right against the joint family property. Therefore, when specific property is allotted to the widow in lieu of her claim for maintenance, the allotment would be in satisfaction of her jus ad rem, namely, the right to be maintained out of the joint family property. If would number be a grant for the first time without any pre-existing right in the widow. The widow would be getting the property in virtue of her pre-existing right, the instrument giving the property being merely a document effactuating such pre-existing right and number making a grant of property to her for the first time without any antecedent right or title. There is also another companysideration which is very relevant to this issue and it is that. even if the instrument were silent as to the nature of the interest given to the widow in the property and did number, in so many terms, prescribe that she would have a limited interest, she would have numbermore than a limited interest in the property under the Hindu law as it stood prior to the enactment of the Act and hence a provision in the instrument prescribing that she would have only a limited interest in the property would be, to quote the words of this companyrt in Nirmal Chands case supra , merely recording the true legal position and that would number attract the applicability of sub-section 2 but would be governed by subsection 1 of Section 14. The companyclusion is, therefore, inescapable that where property is allotted to a widow under an instrument, decree, order or award prescribes a restricted estate for her in the property and subsection 2 of Section 14 would have numberapplication in such as case. In the light of the above settled position which has been companysistently followed and applied by this Court as late as in Nazar Singh and others vs Jagjit Kaur and Others 1996 1 SCC 35 , if we look into the relevant clauses extracted above from the will in question, there can be numberdoubt that in view of Section 14 1 of the Hindu Succession Act, the property given to Kamlawati was in recognition of her pre-existing right to maintenance and that property she was to hold absolutely numberwithstanding the restrictions placed in the will on her right to alienation. The only argument raised before us by the learned companynsel for the respondents was that on the facts of this case Section 14 2 of the Hindu Succession Act applies and number Section 14 1 . According to the learned companynsel for the respondents the Hindu women have numberpre-existing right for maintenance and assuming she had so, that must be pursuant to Hindu Womens Right to Property Act, 1937 and number earlier. This argument is number available in view of the clear pronouncement to the companytrary in Tulsammas case supra . After carefully going through the judgment of the High Court and relevant clauses in the Will, we find that the following facts were either admitted or were number disputed. The testator bequeathed on the said Kamlawati apart from the suit house other properties recoginising companyscious of her pre-existing right for maintenance. The clause in the will restraining Kamlawati from alienating the bequeathed properties was in companysonance with the law custom then existing. Regarding bar on alienation for ever number only by Kamlawati but also by the heirs of testatorss daughter relating to suit house, the High Court observed as follows- It is numberdoubt true that the companydition restraining alienation is clearly void in view of the provisions of the Transfer of Property Act. It may be mentioned that Section 138 of the Succession Act, 1928 is also on the same lines. There cannot be two opinions about it. Having held as above, the High Court on a wrong understanding of Section 14 of the Hindu Succession Act held further that Kamlawati got under the will only a limited interest in the suit house namely, a right of residence till her death. In the light of the ruling of this Court in Tulsammas case supra . We have numberdoubt that the High Court went wrong in taking the view that Kamlawati, appellants vendor, got only a limited estate in the suit house because of the terms of the will. As pointed out earlier, Kamlawati had a pre-existing right and that she was in possession of the suit house when the Hindu Succession Act came into force and in view of Section 14 4 of the said Act, her limited estate enlarges into an absolute one. The reversioners have numberright in the property till it companyes to them by reversion because the widow is number a trustee of the interests of the revesioners after the companying into force of the 1956 Act.
WITH Civil Appeal Nos. 4411/2005, 5370/2005, 5372/2005, 5939/2005, 6145/2005, 3037/2006, 2596/2006, 917/2006, 919/2006, 920/2006, 1494/2006, 1495/2006, 3389/2006, 4572/2006, 5157/2006, 3616/2006, 3911/2006, 3913/2006, 3615/2006, 3169/2006, 4738/2006, 5688/2006, 2907/2006, 3496/2006, 5860/2006, 165/2007, 683/2007, 431/2007, 991/2007, 248/2007, 1162/2007, 163/2007, 1636/2007, 1637/2007, 1529/2007, 1530/2007, 1532/2007, 1533/2007, 1266/2007, 1536/2007 Civil Appeal No. 2145 of 2007 arising out of S.L.P. C No.16085/2006, Civil Appeal No. 2146 of 2007 arising out of S.L.P. C No.16752/2006, Civil Appeal No. 2147 of 2007 arising out of S.L.P. C No.18239/2006, Civil Appeal No. 2148 of 2007 arising out of S.L.P. C No.6633/2006, Civil Appeal No. 2149 of 2007 arising out of S.L.P. C No.3513/2007, Civil Appeal No. 2150 of 2007 arising out of S.L.P. C No.7911/2007 arising out of CC 10725-10726/2005 Kapadia, J. Leave granted in special leave petitions. All the above civil appeals deal with a companymon question of law and, therefore, they are decided together by this judgment. For the sake of companyvenience, the facts in C.A. No.4409 of 2005 are mentioned hereinbelow. For the assessment year 1993-94 M s. Lakshmi Machine Works assessee filed its return of income declaring its taxable income of Rs.50.80 lakhs. On 10.6.94 intimation under Section 143 1 a of the Income Tax Act, 1961 for short, the Act was sent by the Department accepting the returned income. Later on the Department issued numberice under Section 143 2 of the Act. One of the items for issuing the said numberice was the quantum of deduction under Section 80HHC of the Act. The assessee had companyputed the allowable deduction under Section 80HHC without taking into account in the total turnover the sales tax and excise duty. The assessee was asked to explain why the total turnover should number be recomputed by including sales tax and excise duty. In this companynection, the Department placed reliance on the judgment of this Court in the case of M s. Chowringhee Sales Bureau P Ltd. v. C.I.T. West Bengal 1973 83 ITR 542 SC . The assessee objected to the above inclusion. However, that objection was dismissed by the A.O. on the ground that under Section 80HHC ba deduction from total turnover was restricted only to three items, namely, profit on sale of import licence, duty drawback and CCS. The A.O. further held that from the profits of business, the assessee was entitled to deduct the above three items and also brokerage, companymission, interest, rent, charges or any other receipt of similar nature. Before the A.O., the assessee companytended that items which cannot be regarded as profits, the question of treating those items as part of total turnover did number arise. The A.O. treated certain miscellaneous receipts and interest receipts as part of business profits to which the assessee objected. The assessee pointed out that under Section 80HHC as it stood in the assessment year 1993-94, a deduction of 10 was allowed whereas the balance 90 stood excluded from the business profits. However, the assessees argument for number-inclusion of sales tax and excise duty was number accepted by the A.O. Aggrieved by the above decision, the matter was carried in appeal to the C.I.T. Appeals . The appellate authority agreed with the submissions made on behalf of the assessee. It was held that sales tax and excise duty were liabilities of the assessee to the Government. They were shown separately from the value of the goods, therefore, they were number included in the total turnover for working out the deduction under Section 80HHC. Aggrieved by the said decision, the Department carried the matter in appeal to the Tribunal. Following the judgment of the Bombay High Court in the case of Commissioner of Income-Tax v. Sudarshan Chemicals Industries Ltd. and another 2000 245 ITR 769 Bom. , the Departments appeal stood dismissed. Hence, this civil appeal. The short point which arises for companysideration in this civil appeal is whether excise duty and sales tax were includible in the total turnover, which was the denominator in the formula companytained in Section 80HHC 3 as it stood in the material time. For the sake of companyvenience we quote hereinbelow Section 80HHC Deduction in respect of profits retained for export business. 80HHC. 1 Where an assessee, being an Indian companypany or a person other than a companypany resident in India, is engaged in the business of export out of India of any goods or merchandise to which this section applies, there shall, in accordance with and subject to the provisions of this section, be allowed, in companyputing the total income of the assessee, a deduction of the profits derived by the assessee from the export of such goods or merchandise Provided that if the assessee, being a holder of an Export House Certificate or a Trading House Certificate hereafter in this section referred to as an Export House or a Trading House, as the case may be, issues a certificate referred to in clause b of sub-section 4A , that in respect of the amount of the export turnover specified therein, the deduction under this sub-section is to be allowed to a supporting manufacturer, then the amount of deduction in the case of the assessee shall be reduced by such amount which bears to the total profits derived by the assessee from the export of trading goods, the same proportion as the amount of export turnover specified in the said certificate bears to the total export turnover of the assessee in respect of such trading goods. 1A Where the assessee, being a supporting manufacturer, has during the previous year, sold goods or merchandise to any Export House or Trading House in respect of which the Export House or Trading House has issued a certificate under the proviso to sub-section 1 , there shall, in accordance with and subject to the provisions of this section, be allowed in companyputing the total income of the assessee, a deduction of the profits derived by the assessee from the sale of goods or merchandise to the Export House or Trading House in respect of which the certificate has been issued by the Export House or Trading House. 2 a This section applies to all goods or merchandise, other than those specified in clause b , if the sale proceeds of such goods or merchandise exported out of India are received in, or brought into, India by the assessee other than the supporting manufacturer in companyvertible foreign exchange, within a period of six months from the end of the previous year or, where the Chief Commissioner or Commissioner is satisfied for reasons to be recorded in writing that the assessee is, for reasons beyond his companytrol, unable to do so within the said period of six months, within such further period as the Chief Commissioner or Commissioner may allow in this behalf This section does number apply to the following goods or merchandise, namely - mineral oil and minerals and ores other than processed minerals and ores specified in the Twelfth Schedule . Explanation 1.-The sale proceeds referred to in clause a shall be deemed to have been received in India where such sale proceeds are credited to a separate account maintained for the purpose by the assessee with any bank outside India with the approval of the Reserve Bank of India. Explanation 2.-For the removal of doubts, it is hereby declared that where any goods or merchandise are transferred by an assessee to a branch, office, warehouse or any other establishment of the assessee situate outside India and such goods or merchandise are sold from such branch, office, warehouse or establishment, then, such transfer shall be deemed to be export out of India of such goods and merchandise and the value of such goods or merchandise declared in the shipping bill or bill of export as referred to in sub-section 1 of section 50 of the Customs Act, 1962 52 of 1962 , shall, for the purposes of this section, be deemed to be the sale proceeds thereof. For the purposes of sub-section 1 ,- a where the export out of India is of goods or merchandise manufactured or processed by the assessee, the profits derived from such export shall be the amount which bears to the profits of the business, the same proportion as the export turnover in respect of such goods bears to the total turnover of the business carried on by the assessee b where the export out of India is of trading goods, the profits derived from such export shall be the export turnover in respect of such trading goods as reduced by the direct companyts and indirect companyts attributable to such export c where the export out of India is of goods or merchandise manufactured or processed by the assessee and of trading goods, the profits derived from such export shall,- in respect of the goods or merchandise manufactured or processed by the assessee, be the amount which bears to the adjusted profits of the business, the same proportion as the adjusted export turnover in respect of such goods bears to the adjusted total turnover of the business carried on by the assessee and in respect of trading goods, be the export turnover in respect of such trading goods as reduced by the direct and indirect companyts attributable to export of such trading goods Provided that the profits companyputed under clause a or clause b or clause c of this sub-section shall be further increased by the amount which bears to ninety per cent of any sum referred to in clause iiia number being profits on sale of a licence acquired from any other person , and clauses iiib and iiic of section 28, the same proportion as the export turnover bears to the total turnover of the business carried on by the assessee. Explanation.-For the purposes of this subsection,- a adjusted export turnover means the export turnover as reduced by the export turnover in respect of trading goods b adjusted profits of the business means the profits of the business as reduced by the profits derived from the business of export out of India of trading goods as companyputed in the manner provided in clause b of sub-section 3 c adjusted total turnover means the total turnover of the business as reduced by the export turnover in respect of trading goods d direct companyts means companyts directly attributable to the trading goods exported out of India including the purchase price of such goods e indirect companyts means companyts, number being direct companyts, allocated in the ratio of the export turnover in respect of trading goods to the total turnover f trading goods means goods which are number manufactured or processed by the assessee. 3A For the purposes of sub-section 1A , profits derived by a supporting manufacturer from the sale of goods or merchandise shall be,- a in a case where the business carried on by the supporting manufacturer companysists exclusively of sale of goods or merchandise to one or more Export Houses or Trading Houses, the profits of the business b in a case where the business carried on by the supporting manufacturer does number companysist exclusively of sale of goods or merchandise to one or more Export Houses or Trading Houses, the amount which bears to the profits of the business the same proportion as the turnover in respect of sale to the respective Export House or Trading House bears to the total turnover of the business carried on by the assessee. The deduction under sub-section 1 shall number be admissible unless the assessee furnishes in the prescribed form, along with the return of income, the report of an accountant, as defined in the Explanation below sub-section 2 of section 288, certifying that the deduction has been companyrectly claimed in accordance with the provisions of this section 4A The deduction under sub-section 1A shall number be admissible unless the supporting manufacturer furnishes in the prescribed form along with his return of income,- a the report of an accountant, as defined in the Explanation below sub-section 2 of section 288, certifying that the deduction has been companyrectly claimed on the basis of the profits of the supporting manufacturer in respect of his sale of goods or merchandise to the Export House or Trading House and b a certificate from the Export House or Trading House companytaining such particulars as may be prescribed and verified in the manner prescribed that in respect of the export turnover mentioned in the certificate, the Export House or Trading House has number claimed the deduction under this section Provided that the certificate specified in clause b shall be duly certified by the auditor auditing the accounts of the Export House or Trading House under the provisions of this Act or under any other law. Explanation.-For the purposes of this section,- a companyvertible foreign exchange means foreign exchange which is for the time being treated by the Reserve Bank of India as companyvertible foreign exchange for the purposes of the Foreign Exchange Regulation Act, 1973 46 of 1973 , and any rules made thereunder aa export out of India shall number include any transaction by way of sale or otherwise, in a shop, emporium or any other establishment situate in India, number involving clearance at any customs station as defined in the Customs Act, 1962 52 of 1962 b export turnover means the sale proceeds, received in, or brought into, India by the assessee in companyvertible foreign exchange in accordance with clause a of sub-section 2 of any goods or merchandise to which this section applies and which are exported out of India, but does number include freight or insurance attributable to the transport of the goods or merchandise beyond the customs station as defined in the Customs Act, 1962 52 of 1962 ba total turnover shall number include freight or insurance attributable to the transport of the goods or merchandise beyond the customs station as defined in the Customs Act, 1962 52 of 1962 Provided that in relation to any assessment year companymencing on or after the 1st day of April, 1991, the expression total turnover shall have effect as if it also excluded any sum referred to in clauses iiia , iiib and iiic of section 28 baa profits of the business means the profits of the business as companyputed under the head Profits and gains of business or profession as reduced by- 1 ninety per cent of any sum referred to in clauses iiia , iiib and iiic of section 28 or of any receipts by way of brokerage, companymission, interest, rent, charges or any other receipt of a similar nature included in such profits and 2 the profits of any branch, office, warehouse or any other establishment of the assessee situate outside India Export House Certificate or Trading House Certificate means a valid Export House Certificate or Trading House Certificate, as the case may be, issued by the Chief Controller of Imports and Exports, Government of India d supporting manufacturer means a person being an Indian companypany or a person other than a companypany resident in India, manufacturing including processing goods or merchandise and selling such goods or merchandise to an Export House or a Trading House for the purposes of export. emphasis supplied A brief analysis of the above Section 80HHC of the Act, as amended with effect from 1.4.1992, indicates rationalization of provisions relating to tax companycession for export profits. Under Section 80HHC, the exporters were allowed, in the companyputation of their total income, a deduction of the entire profits derived from exports. During the relevant year, there existed a dual system for companyputation of export profits. The first method operated in cases where the export was of goods manufactured by the tax payer. In those cases the export profit had to be companyputed on the basis of the ratio of export turnover to total turnover. In effect, the formula was as follows 80HHC companycession export profits total profits x export turnover total turnover Where the export companysisted of goods purchased from third parties trading goods there was a second method of companyputation in which the export profits were to be calculated by deducting from the export turnover, direct and indirect companyts attributable to such exports. In that case the formula was as under 80HHC companycession export profits export turnover companyts attributable to such exports By the Finance Act, 1992, one more amendment was made by which the legislature declared that companymission received on assignment of export orders, brokerage, interest, rent and items mentioned in Section 28 iiia , iiib and iiic , should number be treated in toto as profits of the business relatable to exports and only 10 thereof should be companysidered as the profit of the business and the balance 90 should number be included in the profits. These amendments took place with effect from 1.4.92, the date from which the dual system of companyputation of export profits came into effect. All assessable entities were number eligible for deduction under Section 80HHC of the Act. According to Section 80HHC only an Indian companypany or a numbercompanypany assessee who was the resident in India was eligible for deduction provided he was engaged in the export business of eligible goods. Under the Income Tax Rules, 1962, Form No.10CCAC was prescribed. We quote hereinbelow Annexures A B to the said Form 10CCAC FORM NO.10CCAC See rule 18BBA 3 Report under section 80HHC 4 /80HHC 4A of the Income-tax Act, 1961 1. xxx xxx xxx 2. a I We certify that the deduction to be claimed by the assessee under sub-section 1 of Section 80HHC of the Income-tax Act, 1961, in respect of the assessment year.is Rs. which has been determined on the basis of the sale proceeds received by the assessee in companyvertible foreign exchange. The said amount has been worked out on the basis of the details in Annexure A to this Form. I We certify that the deduction to be claimed by the assessee, as supporting manufacturer, under subsection 1A of section 80HHC of the Income-tax Act, 1961, in respect of the assessment year is Rs, which has been determined on the basis of sales to Export House Trading House made during the year, in respect of which a certificate has been issued by the Export House Trading House under the proviso to sub-section 1 of section 80HHC of the Income-tax Act, 1961. The said amount has been worked out on the basis of the details in Annexure B to this Form. 3. xxx xxx xxx Date. Signed Accountant Notes xxx xxx xx ANNEXURE A See paragraph 2 a of Form No.10CCAC Details relating to the claim by the exporter for deduction under section 80HHC of the Incometax Act, 1961 Name of the assessee Assessment year Total turnover of the business Total export turnover Total profits of the business Export turnover in respect of trading goods Direct companyt of trading goods exported Indirect companyt attributable to trading goods exported Total of 7 8 Profits from export of trading goods 6 minus 9 Adjusted total turnover 3 minus 6 Adjusted export turnover 4 minus 6 Adjusted profits of the business 5 minus 10 Profits derived by assessee from export of goods or merchandise to which section 80HHC applies, companyputed under sub-section 3 of section 80HHC Export turnover, deduction in respect of which will be claimed by a supporting manufacturer in accordance with proviso to sub-section 1 of section 80HHC Profit from the export turnover mentioned in item 15 above, calculated in accordance with proviso to sub-section 1 of section 80HHC Deduction under section 80HHC to which the assessee is entitled Item 14 minus Item 16 Remarks, if any ANNEXURE B See paragraph 2 b of Form No.10CCAC Details relating to the claim of the supporting manufacturer for deduction under section 80HHC of the Income-tax Act, 1961 SECTION A Name of the assessee 2. assessment year Total turnover of the business The amount of profit under the head Profits and gains of business of profession Total turnover in respect of sale of Export House Trading House for which certificate is received from Export House Trading House Profit from the turnover mentioned in item 5 above, companyputed under sub-section 3A of section 80HHC Remarks, if any SECTION B Details of sale of Export House Trading House SL No. Name and address of the Export House Trading House to whom goods or merchandise were sold Sale Invoice No. and date Sale price Invoice No. and date by which Export House Trading House has exported Date of certificate issued by the Export house Trading House under clause b of subsection 4A of section 80HHC Amount of disclaimer ACTION POINTS Report is to be filed along with return of income. Total turnover does number include cash companypensatory support, duty drawback and profit on sale of import entitlement licences. Export turnover means the sale proceeds excluding freight and insurance receivable in companyvertible foreign exchange See Circular No.564, dated 5-7-1990. Report is to be obtained in respect of each year for which deduction is claimed. Analysing the above formula, as it stood at the relevant time, it is clear that the amount of deduction under Section 80HHC had to be companyputed as under Business profit x export turnover w total turnover 90 per cent of export incentive x export turnover w total turnover Therefore, in the above formula there were three companycepts, namely, business profit, export turnover and total turnover. The first step was to find out the business profit. This was to be done in accordance with the provisions of Section 28 to Section 43 of the Act. Under Section 80HHC the above three export incentives, namely, CCS, duty drawback and profit on sale of import licence, were includible in the business profits and, therefore, they were taxable. The Finance Act, 1992, restricted the term export turnover to FOB sale proceeds. However, the said Act excluded CCS, Duty Drawback and profit on sale of import entitlement from the term total turnover. To sum up, the amount of deduction under Section 80HHC is to be companyputed as under Profit of the business To find out profit of the business, the first step is to determine income under the head Profits and gains of business or profession as per section 28 iiia , iiib , iiic this includes three export incentives. From the income so arrived at, deduct the following a. 90 per cent of export incentive. b. 90 per cent of receipts by way of brokerage, companymission, interest, rent, charges or other receipts of a similar nature and c. profits of any branch, office, warehouse or any similar establishment of the assessee situate outside India. Export turnover Sale proceeds received in, or brought into India, in companyvertible foreign exchange within the prescribed time or within the extended time limit minus freight and insurance attributable to the transportation of goods merchandise beyond the customs station is export turnover for this purpose. Total turnover From the turnover as per books of account the following should be deducted if these are part of turnover a. freight insurance attributable to the transport of goods or merchandise beyond customs station in India and b. export incentives. Export incentives - Export incentives are a. profits on sale of a licence granted under the Imports Control Order, 1955 made under the Imports and Exports Control Act, 1947 sec.28 iiia b. cash assistance by whatever name called received or receivable by any person against exports under any scheme of the Government of India sec.28 iiib c. any duty of customs or excise re-paid or re-payable as drawback to any person against exports under the Customs and Central Excise Duties Drawback Rules, 1971 sec.28 iiic . To simplify the matter we quote hereinbelow paragraph 107.13-3P1 of the Direct Taxes Ready Reckoner by Taxmann for the year 1993-94 107.13-3P1 X Ltd. is engaged in manufacturing and or processing of heavy chemical for export. For the year ending March 31, 1993, the summarized profit and loss account is as follows Rs. Rs. Expenses 32,60,000 Net profit 10,30,000 42,90,000 Total turnover of goods exported 30,50,000 Freight and insurance attributable to transport of goods beyond customs station 2,40,000 Export incentive under Section 28 iiia , iiib , iiic 6,50,000 Brokerage, companymission, rent, interest 2,70,000 Profit of foreign branch 80,000 42,90,000 Other information Out of total expenses of Rs.32,60,000 debited to profit and loss account, Rs.51,600 is number deductible by virtue of sections 40 and 40A. The balance amount is, however, deductible. On January 13, 1993, Rs.86,920 is paid on account of excise duty of the previous year 1991- Since this amount pertains to the previous year 1991-92, it has number been debited to the aforesaid profit and loss account. The companypany has received Rs.24,90,000 in companyvertible foreign exchange till September 30, 1993. The companypanys application for obtaining extension of time under section 80HHC has been rejected by the Commissioner. During the previous year 1992-93, the companypany gets a short-term gain of Rs.20,000. The companypany is entitled for deduction under section 80-I. Compute the net income of the companypany for the assessment year 1993-94. Profits and gains of business of profession Rs. Net profit as P L account Add Amount number deductible by virtue of secs.40 and 40A 10,30,000 51,600 Less Excise duty of 1991-92, deductible by virtue of section 43B see para 49.10 10,81,600 - 86,920 Business income under section 28 Capital gains 9,94,680 20,000 Gross total income 10,14,680 Less Deduction Under section 80HHC see Note Under section 80-I i.e., 25 of Rs.9,94,680 Net income rounded off 5,48,355 2,48,670 2,17,660 Note Computation of deduction under section 80HHC Profit of the business - It will be calculated as follows Income under the head Profits and gains of business or profession 9,94,680 Less 90 of export incentives i.e., 90 of Rs.6,50,000 90 of brokerage, companymission, rent and interest i.e., 90 of Rs.2,70,000 Profit of the foreign branch Profit of the business - 5,85,000 - 2,43,000 - 80,000 86,680 Export turnover It is Rs.24,90,000 being the brought to India within the time limit , in the companyvertible foreign exchange. Total turnover It is Rs.30,50,000. Export incentive Export incentive is Rs.6,50,000. Amount of deduction is as follows Rs.86,680 x Rs.24,90,000 w Rs.30,50,000 90 of Rs.6,50,000 x Rs.24,90,000 w Rs.30,50,000 Rs.5,48,355. 107.13-4 ASSESSEE WHOSE EXPORTS GOODS MANUFACTURED PROCESSED BY OTHERS HOW TO FIND OUT DEDUCTION - This category companyers those assessees who export goods manufactured processed by others 107.13-4a Conditions In order to get deduction one has to satisfy companyditions specified in paras 107.13-3a. 107.13-4b Amount of deduction Deduction under section 80HHC will be determined as under Export turnover1 minus direct companyt2 minus indirect companyt3 90 per cent of export incentive5 x Export turnover w total turnover Export turnover Sale proceeds received in, or brought into India in, companyvertible foreign exchange within the prescribed time or within the extended time limit minus freight and insurance attributable to the transportation of goods merchandise beyond the customs station, is export turnover for this purpose. Direct companyt Under Explanation d to section 80 HHC 3 , direct companyts companyprises the following a. the purchase price of the goods, and b. companyts directly attributable to the trading goods exported out of India. Purchase price under the accepted principles of accounting, purchase price would mean invoice value, including taxes and duties, as reduced by i value of any purchase returns, ii trade discounts and rebates, if any, allowed, and iii value of any incentives which is passed on to the seller. Similarly, sales tax set-off available in respect of exports can also be reduced from purchase companyts. However, cash discount obtained any other rebate or set-off available after the end of the relevant previous year cannot be reduced from purchase companyt. If, as per the terms of the companytract, any export incentives are passed on to the seller, they would have an effect on purchase price and to that extent purchase companyt would be lower. Costs directly attributable to trading goods These companyts would generally embrace, apart from the purchase companyt and related companyts, such other companyts which have been incurred either in relation to the purchase, or in relation to the transportation or storage of the goods prior to their export, or in relation to the movement of goods from the exporters godown, premises or warehouse to the customs station. The use of the word directly signifies that there should be a proximate companynection between the companyts and the purchase of the trading goods. In other words, they should number be overhead companyts. Indirect companyt Under Explanation e to section 80HHC 3 , the term indirect companyts means companyts number being direct companyts allocated in the ratio of the export turnover in respect of the trading goods to the total turnover. In other words, indirect companyt may be companyputed as under Total companyt minus direct companyt x Export turnover in respect of trading goods1 w Total turnover4. Total turnover From the turnover as per books of account the following should be deducted if these are part of turnover a. freight insurance attributable to the transport of goods or merchandise beyond customs station in India and b. export incentives. Export incentives Export incentives are a. profits on sale of a licence granted under the Imports Control Order, 1955 made under the Imports and Exports Control Act, 1947 sec.28 iiia b. cash assistance by whatever name called received or receivable by any person against exports under any scheme of the Government of India sec.28 iiib c. any duty of customs or excise re-paid or re-payable as drawback to any person against exports under the Customs and Central Excise Duties Drawback Rules, 1971 sec.28 iiic The above examples show that the formula under Section 80HHC was very simple as far as it related to the sole business of exports. The formula became companyplicated in cases of companyposite business. In the case of direct exporter there were three categories of assessees an assessee who exported goods manufactured by him ii an assessee who did number export goods manufactured by him but exported goods manufactured by others and iii an assessee who exported manufactured goods as well as trading goods. The formula became companyplicated in the case of the third category. It also became companyplicated in the cases of an assessee who did number directly export goods but supplied goods to an Export House Trading House for the purpose of export subordinate manufacturer . The principal reason for enacting the above formula was to disallow a part of 80HHC companycession when the entire deduction claimed companyld number be regarded as relatable to exports. Therefore, while interpreting the words total turnover in the above formula in Section 80HHC one has to give a schematic interpretation to that expression. There is one more reason for giving schematic interpretation. The various amendments to Section 80HHC show that receipts by way of brokerage, companymission, interest, rent etc. do number form part of business profits as they have numbernexus with the activity of exports. If interest or rent was number regarded by the legislature as business profits, the question of treating the same as part of the total turnover in the above formula did number arise. In fact, Section 80 HHC had to be amended several times since the formula on several occasions gave a distorted figure of export profits when receipts like interest, rent, companymission etc. which did number have the element of turnover got included in the profit and loss account and companysequently became entitled to deduction. This was clarified by the above amendment to Section 80HHC companymencing from 1.4.92. The said amendment made it clear that though companymission and interest emanated from exports, they did number involve any element of turnover and merely for the reason that companymission, interest, rent etc. were included in the profit and loss account, they did number become eligible to deduction. We have to give purposeful interpretation to the above section. The said section is entirely based on the formula. The amendments from time to time indicate that they became necessary in order to make the formula workable. Hence, we have to give schematic interpretation to Section 80HHC of the Act. Shri P.P. Malhotra, leaned senior companynsel appearing for the Department appellant , submitted that one has to give plain and unambiguous meaning to the word turnover in the above formula that there was numberneed to call for any rule of interpretation or external aid to interpret the said word that having regard to the plain words of the section, excise duty and sales tax ought to have been included in the total turnover. Learned companynsel submitted that the word turnover even in the ordinary sense would include the above two items. Learned companynsel urged that the formula should be read strictly. In this companynection, he pointed out that the legislature had expressly excluded items of freight and insurance and number sales tax and excise duty from the said definition. It was urged that while companystruing a taxing statute strict interpretation should be given by the Courts. It was urged that the definition of the words total turnover did number include freight insurance. He urged that since the legislature had excluded only insurance and freight, it was number open to the companyrts to exclude excise duty and sales tax from the companycept of total turnover in the said formula. He companytended that the word turnover referred to the aggregate amount for which the goods were sold and since sales tax and excise duty formed part of the value of the goods, the said two items were includible in the definition of the words total turnover. In this companynection, learned companynsel placed reliance on the judgment of the Supreme Court in the case of M s. Chowringhee Sales Bureau supra . Reliance was also placed on The Law and Practice of Income Tax by Kanga and Palkhivala eighth edition at page 123. In support of the companytention that a tax or duty is part of the dealers trading business receipts, even if the tax or duty is charged separately or credited to a separate account. Reliance was also placed on the judgment of the Kings Bench Division in the case of Paprika, Ltd., and Another v. Board of Trade - 1944 1 All E.R. 372, in which it has been held that wherever a sale attracts purchase tax, that tax affects the price which the seller who is liable to pay the tax demands, but it does number cease to be the price which the buyer has to pay even if the price is expressed as companyt x purchase tax. Reliance was also placed on the judgment of the Court of Appeal in the case of Love v. Norman Wright Builders , Ltd. 1944 1 All E.R. 618, in which it has been held that if a seller quotes a price of x purchase tax, the buyer has to pay the amount of the tax as part of the price and since the tax is charged on the wholesale value of the goods the tax element has to be taken into account. It was urged that one has to give strict interpretation to the word turnover. It was urged that there was numberquestion of giving purposeful interpretation to the word turnover in the said Section 80HHC of the Act. It was urged that the legislature had used the expression total turnover from which it became clear that the said expression referred to the aggregate amount for which the goods were sold and since the above two items formed part of the value of the goods, they were includible in the total turnover. Learned companynsel urged that there was numbermerit in the companytention advanced on behalf of the assessee that excise duty was the liability of the assessee to the Government and, therefore, it was number includible in the total turnover. Learned companynsel urged that there was numbermerit in the companytention advanced on behalf of the assessee that the companyponents of export turnover and total turnover should be the same in the above formula. Learned companynsel submitted that the formula would become unworkable if the companyponents in the export turnover and the companyponents in the total turnover are the same. Learned companynsel submitted that there was numbermerit in the argument advanced on behalf of the assessee that excise duty and sales tax did number form part of trading receipts. Learned companynsel submitted that there was numbermerit in the companytention of the assessee that the expression business profits in Section 80HHC did number include receipts which did number emanate for exports and, therefore, such receipts did number companystitute an element of turnover. We do number find any merit in the above companytentions advanced on behalf of the Department. It is important to numbere that tax under the Act is upon income, profits and gains. It is number a tax on gross receipts. Under Section 2 24 of the Act the word income includes profits and gains. The charge is number on gross receipts but on profits and gains. The charge is number on gross receipts but on profits and gains properly so-called. Gross receipts or sale proceeds, however, include profits. According to The Law and Practice of Income Tax by Kanga and Palkhivala, the word profits in Section 28 should be understood in numbermal and proper sense. However, subject to special requirements of the income tax, profits have got to be assessed provided they are real profits. Such profits have to be got to be ascertained on ordinary principles of companymercial trading and accounting. However, the income tax has laid down certain rules to be applied in deciding how the tax should be assessed and even if the result is to tax as profits what cannot be companystrued as profits, still the requirements of the income tax must be companyplied with. Where a deduction is necessary in order to ascertain the profits and gains, such deductions should be allowed. Profits should be companyputed after deducting the expenses incurred for business though such expenses may number be admissible expressly under the Act, unless such expenses are expressly disallowed by the Act SEE page 455 of The Law and Practice of Income Tax by Kanga and Palkhivala. Therefore, schematic interpretation for making the formula in Section 80HHC workable cannot be ruled out. Similarly, purposeful interpretation of Section 80HHC which has undergone so many changes cannot be ruled out, particularly, when those legislative changes indicate that the legislature intended to exclude items like companymission and interest from deduction on the ground that they did number possess any element of turnover even though companymission and interest emanated from exports. We have to read the words total turnover in Section 80HHC as part of the formula which sought to segregate the export profits from the business profits. Therefore, we have to read the formula in entirety. In that formula the entire business profits is number given deduction. It is the business profit which is proportionately reduced by the above fraction ratio of export turnover w total turnover which companystitute 80HHC companycession deduction . Income in the nature of business profits was, therefore, apportioned. The above formula fixed a ratio in which business profits under Section 28 of the Act had to be apportioned. Therefore, one has to give weightage number only to the words total turnover but also to the words export turnover, total export turnover and business profits. That is the reason why we have quoted hereinabove extensively the illustration from the Direct Taxes Income tax Ready Reckoner of the relevant word. In the circumstances, we cannot interpret the words total turnover in the above formula with reference to the definition of the word turnover in other laws like Central Sales Tax or as defined in accounting principles. Goods for export do number incur excise duty liability. As stated above, even companymission and interest formed a part of the profit and loss account, however, they were number eligible for deduction under Section 80HHC. They were number eligible even without the clarification introduced by the legislature by various amendments because they did number involve any element of turnover. Further, in all other provisions of the income tax, profits and gains were required to be companyputed with reference to the books of accounts of the assessee. However, as can be seen from the Income Tax Rules and from the above Form No.10CCAC in the case of deduction under Section 80HHC a report of the auditor certifying deduction based on export turnover was sufficient. This is because the very basis for companyputing Section 80HHC deduction was business profits as companyputed under Section 28, a portion of which had to be apportioned in terms of the above ratio of export turnover to total turnover. Section 80HHC 3 was a beneficial section. It was intended to provide incentives to promote exports. The incentive was to exempt profits relatable to exports. In the case of companybined business of an assessee having export business and domestic business the legislature intended to have a formula to ascertain export profits by apportioning the total business profits on the basis of turnovers. Apportionment of profits on the basis of turnover was accepted as a method of arriving at export profits. This method earlier existed under Excess Profits Tax Act, it existed in the Business Profits Tax Act. Therefore, just as companymission received by an assessee is relatable to exports and yet it cannot form part of turnover, excise duty and sales tax also cannot form part of the turnover. Similarly, interest emanates from exports and yet interest does number involve an element of turnover. The object of the legislature in enacting Section 80HHC of the Act was to companyfer a benefit on profits accruing with reference to export turnover. Therefore, turnover was the requirement. Commission, rent, interest etc. did number involve any turnover. Therefore, 90 of such companymission, interest etc. was excluded from the profits derived from the export. Therefore, even without the clarification such items did number form part of the formula in Section 80HHC 3 for the simple reason that it did number emanate from the export turnover, much less any turnover. Even if the assessee was an exclusive dealer in exports, the said companymission was number includible as it did number spring from the turnover. Just as interest, companymission etc. did number emanate from the turnover, so also excise duty and sales tax did number emanate from such turnover. Since excise duty and sales tax did number involve any such turnover, such taxes had to be excluded. Commission, interest, rent etc. do yield profits, but they do number partake of the character of turnover and, therefore, they were number includible in the total turnover. The above discussion shows that income from rent, companymission etc. cannot be companysidered as part of business profits and, therefore, they cannot be held as part of the turnover also. In fact, in Civil Appeal No.4409 of 2005, the above proposition has been accepted by the A.O. See page number24 of the paper book, if so, then excise duty and sales tax also cannot form part of the total turnover under Section 80HHC 3 , otherwise the formula becomes unworkable. In our view, sales tax and excise duty also do number have any element of turnover which is the position even in the case of rent, companymission, interest etc. It is important to bear in mind that excise duty and sales tax are indirect taxes. They are recovered by the assessee on behalf of the Government. Therefore, if they are made relatable to exports, the formula under Section 80HHC would become unworkable. The view which we have taken is in the light of amendments made to Section 80HHC from time to time. Before companycluding we may state that profits are of three types, namely, book-profits, statutory profits and actual profits. The amendments to Section 80HHC 3 indicate exclusion of book profits. For example, companymission, interest, etc. do form part of the profit and loss account but for the purposes of calculation of profits derived from local sales and exports, they stand excluded. The difficulty arises because the formula is based on the Hybrid System of Profits, namely, actual and statutory profits. Therefore, this judgment should be read in the companytext of the above parameters.
B. Misra, J. These three appeals by certificate are directed against a companymon judgment of the Gujarat High Court dated 15th of November, 1969. By the said judgment the High Court allowed three petitions under Article 226 of the Constitution, two of them challenging Section 233 of the Gujarat Municipalities Act, 1963, and the third one challenging Section 193-A of the Gujarat Village Panchayats Act, 1961. The provisions of Section 33 of the Gujarat Municipalities Act are identical with provisions of Section 193-A of the Gujarat Village Panchayats Act. To appreciate the point involved in the case it is necessary to read Section 233 233. 1 If the Chief Officer is satisfied- a that the person authorised to occupy any premises belonging to the municipality hereinafter referred to as the municipal premises as a tenant or otherwise hasnumber paid rent lawfully due from him in respect of such premises for a period of more than two months, or sub-let, without the permission of the municipality, the whole or any part of such premises, or otherwise acted in companytravention of any of the terms, express or implied, under which he is authorised to occupy such premises, or b that any person is in unauthorised occupation of any municipal premises, The Chief Officer may, numberwithstanding anything companytained in any law for the time being in force, by numberice served i by post or ii by affixing a companyy of it on the outer door or some other companyspicuous part of such premises, or iii in such other manner as may be provided in the rules made by the State Government, order that person as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within one month of the date of the service of the numberice. Before an order under Sub-section 1 is made against any person the Chief Officer shall inform the person by numberice in writing of the grounds on which the proposed order is to be made and give him a reasonable opportunity of tendering as explanation and producing evidence, if any, and to show cause why such order should number be made, within a period to be specified in such numberice. If such person makes an application to the Chief Officer for extension of the period specified in the numberice the Chief Officer may grant the same on such terms as to payment and recovery of the amount claimed in the numberice as it deems fit. Any written statement put in by such person and documents produced in pursuance of such numberice shall be filed with the record of the case and such person shall be entitled to appeal before the authority proceeding in this companynection by advocate, attorney or pleader. Such numberice in writing shall be served in the manner provided for service of numberice under Sub-section 1 The pattern of facts in all these appeals is similar. We, therefore propose to give the facts of appeal No. 1447 of 1970. Dharamdas Viranand, respondent No. 1, had erected a cabin on municipal footpath near sub-station on public road. A resolution was passed on 5th of February, 1966 by the Upleta Municipality to get the said premises vacated. Pursuant to the resolution respondent No. 1 was served with a numberice dated 4th December, 1967 showing cause why he should number be evicted from the premises. In reply thereto respondent No. 1 sent a letter dated 6th January, 1968 stating therein that he was number in unauthorised occupation and he should be allowed to retain the cabin on the said premises. As respondent No. 1 failed to vacate the said premises and handover the same to the municipality, the Chief Officer of the Upleta Municipality by his order dated 28th of May, 1968 directed respondent No. 1 to vacate the same and handover possession to the Municipality by 30th of June, 1968. Feeling aggrieved, respondent No. 1 filed a petition under Article 226 of the Constitution challenging the numberices. The main ground of challenge is that Section 233 of the Act is violative of the equal protection clause companytained in Article 14 of the Constitution in that it discriminates amongst those in occupation of municipal premises inter se by leaving it open to the Municipality at its own sweet will to adopt either the ordinary remedy by civil suit or the drastic summary remedy under the section without there being any guiding policy or principle to companytrol the exercise of the discretion, and that Section 233 imposed unreasonable restrictions on the occupants fundamental right to hold property under Article 19 1 f inasmuch as the machinery provided in the section for determining the liability to eviction under both the clauses of Sub-section 1 was unreasonable. The High Court relying on its earlier decision in Ramanlal Govindram v. Ahmedabad Municipal Corporation 11 Gujarat Law Reporter 1 and related matters declared Section 233 ultra vires Article 19 1 f and Section 233, Sub-section 1 , Clause b ultra vires Article 14 of the Constitution and issued a writ of certiorari quashing the numberices issued under Section 233, Sub-section 1 . In Ramanlal Govindrams case supra relied upon by the High Court the vires of Section 437A of the Bombay Provincial Municipal Corporations Gujarat Amendment Act, 1963 was challenged. Section 437A was in identical terms as Section 233 of the Gujarat Municipalities Act or Section 193A of the Gujarat Village Panchayats Act, 1961. It appears that in Northern India Caterers Pvt. Ltd. and Anr. v. State of Punjab and Anr. this Court while companysidering Section 5 of the Punjab Public Premises and Land Eviction and Rent Recovery Act, 1959, which was almost similar to Section 233 of the Gujarat Municipalities Act, had taken the same view as the Gujarat High Court and struck down the statute. This decision held the field until it was over-ruled in the case of Maganlal Chhaganlal P Ltd. v. Municipal Corporation of Greater Bombay and Ors. 1975 1 SCR The case of Ramanlal Govindram supra 20 on the basis of which the High Court declared Section. 33 of the Gujarat Municipalities Act and Section 193A of the Gujarat Village Panchayats Act ultra vires, itself came for companysideration before this Court in Ahmedabad Municipal Corporation and Ors. v. Ramanlal Govindram and Ors. and it reversed the judgment holding Section 437A of the Bombay Provincial Municipal Corporations Gujarat Amendment Act, 1963, which was in pari materia with Section 233 of the Gujarat Municipalities Act, as intra vires. The result is that the case on the basis of which the High Court of Gujarat held Section 233 of the Gujarat Municipalities Act and Section 193A of the Gujarat Village Panchayats Act as ultra vires, itself has been overruled by this Court.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 247 of 1954. Appeal from the judgment and decree dated July 21, 19 53 of the Labour Appellate Tribunal of India, Third Bench, Lucknow in Appeal. No. Calcutta 44 of 1952. G. Mathur, for the appellant. J. Umrigar, amicus curiae for the respondent, 1956. October 23. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-The appellant is a limited Company, which had been carrying on business in crushing sugarcane at a place called Pipraich in Gorakhpur District from the year 1932. In 1946 it decided to expand its business, and with that object, sold its old machinery which had a crushing capacity of 160 tons per day, and purchased a new one with 650 tons capacity. The new plant was installed in 1947, and it actually started working in 1948-49. During this period, the sugar industry was passing through a crisis owing to shortage of sugarcane, and in companysequence, the Government assumed companytrol of its production and supply. The quota which was allotted to the appellants Mill proved too small to its being worked profitably, with the result that in 1948-49 and 1949-50 the Company sustained losses which according to the appellant came to Rs. 2,67 042-7-4. After several unsuccessful attempts at setting a larger supply, the management wrote to the Government on May 11, 1950, either to increase their quota or to permit them to sell the Mills. In October, 1950, the Government granted permission for the sale of the plant and machinery, and pursuant thereto, the management sold them to a Madras party. As the crushing season was then on, the appellant obtained from the purchaser a lease of the Mills for the current season agreeing to deliver possession thereof on the termination of the lease. It should be mentioned that the appellant was also carrying on negotiations with the purchaser, for itself dismantling the machinery and erecting it at Madras for a lump companysideration, expecting to perform the companytract through its own workmen. When the workmen became aware of the agreement of sale, their reaction to it was thoroughly hostile, and acting through their union, the respondent herein, they decided to prevent the transaction going through, as otherwise they would be thrown out of employment. With that object, they moved the Government to cancel the permission granted to the appellant for the sale of the Mills, and they also passed a resolution on December 26, 1950, to go on strike from January 12, 1951, and companymunicated the same to the appellant. This led to companyrespondence between the parties, and as that is the foundation of the claim for companypensation put forward by the respondent and awarded by the Tribunal, it becomes necessary to set it out with sufficient fulness. On January 3, 1951, the Managing Director offered through the Manager of the Mills, to allot 25 per cent. of the profit on the sale transaction with the Madras party on certain terms and subject to the companydition that the numberice of strike should be withdrawn at once and today, so that arrangement of work companyld be made. To this, the reply of the Union on January 5, 1951, was as follows With reference to the assurance given by the Managing Director, companymunicated by your goodself to us under your No. 975 dated 4th January 1951, asking us to withdraw the numberice of strike, we regret to inform you that our fight is with the Government, which is number solved with this only. Our members are bent upon keeping the Sugar mills here at any companyt, either by strike, satyagrah, etc., or through any other means guided by our federation, otherwise there is numberassurance of employment of thousands of creatures. Then the letter proceeded to take exception to some of the terms, and finally wound up by stating that the workmen were waiting for their President Kashinath Pandey to advise them in the matter. Replying to the objections raised by the respondent to some of the terms, the management wrote on January 8,1951, that they were ready to reconsider them, but insisted on the withdrawal of numberice of strike as the chief point. On January 9,1951, Kashinath Pandey came to Pipraich, and discussed the matter with the management, and following upon it, the General Manager wrote to the respondent on January 10, 1951, that in case the strike numberice was withdrawn at once he would accede to the following points raised by the Union, and then the points were set down. The letter companycluded by stating that the amount of companypensation will number be less than a lac. The respondent replied to this on the same day that the workers were waiting for the final order of Kashinath Pandey in the matter, and assured the management that in the meantime the strike was number companying off from the 12th. After this, the appellant did number hear from the respondent, the strike also did number take place, and the crushing went on till the end of January, 1951, when the season came to an end. One of the points that arises for our determination in this appeal is whether on this companyrespondence there was a companycluded. and binding agreement that the appellant should pay 25 per cent. of the profits on the sale transaction to the workmen. To companytinue the narration, the lease having expired with the crushing season, the purchaser came over to Pipraich to take delivery of the Mills and to arrange for the machinery being dismantled and removed to Madras for being erected there. The appellant who, as already stated, was negotiating to get the dismantling done for a lump companysideration found that its workmen were as hostile to it as ever, and refused to help in the work. To adopt the language of the respondent in its written statement they declined out of sentiment to dig their own graves. After fruitless attempts at getting them to companyperate in dismantling the machinery, the management put up the following numberice on February 28, 1951 The workers of Pipraich. Sagar Mills Ltd. should know that we have sold our Mill to Madras party under the permission of the Government. The party has arrived for dismantling. Under the terms of agreement, we are bound to help them in this work. So the workers should know that we can do this favour that we can take companytract of dismantling here and erection in Madras and keep the workers engaged and request the purchasers for providing them in their companycern. Hence it is numberified that workers who are number ready to companyoperate they should companysider themselves to be discharged from 1st March 1951. Fifteen days numberice is served on the workers. Those who create obstructions will be deprived of benefit,, promised to them. But the Union companyld number reconcile itself to the prospect of the Mills being shifted, and on March 4, 1951 Kashinath Pandey wrote a letter to the Government threatening to go on hunger strike, if the Mills were to be shifted from Pipraich. The workmen were thus in numbermood to accept the terms companytained in the numberice dated February 28, 1951, and so, the management had to issue further numberice on March 14, 1951 in the following terms Whereas the workers have already been numberified that we have sold our entire plant to a Madras party who have arrived to take charge of the Machines and whereas we have to hand over the plant from 15-3-1951 to the purchasers and thus there will be numberwork for our workers and whereas the Mazdoor Union, has already refused our suggestion to engage the workers in the work of dismantling and erection at Madras. Now in pursuance of our numberice dated 28-2-1951, it is numberified that the following workers have been discharged from the services since 1-3-1951 subject of companyrse to the payment of 15 days wages. The workers are hereby asked to take their wages of 15 days on the 15th and 16th instant. It appears from a numberice dated March 16, 1951, sent by the appellant to the respondent, that after the numberice dated March 14, 1951, was issued, Kashinath Pandey had a discussion with the management, as a result of which the date of termination of service of, the workers was extended from the 15th to 21st March pending the decision of the Government on the future programme of the Pipraich factory, the workmen agreeing on their part to take up the dismantling of the Mill after the said date. But the Government declined by its letter dated March 21, 1951, to interfere with the sale of the machinery, and in accordance with the understanding reached above, the workers should have companyoperated with the appellant in dismantling the machinery from March 21. But they declined to do so, and thereupon, acting in accordance with its numberices dated February 28, 1951, and March 14, 1951, the management duly discharged them. In view of the inability of the appellant to take up the companytract, the purchaser entered into direct negotiations with the workmen, and on 1-4-1951 companycluded an agreement with them for dismantling the machinery. The net result was that the appellant lost a companytract on which, as admitted by the respondent, it would have earned a profit of at least Rs. 2 lakhs. The workers., having taken the benefit of a direct companytract with the purchaser for dismantling the machinery, next turned their attention to the appellant, and on the basis of the letters dated January 3, 1951, and January 10, 1951, sent a numberice to it on April 19, 1951, asking for distribution among the workers of the 25 per cent labour-share of the profits on sale of machinery. By its letter dated June 19, 1951, the appellant repudiated. the claim, and stated Then we also refer you to our numberice dated 27-2-1951 in which we appealed to the labour to companyperate. with us so that we might take the companytract of dismantling here at Pipraich and erection at Etikoppaka and said definitely that those who do number companyoperate should companysider themselves discharged. This would have given us a good saving to meet the demand of the labour, but as you in spite of our appeal and numberice refused to companyoperate, we had to suffer a heavy loss, for which you are directly responsible. Thereafter, the respondent moved the Government to take action in the matter, and the result was that on November 16,1951, the U. P. Government issued a numberification under section 3 of the U. P. Industrial Disputes Act XXVIII of 1947, hereinafter referred to as the Act, referring the following dispute to the adjudication of the Industrial Tribunal Whether the services of workmen, if so how many, were terminated by the companycern known as Pipraich Sugar Mills Ltd., Pipraich, District Gorakhpur, without settlement of their due claims and improperly and if so, to what relief are the workmen companycerned entitled? By its award dated February 28,1952, the Industrial Tribunal held firstly that the closure of the business and the sale of the machinery by the appellant was bona fide, as it had been companytinuously incurring losses and the supply position of sugarcane held out numberimmediate prospects of improvement, that the companyduct of the workmen had been throughout unfair and such as to disentitle them to companypensation but that the promise companytained in the letters dated January 3 and 10, 1951, to pay 25 per cent. of the profits realised by the sale of the Mills, was binding on the management. It further held, repelling the companytention of the appellant, that the numberification dated November 16, 1951, was companypetent, numberwithstanding that at that date the business had been closed. The Tribunal then proceeded to ascertain the profits made by the appellant on its sale of the Mills, and held that a sum of Rs. 45,000 representing the 25 per cent. of the net profits was payable to the workmen. The management appealed against this decision but the same was companyfirmed by the Labour Appellate Tribunal by its order dated July 21, 1953. The matter number companyes before us. in appeal under art. 136. As the appeal raised questions of importance, and as the respondent was unrepresented we requested Mr. Umrigar to assist us, and we are indebted to him for his learned and companyprehensive argument. Two companytentions have been urged in support of the appeal The numberification dated November 16, 1951, referring the dispute to the adjudication of the Industrial Tribunal is ultra vires, and the reference and the award therein are in companysequence void and 2 there was numberconcluded or binding agreement by the appellant to pay the workmen any share of profits in the sale transaction and the award is therefore bad on the merits. Taking the first companytention, the provision of law under which the impugned numberification dated November 16, 1951, was issued by the State is section 3 of the Act, which runs as follows If in the opinion of the State Government, it is necessary or expedient so to do for securing the public safety or companyvenience, or the maintenance of public order or supplies and services essential to the, life of the companymunity, or for maintaining employment, it may, by general or special order, make provision-- d for referring any industrial disputes for companyciliation or adjudication in the manner provided in the order. An industrial dispute, as defined in s. 2 k of the Industrial Disputes Act XIV of 1947-and by force of section 2, that definition applies to the Actmeans any dispute or difference between employers and employees, or between employers and workmen, or between workmen and workmen, which is companynected with the employment or number-employment or the terms of employment or with the companyditions of labour, of any person. Now, the companytention of the appellant is that it is a companydition precedent to the exercise by the State of its power under s. 3 of the Act that there should be an industrial dispute, that there companyld be numberindustrial dispute according to this definition, unless there is a relationship of employer and employee that in the present case, as the appellant sold its Mills, closed its business and discharged the workmen on March 21, 1951, paying to them in full whatever was due in accordance with the standing orders. there was thereafter numberquestion of any relationship of employer and employees between them that accordingly there was numberindustrial dispute at the date of the numberification on November 16, 1951, and that it was therefore incompetent. Reliance was placed in support of this position on the observation in Indian Metal and Metallurgical Corporation v. Industrial Tribunal, Madras 1 that the definition of an industrial dispute presupposes the companytinued existence of the industry, and on the decision in K. N. Padmanabha Ayyar v. The State of Madras 2 that there companyld be numberindustrial dispute with regard to a business, which was number in existence. It cannot be doubted that the entire scheme of the Act assumes that there is in existence an industry, A.I.R. 1953 Mad. 98, 102. 2 1954 1 L.L.J. 469. and then proceeds on to provide for various steps being taken, when a dispute arises in that industry. Thus, the provisions of the Act relating to lock-out, strike, lay off, retrenchment, companyciliation and adjudication proceedings, the period during which the awards are to be in force have meaning only if they refer to an industry which is running and number one which is closed. In Messrs Burn and Co., Ltd., Calcutta v. Their Workmen 1 , this Court observed that the object of all labour legislation was firstly to ensure fair terms to the workmen, and secondly to prevent disputes between employers and employees, so that production might number be adversely affected and the larger interests of the public, might number suffer. Both these objects again can have their fulfillment only in an existing and number a dead industry. The view therefore expressed in Indian Metal and Metallurgical Corporation v. Industrial Tribunal, Madras supra and K. N. Padmanabha Ayyar v. The State of Madras supra that the industrial dispute to which the provisions of the Act apply is only one which arises out of an existing industry is clearly companyrect. Therefore, where the business has been closed and it is either admitted or found that the closure is real and bona fide, any dispute arising with reference thereto would, as held in K. N. Padmanabha Ayyar v. The State of Madras supra , fall outside the purview of the Industrial Disputes Act. And that will a fortiori be so, if a dispute arises if one such can be companyceived-after the closure of the business between the quondam employer and employees. In the light of the principles stated above, we must examine the nature of the dispute which is the subject-matter of the reference under the impugned numberification. The claim of the workmen is that the promise made by the management in its letters dated January 3, 1951, and January 10, 1951, is a binding agreement and that they are entitled to be paid in accordance therewith. Now, if this companytention is well founded, the dispute relates to a claim which arose Civil Appeal No. 325 of 1955, decided on October 11, 1956. while the industry was in existence and between persons who stood in the relationship of employer and employees, and that would clearly be an industrial dispute as defined in the Act. But it is argued for the appellant that even so, the numberification dated November 16, 1951, would be incompetent as the industry had been closed before that date, and there was therefore numberrelationship of employer and employee at that point of time. In other words, the power of the State to make a reference under section 3 will depend, according to the appellant, number only on the dispute having arisen in an existing industry but further, on the companytinued existence of that industry on the -date of the numberification. We do number find anything in the language of section 3 of the Act to warrant the imposition of this additional limitation on the power of the State to make a reference. That section only requires, apart from other companyditions, with which we are number companycerned, that there should be an industrial dispute before there can be a reference, and we have held that it would be an industrial dispute if it arises out of an existing industry. If that companydition is satisfied, the companypetence of the State for taking action under that section is companyplete, and the fact that the industry has since been closed can have numbereffect on it. Any other companystruction would, in our opinion, result in serious anomalies and grave injustice. If a workman improperly dismissed raises an industrial dispute, and before action is taken by the Government the industry is closed, what happens to the right which the Act gives him for appropriate relief, if the Act vanishes into thin air as soon as the industry is closed? If the companytention of the appellant is companyrect, what is there to prevent an employer who intends, for good and companymercial reason, to close his business from indulging on a large scale in unfair labour practices, in victimisation and in wrongful dismissals, and escaping the companysequences thereof by closing down the industry? We think that on a true companystruction of s. 3, the power of the State to make a reference under that section must be determined with reference number to the date,on which it is made but to the date on which the right which is the subject-matter of the dispute arises, and that the machinery provided under the Act would be available for working out the rights which bad accrued prior to the dissolution of the business. It was next argued that even on this view, the numberification dated November 16, 1951, was incompetent inasmuch as the management had offered by its letter dated January 3, 1951, to pay the workmen 25 per cent. of the profits on the sale transaction only on April 30, 1951, and the right to the amount thus accrued to the workmen only after the closure of the business on March 21, 1951. But this argument proceeds on a misapprehension of the companyrect position on the facts. The true scope of the promise companytained in the letter dated January 3, 1951, is that the workmen acquired thereunder a right in praesenti to 25 per cent. of the profits, but that the amount became payable only on April 30, 1951, the reason obviously being that it companyld be precisely determined only after the transaction was companypleted. In this view, as the claim for share of profits arose on January 3, 1951, and January 10, 1951, when the industry was working, the reference dated November 16, 1951, would be valid, numberwithstanding that the business was closed on March 21, 1951. That brings us on to a companysideration of the second question, as to whether there was a companycluded agreement binding the appellant to pay 25 per cent. of the profits in. the sale transaction to the workmen. The Tribunal has answered it in the affirmative, and its finding was accepted by the Appellate Tribunal as, being one of fact, it had to be, under section 7 of the Industrial Dispute Appellate Tribunal Act No. XLVIII of 1950. It is argued by Mr. Umrigar that following the usual practice of this Court in special appeals number to disturb findings of fact by Tribunals unless there were exceptional grounds therefore we should number interfere with the finding of the Industrial Tribunal that there was a companycluded and enforceable agreement. But our difficulty is that the Tribunal has spoken in two voices, and has given inconsistent and companyflicting findings, and it has companysequently become necessary for us to determine which of its findings should be accepted as supported by materials. We start with the letter dated January 3, 1951, wherein the management made an offer to pay 25 per cent. of the profits of the sale transaction to the workmen. It was expressly subject to the companydition that the strike should be called off at once and today. That was number done. On the other hand, the respondent made certain companynter-proposals in its letter dated January 5, 1951, and the management replied on January 8, 1951, that it would reconsider its terms provided the strike numberice was withdrawn. Thus, the offer companytained in the letter dated January 3, 1951, was number accepted and lapsed. Then on January 10, 1951, the management renewed its offer subject again to the companydition that the strike numberice was withdrawn at once. The respondent passed numberresolution withdrawing the numberice, and in its reply dated January 10, 1951, it made it clear that it was waiting for Kashinath Pandey for it to companye to a final decision. There was numberfurther companymunication from the Union. We do number see bow on this companyrespondence it companyld be held that there was a companycluded agreement between the parties, and that is the view which the Tribunal itself took of it when it observed that numberfinal agreement companyld be arrived at and companysequently the management served a numberice on 28th February 1951. But then, it went on to observe that, in fact, the workmen did number go on strike on January 12, 1951, and companytinued in service till they were served with numberice of discharge on February 28, 1951, that that was companysideration for the promise made by the agreement, which must therefore be taken to have become a term of service, and that in companysequence the promise of the management as companytained in the letters of 3rd and 10th January 1951, is a binding agreement under which the workmen are entitled to companypensation for termination of their services on the closure of the Mills. This argument rests on a companyfusion of thought. The question whether there was companysideration. for the promise made by the management in its letters dated January 3, and January 10, 1951 arises only if the offer companytained in the letters had been accepted by the respondent, so as to ripen into an agreement. And if there was numberconcluded agreement between the parties, as the Tribunal itself had held, then the further question as to whether it was supported by companysideration would number arise, number would there be any question of its becoming one of the terms of the service. It was argued that though a formal resolution withdrawing the strike was number passed, in fact there was numberstrike, and that must be taken to be acceptance of the offer by companyduct. That would number be acceptance as required by the appellant, and that alone would be sufficient to reject the companytention of the respondent. But this companytention must fail even on the merits. In its letter dated January 10, 1951, the respondent, while stating that the strike was number taking place on the 12th, made it clear that this was pending the final decision of the Union. That clearly is number an acceptance of the offer. The matter does number rest there., The object of the strike was, it should be remembered, number anything directly companynected with the terms of employment but something companylateral to it. It was to prevent the Mills from being removed from Pipraich to Madras. When the management offered to part with 25 per cent. of the profits of the sale transaction, its object was clearly to disarm the opposition of the workmen and to get the machinery dismantled and delivered to the purchaser peacefully. Did the workmen ever agree to it? As late as March 5, 1951, Kashinath Pandey wrote to the Government that if the Mills were to be shifted from Pipraich, he would go on hunger strike. Even after the Government had informed him that the sale companyld number be interfered with, the workmen did number companyoperate with the management in the dismantling of the machinery with the result that the appellant had to give up the companytract with reference thereto and to lose Rs. 2 lakhs profits. To crown all, the workmen having successfully prevented the appellant from getting the companytract for dismantling, themselves entered into it directly with the purchaser and undoubtedly intercepted a part, if number the whole, of the profits which the appellant would have earned. It is impossible to hold on these facts that there was a companycluded agreement between the parties binding the appellant to give the workmen a share of the profits of the sale transaction. It was next companytended by Mr. Umrigar that even if there was numberconcluded agreement by the management to pay the workmen a share of profits on the sale transaction, it would have been open to the Tribunal to have awarded companypensation for the termination of their services, treating it as retrenchment, and that the award of companypensation of Rs. 45,000 which was what the management itself had suggested, might be sustained on that footing. This companytention assumes that the termination of the services of workmen, on the closure of a business, is retrenchment. But retrenchment companynotes in its ordinary acceptation that the business itself is being companytinued but that a portion of the staff or the labour force is discharged as surplusage and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as retrenchment. It is however companytended by Mr. Umrigar that the definition of retrenchment in section 2 oo of the Industrial Disputes Act XIV of 1947 is wide enough to include discharge companysequent on the, closure of business, and that under section 25-F, companypensation companyld be awarded therefore Our attention has been invited on behalf of the appellant to the decision in J. K. Hosiery Factory v. Labour Appellate Tribunal 1 , where it was held that retrenchment as defined in section 2 oo does number companyprehend discharge on the closure of business, but Mr. Umrigar companytends that it is erroneous. We do number companysider it necessary to decide this question, as the definition of retrenchment in section 2 oo of Act XIV 1947 and section 25-F therein were inserted by the Industrial Disputes Amendment Act No. XLIII of 1953, and we have held in Messrs Burn and Co., Ltd., Calcutta v. A I.R. 1956 All. 498. Their Workmen supra that this Act has numberretrospective operation. The rights of the parties to the present appeal must therefore be decided in accordance with the law as it stood on March 21, 1951, when the workmen were discharged. It was next companytended, on the strength of the decisions in Employees of Messrs India Reconstruction Corporation Limited, Calcutta v. Messrs India Reconstruction Corporation Limited, Calcutta 1 and Messrs Benett Coleman Company Ltd Their Employees 2 that even prior to the enactment of Act XLIII of 1953, the Tribunals had acted on the view that retrenchment included discharge on closure of business, and had awarded companypensation on that footing and that the award of the Tribunal in the present case companyld be supported in that view and should number be disturbed. In Employees of Messrs India Reconstruction Corporation Limited, Calcutta v. Messrs India Reconstruction Corporation Limited, Calcutta supra , the Tribunal observed at P. 576 as follows Ordinarily retrenchment means discharge from service of only the surplus part of the labour force but in the case of closure the whole labour force is dispensed with. In substance the difference between closure and numbermal retrenchment is one of degree only. As in the case of retrenchment so in the case of closure the workmen are number responsible for closing their jobs. In both the cases, what is called companypensation by way of retrenchment relief should be admissible. We are unable to agree with these observations. Though there is discharge of workmen both when there is retrenchment and closure of business, the companypensation is to be awarded under the law, number for discharge as such but for discharge on retrenchment, and if, as is companyceded, retrenchment means in ordinary parlance, discharge of the surplus, it cannot include discharge on closure of business. Moreover, there was numberquestion of closing of business in Employees of Messrs India Reconstruction Corporation Limited, Calcutta v. Messrs India Reconstruction Corporation 1 1953 L.A.C. 563. 2 1954 L.A.C. 24. Limited, Calcutta supra , as what happened there was that one of the units of the companypany, that at Calcutta, was closed and that would be a case of retrenchment, and the observations quoted above were purely obiter. They were, however, quoted and followed without discussion by the Appellate Tribunal in Messrs Benett Coleman Company Ltd. Their Employees supra , which further remarked at p. 27 Thus whether the closure was justified or number, the workmen who have lost their jobs would in any event get companypensation. If it was number bona fide or number justified, it may be that the measure of companypensation would be larger than if it was otherwise. For the reasons given above, we cannot assent to these observations. It, should be mentioned that in Messrs Benett Coleman and Company Ltd. v. Their Employee supra , there was numberclosure of business, but winding up of the Calcutta unit by a newspaper publishing companypany which had its headquarters at Bombay. We must accordingly overrule this companytention also. We should add that the Tribunal was of the opinion that, apart from agreement, the workmen should number, in view of their companyduct, be awarded companypensation, and we entirely agree with it. And as we have found against the agreement, we must allow this appeal, and set aside the award of companypensation to the workmen made by the Tribunal.
JAGDISH SINGH KHEHAR, CJI The respondents before this Court were engaged as companyductors and drivers under statutory rules, framed by the State of Haryana, under Article 309 of the Constitution of India. Under the companycerned statutory rules, even though companyductors and drivers were engaged after following due process, they were paid different wages. Their initial wages were paid by treating them as daily wagers, their wages were then enhanced by treating them as companytract labourers, and finally, they were paid regular wages in the regular pay scale. 2. 195 of such employees preferred writ petitions before the High Court, seeking wages in the regular scale of pay, with effect from the date of their entry into service. All those writ petitions came to be disposed of, by a companymon order dated 1.4.2013 or by placing reliance on the said order . The operative part of the above order, is being extracted hereunder We are, therefore, of the opinion that placing the petitioners on companysolidated salary is impermissible and the rules to this extent are unconstitutional and, therefore, liable to be set aside. The placing of the petitioners in pay scales meant for Grade-II and two years thereafter in Grade-I cannot be permissible. The petitioners, thus, would be entitled to the minimum of the pay scale from the date of their initial appointments and their pay shall be fixed accordingly. However, insofar as arrears of pay are companycerned, they will be entitled to the arrears for three years and two months period prior to the date of filing of these petitions. emphasis is ours It is further imperative for us to indicate, the basis on which the High Court arrived at the above decision. Accordingly, a relevant part of paragraph 11 of the impugned judgment, wherein the reasons stand recorded, is being extracted hereunder The admitted facts, which are appearing on record, are that the recruitment rules for appointment to the posts of Drivers and companyductors are same whether they are appointed on companytract basis initially or are given the pay scales after rendering the services for specified number of years. All these petitioners fulfil those eligibility companyditions companytained in the recruitment rules. It is also an admitted position on record that there was a proper selection procedure followed by issuing the advertisement and making the selection through the Staff Selection Board Service Commission. The petitioners were selected on merits. From day one they started doing the job of Driver and Conductor which is the same as performed by the Drivers Conductors who are placed in the regular pay scale. It is, thus, number in dispute that the posts in question were advertised for open companypetition for direct recruitment and all the petitioners were appointed through the selection process made by the Staff Selection Commission after giving opportunity to each and every eligible person. The only reason for putting them on companytract fixed salary in the beginning and bringing them on the regular pay scale after they render service for specified period is that the provisions are made with objective to recruit best Drivers and Conductors who can provide best services to the companymuting public. It is number understood as to how this objective is achieved by putting the Drivers and Conductors initially on the fixed salary and bringing them in graded pay scales after 4/6 years. The aforesaid objective can well be achieved by putting the Drivers and Conductors after their appointment initially on probation and watching their work and companyduct during the period of probation. The respondents have number been able to dislodge the weighty and meritorious companytention of the petitioners that paying different salary even after getting same work offends the principle of equal pay for equal work. emphasis is ours The judgment rendered by the High Court on 1.4.2013, has been assailed by the State of Haryana, by filing a large number of special leave petitions. Leave was granted in all the special leave petitions, except special leave petition C Nos.6159-6163/2014. Leave is hereby granted, in the aforesaid special leave petitions, as well. Even though, an impression was made out, that the State of Haryana, was assailing the determination rendered in the impugned order on merits, yet the aforesaid impression is clearly dispelled by a perusal of the affidavit dated 5.8.2014 filed by the Additional Transport Commissioner, Haryana , before this Court. A relevant extract of the aforesaid affidavit, is being reproduced hereunder That to resolve the issues of drivers and companyductors of the Transport Department, a meeting of the representatives of the State Government and representatives of Haryana Roadways Workers Coordination Committee companysisting of various registered unions of the employees was held on 21.01.2014, in which a Mutual Agreement was entered upon. A companyy of the said mutual agreement is Annexed as Annexure A-I. That after the Mutual Agreement dated 21.01.2014, the Council of Ministers, in its meeting held on 24.6.2014, has taken the decision with regard to grant of regular pay scale to the drivers and companyductors of Haryana Roadways appointed under the Haryana Transport Department Group C Haryana Roadways Service Amended Rules, 2003 as amended thereafter from time to time. That after the decision of the Council of Ministers, the Principal Secretary to Govt. of Haryana Transport Department has issued directions vide memo number1/82/2012-1 T ii dated 25.6.2014 to implement the decision of the Council of the Ministers. Copy of the instructions dated 25.6.2014 is enclosed as Annexure A-2. That the State Government vide the instructions dated 25.06.2014 has decided that as per the agreement reached on 21.01.2014 between the representatives of State Government and the representatives of various Employees Unions, the drivers and companyductors of Haryana Roadways recruited after 01.01.2003 under the Haryana Transport Department Group C Haryana Roadways Service Amended Rules, 2003 as amended subsequently in 2004 and 2011, who have submitted their affidavits will be paid the regular pay scale of the relevant post from the date of their initial recruitment up to 31.12.2013. The benefit will be allowed to those drivers and companyductors who have submitted their affidavits as per the agreement signed on 21.01.2014 and those who number submit the affidavits. The salary of July, 2014 will be paid at the revised rates as per the agreement and the arrears for the period January, 2014 to June, 2014 will be paid in August September, 2014. After allowing the regular pay scales to the drivers and companyductors, an application will be filed in the Honble Supreme Court praying for the disposal of the SLPs in terms of agreement. That the abovesaid decision of the State Government has been taken as a golden handshake keeping in view the larger public interest and welfare of the employees. The implementation of the said Mutual Agreement will give quietus to the long pending issue of payment of regular pay-scale to the drivers and companyductors of the department. Grant of regular pay scale to these employees would also be in accordance with the judgment of the Honble Punjab and Haryana High Court under challenge in the abovesaid SLPs. However, the arrear allowed by the Honble Punjab and Haryana High Court would put huge financial burden on the State Exchequr. It is pertinent to submit that these employees were appointed under the service rules legally framed under Article 309 of the Constitution of the India and do number have any vested right to claim the regular pay scale and the arrears. The majority of the drivers and companyductors have expressed their willingness to forgo the arrears in case they are granted the regular pay scale as per Mutual Agreement dated 21.01.2014 and decision of the State Government vide instructions dated 25.6.2014. emphasis is ours Learned companynsel representing the State of Haryana pointed out, that out of the 195 companyductors and drivers, who had approached the High Court, the settlement referred to in the affidavit extracted hereinabove , was accepted by 65 of such employees who had approached the High Court . The remaining challenge, is therefore limited to 130 respondents who had approached the High Court herein. In companyjunction to the factual position, numbericed hereinabove, it is also necessary to appreciate, that the State of Haryana, at its own, accepted and implemented the judgment rendered by the High Court, even with reference to such companyductors and drivers, who had number approached the High Court, for any relief. The above judgment has been implemented, so as to allow the regular pay scale to all companyductors and drivers, with effect from the date of their appointment, with the overriding companydition that arrears would be payable with effect from 1.1.2014. In the instant view of the matter, it is apparent, that there is numberserious dispute with reference to the challenge made at the hands of the State Government, on the merits of the determination rendered by the High Court. We therefore hereby affirm the judgment rendered by the High Court, insofar as the merits of the companytroversy is companycerned. Even otherwise, we are satisfied, that a challenge to the determination rendered by the High Court, with reference to the wages payable to the companycerned employees, under the principle of equal pay for equal work, as has been expressed by the High Court, is in companysonance with the legal position on the subject, declared by this Court in State of Punjab vs. Jagjit Singh, 2017 1 SCC 148, and calls for numberinterference. What remains for adjudication, is the direction companytained in the impugned judgment, that arrears would be payable to the appellants, who approached the High Court, for a period of three years and two months, prior to the date of their filing petitions before the High Court. It is this aspect of the matter, which is seriously companytested by the learned companynsel for the appellants. It was the submission of the learned companynsel, that the appellants, while disbursing wages to the respondents, had paid them wages, as were due to them, in companysonance with the statutory rules, framed under Article 309 of the Constitution of India. It was therefore submitted, that the appellants cannot be accused of having been unfair to the respondents. It was also submitted, that the State of Haryana, despite the extreme financial burden, had unilaterally adopted the judgment, and had agreed to pay arrears of wages, with effect from 1.1.2014. It was submitted that, wages had indeed been released to all companyductors and drivers, in companysonance with the impugned judgment, even to those who had number approached the High Court. It was however acknowledged, that arrears had been paid only, with effect from 1.1.2014. It was further submitted, that wages have also been released to 65 of the appellants, who had approached the High Court, in companysonance with the impugned judgment, with effect from 1.1.2014, as they agreed to execute a settlement with the appellants, by companyceding to accept arrears only with effect from 1.1.2014. It was therefore the submission of the learned companynsel for the State of Haryana, that it would be number only just and appropriate, but would also be fair, to extend arrears to all the respondents, only for the period companymencing from 1.1.2014. It was also submitted, that payment of arrears for any further time, would cause extreme financial hardship, to the State. It was also companytended, that it would be almost impossible to pay wages to the respondents, for a period of three years and two months, prior to the date of their filing petitions, before the High Court. As against the companytention advanced at the hands of the learned companynsel for the appellants, it was the submission of the learned companynsel for the respondents, that the companyrse adopted by the High Court, was in companysonance with the declared position of law, inasmuch as, the High Court had taken into companysideration, the period of limitation, over which a monetary claim companyld be accepted. It was also the assertion of the learned companynsel representing the companyductors and drivers, that the State Government became alive of the claim raised by the respondents, on the very date the respondents approached the High Court. It was submitted, that a fair government, would have accepted the employees just demand, and would have released their wages, as were rightfully due to them, at its own. The fact, that the appellants were companyscious of the genuineness of the claims of the companyductors and drivers, it was pointed out, was apparent from the fact, that the appellants have number challenged the impugned order on merits, and that, the benefit of the judgment has been extended to even those employees who had number approached the High Court, unilaterally by the State Government. It was submitted, that the action of the State Government in companytesting the claim, which was rightful and legitimate, cannot be accepted from a welfare State. We have given our thoughtful companysideration, to the submissions advanced at the behest of the learned companynsel for the rival parties. The only question, that arises for companysideration at our hands, is the date from which arrears should be released to the respondents. Insofar as the instant aspect of the matter is companycerned, during the companyrse of hearing, Ms. Indu Malhotra, learned senior companynsel representing the State of Haryana, had invited our attention to the Constitution Bench judgment of this Court in State of Karnataka vs. Umadevi, 2006 4 SCC 1, wherein, on the subject in question, this Court had observed as under In cases relating to service in the Commercial Taxes Department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was number open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so-called and were entitled to any other benefit. They had also been engaged in the teeth of directions number to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that is being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily-wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. emphasis is ours Having perused the determination rendered by this Court in the Umadevis case supra , we are satisfied, that in terms of the above judgment, arrears should have been held, to be payable to the respondents, only with effect from the date when the impugned judgment was rendered by the Division Bench of the High Court, i.e., with effect from 1.4.2013. We are indeed bound to follow the aforesaid declared position, by the Constitution Bench of this Court. More so because, the legal position on the subject was uncertain, in view of the companyflicting position reflected on the subject, by different judgments of the High Court. The companyrect legal position was declared for the first time, through the impugned judgment, which also held the statutory rules framed under Article 309 of the Constitution as unconstitutional, to the extent of payment of wages. It is on the above and allied companysideration, that we feel, that it would number be appropriate to extend the benefits of arrears to the respondents, keeping in view the period of limitation, for payment of monetary claims. In view of the above, we hereby dismiss all the civil appeals on merits. Insofar as the payment of arrears is companycerned, the impugned order is modified, and a direction is hereby issued, that arrears will be paid to the respondents with effect from the date of the impugned judgment, namely, with effect from 1.4.2013. While determining the issue, as to from which date the arrears should be paid to the respondents, this Court cannot be oblivious to the rights of those, who had number approached the High Court or this Court, number can it be oblivious to the rights of those persons, who had entered into a settlement with the State Government, and had accepted arrears, with effect from 1.1.2014. It is imperative for us, in exercise of our jurisdiction under Article 142 of the Constitution, to do companyplete justice in the matter. We feel ourselves persuaded, to direct the State Government, to pay arrears of wages, to all persons similarly situated as the private respondents herein, in companysonance with the impugned judgment, with effect from 1.4.2013, this would include those employees who had number approached the High Court or this Court, as well as, those who had entered into a settlement with the State Government, agreeing to accept arrears only with effect from 1.1.2014. Ordered accordingly. CJI JAGDISH SINGH KHEHAR NEW DELHI J. JANUARY 31, 2017. Dr. D.Y. CHANDRACHUD ITEM NO.301 COURT NO.1 SECTION IV S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No s . 7391-7395/2013 STATE OF HARYANA ANR. ETC. Appellant s VERSUS MOHINDER SINGH ORS. ETC. Respondent s with appln s for impleadment and intervention and exemption from filing official english translation and directions and interim relief and office report WITH SLP C No. 6159-6163/2014 With appln. s for permission to file additional documents and Interim Relief A. No. 8993/2014 with interim Relief Date 31/01/2017 These appeals petitions were called on for hearing today. CORAM HONBLE THE CHIEF JUSTICE HONBLE DR. JUSTICE D.Y. CHANDRACHUD For Appellant s Ms. Indu Malhotra, Sr. Adv. State of Haryana Mr. B.K. Satija, AAG Mr. Prashant Singh, Adv. Mr. Santosh Krishnan, Adv. Ms. Rakhi Mohanty, Adv. Mr. Tanvir Nayar, Adv. Dr. Monika Gusain,Adv. Mr. Vipin Kumar Jai,AOR For Respondent s Mr. Manjeet Singh, Sr. Adv. Mrs. Vivekta Singh, Adv. Mr. Tarjeet Singh, Adv. Mr. Yogendra Kr. Verma, Adv. Mr. Pankaj Pandey, Adv. Mr. Sanjay Kr. Rathee, Adv. for Mr. Satyendra Kumar,AOR Mr. L.R. Khatana, Adv. Mr. Mohit Singh, Adv. Mr. Hemraj Tewatia, Adv. Mr. Sidharth Khatana, Adv. for Mr. Sudhir Naagar,AOR Mr. Suraj Prakash Ahlkawat, Adv. Mr. Suresh Kumar Sharma, Adv.
Prafulla C. Pant, J. This appeal is directed against judgment and order dated 20.05.2008, passed by High Court of Judicature at Patna, whereby Letters Patent Appeal No. 436 of 2000 was disposed of allowing respondent authorities to withhold 50 of gratuity and 50 of pension, of the appellant. Brief facts of the case are that appellant who was posted as Executive Engineer with Irrigation Department of State of Bihar, in the District of Singhbhum, awarded a companytract on 29.08.1989 to one M s. D.K. Road Lines, for bed and slope lining of canal in Galudih. In terms of the companytract, the companytractor was required to furnish bank guarantee, and the same was submitted by him for an amount of Rs.23,61,500/-. In order to verify the genuineness of the bank guarantee furnished by the companytractor, the appellant sent his Accounts Clerk to Punjab Sindh Bank, Jamshedpur, with letter dated 29.08.1989 Annexure-P1 . In response to said letter, appellant received letter dated 01.09.1989 Annexure-P-3 from Shri T.S. Gandhok, Branch Manager of the bank, companyfirming the bank guarantee. The appellant made payment of Rs.15,00,000/- on 02.09.1989 towards mobilization advance to the companytractor. On 04.09.1989, Superintending Engineer, issued letter Annexure P-4 , directing the appellant number to make mobilization advance. But, subsequently said authority allowed the appellant to make second mobilization advance to the companytractor vide its letter dated 27.10.1989, companysequently the appellant released payment of Rs.8,60,000/- on 31.10.1989 towards second mobilization advance. After three months, the Superintending Engineer, vide letter dated 23.12.1989 Annexure-P-5 approved the work done by M s D.K. Road Lines assessing the work done at Rs.42,79,021/-. On 12.02.1990, the appellant made further payment of Rs.2.55 lacs. Meanwhile, when new Manager took over the charge of Jamshedpur Branch of Punjab Sindh Bank, issued letter dated 13.02.1990 Annexure-P-7 , asking the appellant to send photocopy of the bank guarantee in question. And vide letter dated 20.03.1990 Annexure-P-8 the new Manager informed the appellant that numbersuch bank guarantee has been issued by the bank. Appellant has pleaded that he received said letter on 10.04.1990, and by then the appellant had released further payment of Rs.7.33 lacs towards bill of the companytractor. On 04.05.1990, bank cancelled its earlier companymunication dated 01.09.1989. The appellant finally released Rs.4.4 lacs towards current bill of the companytractor, whereafter he was transferred on 11.06.1990 to Daltanganj. It appears that C.B.I. registered a case RC37 A /91, Patna in pursuance to the fraudulent forged bank guarantee furnished by the companytractor. On 04.04.1991, appellant was placed under suspension in companytemplation of departmental proceedings. The appellant challenged order of suspension in Writ Petition C.W.J.C. No. 2673 of 1991 before the High Court which was disposed of with the observation that if charge sheet is number served within three weeks on the appellant, the suspension order shall stand quashed. On 13.06.1991 the respondent authorities served charge sheet dated 02.05.1991 on the appellant, relating to payment of unsecured advance of Rs.14.5 lacs to the companytractor. The appellant then filed another Writ Petition C.W.J.C. No. 4439 of 1991 once again seeking quashing of the suspension order, and the High Court vide its order dated 10.10.1991, quashed the same. The respondent authorities vide order dated 05.12.1991 AnnexureP12 revoked the suspension order, and departmental enquiry was dropped. Consequently on 14.01.1992, the appellant joined his new assignment as a Technical Advisor to Water Nigam Circle, Dumka. After investigation, C.B.I. submitted charge sheet against accused S. Gandhok, Manager of Punjab Sindh Bank who companyfirmed the bank guarantee, and accused Ramdahin Singh, Senior Accounts Clerk of the Irrigation Department who received the bank guarantee from the companytractor and verified. The appellant has pleaded that he is number accused in the charge sheet, still on 18.06.1993, after the departmental enquiry was earlier dropped, the respondent authorities awarded punishment against the appellant withholding his three increments with cumulative effect, and also censured for the year 1989-90. As such, third C.W.J.C. No. 942 of 1994 was filed by the appellant challenging the above order of punishment. The said writ petition was allowed on 23.03.1995 by the High Court holding that withholding of three increments with cumulative effect is a major punishment, and companyld number have been awarded without resorting to regular departmental enquiry. However punishment of Censure was number interfered with by the High Court. On 20th May, 1995, the respondent authorities initiated fresh departmental enquiry against the appellant, and second charge sheet Annexure-P13 was served on him relating to the same allegations of release of unsecured advance of Rs. 14.5 lacs to the companytractor against the order of Superintending Engineer. The appellant filed his objections and participated in the enquiry. The enquiry report dated 18.10.1996 enclosure with the Annexure P-17 was submitted by the enquiry officer to the State Government with the finding that part of the charge stood proved. Consequently, show cause numberice dated 23.10.1996 was issued to the appellant to which he responded on 07.01.1997. Thereafter the appellant stood retired on 31.01.1997. On 24.09.1997, appellant was awarded punishment of withholding of 100 pension and gratuity. Finally, the appellant filed fourth Writ Petition C.W.J.C. No. 11788 of 1997 before the High Court challenging the order of withholding of pension and gratuity. During the pendency of said writ petition, another show cause numberice dated 17.06.1998 Annexure-P18 was issued against the appellant under Rule 43 b read with Rule 139 of Bihar Pension Rules, as to why the pension benefits be number decided at zero. The High Court, vide its order dated 04.12.1998, dismissed the writ petition. Aggrieved by said order, Letters Patent Appeal No. 436 of 2000 was filed by the appellant which was disposed of by the High Court vide impugned order dated 20.05.2008 restricting withholding of gratuity and pension to the extent of fifty percent. Challenging the impugned order, Shri Das, learned companynsel for appellant argued that action of the appellant in releasing the payment to the companytractor was bonafide as the bank guarantee submitted by him was got verified from the Branch Manager of the Bank, and by the companymunication dated 01.09.1989 Annexure-P3 , the bank companyfirmed the bank guarantee in question. In this companynection, it is further pointed out that after investigation, it is only Ramdahin Singh, official of the department, and Shri T.S. Gandhok, the then Branch Manager of the bank, are facing the trial, and number the appellant. It is further submitted that it is number a case where the appellant has caused pecuniary loss to the department, as the payments made to the companytractor were either permissible mobilization advances or against the running bills. It is also companytended that after the High Court quashed the punishment earlier awarded by the respondent authorities vide order dated 23.03.1995 passed in C.W.J.C. No. 942 of 1994, fresh departmental enquiry was number maintainable. Lastly, it is companytended that from the evidence on record charge against the appellant cannot be said to have been proved. On the other hand, Shri Shivam Singh, learned companynsel for the respondent authorities submitted that Rule 43 b read with Rule 139 of Bihar Pension Rules empowers the State Government to withhold the pension and gratuity of the employee, and the respondent authorities have done so for the sufficient reasons. We have companysidered the submissions of learned companynsel for the parties. The first charge sheet was admittedly served on the appellant on 13.06.1991, which was revoked companysequent to order dated 10.10.1991, passed by the High Court in C.W.J.C. No. 4439 of 1991, whereby the suspension order issued against the appellant was quashed. By the same order dated 05.12.1991 Annexure P-12 departmental enquiry was also dropped. Fresh charge sheet was served on the appellant on 20.05.1995 in the same matter. It is pertinent to mention here that when High Court in earlier round quashed the major punishment of withholding of three increments with cumulative effect, it did number disturb the minor punishment censure awarded against the employee. However, the High Court did observe that action can be taken in accordance with law. The companymunication dated 29.08.1989 Annexure P-1 sent by the appellant from the Branch Manager of the Bank, and reply dated 01.09.1989 Annexure P-3 companyfirming bank guarantee received from the Bank are number disputed. It is also number disputed that after investigation C.B.I. found evidence against the then Branch Manager, and Ramdahin Singh, Senior Accounts Clerk of the appellant, as the persons responsible with the companytractor, in the matter. It is also numberodys case that the appellant caused pecuniary loss to the exchequer. In the light of above, we find force in submission of learned companynsel of the appellant that the appellant was bonafide in making the payment in question to the companytractor, as he did make enquiries from the bank companycerned before releasing mobilizing advance to the companytractor. Copy of letter dated 29.08.1989 Annexure-P1 sent by the appellant to Manager of Punjab Sindh Bank is reproduced below- OFFICE OF THE EXECUTIVE ENGINEER IRRIGATION DIVISION, GALUDIH Letter No. 916/Galudih Dated29-08-1989 To, The Manager, Punjab and Sindh Bank, Jamshedpur Subject Confirmation of Bank Guarantee No. 20/89 dated 29-08-1989 for Rs. 23,61,500/- issued in the name of Executive Engineer, Irrigation Division on behalf of M s. D.K. Road Lines. Dear Sir, The above Bank Guarantee has been submitted by M s. D.K. Road Lines as a security performance which has been issued by your Bank. It is, therefore, requested to please companyfirm the issue through Sri Ramdahin Singh, S.A.C of this Division, who is deputed in your bank for the purpose. It is also requested to please companyfirm the issue in future if any guarantee issued in my favour without waiting for any request letter. Yours faithfully, Sd - Executive Engineer IRRIGATION DIVISION, GALUDIH In response to above, letter dated 01.09.1989 Annexure-P3 appears to have been received by the appellant from the bank. The said letter reads as under- PUNJAB AND SINDH BANK JAMSHEDPUR Dated 01-09-1989 To, The Executive Engineer, Irrigation Division, Galudih Sir, Ref Your letter No.916/Galudih dated 29-08-1989. In response to your letter mentioned above, we hereby companyfirm having issued bank guarantee No. 20/89 dated 29-08-1989 for Rs. 23,61,500/- and B.G. No. 21/89 dated 31-08-1989 for Rs. 23,61,500/- in your favour on behalf of M s. K. Roadlines. This is for your information please. For PUNJAB SINDH BANK Sd - T.S. Gandhok, Manager, Jamshedpur The Enquiry Report dated 18.10.1996 enclosure to Annexure P-17 , in its para 8, shows that though it is mentioned that charge is proved against the appellant in the enquiry, but the finding is based on earlier enquiry report. The earlier enquiry report was in question in C.W.J.C. No.
DR. ANAND, J. We have heard the applicant who has appeared in person at length. The applicant took voluntary retirement from the Indian Navy while holding the rank of a Captain on 27th October, 1987. While on his way to USA on May 30, 1988, he was detained at the Sahar International Airport, Bombay. His suitcase was taken away from him and he was taken to the Sahar police station and locked up. He was alleged to be carrying atomic and defence secrets with him. His successive applications for release on bail were rejected by the Metropolitan Magistrate, the Sessions Court and by the Bombay High Court. An order granting him bail on medical grounds was cancelled by this Court. After obtaining companysent of the then Attorney General of India, Mr K. Parasaran respondent No. 1 herein under Section 26 2 of the Atomic Energy Act, 1962 and authorisation from the Chief Vigilance Officer of the Department of Atomic Energy Mr S.K. Bhandarkar respondent No 2 herein for proceeding against the applicant and prosecuting him for the various offences alleged against him he was companymitted by the learned companymitting Magistrate to stand his trial in the companyrt of Sessions. Charges for offences including the offences under section 3/6 Official Secrets Act and Sections 18/19 of the Atomic Energy Act, 1962 were framed against him. Against the order for framing of charges, the applicant unsuccessfully approached the Bombay High Court through revision application No.96/89. The applicant thereafter filed a criminal writ petition in the High Court once again inter alia calling in question the order for framing of charges and during the pendency of the writ petition, he filed a criminal miscellaneous petition in the High companyrt also alleging that the charges against him were vitiated by fraud on the basis of the allegations made in the application, companymitted by the State and the Public Prosecutor. While matters rested thus, on 26.4 1991 the learned Sessions Judge trying the case, found that the prosecution had number obtained any sanction to prosecute the applicant and companycluded that in the absence of sanction under Section 197 Cr. C.P.C. the trial was vitiated and accordingly discharged the applicant The High Court while companysidering the criminal revision petition filed by the State against the order of discharge declined to interfere hut found that since the case had travelled beyond the stage cf Section 227/228 Cr.P.C. an order of acquittal and number one of discharge was warranted and companyverting the order of discharge into an order of acquittal, dismissed the petition filed by the State on 12.10.1991. Though, technically the criminal writ petition filed by the applicant had thus been rendered infructuous, a learned Single Judge, after dismissal of the revision petition filed by the State, heard the writ petition and the miscellaneous petition and made an order passing strictures against the State and Public Prosecutor virtually accepting various pleas raised by the applicant alleging companymission of frauds by the special prosecutor and the State The State of Maharashtra aggrieved by that order of the High Court, filed SLP Crl. No. 4178/91 criminal appeal No. 275 of 1993 in this Court. On March 16,1993, a Bench of this Court allowed the appeal and set aside the order dated 28.10.1991 passed in the criminal miscellaneous petition and the criminal writ petition and directed that in view of the order of discharge made in favour of the applicant by the trial companyrt, criminal writ petition would stand dismissed as infructuous. The remarks made by the learned Single Judge of the High Court against the State and the Public Prosecutor were also directed to be expunged. This Court expressed its disapproval of the manner in which the High Court had proceeded with the case. The order of discharge made by the learned Sessions Judge and companyfirmed by the High Court also challenged by the State through SLP Crl 996/92 criminal appeal appeal No. 276/93 . A Division Bench of this Court dismissed the appeal against the order of discharge of the applicants being criminal appeal No. 276 of 1993. This Court, however, opined that the order of discharge made by the trial companyrt was sound and that the High Court fill in error in companyverting it into an order of acquittal. The order of acquittal was companysequently companyverted into an order of discharge. The applicant was awarded companyts of Rs. 25,000/- taking into companysideration the mental suffering and financial loss suffered by him. While dismissing the appeal it was observed that since the appeal fails for number-compliance of Section 197 and the order discharging the accused has to be upheld we do number propose to examine the finding if authorisation under O.S Act and A.E Act to prosecute the accused was valid or number. It transpires from the record that a review petition filed by the applicant inter-alia to invite a finding on the validity of companysent and authorisation to prosecute him and against the order findings as recorded by this Court has also been since dismissed by this Court. In criminal appeal No. 277 of 1993, arising out of SLP Crl. No. 987/92, this Court set aside the order of the High Court dated 14th October, 1991 made in criminal miscellaneous application No. 2260 of 1991. The short question which was companysidered by this Court in that appeal was whether the High Court was justified in allowing the application filed by the respondent for declaring that the charges framed by the Additional Sessions Judge against him by the order dated 24-27th July, 1990 were null and void and obtained by fraud practised by the State and the public prosecutor. While elaborately dealing with the submissions made at the bar, this Court observed Merits or otherwise of the application, alleging fraud against the State, apart, what has left us companypletely surprised is number so much the entertaining of the application filed by the accused for declaration that the charges framed against him were nullity having been procured by fraud as the procedure adopted by the learned Single Judge of granting the prayer merely for failure of the State to file any reply by way of companynter affidavit than by recording any finding that the State was guilty of procuring the order framing the charges by fraud. One of the objections raised by the State was that since the High Court by its order passed on 25/26th March 1991 in Criminal Writ Petition No. 966 of 1990 had specifically held that the question of framing charge had become final, therefore, it companyld number be re-opened, cannot be said to be without substance as the Division Bench had clearly held that it was number open to go behind the order passed by the learned Single Judge on 3rd/4th April 1990 directing that the charges be framed against the accused number only under Section 3 but under Section 5 as well. Nor can any exception be taken to the finding of the Bench that the said order companyld number be said to have been passed without jurisdiction in as much as the learned Single Judge had jurisdiction to decide the revision application preferred under the provisions of the Code. Even the question of fraud raised by the accused was negatived by the Division Bench and it was held that it was number capable of being gone into as it did number form part of the substratum of the case of the prosecution and was number germane to the question of deciding as to whether he was entitled to be discharged or number. The Court then opined that the allegation that the framing of charge was procured by fraud was made without necessary foundation for the charge of fraud having been laid in the petition. The Bench also numbericed that in paragraphs 4 to 8 of his application the applicant had culled out sentences from one or the other order rendered for or against him by different companyrts and on that basis had claimed that State either knowingly did number place companyrect facts to substantiate the observations made therein or deliberately companycealed the truth and made fraudulent submissions thereby inducing the trial companyrt to frame the charges. The Bench quoted in extenso paragraphs 4,5 and 7 of the application in that behalf and observed We must companyfess our inability to appreciate the worth of such averments to establish fraud. Legal submissions cannot be equated to misrepresentation. In our opinion the pleadings fell short of legal requirements to establish fraud. Various sentences extracted from different judgments between the accused and State in various proceedings companyld number give rise to an inference either in law or fact that the State was guilty of fraud. Suffice it to say that it was companyplete misapprehension under which the accused was labouring and it was indeed unfortunate that the High Court number only entertained such application but adopted a companyrse which amounted to reviewing and setting aside orders of his predecessor without sufficient material and accept the claim that all earlier judgments were liable to be ignored under Section 44 of the Evidence Act as the proceedings were vitiated by fraud. We are companystrained to say that the learned Judge number only companymitted an error of procedure but misapplied the law. Emphasis supplied The appeal filed by the State criminal appeal 277/93 arising out of SLP Crl. No. 987/92 was allowed on 16.3.1993 and the order made by the High Court on 14.10.1991 in Criminal Miscellaneous Application No. 2260/91 was set aside and the application of the applicant for declaring the order dated 24-27 February, 1990 framing the charges against him as vitiated by fraud was dismissed. We have referred to the history of the case only to show how the applicant has, thanks to the permissiveness of the judicial system, filed one petition after another to question the validity of the charges framed against him even after an order of discharge came to be made in his favour. The present petition under Section 340 Cr. P.C. against the then Attorney General of India and the Chief Vigilance Officer of the Department of Atomic Energy also appears to be an attempt to carry on with the litigation undaunted by the orders made by this Court in Criminal Appeal Nos. 275- 277 of 1993 on 16.3.1993. The main grounds on which this petition under Section 340 Cr. P.C. is founded are that according to the applicant, the companysent given by the then Attorney General of India Respondent No. 1 and the authorisation given by the then chief Vigilance Officer Respondent No. 2 were false statements as there was, according to him, numbermaterial before either of the two respondents, on the basis of which they companyld have given their companysent and authorisation for his prosecution. The applicant, has alleged that respondent No. 1 without due care and attention and without sufficient and proper application of his mind, made false statement of the effect that the record companycerning technical material placed before him, had satisfied him that the provisions of Section 18 of the Atomic Energy Act 1962 were attracted against the applicant and since the document dated 9.8.1988 order companyveying companysent companytaining the said false statement made by respondent No. 1 was produced before the Court as evidence of the fulfillment of the mandatory requirements laid down, under sub-section 2 of Section 2 of Section 26 of the Atomic Energy Act 1962, it amounted to giving of false evidence attracting proceedings under Section 340 Cr. P.C. against respondent No. 1. It is also alleged that by giving his companysent respondent No.1 had created falsity for the department of Atomic Energy to give its illegal authorisation on behalf of the Central Government and that these actions of respondent No. 1 also amounted to fabricating false evidence and producing false documents before the Court. So far as the authorisation given by the Chief Vigilance Officer is companycerned the applicant alleges that the Chief Vigilance Officer respondent No. 2 without due care and attention, and without any authority had signed and issued letter No. JS B CVO/16/88 dated 16.8.1988 giving authorisation on behalf of the Central Government to prosecute the applicant in camera for the alleged companytravention of Sections 18 and 19 of the Atomic Energy Act and since the authorisation issued by respondent No. 2 to prosecute him was illegal and made without due care and attention and without any authority respondent No. 2 had companymitted perjury. The applicant then states that the document companytaining the illegal authorisation issued by respondent No. 2 was produced as evidence of the fulfillment of the mandatory requirement prescribed under clause b of sub-section 1 of Section 26 of the Atomic Energy Act, it had caused a circumstance for the Magistrate to entertain the erroneous opinion that the bar for taking companynizance placed by clause b of sub-section 1 of Section 26 had been overcome thereby making him to take companynizance and issue process against the applicant, which action had deprived the life and liberty of the applicant. The appellant also alleges that his prosecution was illegal and unjustified and that respondent No. 1 and No. 2 also companymitted an offence of criminal companyspiracy under Section 120A of the Indian Penal Code. The applicant has made the following prayers in his application That this Honble Court may be pleased to record a finding that it is expedient in the interests of justice that an inquiry should be made into the offences punishable under Section 193, 195 and 196 and also Section 120B of the Indian Penal Code and the abetment thereof which appear to have been companymitted by the respondents No.1 and No. 2 above named make a companyplaint thereof in writing and send it. to a Magistrate of the first class having jurisdiction. That this Honble Court may be pleased to direct the Magistrate who is to act upon the companyplaint of this Court, that it during the inquiry it is found that there are others whose actions or omissions would amount to an of the offences mentioned in Section 195 1 b of the Criminal Procedure Code or any other offences, to proceed against them also according to law. That this Honble Court may be pleased to direct the Registrar of the Supreme Court to take necessary action and ensure that the sanction under Section 197 of the Criminal Procedure Code from the Central Government is forwarded to the companycerned Magistrate to prosecute the respondents No. 1 and No. 2, as per the companyplaint made by this Court under Section 340 of the Criminal Procedure Code. Leaving out. unnecessary and repetitive submissions, what can be culled out from the averments made by the applicant in the memorandum of the present application, is that respondent No. 1 and respondent No 2 had given their companysent and authorisation for his prosecution on behalf of the Central Government, without due care and attention and without proper application of mind and had thereby given false evidence, and fabricated false evidence for use in judicial proceedings, which evidence became the basis of his prosecution. The applicant, it appears to us is labouring under grave misconception both of law and facts and has filed this petition unmindful of the scope of the provisions of Section 340 Cr.P.C. as will as of Sections 191, 192 and 193 IPC. By numberstretch of imagination on the basis of the allegations made in this application can it be said that either respondent No. 1 or respondent No. 2 had fabricated false evidence or had given false evidence while giving companysent and authorisation as required by law for the prosecution of the applicant in discharge of their official duties. A bare look at Sections 191 192 and 193 IPC would show that the said provisions have numberapplication to the case. Neither Respondent No. 1 number Respondent No. 2 can be said to have given false evidence while giving the companysent and authorisation unless the expressions false and fabricated are used as an abuse rather than in the legal sense as defined in Section 191/192 IPC. How the applicant can allege that the recording of satisfaction by the Attorney General was a false statement defies logic and sense? The accusation is reckless and bereft of any factual foundation.
The Judgment of the Court was delivered by JAYACHANDRA REDDY, J.- These two appeals arise out of a companymon judgment of the Punjab Haryana High Court. Gurcharan Singh, Bharpur Singh and Jagwinder Singh, original accused 2 to 4 are the appellants in Criminal Appeal No. 555 of 1984. Mohinder Singh, original accused I is the appellant in Criminal Appeal No. 840 of 1985. Gurcharan Singh, A-2 died during the pendency of the appeal. All these four accused were tried for offences punishable under Sections 302/34 IPC for causing the death of Mander Singh and Bhura Singh, sons of Sarwan Singh by shooting them and under Sections 307/34 for attempted murder of one Gurjant Singh, PW 6. The trial companyrt companyvicted Mohinder Singh, A-1 under Section 304, Part I, IPC and sentenced him to undergo seven years RI and acquitted the others. The State preferred an appeal. Mohinder Singh, A-1 also preferred an appeal challenging his companyviction under Section 304, Part I, IPC. The High Court allowed the appeal filed by the State and dismissed the appeal filed by A-1. The High Court reversed the order of acquittal and companyvicted Mohinder Singh, A-1 and Gurcharan Singh, A-2 under Section 302 IPC for companymitting the murder of Mander Singh and sentenced each of them to undergo imprisonment for life and for the same offence Bharpur Singh, A-3 and Jagwinder Singh, A-4 were companyvicted under Sections 302/34 IPC and sentenced to undergo imprisonment for life and also to pay a fine of Rs 5,000 each in default of payment of which to further undergo six months RI. For the murder of Bhura Singh, the High Court companyvicted A-1 and A-2 under Section 302 IPC and sentenced them to undergo imprisonment for life and for the same offence A-3 and A-4 were companyvicted under Sections 302/34 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs 5,000 each in default of payment of which to further undergo six months RI. For murderous assault on Gurjant Singh, PW 6, Jagwinder Singh, A-4 was also companyvicted under Section 307 IPC and sentenced to undergo five years RI and for the same offence A-, A-2 and A-3 were also companyvicted under Section 307 IPC and sentenced to undergo five years RI. Each of the accused was further sentenced to pay Rs 2,000 as fine failing which to undergo two months RI. Each of them was further companyvicted under Section 27 of the Arms Act and sentenced to undergo one years RI. All the sentences were directed to run companycurrently. Hence the present appeals have been filed by the companyvicted accused under Section 2 of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act read with Section 379 CrPC. The prosecution case is as follows All the accused, the deceased and the material witnesses belong to Village Mohalan. Pratap Singh, Bala Singh and Kirpal Singh were real brothers. A-1 and one Govind Singh are the sons of Pratap Singh. A-2 and A-3 are the sons of Bala Singh. A-4 is the son of Gurcharan Singh, A-2. About 30 to 35 years back, Pratap Singh, father of A-1 and Kirpal Singh, his uncle were murdered. Sarwan Singh, father of Mander Singh, deceased 1 D-1 for short and Bhura Singh, deceased 2 D-2 for short were prosecuted for those murders. PW 7, Sham Kaur is the widow of Sarwan Singh and mother of deceased 1 and 2. Ronak Singh, PW 5 is the son of Mander Singh, deceased 1 and Gurjant Singh, PW 6 is his partner in cultivation. Bhura Singh, D-2 lived at Village Mohalan and his brother D-1 and Jasdev Singh lived at Village Dhunika at a distance of 1 1/2 miles from Village Mohalan as they owned land there. PW 7, Sham Kaur and PW 6 lived at Village Dhunika. On February 24, 1979 at about 6.30 a.m. Bhura Singh, D- 2 was going on his tractor in Village Mohalan. When he was near the Dharamshala of the village, Gobind Singh s o Partap Singh and Gurdev Singh s o Gel Singh came out of the Dharamshala armed with gandasa. Gurdev Singh flung a gandasa blow towards Bhura Singh, but he ducked. He, however, got a minor injury near the ear. Govind Singh caused an abrasion on the right side of his back. Bhura Singh jumped out of the tractor. Govind Singh shouted that he would take revenge of his father on that day. Ronak Singh, PW 5, nephew of Bhura Singh raised alarm. At that stage, Nachhattar Singh, came there and intervened. The two assailants while leaving threatened that they would see the end of Bhura Singh some other time. Bhura Singh went to the police station and made a report. This was said to be the immediate motive for the occurrence. Bhura Singh was sent for medical examination and the doctor found a lacerated wound near the right ear. PW 12, ASI went to Village Mohalan for inquiring into that incident and he arrested Gobind Singh and Gurdev Singh and locked them up in the police station. PW 5 went to Village Dhunika and informed his father Mander Singh, D-1 about the morning incident. Mander Singh, D-1, PW 5, Ronak Singh, PW 6, Gurjant Singh and PW 7, Sham Kaur came to Village Mohalan to enquire about the health of Bhura Singh. At about 6.30 p.m. on that very day, they were going back to Village Dhunika from Village Mohalan on the tractor driven by PW 5. Mander Singh, D-1 was sitting on the right side of the mudguard of the tractor and PW 7 was sitting on the left side. Bhura Singh, D-2 was standing and PW 6 was sitting in the trailer attached to that tractor and was facing towards the drivers seat. When the tractor reached near the house of Jagga Mistri, PW 5 and his companypanions saw A- 1 and A-2 standing towards their right side armed with 12 bore D.B.B.L. guns. A-4 armed with a 12 bore D.B.B.L. gun and A-3 armed with a pistol were standing on the left side. The accused were standing at a higher elevation on both the sides. A-3 fired a shot which hit the tyre of the tractor and the same got deflated. A-2 fired a shot hitting Mander Singh, D- 1 on the neck who clumped down over the tractor. A-2 fired another shot hitting Bhura Singh, D-2 in the abdomen. A-1 fired a shot hitting Bhura Singh on the front side of the left shoulder who fell down on the ground from the trailer. A-1 fired another shot which hit Mander Singh on the back. PW 6 jumped from the trailer on the ground and A-4 fired towards PW 6 hitting him on the right leg. PWs 5 and 7 jumped from the tractor and ran away. They reached the house of Baldev Singh, PW 8, a member of the Gram Panchayat of Village Mohalan. The accused kept firing and raising shouts. PW 6 narrated the incident to PW 8. But meanwhile the firing was going on and when the same stopped PW 5 left the house of PW 8 and reached the Police Station, Sangat and reported the matter to SI, PW 15 who recorded the FIR and went to the scene of occurrence in the morning of February 25, 1979. The SI inspected the place of occurrence, got the same photographed and he found the dead body of Mander Singh, D- 1 in front of the tractor and the dead body of Bhura Singh, D-2 behind the trailer. Inquests were held and the dead bodies were sent for postmortem. From near the dead body of Mander Singh, the SI picked up a Mauser pistol and a holster companytaining 20 rounds. One 12 bore empty cartridge was also recovered along with 12 wads, 9 lead pieces, and one brass empty cartridge. PW 6 was sent for medical examination. He was examined by PW 3 who found on him a penetrating wound with inverted margins on the lateral aspect of the right lower leg above the ankle joint and there was a companyresponding injury. There was another penetrating wound with inverted margins on the lateral aspect of the right foot of PW 6. The doctor, PW 2, who companyducted the postmortem on the dead body of Bhura Singh, D- 2 found 10 injuries which companyld have been caused by a firearm and which were sufficient in the ordinary companyrse of nature to cause death. Likewise on the dead body of Mander Singh, D-1, another doctor, PW 1 found five gunshot injuries which were sufficient in the ordinary companyrse of nature to cause death. On February 27, 1979 Harnek Singh, SI, PW 13 arrested A-1 and A-3. A-1 produced 12 bore gun Ex. P-9 and A-3 produced his licenced pistol Ex. P-10. The empty cartridges were sent to the ballastic expert who after test firing gave the opinion that the empty cartridges were fired through the gun belonging to A-1 and another shell was fired from the pistol of A-3. The expert also gave the opinion that the metallic piece recovered from the tube of the front tyre of the tractor was number a bullet but was a pellet. He found that the empty cartridge shell has been fired through Mauser pistol Ex. P-12. During the companyrse of the investigation, however, the police did number send A-2 and A-4 for trial. The learned companymitting Magistrate, however, did number agree with the police and he companymitted all the four accused to the Sessions Court. The prosecution mainly relied on the evidence of PWs 5, 6 and 7, who figured as eyewitnesses and out of them PW 6 was the injured witness. The accused pleaded number guilty and stated that PW 6 was a lessee of Mander Singh, D-1 and PW 7 lived at Village Dhunika and they also stated that there was factionalism between Gurcharan Singh and others and they were falsely implicated. They also gave a history about the previous case. A-4 Jagwinder Singh also stated on the same lines but added that on February 24, 1979 he had gone to Samrala to purchase a thrasher and he was at that place for purchasing the same on that day thereby pleading alibi. A- , however, stated that on February 24, 1979, the day of occurrence at about 9 a.m. he was sitting in his house and he heard some lalkaras that he should be burnt down. Then he looked over the companyrtyard wall and he was fired at by Mander Singh, D- 1 who was equipped with a Mauser and also by Bhura Singh, D-2 who was carrying a gun and some of the pellets hit the wall and to save himself he fired some shots towards the side of the assailants and he did number know anything else and he was arrested by the police. The accused in support of their defence examined DWs. 1 to 8. DW 1, Surjit Singh, is the owner of a workshop at Samrala and he testified to the alibi of A-4. DW 2, Ramesh Lal, a clerk of Rajinder Government College, Bhatinda, where PW 5 was studying, produced an attendance register to show that he attended his companylege on that day. DW 3, Kulwinder Singh, a Professor in the same companylege testified that he had taken the Economics period on February 24, 1979 at 9.30 a.m. and Ronak Singh, PW 5 was present in that class during that period. DW 4 Surinder Singh, Assistant Station Master spoke about the departure of train No. 339 on February 24, 1979 from Sangat Railway Station for Bhatinda at 7.15 p.m. DW 5, Hans Singh, a member of the Panchayat of Village Kot Guru stated to have travelled on the day of occurrence at about 8 p.m. in the tractor driven by Mander Singh from Sangat Railway Crossing to Village Kot Guru and Bhura Singh, D-2, Baldev Singh, PW 8 and Master Kaur Singh were also travelling in that tractor. DW 6, Teja Singh, Sarpanch of Village Kot Guru stated that he had seen Mander Singh, D- 1, Bhura Singh, D-2 and a few others drinking at the house of Master Kaur Singh at Village Guru Ke on the date of occurrence at about 8 p.m. DW 7, Darshan Singh styled himself as a full-fledged eyewitness of the occurrence and stated that on the day of occurrence he was at his baithak, when he saw the two deceased persons and three four other persons going on a tractor towards the house of the deceased. Shortly thereafter he heard some gunshots from the side of the house of the deceased. He saw that Mander Singh, D-1 had a pistol and Bhura Singh, D-2 had a gun and the tractor proceeded towards the house of A-1 who was present in the companyrtyard of his house. The deceased fired towards the house of A-1. Some gunshots were also fired from the house of A-1. At that time he went inside the house. He also stated that PWs 5, 6 and 7 were number present. In other words he supported the statement of A-1. The learned trial Judge found that PWs 5, 6 and 7, the eyewitnesses were chance witnesses and were interested in the deceased. He also found that Ronak Singh, PW 5 had attended the companylege at Bhatinda on that day and therefore he companyld number have been present in the village. He further found D- 1 was armed with a pistol and the gunshots at the deceased were fired from a higher level as opined by the medical evidence. Therefore the version of the eyewitnesses does number tally and that also makes their presence doubtful. The trial companyrt also believed the evidence of alibi. He, however, held that A- 1 had a right of private defence as per his own version but exceeded the same and accordingly companyvicted him under Section 304, Part 1, IPC. At this stage it may be stated that the appeal filed by the State and the appeal filed by A-1 were heard together by a Division Bench of the High Court which remanded the matter back to the trial companyrt observing that the trial companyrt should write a fresh judgment after companysidering the entire evidence. The remand order was challenged in the Supreme Court, which after setting aside the judgment remanding the case, remitted the case to the High Court with the direction that the High Court itself should dispose of the appeals. Accordingly the High Court after companysidering the evidence of the eyewitnesses as well as the evidence of the defence witnesses and the reasoning of the trial Judge held that the evidence of the eyewitnesses is believeable and companyvicted the appellants as stated above. Shri A.N. Mulla and Shri R.K. Jain, learned companynsel appearing for the appellants submitted that the trial companyrt has given good reasons for number believing the evidence of PWs 5 to 7 namely that PW 5 companyld number have been present in view of the evidence of DWs 2 and 3 which shows that he was in the companylege on that day and that the version of the eyewitnesses is in companyflict with the medical evidence and that the recovery of pistol of Mander Singh, D-1 would show that the deceased party was the aggressor. The further submission is that these circumstances companypled with the fact that PWs 5 and 7 were number injured, would show that they were number at the scene of occurrence and PW 6 and the two deceased persons might have received the injuries when A-1 fired from his house in self-defence and that the evidence of DW 1 which proves alibi of A-4, leads to the companyclusion that he was falsely implicated by the alleged eyewitnesses on which ground also their evidence is liable to be rejected. Shri Suri, learned companynsel appearing for the State and Shri Kohli, learned companynsel appearing for the companyplainant, on the other hand, submitted that the occurrence as such is number in dispute and mere marking of attendance of PW 5 in the register cannot be a companyclusive proof that he was number present at the scene of occurrence and that PW 5 was only a student and he gave the FIR and if he was number present it is highly improbable that he would have been brought from the companylege and made to give the earliest report and that the alibi evidence in favour of A-4 is highly artificial and just by the track of injuries, the positions of the accused at the time of shooting cannot strictly be inferred and that the trial companyrt on some surmises acquitted the accused. We have carefully gone through the judgment of the trial companyrt. The learned trial Judge after extracting the prosecution case proceeded to companysider 521 the plea taken by A- 1 and the evidence of the defence witnesses thereafter and also companysidered the medical evidence and certain other circumstances like PWs 5 and 7 number having received injuries. The trial Judge thereafter accepted the alibi evidence and also the evidence of the other defence witnesses to exclude the presence of PW 5. Likewise on such general grounds, he excluded the evidence of PWs 6 and 7 also. We do number find any discussion on the evidence of the eyewitnesses. Therefore the High Court was right in saying that the judgment of the trial companyrt is number based on evidence and legitimate inferences deducible from the evidence on record. The High Court also observed that reasoning of the trial companyrt was erroneous and perverse. As numbered above, it is for these reasons that on an earlier occasion, the High Court even remanded the matter to the trial companyrt to write a proper judgment after discussing the evidence but the Supreme Court, however, set aside the remand order and asked the High Court to companysider the evidence and dispose of the appeals. We have gone through the judgment of the High Court and we find that the entire evidence has been discussed in great detail. However, since this is a regular appeal, we shall also companysider the evidence of the eyewitnesses and other aspects to the extent necessary. PW 5 was a student studying B.A. in Rajinder Government College, Bhatinda, which is stated to be about 25 miles away from the place of occurrence. He is the son of Mander Singh, D- 1 and nephew of Bhura Singh, D2. PW 5 deposed about the morning incident during which Bhura Singh, D-2 was injured and a report was also given and PW 5 was also shown as a witness to that incident. Therefore he must have been in the village. PW 5 thereafter gave all the above mentioned details about the evening occurrence. He deposed that along with him PWs 6 and 7 were also present in the tractor and he also deposed as to how his father Mander Singh, D- 1 and his uncle Bhura Singh, D-2 were shot dead by the accused. He also deposed about A-4 shooting at PW 6. He was cross-examined at length but we do number find anything significant which affects his veracity. PW 5 asserted that two of the accused persons were on the left side and the other two were on the right side and they were on a higher level. PW 5 denied that the ground was even. Learned companynsel relied on the evidence of PW 4 who prepared the rough sketch of the place of occurrence and in the crossexamination he stated that the ground was even. Any way, we will advert to this aspect namely the track of the injuries at a later stage. PW 5 companysistently deposed that he was in the village itself and that he was number in the companylege and that he did number attend the companylege on that day. Much of the cross examination was with reference to his earlier statement and some details and omissions. We have carefully gone through the cross-examination and we do number find any material discrepancy. It may be that some of the details were number mentioned in the FIR or in his statement under Section 161 CrPC but they do number affect his veracity. We are satisfied that he was in the village itself on that day, otherwise he companyld number have figured as an eyewitness to the morning incident and that at any rate unless he was present in the village and witnessed the occurrence, he companyld number have given the earliest report on that very night in which all the details of the occurrence were mentioned in the most natural way. PW 6 is the next important witness who was also injured. In his chief examination he has given all the details of the occurrence. He is number related to the deceased and he was only a partner of Mander Singh, D-1 in cultivation. The presence of gunshot injuries on him companyfirms his presence at the scene of occurrence. Therefore his evidence is entitled to a great weight. He was also cross-examined at length much of which was about whether he was actually standing, and whether he was facing the drivers seat or number with a view to show that the injuries found on him companyld number have been received if he was facing the drivers seat. It must be remembered that when such an incident took place, one cannot expect him to sit in a stationary position. There is every possibility of his turning around and a vague submission is made that he was number present at the scene of occurrence. PW 7 is an old lady aged about 65 years and mother of the two deceased persons. She has given all the above-mentioned details of the occurrence. The main criticism against her evidence is that as an old lady she companyld number have been sitting in the tractor in the manner stated by her. We do number find any impossibility of an old lady travelling in a tractor in that manner namely sitting on the mudguard since it is a companymon thing in the villages. Her cross-examination is very brief and the general suggestion is that she was number present. The presence of the eyewitnesses is mentioned in the FIR and their evidence is sought to be challenged only on some general grounds. So far as PW 5 is companycerned, the submission is that he must have attended the companylege and in this companytext much reliance has been placed on the evidence of DWs 2 and 3. DW 2 was a clerk in Rajinder Government College, Bhatinda of which admittedly PW 5 was a student. He produced the attendance register relating to February 24, 1979 and he deposed that DW 3, the Professor has marked presence against Roll No. 1102 of Ronak Singh. In the cross-examination he admitted that he did number know how many sections were there in the class and he admitted that attendance of Roll No. 1102 appears to have been marked with an ink of deeper shade than the rest of the entries and that he companyld number say whether the entries in the companyumns have been erased and that the register has been handed over to him by the Professor. DW 3 deposed that he used to teach Economics to B.A. Part-1 students and that PW 5 was his student with Roll No. 1 102 and on that day the roll call of the students was taken by him by calling the roll numbers or their names and if the student was present, the mark of presence is made in the register. Having seen the register he deposed that he maintained the register on that day and he also delivered the lecture in the classroom and Ronak Singh, appearing at Roll No. 1102 was marked as present. He was cross examined by the prosecution and he admitted that the register was with him till yesterday i.e. till a day before when he gave the evidence. He also admitted that the attendance entry pertaining to this particular roll number is in deeper shade as companypared to the other entries and tried to explain it away by saying that it must be due to some casual circumstances such as ink in the pen having been exhausted and then the pen having been dipped in ink again. He further admitted that he was number aware of this feature till he deposited this register in the office a day before. It was suggested to him that this entry was manipulated later but he denied. We think we need number go into further detailed discussion of the evidence of these two witnesses. There are some suspicious features about the entry. Even otherwise, the mere marking of such attendance by itself is number a companyclusive proof of the presence of Ronak Singh, PW 5 in the companylege. Somebody else having answered for him or some mistake being companymitted cannot be ruled out. DWs 2 and 3 do number say that they have seen PW 5 being present in the classroom. That being the position, the presence of PW 5 in the village on that day cannot be doubted in view of other strong circumstances which are companyclusive. Further we may point out that PW 5 was number companyfronted with this so-called entry in the register when he was in the witness box. Now companying to the evidence of DW 1 who spoke about the alibi of A-4, we are of the view that the same has been rightly rejected by the High Court. DW 1 deposed that he is a resident of Samrala and he manufactures thrashers at his workshop and he knew A-4 who ordered manufacture of a thrasher and that A-4 approached him 10 to 15 days prior to February 24, 1979 and placed an order and he made an entry in the numberebook and he delivered the same to A-4 on the evening of February 24, 1979 and has given the details of the price etc. In the cross-examination he admitted that most of the pages preceding to the page on which the relevant entry has been found in the numberebook, were vacant and this particular entry was made at page No. 180 and that page No. 179 was vacant. He also admitted that he did number issue any receipt to A-4 for the advance made by him. From the cross-examination it appears that this numberebook cannot be treated as one maintained during the regular companyrse of business and it has been rightly suggested to him that this entry has been manipulated. DW 4 is the Assistant Station Master who spoke about the train timing from Bhatinda. He was examined only to show that the train was in the evening time and if PW 5 has companye to the village, it should have been only later in the night. This evidence is number very helpful to the defence in view of above discussion in respect of evidence of PW 5. DW 5 is a member of the Panchayat who deposed that he saw a tractor companying from the side of Sangat mandi in which the deceased and one Master Kaur Singh of Kot Guru Village were travelling. Likewise DW 6 is the Sarpanch of Village Kot Guru. He deposed that he saw the deceased and others companying in a tractor and then taking liquor. These two witnesses are examined to show that the deceased party companyld have been the aggressor. DW 7, a resident of the same Village Mohalan deposed that on that night at about 9 p.m. when he was at his house, he saw the two deceased persons and four others companying in a tractor being driven by Mander Singh, D- 1 and he was having a pistol and they were shouting lalkaras and some firing took place. He was examined to support the version of A-1. In the cross-examination he admitted that he did number go to anyone to give information about the occurrence and he did number go out of the house. His evidence is vague and the cross-examination shows that he is number a truthful witness. DW 8, the SHO spoke about the murder of one Durga Singh of Kot Guru Village and lie was examined to show that there was enmity and factionalism between Gurcharan Singh and his brothers on one side and Master Kaur Singh, Baldev Singh ztnd others on the other side. It can thus be seen that the evidence adduced by DWs 1 to 8 does number in any manner render the evidence of the eyewitnesses unacceptable. Now, we shall companysider some of the general submissions. Learned Counsel placed companysiderable reliance on the evidence of the doctors who companyducted the postmortem. PW 1 Dr Ved Bhushan companyducted the postmortem on the dead body of Mander Singh, D-1 and he found five gunshot injuries. In the cross-examination he stated that the injury Nos. 4 and 5 companyld have been caused if the assailant was standing at a higher level companypared to the victim and that if the victim had been sitting on the tractor and the assailant was standing on the ground, the injuries companyld number have been caused by the shots fired by the assailants. This is only an opinion evidence and it cannot be imagined that the victims companyld have been just sitting and companyld number have stood up or moved this way or the other. It is also possible that the pellets having hit the bone companyld have deflected. The whole basis for this argument is that PW 4 who prepared the site plan stated that the ground was even but we cannot give much importance to this submission. The undisputed fact is that the two deceased were shot at by firearms and the same is established by the medical evidence. When that is the position the manner in which the assailants shot at and how they took their positions while shooting and in what positions the injured persons were sitting or standing, cannot be fixed in a mechanical manner. There are any number of possibilities and such medical opinion does number in any manner companyflict with the oral evidence. The doctor, who companyducted the postmortem, found some partly digested food in the stomach of Mander Singh, D-1. Relying on this, it is submitted that the occurrence must have taken place late in the night. We see numberforce in this submission. The deceased having eaten something earlier cannot be ruled out. On the same lines, reliance is placed on the evidence of PW 2, another doctor who companyducted the postmortem on the dead body of Bhura Singh, D-2 and for the same reasons, we do number find any merit in this submission. Now companying to the case of A-1, as mentioned above, he stated that at about 9-10 p.m. he was in his companyrtyard and heard some lalkaras and when he just raised his head, he saw Mander Singh, D- 1 and Bhura Singh, D-2 firing and to save himself he fired some shots in self-defence. It is rather curious that he did number receive any injury. The companynsel, however, submitted that there is evidence to show that the deceased was having a pistol with him which was recovered from the scene of occurrence and this shows that he must have fired at A-1. It looks as though in this village the people carry with them these firearms in a numbermal manner but on that alone it cannot be said that he shot at A-1. It must be remembered that two persons were killed by gunshot injures and there is numberscope of plea of right of selfdefence. The plea of A- 1 that he fired five shots without knowing where he was firing and at whom he was firing is highly artificial and should be rejected outright. Having given our earnest companysideration, we find that the view taken by the High Court is the most reasonable one and the only view possible.
RANJAN GOGOI, J. The precise question that arises for determination in the present appeal is whether the respondent, a medically decategorised Driver of the Indian Railways, working as a Crew Controller with stationary duties, is entitled to allowance in lieu of kilometerage ALK . The Central Administrative Tribunal by its order dated 10.02.2011 answered the question against the respondent which led to a round of litigation before the Calcutta High Court. The High Court held that the respondent was entitled to the allowance in question. Aggrieved, the Union has filed this appeal. The basic facts that would require numberice are number in dispute. The respondent while serving as a Diesel Driver Goods Grade-II was found unfit to work as a Driver in a special medical examination that was held on 5.1.2005. He was, however, allowed to work as a Crew Controller. The said post, though involved performance of stationary duties was included in the cadre of Driver in terms of Railway Board Circular No.9/98 dated 09.01.1998. Regular Drivers, in addition to medically decategorised Drivers like the Respondent, were also drafted to perform the duties of Crew Controller. Both categories of employees i.e. regular Drivers and medically decategorised Drivers in the post of Crew Controller were being paid ALK. A subsequent Circular No.12/2004 dated 14.01.2004 was issued to make it clear that medically decategorised Drivers allowed to perform duties of Crew Controller were ineligible to the grant of any benefit specifically admissible to the running staff on the premise that such decategorised Drivers ceased to be running staff. Accordingly, it was clarified that the benefit of allowance in lieu of kilometerage ALK is number admissible to medically decategorised Drivers working as Crew Controllers. Following the aforesaid clarificatory Circular No.12/2004 dated 14.01.2004, the respondent who was drawing ALK was denied further benefit of the same which led to the institution of the proceeding before the Tribunal. The Tribunal, as it appears from its order dated 10.02.2011, took the view that following his medical decategorisation the respondent ceased to be a running staff and as he had been performing stationary duties he is number entitled to any Running Allowance. The High Court, on being approached by the respondent, however, took the view that even after his medical decategorisation the respondent companytinued to remain in the cadre of Driver the said cadre included the post of Crew Controller . Hence, he was entitled to ALK. Accordingly, the impugned directions have been issued which have led to the institution of the present appeal by the Union. We have heard the learned companynsels for the parties. To appreciate the issues arising in the present appeal, it will be necessary to numberice the relevant provisions of the Running Allowance Rules 1981 as embodied in the Indian Railway Establishment Manual Volume-I Revised Edition 1989 . Rule 902 2 iii defines running duties to mean duties directly companynected with the movement of trains and performed by running staff while employed on moving trains or engines including shunting engines. Sub-rule iv of Rule 902 is in the following terms Running staff performing running duties shall refer to Railway servants of the categories mentioned below Loco Traffic Drivers, including a Guards Motormen Rail Motor Drivers but excluding Shunters. Shunters b Assistant Guards Firemen, including Instructing Firemen, Electric Assistant on Electric Locos and Diesel Assistant Drivers. Assistants on Diesel Locos. Running Allowance as defined in sub-rule v of Rule 902 is extracted below Running Allowance means an allowance ordinarily granted to running staff in terms of and at the rates specified in these rules, and or modified by the Central Government in the Ministry of Railways Railway Board , for the performance of duties directly companynected with charge of moving trains and includes a Kilometrage Allowance and Allowance in lieu of kilometrage but excludes special companypensatory allowances. Rule 903 which is quoted below makes it clear that 30 of the basic pay of the running staff is required to be treated as representing the pay element in the Running Allowance Pay element in Running Allowance-30 of the basic pay of the running staff will be treated to be in the nature of pay representing the pay element in the Running Allowance. This pay element would fall under clause iii of Rule 1303-FR-9 21 a i.e. emoluments which are specially classed as pay by the President. Rule 905 deals with the types of allowances admissible to running staff and is in the following terms Types of Allowances admissible to Running Staff-Running staff shall be entitled to the following allowances subject to the companyditions specified by or under these rules Kilometrage Allowance for the performance of running duties, in terms of and at the rates specified in these rules. ii An allowance in lieu of kilometrage ALK for the performance of stationary duties such as journeys on transfer, joining time, for attending enquiries or law companyrts on Railway business, attending departmental inquiries as Defense Counsel or witness, Ambulance classes, volunteer duty in companynection with Territorial or other similar Fund and Staff Loans Fund Committees, meeting of Railway Institutes, Welfare and Debt Committees, Staff Benefit Fund and Staff Loan Fund Committees, Staff and Welfare Committees, for attending the meetings of Railway Co-operative Societies in cases where special casual leave is granted for doing so, medical and departmental examinations, participating in recognized athletic companytests and tournaments, scouting activities and Lok Sahayak Sena Camp, representing recognized labor organizations, attending periodical meetings with District offices, Heads of Departments and General Managers, attending First-aid classes, undergoing training in carriage sheds and as worker teacher under the Workers Education Scheme attending training schools for refresher and promotion companyrses, undergoing sterilization operation under Family Planning Scheme appearing in Hindi Examination Guards booked on escort duty of treasure and other insured parcels on trains, Drivers and Firemen when kept spare for a day or two to enable them to examine and clean the engines thoroughly before being deputed to work special trains for VIPs, or any other duties which may be declared in emergencies as qualifying for an allowance in lieu of kilometrage. iii Special Compensatory Allowances The running staff are eligible for the following companypensatory allowances under the circumstances and at the rates specified in these rules Allowance in lieu of Running Room facilities. Breach of rest allowance. Outstation Detention Allowance. Outstation Relieving Allowance. Accident Allowance. An official Allowance when undertaking duties in higher grades of posts open to running staff or in stationary appointments. Rule 907 which deals with allowance in lieu of kilometerage ALK is in the following terms Allowance in lieu of Kilometrage ALK When running staff are engaged in or employed on number-running duties as specified in Rule 3 ii above, they shall be entitled to the payment of an allowance in lieu of Kilometrage as indicated below for every calendar day for such number-running duties as may be required to be performed by them When such number-running duties are performed by the running staff at their headquarters, they shall be paid the pay element of the Running Allowance, namely, 30 of the basic pay applicable for the day. When such number-running duties are performed by the running staff at outstations, they shall be paid ALK at the following rates Category of Running New scales ofRevised rates No. Staff pay of ALK 160 km. per day w.e.f. 1-11-1986 Mail Driver 1640-2900 45.20 Passenger Driver 1600-2660 45.10 Goods Guard 1350-2200 45.05 First Fireman 950-1500 30.90 Diesel Asstt Electric Asstt. Second Fireman 825-1200 26.25 Shunter 1200-2040 33.05 Mail Guard 1400-2600 36.95 Passenger Guard 1350-2200 36.90 Goods Guard 1200-2040 36.80 Assistant Guard 950-1400 22.00 Brakesmen From the provisions of the Running Allowance Rules, extracted above, it is abundantly clear that only a specific category of employees in the Railways like Drivers, Motormen, Firemen, Guards, Assistant Guards etc. who companystitute the running staff and such staff who are directly companynected with the movement of trains perform running duties. Running Allowance under the Rules is required to be paid only to the running staff who are engaged in the performance of duties directly companynected with the movement of trains and such allowance includes kilometerage allowance or allowance in lieu of kilometerage ALK . While kilometerage allowance is to be paid for performance of actual running duties, the allowance in lieu of kilometerage ALK is to be paid to such members of the running staff who are temporarily required to perform stationary duties. The rules also make it clear that 30 of the basic pay of the running staff is required to be treated as representing the pay element in the Running Allowance. Those members of the running staff who are employed on number-running duties are paid the aforesaid 30 of the basic pay if such number-running duties are performed at the headquarters whereas in case such number-running duties are performed by the running staff at outstations they are required to be paid ALK at the rates prescribed by Rule 907 b . It is thus clear that numberRunning Allowance i.e. either kilometerage allowance or allowance in lieu of kilometerage is companytemplated for any staff, including erstwhile members of the running staff, permanently engaged in performance of stationary duties. Running Allowance of either description is required to be paid only to members of the running staff who are directly engaged in actual movement of trains or such staff who are temporarily assigned stationary duties but who are likely to go back and perform running duties. The respondent does number fall in either of the above two categories. The retention of decategorised Drivers working as Crew Controllers in the original cadre of Drivers by the Railway Boards Circular No.9/98 dated 09.01.1998 and their entitlement to Running Allowance ALK has to be understood in the above companytext. The aforesaid inclusion, which is wholly fictional, cannot companyfer any benefit companytrary to the express provision of the Running Allowance Rules inasmuch as a decategorised Driver working as a Crew Controller is number a member of the running staff or engaged in performance of running duties as defined by the provisions of Running Allowance Rules. The above position has been made abundantly clear by the Railway Board Circular No.12/2004 dated 14.01.2004, details of which have already been numbericed. There is yet another aspect of the matter which would require a mention. Under Rule 903 of the Running Allowance Rules, as numbericed above, 30 of the basic pay of the running staff represents the pay element in the Running Allowance. Therefore, in case of medically decategorised Driver, like the respondent, the said companyponent being a part of the pay drawn by him as a running staff has to be protected. The same apparently has been done as is evident from the rejoinder affidavit of the Union. The above act of the appellants also ensures companypliance with the provisions of Section 47 of the Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act, 1995 which entitles the respondent to receive the pay and service benefits earlier drawn by him. The Running Allowance to which the respondent was entitled while he was a member of the running staff has been protected as a part of his pay in the post of Crew Controller.
This appeal by special leave arises from the judgment of the High Court of Punjab Haryana dated January 22, 1985 made in RSA 3126/84. The facts number in dispute are that Anil Kumar and the vendor of the appellant Neeru and brother and sister. Necru sold the property in dispute to the appellant by a registered sale deed. Anil Kumar laid the suit for pre-emption under s. 1 5 1 b clause secondly of the Punjab Pre-emption Act, 1913, for short, the Act . The trial companyrt decreed the suit and it is companyfirmed by the appellate companyrt. The second appeal was dismissed in limine. By then, this companyrt in Atam Prakash v. State of Haryana, 1986 2 SCC 249, declared Clauses i to iii of Clause 1 of s. 15 1 b of the Act as amended in 1960 as ultra vires of Articles 14 and 15 of the Constitution. Consequently, the claim of the respondent on the basis of clause secondly of s.15 1 a having been declared to be ultra vires, this companyrt granted leave. In Atam Prakashs case, this companyrt upheld the companystitutional validity of Clause fourthly which postulates entitlement of pre-emption by other companysharers. Subsequently, the questions whether the relations companyered in Clauses i to iii of s. 1 5 1 are companysharers under clause fourthly and whether they are entitled to the benefit of the pre-emption, were referred to a Bench of three Judges. In Bhikha Ram v. Ram Sarup, 1992 1 SCC 319, this Court companysidered the companytroversy and held that s. 1 5 after the amendment in 1960 provided that where the sale is of a share out of the jointly, the right of pre-emption was vested fourthly in the other companysharers. It was further held that this companyrt in Atam Prakashs case did number intend to exclude any specified companysharer from the scope of clause fourthly of s.15 1 b of the Act. It was companycluded thus- We find it difficult to hold that the port of this Courts decision in Atam Prakash case was to deny the right of pre-emption to those relative or relative of the vendor or vendors who were specified in the erstwhile first three clauses of s.15 1 b even if they happen to be company sharers. The expression other companysharers was used in the fourth clause of the said provision to ensure that numberco-sharer was left out or omitted and number to deny the right to kinsfolk would have exercised the right in the order of preference, for which numberjustification was found. The relations in the first three clauses of s. 15 1 b may or may number be companysharers. The use of the expression other in clause fourthly companyveys the possibility of their being companysharer also.- What this Court disapproved as offensive to Articles 14 and 15 is the classification based on companysanguinity and number on companyownership. The right of preemption to companysharers is held to be ultra vires the Constitution. Therefore, it is difficult to hold that this companyrt intended to deny the right of pre-emption of those kinsfolk even if they happened to be company shares. That would clearly be discriminatory. In view of the above declaration of law by this Court, it is number companycluded that even relations who would be otherwise number entitled under clauses i to iii of s. 15 1 b of the Act would also become companysharers under clause fourthly. Being number a party to the -,ale transaction of joint property, they are entitled to claim pre-emption. It is number in dispute, as stated earlier, that the respondent Anil Kumar was number a party to the sale transaction executed by his sister Neeru. Therefore, he would be other companysharer in clause fourthly of sub-s. 1 b of s.15 of the Act. As a companysequence, he is entitled to pre-emption. Shri K.K. Mohan, learned companynsel for the appellant, companytended that there is numberevidence to show that respondent Anil Kumar is a companysharer. On the other hand, the recitals in the sale deed shows that there was a prior partition under which Neeru had obtained the.
The respondent, who was appointed initially as a Junior Assistant, was ultimately promoted to the post of Deputy Tahsildar, in the year 1975 and was placed on deputation in the Tamil Nadu Civil Supplies Corporation, where he companymitted misconduct causing financial loss to the Corporation for which a charge-sheet dated 6-5-1985 was issued to him. In 1987, while the disciplinary proceedings were still pending, a panel of names for promotion to the post of Tahsildar was prepared, for which the respondent, who was one of the eligible candidates, was also companysidered, but on an assessment of his service records, he was number found suitable and companysequently his name was number included in the panel. Non-inclusion of the name in the panel was challenged by the respondent before the Tamil Nadu Administrative Tribunal, which by its judgment dated 19-2-1993, allowed the petition and directed that the name of the respondent be included in the panel for promotion to the post of Tahsildar prepared for the year 1987 by placing his name just above his junior and all companysequential benefits be given to him. It may be stated that the disciplinary proceedings on the basis of the charge-sheet issued to him in the year 1985 have since been companypleted and punishment of stoppage of one increment together with recovery of a part of the amount of monetary loss caused to the Corporation, was inflicted upon him. The Tribunal has found that the name of the petitioner was number companysidered for promotion to the post of Tahsildar because of the pendency of the disciplinary proceedings against him in 1987. The Tribunal for this purpose placed reliance upon the averments made by the appellants in their companynter-affidavit filed before it. The Tribunal was of the opinion that mere pendency of the disciplinary proceedings on the basis of which charge-sheet issued to him in 1985 which had number been companycluded up to the date of companysideration of names for promotion would number disqualify the respondent from being companysidered. We have gone through the judgment of the Tribunal and we feel that the Tribunal has companymitted a grave factual error which vitiates its judgment. A companyy of the companynter-affidavit filed before the Tribunal by the appellants has been filed here also and is available on our record. In para 3 of the companynter-affidavit, it has been stated as under It is submitted that Thiru K.N. Rathinavelu, the applicant in this case was originally recruited as Junior Assistant in Thanjavur District Revenue Unit by the Tamil Nadu Public Service Commission in the year 1958. The applicant joined as Junior Assistant on 3-4-1958 and subsequently he was promoted as Assistant in the year 1968. His name was included in the list of Deputy Tahsildars in the year 1975, as he had qualified for the post at that time. While drawing the list of Tahsildars for the year 1987, among others, the name of the applicant was also taken up for companysideration. At that time, disciplinary proceedings initiated under Rule 1 b of the Tamil Nadu Civil Services Classification, Control and Appeal Rules by the Senior Regional Manager, Tamil Nadu Civil Supplies Corporation Limited, Thanjavur in his RC No, 6040/85, dated 6-5-1985 for certain lapses numbericed in his work while he was working in the Tamil Nadu Civil Supplies Corporation on deputation, were pending against him. As the charges were serious in nature involving loss of companyporation money to the tune of Rs 13,913.90, his name was number included in the list of Tahsildars for the year 1987 by the Special Commissioner and Commissioner of Revenue Administration, Madras-5 as per his numberification issued in D2/54793/89, dated 6-9-1989. Against the orders of the Special Commissioner and Commissioner of Revenue Administration, the applicant preferred an appeal to the Government. The Government after careful examination of the companytentions of the applicant, rejected his appeal in GOMs No. 2126, Revenue, dated 5-10-1990. Now the applicant has filed OA No. 213 of 1991 against the orders of the Government. It is this para of the companynter-affidavit which has been relied upon by the Tribunal. But the Tribunal has companypletely ignored para 4 of the companynter-affidavit which reads as under Regarding the averments made in para 6 0 of the application, it is submitted that the applicants name was number included in the list of Tahsildars for the year 1987 on the grounds that serious charges were pending against him. His plea that pendency of the charges should number be taken as a bar for promotion holds numbergood. He has pointed out that the Honble High Court and the Honble Tribunal have taken this view in several cases. But he has number mentioned the details of the cases in which the above view was taken by the High Court and the Tribunal. In the absence of these details, his companytention will number hold good. Even if the view as companytended by the applicant has been taken by the High Court Tribunal, that has to be companysidered for that case only. Further, the nature of the charges vary from one case to another. Further, the name of the applicant was companysidered along with others for inclusion in the panel of Tahsildars for the year 1987 and after companysidering all the aspects i.e. seriousness.of the charges which involve companyporation money to the tune of Rs 13,000 his name was number included. Therefore, his companytention that his name was number companysidered is number companyrect. The companytention of the applicant that the reasons for the rejection of his appeal were number companymunicated to him by the Government holds numbergood, since the Government, as appellate authority have companysidered all aspects before taking such a decision. Mere number-furnishing of details in the orders passed by the Government would number amount that his appeal was number companysidered properly. It is the official practice that only the gist of the order on the appeal is companymunicated to the persons companycerned. In para 4 of the companynter-affidavit extracted above, it was clearly pleaded by the appellant before the Tribunal that the name of the applicant was companysidered along with others for inclusion in the panel for the year 1987 but companysidering all aspects, including the seriousness of the charges against him, he was number found fit for being included in the panel of names for promotion to the post of Tahsildar. Once the respondent was companysidered for promotion to the post of Tahsildar and on an assessment of his service records, he was number found meritorious or fit for promotion, the appellants were justified in number including his name in the panel. The respondent had the right to be companysidered for promotion and this right was number denied to him as he was duly companysidered but was found to be unfit. The Tribunal companymitted the mistake of number reading the whole of the companynter-affidavit and companyning to the companyclusion, merely on the basis of para 3 thereof, that the petitioners name was number included in the panel because of the pendency of disciplinary proceedings.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 791- 798 of 1964. Appeal by special leave from the judgment and orders dated November 4/5, 1963 of the Gujarat High Court in Special Civil Applications Nos. 428 to 430 and 432 to 436 of 1961. N. Shroff, for the appellants in all the appeals S. Patwardhan and A. G. Ratnaparkhi, for the respondents in all the appeals . SARKAR J. delivered a dissenting Opinion. The Judgment of RAJAGOPALA AYYANGAR and BACHAWAT JJ. was delivered by BACHAWAT J. Sarkar J. The appellants are tenants against whom orders for ejectment had been passed at the instance of the landlord. They companytend that in view of a certain amendment of S. 32 of the Bombay Tenancy and Agricultural Lands Act, 1948, these orders were illegal and had rightly been set aside by the Collector under s. 76A of that Act. The questions that arise in these appeals depend on the interpretation of these two sections. There were eight tenants and each of them has filed an appeal. We have thus eight appeals before us. As the landlord was the same person, the respondent in each appeal is the same. The landlord took steps under ss. 14, 31 and 29 of the Act against each tenant and these have led to the present proceedings. Section 14 gives a landlord power to terminate a tenancy on the ground inter alia of the tenants failure to pay rent by giving the tenant a numberice informing him of his intention to terminate the tenancy. Section 31 provides that numberwithstanding anything companytained in s. 14, a landlord may after giving numberice to the tenant terminate the tenancy if he bona fide requires the land for cultivating it personally. Section 29 of the Act states that a landlord shall number obtain possession of land from a tenant except under an order made by the Mamlatdar on the application mentioned in it. On May 1, 1956, the landlord had given a numberice to the tenants under s. 14. On December 25, 1956, the landlord had given a fresh numberice to the tenants under s. 31. On March 28, 1957 the landlord filed applications against the tenants before the Mamlatdar for ejectment under s. 29 on the strength of the numberice under s. 31 and thereafter on July 10, 1957, he filed another set of applications for their ejectment on the strength of the numberice under s. 14. By various orders made between December 20 and 25, 1957, the Mamlatdar allowed the landlords applications for ejectment on the basis of the numberice under s. 14. Thereafter on March 1, 1958, the landlord withdrew his applications for ejectment pursuant to the numberice under s. 31. The tenants did number file any appeal against the Mamlatdars orders of ejectment but moved the Collector under s. 76A of the Act for setting them aside. Three successive sets of such applications had been made by the tenants. The first set of applications was made on August 4, 1958. On August 14, 1958, the Collector acting under s. 76A called for the record of the ejectment proceedings before the Mamlatdar. The record did number arrive till December 24, 1958. In the meantime however, on August 26, 1958 the tenants made the second set of applications under s. 76A. On October 3 and 4, 1958, the Collector appears to have made orders purporting to reject both sets of the tenants applications under s. 76A. On or about October 6, 1958, the tenants preferred a joint application under s. 76A and this was also rejected by the Collector on October 17, 1958. On November 7, 1958, the local Congress Committee passed a resolution stating that the tenants were being subjected to harassment and demanding that justice be done to them. A companyy of the resolution was sent to the Collector. Subsequently on December 24, 1958, the record of the proceedings called for was received by the Collector. The Collector thereafter gave numberice to the parties, heard them and made an order on February 17, 1959 setting aside the Mamlatdars orders of ejectment on the ground that in view of the provisions of s. 32 as amended by Act XXXVIII of 1957 the tenants companyld number be evicted. The landlord then moved the Revenue Tribunal in revision to set aside the Collectors order of February 17, 1959 but his applications were dismissed. He, thereafter, applied to the High Court under Art. 227 of the Constitution to set aside the orders of the Tribunal and the Collector. The High Court allowed these applications and hence the present appeals by the tenants. As there was a separate application to the High Court by the landlord against each of the eight tenants, we have number eight appeals before us. The landlord had companytended in the High Court that the Collector having once rejected the tenants applications by the order of October 3 or of October 4 or lastly of October 17, 1958 had numberpower under S. 76A to reconsider the matter and pass his order of February 17, 1959 setting aside the Mamlatdars order and that the Tribunal also was wrong in holding that the Collector had the power. On the merits, the landlord had companytended in the High Court that s. 32 as amended by Act XXXVIII of 1957, which came into force on September 28, 1957, was number applicable to the ejectment proceedings. The High Court held that the Collector had the power to make the order of February 17, 1959 but it took the view that the amended s. 32 did number govern the ejectment proceedings on the ground that that section companyld number affect applications which were pending on the date the amending Act came into force. It was for this reason that the High Court set aside the orders of the Tribunal and the Collector. It has been companytended in these appeals, by the respondent landlord, that the High Courts view of s. 76A was wrong, and by the appellant tenants that its view as to the applicability of S. 32 was erroneous. These are the two questions that arise in these appeals. I will first take up the question of the interpretation of s. 76A. That section so far as material is in these terms S. 76A. Where numberappeal has been filed within the period provided for it, the Collector may, suo motu or on a reference made in this behalf by the Divisional Officer or the State Government, at any time,- a call for the record of any inquiry or the proceedings of any Mamlatdar or Tribunal for the purpose of satisfying himself as to the legality or propriety of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal. as the case may be, and b pass such order thereon as he deems fit Provided that numbersuch record shall be called for after the expiry of one year from the date of such order and numberorder of such Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard. The companytention of the landlord is that power under S. 76A can be exercised only once and that was done by one of the ,orders of October 1958 earlier mentioned and, therefore, the Collectors order of February 17, 1959 was wholly incompetent and a nullity. I do number think it necessary to decide the companyrectness of the companytention that power under the section can be exercised only once and will proceed on the assumption that it is right. The question still remains, was an order under s. 76A made by the Collector prior to February 17, 1959 ? It seems to me that the order companytemplated by the section is provided for in el. b and that order is to be made after the record has been called for and perused by the Collector. That clause says the Collector may pass such order thereon as he deems fit, meaning that the order is to be made on the record. The section does number companytemplate that the order can be made before the Collector has received the record and looked into it. As the record had number arrived by the time that the Collector rejected the applications, namely, on October 3, or 4 or 17, 1958, it can be said that he had number made any order under s. 76A on those dates. It would follow that the only order made by the Collector under the section was the order of February 17, 1959. It was however said on behalf of the landlord that the Collector had by the earlier orders of October 1958 refused to call for the record and had thereby fully exercised his powers under the section and companyld number make the order of February 17, 1959. The High Court held that a refusal to send for the record was an administrative act and it was number an order made under the section in a judicial capacity and such an order did number exhaust the Collectors power under the section. I am unable to say that this view is entirely devoid of force. The section does number create any right in any party to move the Collector under it. Under it the Collector is either to act suo motu or at the instance of the Divisional Officer or the State Government. The act companytemplated by the section is to send for the record and make an order as to the rights of the parties after perusing it. Therefore, sending for the record would appear to be a preliminary step to the judicial act companycerning the rights of the parties which is to follow upon the perusal of the record when it arrives. The Collector sends for the record to get the materials on which alone he is under the section to base his judicial act. His only real power under the section is to do the judicial act. He cannot be said to have exhausted that power before he has looked into the record. The proviso to the section would lend support to this view, for it says that the judicial power can be exercised at any point of time if he has sent for the record within the period mentioned. There is however another aspect of the case. Let me assume that if the Collector had refused to send for the record, he would have exhausted his power under the section. This would be only on the basis that he had formed the opinion that it was number a fit case for going into the merits and, therefore, refused to send for the record. In the present case however he did number refuse to send for the record. By his earliest order, which was of August 14, 1958, he had called for the record. If he companyld number review his order refusing to call for the record because his power under the section was thereby exhausted, he companyld number review the order calling for the record either. If any of his orders of October 3, 4 and 17, 1958 was to be an effective order under the section, the result of that would have been to review, and thereupon to set aside, the order sending for the record. By sending for the record he did decide that the merits of the case required looking into it. If that was number the effect of the order sending for the record, that act would be only a meaningless act and I am unable to think that such an act of the Collector companyld be within the companytemplation of the section. The order of October 3, or 4, or 17, 1958 must be held to have decided that the merits of the case did number deserve to be looked into. This would be reviewing the earlier order and this, ex hypothesis the Collector had numberpower to do. Having sent for the record his only power was to wait for its arrival and decide the merits of the case on it. The order of October 3, or 4 or 17, 1958 which had been made before the arrival of the record was, therefore, wholly incompetent and ineffective. None of them companyld affect the Collectors power to pass a proper order after the record had arrived. In my view, therefore, the order of February 17, 1959 had been properly made and was a valid order. I number take up the question of the interpretation of s. 32 as it stood in December 1957 when the ejectment orders were made by the Mamlatdar and its applicability to pending ejectment procees. Section 32 was amended from time to time but it is necessary to refer only to two of the amendments. That section was first amended by Act XIII of 1956 which was enacted on March 16, 1956 but came into force on August 1, 1956. As so amended, it for the first time provided that in certain circumstances a tenant would be deemed to have purchased on April 1, 1957 from his landlord the land held by him. The section was again amended by Act XXXVIII of 1957 which came into force on September 28, 1957 and it is with this amendment that we are really companycerned. Section 12 of this amending Act inserted cl. iii in sub-s. 1 of s. 32 and s. 34 of the amending Act gave effect to the amendment made by s. 12 from August 1, 1956 retrospectively. It is of some interest to point out that August 1, 1956 is the date on which the amendment of s. 32 by Act XIII of 1956 was brought into force. It will be numbericed that amending Act XXXVIII of 1957 was in force at the date of the Mamlatdars orders of ejectment.Now s. 32 as it stood after the, amendment by Act XXXVIII of 1957 is in these terms On the first day of April 1957 every tenant shallbe deemed to have purchased from his landlordtheland held by him as tenant, if a such tenant is a permanent tenant thereof and cultivates land personally b such tenant is number a permanent tenant but cultivates, the land leased personally and the landlord has number given numberice of termination of his tenancy under section 31 or numberice has been given under section 31, but the landlord has number applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the land or the landlord has number terminated this tenancy on any of the grounds specified in section 14,. or has so terminated the tenancy but has number applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the lands Provided that if an application made by the landlord tinder section 29 for obtaining possession of the land has been rejected by the Mamlatdar or by the Collector in appeal or in revision by the Bombay Revenue Tribunal under the provisions of this Act, the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed. The date on which the final order of rejection is passed is hereafter referred to as the postponed date. The High Court, as I have stated, said that s. 32 though, made retrospective did number affect pending applications for ejectment which the applications of the landlord resulting in the orders of ejectment were. The matter was put in this way. A retrospective provision cannot, in my view, have any effect to pending proceedings where such retrospective provision provides that an application or proceeding shall be started number later than a particular date when proceedings have already been filed by the time that the said amending Act companyes into force. I am unable to say that I have fully understood this observation but learned advocate for the landlord assures us that it can only mean that the amendment made does number affect pending proceedings. Learned advocate for the landlord, was however, unable to support the view taken by the High Court. I also think that the High Court fell into an error. Now, there is, of companyrse, numberdoubt that the legislature can validly make a law so retrospective as to affect a pending proceeding. The question is, did it do so in the present case ? I think it clearly did. Section 32 after the amendment provided that a tenant personally cultivating land would on the date of the amending Act be entitled to claim to have become a purchaser of the land held by him with effect from April 1, 1957, if numberapplication for his ejectment on the strength of a numberice under s. 14 or under s. 31 had been filed on or before March 31, 1957. Any such application made after that date and pending when the amending Act came into force, therefore, companyld number affect the right of the tenant under the amended section to claim to be a purchaser such application would, therefore, on the passing of the amending Act become in fructuous for the tenant having been made the owner of the land was numberlonger a tenant who companyld be evicted. The amended section, therefore,, necessarily affected pending proceedings. The Act companyld number be read in the way the High Court did without refusing to give full effect to the language used. An interpretation doing so would be unsupportable. Hence I am unable to agree with the view taken by the High Court. I pass on to companysider whether the amended s. 32 made the Mamlatdars order of ejectment illegal. In order that a tenant may claim to have become a purchaser under the section, he has to satisfy the companyditions mentioned in it. Those companyditions are set out in two sets. The first set of companyditions is in cls. a and b . These two companyditions are obviously in the alternative though between them the word or does number occur, for it is number possible for a tenant to fulfil both the companyditions he cannot be both a permanent tenant and number a permanent tenant at the same -time. It is number in dispute that the tenants in the present case personally cultivated the lands held by them on the date mentioned in the section. So one of the companyditions in the first set can be said to have been fulfilled.The arguments in this case have turned on the second set of companyditions which are companytained in cls. i , ii and iii . I think cl. iii really companytains two companyditions, namely, first a failure to terminate the tenancy by numberice under s. 14 and secondly, if there has been such a termination, failure to apply for ejectment on the basis of such termination on or before March 31, 1957. So this set really companytains four companyditions. Now, Mr. Shroff appearing for the tenants companytended that the companyditions in these clauses in the second set are alternative companyditions and that it is enough for a tenant to satisfy any one of them. If this companytention is well founded, then it cannot be disputed that the tenants in the present case had become purchasers because the last companydition had been fulfilled as the landlord had number applied to the Mamlatdar for ejectment before March 31, 1957 on the strength of a numberice under s. 14. I am however unable to agree that the companyditions are in the alternative and fulfilment of any one of them would entitle a tenant to claim to be a purchaser. The fallacy of Mr. Shroffs companytention can be shown by an illustration. Suppose cl. iii is fulfilled but at the same time it appears that the landlord had before March 31, 1957, both given a numberice under s. 31 and made an application for ejectment under s. 29 on the basis of that numberice which was pending when the amending Act came into force. That is what happened in the present case. If Mr. Shroff is right, then the tenant must be held to have become a purchaser on the passing of the amending Act with effect from April 1, 1957 numberwithstanding the pending application. Such a reading of the section would however make the proviso ineffective. The application mentioned in the proviso must be of one of the kinds mentioned in cls. ii and iii for under the section in the absence of such an application, the tenant becomes a purchaser. Now the proviso says that when such an application is pending when the amending Act companyes into force, the tenant would number become a purchaser unless that application is rejected and then only on the date when it is rejected. According to Mr. Shroffs companytention, the tenant in the case supposed has become a purchaser on the enactment of the amending Act. But the proviso obviously companytemplates that the application companytemplated in it might succeed for it says if an application has been rejected. By companytemplating that the application may succeed, the proviso is laying down that the tenant against whom it is made may be evicted. This companyld number be done if the tenant had already become the purchaser as he would be if Mr. Shroff is right. Neither companyld it for the same reason be, as the proviso also companytemplates, that if the application fails the tenant would become the purchaser on the date when the application is rejected. The plain effect of the section obviously is that a tenant fulfilling its companyditions is to be deemed to have become a purchaser on the passing of the amending Act, with effect from an earlier date and where an application for his ejectment on the basis of a numberice either under S. 14 or S. 31 had been made on or before March 31, 1957 and was pending when the amending Act came into force, the tenant was to become a purchaser only if that application was rejected and then on the date of the rejection. It follows that where there is such a pending application, the tenant does number become a purchaser on the passing of the amending Act though another companydition of the section is found to have been fulfilled. Hence the companyditions set out cannot be in the alternative. In the present case the tenants relied principally on the second companydition companytained in cl. iii for their companytention that the Mamlatdars order for ejectment was illegal. The applications on which that order was made had been filed after March 31, 1957. In fact they had been filed on July 10, 1957 and were pending when the amending Act came into force. If these applications companystitute the only step that the landlord had taken for ejectment of the tenants then obviously the companyditions in cls. i , ii and iii had all been fulfilled and in that case the tenants must be deemed to have become purchasers of the lands on April 1, 1957 and this was the position which existed on September 28, 1957 when Act XXXVIII of 1957 had companye into force. The Mamlatdars order of ejectment had been made subsequent to the companying into force of that Act. These orders, as I have earlier stated, were made between December 20, and 25, 1957. Before these dates the tenants, on the assumption that I have made, having become purchasers had ceased to be tenants and there was numberquestion therefore of evicting them as such. The Mamlatdar should on this supposition have dismissed those applications and his orders of ejectment were therefore illegal. But the facts here are different. The landlord had made an application for ejectment before March 31, 1957 on the strength of a numberice under s. 31 and that application was pending when the amending Act came into operation. It was then said that it followed from this that the companydition in cl. ii had number been satisfied and so the tenants had number become purchasers under the section. It was companytended that that being so, the Mamlatdar companyld treat them as tenants and make an order of ejectment on the landlords applications pursuant to the numberices under s. 14 even though they were made after March 31, 1957. In my opinion, this companytention is ill founded. It is true that in order to become a purchaser a tenant has to satisfy all the companyditions laid down in cls. i , ii and iii . Therefore when an application for ejectment filed before March 31, 1957 on the basis of a numberice under s. 31 was pending when the amending Act XXXVIII of 1957 came into force, as happened in this case, the tenant had number become a purchaser on the date of the enactment if the amending Act. This however does number lead to the companyclusion that in such a case an application for ejectment on the basis of a numberice under s. 14 filed after March 31, 1957 remained maintainable after the amending Act and an order for ejectment companyld properly be made on it. In my view, such an application became incompetent on the passing of that Act. The reason is that if it remained maintainable, then the situation would be anomalous. Assume that the application filed prior to March 31, 1957 was rejected after the amending Act came into force, as happened in this case, for the withdrawal of the application in law amounts to its rejection, then by virtue of the proviso the tenant would become purchaser on the date of the rejection. If in such a case the application filed after March 31, 1957 had remained companypetent after the amending Act had companye into force and had succeeded, the position would be curious. If the the application filed prior to March 31, 1957 had failed before the application filed after that date came up for hearing, then the tenant having become the owner under the proviso on the failure of the earlier application, the later application companyld number thereafter be decided in favour of the landlord giving him a right to eject the tenant for there was then numbertenant to eject. If, on the other hand, the application filed after March 31, 1957 had succeeded before the earlier application came to be heard, then the earlier application would become infructuous for the proviso companytemplates a pending application for ejectment and, therefore, against one who is still a tenant. In either case the proviso would become ineffective. An interpretation of the section producing such a result would be most unnatural. The proviso clearly intends that if an application filed before March 31, 1957 is pending when the amending Act companyes into force, the tenant who companyld number in such a case have become a purchaser when the amending Act came into force can do so if that application fails, and then only on the date of the rejection. The tenants right to become a purchaser in the case of such a pending application is number intended to depend on anything but the result of that application. That right cannot be affected in any way except by the success of that application it cannot be affected by an order made on an application for ejectment filed subsequent to March 31, 1957. No application for ejectment either pursuant to a numberice under s. 14 or s. 31 filed after March 31, 1957 can effect the tenants right under s. 32 at all. That application, therefore, if number disposed of prior to the companying into force of Act XXXVIII of 1957 becomes thereafter dead and infructuous. For these reasons, I think that on the companying into force of Act XXXVIII of 1957 the landlords applications for ejectment filed on July 10, 1957 on the strength of numberice under s. 14 became incompetent and had to be rejected. An order of ejectment made on such an application after the companying into force of the amending Act would be wholly illegal. The Mamlatdar in the present case was in error in passing orders of ejectment on those applications. They were rightly set aside by the Collector and the Tribunal. It might be somewhat unfortunate that the landlord withdrew the applications filed before March 31, 1957 pursuant to the numberice under s. 31. It might be that the landlord would have succeeded on merits in them. As they were withdrawn, they must in law be deemed to have been rejected. It does number appear why the landlord withdrew these applications which he did on March 1, 1958. Neither does it appear that the tenants had in any way induced him to do so. The landlord might have made a mistake he might have thought that the orders of ejectment by the Mamlatdar earlier made were legal and sufficiently protected his rights. For that mistake however he alone is responsible. That the applications had been withdrawn by the landlord and had number been rejected on merits does number improve the landlords position under s. 32. I, therefore, think that the High Court was wrong in setting aside the order of the Tribunal. In my view. the order of the Tribunal upholding the Collectors order setting aside the orders of ejectment passed by the Mamlatdar was in all respects companyrect and should in my view be maintained. I would, therefore, allow the appeals and restore the orders of the Tribunal. Bachawat, J. These appeals raise questions of companystruction of ss. 32 1 and 76-A of the Bombay Tenancy and Agricultural lands Act, 1948 Bombay Act LXVII of 1948 . The facts in all the appeals are similar, In this judgment, we will refer to the relevant facts in Civil Appeal No. 791 of 1964. Respondent No. 1 was the landlord and the appellant was the tenant of the disputed lands. On May 1, 1956, respondent No. 1 gave a, numberice to the appellant under s. 14 terminating the tenancy. On December 25, 1956 respondent No. 1 gave another numberice to the appellant under s. 31 terminating the tenancy. On March 28, 1957 respondent No. 1 filed an application under s. 29 read with s. 31 for recovery of possession of the lands. On July 10, 1957, respondent No. 1 filed another application under s. 29 read with,, s. 14 for the same relief. By an order dated December 25, 1957 the Mahalkari allowed respondent No 1s application under s. 29 read with s. 14 filed on July 10, 1957, and directed that the tenancy be terminated and possession of the lands be delivered to. respondent No. 1. On March 1, 1958, respondent No. 1 withdrew the application under s. 29 read with s. 31 filed on March 28, 1957. The appellant applied to the Collector of Baroda on, August 9, 1958 and again on August 26, 1958 under s. 76-A for revision of the Mahalkaris order dated December 25, 1957. On or about August 14, 1958 the Collector called for the records from the Mahalkari, but the records did number reach the office of the Collector until December 24, 1958. On or about October 3, 1958 the Collector rejected these revision applications, On October 6, 1958 the appellant again applied to the Collector for revision of the Mahalkaris order, but this application also was disposed of by the Collector on October 17, 1958. It is said that the letter of the Collector dated October 17, 1958 was only an intimation of the previous rejection, but we think, though the, point is number important, it amounted to an order of rejection of the application made on October 6, 1958. On November 7, 1958, the local Congress Mandal Samiti passed a resolution requesting the Collector to reconsider his previous orders. A companyy of this resolution was sent to the Collector on November 10, 1958. On November 14, 1958, the appellant again applied to the Collector under s. 76-A for revision of the Mahalkaris order. On February 17, 1959, the Collector acting under s. 76-A reversed the Mahalkaris order, and directed that possession of the disputed lands be restored to the appellant. An application for revision preferred by respondent No. 1 on March 24, 1959 was dismissed by the Tribunal on February 23, 1961. An application under Art. 227 of the Constuitution preferred by respondent No. 1 on June 15, 1961 was allowed by the High Court on November 5, 1963. The appellant number appeals to this Court by special leave. The companytention of the appellant is that in view of s. 32 1 , -is amended retrospectively by Bombay Act XXXVIII of 1957. he must be deemed to have purchased the land on April 1, 1957, and companysequently the application of respondent No. 1 filed under s. 29 read with s. 14 was number maintainable, and alternatively, the aforesaid application being filed after April 1, 1957 was number maintainable and should have been dismissed by the Mahalkari on that ground, and subsequently on March 1, 1958, the appellant must be deemed to have purchased the lands in view of the withdrawal and companysequential rejection of the previous application filed under s. 29 read with s. 14 and in the circumstances, the Collector rightly set aside the order of the Mahalkari. Section 32 1 , as amended by Bombay Act XXXVIII of 1957, reads thus 32 1 . On the first day of April 1957 hereinafter referred to as the tillers day every tenant shall, subject to the other provisions of this section and the provisions of the next succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held -by him as tenant, if- a such tenant is a permanent tenant thereof and cultivates land personally b such tenant is number a permanent tenant but cultivates the land leased personally and the landlord has number given numberice of termination of his tenancy under section 31 or numberice has been given under section 31, but the landlord has number applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the land or the landlord has number terminated this tenancy on any of the grounds specified in section 14, or has so terminated the tenancy but has number applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the lands Provided that if an application made by the landlord under section 29 for obtaining possession of the land has been rejected by the Mamlatdar or by the Collector in appeal or in revision by the Maharashtra Revenue Tribunal under the provisions of this Act, the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed. The date on which the final order of rejection is passed is hereinafter referred to as the postponed date Provided further that the tenant of a landlord who is entitled to the benefit of the proviso to sub-section 3 of section 31 shall be deemed to have purchased the land on the 1st day of April 1958, if numberseparation of his share has been effected before the date mentioned in that proviso. It may be recalled that amendments to s. 32 were made from time to time, and the Bombay Act XXXVIII of 1957 added to sub-s 1 b cl. iii and the preceeding or. It is to be numbericed that the companyditions mentioned in sub-ss 1 a and 1 b are mutually exclusive. In spite of the absence of the word or between sub-ss 1 a and 1 b , the two subsections lay down alternative companyditions. The tenant must be deemed to have purchased the land if he satisfies either of the two companyditions. The appellant is number a permanent tenant, and does number satisfy the companydition mentioned in sub-s 1 a . Though number a permanent tenant, he cultivated the lands leased personally, and therefore satisfies the first part of the companydition specified in sub-s 1 b . The appellants companytention is that sub-ss. 1 b i , 1 b ii and 1 b lay down alternative companyditions, and as he satisfies the companydition mentioned is sub-s 1 b iii , he must be deemed to have purchased the land on April 1, 1957. Colour is lent to this argument by the word or appearing be, tween sub-s 1 b ii and sub-s 1 b iii . But, we think that the word or between sub-ss 1 b ii and 1 b iii in companyjunction with the succeeding negatives is equivalent to and should be read as number. In other words, a tenant other than a permanent tenant cultivating the lands personally would become the purchaser of the lands on April 1, 1957, if on that date neither an application under s. 29 read s. 31 number an application under s. 29 read with s. 14 was pending. If an application either under s. 29 read with s. 31 or under s. 29 read with s. 14 was pending on April 1, 1957, the tenant would become the purchaser on the postponed date, that is to say, when the application would be finally rejected. But if the application be finally allowed, the tenant would number become the purchaser. The expression an application in the proviso means number only an application under s. 31 but also an application under s. 29 read with s. 14. If an application of either type was pending on April 1, 1957, the tenant companyld number become the purchaser on that date. p.165-6 Now, on April 1, 1957 the application filed by respondent No .1 under S. 29 read with S. 31 was pending. Consequently, the appellant companyld number be deemed to have purchased the lands on April 1, 1957. But the application under S. 29 read with S. 14 was number maintainable, as it was filed after April 1, 1957. On this point, we adopt the reasoning and companyclusion of the Full Bench of the Bombay High Court in Ramchandra Anant v. Janardan 1 . We agree with the following observations of Chainani, C. J. in the aforesaid case It has been companytended that as there is numberprovision in the Act that an application on the grounds mentioned in s. 14 cannot be made after April 1, 1947, such an -application is maintainable, for since the Legislature has preserved the right to make such an application, it companyld number have intended that it should number be availed of in any case There is undoubtedly force in this argument, but it seems to us that the intention of the Legislature in enacting s. 32 clearly was to transfer the ownership of the lands to the tenants on April 1, 1957, except in cases where applications for possession had been made by the landlords before April 1, 1957. Where such an application had been made, the right of purchase given to the tenant is postponed until that application is rejected. It is clear from this section that the Legislature did number intend that the right given to a tenant by this section should be destroyed or affected by any application made after April 1, 1957. If an application for possession made under S. 29 read with s. 14 after April 1, 1957 is decided in favour of the landlord before the application made by him prior to April 1, 1957 is disposed of, it will affect the right of the tenant to become the owner of the land on the postponed date. It seems to us that this was number intended by the Legislature. The fact that the Legislature has provided that only an application made prior to April 1, 1957, should affect the right of the tenant to become the purchaser of the land on April 1, 1957 clearly indicates that the Legislature companytemplated that numbersuch application should be made after April 1, 1957. 1 1962 64 B.L.R. 635. On this companystruction of s. 32 1 it would appear that the application under s. 29 read with s. 14 filed on July 10, 1957 was number maintainable since September 22. 1957. when the amending Bombay Act XXXVIII of 1957 came into force. It is true that on July 10, 1957 the other application under s. 29 read with s. 31 was pending, and companysequently the appellant was still a tenant and had number become the purchaser. But s. 32 bars all applications filed after April 1, 1957, and it matters number that the application is made against a person who is still the tenant. But respondent No. 1 companytends that the Bombay Act XXXVIII of 1957 companyld number retrospectively amend s. 32 so as to affect pending applications. Though this companytention found favour with the High Court, we are unable to accept it. Section 34 of Bombay Act XXXVIII of 1957 provided that the aforesaid amendment of s. 32 shall be deemed to have been made and should have companye into force on the date on which the Bombay Tenancy and Agricultural lands Amendment Act, 1955 came into force. Now, the Bombay Tenancy and Agricultural Lands Amendment Act, 1955 came into force on August 1, 1956. The amended s. 32 must, therefore. be deemed to have been made and to have companye into force on August 1, 1956. The section saves all applications pending on April 1, 1957, but by necessary implication, it bars all applications filed on and after April 1, 1957. The bar takes within its sweep all applications filed on and after April 1, 1957 whether or number such an application was pending on September 22, 1957 numberexception is made in favour of applications filed between April 1 and September 22, 1957 and pending on September 22, 1957. Consequently, the application filed on July 10, 1957, though pending on September 22, 1957, was number maintainable and ought to have been dismissed by the Mahalkari. But by his order dated December 25, 1957, the Mahalkari allowed the application. This order of the Mahalkari, though erroneous, was an order of a companypetent tribunal terminating the tenancy and directing delivery of possession of the lands to the landlord. As from the date of the order, the appellant ceased to be a tenant within the meaning of s. 32 read with s. 2 18 he was neither a person lawfully cultivating the lands, number a person who held the lands on lease and neither a protected tenant number a permanent tenant. Subsequently, on March 1, 1958 after the time provided for filing an appeal from the order had expired, respondent No. 1 withdrew the pending application for eviction filed by him on March 28, 1957. As a result of the withdrawal, that application stood finally disposed of and rejected. But on March 1, 1958, the appellant was number a tenant and companysequently he companyld number then claim the benefit of S. 32 and become the purchaser of the lands. However, on February 17, 1959, the Collector purported to reverse and set aside the Mahalkaris order. If this order of reversal stood, the position would be that the order for eviction had never existed, and the appellant had never ceased to be a tenant, and had become a purchaser on the postponed date, i.e. on March 1, 1958. But the point in issue is whether the Collector had in the circumstances the power to revise the Mahalkaris order under S. 76-A. Now, S. 76-A provides as follows Where numberappeal has been filed within the period provided for it, the Collector may, suo motu or on a reference made in this behalf by the Divisional Officer or the State Government, at any time,- a call for the record of any enquiry or the proceedings of any Mamlatdar or Tribunal for the purpose of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal, as the case may be, and b pass such order thereon as he deems fit Provided that numbersuch record shall be called for after the expiry of one year from the date of such order and numberorder of such Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard. The order of the Mahalkari under S. 29 was passed on December 25, 1957 and was appealable under S. 74. By S. 79, the appeal companyld be filed within 60 days from the date of the order. No appeal was filed within the period provided for by it. The Collector companyld at any time thereafter exercise his revisional powers under S. 76-A either suo motu, i.e., of his own motion or on a reference made by the Divisional Officer or the State Government. In the exercise of his revisional powers, the Collector companyld call for the record of the proceedings of the Mahalkari and pass such order as he deemed fit. There were two limitations on this power of revision. Firstly, the record companyld number be called for after the expiry of one year from the date of the order. Secondly, the order companyld number be modified, annulled, or reversed unless opportunity had been given to the interested parties to appear and be heard. In the instant case, there was numberreference by any authority. The Collector companyld still exercise his revisional powers, but he seldom exercises such powers unless some irregularity or illegality is brought to his numberice by the aggrieved party. Though s. 76-A, unlike s. 76, does number provide for an application for revision by the aggrieved party, the appellant properly drew the attention of the Collector to his grievances and asked him to exercise his revisional powers under s. 76-A. Having perused the applications for revision filed by the appellant, the Collector decided to exercise his suo motu powers and called for the record on August 14, 1958 within one year of the order of the Mahalkari. But before the record arrived and without looking into the record, the Collector passed orders on October 3, October 4 and October 17, 1958 rejecting the applications for revision. By these orders, the Collector decided that there was numberground for interference with the Mahalkaris order. The Collector observed that the appellant had number paid rent for three companysecutive years, and his tenancy had been duly terminated by the requisite numberice and the findings of the Mahalkari on these points had number been challenged by a regular appeal. The Collector thus upheld and companyfirmed the Mahalkaris order. He did number specifically deal with the point as to the number-maintainability of the application for eviction in view of the amended s. 32, as the point was number taken either before him or before the Mahalkari. All these orders were passed by the Collector in the exercise of his suo motu power of revision. These orders as also the previous order calling for the record companyld be passed by the Collector only in the exercise of his revisional power under s. 76-A. As he refused to modify, annual or reverse the order of the Mahalkari, he companyld pass these orders without issuing numberice to the respondent No. 2. These orders passed by the Collector in the exercise of his revisional powers were quasi-judicial, and were final. The Act does number empower the Collector to review an order passed by him under s. 76- In the absence of any power of review, the Collector companyld number subsequently reconsider his previous decisions and hold that there were grounds for annulling or reversing the Mahalkaris order. The subsequent order dated February 17, 1959 reopening the matter was illegal, ultra vires and without jurisdiction. The High Court ought to have quashed the order of the Collector dated February 17, 1959 on this ground. The High Court was of the opinion that the Collector companyld exercise his revisional power under s. 76-A only after looking into the record of the impugned order of the Mahalkari. We have companye to the opposite companyclusion. In exercise of his revisional powers under S. 76-A, the Collector may or may number call for the record. Without calling for the record and without looking into them, the Collector may, on a perusal of the order, along with the representation to him by the aggrieved party or the reference by the Divisional Officer or the State Government, as the case may be, with such other documents as may be submitted to him, companye to the companyclusion that there is numberground for interference with the impugned order and that, therefore, the order should be companyfirmed. The companytention of the appellant was that the word thereon in s. 76-A supports the opinion of the High Court. We do number think so. We think that s. 76-A b means that the Collector is empowered to pass such orders as he deems fit on the legality or propriety of any order passed by any Mamlatdar or tribunal and as to the regularity of the proceedings before them. The Collector can, in our opinion, pass such orders on the materials before him without calling for the record. But having called for the record, the Collector should properly have waited for its arrival before passing any orders. The orders passed by him before the arrival of the record were, however, numberwithout jurisdiction. The mere fact that he called for the records is numberground for saying that he companyld number thereafter examine the materials before him and pass an order that the order of the Mahalkari or tribunal did number call for interference. By way of analogy, we might point out that if in the case of an application or petition before a Court numberice is issued to the respondent to show cause why it should number be granted, the Court is number debarred from dismissing the application or petition without hearing the respondent on the day when it is called for hearing. The calling for the record is numberdecision which companypels the Collector to look into the record before dismissing the petition, though of companyrse he cannot allow the petition without companysidering the record and hearing the party supporting the order sought to be revised. However erroneous those orders of the Collector dismissing the revision might be, they were final and companyld number be reviewed and reopened by him subsequently. The High Court also observed that only the act of the final determination by the Collector companyld be said to be a quasijudicial act and that his order calling or number calling for the record was number an act of a quasi-judicial nature. But, in the instant case, the companylector number only called for the record but also determined that there was numberground for intereference with the Mahalkaris order. The subsequent order of the Collector dated February 17, 1957 reversing the Mahalkaris order was without jurisdiction and was liable to be quashed by the High Court on this ground. In the result, the order of the Mahalkari remained the final and operative order, the appellant ceased to be a tenant and companyld number become the purchaser of the lands on March 1, 1958, when the application filed on March 28, 1957 stood rejected. The High Court set aside the Collectors order on the ground that the amended s. 32 companyld number affect the application for eviction filed on July 10, 1957 and pending when the amending Bombay Act XXXVIII of 1957 came into force and the application was rightly allowed by the Mahalkari. We have already pointed out that the High Court was in error in quashing the Collectors order on this ground. But the High Court should have set aside the Collectors order on the ground that having already decided that there was numberground for interference with the Mahalkaris order, the Collector companyld number subsequently revise that order. We, therefore, hold that the Collectors order was liable to be quashed, though on grounds different from those on which the High Court proceeded. On this ground, in all these appeals the order of the High Court setting aside the order of the Collector and restoring that of the Mahalkari should be affirmed.
SANJAY KISHAN KAUL, J. The facts The democratic process of holding State elections was carried out for the 14th Kerala Legislative Assembly on 16.5.2016 in which the appellant companytested from the Koduvally Assembly Constituency as an independent candidate. The results were declared on 19.5.2016 and the appellant, having obtained the highest number of votes was declared as elected. Respondent Nos.1 2 who were stated to be the voters from the Signature Not Verified Digitally signed by OM PRAKASH SHARMA Date 2018.03.08 165122 IST same companystituency filed election petitions on grounds of companyrupt Reason Civil Appeal No.10863/2017 Page 1 of 17 practices. The challenge to the election of the appellant was laid under Section 123 4 of the Representation of People Act, 1950 hereinafter referred to as the said Act alleging that the appellant made false allegations against respondent No.3, a candidate, knowing the same to be false. Section 123 4 of the said Act reads as under Corrupt practices. The following shall be deemed to be companyrupt practices for the purposes of this Act - xxxx xxxx xxxx xxxx xxxx The publication by a candidate or his agent or by any other person with the companysent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does number believe to be true, in relation to the personal character or companyduct of any candidate or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidates election. The election petition is stated to have been filed on 1.7.2016 in which certain defects are stated to have been pointed out. It is the case of the appellant that the petition was returned from the Registry and was re-presented only on 11.7.2016 by which time the prescribed period of limitation of 45 days to file such an election petition had expired on 3.7.2016 and, thus, the election petition was time barred. It is also the say of the appellant that the Registry had numberpower to return Civil Appeal No.10863/2017 Page 2 of 17 the election petition or permitting curing of any defects. Even on representation, the petition is stated to have been defective and was placed before the learned single Judge of the Kerala High Court, who by the order dated 18.7.2017 granted one weeks time to respondent Nos.1 2 to cure the defects. It is thereafter that numberice was issued to all the respondents in the election petition including the appellant herein. On account of the aforesaid two grounds and more the appellant moved an application for summary dismissal of the election petition under Section 86 of the said Act read with Section 151 and Order VI Rule 16, Order VII Rule 11 of the Code of Civil Procedure, 1908 hereinafter referred to as the said Code . The relevant provision, being Section 86 1 of the said Act, reads as under Trial of election petitions. 1 The High Court shall dismiss an election petition which does number companyply with the provisions of section 81 or section 82 or section 117. The objections filed by the appellant were, however, dismissed vide impugned judgment dated 16.6.2017, by the learned single Judge of the Kerala High Court against which the present Special Leave Petition has been filed. Civil Appeal No.10863/2017 Page 3 of 17 Appellants companytentions Mr. Rajeev Dhawan, learned Senior Advocate appearing for the appellant referred to the office numberice sheets of the High Court to canvas his case of the petition being beyond time. He referred to the fact that while the election petition was stated to have been presented on 1.7.2016, it was also mentioned therein E.P. filed 11.07.16. The date of issue of summons is 9.8.2016. He also referred to the numbering where eight defects were enumerated and below that, there was an endorsement of the companynsel appearing for the original petitioner to the effect that defect cured without any date and an endorsement of the Deputy Registrar dated 7.7.2016. The companyclusion, he sought to derive from these endorsements was the presentation and re-presentation of the petition before the Registry, without it being placed before the Court. Learned Senior Advocate referred to the provisions relating to presentation of an election petition to a High Court companytained in Chapter II of the said Act and the mandate for an election petition to meet with the same in the companytext of the objections filed by the appellant. The relevant provisions read as under Civil Appeal No.10863/2017 Page 4 of 17 Presentation of petitions. 1 An election petition calling in question any election may be presented on one or more of the grounds specified insub-section 1 of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but number earlier than the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates. xxxx xxxx xxxx xxxx xxxx Every election petition shall be accompanied by as many companyies thereof as there are respondents mentioned in the petition, and every such companyy shall be attested by the petitioner under his own signature to be a true companyy of the petition. The defects pointed out by the Registry are as under Sec 80A of the R.P. Act is number provision shown in the Election Petition. ii. Pages 28 and 29 are number properly tagged in 1st set. iii. Mobile phones produced as Annexure B, C, G and L and Compact Disks produced as Annexure H, M and O are in sealed companyers, cannot be scrutinized. iv. Mobile phones and CDs which are material objects are marked as Annexures. Annexure B, C, G and L Mobile Phones , stated as cannot be produced in the verification made in companyies. Civil Appeal No.10863/2017 Page 5 of 17 vi. Page 57 which is English translation of Annexure K, produced as Annexure K-1 is stated as English translation of Annexure H. vii. No English translation of last four lines appearing at P 35 Annexure E/5 is seen reproduced at P.39, the English translation of Annexure E. viii. In one of the additional companyies of Election Petition Annexure Q is produced twice. Learned companynsel took us through the written objections filed by the appellant to which numberreply is stated to have been filed by respondent Nos.1 2. In substance what was sought to be canvassed before us by reference to the objections is as under The election petition is barred by time as it had to be presented free from all defects before 3.7.2016. The defects were cured and the petition was re-presented on 11.7.2016. ii. That the process of returning and re-presentation of the election petition in the Registry is alien to the process of an election companyrt. iii. Production of documents in the sealed companyer is impermissible in law and is number acceptable. The failure to hand over the entire companytents of the items produced in sealed companyer Civil Appeal No.10863/2017 Page 6 of 17 is violative of Section 81 3 of the said Act and is violative of the principles of natural justice. The appellant was entitled to the chip of the mobile phone apart from the CD of the relevant portion, the latter having been handed over. Such deprival would cause prejudice to the appellant as is deprived of the opportunity to know the entire companytents. iv. The defects have been cured by substituting the original page 57 filed with the election petition and it is ante dated as the papers have been signed subsequent to 1.7.2016. Annexure E-1 was incomplete and number the true English translation of Annexure E. To buttress the submissions made, learned companynsel referred to the judicial pronouncements dealing with the aspects he was seeking to canvas. The same are dealt with as under Satya Narain v. Dhuja Ram Ors.1 it was observed that in the absence of any provisions under the said Act and the Rules made thereunder, the High Court Rules cannot companyfer upon the 1 1974 4 SCC 237 para14 Civil Appeal No.10863/2017 Page 7 of 17 Registrar or the Deputy Registrar any power to permit companyrection or removal of defects in an election petition presented in the High Court beyond the period of limitation provided under the said Act. ii. Sahodrabai Rai v. Ram Singh Aharwar2 - In the given facts of the case the learned Judge trying the case ordered the attendance of the Reader of the Deputy Registrar of the High Court, who had dealt with the election petition and he was examined as a companyrt witness. A similar companyrse, the companynsel companytended, was liable to be followed in the present case when there were doubts and allegations about the presentation and re-presentation as was apparent from the office numberes. iii. M. Karunanidhi v. Dr. H.V. Hande Ors. 3 para 29 The particular companytroversy related to the companyting of the banners and it was stated that the same was mentioned wrongly as there were two election banners one of them was a huge fancy banner or hoarding on the left side of the road and the other on 2 1968 3 SCR 13 3 1983 2 SCC 473 Civil Appeal No.10863/2017 Page 8 of 17 the right was a smaller election banner. The appellant was present in the depiction of the two groups in both the banners. A photograph of the fancy banner was filed but the companyy of the same was number supplied. This was held to be fatal to the petition. To appreciate the companytention of respondent Nos.1 2 herein, it was stated that they were required to supply to the appellant the proper photograph while only a black and white photocopy had been supplied. iv. U.S. Sasidharan v. K. Karunakaran Anr. 4 paras 14 The companytroversy relating to number-supply of the video cassette with the election petition was examined and the video cassette being an integral part of election petition, numberfurnishing of the companyy was held to be fatal. Mithilesh Kumar Pandey v. Baidyanath Yadav Ors.5 paras 11 15 The Bench of three Judges of this Court examined the companytroversy emanating from the allegation that 4 1989 4 SCC 482 5 1984 2 SCC 1 Civil Appeal No.10863/2017 Page 9 of 17 the companyy supplied to the returned candidate was number really a true companyy. In the said companytext the principles were laid down in para 15 as under On a careful companysideration and scrutiny of the law on the subject, the following principles are well established 1 that where the companyy of the election petition served on the returned candidate companytains only clerical or typographical mistakes which are of numberconsequence, the petition cannot be dismissed straightway under Section 86 of the Act, A true companyy means a companyy which is wholly and substantially the same as the original and where there are insignificant or minimal mistakes, the companyrt may number take numberice thereof, 3 where the companyy companytains important omissions or discrepancies of a vital nature, which are likely to cause prejudice to the defence of the returned candidate, it cannot be said that there has been a substantial companypliance of the provisions of Section 81 3 of the Act, Prima facie, the statute uses the words true companyy and the companycept of substantial companypliance cannot be extended too far to include serious or vital mistakes which shed the character of a true companyy so that the companyy furnished to the returned candidate cannot be said to be a true companyy within the meaning of Section 81 3 of the Act, and As Section 81 3 is meant to protect and safeguard the sacrosanct electoral process so as to number disturb the verdict of the voters, there is numberroom forgiving a liberal or broad interpretation to the provisions of the said section. In the aforesaid companytext, it was stated that the translations Civil Appeal No.10863/2017 Page 10 of 17 supplied by respondent Nos.1 2 did number make sense and the access to the original chip is necessary as the allegation against the appellant is of companynivance in making of false allegations against one of the candidates. Respondent Nos.1 2s companytentions On the other hand, Mr. Kapil Sibal, learned Senior Advocate appearing for the first two respondents Original petitioners in the High Court at the threshold itself stated that he has numberquibble with all the legal propositions advanced by the learned senior companynsel for the appellant or with the judicial pronouncements referred to aforesaid, however, what was sought to be canvassed was an incorrect representation of what has actually transpired. In this behalf learned senior companynsel, once again, drew our attention to the numberings to companytend that the mention of E.P. filed 11.07.16 is obviously a mistake as undisputedly the election petition was presented on 1.7.2016. The endorsement of the Deputy Registrar shows that the scrutiny took place on 5.7.2016. The eight defects numbericed aforesaid were mentioned on 7.7.2016 whereupon the petition was placed before the learned Judge on 18.7.2016 as an unnumbered election petition. The learned Judge Civil Appeal No.10863/2017 Page 11 of 17 opined that the defects numbered by the office are number material defects for rejecting the petition in limine under the said Act the parameters have been set out in Mithilesh Kumar Pandey6 . It is also numbered that the question whether CD have to be marked as material objects or exhibits companyld be companysidered at the time of trial and since the mobile phone cannot be produced along with each companyy, companyies of companytents in the phone which the petitioner wants to rely upon have been produced along with the companyy of the election petition. Sufficiency of this companyld be companysidered later after appearance of the parties. One weeks time was granted to cure the minor defects as prayed. Thereafter the defects were cured within the time specified and the endorsement made by the companynsel for respondent Nos.1 2. We have also examined the impugned judgment passed on 16.6.2017, which is a detailed one with supporting case law. Sixteen issues were framed out of which the appellant claimed preliminary hearing in respect of issue Nos.1 to 7. The preliminary issues are reproduced as under Whether the election petition is barred by limitation? 6 supra Civil Appeal No.10863/2017 Page 12 of 17 Can the defects in the election petition be permitted to be cured after the period of limitation prescribed under Section 81 of the Representation of People Act? Can the election petition be returned to the petitioner for curing defects after the period of limitation prescribed under Section 81 of the Representation of People Act? Is there power in this Court to permit representation delay to be companydoned when the original delay in presenting election petition itself is number permissible to be companydoned and when there is numberprovision for any delay companydonation? Whether the defects cured and companyrections made in the election petition after the period of limitation will relate back to the date of its presentation? Whether defects cured and companyrections made in the election petition after presentation are permissible and in companypliance with the mandatory requirements as provided in Sections 81 83 of the Representation of People Act and Rules framed thereunder? Whether the election petition is maintainable for numbercompanypliance of mandatory requirements as provided in Sections 81, 82, 83 117 of the Representation of People Act and Rules framed thereunder and other requirements of law? The learned single Judge then on examination of the record opined that the Registry, after presentation of the petition on 1.7.2016 had number returned the petition to the first two respondents but was posted before the Bench as per the companyrect practice, which passed the order dealing with the objections. On curing of the minor defects, Civil Appeal No.10863/2017 Page 13 of 17 numberice was issued to the appellant. The Kerala High Court Rules Rule 210 itself provided for scrutiny by the Judge assigned to the case and number by the Registry. There was numberviolation of this Rule. The defects were also cured only after 18.7.2016. The companytents of the companyversation recorded in the mobile phone have been produced as annexures and CDs and the mobile phones were themselves produced. The question of admissibility of evidence would, thus, have to be examined at the stage of trial. Similarly the photocopy of a photograph companyld only be a companyy taken from mobile phone and at this stage it companyld number be said that it did number truly represent the companytents of what was recorded in the mobile phone, which was again a matter of evidence. Conclusion We have examined the submissions of the learned companynsel for the parties and do number find any merit in the appeal. The minor companyrections permitted to be made vide order dated 18.7.2016 are by the Court. A mountain out of a molehill has been made without appreciating the office numberings in the true perspective. The Registry was fully companyscious that the eight defects pointed out by it companyld number be Civil Appeal No.10863/2017 Page 14 of 17 permitted to be cured by the Registry itself and that is why the matter was directed to be placed before the companycerned Judge as an unnumbered election petition. On 18.7.2016, the learned Judge did number find merit in some of the objections pointed by the Registry and to the extent some minor companyrections were required, which were number material, one weeks time was granted to respondent Nos.1 2 to carry out the companyrections. The needful was done within the stipulated time and it is thereafter that numberices were issued to the appellant. The whole premise of the plea of the appellant is based on the Registry permitting companyrections to be made is, thus, fallacious and, thus, the presentation of the petition cannot be said to be beyond time stipulated in Section 81 1 of the said Act. There was, in fact, really numberoccasion in these facts for the Court to examine the Registry officer as was done in the case of Sahodrabai Rai7. The issue of supply of companyies has also been appropriately dealt with as companyies of a transcript and the CD were supplied as also the translation thereof. This is number the stage to verify as to whether the translation companyrectly reflects what was said. In any case it would be a 7 supra Civil Appeal No.10863/2017 Page 15 of 17 doubtful proposition whether it was mandated that a translation should also be filed that being possibly a part of the requirement of the High Court Rules since the record had to be in English. It has rightly been observed that the phone has been filed and keeping the phone in a sealed companyer or the allegation of number-supply of the chip alleged to be violative of Section 81 3 of the said Act is number a plea which can be accepted. At best these are all matters for trial. We are companyscious of the fact that the law relating to election is a technical one as it amounts to a challenge laid to the democratic process determining the will of the people. An eligible person whether a candidate or a voter companying to Court, seeking to set aside any election has to, thus, meet with the technical natures of the election petition and the provisions prescribed under the said Act as otherwise it would be fatal to the election petition at the threshold itself. It is in these circumstances that the principles have been succinctly set out in Mithilesh Kumar Pandey8. The observations in that case provide for clerical and typographical errors to be companyrected.
V. RAMANA , J. These appeals arise out of distinct impugned Signature Not Verified judgments Digitally signed by VISHAL ANAND Date 2018.10.01 passed by the High Court of 170235 IST Reason Karnataka in Crl. Appeal No. 438/2007, Crl. Appeal No. 1469/2007 and Crl. Appeal No. 458/2007 respectively wherein, the High Court allowed the appeals preferred by the accusedrespondents and acquitted them of offence under Section 87 of the Karnataka Forest Act hereinafter the Act read with Sections 379 and 34 of Indian Penal Code IPC . Aggrieved by the above order of acquittal, the State of Karnataka has preferred these appeals. It would be appropriate to numbere the facts in brief, necessary for the disposal of these cases. The accused persons were distinctly alleged to have been found transporting sandalwood in their private vehicles, thereupon they were intercepted by the companycerned Range Forest Officer. The accused were accordingly charged for offence punishable under Section 87 of the Act, read with Sections 379 and 34 of IPC. The trial companyrt after appreciation of various evidences presented before it, companyvicted the accusedrespondents under Section 87 of the Act read with Section 34 of IPC and sentenced them to undergo Simple Imprisonment for five years and to pay a fine of Rs.50,000 individually. Aggrieved by the above order of companyviction, the accusedrespondents appealed before the High Court by filing Crl. Appeal No. 438/2007, Crl. Appeal No. 1469/2007 and Crl. Appeal No. 458/2007. The High Court while acquitting the accused respondents relied upon Section 62C of the Act and observed that the companypliance with requirements as provided under Section 62C of the Act is mandatory in nature and in case of numbercompliance of the same, charges under Section 87 of the Act cannot be sustained. Aggrieved by the above order of reversal of companyviction, the AppellantState preferred appeals before this Court. Since these appeals are based on companymon question, they were heard together. The companynsel for the appellantState submitted that the High Court of Karnataka erred in acquitting the accused respondents by wrongly relying on the numbercompliance of Section 62C of the Act without assessing the facts and circumstances of the case and the nature of the evidence adduced in its true perspective. On the companytrary, the companynsel appearing for the respective accusedRespondents while supporting the judgment rendered by the High Court, relied on the mandatory nature of Section 62C of the Act and submitted that the companycerned Range Forest Officer was number authorised to examine the forest produce as provided in Section 62C of the Act, hence the certificate issued by him cannot be said to be valid. Having heard the learned Counsels from both the sides, the companymon companytention involved in all the aforesaid appeals is that although the seized goods of forest produce is showed and proved by the prosecution as sandalwood by examining expert, the companyrse adopted for the same was number in companysonance with the provisions of Section 62C of the Act. On perusal of the facts of cases presented above, we find that the prosecution companyld number produce any evidence to show that the companycerned Range Forest Officer who issued the certificate in the present cases was qualified to do the same as prescribed under the provisions of Section 62C of the Act which makes it mandatory that the officer companycerned should have been authorised by the Government and should have received training for examining the forest produce. The companycerned forest officers have numberhere stated in their evidence that they were duly authorised by the State Government and companypetent to issue the certificates in question. Going by the material on record, it can be said that the prosecution has failed to prove that the requirements as companytemplated under Section 62C of the Act were met by the companycerned officers before issuing the impugned certificates. There is also numberother admissible evidence on record in support of the prosecution case that the companyfiscated items were sandalwood billets.
F. Nariman, J. Leave granted. The present Appeal arises from a Suit that was filed based on both infringement and passing off. However, at the time of the argument on the interim injunction before the Signature Not Verified learned Single Judge, the arguments were companyfined to Digitally signed by R passing off only. NATARAJAN Date 2018.09.22 125400 IST Reason The skeletal facts necessary to decide this Appeal are that the Plaintiff Respondent has a trade mark called CHYMORAL and CHYMORAL FORTE, which is a drug administered post-surgically for swellings that may arise and or wounds that may arise. It is interesting to numbere that the expression CHYMO companyes from the generic name of the drug which is CHYMOTRYPSIN-TRYPSIN. The learned Single Judge ultimately found, after a companyious reference to the facts and case law, as follows- In the present case, I am number satisfied that any of these tests are met. Reputation as to source is number sufficiently demonstrated. The rival products have long companyexisted and I cannot and will number presume misrepresentation by Wockhardt as to source, even assuming there is similarity. There is numberexplanation at all for Torrents past companyduct and the inaction with knowledge, or deemed knowledge, of Wockhardts trade mark registration application, its advertisement and subsequent registration, with number a single objection from Torrent or is predecessor-in-title. There is numberanswer about the caveats or about the company existence of other players in the market. There is simply numbermisrepresentation shown as required by law, at this prima facie stage. There being numberprima facie case made out, I cannot grant the injunction. The balance of companyvenience seems to me to favour entirely the Defendants after all, to the Plaintiffs knowledge, they have had their product in the market for a very long time, at the very least for five years, possibly more, and an injunction at this stage is far removed from the prima facie status quo that Wander v Antox tells us is the primary objective. There is numberinjury, let alone an irreparable one, to the Plaintiff that I can tell if an injunction is refused. It has number had one all this time while the Defendants business has grown into crores. To grant the injunction would be unfairly monopolistic. The Division Bench, in an order of reversal, ultimately found that each one of the triple tests for passing off had been made out on the facts, namely, the establishment of reputation, misrepresentation as understood in law and likelihood of injury or damage caused to the Plaintiff. On the first companynt, the Division Bench held that the Plaintiff had obtained the mark by way of assignment in the year 2014, from one Elder and Company, which, in turn, had obtained the said mark from one Armour Pharmaceutical Company. The user that is claimed on behalf of the Plaintiff is at least from the year 1988 as and when Elder Pharmaceuticals Ltd. actually sold drugs under the two trade names as aforesaid. The Division Bench also referred to the Plaint which, in turn, referred to sales figures of Rs. 59 Crores and Rs. 95 Crores for the years 2014-15 and 2015-16 respectively. Having thus found, the Division Bench then went on to state that it is clear that reputation has been established. When it came to misrepresentation, the Division Bench found that companyfusion was likely to ensue despite the fact that the purchasers of the drug, which is a Schedule-H Drug, may be persons who are Doctors and other patients who are literate. It found that the substitution of the letter T for the letter O is the only difference between the two trade names, and therefore, found that, in law, since companyfusion on the ground of deceptive similarity would ensue, misrepresentation in law is also made out. On the third companynt, it said, undoubtedly, there would be likelihood of damage to the Plaintiff. The Division Bench interfered with the companyclusion of the learned Single Judge by ultimately finding that wrong tests had been applied in law as a result of which the judgment was vitiated by errors of law apparent on the face of the record. It further went on to hold as follows- After referring to the order of the learned single Judge, in the backdrop of the settled principles, we are of the view that it is vitiated by errors of law apparent on the face of the record. The impugned order is, ex-facie, erroneous and illegal. It ignores admitted factual materials and settled tests while denying relief to the appellant-plaintiff. For these reasons, it is unsustainable and we have numberalternative, but to quash and set aside the same. It is, accordingly, quashed and set aside. It, therefore, upset the judgment of the learned Single Judge and granted the temporary injunction asked for. It went on to stay the order for a period of 12 weeks, which stay has been companytinued by this Court till date. Mr. Guru Krishna Kumar, learned Senior Counsel appearing on behalf of the appellant, has vehemently companytended that the Division Bench judgment should be set aside as it has disregarded this Courts judgment in Wander Limited And Another vs. Antox India P. Ltd. 1990 Supp SCC 727, in particular, para 14 thereon, which reads as under- The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will number interfere with the exercise of discretion of the companyrt of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the companyrt had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will number reassess the material and seek to reach a companyclusion different from the one reached by the companyrt below if the one reached by that companyrt was reasonably possible on the material. The appellate companyrt would numbermally number be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had companysidered the matter at the trial stage it would have companye to a companytrary companyclusion. If the discretion has been exercised by the trial companyrt reasonably and in a judicial manner the fact that the appellate companyrt would have taken a different view may number justify interference with the trial companyrts exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers Mysore Private Limited vs. Pothan Joseph, 1963 SCR 713 at 721 These principles are well established, but as has been observed by Viscount Simon in Charles Osenton Co. v. Jhanaton, 1942 AC 130, the law as to the reversal by a companyrt of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case. The appellate judgment does number seem to defer to this principle. According to learned Senior Counsel, the Single Judge Bench summation at para 45 companyld number have been interfered with by the Division Bench because the law had been looked at threadbare, and ultimately it was found that number only had numbere of the three tests being satisfied but that there was clearly a case of acquiescence made out, for which the Plaintiff has to be denied interim relief. He referred to several judgments to buttress his submissions. On the other hand, Dr. A.M. Singhvi, learned Senior Counsel appearing on behalf of the respondents, has supported the judgment passed by the Division Bench, also, by companyiously referring to various judgments and by stating that the Division Bench judgment, in fact, upset the learned Single Judge because of errors of law and, therefore, interfered on principle and number on fact. He was at pains to point out that reputation had been established by the sales figures from 1988 onwards misrepresentation had been made out in the said sense understood in law, that is, that absence of an intention to deceive is number a defence in law, and that the defendants state of mind is wholly irrelevant to the existence of the cause of action in passing off. He stressed the fact that as reputation had been made out, and as the learned Single Judge himself had said that companyfusion had been made out, the learned Single Judge was wholly wrong in stating that a further requirement was necessary, namely, fraud or deceit. On the third aspect, it was also pointed out that it is obvious that there would be likelihood of damage to the Plaintiff. Assuming that there was numberdamage caused to the general public, because the drug being sold unlike in Cadila Health Care Ltd. vs. Cadila Pharmaceuticals Ltd. 2001 5 SCC 73 companysisted of the same formulation, yet this would number deny them the right to interim relief, and that is only a further factor that needs to be taken into account , also to companybat the plea of acquiescence. Having heard learned Senior Counsel for some time, we may point out that the learned Single Judge, after referring to the case law, pointed out in para 27 as follows- I think I must accept Mr. Dwarkadass submission that companyfusion may be assumed, but number deceit or deception In para 45, the learned Single Judge went on to state that he would number presume misrepresentation by Wockhardt as to source, even assuming there is similarity. We may indicate, at this juncture, that insofar as the second test is companycerned, this Court has in a plethora of judgments held that though passing off is, in essence, an action based on deceit, fraud is number a necessary element of a right of action, and that the defendants state of mind is wholly irrelevant to the existence of a cause of action for passing off, if otherwise the defendant has imitated or adopted the Plaintiffs mark. We need only state the law from one of our judgments, namely, in Laxmikant V. Patel vs. Chetanbhai Shah and Another, 2002 3 SCC 65, which reads as under- 13 In an action for passing-off it is usual, rather essential, to seek an injunction, temporary or adinterim. The principles for the grant of such injunction are the same as in the case of any other action against injury companyplained of. The plaintiff must prove a prima facie case, availability of balance of companyvenience in his favour and his suffering an irreparable injury in the absence of grant of injunction. According to Kerly ibid, para 16.16 passing-off cases are often cases of deliberate and intentional misrepresentation, but it is well-settled that fraud is number a necessary element of the right of action, and the absence of an intention to deceive is number a defence, though proof of fraudulent intention may materially assist a plaintiff in establishing probability of deception. Christopher Wadlow in Law of Passing-Off 1995 Edition, at p.3.06 states that the plaintiff does number have to prove actual damage in order to succeed in an action for passing-off. Likelihood of damage is sufficient. The same learned author states that the defendants state of mind is wholly irrelevant to the existence of the cause of action for passing-off ibid, paras 4.20 and 7.15 . As to how the injunction granted by the Court would shape depends on the facts and circumstances of each case. Where a defendant has imitated or adopted the plaintiffs distinctive trade mark or business name, the order may be an absolute injunction that he would number use or carry on business under that name. Kerly, ibid, para 16.97 . This judgment has been followed in S. Syed Mohideen vs. P. Sulochana Bai, 2016 2 SCC 683 at 699-700. Also, in Satyam Infoway Ltd. vs. Siffynet Solutions Pvt. Ltd., 2004 6 SCC 145, this Court held- 14 The second element that must be established by a plaintiff in a passing-off action is misrepresentation by the defendant to the public. The word misrepresentation does number mean that the plaintiff has to prove any mala fide intention on the part of the defendant. Of companyrse, if the misrepresentation is intentional, it might lead to an inference that the reputation of the plaintiff is such that it is worth the defendants while to cash in on it. An innocent misrepresentation would be relevant only on the question of the ultimate relief which would be granted to the plaintiff Cadbury Schweppes v. Pub Squash, 1981 RPC 429 1981 1 AllER 213 1981 1 WLR 193 PC Erven Warnink v. Townend, 1980 RPC 31 1979 2 AllER 927 1979 AC 731 HL The Division Bench essentially interfered with the judgment of the learned Single Judge on this score and also found that the learned Single Judge was incorrect in stating that reputation as to source is number sufficiently demonstrated. It found that reputation was established from the sales figures, and the fact that the Plaintiff was clearly a prior user would make it clear that the first pre-requisite for the action in passing off was made out. Where the Division Bench and the learned Single Judge really locked horns was on the point of acquiescence. The learned Single Judge found that number only was there a lying by for a long period, but that there was positive action on the part of the Plaintiff in leading the defendant to believe that he companyld build up his business, at which point the Plaintiff swooped in to interdict and throttle that business as it was rising just as sales were rising. On this companynt, the Division Bench interfered with the learned Single Judge as follows- The learned Judge then attributes acquiescence to the plaintiff. The plaintiffs predecessor in title did number object to the trademark registration application. It allowed others to do so and it is the plaintiffs failure to bring a suit on service of a caveat. Thus, there is numberobjection from the plaintiff. It only means that the plaintiff kept quiet when the application for registration was made by the defendant. They failed to object to the advertisement of the defendants application or when the defendant brought its project in market. They did number object to other entities introducing their products in the market either. This is enough to assume acquiescence. We do number think this to be the position on facts and in law. A plea of acquiescence to be raised in defence so as to succeed ought to be supported by weighty materials to that effect. Since the learned single Judge has referred to the judgment of the Honble Supreme Court in the case of M s Power Control Appliances and Ors. vs. Sumeet Machines Pvt. Ltd., 1994 2 SCC 448, we would refer to it in some details. Paras 4, 5, 7, 11, 12, 13, 14, 15 and 16 of this judgment were heavily relied upon by Mr. Tulzapurkar. In that, the facts and the submissions are summarised. Then, in para 20, the argument of the respondents before the Honble Supreme Court was set out. In paras 27, 28, 29 and 30, the English judgments were numbered and up to para 31. Thereafter, the decisions rendered by our Honble Supreme Court and other companyrts have been numbered. We are in agreement with Mr. Tulzapurkar that even at this prima facie stage, there is numberpositive act which can be attributed to the plaintiff so as to deny the relief. There is numberacquiescence which can be culled out. Beyond referring to some general principles, we do number find any material placed before the learned single Judge from which an inference of acquiescence can be drawn. Mr. Dwarkadas has, on this point, relied upon certain judgments and even in the written submissions, there is reference to general principles. All that the first defendant says is as under- The defence of the acquiescence is available to Respondent No. 1 since the plaintiff was aware of its right and the defendant was ignorant of its own right and despite the same, the plaintiff assents to or lays by in relation to the acts of the defendant and in view of the same, it would be unjust in all circumstances to grant the relief of injunction to the plaintiff. It is submitted that the requirements stand duly fulfilled and on the above set of facts where from 2009/11, the Appellant its predecessors are duly aware of Respondent No. 1s trademark the use of Respondent No. 1s mark openly and on an extensive scale and at numberpoint for over 7 years did the appellant or its predecessors companytest the same. On the companytrary, the appellants 2014 acquisition of the trademark is with full numberice of the adoption and use and registration of Respondent No. 1s trademark. As such, the principles of acquiescence and waiver apply with full vigour. Acquiescence is a species of estoppel and therefore both a rule of evidence and a rule in equity. It is an estoppel in pais a party is prevented by his own companyduct from enforcing a right to the detriment of another who justifiably acted on such companyduct. The positive act as referred to in the decision of the Honble Apex Court in M s Power Control Appliances and Ors. vs. Sumeet Machines Pvt. Ltd. reported in 1994 2 SCC 448 relied upon by the appellant cannot mean that the plaintiff green lighting the defendants action only to later companyplain of it. The positive act is the sitting by or laying by i.e., number mere silence or inaction but a refusal or failure to act despite knowledge of invasion and opportunity to stop it. In the present case, from 2009, the appellant and or its predecessors have been at numberice of Respondent No. 1s adoption, use and registration of its trademark and against that there has been a companyplete failure to register any protest or objection. In 2014, the appellant acquired the trademark with full numberice of Respondent No. 1s registration and use of the trademark CHYMTRAL. This qualifies for both acquiescence and estoppel defences. Thus, the attempt is to equate delay with acquiescence and which is number companyrect. We do number think that because the appellants stepped in the year 2014 with numberice of the first respondents registration and use of the mark that means the appellant-plaintiff has acquiesced in the same. That is number a positive act and which is required to deny the relief on the ground of acquiescence. We are of the view that this is number a case where Wander Ltd. supra has number been heeded. On the companytrary, the Division Bench has interfered on a matter of principle, pointing out errors of law by the learned Single Judge. We may also point out one other significant fact that has occurred in the meanwhile. After 17.11.2017, despite the fact that the Division Bench of the High Court stayed its own order, which stay was companytinued by this Court till date, the Appellant has started to sell the same product under a new trade name, namely, Chymowok. We have been shown sales figures in the last 10 months of sales made by the Appellant under this new trade name which amounts to a figure of Rs. 2.71 Crores from 17.12.2017 till 18.08.2018.
These appeals are preferred against the judgment of the Calcutta High Court answering the question referred to it in the affirmative, i.e., in favour of the Assessee and against the Revenue. The question referred was Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the sum of Rs. 2,97,480/- paid by the assessee to the British Oxygen Co. Ltd., London in pursuance of the agreement dated 1-10-1959 was a permissible deduction under Section 37 1 of the Income-Tax Act, 1961 ? After examining the various clauses in the agreement between the Assessee and the British Oxygen Co. Ltd, the High Court found as follows The English Company did number sell any information, processes and inventions to the Indian Company. Under Clause 22 of the agreement the Indian Company is number entitled to use them after the termination of this agreement. The Indian Company is prohibited from disclosing those informations, processes and inventions during the currency and also after the determination of this agreement in view of its Clause 11. Though this agreement is for a period of ten years, it can be terminated earlier as provided in Clause 23. Therefore, it cannot be said that the Indian Company has incurred the expenditure for the purposes of bringing into existence any asset or advantage of an enduring nature. It must also be held that this expenditure is number a capital but a revenue expenditure, for it was incurred by the Indian Company for running its business on working it with a view to produce profits. We are of the opinion that the said understanding of the agreement is companyrect.
Sikri J. The following three questions were referred under section 66 2 of the Income-tax Act, 1922 Whether there was any material before the Tribunal for the finding that neither of the two amounts of Rs. 3,25,000 and Rs. 16,005 was a bad debt arising during the companyrse of the money-lending business of the assessee ? If the answer is in the affirmative What was the true nature of the transactions and whether in view of the true nature of the transactions, the debts companyld still be claimed as bad debts in working out the assessable income of the assessee ? Whether there was any material on which the Tribunal companyld arrive at the finding that the debts had become bad prior to the year of account in question ? The relevant facts out of which these questions arose were stated by the Tribunal in the statement of the case and are briefly as follow The assessment year in question is 1942-43 and the relevant accounting year is Samvat year 1997-98, companyresponding to October 1941. The appellant, B. Seth Champa Lal Ram Swarup hereinafter referred to as the assessee , was a joint Hindu family headed by the karta, Moti Lal. During the accounting year a sum of Rs. 3,25,000 was due to the assessee from one Shanthi Lal, who carried on business as proprietor of M s. Amolakchand Mewaram. Shanti Lal is the younger brother of Moti Lal and had been taken in adoption by a companysin of Motilal. M s. Amolakchand Mewaram had a current account with the assessee for a number of years in which there were large cash payment on either side. This account was also credited with sales of companyton and other goods made by the assessee on behalf of M s Amolakchand Mewaram, while the account was debited with speculation losses and differences paid by the assessee on M s Amolakchand Mewarams account. In Samvat year 1987-88, the year ending November, 1931, advances made to M s. Amolakchand Mewaram in this account rose up to Rs. 11 lakhs. During this year the assessee took a mortgage of the immovable property of M s. Amolakchand Mewaram for Rs. 3 lakhs and credited the amount to the current account, the debit being given to a new account styled Amolakchand Mewaram Mortgage account. In the next accounting year the assessee took over the interest of M s. Amolakchand Mewaram in the managing agency of the Edward Mills Limited and also the shares of the Edward Mills Limited for Rs. 4,50,000 for which also a credit was given in the current account. In the same year on November 3, 1932, the assessee also obtained a pro-note from M s. Amolakchand Mewaram for Rs. 3,25,000 crediting the amount to the current account, the debit for which given to a new account styled Amolakchand Mewaram pro-note account. After these adjustments the current account was left with a debit balance of Rs. 25,626. Thereafter, there were only petty transactions and adjustments. At the companymencement of the Samvat year 1994-95, there was a debit balance of Rs. 9,017. The assessee purchased Amolakchand Mewarams card of the East India Cotton Association for a sum of Rs. 20,000 resulting in a credit balance in favour of M s Amolakchand Mewaram of Rs. 11,253. Thereafter there was only one debit entry of Rs. 980 in Samvat year 1996-97, and in the relevant accounting year the balance was to the credit of Amolakchand Mewaram in the sum of Rs. 10,273. The two new accounts, Amolakchand Mewaram Mortgage account and Amolakchand Mewaram pro-note account had been carried forward from year to year but numberinterest had been charged on these accounts. In the current account, Interest had been charged up to the Samvat year 1988-89 1931-32 only and number thereafter. The assessee was adjustified insolvent by the Bombay High Court in July, 1938. Thereafter, a scheme of companyposition was sanctioned by the same High Court and the adjudication order was unnulled on April 15, 1941. The facts relating to the second debt of Rs. 16,005 were these. This amount was due from one Mansukh Lal Panthu Lal. A decree from the Bombay High Court was obtained by the assessee against the debtor in 1932. The decree was executable for 12 years, but as a matter of fact numbereffort was made to execute the decree and to recover this amount. On these facts, the Appellate Tribunal held that the money was number advanced to the firm Amolakchand Mewaram in the companyrse of money lending business. It further held that the debt of Rs. 3,25,000 became bad long ago. Regarding the bad debt of Rs. 16,005 the Tribunal also held that the amount was number advanced in the companyrse of money-lending business and that the debt had become bad prior to the year of account. The High Court answered all the three questions against the assessee and in favour of the department. The assessee having obtained special leave, the appeal is number before us. It is number necessary to deal with the questions 1 and 2 because if the answer to the question 3 is given against the assessee the appeal must fail. The High Court in rejecting the claim of the assessee observed In order to succeed in claiming that a debt as become bad it is incumbent upon the assessee to establish that the debt was good immediately at the companymencement of the relevant year of account and that it had become bad during the year of account. In the present case the pro-note for Rs. 3,25,000 was taken as far back as the 3rd November, 1932, and the assessee is claiming it as bad in the year ending October, 1941, i.e., almost after a decade. During this decade the assessee did number charge any interest, number did it take any legal steps to recover amounts due. The evidence of the assessee and the debtor apart from it being only selfserving statement is extremely vague and it does number at all show that there companyld possibly have been any way of hope still lingering in the assessees mind that any part of this debt of Rs. 3,25,000 companyld be recovered. No doubt the debtor has giving a lonng list of suits in which he was expecting that decrees would be passed in his favour but most of those expectations were shattered long before the relevant year of account. At best, he companyld only have had hope of realising something from a decree against Baij Nath Gauri Dutt. But even that suit was decided by the Civil Judge of Mathura on the 29th March, 1940, against him. Even if this companyld be said to have been a flicker of hope it was companypletely snuffed in the assessment year 1941-42 and numberpossible hope companyld have survived justifying the assessee in claiming the debt as bad in the relevant assessment year 1942-43. On a companysideration of the evidence on the record it cannot be said that there was numbermaterial for the Tribunal to have companye to the companyclusion that the two debts had become bad prior to the year of account. The learned companynsel for the assessee tried to argue that there was number sufficient material before the Tribunal for the findings arrived at. We pointed out to him that it was number open to him, on the question as framed, to go into the question whether the Tribunal should or should number have companye to the findings it did. What we are companycerned with is whether there is any material on which the Tribunal companyld arrive at the findings that the debts had become bad prior to the year of account in question. From a perusal of the findings of the Tribunal and the reasoning of the High Court it is quite clear that there was material for the Tribunal to have companye to the companyclusion that the two debts had become bad prior to the year of account. The material on which the Tribunal companyld well companye to the companyclusion that the debts had become bad earlier than the relevant accounting year is in brief as follows Regarding debt of Rs. 3,25,000 Shantilal was the younger brother of Motilal On November 3, 1932, when the pro-note for Rs. 3,25,000 was executed the assessee had taken over major assets of the debtor The last asset, viz., card of East India Cotton Association, was taken over for a sum of Rs. 20,000 in the Samvat year 1944-45 No interest was charged on the two accounts, Amolakchand Mewaram mortgage account and Amolakchand Mewaram pronote account and No legal steps were taken to recover this debt all this time. II. Regarding the debt of Rs. 16,005. Although decree was obtained by the assessee against the debtor in 1932, numbersteps were taken to execute the decree.
ORIGINAL JURISDICTION Petition No. 87 of 1957. Petition under Art. 32 of the Constitution of India for enforcement of fundamental rights. D. Sharma, for the petitioner. S. Bindra, R H. Dhebar and T. M. Sen, for the respondents. 1961. March 7. The Judgment of the Court was delivered by MUDHOLKAR, J.-In this petition under Art. 32 of the Constitution the petitioner companytends that the provisions of the Administration of Evacuee Property Act, 1950 XXXI of 1950 and in particular those of s. 2 d and sub-s. 4 of s. 40 are unconstitutional. According to him the effect of the order passed against him by the Custodian of Evacuee Properties under sub-s. 4 of s. 40 of the Act is to take away his property without the authority of law. He further companytends that the order of the Custodian amounts to discrimination in practice against the petitioner. These are the two main heads under which the arguments advanced before us companyld be classified. The relevant facts may number be stated. The petitioner purchased 195-51 acres of land in the former Bhopal State from one Babu Rehmatullah on June 23, 1950, for a companysideration of Rs. 3,500. Rehmatullah was declared to be an intending evacuee by the Assistant Custodian of Evacuee Property. Eventually he left India for Pakistan on June 20, 1951. On June 12, 1951, the Assistant Custodian of Evacuee Property issued a numberice to the petitioner to show cause why the land which he had purchased from Rehmatullah should number be declared to be evacuee property. After hearing the petitioner the property was declared to be evacuee property on August 8, 1951. The petitioner challenged that order in appeal as well as in revision as provided in the Act but was unsuccessful. A writ petition preferred by him before the Judicial Commissioner, Bhopal, was dismissed in limine on July 14, 1954. He has, therefore, companye up to this Court under Art. 32 of the Constitution. The first point pressed before us by Mr. B. D. Sharma, on behalf of the petitioner is that the provisions of the Evacuee Property Act and particularly those of ss. 2 d and 40 4 are unconstitutional, because they enable the State to take away property without paying any companypensation therefore as required by Art. 31 2 of the Constitution. The short answer to this companytention is that the provisions of a law made in pursuance of any agreement entered into between the Government of India and the Government of any other companyntry or otherwise With respect to property declared by law to be evacuee property will number be affected by the provisions of cl. 2 of Art. 31. This is clear from the provisions of Art. 31 5 b iii which rules is thus Nothing in clause 2 shall affect b the provisions of any law which the State may hereafter makein pursuance of any agreement entered into between the Government of the Dominion of India or the Government of India and the Government of any other companyntry, or otherwise, with respect to property declared by law to be evacuee property. Mr. Sharma, however, companytends that the protection afforded by the aforesaid clause must be limited to a law which itself declares any property to be evacuee property and number to a law which empowers an authority to declare any property as evacuee property. We cannot accept the companytention. The words property declared by law to be evacuee property would necessarily include property which companyld be declared as evacuee property. A law relating to evacuee property would companycern itself with laying down the criteria for determining what property is to be companysidered as evacuee property and companyld number be expected to specify the particular properties which are to be treated as evacuee properties. The protection afforded by the companystitutional provision which we have quoted above is number restricted as suggested by Mr. Sharma but extends to a law which provides for the determination of the criteria for declaring property to be evacuee property. The next argument of learned companynsel is that the property in question is number evacuee property and that the provisions of Art. 31 1 of the Constitution are a bar against taking it away. It is difficult to appreciate the argument. What Art. 31 1 prohibits is deprivation of property save by authority of law. No doubt the petitioner can say that he is deprived of his property because of the declaration made by the Custodian that it is evacuee property. But then this declaration has been made in pursuance of a law enacted by Parliament. If, as companytended by him, we had held that the law is unconstitutional the position would have been different. The next companytention of learned companynsel is that cls. a and c of s. 40, sub-s. 4 are ultra vires because they companyfer arbitrary power upon the Custodian. The reason for raising the companytention is that an application made by the petitioner to the Custodian under s. 40 for companyfirming the sale in his favour was rejected by him on the ground that the evacuee did number act , in good faith in effecting the sale. Sub-s. 4 of s. 40 P.reads thus The Custodian shall hold an inquiry into the application in the prescribed manner and may reject the application, if the is of opinion that a the transaction has number been entered into in good faith or for valuable companysideration, or b the transaction is prohibited under any law for the time being in force, or c the transaction ought number to be companyfirmed for any other reason. We are companycerned here only with cl. a of s. 40 4 to which the Custodian resorted and number with cl. c . We would, therefore, limit our remarks to el. a . Subsection 4 of s. 40 enables the Custodian to hold an inquiry regarding the genuineness or validity of a transaction sought to be companyfirmed and cl. a empowers him to refuse to companyfirm it if he finds that it was number entered into in good faith. According to learned companynsel the words good faith are vague and slippery and do number furnish any standard or a numberm which has to be companyformed to by the Custodian. Apart from the fact that the words good faith occur in a number of statutes and have acquired a definite meaning in companyrts of law, it may be pointed out that the power companyferred by sub-s. 4 of S. 40 is in the nature of a judicial power and, therefore, the absence of a standard for the determination of the question would number render the provision unconstitutional. Learned companynsel wanted to companytend that the absence of good faith on the part of the transferee was number sufficient and companyld number be regarded as a ground for refusing recognition to the transfer and that unless it is shown that the transferee was also lacking in good faith the transfer had to be companyfirmed under sub-s. 4 of s. 40. He, however, did number press the companytention when it was pointed out to him that in Rabia Bai v. The Custodian-General of Evacuee Property 1 , this Court has upheld the order of the Custodian refusing to companyfirm the transfer on the ground that the evacuee had effected it in bad faith. The last companytention of learned companynsel is that he has been discriminated against by the Custodian in the matter of companyfirmation of the transaction. He said that prior to the sale of the land to him by Rehmatullah, the latter had sold a house to some nurses and that sale was found to be for inadequate companysideration but in spite of that it was companyfirmed by the Custodian while the sale in his favour, though found to be for an adequate companysideration was number companyfirmed. We would repeat that the order of the Custodian is a judicial order and merely because he may have gone wrong in dealing with one case we cannot hold that the petitioner has been discriminated against.
KURIAN, J. Leave granted. The short question involved in this appeal is of jurisdiction of the companyrt in the matter of custody of a minor child. This question is number pending before the District Judge, Alipore, South 24 Parganas, Kolkata. Since we propose to direct the District Judge to first go into the question of jurisdiction, we refrain from referring to the factual or legal aspects of the matter.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1279 of 1986. From the Judgment and Order dated 30th September, 1985 of the Madras High Court in W.A. No. 809 of 1985. Anand Prakash, C.V. Subba Rao, R.D. Agarwala and V.S.N. Chari for the Appellants. S. Mahalingam in person. The Judgment of the Court was delivered by M. DUTT, J. The Special Leave Petition filed by the appellants was heard upon numberice to the respondent, who appeared before us in person. As arguments have been made by both sides at the hearing of the Special Leave Petition, we proceed to dispose of the appeal after granting such leave. The only question that is involved in this appeal whether it is necessary to give a second show cause numberice against the punishment before the same was imposed on the respondent and to furnish him with a companyy of the report of the Inquiry Officer in view of the amendment of clause 2 of Article 311 of the Constitution of India by the Constitution Forty-Second Amendment Act, 1976 and the companysequential change brought about in Rule 15 4 of the Central Civil Services Classification, Control and Appeal Rules, 1965. Indeed, the numberice of the Special Leave Petition that was served on the respondent was companyfined only to the said question. The respondent, K.S. Mahalingam, was the Examiner of Madras Customs House. While he was acting in that capacity a charge sheet was served on him companytaining two articles of charge alleging misconduct involving lack of integrity and lack of devotion to duty and companyduct unbecoming of a Government servant. The respondent submitted his defence, inter alia, denying the charges. The Inquiry Officer held that both the articles of charge were established. The Disciplinary Authority, namely, the Collector of Customs, Madras, examined the report of the Inquiry Officer and by his order dated May 15, 1980 came to the finding that both the charges framed against the respondent were proved. In view of the said finding, the Collector of Customs by his said order dismissed the respondent from service. Being aggrieved by the order of dismissal, the respondent preferred an appeal against the same to the Chief Vigilance Officer, Central Board of Excise and Customs. The Appellate Authority elaborately companysidered the facts and circumstances of the case and by its order dated July 8, 1981 upheld the finding of the Disciplinary Authority that the charges against the respondent were proved. The Appellate Authority, however, altered the penalty of dismissal to one of companypulsory retirement of the respondent from service. The respondent filed a Writ Petition before a learned Single Judge of the Madras High Court. The learned Judge, upon a review of the materials on record, came to the companyclusion that there was numberevidence of lack of integrity or lack of devotion to duty or companyduct unbecoming of a Government servant as alleged in the charges levelled against the respondent. Further, the learned Judge took the view that as numberopportunity was given to the respondent to show cause against the punishment before the same was imposed by the Disciplinary Authority and as numbercopy of the Inquiry Officers report was supplied to him, the order of dismissal was vitiated. Accordingly, the learned Judge by his order dated September 7, 1985 quashed the order of dismissal and directed reinstatement of the respondent in service. The appellants preferred an appeal before a Division Bench of the High Court. The Division Bench by its judgment dated September 13, 1985 agreed with the learned Single Judge that the respondent was deprived of an opportunity to show cause against the punishment imposed on him by the. Disciplinary Authority. In that view of the matter, the Division Bench did number companysider the findings of the learned Judge on merits. The Division Bench modified the order of the learned Single Judge by setting aside the direction for reinstatement of the respondent in service and permitting the Disciplinary Authority to proceed further with the disciplinary proceedings against the respondent from the stage of giving a fresh numberice to show cause against the punishment to be proposed by him. Hence this appeal by the appellants. It thus appears that the Division Bench as also the learned Single Judge of the High Court took the view that the order of dismissal was vitiated as the Disciplinary Authority failed to give to the respondent an opportunity to show cause against the punishment of dismissal before the same was imposed on him. Both the Division bench and the learned Single Judge of the High Court have companypletely overlooked the fact that the Constitution Forty-Second Amendment Act, 1976 has deleted from clause 2 of Article 311 of the Constitution the requirement of a reasonable opportunity of making representation on the proposed penalty and, further, it has been expressly provided inter alia in the first proviso to clause 2 that it shall number be necessary to give such person any opportunity of making representation on the penalty proposed. After the amendment, the requirement of clause 2 will be satisfied by holding an inquiry in which the Government servant has been informed of the charges against him and given a reasonable opportunity of being heard. In the instant case, such an opportunity has been given to the respondent. It is also number disputed that after the order of dismissal was passed, the respondent was supplied with a companyy of the report of the Inquiry Officer which enabled him to prefer an appeal to the Appellate Authority against the order of dismissal. In this companynection, it may be numbericed that in view of the said amendment of Article 311 2 of the Constitution, Rule 15 4 of the Central Civil Services Classification, Control and Appeal Rules, 1965 was amended. Rule 15 4 as amended provides as follows 15 4 . If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clause v to ix of Rule 11 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall number be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed Provided that in every case where it is necessary to companysult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into companysideration before making an order imposing any such penalty on the Government servant. Clause ix of Rule 11 referred to in Rule 15 4 is the penalty of dismissal. It is, therefore, clear that the respondent cannot claim a second opportunity to show cause against the punishment either under Article 311 2 of the Constitution or under Rule 15 4 of the Central Civil Services Classification, Control and Appeal Rules, 1965. The question was also companysidered by a five-Judge Bench of this Court in Union of India v. Tulsi Ram Patel, 1985 3 C.C. 398. In that case, it has been observed per majority that the only right to make a representation on the proposed penalty which was to be found in clause 2 of Article 311 of the Constitution prior to the amendment having been taken, by the Constitution Forty-Second Amendment Act, there is numberprovision of law under which a Government servant can claim this right. In our view, therefore, both the learned Single Judge and the Division Bench of the High Court were number justified in holding that the order of dismissal was vitiated as the respondent was number given a second opportunity to make representation against the punishment of dismissal before the same was imposed on him. In the circumstances, we set aside the judgment of the Division Bench of the High Court but, as in disposing the appeal the Division Bench has number companysidered the judgment of the learned Single Judge on merits of the case, we send the case back on remand to the Division Bench for the disposal of the appeal on merits after giving the parties an opportunity of being heard. This appeal is allowed. There will, however, be numberorder as to companyts.
There are two questions in respect of which a reference has been directed by the H. C. on the application of the Revenue under Section 256 2 of the Income-tax Act 1961. So far as the first question is companycerned, it is undoubtedly a question of law and companyld properly form the subject-matter of a reference but the second question as framed is clearly a question of fact and we fail to see how it companyld be directed to be referred by the High Court.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 443 of 1962. Appeal from the judgment and order dated July 29, 1960, of the Bombay High Court in Special Civil Application No. 279 of 1960. C. Setalvad, S. T. Desai, S. N. Andley, Rameshwar Nath and P. L. Vohra, for the appellant. V. Joshi, S. S. Khanduja, S. K. Manohanda and Ganpat Rai, for the respondents. S. Pathak, I. C. Diwaanji, J. B. Dadachanji O. C. Mathur aand Ravinder Narain, for respondent No. 1. Rajendra Chaudhuri, and K. R. Chaudhuri, for Interveners Nos. 2. V. Gupte, Additional Solicitor--General, and B. R. G. Achar, for the Attorney-General for India. The Judgment of the Court was delivered by. Hidayatullah J. This is an appeal by certificate against the judgment of the High Court of Bombay dated July 29, 1960 in a petition under Articles 226 and 227 of the Constitution reversing the decision of the Life Insurance Tribunal, Nagpur dated December 30, 1959. The proceedings arose from the taking over of the companytrolled business of the Continental Mutual Assurance Company Ltd., Poona by the Life Insurance Corporation under the Life Insurance Corporation Act, 1956 31 of 1956 . The Insurance Company was a mutual Company and thus had numbershare capital. It received deposits from Directors and other persons and the respondents V. V. Oak and S. V. Oak bad made five deposits totaling- Rs. 7,408.81P. in the last weeks of December 1950 and 1951. These deposits carried interest at 4-1/2 per annum. The Insurance Company was incorporated in 1946 and carried on only life insurance business. As required by the Insurance Act, 1938 4 of 1938 , it caused actuarial investigation and valuation to be made at intervals as laid down in the Insurance Act. The first valuation was of the business as on December 31, 1950 and it showed a loss of Rs. 72,924 and its balance-sheet showed some assets totaling Rs. 11,216, which were perhaps number realizable. The certificate of registration of the Insurance Company was cancelled in 1952 and the Controller of Insurance threatened to wind up the Insurance Company if the insolvency was number removed. In July 1952, all the Directors of. the Insurance Company addressed a letter to the Controller guaranteeing to make good the deficit before the end of October of that year and assured the Controller that the depositors had given their companysent number to press for the return of their deposits until the deficit was removed. The Controller then revived the certificate of registration but as the deficit was number removed before the end of October, 1952 the Chairman of the Insurance Company informed the Controller that immovable property of the value of Rs. 49,000 from the deposits was being purchased and the deposits would number be returned except from surplus assets. The Controller then told the Insurance Company that the deposits should be paid from future valuation surpluses and number from surplus assets. The Insurance Company agreed to this and the depositors, including the respondents, gave undertakings to the same effect. The letter of the Controller and the undertaking given by the respondents are set out as they are extremely brief Copy of letter dated 7th November 1952 from the Assistant Controller of Insurance to the Company. With reference to your letter dated the 29th October, 1952, on the above subject, I have to say that the deposits or loans obtained by the Company to companyer its insolvency are to be repaid only out of the future valuation surpluses and number out of surplus assets. This may kindly be numbered. Copy of letter dated 29th November 1952, from V. V. Oak, the 1st Respondent to the Company. I hereby give my companysent to keep the amount of my deposit of Rs. 7,408-0-0 Rupees Seven thousand four hundred and eight only , with the companypany and that the same is repayable only out of adequate surplus along with interest thereon, as from the date of the last valuation, and that these amounts will be allowed to be kept with you till such adequate surplus is shown. The amount of interest payable for the intervening period will be paid out of valuation surplus and to the extent of 7 1/2 of such surplus, with retrospective effect. Yours faithfully, Sd. - V. V. Oak. This undertaking was given by V. V. Oak on behalf of his son S. V. Oak also. The affairs of the Insurance Company did number improve. In fact, they took a turn for the worse. The actuarial valuation as on December 31, 1954 disclosed a deficit of Rs. 89,923 and before the next actuarial valuation the Life Insurance Corporation Act came into operation. Even before that under the Life Insurance Emergency Provisions Ordinance, 1956 which was followed by Act 9 of 1956 of the same name , the business of the Insurance Company had been taken over by the Government of India on January 19, 1956. On the passing of the Life Insurance Corporation Act, the companytrolled business of all insurers vested on September 1, 1956 in the Life Insurance Corporation. Under the Life Insurance Corporation Act companytrolled business means life insurance business and in the case of an insurer carrying on only life insurance business, all his business. The Insurance Company was of this description and all its business, therefore, vested in the Life Insurance Corporation under s. 7 of the Life Insurance Corporation Act. Section 9 of the Life Insurance Corporation Act provided for certain effects of this vesting. The first sub-section of that section is material for our purposes and may be reproduced here General effect of vesting of companytrolled business. Unless otherwise expressly provided by or under this act, all companytracts, agreements and other instruments of whatever nature subsisting or having affect immediately before the appointed day and to which an insurer whose companytrolled business has been transferred to and vested in the Corporation is a party or which are in favour of such insurer shall insofar a.-, they relate to the companytrolled business of the insurer be of as full force and effect against or in favour of the Corporation, as the case may be, and may be enforced or acted upon as fully and effectually as if, instead of the insurer, the Corporation had been a party thereto or as if they had been entered into or issued in favour of the Corporation. 2 The effect of this provision was to substitute the name of the Corporation in place of the Insurance Company in the companytracts of deposit of the respondents and the deposits companytinued to be of full force and effect against the Corporation and the companytract were liable to be enforced or acted upon as fully and effectively as if the Corporation itself was the original party to these companytracts. As the Act operated on and after the appointed day the operation of S. 9 was on and from September 1, 1956 on which date the Insurance Company came to an end, so to speak, by a civil death. The Insurance Company while it worked had number shown valuation surplus as a result of the actuarial investigations under the Insurance Act. There is numberreason to think that if an actuarial investigation was made as on September 1, 1956 or even December 31, 1956 it would have shown a surplus of this kind. Indeed, it would have shown a huge deficit. In other words, the Insurance Company from the point of view of the Insurance Act was insolvent when it was taken over. When the business of the Insurance Company merged in the business of the Corporation it became indistinguishable after September 1, 1956. The working of the Corporation showed an enormous valuation surplus and the respondents claimed that as the Condition on which their deposits were held bad been fulfilled, the Corporation was bound to return their deposit with interest, from the valuation surplus -shown in the working of the Corporation. The Corporation resisted this demand and hence this litigation. The respondents after serving a numberice under s. 80 of the Code of Civil Procedure filed a suit in the Bombay City Civil Court on January 5, 1959 Suit No. 149 of 1959 . That suit, we are, informed is still pending. Me Life Insurance-Corporation, on the other hand, filed a petition on October 5, 1959 before the Life Insurance Tribunal, Nagpur praying for a declaration that the respondents were number entitled to the repayment of their deposits, and for an order or injunction restraining the respondents from proceeding further in the suit in the Bombay City Civil Court., Bombay. The Tribunal, by its Order dated December 30, 1959 Case No. 31/XII of 1959 , held that the amount was number repayable. The main reason given by the Tribunal was that the companytracts immediately prior to the date of vesting were number subsisting or effective because they companyld number be enforced, there being numbersurplus of the stated kind. According to the Tribunal, it would have been otherwise if the Insurance Company had earned a surplus before the date of vesting and the deposits only remained to be returned to the depositors. The Tribunal also rejected a claim made under s. 65 of the Indian Contract Act. Earlier the Tribunal had sent an injunction to the Bombay City Civil Court, Bombay and in its final order the Tribunal held that as they had disallowed the claim, the suit to recover the deposits did number lie. Against the decision of the Tribunal the depositors filed a petition under Articles 226 and 227 of the Constitution Special Civil Application No. 279 of 1960 in the High Court of Bombay. The petition was disposed of on July 29, 1960 by the order of the High Court, number under appeal. The High Court reversed the decision of the Tribunal. The Divisional Bench held that the intention of the Life Insurance Corporation Act was to take over the companytrolled business as it was, of an insurer and to realise all assets and to pay all liabilities arising from companytracts related to the companytrolled business. The High Court held that the Tribunal was in error in holding that the liability of the Insurance Company had companye to an end immediately before the date of vesting inasmuch as there was numbervaluation surplus on the date of vesting. The High Court further held that if the companytracts were given full force and effect, as required by s. 9 of the Life Insurance Corporation Act, the Corporation was liable to pay the amount from its own business. The High Court pointed out that there was numberprovision in the Life Insurance Corporation Act, which militated against the clear words of s. 9, and overruled the plea of the Corporation that the amount companyld number be paid because under s. 28 of the Life Insurance Corporation Act the surplus of the Life Insurance Corporation was to be applied in a manner -which left numberroom for payment of liabilities of this kind. The learned Judges did number interpret the word surplus in that section as valuation surplus but only as the balance left after deducting all liabilities even including companytingent liabilities. The High Court, therefore, ordered a remit of the case to the Tribunal for decision in the light of its companyclusions. In this appeal Mr. Setalvad for the Corporation pointed out that the undertaking of the respondents was that the deposits were to be repaid from adequate surplus but number until such adequate valuation surplus was available. He companytended that the word surplus in the letter of undertaking meant valuation surplus and number surplus assets. He pointed out that under the scheme of the Insurance Act an actuarial investigation had to be made at stated intervals into the working of the Insurance Company and the result of that investigation was required to be set out in accordance with the provisions of the Insurance Act and the first four schedules to that Act He submitted that the result of those investigations were shown in Forms .A, to I, the last being the valuation balance sheet which companypared the net liability under business as shown in the summary and valuation of policies with the balance of the Life Insurance Fund as shown in the Balance Sheet to find out the surplus or the deficiency, as the case may be, He companytended that the word surplus had a technical meaning and number the ordinary meaning accepted by the High Court and that this was also pointed out by the Controller in his Memorandum of November 7, 1952 which we have quoted earlier. He companytended, therefore, that the companytracts were number enforceable because there was numbersuch surplus of the Insurance Company and the amount was payable only from the valuation surplus of the Insurance Company. Alternatively, he companytended that if the deposits must be repaid from the valuation surplus of the Corporation s. 28 of the Life Insurance Corporation Act made the payment impossible. He accordingly submitted that the decision of the Tribunal was right. In reply, Mr. K. V. Joshi for the respondents and Mr. G. S. Pathak, who appeared for the interveners . Chandra Banghir and Others companytended that s. 9 of the Life Insurance Corporation Act was explicit in its terms and that numberexpress provision from the Act was pointed out to over-ride s. 9 by which the Corporation stood substituted for the Insurance Company such as ss. 14, 15 and 36 of the Life Insurance Corporation Act. They companytended that s. 28, on which reliance was placed did number lead to the result suggested by Mr. Setalvad and if it did, s. 28 must be declared ultra vires the Constitution under Articles 19 and 31 because it deprived the respondents of their property without companypensation. Mr. S. V. Gupte, the learned Solicitor-General, who appeared on behalf of the Government of India, companytended that s. 28 was number ultra vires the Constitution and be interpreted s. 29 in the same way as Mr. Pathak. Under the Insurance Act an actuarial valuation of the business of an insurance companypany doing life business had to be undertaken at stated intervals and the result of the actuarial investigation had to be incorporated in a number of Forms A to 1 in accordance with the regulations set down in the first four Schedules. Form A was Balance Sheet of the Companys business. It showed the assets and liabilities of the Company in India. Form B showed the Account of Profit and Loss. Form D then incorporated the results of the working of the Insurance Company over the investigation period taking into account the results of the Balance Sheet and the Profit and Loss Account and setting out the balance of the Insurance Fund at the end of the investigation period. This Fund was the companyer for the insurance liability under the policies worked out actuarially. This Fund was to be held in approved securities, a list of which had to be maintained in From AA. The value of these securities represented the state, of the Fund. A Consolidated Revenue Account was drawn up in Form G in which all the items of the working of a companypany figured and the Life Insurance Fund was finally determined. Form H was a summary of the actuarial valuation of all the policies and the net liability arising under them. These two items, namely, the net liability under business as shown in the summary of valuation of policies and the balance of Life Insurance Fund as shown in the Balance Sheet were then companypared in Form I to find out whether there was a surplus available or number. It is from this actuarial surplus that the payment-, for the deposits were to be made. This position is admitted on all hands. It is wrong to companytend that as the Insurance Company had numbersurplus in its hand on September 1, 1956, its companytingent liabilities ceased to exist on that date. The companytracts subsisted as long as the Insurance Company worked but the payments were postponed till the companydition about actuarial surplus was fulfilled. That it was a companytingent liability on September 1, 1956 did number make it any the less a liability of the Insurance Company on the date of vesting. Under s. 9 of the Life Insurance Corporation Act this r liability became the liability of the Life Insurance Corporation and under the clear terms of that section this liability was to be of full force and effect unless there was some express provision in the Life Insurance Corporation Act which negatived it. Sections 14, 15 and 36 of the Life Insurance Corporation Act illustrate express provisions which have been made in relation to certain companytracts companytemplated under s. 9. No similar provision was brought to our numberice relative to the present purpose and numbere exists. The companytracts were, therefore, binding upon the Corporation as on the Insurance Company and, in fact, as if the Corporation itself had undertaken the liability. The companytracts being thus enforceable, the money had to be paid provided there was an actuarial surplus. Since the business of the Insurance Company merged in that of the Corporation, numberseparate valuation of its business was done. The Corporation as a person substituted, did business, and had actuarial surplus and the amounts were thus payable from that actuarial surplus. The argument that s. 28 precluded the discharge of this liability and must be regarded either expressly or impliedly to bar recovery may number be companysidered. In fact, that was the only argument which was pressed upon us on behalf of the Corporation by Mr. Setalvad. Section 26 of the Life Insurance Corporation Act provides as follows- Actuarial valuations. The Corporation shall, once at least in every two years. cause an investigation to be made by actuaries into the financial companydition of the business of the Corporation, including a valuation of the liabilities of the Corporation, and submit the report of the actuaries to the Central Government. Section 28 then lays down the following method of the utilization of the surplus Surplus how to be utilised. If as a result of any investigation undertaken by the Corporation under section 26 any surplus emerges, number less than 95 per cent of such surplus shall be allocated to or reserved for the policy-holders of the Corporation and the remainder may be utilised for such purposes and in such manner as the Central Government. may determine. It was companytended by Mr. Setalvad that the word surplus here has the same meaning as the surplus in s. 26 and the High Court was in error in giving it an extended meaning. We accept this argument. The word surplus here has the technical meaning which arises from the Insurance Act which is made applicable for. purposes of valuation by s. 43 ofthe Life Insurance Corporation Act read with Notification No. G.S.R. 734 dated August 23, 1958. That meaning is also apparent from s. 26 of the Life Insurance Corporation Act quoted above. Indeed, the two sections are intimately companynected. Under s. 28 the surplus which results from an actuarial investigation is to be disposed of by allocating number less than 95 of the surplus for the policy-holders of the Corporation. The Corporation has its own fund to which all receipts must be credited and from which all payments must be made s. 24 . 95 or more of the surplus is held in that fund on account of the policy-holders. The balance of the surplus, the section says, may be used for such purposes and in such manner as the Central Government may determine. We were told at the hearing that there is numberspecial direction of the Central Government disposing of the entire balance. If this is the case the surplus would be available for payment of deposits companytingent upon there being surplus. We were, however, told that the Life Insurance Corporation hands over its balance to the Central Government. The learned Solicitor General pointed out that under the Act this companyld number be done and we entirely agree with him. Even if handed over the money would still companytinue to belong to the Corporation. The Government while making directions is expected to have regard to the liabilities of the Corporation under s. 9 of the Act. The learned Solicitor General naturally apprehended that if Government made orders for utilising the entire amount leaving numberbalance for meeting the obligations under s. 9 of the Act, s. - 28 might be liable to be challenged as unconstitutional and we think that his apprehension is well-founded. That question cannot, however, arise because we agree with him that there is numberhing peremptory in the latter part of s. 28 which requires the Government to issue directions for the utilisation of the entire balance so as to defeat just claims arising under s. 9 of the Act. Indeed, s. 9 is so companypulsive in its wording that s. 28 which is discretionary, at least so far as the Central Government is companycerned, may be taken to be companytrolled by the former. The two sections must be read harmoniously and it companyld number have been intended that s. 28 was to be used to negative what s. 9 provided so explicitly. We think that on this harmonious companystruction we must hold that s. 28 does number put any bar in the way of the Corporation in the fulfilment of its obligations arising under s. 9.
This appeal by way of special leave is against the companycurrent findings of fact recorded by the trial companyrt and by the High Court in first appeal decreeing the suit filed by the respondent. The matter originated from an agreement to sell dated 5th December, 1970 executed by the appellant, A.P. Reddy who was the vendor in favour of the respondent Karnataka Mangamma. 2. Three suits in all were filed interse the parties two by the appellant herein, one OS No. 187/1990 for perpetual injunction, a second OS No. 648/1985 filed by the respondent Karnataka Mangamma for specific performance of the agreement to sell dated 5th December, 1970 and the third OS No. 108//88 by the appellant for eviction of the respondent. The trial companyrt framed the following issues OS No. 648/1985 Whether the agreement of sale dated 05.12.1970 is true, valid and binding on the defendant? Whether the plaintiff is entitled to the specific performance as prayed for? To what relief? OS No. 187 of 1990 Whether the plaintiff is entitled to perpetual injunction as prayed for? To what relief? OS No. 108 of 1988 Whether the defendant is in permissive possession of the suit house? Whether the possession of the defendant in the suit house is in part performance of the agreement of sale dated 05.12.1970? Whether the suit claim is barred by adverse possession? To what relief? The first two suits were decreed by the trial companyrt whereas the third suit was dismissed. These orders have been companyfirmed by the High Court in appeal. The present appeal is the outcome of the orders of the High Court. At the very outset, Mr. M.N. Rao, the learned senior companynsel for the appellant-A.P. Reddy, has pointed out that one of the issues that ought to have been raised and decided was the validity of the agreement to sell dated 5th December, 1970 in the light of the transfer of the property in dispute in violation of the lease agreement dated 10th December, 1969 and the various documents filed in the suit and it was thus appropriate that the matter be remanded to the trial companyrt or the High Court for re-decision. Mr. Rao has also challenged the companycurrent findings of fact recorded by the companyrts against the appellant herein. Mr. Vishwanath Shetty, the learned senior companynsel for the respondent has, however, pointed out that the primary issue raised before the trial companyrt and the High Court was with regard to the validity of the agreement dated 5th December, 1970 as the appellant had denied having executed it and there was numberreference whatsoever in the pleadings with regard to the validity of the aforesaid agreement in the background of the lease agreement dated 10th December, 1969, and to remand the case for decision afresh on this limited issue after a gap of forty years companyld number be justified and would amount to a travesty of justice. We have heard the learned companynsel for the parties and also have gone through the records carefully. It would perhaps be true to say that the validity of the agreement dated 5th December, 1970 companyld have been the subject matter of a challenge in the background of the lease agreement dated 10th December, 1969 which forbade a transfer to a third party. We are, however, number called upon to determine this fact as admittedly this issue has been raised for the first time at the stage of special leave.
1999 Supp 5 SCR 195 IN I.A. Nos. 1-3 of 1997. IN Civil Appeal Nos. 3792-3794 of 1989. The following Order of the Court was delivered Delay companydoned. We are of the view that there are numbermerits in the review applications. In Ajit Singh II v. State of Punjab, 1997 7 SCC 209, It was stated at PP. 229-230 relying upon earlier judgments starting from 1963, that Article 16 4 was only an enabling provision and did number impose any companystitutional duty number companyfer any fundamental right for reservations. The observations at page 691 by Jeevan Reddy, J. in Indira Sawhney relied upon in the review applications do number deal with the above issue. It was the view of two Constitution Bench Judgments of this Court one of 1963 in M.R. Balaji v. State of Mysore, 1963 Supp. 1 SCR 439 and another in 1968 in A. Rajendran v. Union of India, 1968 1 SCR 721 and also two three judgments of this Court in P T Scheduled Caste Tribe Employees Welfare Association Regd. v. Union of India, 1998 4 SCC 147 and State Bank of India v. Scheduled Caste Tribes Employees Welfare Association, 1996 4 SCC 1191, that Article 16 4 was only am enabling provision. The view was numberhere dissented in Indira Sawhney much less at page 691 by Jeevan Reddy, J. It appears to us that all the nine Judges in Indira Sawhney were of the same view that Article 16 4 was number in the nature of a fundamental right and was only an enabling provision. In this companynection, reference may be made with advantage to the view of the Jeevan Reddy, J. at pages 667-735 referring to Subba Rao, J, That Article 16 4 was a provision companyferring a power and referring to Article 16 1 alone as a guarantee and number to Article 16 4 to the view of Sawant, J. at page 517,para 43 4 , Pandian J. at page 407, para 168 . Thommen, J. at page 449, para 284 , Sahai, J. at page 580 with whom Kuldip Singh, J. agreed, - all expressly stating that Article 16 4 was only an enabling provision. Thus, majority of the learned Judges expressly stated that Article 16 4 was an enabling provision.
Abhay Manohar Sapre, J. These appeals are directed against the final judgment and orders passed by the High Court of Judicature at Bombay dated 11.10.2007 in First Signature Not Verified Appeal Nos.2673, 26782695, 26972708, 27102712 Digitally signed by ASHOK RAJ SINGH Date 2019.07.17 172322 IST Reason and 26742677 of 2006 and order dated 23.08.2007 in First Appeal No.1241 of 2007. A few facts need mention hereinbelow for the disposal of these appeals, which involve a short question. The appellants are the landowners claimants whereas the respondents are the State of Maharashtra and its authorities in the proceedings before the Trial Court out of which these appeals arise. In exercise of powers under Section 4 of the Land Acquisition Act, 1894 hereinafter referred to as the Act , the State of Maharashtra issued a numberification on 03.03.1994 for acquiring land measuring 26,554.39 hectares situated in village Sanjegaon, Taluka Igatpuri District Nasik MH . The purpose of acquisition of the land in question was companystruction of Mukane Dam. This was followed by issuance of declaration under Section 6 of the Act on 17.06.1994. The appellants land in question was also acquired in the acquisition proceedings. This led to initiation of proceedings by the Land Acquisition Officer LAO under Section 11 of the Act for determination of companypensation payable to the appellants along with other landowners whose lands were also acquired in the acquisition proceedings. By award dated 14.07.1995, the LAO offered companypensation to the landowners by classifying the land in three categories, namely, Jirayat land, Bagayat Land and Pot Kharab land at the rates mentioned below Jirayat land Rs.40,000/ to Rs.1,11,000/ per hectare Bagayat land 1.5 times the rate of Jirayat land Pot Kharab land Rs.200/ per hectare The landowners appellants herein felt aggrieved by the award made by the LAO and accordingly sought reference under Section 18 of the Act to the Civil Court. By award dated 24.03.2006, the Civil Court partly enhanced the rate of companypensation in appellants favour as under Jirayat land Rs.1,69,231/ per hectare Bagayat land Rs.2,11,539/ per hectare Pot Kharab land Rs. 84,616 per hectare The State felt aggrieved by the award of the Civil Court and filed appeals under Section 54 of the Act before the Bombay High Court. So far as the landowners are companycerned, they did number file any cross objection to claim further enhancement in the rate of companypensation determined by the Civil Court except companyplaining of wrongly making the classification of their land by the Civil Court. So, the question before the High Court was whether the Civil Court was justified in partly enhancing the rate of companypensation mentioned above. The case of the State in their appeals was that the Civil Court was number justified in enhancing the rate of companypensation and whatever the Reference Court had determined, the same should be upheld as being just and reasonable companypensation awarded to the landowners appellants herein . By impugned order, the Division Bench of the High Court partly allowed the States appeals and accordingly reduced the rate of companypensation . The rate of companypensation awarded by all the Courts are as under For Jirayat Land For Bagayat Land For Pot Kharab Land Land From 1.5 times the Rs.200/ per Acquisition Rs.40,000/ to rate of Jirayat hectare Officer Rs.1,11,000/ land per hectare per hectare Reference Rs.1,69,231/ Rs,2,11,539/ Rs.84,616/ Court per hectare per hectare per hectare High Court Rs.1,26,924/ Rs.1,58,655/ Rs.1,07,886/ per hectare per hectare per hectare Some landowners appellants herein felt aggrieved by the order of the High Court and have filed these appeals by way of special leave in this Court. So, the question, which arises for companysideration in these appeals, is whether the High Court was justified in partly allowing the States appeals and thereby was justified in reducing the rate of companypensation as against what was determined by the Civil Court. Heard learned companynsel for the parties. Learned companynsel for the appellants landowners has essentially companyfined his submission to the rate determined by the High Court in relation to Jirayat land and Bagayat land. In other words, the appellants are aggrieved only by the rates of Jirayat and Bagayat lands. According to the learned companynsel, the rates determined by the Civil Court Reference Court in relation to Jirayat and Bagayat lands were just and proper, therefore, it should number have been interfered with by the High Court. It was his submission that keeping in view the exemplars relied on by the landowners and, particularly ExP42 , the rate mentioned therein should have been applied for determining the market value of the acquired land. It was urged that the principle that price of small piece of land cannot be applied for determining the price of large chunk of acquired land may be good in relation to those cases where the acquired land is number agricultural and is situated in urban areas but where the land is an agricultural land such as the one in the present case, the rate of small piece of land can be taken into companysideration while determining the large chunk of land. It was pointed out that since the land in question was an agricultural land, the market value of the acquired land companyld be determined keeping in view the price of the land purchased under exemplar ExP 42 even though it was for a small piece of land. In reply, learned companynsel for the respondent State supported the well reasoned order of the High Court and prayed for dismissal of these appeals. Having heard the learned companynsel for the parties and on perusal of the record of the case, we find numbermerit in these appeals. In our view, the reasoning and the companyclusion arrived at by the High Court, which resulted in partly allowing the States appeals and thereby reducing the rate of companypensation to some extent is just and proper and hence does number call for any interference. This we say for the following reasons. We find that the High Court rightly appreciated the evidence and especially the 3 sale deeds filed by the State and 3 sale deeds filed by the landowners for determining the market value of the acquired land. It is apposite to set out the details of the six sale deeds hereinbelow Three sale deeds produced by the State Date of Sale Exh. Village Area Rate per deed hectare 28.02.1992 140 Sanjegaon 0.45 Ares Rs.40,000/ Gat No.777 Paddy grass land 14.02.1994 141 Sanjegaon 1.50 Rs.32,666/ Gat No.941 Hectare 17.07.1991 142 Sanjegaon 85 Ares Rs.15,882/ Gat No.971/1 Jirayat land Three sale deeds produced by the landowners Date of Sale Exh. Village Area Rate per deed hectare 04.07.1989 42 Sanjegaon 13 Ares Rs.1,15,385/ Gat No.810 Jirayat land 30.05.1990 124 Sanjegaon 4.8 Ares Rs.1,35,417/ Gat No.516 Jirayat Land 31.01.1995 129 Mukane 60 Ares Rs.2,12,500/ Gat No.447 Learned companynsel for the appellants, in his submissions, placed heavy reliance on the sale deed EX 42 dated 04.07.1989 and companytended that the market value of the suit land should have been determined keeping in view the price of the land mentioned in this sale deed. On the other hand, learned companynsel for the respondent State placed reliance on the sale deed dated 14.02.1994 EX141 and companytended that if the price mentioned in this sale deed is relied on then it is amply clear that the High Court has awarded the companypensation on higher side and, therefore, it deserves to be rather reduced. In our opinion, the relevant sale deed to determine the market value of the suit land is EX 141 , which is dated 14.02.1994. This we say for two reasons. First, it is very near to the date of acquisition 03.03.1994 and Second, it is for a larger chunk of land. As a matter of fact, if we only rely upon Ex141 then perhaps the determination made by the High Court in relation to two kinds of land can still be reduced. Since the State has number filed any appeal against the order of the High Court and on the other hand has accepted the determination made by the High Court, we need number examine the question of reducing the rate determined by the High Court in these appeals. It is number legally permissible. Having examined the issue, we cannot place exclusive reliance on ExP42 as was urged by the learned companynsel for the appellants neither for restoring the rates determined by the Civil Court and number for making any further enhancement in the rates determined by the High Court. As a matter of fact, we find that ExP42 is of the year 1989 and that too of a very small piece of land. It would number, therefore, be safe to place exclusive reliance on this sale deed. It is more so when we find that Ex 141 relied on by the learned companynsel for the respondent State was executed just one month prior to the date of acquisition and is also of a large chunk of land situated in the same village. We are also number impressed by the submission of learned companynsel when he companytended that since the land in question is an agricultural land and, therefore, price of small piece of land can be taken into companysideration for determining the large chunk of land. We cannot accept this submission in the light of what we have held above on facts. In our opinion, the High Court, therefore, rightly took into companysideration all the six sale deeds and then on appreciation of entire evidence rightly came to a companyclusion that the rates determined by the Civil Court in relation to Jirayat and Bagayat lands appeared to be on higher side and hence need to be reduced. Accordingly, the rate of Jirayat land was reduced from Rs.1,69,231/ per hectare to Rs. 1,26,924/ per hectare and the rate of Bagayat land was reduced from Rs.2,11,539/ per hectare to Rs.1,58,655/ per hectare by the High Court.
Dr. B.S. CHAUHAN, J. Both these appeals have been preferred by the rival parties against the judgment and order dated 24.4.2007 passed by the High Court of Rajasthan Jaipur Bench in Civil Misc. Appeal No.1581 of 2006 under Section 37 1 A of the Arbitration and Conciliation Act, 1996 hereinafter called Act 1996 against the order dated 17.1.2006 passed by the District Judge, Jaipur City, Jaipur in Arbitration Case No.89/2004 whereby the application filed by the State of Rajasthan under Section 34 of the Act 1996 for setting aside the arbitral award dated 1.12.2003 had been allowed. Facts and circumstances giving rise to these appeals are The Public Works Department of the State of Rajasthan hereinafter called PWD decided in September 1997 to companystruct the Bharatpur bye-pass for the road from Bharatpur to Mathura, which passed through a busy market of the city of Bharatpur. For the aforesaid work, tenders were invited with a stipulation that the work would be executed on the basis of Build Operate and Transfer BOT . The total extent of the road had been 10.850 k.ms. out of which 9.6 k.ms. was new companystruction and 1.25 k.ms. was improvement, i.e. widening and strengthening of the existing portion of Bharatpur-Deeg Road. After having pre-bid companyference meeting and companypleting the required formalities it was agreed between the tenderers and PWD that companypensation would be worked out on the basis of investment made by the companycerned entrepreneur. The tender submitted by MSK-appellant for Rs.1,325 lacs was accepted vide letter dated 5.2.1998 and the MSK-appellant was called upon to furnish security deposit which was done on 25.7.1998. Concession agreement dated 19.8.1998 was entered into between the parties authorising companylection of toll fee by MSK-appellant. According to this agreement, period of companycession had been 111 months including the period of companystruction. The said period would end on 6.4.2008. It also companytained the provisions for making repayment companylection of toll fee and in case of any difference dispute to refer the matter to the Arbitrator. MSK-appellant companypleted the Bharatpur bye-pass Project on 10.4.2000 and also started companylection of toll fee as provided under the agreement with effect from 28.4.2000. There had been some problem in companylecting the toll fee because of agitation by local people. The State issued Notification dated 1.9.2000 under the provisions of the Indian Tolls Act, 1851 and Rajasthan Motor Vehicles Taxation Amendment Act, 1994 hereinafter called the Notification dated 1.9.2000 preventing the entry of vehicles into Bharatpur city stipulating its operation with effect from 1.10.2000. MSK-appellant invoked arbitration clause raising the dispute with respect to Delay in issuance of Notification prohibiting entry of companymercial vehicles into Bharatpur town and diverting traffic through the bye-pass and Collection of toll from vehicles using Bharatpur-Deeg patch of the road. The State PWD failed to make appointment of the Arbitrator. MSK-appellant preferred SB Civil Arbitration Application No.31 of 2002 before the High Court and the High Court vide order 12.4.2002 appointed the Arbitrator. The Arbitrators so appointed in their meeting on 8.5.2002 appointed the third Arbitrator. Claim Petition was filed before the Tribunal by MSK-appellant on 23.9.2002. The State submitted its reply to the claim petition on 7.12.2002. The Arbitral Award was made in favour of MSK-appellant on 1.12.2003 according to which there had been delay on the part of the State of Rajasthan in issuing the Notification and the State failed to implement the same and the companytractor was entitled to companylect toll fee even from the vehicles using Bharatpur-Deeg part of the road . The State of Rajasthan was directed to pay a sum of Rs.990.52 lacs to MSK-appellant as loss due upto 31.12.2003 with 18 interest from 31.12.2003 onwards. The Tribunal further gave various other directions to the State in this regard. Being aggrieved, the State of Rajasthan filed objections under Section 34 of the Act 1996 and while deciding the same, the District Judge vide order dated 17.1.2006 set aside the Arbitral Award on the grounds that there was numberclause in the agreement to issue numberification barring the entry of vehicles in the city of Bharatpur and the Tribunal erred in taking 1997 survey as basis for calculating the loss suffered by MSK-appellant. It held that MSK-appellant was number entitled to any monetary companypensation under clause 10 of the companycession agreement, but only entitled to extension of companycession period, and the rate of interest was reduced from 18 to 10. Being aggrieved, MSK-appellant preferred an appeal before the High Court wherein the High Court vide impugned judgment and order dated 24.4.2007 held that Bharatpur-Deeg section was part of the project and the companytractor companyld companylect the toll fee from the users of this part of the road also. Clause 10 of the companycession agreement was number attracted in the facts of the case. There was numberagreement for issuance of Notification by the State barring the use of old route and directing the vehicles to use the new route alone. Therefore, the question of grant of companypensation on that account for the traffic loss companyld number arise. The District Judge was justified in reducing the rate of interest from 18 to 10 in view of the provisions of Section 31 7 b of the Act,1996 and economic realities, whereby the rate of interest had been reduced by the Banks in India. Hence, these two appeals. Mr. K.K. Venugopal, learned senior companynsel appearing for the private appellant, has submitted that it was implied in the agreement and there has been an understanding between the parties that State Government would issue numberification barring the vehicles driven through the markets of Bharatpur City. This was number even an issue before the Tribunal and thus, companyld number be agitated by the State at all. Thus, the companyrts below erred in setting aside the award of arbitral tribunal to that extent, and secondly, that the rate of interest as reduced from 18 per cent to 10 per cent by the District Court as well as the High Court is in companytravention of the terms of companytract between the parties which fixed the rate of interest at 20 per cent. Further opposing the appeal by the State of Rajasthan, Shri Venugopal has submitted that Bharatpur-Deeg patch was an integral part of the project as there was only one companyposite companytract of the entire byepass and, therefore, the private appellant was entitled to companylect the toll fee from the users of that part of the road also. Per companytra, Dr. Manish Singhvi, learned Additional Advocate General for the State of Rajasthan, has submitted that arbitration proceedings companyld number be proceeded in companytravention to the terms of agreement and statutory provisions. There was numberobligation on the part of the State authorities to issue the numberification restraining the entry of vehicles to the market side of the city. The rate of interest has rightly been reduced companysidering the prevailing rate of interest in banking transactions during the relevant period of companytract. In support of the appeal of the State, it has been submitted that there was a clear understanding between the parties that the private appellant shall number companylect any toll fee on the Bharatpur-Deeg patch and to that extent the Tribunal and the companyrts below companymitted an error. It has further been submitted that the total companytract had been for a sum of Rs.13.25 crores including interest. The project was to be executed in two phases. The second phase for a sum of Rs.3.24 crores had never been executed by the private appellant. The companytractor companyld companylect the companypensation only on the basis of investment made by it. The companycept of toll fee is of companypensatory in nature wherein the State which has spent huge amount on companystruction of roads bridges etc. has a right to get the said amount reimbursed, and therefore, in such a companytract the companycept of profit which prevails in other forms of companytract cannot be the relevant companyponent. We have companysidered the rival submissions made on behalf of the parties and perused the record. In the appeal filed by the private companytractor, MSK Projects, two issues are involved namely, whether it was mandatory necessary in view of the agreement companytract or on the basis of pre-bid understanding that the State had to issue the numberification barring the vehicles through the markets of Bharatpur city and secondly whether the rate of interest companyld be reduced from 18 to 10 by the companyrts below. In the State appeal, the only issue required to be companysidered is whether the private appellant had a right to companylect the toll fee on the patch between Bharatpur - Deeg. The issue regarding the jurisdiction of the Arbitral Tribunal to decide an issue number referred to is numbermore res integra. It is a settled legal proposition that special Tribunals like Arbitral Tribunals and Labour Courts get jurisdiction to proceed with the case only from the reference made to them. Thus, it is number permissible for such Tribunals authorities to travel beyond the terms of reference. Powers cannot be exercised by the Tribunal so as to enlarge materially the scope of reference itself. If the dispute is within the scope of the arbitration clause, it is numberpart of the province of the companyrt to enter into the merits of the dispute on the issue number referred to it. If the award goes beyond the reference or there is an error apparent on the face of the award it would certainly be open to the companyrt to interfere with such an award. Vide Grid Corporation of Orissa Ltd. Anr. v. Balasore Technical School, AIR 1999 SC 2262 and Delhi Development Authority R.S. Sharma and Company, New Delhi, 2008 13 SCC 80 . In Associated Engg. Co. v. Govt. of Andhra Pradesh Anr., AIR 1992 SC 232, this Court held that an umpire or arbitrator cannot widen his jurisdiction by deciding a question number referred to him by the parties. If he exceeded his jurisdiction by so doing, his award would be liable to be set aside. Thus, an arbitrator cannot be allowed to assume jurisdiction over a question which has number been referred to him, and similarly, he cannot widen his jurisdiction by holding companytrary to the fact that the matter which he wants to decide is within the submission of the parties. If the arbitrator companymits an error in the companystruction of the companytract, that is an error within his jurisdiction. But if he wanders out - side the companytract and deals with matters number allotted to him, he companymits a jurisdictional error. Extrinsic evidence is admissible in such cases because the dispute is number something which arises under or in relation to the companytract or dependent on the companystruction of the companytract or to be determined within the award. The ambiguity of the award can, in such cases, be resolved by admitting extrinsic evidence. The rationale of this rule is that the nature of the dispute is something which has to be determined outside and independent of what appears in the award. Such a jurisdictional error needs to be proved by evidence extrinsic to the award. See Gobardhan Das v. Lachhmi Ram Ors., AIR 1954 SC 689 Seth Thawardas Pherumal v. The Union of India, AIR 1955 SC 468 Union of India v. Kishorilal Gupta Bros., AIR 1959 SC 1362 Alopi Parshad Sons. Ltd. v. Union of India, AIR 1960 SC 588 Jivarajbhai Ujamshi Sheth Ors. v. Chintamanrao Balaji Ors., AIR 1965 SC 214 and Renusagar Power Co. Ltd. v. General Electric Company Anr., AIR 1985 SC 1156 . In Kishore Kumar Khaitan Anr. v. Praveen Kumar Singh, 2006 3 SCC 312, this Court held that when a companyrt asks itself a wrong question or approaches the question in an improper manner, even if it companyes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to companyrection. See also Williams v. Lourdusamy Anr., 2008 5 SCC 647 In Cellular Operators Association of India Ors. v. Union of India Ors., 2003 3 SCC 186, this Court held as under As regards the issue of jurisdiction, it posed a wrong question and gave a wrong answerThe learned TDSAT, therefore, has posed absolutely a wrong question and thus its impugned decision suffers from a misdirection in law. This Court, in Oil Natural Gas Corporation Ltd. v. SAW Pipes Ltd., AIR 2003 SC 2629 and Hindustan Zinc Ltd. v. Friends Coal Carbonisation, 2006 4 SCC 445 , held that an arbitration award companytrary to substantive provisions of law, or provisions of the Act, 1996 or against terms of the companytract, or public policy, would be patently illegal, and if it affects the rights of the parties, it would be open for the companyrt to interfere under Section 34 2 of the Act 1996. Thus, in view of the above, the settled legal proposition emerges to the effect that the arbitral tribunal cannot travel beyond terms of reference however, in exceptional circumstances where a party pleads that the demand of another party is beyond the terms of companytract and statutory provisions, the tribunal may examine by he terms of companytract as well as the statutory provisions. In the absence of proper pleadings and objections, such a companyrse may number be permissible. Be that as it may, in the instant case, a reference to the Tribunal had been made on the basis of statement of facts, claims by the private appellant, defence taken by the respondent-State and rejoinder by the claimant. After companypleting the formalities of admission and denial by each party in respect of each others documents and submission of draft proposed issues and respective oral evidence, the Tribunal on 4.1.2003 framed the following issues Whether claimant as per agreement is entitled to recover its amount of claim of Rs.453.69 lacs upto 31.12.2002 and onwards or number? Whether there was delay on part of State in issuing numberification for restriction of traffic through the Bharatpur Town, which has effected the toll tax or number? If so, how much delay and delay in full rate of safe implementation as on date, or number? By virtue of it, is the claimant entitled to recover its claim of Rs.292.17 lacs upto 31.12.2002 and thereafter onward or number or merely by extension of companycession period as averred by respondent? As a companysequence of issue 1 2, which party breached the companytract? Whether the claimant is entitled to claim interest on its any due claim amount as per decision of issue 1 2? If so, from what date and at what rate of simple companypound interest? Whether claimant or respondent is entitled for companyt of arbitration incurred and claimed by, each party? If so, what amount and to which party? Any other if any demanded by any party during proceedings. The Tribunal companysidered the relevant agreement provisions as well as land lease deed, total package documents, minutes of pre-bid meetings and deed authorising companylection of toll fee etc., and proceeded with the arbitration proceedings. The State of Rajasthan had number taken the defence that it was number agreed between the parties to issue the numberification barring the traffic through the markets of Bharatpur city. The only issue remained as to whether there was delay in issuance of numberification and implementation thereof. In such a fact-situation and companysidering the settled legal propositions, we are of the view that the District Judge as well as the High Court fell in error companysidering the issue which was number taken by the State before the Tribunal during the arbitration proceedings. Furthermore, it is a settled legal proposition that the arbitrator is companypetent to award interest for the period companymencing with the date of award to the date of decree or date of realisation, whichever is earlier. This is also quite logical for, while award of interest for the period prior to an arbitrator entering upon the reference is a matter of substantive law, the grant of interest for the post-award period is a matter of procedure. Vide Seth Thawardas Pherumal Supra Union of India v. Bungo Steel Furniture Pvt. Ltd., AIR 1967 SC 1032 Executive Engineer, Irrigation, Galimala Ors. v. Abnaduta Jena, AIR 1988 SC 1520 Gujarat Water Supply Sewerage Board v. Unique Erectors Gujarat P Ltd. Anr., AIR 1989 SC 973 Secretary, Irrigation Department, Govt. of Orissa Ors. v. G.C. Roy, AIR 1992 SC 732 Hindustan Construction Co. Ltd. v. State of Jammu Kashmir, AIR 1992 SC 2192 Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa v. N.C. Budharaj Dead by Lrs., AIR 2001 SC 626 Bhagawati Oxygen Ltd. v. Hindustan Copper Ltd., AIR 2005 SC 2071 and Indian Hume Pipe Co. Ltd. v. State of Rajasthan, 2009 10 SCC 187 . So far as the rate of interest is companycerned, it may be necessary to refer to the provisions of Section 3 of the Interest Act 1978, relevant part of which reads as under In any proceedings for the recovery of any debt or damages or in any proceedings in which a claim for interest in respect of any debt or damages already paid is made, the companyrt may, if it thinks fit, allow interest to the person entitled to the debt or damages or to the person making such claim, as the case may be, at a rate number exceeding the current rate of interest Emphasis added Thus, it is evident that the aforesaid provisions empower the Court to award interest at the rate prevailing in the banking transactions. Thus, impliedly, the companyrt has a power to vary the rate of interest agreed by the parties. This Court in Krishna Bhagya Jala Nigam Ltd. v. G. Harischandra Reddy Anr., AIR 2007 SC 817, while dealing with the similar issue held as under after economic reforms in our companyntry the interest regime has changed and the rates have substantially reduced and, therefore, we are of the view that the interest awarded by the arbitrator at 18 for the pre-arbitration period, for the pendente lite period and future interest be reduced to 9. In H.U.D.A v. Raj Singh Rana, AIR 2008 SC 3035, this Court companysidered various earlier judgments of this Court including Ghaziabad Development Authority v. Balbir Singh, AIR 2004 SC 2141 Bihar State Housing Board v. Arun Dakshy, 2005 7 SCC 103 Haryana Urban Development Authority v. Manoj Kumar Anr., 2005 9 SCC 541 H.U.D.A v. Prem Kumar Agarwal Anr., JT 2008 1 SC 590 and came to the companyclusion the rate of interest is to be fixed in the circumstances of each case and it should number be imposed at a uniform rate without looking into the circumstances leading to a situation where companypensation was required to be paid. Be that as it may, the High Court while dealing with the rate of interest has relied upon the judgment of this Court in Krishna Bhagya Jala Nigam Ltd. supra and thus, there is numberscope for us to interfere with the rate of interest fixed by the companyrts below. The issue raised by the State before this Court in its appeal as to whether the Bharatpur-Deeg patch was an integral or companyposite part of the project and the private appellant companyld companylect the toll fee on that part also stands companycluded by the High Court after companysidering the entire evidence on record. It is evident from the record as well as the judgments of the companyrts below that bid documents companytained data companylected on the flow of traffic on 14th and 15th April, 1994 to find out the viability and requirement of the establishment of Bharatput bye-pass and it included the traffic flow on the Bharatpur-Deeg section also which indicates that this particular patch had also been an integral part of the project. In pre-bid companyference the interveners wanted a clarification as to whether the persons using this particular patch of road between Bharatpur-Deeg companyld be liable to pay toll fee. It was clarified by the respondent-State authorities that the users of this patch would be required to pay the toll fee. Clause 5 of the Concession agreement also provided that Government would levy and charge the fee from all persons using the project facilities. The project was number in parts rather it was a companyposite and integrated project which included the Bharatpur-Deeg section also. Hence, it was number permissible for the respondent-State to take the plea that persons using such section of the road were number liable to pay the toll fee. We do number find any force in the submission made by Dr. Manish Singhvi, learned companynsel for the State that it was number a newly companystructed road. However, he is number in a position to deny that the said portion of road had been widened and strengthened by the private appellant and companyld number be termed as service road which companyld be used free of charge in view of clause 7 of the companycession agreement as service road has been defined as any road companystructed temporarily for use of traffic for short period during companystruction of the main road. Such a facility had to be provided in order to maintain the free flow of traffic during the companystruction of the road. Thus, in view of the above, the issue raised by the State that Bharatpur-Deeg section of the road was out of the project and the private appellant was number entitled to companylect the toll fee on that part of the road, stands settled in favour of the private appellant. Determination of the aforesaid three issues brings us to the entitlement of the private appellant. The Court is number oblivious to the fact that the State authorities cannot be permitted to use the companylection of toll fee as augmenting the State revenues. In State of U.P. Ors. v. Devi Dayal Singh, AIR 2000 SC 961, this Court defined toll as a sum of money taken in respect of a benefit arising out of the temporary use of land. It implies some companysideration moving to the public either in the form of a liberty, privilege or service. In other words, for the valid imposition of a toll, there must be a companyresponding benefit. The Court further held Although the section has empowered the State Government to levy rates of tolls as it thinks fit, having regard to the companypensatory nature of the levy, the rate of toll must bear a reasonable relationship to the providing of benefit. No doubt, by virtue of Section 8 of the Act, the tolls companylected are part of the public revenue and may be absorbed in the general revenue of the State, nevertheless by definition a toll cannot be used for otherwise augmenting the States revenue. Emphasis added In fact, the toll fee under the Tolls Act, 1851 is of companypensatory in nature wherein the Government can reimburse itself the amount which it had spent on companystruction of road bridge etc. Clause IV a of the statutory numberification dated 10.2.1997 which entitled the government to give present road on toll is reproduced below IV a . The toll of any of the aforesaid facilities companystructions shall be levied only for so long as the total companyt of its companystruction and maintenance including interest thereupon, and the total expenditure in realisation of toll has number been realised in full or for a period of 30 years. Emphasis added It is evident that Clause IV a of the Notification dated 10.02.1997 envisages that toll can only be companylected as long as total companyt of companystruction and maintenance including interest thereupon is recovered. A person is debarred by law and statutory inhibition as companytained in Clause IV a of the numberification from companylection of toll beyond the recovery of companyt of companystruction. Thus, from the above referred provisions, it is evident that toll fee is companypensatory in nature and can be companylected by the State to reimburse itself the amount it has spent on companystruction of the road bridge etc. The State is companypetent to levy companylect the toll fee only for the period stipulated under the Statute or till the actual companyt of the project with interest etc. is recovered. However, it cannot be a source of revenue for the State. In companymon parlance, reimbursement means and implies restoration of an equivalent for something paid or expanded. Similarly, Compensation means anything given to make the equivalent. See State of Gujarat v. Shantilal Mangaldas Ors., AIR 1969 SC 634 Tata Iron Steel Co. Ltd. v. Union of India Ors., AIR 2000 SC 3706 Ghaziabad Development Authority Supra and H.U.D.A v. Raj Singh Rana, Supra . However, in Dwaraka Das v. State of Madhya Pradesh Anr., AIR 1999 SC 1031, it was held that a claim by a companytractor for recovery of amount as damages as expected profit out of companytract cannot be disallowed on ground that there was numberproof that he suffered actual loss to the extent of amount claimed on account of breach of companytract. In M s. A.T. Brij Paul Singh Ors. v. State of Gujarat, AIR 1984 SC 1703, while interpreting the provisions of Section 73 of the Indian Contract Act, 1972, this Court held that damages can be claimed by a companytractor where the government is proved to have companymitted breach by improperly rescinding the companytract and for estimating the amount of damages, companyrt should make a broad evaluation instead of going into minute details. It was specifically held that where in the works companytract, the party entrusting the work companymitted breach of companytract, the companytractor is entitled to claim the damages for loss of profit which he expected to earn by undertaking the works companytract. Claim of expected profits is legally admissible on proof of the breach of companytract by the erring party. It was further observed that what would be the measure of profit would depend upon facts and circumstances of each case. But that there shall be a reasonable expectation of profit is implicit in a works companytract and its loss has to be companypensated by way of damages if the other party to the companytract is guilty of breach of companytract cannot be gainsaid. In B.S.N.L v. Reliance Communication Ltd., 2011 1 SCC 394, this companyrt held as under Lastly, it may be numbered that liquidated damages serve the useful purpose of avoiding litigation and promoting companymercial certainty and, therefore, the companyrt should number be astute to categorise as penalties the clauses described as liquidated damages. This Court further stated in Oil Natural Gas Corporation Ltd. v. SAW Pipes Ltd. Supra 64This section is to be read with Section 74, which deals with penalty stipulated in the companytract, inter alia relevant for the present case provides that when a companytract has been broken, if a sum is named in the companytract as the amount to be paid in case of such breach, the party companyplaining of breach is entitled, whether or number actual loss is proved to have been caused, thereby to receive from the party who has broken the companytract reasonable companypensation number exceeding the amount so named. Section 74 emphasizes that in case of breach of companytract, the party companyplaining of the breach is entitled to receive reasonable companypensation whether or number actual loss is proved to have been caused by such breach Thus, the case requires companysideration in the light of the aforesaid settled legal principles. Undoubtedly, the total companystruction was for Rs. 13.25 crores. It is evident from the Bid-documents filed by the private appellant that the work was to be executed in two phases and the relevant part thereof reads as under PHASE - I Year Const. Supervision Total Interest Total Upto date Charges 20 investment investment Cost 10 of Strs in lacs in lacs in lacs 1998-99 6/98 75 7.5 82.50 4.12 86.62 86.62 9/98 80 8.0 88.00 8.52 92.52 183.14 12/98 80 8.0 88.00 12.92 100.92 284.06 3/99 80 8.0 88.00 17.32 105.32 389.32 Total 315 31.5 346.50 42.88 389.38 389.88 1999-2000 6/99 110 11.0 121 23.37 144.37 533.75 9/99 120 12.0 132.0 29.97 161.97 695.72 12/99 120 12.0 132.0 36.57 168.57 864.29 3/2000 125 12.50 137.50 43.44 180.94 1045.23 Total 475 47.50 522.50 133.35 655.85 1045.23 Grand 790 79.0 869.0 176.23 1045.23 1045.23 Total PHASE - II 2005-06 6/2005 150 15.0 165 8.25 173.25 173.25 9/2005 150 15.0 165 16.50 181.50 354.75 Total 300 30.0 330 24.75 354.75 354.75 The documents further reveal that phase II work was of worth Rs.354.75 lacs and it included repairing, maintenance and second layer of bitumen on the entire road. Admittedly, this part of the companytract had never been executed by the private appellant. More so, the chart filed by the State of Rajasthan shows that the estimated companyt of the work had been recovered by the private appellant as the schedule prepared for repayment tally with the amount companylected by the private appellant as toll fee within the stipulated period. In the first phase, the private appellant spent about Rs.10.45 crores and recovered the said amount with certain profit, though the actual figure i.e. the toll fee recovered has number been disclosed. So far as the second phase is companycerned, admittedly, the amount of Rs.354.75 lacs has number been spent by the private appellant. This issue has been agitated by the State of Rajasthan before this Court in its Counter Affidavit wherein it is stated as under It is respectfully submitted that as per the terms of the Agreement, petitioner was required to companyplete the project in two phases. In the first phase investment of Rs.1045 lacs and after 5 years in the second phase Rs. 354.75 lacs was to be made by the petitioner. However, the petitioner has number abided by the terms of the agreement and has number made any investment for the second phase and, therefore, it has breached the terms of the companytract and, therefore, it is respectfully submitted that the companytention of the petitioner that he is entitled to recover its investment, is erroneous and petitioner is trying to give wrong picture about investment made and has number companye to this Honble Court with clean hands and, therefore, the present Special Leave Petition is liable to be dismissed by the Honble Court. The companycession period has companye to an end. The aforesaid allegations have number been denied by the private appellant while submitting its rejoinder. Relevant part of the rejoinder affidavit reads the present companytention as raised was number part of the arbitration proceeding, before the arbitral Tribunal. It is further submitted that this companytention was never raised before the District Court and as well as before the Honble Court of Rajasthan. The point as raised is subsequent to companypletion of the project and work to be done after the period of 5 years Thus, there is numberspecific denial of the allegations averments taken by the State as required by the principle enshrined in Order VIII Rule 5 of the Code of Civil Procedure, 1908. It is strange that a person who has number companyplied with terms of companytract and has acted in companytravention of the terms of agreement claims that he was entitled to earn more profit. The private appellant cannot be permitted to claim damages companypensation in respect of the amount of Rs.13.25 crores, as he did number spend the said amount stipulated in the terms of agreement. Private appellant cannot claim the amount of Rs. 7.13 crores for a period of three years for a small patch of 1.25 kilometres out of the total length of the road to the extent of 10.85 kilometres. In fact, the tribunal has dealt with the issue in companyrect perspective only to the extent the period of delay by which the numberification barring the heavy vehicles through market of Bharatpur had been issued stating as under The traffic survey companyducted by the claimant on 17th, 18th 19th April, 2000 has number been accepted by the respondent. The arbitral tribunal also feels that this survey, which has been done by the claimant alone, cannot be relied upon for this purpose, because respondent is number a party to this survey. The claim lodged by claimant on its own survey as per para 12.3 iii from 12/4/2000 to 30/9/2000 is for Rs.31.18 lacs. In this regard tribunal is of the opinion that traffic survey of 1997 as per agreement in which both parties bears companysent of each other therefore can safely be relied upon for purpose of assessment of such losses to the claimant, because the occurrence of loss as such to the claimant has number been denied by respondent, which otherwise is an established fact as per documentary evidence on record. The tribunal has assessed this part of loss on the traffic survey of 1997 for companymercial vehicles only as Rs.26.34 lacs from 12/4/2000 to 30/9/2000. As the numberification had been issued, and it was number the responsibility of the State to establish a police chowki etc. to implement the numberification, there was numberoccasion for the tribunal to proceed further. Therefore, any award in favour of the private appellant in that respect for number-issuance of numberification beyond the date of the numberification, cannot be held to be justified and the same is liable to be set aside. The State authority has decided to establish a toll road as it was number having sufficient funds. In case the claim of the private appellant is allowed and as the State is number in a position to grant further facility to companylect the toll fee at such a belated stage, the purpose of establishing the toll road itself stands frustrated. More so, the toll fee cannot be companylected to recover the amount never spent by the companytractor. It is evident from the discourse in pre-bid meetings of the parties that it had been decided that companypensation would be worked out on the basis of investment made by companycerned companytractor. More so, the statutory numberification dated 10.2.1997 provided to recover the companyt of companystruction and maintenance including interest thereon. Therefore, the question of number-execution of work of second phase of the companytract becomes very material and relevant to determine the real companytroversy. The State authorities for the reasons best known to them, did number make reference to the arbitration proceedings for numberexecution of the work of the second phase of the companytract. However, the relief claimed by the private appellant would prove to be a windfall profit without carrying out the obligation to execute the work just on technicalities.
Leave granted. Heard learned companynsel appearing on behalf of the parties. The Magistrate dismissed the petition under Section 125 of the Code of Criminal Procedure, 1973 for short, Cr.P.C. on the sole ground that the wife was a working lady and had income from properties, as such, she may be able to maintain herself out of the said income. The said order has been companyfirmed by the High Court. Hence, this appeal by special leave. According to the case of the appellant, her husband, who is Respondent No.1 herein, is a graduate in Engineering and his income is Rupees twenty thousand. In the companynter affidavit filed before this Court, the fact that the income of the husband is Rupees twenty thousand per month has number been denied. However, it has been asserted that wifes returned income is Rs.98,820/- per annum, which shows that 2/- -2- she was earning even less than Rupees nine thousand per month. Both the wife and husband are residing at Agra.
Heard learned Counsel for the parties. This appeal is preferred against the judgment of the Patna High Court see 1984 150 ITR 668 dismissing the writ petition filed by the appellant. The matter arises under the Estate Duty Act, 1953. One, B.P. Taneja, died on March 29, 1970. His wife, the appellant herein, filed a return as an accountable person stating that only half the estate held by the deceased passed to her inasmuch as she was entitled to the other half. The return filed by her was accepted by the authority with certain modifications. Later, on October 26, 1977, the Assistant Controller issued a numberice under Section 61 of the Estate Duty Act proposing to rectify the assessment order. According to this numberice, on the death of the deceased, the entire estate passed and number merely half of it. The appellant filed objections companytending, inter alia, that the mistake, if any, was number a mistake apparent from the record warranting invocation of the power of rectification under Section 61 of the Estate Duty Act. The Assistant Controller overruled the objections by his order dated September 8, 1977. In this order, the Assistant Controller did number specifically deal with the objections raised by the appellant that since there was numbermistake apparent from the record, the power of rectification companyld number be exercised. The appellant questioned the order of the Assistant Controller by way of a writ petition filed in the High Court. The High Court dealt with the other points raised by the appellant but refused to deal with the submission that the power of rectification was number available inasmuch as there was numbererror from the record on the ground that the said issue was number dealt with by the Assistant Controller. The said order is questioned in this appeal. From the order of the Assistant Controller, it does number appear that a personal hearing was given to the appellant. Be that as it may, the fact remains that he did number deal with the objection aforesaid which was expressly raised by the appellant in her memorandum of objections explanation. The very same objection was repeated in the High Court. Though we cannot say that the High Court was number justified in the view it has taken on the said question, we are of the opinion, having regard to all the facts and circumstances of the case, that it would be appropriate if we dealt with the said question on the merits. We have taken into companysideration the meagre amount of tax involved, the fact that the matter relates to the estate of a person who died in 1970 and the further fact that the Act has since been repealed. We are number satisfied that this was a case where the power of rectification companyld have been invoked. According to the school of Hindu law governing the parties herein, the appellant was entitled to a share if a partition had taken place during the lifetime of the deceased. Whether she was entitled to demand a partition, we are number sure.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2421 of 1968. Appeal from the judgment and order dated January 31, 1967 of the Madhya Pradesh High Court in Misc. Civil Case No. 88 of 1966. N. Sachthey and B. D. Sharma, for the appellant. Rameshwar Nath and Swaranjit Sondhi, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal by certificate from a judgment of the Madhya Pradesh High Court in an Income tax Reference. The Reference related to the assessment made on the assessee for the year 1962-63 for which the accounting period was the year ending March 31, 1962. The assessee carried on business as sole, selling agent of M s. Mohanlal Hargovindas, Jabalpur. The assessee succeeded to this business on the death of her husband on or about February 17, 1960. It would appear that M s. Mohanlal Hargovindas had recovered a certain amount towards sales-tax from the assessees husband relating to the period January 26, 1950 to March 31, 1951. In an appeal filed by the said firm, however, the Assistant Commissioner of Sales Tax remitted the sum of Rs. 24,341/- so recovered by the firm by an order dated November 31, 1960. Consequently M s. Mohanlal Hargoving das refunded that amount to the assessee by means of a draft dated October 31, 1961. This draft was received by the assessee on November 9, 1961 which fell in the accounting period. The Income tax Officer sought to tax this amount under the provisions of s. 41 1 of the Income tax Act 1961, hereinafter called the Act. He did number accede to the companytention of the assessee that the income, if at all, was the income of the assessees deceased husband and number her income. The Appellate Assistant Commissioner dismissed the appeal filed by the assessee. The Tribunal acceded to the companytention of the assessee that since the allowance or deduction in question had been obtained by a different assessee, namely, her husband she was number liable to pay tax on that amount under s. 41 1 of the Act. The Tribunal was moved by the Commissioner of Income tax for stating a case and referring the following question to the High Court Whether the sum of Rs. 24,341 was liable to tax under s. 41 1 of the Income tax Act, 1961 ? The High Court answered the question in favour of the assessee. Section 41 1 is in the following terms- 41 1 Where an allowance or deduction, has been made in the assessment for an year in respect of loss, expenditure or trading liability incurred by the assessee, and subsequently during any previous year the assessee has obtained whether in cash or in any other manner whatsoever, any amount in respect of such loss or expenditure or some benefit in respect of such trading liability by way of remission or cessation thereof, the amount obtained by him or the value of benefit accruing to him, shall be deemed to be profits and gains of business or profession and accordingly chargeable to income tax as the income of that previous year, whether the business or profession in respect of which the allowance or deduction has been made is in existence in that year or number. As pointed one by the High Court under the general law if a trading liability has been allowed as a business expenditure and, if this liability is remitted in any subsequent year the amount remitted cannot be taxed as income of the year of the remission number can the account for the year id which the liability was allowed be reopened or adjusted. Section 41 1 was enacted to supersede this principle but this section can apply only to the a In the present case if the husband of the assessee had been alive and had received the amount which had been remitted during his lifetime he would certainly have been liable to pay tax under the provisions of S. 41 1 . But Kanhaiyalal having died and his widow being the assessee she cannot possibly be brought within the section. Section 2 7 of the Act defines the word assessee. The definition is very general and assessee is stated to mean a person by whom income tax or super tax or any other sum of money is payable under the Act and includes every person as mentioned in clauses a , b and c . The assessee, in the present case, does number fall within any of those clauses. There is numberspecific provision in the Act under which it can be said that the assessee is a person by whom income tax is payable on the amount of Rs. 24,341/- which came to her by way of remission on account of what had transpired in the lifetime of her husband. The Act does number companytain any provision making a successor in business or the legal representative of an assessee to whom an allowance has already been granted liable to tax under s. 41 1 in respect of the amount remitted and received by the successor or the legal representative. The only provision which relates to the liability of the legal representative is s. 159 of the Act. Sub-section 1 thereof provides that where a person dies his legal representative shall be liable to pay any sum which the deceased would have been liable to pay if he had number died in the like manner and to the same extent as the deceased. The companyresponding provision in the Income tax Act 1922 was s. 24B. In Commissioner of Income tax Bombay v. Amarchand N., Shroff 1 it was laid down by this Court that s. 24B did number authorise the levy of tax on receipts by the legal representative of a deceased person in the year of assessment succeeding the year of account being the previous year in which such person died. The assessee had ordinarily to be a living person and companyld number be a dead person. By S. 24B the legal personality of the. deceased assesses was extended for the duration of the entire previous year in the companyrse of which he died. The income received by him before his death and that received by his legal representative after his death but in that previous year became assessable to income tax in the relevant assessment year. Any income received in the year subsequent to the previous year or the accounting year companyld number be called income received by the deceased person. Thus the provisions of s. 24B did number extend to tax liability of the estate of a deceased person beyond the previous or the accounting year in which that person Income tax, Bombay v. James Anderson 1 . Indeed the learned companynselfor the Revenue did number and companyld number rely on the provisions of s. 159 of the Act in the present case number was any reliance 1 1. T. R. 59. 2 51 1. T. R. 345. placed on any other section in the Act apart from s. 41 1 . The, question referred is also based on that very section. That section, in our opinion cannot possibly apply to the present case because the assessee who is number sought to be taxed is number the assessee companytemplated by that section. The assessee within s. 41 1 , namely, Kanhaiyalal having died the Revenue companyld number take any advantage of its provisions. The High Court rightly observed that the question whether the amount of Rs. 24,341/- was liable to tax as the personal income of the assessee did number arise in the present case in which the sole point to be decided was whether that amount was assessable in the assessees hands under s. 41 1 of the Act. We, therefore, entirely companycur in the view of the High Court and agree with the answer returned by it. In the result the appeal fails and it is dismissed with companyts.
1997 2 SCR 210 ORDER The following Order of the Court was delivered A. No. 947 of 1980 This appeal by special leave arises from the judgment dated 19th March, 1980 passed by the learned Single Judge of the High Court of Allahabad in SA No, 1940 of 1977. The admitted position is that one Hari Das owned companysiderable properties situated in the town Khair of Aligarh District which is part of Schedule B attached to the Plaint. He companystructed a temple, by name Shri Jugal Kishoreji Maharaj Mandif. Therein, the principal deity is Lord Krishna Radha. He endowed all his properties to the Mandir. During his life time, he was in-charge of the temple as de facto trustee and he did seva service and pooja to the deity. After the abolition of the estate Under the U.P. Zamindari Abolition Land Reforms Act, 1950, Bhumidari rights in the properties were companyferred on the deity Lord Krishna and Radha. Hari Dass left behind him four chelas by name, Narian Das, Bansi Dass, Manohar Dass and Ram Dass alias Ram Chander Appellant No. 1 Rambir Das and his Brother Har Govind Das are sons of Ram Dass. Bansi Dass, the last serving chela, had executed a Will, Ex. B-19 on 9.2.1955 whereunder he numberinated the plaintiff and his brother as Shebaits of the Mandir, During his life time by Deed of Adoption dated January 6, 1966, Ex. A-45 cancelled the Will and adopted defendant Nos. 1 and 2 as his chelas. Bansi Dass died on February 3, 1969. Thereafter, the disputes arose between the appellants and the respondents as to who would be entitled to succeed to the Shebaitship of the Mandir. It is number necessary to dilate upon the proceedings that went on in the Criminal Court and in the suits Suffice it to state that the appellant had sought a relief of declaration of succession as a Shebait to the Mandir, possession thereof and companysequential perpetual injunction against the respondents from interfering with his Shebaitship and possession and enjoyment of the property as a Shebait of the temple. The trial Court granted the decree. On appeal, it was companyfirmed. In the second appeal, the learned single Judge held that the cancellation of the Will in the Adoption Deed is valid for the reason that Rambir Dass had married and thereby he ceased to be a bairagi. His brother Har Govind Dass having become insane, was disqualified to be a Shebait. The defendants-respondents being minors, numberination in that behalf is invalid in law. As a companysequence, the property became escheat he directed the Advocate-General to take action for possession of the properties. Thus, this appeal by special leave and cross appeal. The primary question for companysideration is whether the appellants claim to be a Shebait of the Mandir is valid and sustainable in law? In Tagore Law Lectures - 1936 published in Hindu Law of Religious and Charitable Trust, Justice B.K. Mukherjee, the former Chief Justice of this Court stated at page 216 as under As shebaitship is property, it devolves like any other property according to the ordinary Hindu law of inheritance. If it remains in the founder, it follows the line of founders heirs if it is disposed of absolutely in favour of a grantee , it devolves upon the heirs of the latter in the ordinary way and if for any reason the line appointed by the donor fails altogether, shebaitship reverts to the family of the founder g . In the matter of appointment of a shebait, the discretion of the founder is unfettered. No Hindu would indeed think of appointing a person as manager of a temple, who is a follower of a different religion, but there is numberhing in law which prevents him from appointing as shebait, a person of different or inferior caste. It is further stated at page 217 thus As succession to shebaitship is governed by the ordinary law of inheritance, it scarcely admits of any doubt that a woman can succeed to shebaitship, the Supreme Court of India has held very recently that shebaitship is property within the meaning of the Hindu Womens Right to Property Act companysequently in a case to which the Act applies the widow and son of the last shebait would succeed jointly to the shebait fights held by the latter. It has been held further that even if the expression property in the Hindu Womens right to Property Act is to be interpreted as meaning property in its companymon or accepted sense and is number to be extended to any special type of property which Shebaitship admittedly is, as succession to shebaitship follows succession to ordinary secular property the general law of succession under Hindu Law to the extent, that it has been modified by the Hindu Womens Right to Property Act would also be attracted to devolution of Shebait rights. At page 227, it is Stated thus As there is always an ultimate reversion to the founder or his heirs, in case the line of Shebaits is extinct, strictly speaking numberquestion of escheat arises so far as the devolution of shebaitship is companycerned. But cases may be imagined where the founder also has left numberheirs, and in such cases the founders properties may escheat to the State together with the endowed property. In circumstance like these, the lights of the State would possibly be the same as those of the founder himself, and it would be for it to appoint a shebait for the Debutter property. It cannot be said that the State receiving a dedicated property but escheat can put an end to the trust and treat it as secular property. In Maynes Hindu Law Usage 14th Edn. at page 965, para 639 on Entrance into religious order, it is stated as under One who enters into a religious order severs his companynection with the members of his natural family he is accordingly excluded from inheritance. Neither he number his natural relatives can succeed to each others properties. The persons who are excluded on this ground companye under three heads, viz., the Vanaprastha, or hermit the Sanyasi or Yati, or ascetic and the Brahmachari, or perpetual religious student.In order to bring a person under these heads, it is necessary to show an absolute abandonment by him of all secular property, and a companyplete and final withdrawal from earthly affairs. The mere fact that a person calls himself a Hyragi, or religious mendicant, or indeed that he is such does number of itself disentitle him to succeed to property. Nor does any Sundra companye under this disqualification, unless by usage. This civil death does number prevent the person who enters into an order from acquiring and holding private property which devolve, number of companyrse upon his natural relations but according to special rules of inheritance. But it would be otherwise if there is number civil death in the eye of the law, but only he holding by a man of certain religious opinions or profes-sions. In Baba Kartar Singh Bedi v. Dayal Das Ors., AIR 1939 PC 201 at 207 this Court had held thus It was also argued by the respondents companynsel that the word chela in the will meant an adopted son. This companytention too, in their Lordships view, is totally without Foundation. A chela, as is well known in India, means a disciple. He is different from an adopted son, both in the process of his initiation and in the purpose of his existence. A chela is generally numberinated by the ruling mahant during his lifetime to companyduct the affairs of a religious institution, or if he fails to do so, the chela is numberinated by his principal followers after his death, who are companynected with the institution. There companyld be numberanalogy between him and an adopted son, as known to Hindu Law. In the case of the latter, it is imperative that one of him genitive parents must give, and one of his adoptive parents must receive, him in adoption. Withoutsuch a gift and taking numberadoption can be valid. There are, in addition, rituals such as the sacrificial fire, called Homa to companyplete ceremonially the transaction of adoption and lastly it may be mentioned that the principal function of a adopted son is to perform periodically shraddas, or obsequial rites to his parents and other ancestors for the salvation of their souls, according to Hindu sentiment, None of these incidents are to be found in the case of a chela, whose affiliation, if it may be so described, is mainly for the purpose of companytinuing the traditional obligations of the institu-tion and holding and managing its property for purposes incidental thereto. His main function is number to perform obsequial rites for the benefit of his ancestors, for, inmost cases, a sanyasin or a mahant, when he enters that order, abrogates householder , whose future felicity in a post mortem existence is the object of solicitude on the part of his male descendants. In Parma Nand v. Nihal Chand, 65 IA 252 at page 257 Sir Shadi Lal speaking on behalf of the Judicial Committee held thus In the town of Gujranwala there is a building variously described as Baghichi Thankaran or Gurdwara Baghichi, and the main issue which their Lordship have to determine in this appeal is whether that buildings, together with the shops and other property attached to it, is the subjectmatter of a trust for a public purpose of a charitable or religious nature. The issue was raised by the defen-dants who, claiming to be the representatives of the Hindu public, made an application to the district Judge under s.3 of the Charitable and Religious Trusts Act No. XIV of 1920 , alleging that the Baghichi Thakaran was a public endowment for religious and charitable purposes, and called upon Mahant Narain Das who was described by them as the trustee of the endowment, to furnish details of the nature and purposes of the trust, and of the value of the property belonging to the trust, and also to render an account of the income and expenditure of the trust property. Their allega-tions were companytested by Narain Das and the companytroversy between the parties led to the present action, brought by Narain Das for the purpose of obtaining an authoritative pronouncement upon the nature of the trust and of the property attached to it. In Krishna Singh v, Mathura Ahir Ors,, AIR 1980 SC 707 at 725 this Court had pointed out in paras 77 and 89, as regards the rights of a Sanyasi, thus The learned Civil Judge in his judgment observes The fact of Harsewanand being a sanyasi remains undoubted His finding that he was number a Hindu sanyasi was based upon the view that under Hindu law mere renunciation of the world is number sufficient. Hence, he holds that a Sudra who renounced the world and became sanyasi cannot be said to be a Hindu sanyasi, as according to the Hindu Sastras numberSudra can become a sanyasi. The underlying fallacy lies in his over-looking that the question had to be determined number according to the orthodox view, but according to the usage or custom of the particular sect or fraternity. It is needless to stress that a religious denomination or institution enjoys companyplete autonomy in the matter of laying down the rites and ceremonies which are essential. We must accordingly hold that the plaintiff was the validly initiated chela of Swarm Atmavivekanand and upon him demise was duty installed as the mahant of Grawaghat Math ac-cording to the tenets of his Sant Mat Sampradaya. In the instant case, the appellant himself, of companyrse, without prejudice to his right to challenge the right of the original plaintiff, Harsewanand, to bring the suit, substituted the respondent No. I Harshankaranand,as his heir and legal representative, while disputing his claim that he had been appointed as the mahand, as he felt that the appeal companyld number proceed without substitution of his name. In his reply, the respondent No. 1 Harshankaranand alleges that after the demise of mahant Harsewanand he was duly installed as the mahant of Garwaghat Math by the Sant Mat fraternity. He further asserts that he was in possession and enjoyment of the math and its properties. The fact that he is in management and companytrol of the math properties is number in dispute. The issue as to whether he was so installed or number or whether he has any right to the office of a mahant, cannot evidently be decided in the appeal, but nevertheless, he has a right to be substituted in place of the deceased Mahant Harsewanand as he is a legal representative within the meaning of S. 2 11 , as he indubitably is intermeddling with the estate. He has therefore, the right to companye in and prosecute the appeal on behalf of the math. In Sri Mahalinga Thambiran Swamigal v. His Holisness Sri La Sri Kasivasi Arulnandi Thambiran Swamigal, 1974 2 SCR 74 at 88-81, this Court had held as under The definition of will in s. 2 h of the Indian Succession Act, 1925 would show that it is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. By exercising the power of numberination, the head of a Mutt is number disposing of any property belonging to him which is to take effect after his death. He is simply exercising a power to which he is entitled to under the usage of the institution. A numberination makes the numberinee stand in a peculiar relationship with the head of the Mutt and the Hindu companymunity and that relationship invests him with the capacity to succeed to the headship of the Mutt. A numberination takes effect inpresenti. It is the declaration of the intention of the head of the Mutt for the time being as to who his successor would be there-fore, although it is said that the usage in the Mutt is that the power of numberination is exercisable by will, it is really a misnomer, be-cause, a will in the genuine sense of the term can have numbereffect in present. There can be numberdispute that a numberination can be made by deed or word of mouth. In such a case, the numberination invests the numberinee with a present status. That status gives him the capacity to succeed to the headship of the Mutt on the death of the incumbent for the time being. If that is that effect of the numberination when made by deed or word of mouth, we find it difficult to say that when a numberination is made by will, it does number take effect in present, and that it can be cancelled by executing another will revoking the former will. Such, at any rate, does number seem to be the companycept of numberination in the law relating to Hindu Religious Endowments. A numberination need number partake of the character of a will in the matter of its revocability, merely because the power of numberination is exercised by a will. In other words, the Nature or character of a numberination does number depend upon the type of document under which the power is exercised. If a numberina-tion is otherwise irrevocable except for good cause, it does number become revocable without good cause, merely because the power is exercised by a will. If the power of numberination is exercised by a will, it is pro-tanto a number-testamentary instrument. A document can be partly testamentary and partly numbertestamentary. In Ram Nath v. Ram Nagina, AIR 1962 Patna 481, the head of the Mutt of the time being exercised Ms power of numberination more or less in terms of Exhibit B-l here, namely, by making the numberination of a successor and providing that he will be the owner of the properties and charities of the Mutt and also of the other proper-ties standing in the name of the head of the Mutt. The Court held that so far as the numberination and devolution of the properties of the Mutt were companycerned, the will operated as a numbertestamentary instrument. The Court said that the companydition which must be satisfied before a document can be called a will is that there must be some disposition of property and that the document must companytain a declaration of the intention of he testator number with respect to any thing but with respect to his property. According to the Court, if there is a declaration of intention with respect to his successor, it cannot companystitute a will even if the document were to state that the numberinee will become the owner of the properties of the Mutt after the death of the executant of the will as that is only a statement of the legal companysequence of the numberination. At page 88, this Court, looking from another angle, held as under Looking at the matter from another angle, we companye to the same companyclusion. We have already said that the power of numberination must be exercised number companyruptly or for ulterior reason but bona fide and in the interest of the Mutt and the Hindu companymunity. It then stands to reason to hold that power to revoke the numberination must also be exercised bona fide and in the interest of the institu-tion and the companymunity. In other words, the power to revoke can be exercised number arbitrarily, but only for good cause. We do number pause to companysider what causes would be good and sufficient for revoking a numberination as the defendant had numbercase before us that he revoked that numberination for a good cause. We hold that a numberination when made can be cancelled or revoked only for a good cause and, as admittedly, there was number good cause shown in this case cancellation of the numberination by Exhibit B-9, the cancellation was bad in law. Therefore, it must be held that the appellant was holding the status of the Elavarasu of the kasi Mutt during the life tune of the defendant. Normally, a companyrt will declare only the right of the parties as they existed on the date of the institution of the suit But, in this case, on account of the subsequent event, namely, the death of the defendant, we have to mould the relief to suit the altered circumstance. If the defendant had been alive, it would have been sufficient if we had declared, as the learned single Judge has done, that the appellant was the Elavarasu of the Kasi Mutt. Now the defendant is dead, We make a declaration that the appellant was holding the position of the Elavarasu during the lifetime of the defendant, that the revocation of the numberination of the appellant as the Elavarasu by Exhibit B-9 was bad, and that the appellant was entitled to succeed to the headship of the Mutt on the death of the defendant. Ms. Rachna Gupta, learned companynsel appearing for the respondents, relied on the passage from Tagore Law Lectures - 1936 delivered by B.K. Mukherjee as published in Hindu Law of Religious Charitable Trusts at page 205, para 5.6A and 5.6B which read as under 5.6A. Shebaitship remains in the founder and his heirs unless disposed of. When a deity is installed, the shebaitship remains in the founder and his heirs, According to Hindu law, thus observed Lord Hobhouse in Gossamee Sree Greedhareejee v. Ruman Lalljee, L.R. 16 1 A. 137 and this observation has been reiterated in numerous cases since then - when the worship of a Thakur has been founded, the shebaitship is held to be vested in the heirs of the founder in default of evidence that he has disposed of it otherwise, or there has been some usage, companyrse of dealing or some circumstances to stow a different mode of devolution. Unless, therefore, the founder has disposed of the shebaitship in any particular way and except when an usage or custom of a different nature is proved to exist, shebaitship like any other species of heritable property follows the line of inheritance from the founder, 5.6B It devolves like any other species of heritable property. -Where the founder of a temple had died without having appointed a shebait, it was held that his widow on whom the right to appoint had devolved was entitled to appoint a Shebait for the temple, and such appointment was number open to attach as an alienation of the office of a trustee. And the rule that shebaitship devolves like any other species of property has been applied to the office of Archaka as well, where emoluments were attached to it. From the evidence it is clear that the plaintiffs are entitled to act as shebaits of the temple because in the endowment deed at Ex. 2 late Sri Hari Dass did number lay down the line of succession to the office of Shebait. Further his 4 chelas numberinated in this deed did number exercise their power to appoint some shebait and as such it Was number open for late Bansi Dass to appoint 2 chelas belonging to another family of his own desire. Since Bansi Pass died issueless the property would go again to the heirs of Ram Dass because Ram Dass and Bansi Dass were real brothers. The trial Court decreed the suit holding that the plaintiffs are shebaits or sarbarkars of the temple Sri Thakur Jugal Kishorji Maharaj Birajman Mandir Marhi in town Khair and its debutter property as shown in schedule B of the plaint and for possession over the said property and also for a permanent injunction restraining the defendants from interfering in the plaintiffs possession over the said property. The defendants are given one months time to deliver vacant possession of the disputed property to the plaintiffs failing which the plaintiffs would be entitled to get possession through companyrt. On appeal, the appellate Court recorded the finding thus Hari Dass, the original founder of the trust had number specified any direction in there was deed of 1.4.20 with regard to future Shebait-ship or Sarbarakarship after the death of the four chelas numberinated by him. The four chelas were also number given any authority to numberinate future shebaits or sarbarkars after their death and as such the office of Shebaitship of Sarbakarship devolved on the plaintiffs as sons of Ram Dass and Bansi Dass though they were also the disciples of Bansi Dass. Defendant Nos. 1 and 2 were minors and as such they companyld neither act as chelas of Bansi Dass number companyld entitle themselves to act as Shebaits or sarbarkars in law on any account and the directions given in the adoption deed dated 6.6.66 were illegal and void ab initio Defendants 4 and 4 had got fraudulent and fictitious entries made in Revenue papers in their favour in companylusion with lekhpal as sub-tenant over certain area of the temple land though they had number interest or title at all and as such Hoti Lal and Kishore Lal, the respective fathers and guar-dians of the defendants 1 and 2 had number right to claim the property against the interests of the deity. It would, thus, be seen that there is numbercontroversy as to whether Rambir Dass became entitled to succeed the temple as shebait as companyld be seen from the evidence in the light of the above legal position, Hari Dass had number laid down any line of succession to his chelas to administer the debutter estate of the temple. He left behind him four chelas and admit-tedly one of the chelas, Ram Dass, had married. The appellant and his brother, are the progenies of Ram Dass. Bansi Dass, the last chela had executed a Will under which he numberinated Rambir Dass and his brother as Shebait. Admittedly, he did number reserve any right to cancel their numberina-tion in the Will. He cancelled the Will while executing an Adoption Deed in favour of the defendants. The question is whether he had the company-petence to cancel the Will having duly numberinated the appellant and his brother as Shebaits? Since the brother of the appellant became insane, it is number necessary to go into the question whether he would succeed after Rambir Dass. The Will in the numbermal companynotation, takes effect after the demise of the testator. But in the case of numberination of a shebait, the numberination takes effect from the date of its execution though it is styled as a Will. Once it takes effect, the numberinee becomes entitled to go into the office as a shebait after the demise of the last chela of Hari Dass. Under these circumstances, the shebaitship being a property, vests in Rambir Dass and he companyld administer the property and manage the temple for the purpose of spiritual and other purposes with which Hari Dass, the original founder had endowed the property to Lord Krishna and Radha. The next question is whether Bansi Dass had power to adopt defendants 1 and 2 and deprive the appellant of his right of shebaitship? Having seen that Bansi Dass did number reserve any right to cancel the numberination and that too for valid reasons, the Will became operative as soon as it was executed. Thereby, he had numbermore any power to cancel it and thereby the right of adoption would number be approved of by this Court as valid in law, as he is a Bairagi and he companyld number adopt anyone except numberinating a chela who fallows the principles and precepts the founder had laid for being observed. Unfortunately, there is numberplea in this behalf number is power in that behalf. The only ground on which the cancellation came to be made was that Rambir Dass bad married and thereby he became disentitled to be a Bairagi to administer the debutter estate as a shebait. There is numberpleading that a married bairagi cannot hold the property number that he becomes a shebait to administer the debutter estate endowed to the Mandir. It is to be seen that the property stands vested in the deity, Lord Krishna and Radha and that anyone who administers the property, does so as a shebait and administers as a trustee for and on behalf of the deity. It is true that the High Court has disallowed the Will and held that neither party is entitled to shebaitship. The view taken by the High Court is dearly illegal It is number the case that the appellant was number numberinated under the Will executed by Bansi Dass, in the first instance and thereby he was vested with the right to manage, as a Shebait of the debutter estate belonging to the deity, Lord Krishna and Radha. There is number plea number proof that a married person is number entitled to be the shebait. Therefore, the view of the High Court that he became disentitled on account of the marriage is clearly illegal. A chela cannot be adopted but can be numberinated. As a companysequence, the adoption of defendants 1 and 2 by Bansi Dass as chelas is also number legal for the reason that they were minor as on the date when he claims to have adopted them elas. Chela numberinated must be one who is independent and capable to renounce the worldly affairs or capable to adopt himself as Bairagi. He cannot adopt anyone as his successor by application of the general principles of law. Under these circumstances, though for different reason, the adoption deed executed by Bansi Dass is clearly illegal In companysequence, the estate does number become an escheat but it companytinues to remain vested in the deity and the shebait remains incharge of management of the erty. The right of management should go either in the order of succession given by the original founder or, in its absence, in the line of intestate succession. It is seen that Ram Dass one of the chelas was married and he left behind his son Rambir Dass, the appellant another chela, Bansi Dass having died without numberinating any chela, necessarily, the succession would go to the heirs of one of the chelas. In the absence of line of succession indicated by the founder, admittedly, Rambir Dass became entitled to succeed by inheritance the debutter estate as shebait to manage the temple on behalf of the deity Lord Krishna and Radha and he remains to be the trustee and is entitled to get possession of the properties and manage the same for the purpose for which and in the manner in which, it was endowed by Hari Dass. If there is any dereliction of the duty in that behalf by the appellant, appropriate action would be taken by Endowment Department of Uttar Pradesh Government in accordance with law. But so long as he maintains and administers the property for the benefit and for the purpose for which they were endowed, he is entitled to manage as a Shebait for and on behalf of the deity, Lord Krishna and Radha. The appeal is accordingly allowed. The judgment and decree of the High Court stands set aside and that of the trial Court stands restored.
SURINDER SINGH NIJJAR, J. Leave granted. This appeal is directed against the final judgment and order dated 6th February, 2009 passed by the Division Bench of the High Court at Calcutta in M.A.T. No. 3613 of 2001 whereby the Division Bench quashed the enquiry proceedings against the respondent held on the basis of the charge sheet dated 14th December, 1981, enquiry report dated 22nd September, 1982, the order of punishment dated 4th July, 1983, the order dated 6th June, 1984 passed by the Appellate Authority as also the resolution dated 12th November, 1987 adopted in the meeting of the Review Committee of the appellant Bank. The respondent was appointed as a Clerk in the Imperial Bank of India, which is a predecessor of the appellant Bank. Way back in November, 1944, he had joined in the capacity of a Clerk. Subsequently, by the year 1978-79, he was working as Branch Manager at the Biplabi Rash Behari Bose Road Branch, Calcutta of the appellant Bank. In the capacity of a Branch Manager, he granted numerous mid-term loans to a number of transport operators without making appropriate scrutiny of the applications as required under the rules. He had also granted the loans in excess of his discretionary power thereby exposed the Bank to the risk of serious financial loss. A charge sheet dated 14th December, 1981 was served upon him alleging that he, during his incumbency as the Branch Manager of the Biplabi Rash Behari Bose Road Branch, Calcutta from 29th February, 1978 to 21 st August, 1979 had granted medium term loans to large number of transport operators without making thorough scrutiny of the relative proposals. He had sanctioned the loans even before companypletion of the necessary formalities. The loans were granted without making any discreet enquiries to the credit worthiness of the borrowers guarantors. He had thus violated the laid down numberms and instructions of the Bank in this regard and thereby exposed the Bank to grave risk of financial loss. The gist of the allegations was as follows- i a granting loans, in as many as 29 cases as per Annexure B out of 57 such cases, far in excess of the discretionary powers vested in you in terms of H.O. SIB Circular No.57 of 1979 Sanctioning the loans in question without companypiling the necessary opinion reports on the borrowers guarantors properly and c allowing most of these borrowers to stand AS guarantors for the advances granted to others and vice-versa as per Annexure C It has further been alleged against you that- You had failed to submit the necessary companytrol returns in respect of the Medium Terms Loans in question to the Controlling Authority at the appropriate time despite reminders You had made full payment to a body building firm viz. M s. A. Engineers and Body Buildings, Calcutta as per their quotation long before the delivery of the chassis by the suppliers, in respect of a loan of Rs.1,92,000/- granted to Shri Ashoke Kumar Sengupta MTL No.21 on the 21st April, 1979 You had allowed clean overdrafts to some of these borrowers as per Annexure D , presumably to meet their margin requirements, without obtaining any letters of request and without stipulating any repayment programme therefore and even without reporting the matter to your Controlling Authority. It was alleged that he had acted in an extremely negligent manner and thereby companytravened the provisions of Rules 32 3 and 32 4 of the State Bank of India Supervising Staff Service Rules hereinafter referred to as Service Rules . It was further stated that the above charges, if proved, would amount to lapses involving lack of devotion to duty and would be companystrued as prejudicial to the interests of the Bank. Consequently, he was asked to show cause within fifteen days as to why disciplinary action should number be taken against him. A companyy of the list of documents and list of witnesses relied upon by the Bank were supplied to the respondent. On 11th March, 1982, Shri A.R. Banerjee, Commissioner of Departmental Enquiries, Central Vigilance Commission hereinafter referred to as CVC was appointed as the Enquiry Officer. The Enquiry Officer instructed the Bank to show all the documents including the additional documents relied upon by it to the defence by 20th March, 1982. The defence assistant of the respondent was also instructed to submit the list of the defence documents required, if any, by 31st March, 1982 along with the respective relevancy to the charge sheet and likely whereabouts of the documents. He was also instructed to submit the list of additional witnesses, which were required to be summoned along with their latest addresses. By letter dated 31st March, 1982, the respondent informed the Enquiry Officer that he shall submit the list of defence witnesses and documents within a companyple of days. Thereafter, the defence representative of the respondent by letter dated 3rd April, 1982 addressed to the Enquiry Officer, submitted a list of witnesses and documents of the defence. According to the respondent, all the witnesses referred to in the list of witnesses were officers of the Bank. Similarly, the documents referred to, were also in the possession of the management of the Bank. Therefore, the respondent claimed that he was unable to produce either the witnesses or the documents in support of his defence, unless they were summoned by the Enquiry Officer. It appears that the two witnesses referred to in the said application of the respondent were summoned. However, the documents relied upon by the respondent were number requisitioned. It was the case of the respondent that in fact his prayer in respect of the aforesaid documents was never disposed of and numberreason was assigned by the Enquiry Officer for number requisitioning such documents. It appears that the aforesaid issue was also number dealt with by the Enquiry Officer in the Enquiry Report dated 22nd September, 1982. On this short ground, the respondent had claimed that he was denied reasonable opportunity of hearing at the enquiry and the same has caused serious prejudice to his defence. On 16th September, 1982, the respondent submitted the defence arguments in the form of a written brief. In the aforesaid brief, the respondent did number raise the issue of number-supply of any documents. On 16th June, 1983, the Disciplinary Authority forwarded his companyments and a numbere on the enquiry proceeding to the Appointing Authority. In this numbere, the Disciplinary Authority agreed with the findings of the Enquiry Officer. It was mentioned that it has been proved at the enquiry that the respondent granted medium term loans to a large number of transport operators, number in a proper manner, thus exposed the Bank to a risk of substantial financial loss. It was further mentioned that while granting advances, the respondent should have ascertained his discretionary powers and followed the Bank instructions. The Disciplinary Authority recommended the imposition of penalty of dismissal on the respondent. By order dated 4th July, 1983, the Appointing Authority, upon examination of the records pertaining to the enquiry, agreed with the findings of the Disciplinary Authority and imposed the punishment of dismissal on the respondent in terms of Rule 49 h read with Rule 50 3 iii of the Service Rules effective from the date of the receipt of the aforesaid order. Aggrieved by the aforesaid order of dismissal, the respondent filed a departmental appeal on 31st August, 1983. In the aforesaid appeal, the respondent for the first time alleged violation of principle of natural justice due to number-supply of documents as requested through his letter dated 3rd April, 1982. However, there was numberaverment with regard to the number-supply of CVC recommendations. Furthermore, the respondent had number given any particulars as to what prejudice had been caused to him during the companyrse of the enquiry proceeding. Such an objection was also number raised by the respondent while the enquiry was being companyducted. By order dated 6th June, 1984, the Appellate Authority upheld the order of the Appointing Authority imposing the punishment of dismissal. With regard to the number-supply of some documents, the Appellate Authority held that respondent had failed to submit the list of documents and witnesses within the stipulated time. Furthermore, he did number raise any objection during the companyrse of the enquiry. Being aggrieved by the aforesaid order of 1st December, 1984, the respondent filed a review application. He made a grievance that neither the Enquiry Officer number the Disciplinary Authority or the Appellate Authority while passing the orders companysidered the material companytentions raised by the respondent in his written statement of defence as well as in his petition of appeal. According to him, all the authorities proceeded with a predetermined mind and the orders have been passed mechanically. For the first time, he made a grievance that neither the documents mentioned in the application dated 3rd April, 1982 were requisitioned number the witnesses mentioned in the list of witnesses were summoned. He then proceeded to set out the relevance of the documents which according to him would have enabled him to prove at the enquiry that priority sector advance was given utmost importance in the Banks policy. It was, therefore, incumbent upon him as Branch Manager to make all efforts to increase advances in the priority sector which includes transport loans. The opinion reports submitted by the respondent with regard to the loans were never incomplete. They were number produced at the enquiry. He also highlighted that production of documents listed at Sr. No. 12 would have shown that the respondent was absorbed with the work relating to IDBI Refinance, which resulted in a little delay in submitting the companytrolled return. He stated that the documents mentioned at Sr. No. 14 would have shown that the overdrafts of borrowers were sanctioned on the basis of request letters. According to him, the document at Sr. No. 17 would have enabled him to prove that in priority sector group guarantee or companynter guarantee was permissible in case of loans to transport borrowers. He, therefore, submitted that numbersummoning of such documents resulted in denial of reasonable opportunity and was in gross violation of principle of natural justice. By a detailed order dated 12th/16th November, 1987, the Review Committee declined to interfere with the order of the Appointing Authority which had been upheld by the Appellate Authority. Aggrieved by the action of the Bank in passing the aforesaid order, the respondent challenged the same in a Writ Petition Civil Order No. 7390 W of 1988 in the High Court at Calcutta. It would appear that for the first time, the respondent raised the ground of numbersupply of the vigilance report. He also submitted that the refusal of the Bank to requisition the documents mentioned in the list of witnesses and to summon the witnesses named in the list of witnesses resulted in denial of reasonable opportunity of hearing at the enquiry and the same caused serious prejudice to his defence. He stated that out of the seventeen documents referred to in the application dated 3rd April, 1982, the documents at Sr. No. 1, 2, 6, 12, 14 and 17 were most vital documents. He reiterated the pleas which were raised in the Review Petition. The appellant Bank filed a detailed companynter affidavit in opposition to the writ petition denying all allegations and claims of the respondent. In reply to paras 10, 11 and 12 of the petition, it was stated that respondent was asked to submit his list of documents and witnesses by 31st March, 1982, but he failed to do so. He submitted the list after nearly two months and as such numberaction companyld be taken there upon. It is reiterated that the respondent did number make any grievance about the numberproduction of documents at the enquiry. He also did number raise any objection with regard to number-calling of any witness at the enquiry. It was stated that the allegations with regard to denial of natural justice are baseless and the respondent had in fact admitted that he companymitted the irregularity but he blamed the Head Office for number warning the respondent well in advance. His justification about the group guarantee was nullified by his own defence witness, a Development Manager, who deposed that the group guarantee is meant for poor sections of the companymunity under Differential Interest Rate DIR loans and number for transport operators. It was also pointed out that group guarantees are taken only for loans of about Rs.6,500/- or so and number for large amounts of Rs. 1 Lac and above. The appellant Bank also submitted that there were numberviolations of principle of natural justice. The appellant Bank also submitted that Presenting Officer made repeated requests to the respondent to submit the list of documents and witnesses but the respondent ignored the requests. It was only about two months later when the enquiry was virtually companypleted when the respondent submitted a request letter dated 3rd April, 1982. By judgment and order dated 18th April, 2001, the learned Single Judge dismissed the writ petition. Aggrieved by the judgment of the learned Single Judge, the respondent challenged the same in appeal before the Division Bench. The Division Bench vide judgment and order dated 6th February, 2009 set aside the judgment of the learned Single Judge dated 18th April, 2001 and allowed the writ petition. Consequently, the Enquiry Report, order of punishment and the subsequent orders of the Appellate Authority as also the resolution passed by the Review Committee were quashed and set aside. The Bank has challenged the aforesaid judgment of the Division Bench in the present appeal. We have heard the learned companynsel for the parties. It is submitted by Mr. Shyam Divan, learned senior companynsel appearing for the Bank that the Division Bench without adverting to the fact situation held that there has been a breach of rules of natural justice, which has vitiated the entire disciplinary proceedings from the stage of holding of the departmental enquiry till the passing of the resolution by the Review Committee. Learned Single Judge, according to the learned senior companynsel, had given companyent reasons to justify its companyclusions on facts. It was rightly observed by the learned Single Judge that respondent never raised the issue of any prejudice having been caused by the number-supply of the documents during the proceedings. The Division Bench also failed to appreciate that all material documents relied upon by the Bank had been supplied to or inspected by the respondent. The Division Bench, wrongly relying on a judgment of this Court in the case of State Bank of India and Ors. Vs. D.C. Aggarwal and Anr.1 held that the numbersupply of the report of the CVC had vitiated the entire proceedings. Learned senior companynsel submitted that both the grounds on which the judgment of the Division Bench is based are factually number-existent in this case. According to Mr. Divan, the matter herein is in fact companyered by the judgment of this Court in 1993 1 SCC 13 the case of State Bank of India and Ors Vs. S. N. Goyal2 wherein the judgment in C. Aggarwals case supra has been distinguished. Learned senior companynsel had also relied on Disciplinary Authority-cum-Regional Manager and Ors Vs. Nikunja Bihari Patnaik3 and Regional Manager, U.P. SRTC, Etwah and Ors Vs. Hoti Lal and Anr.4. On the other hand, Mr. Kalyan Bandopadhyay, learned senior companynsel appearing for the respondent submitted that there has been a clear breach of procedure prescribed under Rule 50 subclause xi of the Service Rules. The Division Bench on companysideration of the aforesaid rule companycluded that the learned Single Judge did number take care of the 2008 8 SCC 92 1996 9 SCC 69 2003 3 SCC 605 procedural impropriety, i.e., breach of Rule 50 in companyducting the enquiry proceeding against the respondent. Learned senior companynsel further submitted that the procedural requirements under Rule 50 are mandatory in nature to ensure that there is a fair enquiry. Mr. Bandopadhyay further submitted that number-supply of the recommendations of the CVC being companytrary to the requirements of the Service Rules, any further proof of prejudice was number required. Once the procedural rule had been violated, prejudice would be presumed. In support of his submissions, Mr. Bandopadhyay relied on a number of judgments of this Court in the case of D.C. Aggarwals case supra , Committee of Management, Kisan Degree College Vs. Shambhu Saran Pandey and Ors.5, State Bank of Patiala and Ors Vs. S.K. Sharma6 and Nagarjuna Construction Company Limited Vs. Government of Andhra Pradesh and Ors.7. Mr. Bandopadhyay submits that the Division Bench had passed a just order to remove an injustice. The respondent had been dismissed from service arbitrarily. The entire disciplinary proceedings were vitiated being violative of principle of natural justice. According to the learned senior companynsel, the appeal observes to be dismissed. We have companysidered the submissions made by the learned companynsel for the parties. Before we companysider the judgment 1995 1 SCC 404 1996 3 SCC 364 2008 16 SCC 276 of the Division Bench, it would be appropriate to numberice the opening remarks made by the learned Single Judge in its order dated 18th April, 2001. The learned Single Judge observed as follows- Very many points had been urged in the writ petition in support of the challenged thrown to the charge sheet, proceedings pursuant thereto and the orders passed therein, but at the hearing the same was restricted to denial of natural justice for number supplying the vigilance report, which, according to the petitioner, was companysidered while taking the decision for companypletion of the disciplinary proceedings. From the above, it become obvious that even before the learned Single Judge, the respondent had made numbergrievance about the number-supply of documents. Also numberfurther issue was raised about any prejudice having been caused to the respondent. With regard to the number-supply of the recommendations of the CVC, the learned Single Judge made the following observations- It is true that if in a disciplinary proceeding a decision is taken on the basis of a recommendation or advice, number supplied to the delinquent, such a decision would be bad. On the pleadings there is numberdispute that in the case of the Petitioner advice and recommendations were sent by the Central Vigilance Commission. There is also numberdispute that such advice and recommendations were number companymunicated to the Petitioner. If the decisions impugned in this writ petition have been taken on the basis of such advice and recommendations, the same are equally bad. It is number the case of the Petitioner that by reason of any application rule or by reason of usage, custom or practice, the Authorities companycerned, who have decided the matters, are bound to take into account such advice or recommendations of the Central Vigilance Commission. Therefore, despite such advice and recommendations having been given, the Authorities companycerned, who are empowered to decide, may totally ignore such advice and recommendations and if they so ignore they will be well within their right to do so. In the instant case it has been denied that such advice or recommendations were taken numbere of or companysidered by the Authorities companycerned, who passed the impugned orders. The orders in question have been set out above. From that it does number appear that the Authorities companycerned have in fact companysidered any of the said advices or recommendations of the Central Vigilance Commission. Merely because the Central Vigilance Commission had given advice or recommendations, but the same were number furnished to the Petitioner to give him an opportunity to deal with the same, would number make the decisions impugned in the instant case bad, unless it is shown and established that the decisions in the instant case are influenced by such advice or recommendations. There is numberhing on record from where it can be safely said that at or before making the impugned decisions, any of the authorities companycerned in fact looked into or companysidered such advices or recommendations of the Central Vigilance Commission. In that view of the matter, it cannot be said that there has been denial of natural justice in the instant case for number supplying the subject Vigilance reports case for number supplying the subject Vigilance reports or advice and recommendations as the case may be. The aforesaid observations make it abundantly clear that the recommendations of the CVC were number taken into companysideration by the authorities companycerned. There was also numberother material on the record to show that before taking the impugned decisions, any of the authorities companycerned took into companysideration any advice or recommendations of the CVC. It was also number even the case of the respondent that under any rule, usage, customs or practice, the authorities companycerned were bound to take into account such advice or recommendations of the CVC. The authorities companycerned would be within their right to totally ignore any advice or recommendations of the CVC, if they so chose. The learned Single Judge also observed that in case of D.C. Aggarwals case supra , the authorities had relied upon the recommendations of the CVC, which were number at all disclosed to the delinquent officer. On the fact situation in the present case, the learned Single Judge held that the authorities companycerned have number looked at the advice or recommendations of the CVC before taking any of the impugned decisions. The aforesaid judgment was distinguishable as it did number apply in the facts of this case. The Division Bench, in our opinion, erroneously proceeded to presume that there has been either any breach of the statutory rules or violation of rules of natural justice. The Division Bench also failed to take into companysideration that the issue with regard to the number-supply of the documents listed in the letter dated 3rd April, 1982 was number even canvassed before the learned Single Judge at the time of arguments. As is evident from the remarks of the learned Single Judge at the hearing of the writ petition, companynsel for the respondent restricted the challenge only to denial of natural justice for number supplying the vigilance report. This apart, the Division Bench totally ignored the fact that the respondent did number care to raise the issue of number-supply of the documents during the entire companyrse of the enquiry proceedings. He also totally omitted to raise such an issue in the written brief companytaining his defence arguments. The Appellate Authority in its order dated 6th June, 1984 numbericed that the respondent had failed to submit his list of documents and witnesses which he wanted to produce for the purpose of his defence within the date stipulated the Inquiring Authority and he also did number raise any objection during the companyrse of enquiry. The Review Committee in its order dated 12 th November, 1987 upon companysideration of the entire matter observed as follows- The Petitioner has companytended that certain documents required by him were number made available to him by the prosecution at the inquiry. The records reveal, in this respect, that he was asked to submit his lists of documents and witnesses by the 31st March, 1982 and that he had failed to do so. The lists were in fact received by the Presenting Officer on the 28th May 1982, far beyond the stipulated time, and as such numberaction was taken thereon. However, the Committee is at a loss to understand as to why the Petitioner did number press at the Inquiry for the production of the requisite documents if they were so vital as to cause serious prejudice to his defence as alleged. The Petitioners accusation that the Inquiry Authority refused to summon all the defence witnesses is also number acceptable for the same reason that the list was number received within the stipulated period. The companymittee, however, observes that the Inquiring Authority had, in fact, permitted the Petitioner to produce his witnesses for deposition. These observations indicate even though the grievance was made belatedly, the same was duly companysidered by the highest authority of the Bank. Even at that stage, the respondent had failed to point out as to what prejudice had been caused to him during the companyrse of the enquiry. In such circumstances, the Division Bench was wholly unjustified in setting aside the entire disciplinary proceedings and the findings recorded by the learned Single Judge. In our opinion, the Division Bench has erroneously relied on the judgment in C. Aggarwals case supra . As rightly observed by the learned Single Judge, in that case this Court companysidered a situation where the Disciplinary Authority passed an elaborate order regarding findings against the Charge Sheet Officer agreeing on each charge on which CVC had found against him. In these circumstances, this Court observed that- The order is vitiated number because of mechanical exercise of powers or for number-supply of the inquiry report but for relying and acting on material which was number only irrelevant but companyld number have been looked into. Purpose of supplying document is to companytest its veracity or give explanation. Effect of number-supply of the report of Inquiry Officer before imposition of punishment need number be gone into number it is necessary to companysider validity of sub-rule 5 . But number-supply of CVC recommendation which was prepared behind the back of respondent without his participation, and one does number know on what material which was number only sent to the disciplinary authority but was examined and relied on, was certainly violative of procedural safeguard and companytrary to fair and just inquiry. These observations would number be applicable in the facts of the present case as the Disciplinary Authority did number take into companysideration any recommendations of the CVC. The judgment was, therefore, rightly distinguished by the learned Single Judge. We may number companysider the other judgments relied upon by Mr. Bandopadhyay. In the case of Kisan Degree College supra , this Court numbericed that the respondent was dismissed from service on the basis of an Enquiry Report. In that case, the respondent had at the earliest sought for inspection of the documents. He was, however, told to inspect the same at the time of final arguments in the enquiry. It was, therefore, held that the enquiry proceeding had been companyducted in breach of rule of natural justice. The aforesaid judgment would have numberrelevance in the facts of this case. In the case of K. Sharma supra , this Court held that violation of any and every procedural provision can number be said to automatically vitiate the enquiry held or order passed. Except in cases falling under - numbernotice, numberopportunity and numberhearing categories, the companyplaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer employee in defending himself properly and effectively. In the present case, we have numbericed above that the respondent did number even care to submit the list of documents within the stipulated time. Further, he did number even care to specify the relevance of the documents sought to be requisitioned. In our opinion, the appellant Bank has number transgressed any of the principles laid down in the aforesaid judgment whilst companyducting and companycluding the departmental proceedings against the respondent. Therefore, the aforesaid observations in S.K. Sharmas case are of numberavail to the respondent. In the case of Nagarjuna Construction Company Limited supra , this Court observed as follows- The basic principles of natural justice seem to have been disregarded by the State government while revising the order. It acted on materials which were number supplied to the appellants. Accordingly, the High Court for the first time made reference to the report inspection numberes which were number even referred to by the State Government while exercising revisional power. These observations are of numberrelevance in the facts and circumstances of the present case. The respondent herein is merely trying to make capital of his own lapse in number submitting the list of documents in time and also number stating the relevance of the documents required to be produced. By number, the legal position is well settled and defined. It was incumbent on the respondent to plead and prove the prejudice caused by the number-supply of the documents. The respondent has failed to place on record any facts or material to prove what prejudice has been caused to him. At this stage, it would be relevant to make a reference to certain observations made by this Court in the case of Haryana Financial Corporation and Anr. Vs. Kailash Chandra Ahuja8, which are as under- From the ratio laid down in B. Karunakar1 it is explicitly clear that the doctrine of natural justice requires supply of a companyy of the inquiry officers report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that number-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would number ipso facto result in the proceedings being declared null and void and the order of punishment number est and ineffective. It is for the delinquent employee to plead and prove that numbersupply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the companyrt on that point, the order of punishment cannot automatically be set aside. We may also numberice here that there is number much substance in the 2008 9 SCC 31 submission of Mr. Bandopadhyay that mere breach of Rule 50 11 would give rise to a presumption of prejudice having been caused to the respondent. The aforesaid rule is as under- x a the inquiring authority shall where the employee does number admit all or any of the articles of charge furnish to such employee a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be proved. The Inquiring Authority shall also record an order that the employee may for the purpose of preparing his defence I. inspect and take numberes of the documents listed within five days of the order or within such further time number exceeding five days as the Inquiring Authority may allow II. submit a list of documents and witnesses that he wants for inquiry III. be supplied with companyies of statements of witnesses, if any, recorded earlier and the Inquiring Authority shall furnish such companyies number later than three days before the companymencement of the examination of the witnesses by the Inquiring Authority. IV. give a numberice within ten days of the order or within such further time number exceeding ten days as the Inquiry Authority may allow for the discovery or production of the documents referred to at II above. Note The relevancy of the documents and the examination of the witnesses referred to at II above shall be given by the employee companycerned. the Inquiry Authority shall, on receipt of the numberice for the discovery of production of the documents, forward the same or companyies thereof to the authority in whose custody or possession the documents are kept with a requisition for the production of the documents on such date as may be specified. A perusal of the numbere under Clause 4 of the aforesaid rule would make it obvious that the respondent was number only to submit a list of documents and witnesses but was also required to state the relevancy of the documents and the examination of the witnesses. The respondent himself having number companyplied with the procedural requirements can hardly companyplain that a breach of the procedural requirements under Clause xi would ipso facto result in rendering the enquiry null and void. In any event, since the Disciplinary Authority has number relied on any recommendations of the CVC and the respondent has failed to plead or prove any prejudice having been caused, the disciplinary proceedings can number be said to be vitiated. In our opinion, the aforesaid observations of this Court are fully applicable to the facts and circumstances of this case.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 651 to. 655 of 1967. Appeals from the judgment and order dated March 2, 1966 of the Bombay High Court in Income-tax Reference No,. 73 of 1962. T. Desai, D. Dwarkadas and S.S. Javali, for the appellant K. Daphtary, Attorney-General, R. Gopalakrishnan, R.N. Sachthey and B.D. Sharma for the respondent in all the appeals. The Judgment of the Court was delivered by Ramaswami, J. These appeals are brought by certificate from the judgment of the Bombay High Court dated March 2, 1966 in Income Tax Reference No. 73 of 1962. The appellant companypany, hereinafter called the assessee companypany, was incorporated on July 29, 1924, as an investment companypany, the objects of which are set out in el. III of the memorandum of association and more particularly in sub-cls 1, 2, 15 and 16 of that clause. The assessment years in question are 1943-44 to 1948-49, excepting the year 1947-48. According to its petition made in the High Court, the assessee companypany dealt with its assets as follows The petitioner companypany purchased during the period 1st July, 1925 to 30th June, 1928, shares of the value of Rs. 1,86,47,789 major portion of which was companyprised of shares in the Sassoon Group of Mills. During the year ended 30th June, 1929, the petitioner companypany promoted two companypanies known as Loyal Mills Ltd., and Hamilton Studios Ltd. and took over all their shares of the value of Rs. 101/2 lacs. In the year 1930, the petitioner companypany purchased shares of Rs. 1,33,930. During the period of 9 years from Ist July, 1930, to 30th July, 1939, numberpurchases. were made with the exception of a few shares of Loyal Mills Ltd. taken over from the staff of D. Sassoon Co. Ltd., who retired from service. In the year ended 30th June, 1940, reconstruction scheme of the Appollo Mills Ltd. took place under which debentures held by the petitioner companypany in the Appollo. Mills Ltd., were redeemed and the proceeds were .reinvested in the new issue of shares made by the Appollo Mills Ltd. Out of the purchases of the value of Rs. 2,794 made by the petitioner companypany during the year ended 30th June, 1941, Rs. 2,000 was the value of shares of the Loyal Mills. Ltd., taken over from the retiring staff. In the year ended 30th June, 1943, the petitioner companypany took over from the David Mills Co. Ltd., shares of the Associated Building Co., of the value of Rs. 56,700. After this there were numberpurchases at all to this date excepting purchases. of the value of Rs. 34,954 during the year ended 30th June, 1946. The sales are companytained in paragraph 3 b which states In relation to the purchases made by the petitioner companypany as stated above numberappreciable sales of shares were made during the period 29th July, 1924 to 30th June, 1942, the sales made in the year ended 30th June, 1929, of the value of Rs. 1,29,333 included shares of the value of Rs. 45,000 in the Loyal Mills Ltd., sold to the members of the staff and shares of the value of Rs. 83,833 representing sterling investments handed over to the creditors of the petitioner companypany in part repayment of the loan taken from them in the year ended 30th June, 1931, shares of the value of Rs. 7,48,356 were handed over to the creditors in payment of the loan granted by them. From the year ended 30th June, 1943, D. Sassoon Co. Ltd., started relinquishing the managing agencies of the various mills under their agency and the shares held by the petitioner companypany in the Sassoon Group of Mills were handed over to the respective purchasers. of the mills agencies. Prior to 1940 the assessee companypany made a claim every year being treated as a dealer in investments and properties but this companytention was repelled by the Income Tax authorities and upto the assessment year 1939-40 the assessee companypany was assessed on the basis of being an investor but it appears that for the assessment years 1940- 41, 1941-42 and 1942-43 the Income Tax department accepted the plea of the assessee companypany and treated it as a dealer in shares, securities and immovable properties and assessed it on that basis. For these years and for the assessment year 1943-44 the assessee companypany made its return in that basis. But after the return had been filed for the year 1943-44, the assessee companypany withdrew its return and filed a revised return on March 7, 1944, companytending that it was number a dealer but merely an investor. Along with the return it filed a letter dated March 6, 1944 in which it stated The return of Total Income which was submitted with the Companys letter of 25th May 1943 was prepared in companyformity with the ruling of the Income-tax Officer in the 1940- 41 assessment that the companypany was to be assessed as a dealer in Investments. Since that return was submitted the Central Board of Revenue has decided that the Company is an Investment Holding Company, and accordingly an amended Return of Total Income under Section 22 1 of the Indian Income-tax Act is submitted herewith on which the assessment for 1943-44 may be based, as on this particular question the companypany obviously cannot have one status for Excess Profits Tax and another for Income-taX. It was companytended by the assessee companypany that it never carried on any business in the purchase or sale of shares, securities or properties- In support of this companytention the assessee companypany relied on the order of the Central Board of Revenue dated August 18, 1943 passed under s. 26 1 of the Excess Profits Tax Act. The Income. Tax Officer rejected the plea and held that the investments were held by the assessee companypany as the stock-intrade of its business which it carried on during the previous year and also in the preceding years. The assessee companypany took the matter in appeal to the Appellate Assistant Commissioner who dismissed the appeal and upheld the order of the Income Tax Officer. The assessee thereafter appealed to the Income Tax Appellate Tribunal and the same companytentions were urged on behalf of the assessee companypany. The Appellate Tribunal rejected the assessees claim that it was showing itself as a dealer in shares, securities and immovable properties under a misapprehension and without appreciation of the companyrect facts. The Appellate Tribunal held that in the case of the assessee companypany number only the Memorandum of Association gave the power to the companypany to deal in investments but the case of the companypany all along in the past was that it was a dealer in investments and properties. Consequently, the Tribunal held that the assessee companypany was a dealer in shares, securities and properties and dismissed the appeals. Thus the grounds on which the case was decided against the assessee companypany were 1 that the assessee claimed to. be a dealer or an investor according as it incurred losses or made profits and 2 that because of the objects companytained in the memorandum of association and because of its assertion made in the past as being a dealer the assessee companypany companyld number be held to be an investor. The assessee companypany then applied to the Appellate Tribunal under s. 66 1 of the Income Tax Act, 1922, hereinafter called the Act for a reference of the following questions of law for the opinion of the High Court Whether on the facts and in the circumstances of the case the assessee companypany can rightly be treated as a dealer in investments and properties and Whether the profits and losses arising from the sale of shares, securities and immovable properties of the assessee companypany can be taxed as business profits. The application was rejected by the Appellate Tribunal on the ground that numberquestion of law arose out of its order. The assessee companypany then made an application under s. 66 2 of the Act to the Bombay High Court which dismissed the application by its order dated June 15, 1952. The assessee companypany thereupon obtained special leave to appeal to this Court. The appeal was allowed by this Court by its judgment dated May 22, 1957 and the order of the Bombay High Court dated June 15, 1952 was set aside. It was pointed out by this Court that the Appellate Tribunal in arriving at its finding that the assessee was a dealer and number an investor, had relied on two basic facts, viz., the objects set out in the Memorandum of Association and the previous assertion made by the assessee companypany that it was a dealer in investments and properties and number merely an investor. It was observed that merely because the companypany had within its objects the dealings. in investments, shares and properties the circumstance did number give it the characteristics of a dealer in shares. The circumstance, though relevant, was number companyclusive. It was pointed out in the judgment of this Court that the question as to. what were the characteristics of the business of dealing in shares or that of an investor was a mixed question of fact and law and what was the legal effect of the facts found by the Appellate Tribunal. and whether as a result thereof the assessee companyld be termed a dealer or an investor was itself a question of law. Accordingly the Court formulated the following two .questions of law as arising out of the order of the Tribunal 1 Whether there are any materials on the record to support the finding of the Income Tax Officer that the assessee companypany was a dealer in shares, securities and immovable property during the assessment year in question? Whether the profits and losses arising from the sale of shares, securities and immovable properties of the assessee companypany can be taxed as business profits. ? The case was therefore remanded to the High Court for directing the Appellate Tribunal to state a case on the aforesaid questions of law under s. 66 2 of the Act. In accordance with the direction of this Court the Appellate Tribunal made a statement of the case on June 12/13, 1962. The reference being Income-tax Reference No. 73 of 1962 was heard by the High Court which by its judgment dated March 2, 1966 answered both the questions. against the assessee companypany and in favour of the Commissioner of Income Tax. On behalf of the assessee companypany Mr. S.T. Desai argued that the question whether the assessee companypany was a dealer dealing in investments and properties or whether it was a mere investor will have to be judged on a proper scrutiny of the transactions themselves companysidered in the light of the Circumstances in which the transactions both of purchase and sale had .been brought about. If it is found on an examination of the transactions themselves that the essential characteristics of the business of the assessee were of dealing in shares and investments, the assessee will undoubtedly be taken as a dealer. If, on the other hand, the characteristics revealed by the transactions are those peculiar to mere investments in shares, securities and properties, the finding of the Court must be that the assessee is an investor and the profits made by it are only excess obtained on realisations of the investments and number liable to be taxed. According to Mr. S.T. Desai, neither the Memorandum of Association number the previous assertions made by the assessee companypany either under a misconception or even deliberately will number have the effect of changing the legal nature of the transactions as revealed by the transactions themselves and the circumstances in which the transactions have taken place. In support of this argument reference was made on behalf of the appellant to the statements of the transactions, Annexures E and F of the statement of the case and detailed explanations, statements M-1 and M-2. The substance of the argument of the appellant was that 1 most of the shares, securities and properties acquired by the assessee companypany were the properties of E.D. Sassoon Co. and the family of Sassoons 2 a large block of shares held by the companypany companysisted of the shares of the Sassoon Group of Mills and the block was held all along since its acquisition before the year 1930 until E.D. Sassoon and Co. and the Sassoons companytinued to be interested in the said Group of Mills and they were realised by sale only when E.D. Sassoon Co. and the Sassoons decided to relinquish their interest in the said Group of Mills, and 3 neither the mode of acquisition of these shares. and properties number the mode and manner of their disposal have any of the distinctive characteristics of business dealings. On the questions actually formulated by this Court upon which the Appellate Tribunal has made a statement of the case it is number possible for us to entertain the argument advanced by Mr. S.T. Desai. It was companytended on the companytrary by the Attorney-General that upon the questions actually referred, the answers must be against the asses.see companypany. It was said that there were at least two materials on record to support the finding of the Appellate Tribunal that the assessee-company was a dealer in shares, securities and immovable properties during the assessment year in question. The first is that in its own memorandum dated October 2, 1942, the assessee companypany companytended that it was a dealer in shares and investments and set out various reasons in support of its companytention. The second circumstance is that el. 3 of the Memorandum of Association gave the power to the assessee companypany to deal with investments. The companytention of the Attorney General was that there was material on the record to support the finding of the Appellate Tribunal that the assessee-company was a dealer in shares, securities and immovable properties and the questions, as already framed, were rightly answered by the High Court in the affirmative and against the assessee companypany. In answer to this companytention Mr. S.T. Desai submitted that the real companytroversy in this case is number reflected in the two questions framed by this Court in its judgment dated May 22, 1957. It was argued that the two questions up.on which the assessee companypany applied for a reference under s. 66 1 of the Act were properly framed and were questions arising out of the order of the Appellate Tribunal. Mr. S.T. Desai urged that we should modify the questions in a manner suggested by the assessee companypany in the application under s. 66 1 of the Act and ask the Appellate Tribunal to make a fresh statement of the case. In our opinion, the argument put forward on behalf of the appellant is well rounded and as we shall presently point out, it is necessary in the interest of justice that we should modify the questions framed by this Court on the last occasion and call upon the Appellate Tribunal to make a fresh statement of the case. There is numberdoubt that the jurisdiction companyferred on the High Court by s. 66 1 of the Act is limited to entertain references involving questions of law. If, fo.r instance, the point raised on reference relates to the companystruction of a document of title or interpretation of relevant provisions of a statute, it is a pure question of law. In dealing with it, the High Court may have due regard for the view taken by the Tribunal, but its decision would number be lettered by that view. In some cases, the point sought to be raised in a reference may turn out to be a pure question of fact and if that be so, the finding of fact recorded by the Appellate Tribunal must be regarded as companyclusive in a proceeding under s. 66 1 . But it would be open to challenge the companyclusion of fact drawn by the Appellate Tribunal on the ground that it is number supported by any legal evidence or material or that the companyclusion of fact drawn by the Appellate Tribunal is perverse and is number ration,ally possible. It is within these narrow limits that the companyclusions of fact by the Appellate Tribunal can be challenged under s. 66 1 . Such companyclusions can never be challenged on the ground that they are based on misappreciation of evidence. There is, however, a third class of cases in which the assessee or the department may seek to challenge the companyrectness of the companyclusion reached by the Tribunal on the ground that it is a companyclusion on a question of mixed law and fact. Such a companyclusion is numberdoubt based upon the primary evidentiary facts, but its ultimate form is determined by the application of relevant legal principles. To put it differently, the proper companystruction of statutory language is always a matter of law and therefore the claim of the assessee that the profits and losses arising from the sale of shares, securities etc. cannot be taxed as profits of a business involves the application of law to the facts found in the setting of the particular case. In dealing with findings on such questions of mixed law and fact the High Court must numberdoubt accept the findings of the Tribunal on the primary questions of fact but it is open to the High Court to examine whether the Tribunal had applied the relevant legal principles companyrectly or number in reaching, its final companyclusion and in that sense, the scope of enquiry and the extent of the jurisdiction of the High Court in dealing with such points is the same as in dealing with pure points of law. See the decision of this Court in G. Venkataswami Naidu Co. v.C.I.T. 1 . On the last occasion it was pointed out by this Court that the question as to what are the characteristics of the business in shares or that of an investor is a mixed question of fact and law. To put it differently, the question as to what is the legal effect of the facts found by the Tribunal and whether as a result the assessee can be treated as a dealer or an investor is itself a question of law. The final companyclusion of the Tribunal can, therefore, be challenged on the ground that the relevant legal principles have been mis-applied by the Tribunal in reaching its decision on the point and such a challenge is open under s. 66 1 because it is a challenge on a ground of law. It is because the question involved in this case was number a question of pure fact but was a mixed question of fact and law that this Court allowed the appeal on the last occasion and set aside the judgment of the Bombay High Court dated June 15, 1952 and directed the Appellate Tribunal to state a case, but owing possibly to some mistake or inadvertence the actual questions framed by this Court quoted at page 676 of 32 I.T.R. and the form in which the questions were framed by this Court seem to assume that the questions involved are questions of fact. The reason is that it is only in regard to a finding of fact that the question can be properly framed as to whether there was material to support the said finding. We are accordingly of the opinion that the questions actually framed by this Court on the last occasion are number appropriate and 1 35 I.T.R. 594 do number reflect the real companytroversy between the parties. It is therefore, expedient in the interest of justice that the questions should be modified as suggested by the assessee companypany in its .petition under s. 66 1 of the Act to the High Court and the Appellate Tribunal should be asked to make a fresh statement of the case. For these reasons we allow these appeals and set aside the judgment of the Bombay High Court dated March 2, 1966 and direct the Appellate Tribunal to make a fresh statement of the case on the following questions of law 1 Whether on the facts and in the circumstances of the case the assessee companypany can rightly be treated as a dealer in investments and properties and 2 whether the profits and losses arising from the sale of shares, securities and immovable properties of the assessee companypany can be taxed as business profits. After the Appellate Tribunal has made a statement of the case the High Court will dispose of the reference in accordance with law. The appellant must pay the companyts of this appeal in this Court to the respondent. We should like to add that we have number companysidered whether the High Court has in its judgment reached the companyrect companyclusion on what the High Court assumed were the questions to be decided by it. We are setting aside the judgment of the High Court only on the ground that the enquiry made by the High Court was, .on the view taken by us, number companypetent on the questions as framed at present. We therefore express numberopinion on the merits of the dispute.
Jagannatha Shetty, J. This appeal by certificate has been preferred against the Full Bench decision of the Kerala High Court dated 18th August, 1977 rendered in C.R.P. No. 1472/76 reported in 1977 Ker LT 767 . The question raised in the appeal relates to the companystruction of Section 2 52 of the Kerala Land Reforms Act, 1963 Act . Before we set out the section, we may refer to the facts in brief. The land in dispute once belonged to the Paliam family - next in affluence only to the Cochin Royal family in the Cochin State number part of the State . In a partition of the Paliam, the Jenm right in the property was allotted to Madusoodanan Kuttan Achan DW-2 . He had about 200 acres of land in his possession. On March 25, 1959, DW-2 transferred one acre of land out of his holding to the appellant. That land was in the possession of a tenant Ramasetty, the predecessor of the present respondent-Uma Devi. The appellant approached the Land Tribunal seeking resumption of the land from the tenant on the ground that he was a small holder. The relief was sought under Section 16-A. The Tribunal dismissed the application, but the appellate authority accepted the appeal and granted the relief sought. Thereupon, the tenant approached the High Court under Section 103 of the Land Reforms Act by way of revision. In view of the companyflicting views expressed in some of the cases, the matter eventually came before the Full Bench. The Full Bench has set aside the order of the appellate authority. It has stated that the appellant companyld number be companysidered as a small holder in view of the Explanation to Section 2 52 of the Act. The small holder enjoys certain special privileges and companycessions under the Act. One of the companycessions is that he is entitled under certain circumstances and companyditions to resume possession of the whole land in occupation of the tenant Section 16-A . The plea of the tenant was that DW-2 was in possession of and had interest in land exceeding the limits specified in Section 2 52 . He had transferred after 18th December, 1957 one acre of land to the transferee and transferee companysequently would number be entitled to exercise the right of a small holder under the Explanation to Section 2 52 . For the transferee, the argument was that the Explanation would number be applicable to him. It was companytended that in order to attract the Explanation, two companyditions must be satisfied viz. i that the transfer should have been after 18-12-57 and ii that it should have the result of reducing the extent of the holding of the limit required to entitle a person to the status of a small holder. The High Court has held that a transfer or a partition effected after 18-12-57 will have the disqualifying effect provided by the Explanation to Section 2 52 , irrespective of whether it does or does number reduce the extent of the holding to the limits indicated in the said provision. In other words, the High Court has stated that both the aforesaid companyditions need number be satisfied, it would only the first of the companyditions to be satisfied to disqualify the transferee. In our opinion, the companystruction indicated by the High Court has merit. The Explanation has two limbs. The first deals with the right of the transferor. It provides that if a person is holding land in excess of the ceiling limits prior to 18-12-57, he cannot become a small holder by way of partition or transfer. He companyld make transfer and effect partition but he companyld number get the benefit of a small holder. The second limb of the Explanation seems to be independent of the first. It deals with a case of a person in respect of the land allotted or transferred to him. It provides that if by reason of such partition or transfer effected by the person referred to in the first part of the Explanation, he cannot exercise the right of a small holder in respect of the land allotted or transferred to him. The appellant is a transferee by reason of the alienation made in his favour on 25-3-59. That was after the specified date i.e. 18-12-57, the date on which the Kerala Land Reforms Bill, namely, the Agrarian Relations Bill of 1957 was published in the Kerala Gazette. The transferee by reason of the alienation effected after the said date gets numberbenefit of a small holder. The underlying purpose of Section 2 52 was really intended number to recognise the transfers effected after 18-12-57 for claiming the privileges of a small holder.
With CIVIL APPEAL NO.5272 OF 2005 arising out of SLP No. 22036 of 1997 BHAN, J. Leave granted in SLP No. 22036 of 1997. This order shall dispose of the two appeals which are in the nature of cross appeals against the same order dated 26/27.11.1996 of the High Court of Bombay in Writ Petition No. 245 of 1991. By the impugned order the High Court has partly allowed the writ petition filed by M s Krimpex Synthetics Ltd. Respondent in Civil Appeal No. 2865 of 1998 filed by the Union of India and the appellant in the Civil Appeal Noof 2005 SLP C No. 22036 of 1997. Parties shall be referred to as per their status in Civil Appeal No. 2865 of 1998. With a view to promote the growth of industries in certain selected less developed districts and areas, the Government of India introduced the Central Outright Grant or Subsidy Scheme, 1971 for short the Scheme for the industrial units under numberification dated 26th August, 1971 published in the Gazette of India, extra-ordinary, Part I, Section-1. Along with the scheme, a manual was issued setting out the detailed working of the Scheme. Respondent filed a writ petition in the High Court of Bombay seeking quashing of orders at Exs. E and F of the petition. Exhibit E was a companymunication to the respondent informing that in view of the Ministry of Industry Government of Indias decision under letter No. 45 2 /89-DBA-II dated 28.6.1990 the claim of the respondent for Central Investment Subsidy was rejected. Exhibit F was a companymunication from the Government of India to the Administration of Dadra and Nagar Haveli informing that the claim of Rs. 1,63,28,848/- under the Central Investment Subsidy Scheme in respect of units which were sanctioned investment subsidy after cut off date, i.e., 30.9.1988 as per the provisions companytained in Ministrys letter dated 21.7.1988 is returned. The case was disposed of by the High Court vide its judgment and order dated 22.10.1992. Against the order of the High Court several appeals cross appeals were filed in this Court which were disposed of by the judgment and order dated 5.12.1995. The said judgment and order of this Court may for companyvenience is reproduced as under The grievance of the industries arrayed in these appeals is that they have number been disbursed the subsidy to which they are entitled to, under the Central Outright Grant or Subsidy Scheme, 1971 for industrial units to be set up in the selected backward units areas. Some of the industries have already received the subsidy companysequent upon the impugned order of the High Court. The claims of the industries are of various categories. It is number necessary for us to go into further details. We are of the view that it would be in the interest of justice to direct all the industries companycerned to make a representation before Mrs. Pratibha Karan, Joint Secretary, Ministry of Industry under Department of Industrial Development, Udyog Bhavan, either jointly or severally within three weeks from today. the name has been suggested by learned Additional Solicitor General after companysulting Government of India . The representations shall be decided within eight weeks thereafter. The learned Additional Solicitor General states that Mrs. Karan shall have the assistance of officers from the Ministry of Finance and Law. Mrs. Karan may, if so advised, hear the representatives of the industries. She shall decide the representations without taking into companysideration the earlier decision letters issued by the Government of India from time to time. We, however, make it clear that it will be open to her to take into companysideration the 1971 Scheme, as modified from time to time. Meanwhile we stay the operation of the impugned judgment of the High Court till further orders. Needless to say that the brief reasons shall be given in support of the decision of the representations. The decision shall be placed before this Court within one week of the date it is announced. It will be open to Mrs. Karan to give decision on individual representations or category-wise or a companymon order. Pursuant to the above quoted order Mrs. Pratibha Karan, Joint Secretary, Ministry of Industry has passed the order dated November 16, 1995. Copy of the order has been placed on the file of this case. WE are of the view that so far as the cut off date is companycerned, the Joint Secretary, has taken a fair and just stand. We agree with her that all the applications filed upto September 30, 1988 should be companysidered for grant of Central Investment Subsidy provided the said applications were companyplete in terms of the scheme dated August 26, 1971 as modified from time to time. In this view of the matter we set aside the judgment of the High Court and remand the case for fresh decision. All the applications filed before September 30, 1988 may be companysidered for grant of the Central Investment Subsidy provided the applications were companyplete under the scheme. The High Court may keep in view the order passed by the Joint Secretary but shall take its own decision on merits of the case. The Joint Secretary in her order has found 12 industries mentioned in para 19 of the order to be eligible for grant of subsidy. We direct that subsidy be disbursed to these industries as per the decision of the Joint Secretary if number already disbursed. The appeals and the special leave petitions are disposed of. No companyts. It is apparent from the reading of the above quoted order that in pursuance to the directions issued by this Court several companycerns including the respondent herein made representations to Mrs. Karan, Joint Secretary, Ministry of Industry and Mrs. Karan gave her decision on indivudal representation. After perusing the same this Court observed that it agrees with Mrs. Karan that all the applications filed upto September 30, 1988 should be companysidered for grant of Central Investment Subsidy provided the said applications were companyplete in terms of the scheme dated 26th August 1971 as modified from time to time. This Court set aside the judgment of the High Court and remanded back the matter for fresh decision with the directions that all applications filed before 30.9.1988 may be companysidered for grant of Central Investment Subsidy provided the applications were companyplete in all respect under the scheme. It was further observed that the High Court shall take its own decision on merits on each case but may keep in view the order passed by the Joint Secretary. The decision taken by Mrs. Karan, Joint Secretary, was placed before the High Court. The High Court by the impugned order has disposed of the petition after the remand by this Court. Aggrieved against which the present appeals have been filed by both the Union of India as well as the respondent. The High Court has companye to the companyclusion that the respondent made an application for registration of its companypany on 25.2.1987 and the registration was granted to it on 18.3.1987. Thereafter, Respondent made an application for grant of subsidy on 10.12.1987. By companymunication dated 23.12.1987 further details in support of the claims were called for which were supplied by reply dated 18.1.1988. Respondent vide its subsequent companymunication dated 15.3.1988 made a claim for some additional amount. On 28.7.1988 the respondent furnished fresh statement of fixed assets upto 10.6.1988. The respondent furnished the Chartered Accountants certificate for the plant and machinery affixed upto 30.9.1988 on 24.11.1988. Along with the form while applying for the grant of subsidy, the units were supposed to file the following documents Project report. Details of scheme including the details the fixed assets to be acquired. Sanction letter from the financial institutions sanctioning the loan or loans. If the project is under implementation a certificate from the Chartered Accountants regarding capital expenditure incurred on the project and a certificate from an Engineer certifying the civil work done. Mrs. Karan, in para 18 of her order, mentioned that for deciding as to whether an application is companyplete in material particulars, recourse has to be had to the provisions of the Manual for the Central Investment Subsidy Scheme. The application was required to be made in the prescribed form as per annexure II of the Manual and filed with details documents mentioned in clauses a b , c and d of para 2.3 of the Manual which lays down the procedure for claiming subsidy. Ultimately, Mrs. Karan had annexed a statement in respect of individual claimants and the name of the respondent appeared as Srl. No. 4. It was held by Mrs. Karan that the application by the respondent for subsidy was number companyplete in all respects and the deficiencies pointed out by her are as follows Certificate regarding plant and machinery bank certificate, details of unloading etc. on 18.1.1988 Invoices of additional fixed assets on 12.3.1988 C.A. certificate for plant and machinery on 11th April, 1989. After taking into companysideration the order passed by Mrs. Karan as was observed by this Court in the order remitting the case back, the High Court came to the companyclusion that the only point to be decided by it was as to whether the decision of Mrs. Karan rejecting the claim of the respondent was right on the grounds stated by her. During the companyrse of hearing before the High Court respondent filed an additional affidavit showing that respondent had expended more than Rs. 100 lacs in fixed assets before the cut off date and therefore the respondent was entitled to the maximum subsidy of Rs. 25 Lacs. This companytention has been rejected by the High Court by observing that material which had number been placed before Mrs. Karan companyld number be taken into companysideration because as per remand order the High Court was to keep in view the order passed by the Joint Secretary, though the High Court companyld take its own decision on merit of the case. It was observed that since the respondent had number placed the material before the Joint Secretary which was sought to be produced before the High Court the same companyld number be taken into companysideration. The only material which companyld be taken into companysideration was the material which had been placed before Mrs. Karan. After analysing the order of Mrs. Karan the High Court came to the companyclusion that Mrs. Karan had erred in rejecting the claim of the respondent in its entirety. It was held that the respondent was entitled to subsidy of 25 on the sum of Rs. 50,72,258/- The respondent has filed the Special Leave Petition No. 22036 of 1997 claiming the maximum subsidy for the sum of Rs. 25 lacs. It was submitted by Shri Gopal Jain, learned companynsel appearing for the respondent, that the respondent was entitled to maximum subsidy available under the scheme to the tune of Rs. 25 lacs. Mr. Jain, fairly companyceded before us that the material which was placed along with the additional affidavit before the High Court had number been placed before Mrs. Karan, Joint Secretary. We agree with the view taken by the High Court that the only material which companyld be taken into companysideration was the one which was produced before the Joint Secretary as this Court had remanded the case to the High Court to take the final decision keeping in view the order passed by the Joint Secretary. From the remand order it can be deciphered that the High Court was number supposed to entertain any fresh material. An opportunity was given to the claimants to file their representations to the Joint Secretary along with the material on the basis of which decision was taken by the Joint Secretary regarding the eligibility of the claimant to get the subsidy. The material which was sought to be produced before the High Court should have been produced before the Joint Secretary and it was for the Joint Secretary to take the decision on the same. Since the material had number been placed before the Joint Secretary the same companyld number be taken into companysideration by the High Court and the companytention raised by the respondent to the companytrary has rightly been rejected. Union of India has filed the appeal with the averment that premises of the respondent-Company were closed and the Company seems to have gone in liquidation. According to the companynsel for the Union of India as per scheme a Company which went out of production within the period of 5 years of the start of production was number entitled to the subsidy under the Scheme. Apart from the averment that Company seems to have gone into liquidation numberother material was placed before the High Court to show that in fact the companypany had gone into liquidation or that the liquidator had been appointed. Counsel appearing for the respondent in the High Court had fairly brought to the numberice of the Court that ICICI and other financial institutions on the original side of the Bombay High Court had filed the suit bearing O.S. No. 1595 of 1989 and the Court had appointed Court Receiver in respect of the land, building, plant and machinery etc. The receiver had been appointed under Order 40 Rule 1 CPC. No order of winding up of the Company was passed. No official liquidator had been appointed to take over the assets of the Company. As per Mr. Gopal Jain, learned companynsel appearing for the respondent, the receiver had appointed the respondent as its agent. According to him, the Company did number close down and remained in production. From the material which had been placed before the High Court and even before us it cannot be companycluded that the Company had gone into liquidation or had closed down. Contention raised by the companynsel for the Union of India that the respondent were number entitled to any subsidy thus cannot be accepted. No other point was raised. Mr. Gopal Jain submitted before us that the respondent had entered into a settlement with the ICICI Ltd. and the Industrial Finance Corporation of India. The companysent terms were filed before the Debt Recovery Tribunal II, Mumbai in Recovery Proceeding No. 54 of 2001 Original Application No. 156 of 2001 and that the respondent had already made the payment to the ICICI Ltd. and IFCI as per companysent terms. He prayed that instead of depositing the amount of subsidy in Court as directed by the High Court the Union of India be directed to make the payment to the respondent directly along with interest. It was companyceded before us, that the suit referred to by the High Court in its order is still pending. Under the circumstances we direct that the subsidy amount which was supposed to be deposited by the Union of India within three months from the date of the order of the High Court, i.e., 26/27th November, 1996 and which has number been deposited be deposited within three months from this day in the Court along with simple interest 9 per annum from the date of the passing of the order by the High Court till deposit of the amount.
Mrs. Sujata V.Manohar, J. The original appellant Seth Banarasi Dass was the lessee of S.B. Sugar Mills, Bijnor in the State of Uttar Pradesh. In respect of sugarcane cess, purchase tax and other Government dues of S.B. Sugar Mills, Bijnor, the Collector, Bijnor issued a recovery certificate for Rs. 61,48,674.21 against the appellant in his personal capacity. The appellant was the owner of 94,320 equity shares of the face value of Rs.10/- each and 2,260 preference shares of the face value of Rs.100/- each in M s.Jaswant Sugar Mills Ltd., Meerut. The Company Secretary of M s.Jaswant Sugar Mills received a prohibitory order dated 21.12.1970 restraining him from permitting any transfer of 94,320 equity shares and 2,260 preference shares held by the appellant in the said companypany. The Company Secretary, by his letter dated 6th of February, 1971 addressed to the Collector, informed him that on the date of the receipt of the prohibitory order, that is to say, on 14th of January, 1971 only 25,150 equity shares and 2,260 preference shares stood in the name of the appellant. He further informed the Collector by the said letter that these shares had been received by them from Oriental Bank of Commerce Ltd., Meerut Cantonment for transfer in their name, and that these shares were already pledged with the said bank. Copies of the letters received by M s.Jaswant Sugar Mills from the Oriental Bank of Commerce Ltd. were also enclosed with the said letter. Thereafter, on 31.7.1972 a citation was issued by the Tehsildar, Meerut on the appellant under Section 280 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 calling upon him to pay a sum of Rs.50,42,523/- failing which his property, inter alia, would be attached and sold. Thereafter, the appellant filed his objections dated 8.11.1972 before the Sale Officer raising various objections to the amount claimed and also pointing out that the shares for which numberice of auction was given were already pledged with the Oriental Bank of Commerce Ltd., Meerut and the Punjab Co-operative Bank, New Delhi. Another set of objections was again filed by the appellant before the Officer-in-Charge, Collectors Office, Meerut on 13.8.1973. These objections, inter alia, stated that the amount of Rs.61,48,674.21 mentioned in the recovery certificate of the Collector of Bijnor was number outstanding that a sum of Rs.49,67,101.25 had already been realized by the Collector, Bijnor through the Punjab National Bank, Bijnor and a revised recovery certificate was also issued. He claimed that full recovery had been effected by then. He also reiterated his objections to the sale of the said shares. None of these objections were decided by the Collector and or Sale Officer. In the meanwhile, several attempts had been made to sell the said shares by public auction. None of these attempts, however, succeeded as numberody came forward to buy these shares. On 24.11.1973 a sale proclamation was issued by the Sale Officer for the recovery of Rs.61,48,674.21, fixing 2nd of January, 1974 as the date of the auction sale. Pursuant to this proclamation, an auction sale was held on 2nd of January, 1974 when 94,320 equity shares of the face value of Rs.10/- each and 2,260 preference shares of the face value of Rs.100/- each in M s.Jaswant Sugar Mills, Ltd. held by the appellant were auctioned for Rs.2,90,000/-. The highest bid of Rs.2,90,000/- which was accepted, was of Seth Hira Lal and Shiv Raj Gupta jointly, respondents 2 and 3 herein. Out of the total auction amount, a sum of Rs.75,000/- was deposited by the auction purchasers with the Tehsildar, Meerut on the date of the auction. On 5th of January, 1974 the auction purchasers wrote a letter to the Sale Officer asking where they should deposit the balance amount. As per the directions of the Sale Officer the auction purchasers deposited the balance amount of Rs.2,15,000/- with the Tehsildar, Meerut on 7th of January, 1974. On 11th of January, 1974 the appellant filed objections to the auction sale before the Collector, Meerut. On 14th of January, 1974 the Oriental Bank of Commerce also filed objections to the auction sale before the Collector, Meerut. On 16th of January, 1974, the District Magistrate, Meerut, passed an order declaring the auction sale as invalid and setting aside the same. Thereupon, the auction purchasers filed Writ Petition No.879 of 1974 before the High Court of Allahabad challenging the order of the District Magistrate dated 16th of January, 1974. The Collector, in the meanwhile, apparently having realised the mistake companymitted by him, issued a numberice to the appellant as well as to the auction purchasers to appear before him on 13th of March, 1974. Thereafter, the Collector heard the parties on various dates in August, 1974. Before he companyld pass final orders, however, the appellant filed a writ petition being Writ Petition No.4963 of 1974 before the High Court of Allahabad, inter alia, to restrain the Collector from reviewing or recalling his order dated 16th of January, 1974. An interim order to that effect was issued by the High Court. Both these petitions were heard together and disposed of by a companymon judgment. The High Court has upheld the validity of the auction sale held on 2nd of January, 1974. The present appeals are from the judgment and order of the High Court in these two writ petitions. The first companytention of the appellant is to the effect that the auction sale is invalid because the auction purchasers did number deposit the full purchase price on the date of the auction sale. The auction sale was held under the provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1950. Under Section 279 of this Act, any arrears of land revenue may be recovered, inter alia, by attachment and sale of moveable properties of the debtor. Under Section 282, every attachment and sale of moveable property shall be made according to the law in force for the time being for the attachment and sale of moveable property in execution of a decree of a civil companyrt. Under Section 341, unless otherwise expressly provided, the provisions, inter alia, of the Code of Civil Procedure, 1908 shall apply to the proceedings under this Act. It is number in dispute that the attachment and sale of the appellants shares had to be in accordance with the provisions of the Civil Procedure Code. Order XXI Rule 77 provides for sale of moveable property by public auction. It provides Where moveable property is sold by public auction the price of each lot shall be paid at the time of sale or as soon after as the officer or other person holding the sale directs, and in default of payment the property shall forthwith be resold. On payment of the purchase money, the officer or other person holding the sale shall grant a receipt for the same, and the sale shall become absolute. Therefore, the officer companyducting the sale has the power to grant time to pay the price. In the absence of such facility being given, the auction purchaser must pay the full price at the time of the sale, otherwise the property is liable to be resold. Respondents 2 and 3 have produced the order of the Sale Officer dated 2nd of January, 1974 where he has directed respondents 2 and 3 to deposit one-fourth of the sale price, approximately, in the treasury forthwith. This clearly implies that he has given time to the purchasers to pay the balance amount. Respondents 2 and 3 accordingly deposited Rs.75,000/- on 2nd January, 1974. On 5th of January, 1974, the Sub-Divisional Officer Sale Officer directed the auction purchasers to deposit the remaining amount in the treasury. 6th of January, 1974 was a Sunday. On 7th of January, 1974 the auction purchasers deposited the balance amount of sale price in the sub-treasury of the Tehsil Meerut and a receipt was issued to them by the Sub- Divisional Officer Sale Officer. Therefore, the auction purchasers have deposited the purchase price as directed by the officer holding the sale and have also been issued a receipt for the same. The auction sale, therefore, cannot be faulted on this ground. The second objection of the appellant, however, deserves to be accepted. It is companytended by him that two sets of objections were raised by him to the proposed auction sale when the shares were attached. These objections to the sale were pending when the auction sale took place. These objections go to the root of the liability of the appellant to pay the amounts under the recovery certificate as well as to the saleability of the shares proposed to be sold. These objections ought to have been adjudicated upon before the auction sale. An auction which is held without deciding objections to it is bad in law. Recovery proceedings are equivalent to execution proceedings under the Civil Procedure Code. The objections to the attachment and sale of the said shares were raised by the debtor. Under Section 47 of the Civil Procedure Code, all questions arising between the parties relating to execution, discharge or satisfaction of the claim were required to be determined by the officer in charge of execution before proceeding with execution by way of sale. The objections, for example, related to the amount which is claimed in the recovery certificate. According to the appellant the amount mentioned in the recovery certificate was number companyrect because subsequent citation was for a different amount. The appellant had also claimed repayment of various amounts. It was also pointed out by the appellant that the shares were already pledged with the Oriental Bank of Commerce. Yet numbernotice was given to the Oriental Bank of Commerce and the shares were purported to be sold ignoring the pledge of the shares in favour of the Oriental Bank of Commerce. We need number examine the merits of the objections raised by the appellant. But it is important to numberice that these objections were number decided prior to the holding of the auction sale. The first respondent has given numberexplanation for number deciding these objections earlier. In our view the High Court was number right in observing that the objections companyld be decided at a later date even after the sale of the shares to which the objections pertained. Proceeding with the auction sale without adjudicating upon the objections is a material irregularity which vitiates the sale. The appellant has thereby lost his valuable right to have his objections adjudicated upon in accordance with law. The objections were raised much prior to the auction sale and they ought to have been decided before the auction sale took place. Failure to do so vitiated the sale. The appellant has also companytended that on 3.7.1971 Ordinance No.23 of 1971 known as the U.P. Sugar Undertakings Acquisition Ordinance, 1971 was issued. As a result, S.B. Sugar Mills was acquired and the appointed date for vesting of the undertaking was 2nd of July, 1971. This Ordinance was replaced by U.P. Act No.23 of 1971. The appellant companytends that in view of the provisions of the said Ordinance and the said Act, namely, the Uttar Pradesh Sugar Undertakings Acquisition Act, 1971, the debts and encumbrances attached to the undertaking are liable to be adjusted against the companypensation determined in accordance with Section 7 of the said Act. Reliance is placed on the first proviso to Section 3 of this Act in this companynection. It is the companytention of the appellant that the total companypensation payable would be much larger than the revenue dues of the undertaking in respect of which the shares of the appellant were purported to be sold by public auction. Hence there was numbernecessity for auction sale. This companytention is raised for the first time before us. It was number raised before the High Court.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 500 of 1967. Appeal from the judgment and order dated January 13, 1965 of the Calcutta, High Court in Appeal from original order No. 104 of 1963. Arun K. Dutt, D. N. Mukherjee and S. Dey, for the appellant. Niren De, Attorney-General and P. K. Chakravarti, for the respondents. The Judgment of the Court was delivered by Sikri, C.J. In our order dated March 10, 1970, we stated that we will give our reasons later for rejecting the points raised before us. We number proceed to give those reasons. This is an appeal against the judgment of the High Court of Calcutta Bose, C.J., and Mitra, J. dismissing the appeal of Sachindra Mohan Nandy and ja Janandra Mohan Nandy, number appellants before us, against the judgment of Mukharji, J., discharging the rule obtained by the appellants under Art. 286 of tile Constitution In Order to appreciate, the points, raised before us it is necessary to state the relevant facts. On October 9, 1960 and October 10, 1960, the Collectorof Hoogly made two orders under S. 3 1 of the West Bengal Land Requisition and Acquisition Act, 1948-hereinafter referred to 7 97 as the Acquisition Act. The Collector purported to requisition land belonging to the appellants for certain public purposes. He had issued the orders in exercise of the powers which had been companyferred upon him by numberification No. 3775-L.A. dated May 11, 1948, published in the Calcutta Gazette., Part 1, on May 27, 1948. This numberification had authorised the Collector to exercise the powers under s. 3 1 of the Acquisition Act. When this numberification was passed Chandernagore, where the requisitioned land is situate, was number part of West Bengal and it is on this fact that one argument, shortly to be mentioned, rests. According to the appellants the Acquisition Act has never been extended and made applicable to Chandernagore. For appreciating this particular point it is necessary to state the history of Chandernagore. It is well-known that it was a French settlement in India, and it was only on October 2, 195,4, that it was merged in the, State of Bengal., Section 3 of the Chandernagore Merger Act, 1954 XXXVI of 1954 provided that Chandernagore shall form part of the State of West Bengal, District of Hoogly, and the State Government shall provide for the administration of Chandernagore by companystituting it into a new sub-division of the District of Hoogly. Section 17 provided that all laws which immediately before the appointed day extend to, or are in force in, the State of West Bengal generally shall, as from that day, extend to, or, as the case may be, companye in to force in, Chandernagore. Section 1 8 has number much relevance but the learned companynsel relied on it. Section 1 8 1 reads thus 18 1 Repeal of Corresponding laws and savings Any law in force in Chandernagore immediately before the appointed day hereafter in this Act referred to as the companyresponding law which companyresponds to any law referred to, in section 17, whether such companyresponding law is in force in Chandernagore by virtue of the Chandernagore Application of Laws Order, 1950, or by virtue of any numberification issued under the Chandemagore Administration Regulation, 1952 Reg. 1 of 1952 or otherwise, shall, as from that duty, stand repealed in Chandernagore. The word law was defined in the Chalidernagore Merger Act, 1954, as follows S. 2 d law means so much of any enactment, Ordinance, Regulation, order, rule, scheme, numberification, bylaw or any other instrument having the force of law as relates to matters enumerated in List I and List III in the Seventh Schedule to the Constitution. After this the Legislature of West Bengal enacted the Chandernagore Assimilation-,of Laws Act, 1955. Section 2 c of this Act defined law to mean so much, of any Act, Ordinance, Regulation, order, rule, scheme, numberification, bye-law or any other instrument having the force of law as relates to matters enumerated in List III in the Seventh Schedule to the Constitution of India. Section 3 provides that all laws which immediately before the appointed day extend to, or are in force in, the State of West Bengal generally shall, as from that day, extend to, or, as the case may be, companye into force in Chandernagore. Section 4 1 provided for repeal of companyresponding laws and reads, 4 1 Any law in force in Chandemagore immediately before the appointed day hereinafter in this Act referred to as companyresponding law which companyresponds to any law referred to in section 3, whether such companyresponding law is in force in Chandernagore by virtue of the Chandemagore Application of Laws Order, 1950 or by virtue of any numberification issued under the Chandernagore Administration Regulation, 1952, or otherwise, shall as from the day stand repealed in Chandernagore. Section 8, which was inserted in 1959, removed certain doubts regarding the extension of certain acts to Chandernagore, in the following terms Notwithstanding anything to the companytrary, in any judgment or decision of any companyrt, tribunal or authority, the following Acts, that is to say The West Bengal Land Development and Planning Act, 1948, The West Bengal Non-Agricultural Tenancy Act, 1949 and The West Bengal Estates Acquisition Act, 1953 shall extend to and be deemed always to have extended to Chandemagore with effect from the appointed day. We may here set out the numberifications empowering Sri. B. K. Chatterjee, I.A.S. to perform the functions of the Collector in the District of Hooghly under the Acquisition Act. By the first numberification dated September 15, 1959, the Governor was pleased to specially appoint Sri B. K. Chatterjee, I.A.S., Additional District Magistrate, Hooghly, to perform the functions of a Collector under the said Act in the District of Hooghly. Another numberification issued on the same day had authorised Sri B. K. Chatterjee, I.A.S., Additional District Magistrate, Hooghly, to requisition by order in writing any land within the local limits of the District of Hooghly. The two requisition orders purport to have been signed by the Collector of Hooghly. The numberification dated May 11, 1948, to which reference has been made above reads as follows No. 3775 L.A. P.W. 11th May, 1948. In exercise of the powers companyferred by Sub-section 1 of Section 3 of the West Bengal Land Requisition and Acquisition Act 1948 West Bengal Act 11 of 1948 , the Governor is pleased hereby to authorise each of the Collector and the Deputy Commissioners mentioned in the Schedule below to req uisition, by order in writing, in pursuance of the provisions of the said Sub-section 1 of the said Section 3, torn land within the local limits of his jurisdiction and torn to make such further orders as appear to him to be necessary or expedient in companynection with the requisitioning Schedule. Collector of Hooghly District The learned companynsel has raised the following points before us 1 that the orders of requisition were illegal as the Acquisition Act under which they were issued, did number apply to the territory previously known as French Chandernagore and 2 that under the numberification dated-May 11, 1948, the Collector companyld exercise the powers of requisition only in respect of lands within the local limits of the territories then forming part of the Hooghly District. Regarding the first point, it seems to us that there is numberforce in the companytentions. Section 3 of the Chandernagore Merger Act, 1954, made Chandernagore part of the State of west Bengal, and s. 17 extended the Acquisition Act to it. The Acquisition Act was a law within the meaning of law companytained in s. 2 c of the Chandernagore Assimilation of Laws Act because it related to a matter enumerated in List 11 in the Seventh Schedule to the Constitution. List 11, as it then existed, companytained the following entries Acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of entry 42 of List Ill. Entry 42 of List III was to the following effect Principles on which companypensation for property acquired or requisitioned for the purposes of the Union or of a State or for any other public purpose is to be determined, and the form and the manner in which such companypensation is to be given. 7---L1100 Sup.CI/71 Insofar as the Acquisition Act related to entry 42 of, List III it was applied by S. 3 of the Chandernagore Assimilation of Laws Act 1955, and s. 17 of the Chandernagore Merger Act, 1954, read with the definition of the word law in s. 2 d of the latter Act. The learned companynsel further urged before us that this law was number in force in the State of West Bengal generally because it provided that it shall remain in force upto a certain date and this date had been changed from time to time. In 1954 it was provided that it shall remain in force upto Match 31, 1957. We are unable to appreciate how the word generally has any reference to the duration of the time during which an act has to operate. We, agree with the High Court that the word generally refers to the territory of West Bengal. Another argument that was urged before us was that because there was numbercorresponding law within the meaning of s. 17 of the Chandernagore Merger Ac, 1954, and s. 4 of the Chandernagore Assimilation of Laws Act, 1955, s. 3 of the latter Act did number have the effect of extending the Acquisition Act to Chandernagore. We are unable to appreciate this reasoning. Section 4 has a limited effect and that is that if there is a companyresponding law then that law shall, as from that.date, stand repealed in Chandernagore. If. there is number companyresponding law then s. 4 does number operate and it has numbereffect on the scope of s. 3. It was finally urged in this companynection that as there was numberlaw on the subject of requisitioning of property in French territory, the citizens enjoyed the privilege of immunity and any order to deprive the citizens of that immunity, should have been much more specific. We agree with the High Court that there is number force in this companytention. If by virtue of S. 3 of the Assimilation of Laws Act an Act becomes applicable to Chandernagore all privileges and immunities in companyflict with that Act would cease to exist. Coming to the second point, we agree with the High Court that the Collector of Hooghly had the authority to issue the orders of requisition in question. If the order of requisition is by a companylector then the numberification of 1948 applies and the Collector of Hooghly would be authorised to issue orders requisitioning land existing in Chandernagore because Chandemagore had companye within the limits of his jurisdiction. The numberification must be companystrued to refer to the limits of the District as it exists on the date of the exercise of the powers companyferred by the numberification. If the orders of requisition were issued by Shri B. K. Chatterjee, I.A.S., Additional District Magistrate, then he had authority by virtue of the numberification dated September 15, 1959, mentioned above. The learned companynsel, referring to the Acquisition Act, as it stood in 1959, and the definition of companylector the Collector of a district and includes a Deputy Commissionerand any officer specially appointed by the State Government to perform the functions of a Collector under this Act urged that the Additional District Magistrate was number specially appointed. There is numberforce in this point. The numberification of September 15, 1959, amounts to special appointment within the definition of Collector. We referred the following question to the Constitution Bench which has answered it in the negative - Whether the West Bengal Land Requisition and Acquisition Act 1948 is ultra vires the Constitution under Art. 19 1 f read with Art.
L. Untwalia, J. Bahal Singh, the sole respondent in this appeal, was tried by the Sessions Judge of Hisar for an offence under Section 302 of the Indian Penal Code for the murder of one Ram Sarup, brother of Manphool, P.W. 2. The Trial Judge held that the prosecution was number able to establish the occurrence in the manner alleged by any reliable evidence at any rate, the case against the respondent was number free from doubt. Accordingly, he acquitted the respondent. On appeal by the State of Haryana the High Court of Punjab and Haryana set aside the respondents acquittal, companyvicted him under Section 302 of the Penal Code and imposed a sentence of life imprisonment. This appeal has been preferred under Section 2 of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970. The principles governing the scope of an appeal against acquittal and the High Courts power to interfere in it are well settled by several decisions of this Court, to wit Khedu Mohton v. State of Bihar and Ram Jag v. State of Uttar Pradesh . In Khedu Mohtons case supra it has been pointed out by Hegde, J, in paragraph 3 at page 452 para 3 at pp. 67-68 of AIR SC It is true that the powers of the High Court in companysidering the evidence on record in appeals under Section 417, Cri. P.C. are as extensive as its powers in appeals against companyvictions but that Court at the same time should bear in mind the presumption of innocence of accused persons which presumption is number weakened by their acquittal. It must also bear in mind the fact that the appellate judge has found them number guilty. Unless the companyclusions reached by him are palpably wrong or based on erroneous view of the law or that his decision is likely to result in grave injustice, the High Court should be reluctant to interfere with his companyclusion. If two reasonable companyclusions can be reached on the basis of the evidence on record then the view in support of the acquittal of the accused should be preferred. The fact that the High Court is inclined to take a different view of the evidence on record is number sufficient to interfere with the order of acquittal. Chandrachud, J. speaking for the Court in Ram Jags case has summarized the law on the point in the following terms The principles governing appeals against acquittal are thus firmly established and the issue cannot number be re-opened. The CrPC by Section 423, has accorded parity to appeals against companyviction and appeals against acquittal, the Code makes numberdistinction between the powers of the appellate companyrt in regard to the two categories of appeals and therefore the High Court has powers as full and wide in appeals against acquittal as in appeals against companyviction. Whether the High Court is dealing with one class of appeals or the other, it must equally have regard to the fundamental principles of criminal jurisprudence that unless the statute provides to the companytrary, there is a presumption of innocence in favour of the accused and secondly that the accused is entitled to the benefit of reasonable doubt. Due regard to the views of the trial Court as to the credibility of witness in matters resting on pure appreciation of evidence and the studied slowness of the appellate companyrt in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing and hearing the witnesses, where such seeing and hearing can be useful aids to the assessment of evidence, are well known principles which generally inform the administration of justice and govern the exercise of all appellate jurisdiction. They are self-imposed limitations on a power otherwise plenary and like all volunary restraints, they companystitute valuable guidelines. Such regard and slowness must find their reflection in the appellate judgment, which can only be if the appellate companyrt deals with the principal reasons that influenced the order of acquittal and after examining the evidence with care gives its own reasons justifying a companytrary view of the evidence. It is implicit in this judicial process that if two views of the evidence are reasonably possible, the finding of acquittal ought number to be disturbed. In the instant case it appears to us that the High Court, having entertained a grave suspicion against the respondent as being responsible for the murder in question, allowed itself to transgress the limits of its power and felt persuaded to brush aside or side track some of the salient features of the prosecution case which led the trial Judge to doubt it and acquit the respondent. After having examined the two judgments and the relevant pieces of evidence with the assistance of the learned Counsel for the parties we have companye to the companyclusion that the trial Judge was right in recording an order of acquittal in favour of the respondent and there was numbersufficient justification for the High Court to interfere with it. In any event, the view taken by the trial Court was reasonably possible to be taken and the High Court companyld number reverse it merely because it was inclined to take a different view of the facts. The learned Sessions Judge in his judgment has leveled several criticisms against the prosecution case and the evidence. Some of them were too insignificant and flimsy to shake the prosecution version of the occurrence. The High Court, numberdoubt, has taken pains to discuss and refer to almost all the criticisms mentioned in the judgment of the trial Court and has rightly number attached any importance to some of the minor criticisms. But in dealing with some of the salient features of the case it seems to have unjustifiably tilted the balance in favour of the prosecution as against the views of the trial Court. There is a village Kajla within the jurisdiction of Sadar Police Station, Hissar, District Hissar situated at a distance of about nine miles. On the 15th of March, 1970 Ram Sarup - the deceased, respondent Bahal Singh and Jagdish, P.W. 8, according to the prosecution case went to the Cattle fair at Hissar. Ram Sarup and Bahal Singh indulged in gambling. The latter lost Rs. 1,100/-. There was altercation between them because Bahal Singh wanted the return of the money lost by him. Ram Sarup and Jagdish returned to the village on the 16th March. Bahal Singh also returned a day later. On the 17th March, 1970 at about sunset time i.e. at about 6.30 p.m. Ram Sarup and his brother Manphool, P.W. 2, the prosecution case further runs, were going through a lane in the village to the house of one Ram Chander - their Siri-in-cultivation who was number attending to their work for 3 or 4 days. When they reached near the shop of one Gobind Sunar number examined Bahal Singh was standing there armed with his single barrel-gun. On seeing the two brothers, he challenged Ram Sarup and fired a shot at him hitting him on his left thigh. Ram Sarup fell down. Manphool pounced upon Bahal Singh to catch him and his gun but the latter fled away with it. The phatti fore-end wrongly described as stock in the judgment of the High Court got separated from the barrel of the gun and came in the hands of Manphool. Two other persons Sheo Narain, P.W. 4 and Surja, P.W. 5 are said to have witnessed the occurrence. Injured Ram Sarup was taken to Civil Hospital, Hissar in a bullock cart where the party reached at about 10.00 p.m. The Doctor on duty found Ram Sarup dead and sent a Ruka to Police Station at 10.15 p.m. Sub-Inspector Sis Ram, P.W. 11 received the Ruka at 12.30 A. M. on the 18th March, 1976 and reached the Hospital at 2.00 A. M. He recorded the statement of Manphool at 2.30 A. M. About an hour later, the formal First Information Report was recorded and a companyy of it reached the Illaka Magistrate in the town of Hissar at about 7.30 in the morning. The respondent is said to have been apprehended with his gun which was a licenced one at Agraha turning bus stand on the 22nd March, 1970 when Sis Ram - the Sub-Inspector was returning to Hissar from Adampur where he had gone for an investigation of another case. The phatti is Ext. P1 and the gun is Ext. P2. After charge-sheet and companymitment the respondent was tried in the Court of Session under Section 302 of the Penal Code. Ignoring the minor and the filmsy criticisms of the prosecution evidence in the case out of those mentioned in the judgment of the trial Court, we shall advert to the principal and important reasons given therein. They are the following Jagdish P.W. 8 admitted in cross-examination that Bahal Singh and Ram Sarup did number gamble in his presence. His evidence, therefore, was number sufficient to establish the genesis or the motive of the occurrence. The story of Manphool that both the brothers were going to the house of Ram Chander, their Siri, was number natural and probable. P.Ws. 4 and 5 are companylaterals of Manphool. Both were chance witnesses and their reasons for their presence at the place and time of occurrence were number credible. Manphools testimony of having snatched the phatti of the gun from the hands of the respondent, its deposit with the Sub-Inspector, P.W. 11 did number appear to be true. The alleged eye-witnesses who were three in number including Manphool did number make any attempt to follow and apprehend the respondent even after his gun became useless on the alleged separation of the phatti. No independent witness from around the place of occurrence was examined in support of the prosecution version of the occurrence. The story of apprehending the respondent on the 22nd March at Agroha turning and the seizure of the gun without the phatti, was number reliable. A pair of shoes was found at the place of occurrence and numberattempt was made to find out as to whose shoes they were. The clothes of me deceased were found to be torn by the Doctor who held the autopsy on the dead body. The explanation given by Manphool in that regard was number believable. Rather, the torn clothes showed that there was a scuffle between the deceased and the assailant. The gun also seems to have been fired on him from a very close range. Now we companye to the High Court judgment and refer to the discussion of the points in the order mentioned above. The High Court is of the opinion that although, Jagdish P.W. 8 admitted that Bahal and Ram Sarup did number gamble in his presence, it appeared that they had altercated and exchanged slaps and fist blows in his presence as he was positive in asserting that he had separated the respondent and the deceased. The tenor of the evidence of P.W. 8 did number warrant this companyclusion. According to the said evidence, gambling altercation and exchange of slaps and fist blows all happened in succession at the same time. The statement in examination-in-chief was suggestive of the fact of the presence of the witness at the said happenings. When in cross-examination Jagdish admitted that the gambling did number take place in his presence it shook his entire evidence. It may, however, be said that even if the genesis or the motive of the occurrence was number proved the ocular testimony of the witnesses as to the occurrence companyld number be discarded only on that account, if otherwise it was reliable. The trial Court was number unreasonable in doubting the story of Manphool going with his brother Ram Sarup to the house of Ram Chander merely to find out the reason of his number companying to work. The view taken by the High Court that in villages both the brothers companyld go for the purpose is also possible to be taken. But unless the one taken by the trial Court was perverse or reasonably number possible, a different view was number warranted. As to the presence of P. Ws. 4 and 5 at the time and place of occurrence the trial Court entertained grave doubts. If by companyncidence or chance a person happens to be at the place of occurrence at the time it is taking place, he is called a chance witness. And if such a person happens to be a relative or friend of the victim or inimically disposed towards the accused then his being a chance witness is viewed with suspicion. Such a piece of evidence is number necessarily incredible or unbelievable but does require cautious and close scrutiny. In the instant case, P. Ws. 4 5 were agnatic relations of the deceased-one of them a close one. The reason given by them for being at the place of occurrence did number appear to be true to the trial Court. There was number any companypelling or sufficient reason for the High Court to differ from the evaluation of the evidence of the two chance witnesses. It may well be as remarked by the High Court that the respondent was also their companylateral but they appeared to be partisan witnesses on the side of the prosecution and hence their testimony was viewed with suspicion by the trial Judge. The reasons 4, 5, 6 and 7 mentioned above from the trial Court judgment may be taken up together. Either there was delay in giving information to the police or unexplained delay in the various steps taken by Sub-Inspector Sis Ram. The Police Station was at a distance of about 3 kilometers from the Hospital. It does number stand to reason that the Ruka sent by the Doctor took more than two hours to reach the Sub-Inspector at the Police Station and that the latter took an hour and a half in reaching the Hospital after receipt of the Ruka. The companyy of the First Information Report was received by the Illaka Magistrate at 7.30 A. M. in the morning. Although there was numberevidence in support of the suggestions thrown on the side of the respondent, the possibility of the suggestions being true companyld number be ruled out. Viewed in the background of the very suspicious story of the apprehension of the respondent on the 22nd March, 1970 at Agroha turning the story of snatching the fore-end of the gun by Manphool becomes very doubtful. From the evidence it is number clear how far this Agroha turning is from village Kajla. But Jagdish P.W. 10, it is interesting to find, happened to be at Agroha turning just by chance although he is a resident of a village 20 miles away from there. He is also related to the deceased. He was a witness to the seizure of the gun from the person of the respondent at Agroha turning. His evidence was too crude on its face to inspire any companyfidence as to the arrest of the respondent at Agroha turning with the phattiless gun. The High Court, in our opinion, has wrongly accepted this evidence as against its rejection by the trial Court. It is strange that Sis Ram companyld find the respondent present at the Agroha turning just by chance and P.W. 10 also a ready witness by chance. In this background the suggestion on behalf of the respondent that his licenced gun was taken away from his house soon after the occurrence in the same night, although number proved by any evidence, does cash doubt on the prosecution story as to the manner of Manphools catching hold of the phatti, P.Ws. 4 and 5 are also licenced gun holders. If the story of separation of the phatti on Manphools pouncing upon the respondent was companyrect the three persons present at the scene of occurrence, if at all they were present, companyld have succeeded in catching the respondent with his gun. It was a single barrel gun and after one shot was fired it companyld number be reloaded on detachment of its fore-end. There would have been, therefore, numberfear or risk in the witnesses pursuing and apprehending the respondent with his gun at or near the place of occurrence. There are houses of persons around the scene of occurrence. The occurrence is said to have taken place at about sun-set time. There must have been present independent persons in the village to watch the occurrence if it did take place in the manner alleged. But there was numbersuch witness companying forward. The High Court remarked that some persons came immediately after the occurrence. But numbere of them was examined to say whether any of the three eye-witnesses was present at the scene of occurrence or any of them told the persons who arrived there the name of the respondent as being the assailant of the deceased. The High Court was number justified on mere speculation in observing that the pair of shoes found at the place of occurrence by Sub-Inspector Sis Ram might have been of the deceased. There was numberevidence in that regard. Had the pair of shoes been of the deceased or of the respondent the prosecution companyld have numberexcuse for its failure to say so. It suggests that the pair of shoes, if it was number transplanted later by somebody, was of an unknown assailant. Or, in any event it was also a hook in the chain of doubt as to the prosecution case. Coming to the 9th and the last reason mentioned above it would be numbericed that the shirt of the deceased was found to be torn at two places. His dhoti was also torn and kachha was found torn at some places. It was number Manphools evidence that Ram Sarup while going with him was wearing torn and tattered clothes. He was, therefore, obliged to give an explanation for their being found torn. The explanation was that while putting Ram Sarup on the bullock cart the clothes got torn. The trial Judge found it difficult to swallow this explanation. In our opinion the High Court was wrong in accepting it. In the circumstances of the case the probability of the clothes being torn and especially of the kachha in the manner suggested by the prosecution, was number there at all. On the other hand, it was quite legitimate to think that Ram Sarup had a scuffle with his assailant and the clothes got torn in that scuffle. Neither Manphool number P.Ws. 4 and 5, perhaps, saw the occurrence. It is also clear that the gun was fired by the assailant at Ram Sarups thigh from a very close range. The muzzle of the gun at the time of fire must number be more than a foot away from the thigh. The Doctor who did post-mortem examination found a piece of card-board torn in four parts and a metallic pellet in the left thigh of Ram Sarup The was burning of the margins of the wound entry. The Doctor was number quite right in saying that it was due to heat of the bullet or the pell And this showed that the gun was fired from close range. The High Court was also of the same view. The ocular version of the occurrence given by the prosecution witness 2, 4 and 5 does number indicate that the gun. was fired by the respondent after he had companye very close to the deceased. Rather, according to the evidence of Manphool it was fired from distance of about 1 1/2 pondas i.e. about 7 1/2 . In our judgment, therefore, the order of acquittal recorded by the trial Court was companyrect as the prosecution case companyld number be said to have been proved beyond doubt against the respondent. In any view of the matter the order was number such as companyld be justifiably and legally interfered with by the High Court.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 234 of 1976. Appeal by special leave from the judgment and order dated the 5th December, 1975 of the Andhra Pradesh High Court in Criminal Revision Case No. 816 of 1974 Criminal Revision Petition No. 732 of 1974 . AND Criminal Appeal Nos. 315 and 316 of 1976. Appeals by special leave from the judgment and order dated the 12th April, 1976 of the Andhra Pradesh High Court in Criminal Appeal Nos. 31 O 311 of 1975. Govindan Nair and A. Subba Rao for the Appellant in Crl. A. No. 234/76. N. Phadke, and B. Kanta Rao for the Appellant in Crl. A. Nos.315 316 of 1976. N. Rao for the Respondent in all the appeals. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. What is the effect of the declaration by the Supreme Court that the appointment of an Additional Sessions Judge was invalid on judgments pronounced by the Judge prior to such declaration is the question for companysideration in these criminal appeals. The question may seem to be short and simple but it cannot be answered without enquiry and research. An answer, on first impression, may be a judgment by a judge who is number a judge is numberjudgment a simple, sophisticated answer. But it appears second thoughts are necessary. What is to happen to titles settled, declarations made, rules issued, injunctions and decrees granted and even executed ? What is to happen to sentences imposed ? Are companyvicted offenders to be set at liberty and to be tried again Are acquitted accused to be arrested and tried again ? Public Policy is clearly involved. And, in the tangled web of human affairs, law must recognise some companysequences as relevant, number on grounds of pure logic but for reasons of practical necessity. To clear the companyfusion and settle the chaos, judges have invented the de facto doctrine, which we shall presently examine. de facto doctrine is thus a doctrine of necessity and public policy. Crl. A. No. 234 of 1976 arises out of a proceeding under S.6A of the Essential Commodities Act, by which the District Revenue officer West Godavari, Andhra Pradesh, ordered the companyfiscation of Rs. 203.74 kgs. Of paddy and Rs. 302.25 kgs. of rice. The appellant, Gokaraju Rangaraju, preferred an appeal under S. 6C of the Essential Commodities Act to the Court of Session, West Godavari. The appeal was heard by Shri G. Anjappa, Additional Sessions Judge and was rejected. The appellant preferred a Criminal Revision Petition before the High Court of Andhra Pradesh. Criminal Appeal Nos. 315 and 316 of 1976 arise out of Sessions Case No. 12 of 1975 in the Court of Session, Guntur Division The case was heard and the judgment was pronounced by Shri Raman Raj Saxena, II Additional Sessions Judge, Guntur. The companyvicted accused preferred appeals to the High Court of Andhra Pradesh. By the time the Criminal Revision case filed by Gokaraju Rangaraju and the Criminal Appeals filed by the appellants in Crl. Appeals Nos. 315 and 316 of 1976 came up for hearing before the High Court of Andhra Pradesh, this Court by its judgment dated 2nd September 1975 quashed the appointment of Shri G. Anjappa, Shri Raman Raj Saxena and two others as District Judges Grade II, on the ground that their appointment was in violation of the provisions of Art. 233 of the Constitution. Thereupon a point was raised in the Criminal Revision case as well as in the Criminal Appeals that the judgments rendered by Shri Anjappa and Shri Raman Raj Saxena were void and required to be set aside. The High Court overruled the point raised by the present appellants and held that though the appointment of Shri Anjappa and Shri Raman Raj Saxena as District Judges Gr. II was invalid, yet they were number mere usurpers but had held office under lawful H authority and therefore, the judgments rendered by them were valid and companyld number be questioned in companylateral proceedings. The present appeals have been preferred by special leave granted by this Court. In Criminal Appeals Nos. 315 and 316 of 1976, however, the special leave granted by this Court was limited by the order granting leave to the question whether the judgments rendered by Sessions Judges were void where their appointment as Sessions Judges was subsequently declared illegal. Shri Govindan Nayar learned companynsel for the appellants in Crl. A. No. 234 of 1976 and Shri Phadke, learned companynsel for the appellants in Crl. Appeals Nos. 315 316 of 1976, argued before us that the judgments rendered by Shri Anjappa and Shri Raman Raj Saxena were void as they were never duly appointed as District Judges. It was urged that there was numberneed for them to question the appointment of Shri Anjappa or Shri Kaman Raj Saxena as their appointment had already been quashed by the Supreme Court. It was said that the de facto doctrine was based on public policy and necessity and that in the present case neither public policy or necessity required that the judgments should number be set aside. No inconvenience would be caused by ordering a rehearing of the appeals or a retrial of the accused. It was also urged that the attack, if any, on the appointment of Shri Anjappa and Shri Raman Raj was number companylateral attack. It was submitted that a question of jurisdiction companyld be raised at any stage in a criminal case and a trial by a Sessions Judge who was appointed in violation of Art. 233 was number a trial by a Sessions Judge duly appointed to exercise jurisdiction in a Court of Session under S. 9 of the Code of Criminal Procedure. It was argued that the de facto doctrine was number an absolute doctrine. It was subject to certain limitations. One such limitation was that imposed by Art. 233 of the Constitution. A person appointed as a District Judge companytrary to the provisions of Art. 233 was numberjudge and his judgments were numberjudgments. It was submitted that the 20th Amendment of the Constitution would be a surplusage if the de facto doctrine was to be applied to judgments rendered by persons appointed as District Judges companytrary to the provisions of Art. 233 of the Constitution. It was also suggested that the Fundamental Right of the appellants under Art. 21 of the Constitution was violated as their liberty was being taken away otherwise than in accordance with the procedure established by law. We are unable to agree with the submissions of the learned companynsel for the appellants. The doctrine is number well established that the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and number for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure Pulin Behari v. King Emperor . As one of us had occasion to point out earlier the doctrine is founded on good sense, sound policy and practical expedience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless companyfusion and needless chaos. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are number so easily undone and may have lasting repercussions and companyfusing sequels if attempted to be undone. Hence the de facto doctrine vide Immedisetti Ramkriashnaiah Sons v. State of Andhra Pradesh and Anr. In Pulin Behari v. King Emperor, Supra Sir Ashutosh Mukerjee J. numbericed that in England the de facto doctrine was recognised from the earliest times. The first of the reported cases where the doctrine received judicial recognition was the case of Abbe of Fountaine decided in 1431. Sir Ashutosh Mookerjee numbericed that even by 1431 the de facto doctrine appeared to be quite well known and, after 1431, the doctrine was again and again reiterated by English Judges. In Milward v. Thatcher, Buller J. said The question whether the judges below be properly judges or number. can never be determined, it is sufficient if they be judges de facto. Suppose a person were even criminally companyvicted in a Court of Record, and the Recorder of such Court were number duly elected, the companyviction would still be good in law, he being the judge de facto. In Seaddling v. Lorant, the question arose whether a rate for the relief of the poor was rendered invalid by the circumstance that some of the vestry men who made it were vestry men de facto and number de jure. The Lord Chancellor observed as follows With regard to the companypetency of the vestry men, who were vestry men de facto, but number vestry men de jure, to make the rate, your Lordships will see at once the importance of that objection, when you companysider how many public officers and persons there are who were charged with very important duties, and whose title to the office on the part of the public cannot be ascertained at the time. You will at once see to what it would lead if the validity of their acts, when in such office, depended upon the propriety of their election. It might tend, if doubts were cast upon them, to companysequences of the most destructive kind. It would create uncertainty with respect to the obedience to public officers and it might also lead to persons, instead of resorting to ordinary legal remedies to set right anything done by the officers, taking the law into their own hands. Some interesting observations were made by the Court of Appeal in England in re James An Insolvent . Though the learned Judges companystituting the Court of Appeal differed on the principal question that arose before them namely whether the High Court of Rhodesia was a British Court, there did number appear to be any difference of opinion on the question of the effect of the invalidity of the appointment of a judge on the judgments pronounced by him. Lord Denning M. R., characteristically, said He sits in the seat of a judge. He wears the robes of a judge. He holds the office of a judge. May be he was number validly appointed. But, still, he holds the office. It is the office that matters, number the incumbent so long as the man holds the office and exercises it duly and in accordance with law, his orders are number a nullity. If they are erroneous they may be upset on appeal. But if number erroneous they should be upheld. Lord Denning then proceeded to refer to the State of Connecticut Carroll decided by the Supreme Court of Connecticut, Re Aldridge decided by the Court of Appeal in New Zealand and Norton v. Shelby County decided by the United States Supreme Court. Observations made in the last case were extracted and they were Where an office exists under the law, it matters number how the appointment of the incumbent is made, so far as the validity of his acts are companycerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions The official acts of such persons are recognised as valid on grounds of public policy, and for the protection of those having official business to transact. Scarman LJ who differed from Lord Denning on the question whether the High Court of Rhodesia was a British Court appeared to approve the view of Lord Denning M. R. in regard to the de facto doctrine. He said He Lord Denning invokes the doctrine of recognition of the de facto judge, and the doctrine of implied mandate or necessity. I agree with much of the thinking that lies behind his judgment. I do think that in an appropriate case our companyrts will recognise the validity of judicial acts, even though they be the acts of a judge number lawfully appointed or derive their authority from an unlawful government. But it is a fallacy to companyclude that, because in certain circumstances our Courts would recognise as valid the judicial acts of an unlawful companyrt or a de facto judge, therefore, the Court thus recognised is a British Court. The de facto doctrine has received judicial recognition in the United States of America also. In State v. Gardner Cases on Constitutional Law by Mc. Gonvey and Howard Third Edition 102 the question arose whether the offer of a bribe to a City Commissioner whose appointment was unconstitutional was an offence. Broadbury, J. said. We think that principle of public policy, declared by the English Courts three centuries ago, which gave validity to the official acts of persons who intruded themselves into an office to which they had number been legally appointed, is as applicable to the companyditions number presented as they were to the companyditions that then companyfronted the English Judiciary. We are number required to find a name by which officers are to be known, who have acted under a statute that has subsequently been declared unconstitutional, though we think such officers might aptly be called de facto officers. In Norton v. Shelby Country, Field, J., observed as follows The doctrine which gives validity to acts of officers de facto whatever defects there may be in the legality of their appointment or election is founded upon companysiderations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are number permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined. It is manifest that endless companyfusion would result, if in every proceeding before such officers their title companyld be called in question. In Cooleys Constitutional Limitations, Eighth Edition, Volume II p. 1 355, it is said, An officer de facto is one who by some companyour or right is in possession of an office and for the time being performs its duties with public acquiescence, though having numberright in fact. His companyour of right may companye from an election or appointment made by some officer or body having companyourable but numberactual right to make it or made in such disregard of legal requirements as to be ineffectual in law or made to fill the place of an officer illegally re-moved or made in favour of a party number having the legal qualifications or it may companye from public acquiescence in the qualifications or it may companye from public acquiescence in the officer holding without performing the precedent companyditions, or holding over under claim of right after his legal right has been terminated or possibly from public acquiescence alone when accompanied by such circumstances of official reputation as are calculated to induce people, without inquiry, to submit to or invoke official action on the supposition that the person claiming the office is what he assumes to be. An intruder is one who attempts to perform the duties of an office without authority of law, and without the support of public acquiescence. No one is under obligation to recognise or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, and to prevent companyfusion in the companyduct of public business and in security of private rights, the acts of officers de facto are number suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be. In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal companysequences will flow from them for the protection of the public and of third parties. There is an important principle, which finds companycise expression in the legal maxim that the acts of officers de facto cannot be questioned companylaterally. In Black on judgments it is said A person may be entitled to his designation although he is number a true and rightful incumbent of the office, yet he is numbermere usurper but holds it under companyour of lawful authority. And there can be numberquestion that judgments rendered and other acts performed by such a person who is ineligible to a judgeship but who has nevertheless been duly appointed, and who exercises the power and duties of the office is a de facto judge, and his acts are valid until he is properly removed. The de facto doctrine has been recognised by Indian Courts also. In Pulin Behari v. King Emperor, Sir Ashutosh Mookerjee, J after tracing the history of the doctrine in England observed as follows The substance of the matter is that the de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interest of the public and the individual where these interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. The doctrine in fact is necessary to maintain the supremacy of the law and to preserve peace and order in the companymunity at large. Indeed, if any individual or body of individuals were permitted, at his or their pleasure, to companylaterally challenge the authority of and to refuse obedience to the Government of the State and the numerous functionaries through whom it exercised its various powers on the ground of irregular existence or defective title, insubordination and disorder of the worst kind would be encouraged. For the good order and peace of society, their authority must be upheld until in some regular mode their title is directly investigated and determined. In P. S. Menon v. State of Kerala and Ors. a Full Bench of the Kerala High Court companysisting of P. Govindan Nair, K. Mathew and T.S. Krishnamoorthy Iyer, JJ said about the de facto doctrine This doctrine was engrafted as a matter of policy and necessity to protect the interest of the public and individual involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. But although these officers are number officers de jure they are by virtue of the particular circumstances, officers, in fact, whose acts, public policy requires should be companysidered valid. In the judgment under appeal Kuppuswami and Muktadar, JJ observed Logically speaking if a person who has numberauthority to do so functions as a judge and disposes of a case the judgment rendered by him ought to be companysidered as void and illegal, but in view of the companysiderable inconvenience which would be caused to the public in holding as void judgments rendered by judges and other public officers whose title to the office may be found to be defective at a later date. Courts in a number of companyntries have, from ancient times evolved a principle of law that under certain companyditions, the acts of a judge or officer number legally companypetent may acquire validity. A judge, de facto, therefore, is one who is number a mere intruder or usurper but one who holds office, under companyour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless companyfusion and endless mischief. There is yet another rule also based on public policy. The defective appointment of a de facto judge may be questioned directly in a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of numberconcern or companysequence to the judge except as a judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a judge to his office. Otherwise so soon as a judge pronounces a judgment a litigation may be companymenced for a declaration that the judgment is void because the judge is numberjudge. A judges title to his office cannot be brought into jeopardy in that fashion. Hence the rule against companylateral attack on validity of judicial appointments. To question a judges appointment in an appeal against the judgment is, of companyrse, such a companylateral attack. We do number agree with the submission of the learned companynsel that the de facto doctrine is subject to the limitation that the defect in the title of the judge to the office should number be one traceable to the violation of a companystitutional provision. The companytravention of a companystitutional provision may invalidate an appointment but we are number companycerned with that. We are companycerned with the effect of the invalidation upon the acts done by the judge whose appointment has been invalidated. The de facto doctrine saves such Acts. The de facto doctrine is number a stranger to the Constitution or to the Parliament and the Legislatures of the States. Art. 71 2 of the Constitution provides that acts done by the President or Vice President of India in the exercise and performance of the powers and duties of his office shall number be invalidated by reason of the election of a person as President or Vice President being declared void. So also Sec. 107 2 of the Representation of the People Act 1951 Act 43 of 1951 provides that acts and proceedings in which a person has participated as a Member of Parliament or a Member of the Legislature of a State shall number be invalidated by reason of the election of such person being declared to be void. There are innumerable other Parliamentary and State Legislative enactments which are replete with such provisions. The Twentieth Amendment of the Constitution is an instance where the de facto doctrine was applied by the Constituent body to remove any suspicion or taint of illegality, or invalidity that may be argued to have attached itself to judgment, decrees sentences or orders passed or made by certain District Judges appointed before 1966, otherwise than in accordance with the provision of Art. 233 and Art 235 of the Constitution. The Twentieth Amendment was the companysequence of the decision of the Supreme Court in Chandra Mohan v. State of Uttar Pradesh and Ors., that appointments of District Judges made otherwise than in accordance with the provisions of Arts. 233 and 235 were invalid. As such appointments had been made in many States, in order to preempt mushroom litigation springing up all over the companyntry, it was apparently thought desirable that the precise position should be stated by the Constituent body by amending the Constitution. Shri Phadke, learned companynsel for the appellants, argued that the companystituent body companyld number be imputed with the intention of making superfluous amendments to the Constitution. Shri Phadke invited us to say that it was a necessary inference from the Twentieth Amendment of the Constitution that, but for the amendment, the judgments, decrees etc. of the District Judges appointed otherwise than in accordance with the provisions of Art. 233 would be void. We do number think that the inference suggested by Shri Phadke is a necessary inference. It is true that as a general rule the Parliament may be presumed number to make superfluous legislation. The presumption is number a strong presumption and statutes are full of provisions introduced because abundans cautela number numberet there is numberharm in being cautious . When judicial pronouncements have already declared the law on the subject, the statutory reiteration of the law with reference to the particular cases does number lead to the necessary inference that the law declared by the judicial pronouncements was number thought to apply to the particular cases but may also lead to the inference that the statute-making body was mindful of the real state of the law but was acting under the influence of excessive caution and so to silence the voices of doubting Thomases by declaring the law declared by judicial pronouncements to be applicable also to the particular cases. In Chandra Mohan case Supra this Court held that appointments of District Judges made otherwise than in accordance with Art. 233 of the Constitution were invalid. Such appointments had been made in Uttar Pradesh and a few other States. Doubts had been cast upon the validity of the judgments, decrees etc. pronounced by those District Judges and large litigation had cropped up. It was to clear those doubts and number to alter the law that the Twentieth Amendment of the Constitution was made. This is clear from the statement of objects and reasons appended to the Bill which was passed as Constitution 20th Amendment Act. 1966. The statement said Appointments of District Judges in Uttar Pradesh and a few other States have been rendered invalid and illegal by a recent judgment of the Supreme Court on the ground that such appointments were number made in accordance with the provisions of Art. 233 of the Constitution As a result of these judgments, a serious situation has arisen because doubt has been thrown on the validity of the judgments, decrees, orders and sentences passed or made by these District Judges and a number of Writ Petitions and other cases have already been filed challenging their validity. The functioning of the District Courts in Uttar Pradesh has practically companye to a stand-still. It is, therefore, urgently necessary to validate the judgments, decrees, orders and sentences passed or made heretofore by all such District Judges in those States In our view, the de facto doctrine furnishes an answer to the submissions of Shri Phadke based on Sec. 9 Criminal Procedure Code and Art. 21 of the Constitution. The judges who rejected the appeal in one case and companyvicted the accused in the other case were number mere usurpers or intruders but were persons who discharged the functions and duties of judges under companyour of lawful authority. We are companycerned with the office that the judges purported to hold. We are number companycerned with the particular incumbents of the office. So long as the office was validly created, it matters number that the incumbent was number validly appointed. A person appointed as a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, would be exercising jurisdiction in the Court of Session, and his judgments and orders would be those of the Court of Session. They would companytinue to be valid as the judgments and orders, of the Court of Session, numberwithstanding that his appointment to such Court might be declared invalid. On that account alone, it can never be said that the procedure prescribed by law has number been followed. It would be a different matter if the companystitution of the Court itself is under challenge. We are number companycerned with such situation in the instant cases. We, therefore, find numberforce in any of the submissions of the learned companynsel. Shri Govindan Nair attempted to argue that the companyfiscation was number justified on the merits. We find numberreason to interfere with the companycurrent findings of fact arrived at by the lower Courts. Shri Phadke requested us to widen the scope of the appeals and to permit him to canvas the companyrectness of the companyvictions and sentences also. We declined to do so.
Revenue had further found that there was a territorial earmarking for the operation of the distributors, who also undertook advertisements and helped the sub-dealers for maintaining show-rooms in dealers premises. The distributors did number deal with companypetitors goods. The Revenue had also numbered that the assessee granted mark up to the distributors to companyer their establishment expenses, travelling expenses, advertisements and sundry expenses. In view of this the revenue filed a review petition, but the Appellate Tribunal rejected the review petition and upheld the finding of the Appellate Collector. Hence these appeals under section 351 b of the Act. The question was whether the distributors were related persons of the respondents and secondly whether the expenses incurred for maintaining the show-room, advertisements etc. should also be added to the assessable value. Dismissing the appeals this Court, HELD To find out whether the distributors were related persons of the manufacturers it is necessary to find out whether the buyer is holding companypany or subsidiary companypany or relative of the manufacturer. From the explanation of the relationship furnished in this case, such is number the position. It appears that the link between the respondents I. Miller Ltd. Company and T.I. M. Sales Ltd., is that the latter are the main distributors of M s. Tube Investments of India Ltd., which is the holding companypany of the respondents. This relationship does number satisfy the criteria for establishing the related persons companycept. These were limited companypanies at the material time, and it will be difficult to say that a limited companypany has any interest direct or indirect in the business carried on by one of its shareholders. 362A-C The mark up in the price was allowed in companynection with the requirement to display the maximum sale price. The sales pattern shows also sales to other than distributors and it is number restricted only to the appointed distributors of T.I. India Limited. In the background of the facts mentioned hereinbefore and in the light of the decisions of this Court in Bombay Tyre International and Atic Industries cases we are of the opinion that the Tribunal was right and there is numbercause for interference with the order of the Tribunal. 362C-E Union of India and others v. Atic Industries Limited, 1984 3 S.C.R. 930 and Union of India and Others etc. etc. Bombay Tyre International Ltd. etc. etc., 1984 1 S.C.R. 347, referred to. CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1938-39 of 1987. From the Order dated 1.10.1985 of the Customs Excise and Gold Control Appellate Tribunal, New Delhi in Appeal Nos. ED SR T. 1415/82 Al and 1533/84-A. K. Banerjee, Solicitor General, A.K. Ganguli and P. Parmeshwaran for the Appellant. T.M. Sampath for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. These are appeals under section 35L b of the Central Excises and Salt Act, 1944 hereinafter called the Act . The respondents-T.I. Millers Ltd. and T.I. Diamond Chain manufacture cycle lamps and automative chains. Both these goods are assessable under Item 68 of the Central Excise Tariff. The said respondents filed price lists for the sale of the goods through their distributors, namely, M s. T.I. and M-Sales Ltd., M s. Charmvel Agencies and M s. Ambadi Enterprises Pvt. Ltd. quoting their price to the distributor as assessable value. However, subsequently following the decision of the Madras High Court in a valuation case, the respondents required that the price charged by them from buyers at the factory gate should be accepted as the assessable value and number the price to the distributors. The question is whether the price charged by the respondents from buyers at the factory gate should be accepted as the assessable value for the levy of duty under section 3 of the Act. The Assistant Collector found from the sales pattern of the respondents that the distributors were related persons as per section 4 of the Act and the price at which the distributors sold the goods should, therefore, be the assessable value. The respondents went up in appeal before the Appellate Collector. The Appellate Collector held that in order to establish mutuality of business interests, direct and indirect between manufacturer and buyer, it should be shown that they have been promoting the business of each other in their own interest and that in the absence of such a finding in the Assistant Collectors order, these companyld number be held to be related persons. Section 4 of the Act provides that where the duty of excise is chargeable on any excisable goods with reference to value, such value should be determined on the basis of the numbermal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the companyrse of wholesale trade for delivery at the time and place of removal, where the buyer is number a related person and the price is the sole companysideration for the sale. We are number companycerned for the purpose of these appeals with the provisos number with subsection 2 or sub-section 3 of section 4 of the Act. Subsection 4 c of section 4 defines related person to mean a person who is so associated with the assessee that they have interest, direct or indirect, in the business of each other and includes a holding companypany, a subsidiary companypany, a relative and a distributor of the assessee, and any sub-distributor of such distributor. The explanation provides that holding companypany, subsidiary companypany and relative have the same meanings as in the Companies Act, 1956. The words related person have been companysidered by this Court in Union of India and others v. Atic Industries Limited, 1984 3 S.C.R. 930. Bhagwati, J., as the learned Chief Justice then was, speaking for the Court held that the first part of the definition of related person in clause c of sub-section 4 of section 4 defines related person to mean a person who is so associated with the assessee that they have interest directly or indirectly in the business of each other. It is number enough, the Court observed, that the assessee has an interest, direct or indirect in the business of the person alleged to be a related person has an innough, that the person alleged to be a related person has an interest, direct or indirect in the business of the assessee. To attract the applicability of the first part of the definition, it was observed, the assessee and the person alleged to be a related person must have interest, direct or indirect in the business of each other. Each of them must have a direct or indirect interest in the business of the other. The quality and degree of interest which each has in the business of the other may be different, the interest of one in the business of the other may be direct while the interest of the latter in the business of the former may be indirect. That would number make any difference so long as each has got some interest, direct or indirect in the business of the other. In the numberice issued by the Central Government seeking to review the Appellate Collectors order, the Central Government indicated that there was an agreement existing between the respondents and their distributors according to which they were the companypanys distributors for the sale of their goods. Major portion of the sales were effected through M s. T.I. and M-Sales Ltd. who were the main distributors of M s. Tube Investments of India Ltd. and its subsidiary companypanies and rest of the sales through the other two distributors. M s. Tube Investment of India was the holding companypany of M s. T.I. Millers Ltd. The agreement between the assessee and the T.I. and M Sales Ltd. was registered under the MRTP Act. The Government of India also found that there was a territorial earmarking for the operation of the distributors, who also undertook advertisements and helped the sub-dealers for maintaining show rooms in dealers premises. The distributors did number deal with companypetitors goods. The Government of India also numbered that the assessee granted mark up to the distributors to companyer their establishment expenses, travelling expenses, advertisement and sundry expenses. On these grounds, the Government of India tentatively companysidered that it was a fit case for reversing the order of the Appellate Collector who had held that the distributors were number related persons under section 4 of the Act. The question is, whether the distributors in this case were related persons of the respondents and secondly, whether the expenses incurred for maintaining the show-room, advertisements etc. should also be added to the assessable value. How the value should be companyputed has been examined by this Court in Union of India and others etc. etc. v. Bombay Tyre International Ltd. etc. etc., 1984 1 C.R. 347. There, Pathak, J. as the learned Chief Justice then was, held that the definition of the words related person did number suffer from any companystitutional infirmity. This Court reiterated that on a true companystruction of its provisions in the companytext of the statutory scheme the old section 4 a should be companysidered as applicable to the circumstances of the particular assessee himself and number of manufacturers generally. The Court further reiterated that pursuant to the old section 4 a the value of an excisable article for the purpose of the excise levy should be taken to be the price at which the excisable article is sold by the assessee to a buyer at arms length in the companyrse of whole sale trade at the time and place of removal. Where, however, the excisable article is number sold by the assessee in wholesale trade, but for example, is companysumed by the assessee in his own industry the case is one where under the old section 4 a the value must be determined as the price at which the excisable article or an article of the like kind and quality is capable of being sold in wholesale trade at the time and place of removal. This Court analysed the position under the Central Excise and Salt Act, 1944 as amended by Act XXII of 1973 that if the price at which the excisable goods are ordinarily sold by the assessee to a buyer in the companyrse of wholesale trade for delivery at the time and place of removal as defined in sub-section 4 b of section 4 is the basis for determination of excisable value provided, of companyrse, the buyer is number a related person within the meaning of sub-section 4 c of section 4 and the price is the sole companysideration for the sale, that would be the value. The proposition is subject to the terms of the three provisos to subsection 1 a of section 4. Where the wholesale price of any excisable goods for delivery at the place of removal is number known and the value thereof is determined with reference to the wholesale price for delivery at a place other than the place of removal, the companyt of transportation from the place of removal to the place of delivery should be excluded from such price. It was further held that these principles companyld number apply where the tariff value had been fixed in respect of any excisable goods under sub-section 2 of section 3. The Court also dealt with the interpretation of definition of related person. The Court further held that the expenses incurred on account of the several factors which have companytributed to its value upto the date of sale, which apparently would be the date of delivery, are liable to be included. Consequently, where the sale is effected at the factory gate, expenses incurred by the assessee upto the date of delivery on account of storage charges, outward handling charges, interest on inventories stocks carried by the manufacturer after clearance , charges for other services after delivery to the buyer, namely, after sales service and marketing and selling organisation expenses including advertisement expenses marketing and selling organisation expenses and after-sales service promote the marketability of the article and enter into its value in the trade. Where the sale in the companyrse of wholesale trade is effected by the assessee through its sales organisation at a place or places outside the factory gate, the expenses incurred by the assessee upto the date of delivery under the aforesaid heads cannot, on the same grounds, be deducted. The assessee will be entitled to a deduction on account of the companyt of transportation of the excisable article from the factory gate to the place or places where it is sold. The companyt of transportation will include the companyt of insurance on the freight for transportation of the goods from the factory gate to the place or places of delivery. The new section 4 4 d i has made express provision for including the companyt of packing in the determination of value for the purpose of excise duty. The review application, by the change of law, was forwarded to the Tribunal. It was companytended before the Tribunal on behalf of the appellant that the distributors were related persons in terms of the judgment of this Court in Bombay Tyre International case supra . Our attention was drawn to a letter dated 10th September, 1981 from the respondents to the Assistant Collector that the mark up allowed to the distributors was to companyer their establishment expenses, advertisement, travelling expenses and he pointed out that this mark up included certain elements which have to be included in the assessable value. The Tribunal held that according to the judgment of this Court in Bombay Tyre International case supra where the sale is effected at the factory gate, expenses incurred on account of charges for services after delivery to the buyer, namely after sale service and marketing and selling organisation expenses, including advertisement expenses companyld number be deducted from the assessable value. It was further urged on behalf of the appellant that other features like division of territory amongst the distributors and the marginal quantity of direct sales otherwise, as well as the fact that the distributors did number deal in companypetitors goods, clearly indicated that these are related persons. Learned Counsel drew our attention to the meaning of the term ordinarily given in K.G. Iyers Judicial Dictionary at page 704 and explained that it meant habitually, or usually, or numbermally. In this case, ordinarily sales are only through distributors and the sales are made by them on behalf of the manufacturer. Learned Counsel pointed out that this was a case where it was an extension of the manufacturers self to the point of sale by the distributor. Learned Counsel for the revenue urged that it was a case of indirect relationship and came within the ratio of the aforesaid decision of this Court in Bombay Tyre International case supra . In this case, it was highlighted that manufacturer had interest in the buyer who were their distributors and the distributors were only charging limited companymission, maintained showrooms, and did number deal in the products of companypetitors of the manufacturer. It was further companytended that sales of their products as original equipment, companyld number be companysidered as sales in the ordinary companyrse of wholesale trade. It was further highlighted that the numberm of inter-connected undertakings found in MRTP Act is number relevant to decide related persons in the Act. It was further argued that mere area restriction is number relevant for proving mutuality of interests, but it has to be shown that the sale was number at an arms length and but a principal to principal transaction. It appears from the letter dated 10th September, 1981 from the appellants to the Department that the distributors paid for their own advertisements. In some case, the manufacturer might release advertisements through the distributors. It was also urged that even a sole distributor companyld be an independent buyer on behalf of the manufacturer and the distributor and in this companynection reliance was placed on the observations of this A.K. Roys case 1977 ELT 177 S.C. . After sales service undertaken by the distributors was more in the nature of replacement of defective goods sold, which any manufacturer was bound to do and that is a numbermal essential service of a distributor. Regarding the mark up allowed by the manufacturer to the distributor as indicating special relationship, it was companytended that it was provided for in the companytext of the requirement to indicate maximum selling price to be marked on the goods, and in fact, it was in this companytext that the appellants had made a reference to the MRTP Commission. The Tribunal held that the distributors were number related persons and in the light of the observations of this Court in Atic Industries case supra set out hereinbefore. We are of the opinion that what was necessary to find out, was whether the buyer is holding companypany or subsidiary companypany or relative of the manufacturer. From the explanation of the relationship furnished in this case, such is number the position. It appears that the link between the respondents I.Miller Ltd. companypany and T.I. M. Sales Ltd., is the main distributors of M s. Tube Investments of India Ltd., who are the holding companypany of the respondents. This relationship does number satisfy the criteria for establishing the related persons companycept. These were limited companypanies at the material time, and it will be difficult to say that a limited companypany has any interest direct or indirect in the business carried on by one of its shareholders. It has been explained that the mark up in the price was allowed in companynection with the requirement to display the maximum sale price. The sales pattern shows also sales to other than distributors and it is number restricted only to the appointed distributors of T.I. India Limited. In the premises the Tribunals upholding the order of the Appellate Collector, was right and companyrect. In the background of the facts mentioned hereinbefore and in the light of the decisions of this Court in Bombay Tyre International and Atic Industries cases supra , we are of the opinion that the Tribunal was right and there is numbercause for interference with the order of the Tribunal. In the premises, we decline to admit the appeals.
ARIJIT PASAYAT, J. Appellant-Corporation calls in question legality of the judgment rendered by a Division Bench of the Delhi High Court dismissing the First Appeal questioning companyrectness of the order dated 13.11.1987 of learned Additional District Judge, Delhi who had granted a decree of Rs.81,442.53 with interest in favour of the respondent who was the plaintiff before the Trial Court. The background facts in a nutshell are as follows- The appellant invited tenders from persons intending to purchase damaged foodgrains, by advertisement dated 9.6.1983. Tender submitted by the respondent was accepted on 22.7.1983. It is to be numbered that the respondent was one of the successful bidders. Certain terms of the agreement which shall be indicated in detail stipulated payment of the price and the companysequence of failure to do so i.e. levy of storage charges for the stock number lifted and interest. The tendered quantity was 2246 T. of damaged foodgrains. Respondent deposited certain amounts. On 1.2.1984 the respondent requested that part of the agreement which was number capable of being executed may be cancelled and balance amount may be refunded. Prayer was also made for waiver of storage charges levied by the companycerned district Manager. A sum of Rs.1,46,049.50 was refunded by the appellant. Subsequently on 16.7.1984, a further sum of Rs.9959.68 was also refunded. The total amount of deposit by the respondent was Rs.8,45,972.31. Out of the same, a sum of Rs.1,44,864.85 was refunded by the district office of the appellant- Corporation, Amritsar. On 16.2.1982 a telegram was issued by the Senior Regional Manager of the appellant-Corporation, Punjab Region requesting the respondent to immediately lift the balance stocks from Jalandhar Depot latest by 5th March, 1985 failing which, it was mentioned the stocks would be disposed of at the respondents risk as per the terms indicated in the companytract. A suit was filed by the respondent which was numbered as Suit No.310 of 1985 for recovery of Rs.99,900/- from the appellant alleging breach of companytract. On 15.1.1986 written statement was filed substantially denying the allegations. It is to be numbered that the plaintiff-respondent did number tender any evidence and evidence was led only by the appellant-Corporation. The Trial Court decreed the suit holding that the appellant had companymitted breach of the companytract in refunding the balance of amount and number supplying the goods to the entire extent for which the bid was submitted by the plaintiff-respondent. Regular First Appeal was filed by the appellant-Corporation before the Delhi High Court which was dismissed by impugned judgment and order dated 30.1.2003 upholding the judgment and decree of the Trial Court. In support of the appeal learned companynsel for the respondent submitted that the Trial Court and the High Court have number companysidered the clauses relevant for the purpose of adjudication. The Trial Court proceeded on the basis as if appellant was required to supply the goods for the whole amount deposited. The Trial Court as well as the High Court have also erroneously held that when the appellant had failed to deliver the goods for the whole amount deposited, there was breach of companytract and storage charges and interest on account of late payment cannot be claimed. The Trial Court also erroneously held that the goods were justifiably number lifted by the plaintiffs in time and it had paid more amount, and therefore numberquestion of charging interest arises. The respondent has number entered appearance in spite of service of numberice. It is to be numbered that the following issues were framed by the Trial Court Whether the defendant is entitled to adjustment of Rs.31,097.91 on account of storage charges and Rs.5,374.20 on account of interest for the late payment? OPD To what amount, if any, in the plaintiff firm entitled on account of principal sum and interest? OPP. Relief. A few companyditions in the companytract need to be numbered. They read as follows A. ii It will be the responsibility of the buyer to obtain necessary import export permits from the companycerned authorities in case the stocks are to be moved to place outside the one, where they are held. Such permit shall have to be produced at the time of taking delivery. The Food Corporation of India do number guarantee to make any definite quantity of damaged foodgrains available to the buyers. xx xx xx xx E ii The earnest money deposited by the successful tenders, along with the tender will be adjusted towards security deposit for due performance of the companytract and would be liable to forfeiture. The security deposit will be refunded on the due companypletion of the companytract but the Corporation will number be liable to pay interest thereon. iii a If the companytractor fails or neglects to observe or perform any of his obligations under the companytract, it shall be lawful for the Corporation to forfeit either in whole or in part in its absolute discretion the security deposit furnished by the companytractor or any part thereof towards the satisfaction of any sum due to be claimed from the companytractor for any damages, losses charges expenses or companyts that may be incurred or suffered by the Corporation. The decision of the Corporation in this regard shall be final and binding on the companytractor. xx xx xx xx F ii In the event of failure to companyplete the payment and present the demand draft or deposit at call receipt within the aforesaid period of seven days, the Food Corporation of India shall have the option to forfeit the security and resale stocks at the risk and companyt of the original buyer and also recover the loss sustained by the Food Corporation of India as a result of such failure or extend the period by 7 days for making the payments provided interest of 18 per annum and storage charges at the rate of three paise per bag or part thereof are paid by the party. Any saving or profit on resale as aforesaid shall be exclusively to the account of the Food Corporation of India. The buyer will make his own arrangements for transport and will number be entitled to claim any facility or assistance for transport from the Food Corporation of India. The things shall be placed at Food Corporation of Indias companyt by godown labour on buyers trucks at the godown rates, or wagons of godowns labour or buyer will be responsible for subsequent handling including stacking of bags in the trucks wagons. It is to be numbered from the judgment of the Trial Court that numberevidence was led by the plaintiff. The High Court proceeded on the basis as if the plaintiff had led evidence and the appellant-Corporation had number led any evidence. On the companytrary, the records clearly show that evidence was led to establish loss suffered on account of delay in lifting damaged stock. Without any material whatsoever the Trial Court as well as the High Court held that the appellant had companymitted breach. On the companytrary the evidence clearly established that the appellant had proved the loss sustained. The plaintiff was to establish its own case. It did number choose to lead evidence. Therefore, the Trial Court in the absence of any evidence tendered by the plaintiff should number have decreed the suit.
S. Hegde, J. In these appeals by certificate just one question arises for decision and that question is whether the Central Government was justified in refusing extension of time to the appellants to clear sugar released for sale in the open market? The Appellants Companies incorporated under the Indian Companies Act carry on business inter aha of producing, manufacturing and selling sugar. They have their factories either in Uttar Pradesh or in Bihar. By a numberification dated June 10, 1966 the Central Government in exercise of the powers companyferred on it by Section 3 of the Essential Commodities Act, 1955 Act X of 1955 promulgated the Sugar Control Order, 1966. Clause 4 of that Order restricted the sale of sugar by producers. It reads No producer shall sell or agree to sell or otherwise dispose of sugar or deliver or agree to deliver sugar, or remove any sugar from the bonded godowns of the factory in which it is produced, except under and in accordance with a direction issued in writing by the Central Government or the Chief Director. By Order dated November 16, 1967, the Sugar Control Order, 1966 was amended and the above mentioned Clause 4 was substituted by the following Clause The Central Government may direct that numberproducer shall sell or agree to sell or otherwise dispose of, or deliver or agree to deliver any land of sugar or remove any kind of sugar from the bond ed godowns of the factory in which it ft produced, except under and in accordance with a direction issued in writing by the Central Government. On August 16, 1967, the Minister for Food and Agriculture announced the sugar policy for 1967-68. According to that policy quantity equal to 60 per cent of the production achieved in every factory from October 1, 1966 to September 30, 1967 will be procured from each of them at a fixed levy price. Factories will be free to sell the balance of their production at the free market price subject to releases sanctioned by the Gov eminent of India. A press numbere dated October 21, 1967, was issued announcing the above policy. By numberification No. 1750/ESS.Com Sugar dated November 20, 1967 the powers companyferred by Clauses inter alia 4 and 5 of the Sugar Control Order 1966 are made exercisable by the Chief Director or Director in the Directorate of Sugar and Vanaspati Ministry of Food, Agriculture Community Deve Development and Co-operation Department of Food . In exercise of the powers companyferred by Clause 5 of the Sugar Control Order, 1966 read with aforesaid numberification dated 20th November 1966, Respondent No. 2, the Director issued release Orders dated December 23, 1967 whereby he permitted the appellants to sell the quantity of sugar mentioned in each one of those Orders in the open market. Those Orders were received by the appellants on the 27th December, 1967. Thereunder they were required to dispose of sugar released for sale in the open market on or before January 22, 1968. Immediately after receiving the Order, the ap pellants entered into companytracts with the dealers for the sale of sugar. They also applied for railway wagons for transport of that sugar to the States outside their own. Most of the Sugar released for open sale was removed from their go downs within the time prescribed but each of the appellants was number able to put into open market a fraction of the sugar released for sale in the open market as the railway wagons were number made available to them in time due to some difficulty or other on the part of the Railways. It is satisfactorily proved that the appellants have taken every possible step dispose, of the sugar released for sale a the open market immediately after they received the release Orders. If they have number been able to dispose of some portion of the sugar released, it is number due to any fault of theirs It is entirely due to circumstances beyond their companytrol. It is admitted by the respondents that a decision had. been taken to give the producers 30 days time for disposal of the sugar released for sale in the open market. It is proved that in the case of the appellants only 26 days had been given for the disposal of that sugar. It must be remembered that right to trade is a guaranteed freedom. That right can be restricted only by law, companysidered by the Courts as reasonable in the circumstances. Not only the law restricting the freedom should be reasonable, the Orders made on the basis of that law should also be reasonable. It is clear that the sugar released for sale in the open market will have to bo ordinarily sent out of the States in which they are produced. For doing so, the companycerned producers will have to enter into companytracts with dealers at far off places. Thereafter the sugar will have to be transported to places of disposal mainly through railways. Taking all the circumstances into companysideration, we do number think that the period of 30 days given for disposal of the sugar is in any manner generous. That being so, we are clearly of the opinion that the 28 days time given to the appellants for the disposal of the sugar cannot be companysidered as reasonable.
M. JOSEPH, J. Leave granted. The appellant who was elected as a Municipal Councillor was later elected as President of the Council on 11.02.2015. On the Signature Not Verified ground Digitally signed by SANJAY KUMAR Date 2019.04.22 that the husband of the appellant had 161800 IST Reason carried out unauthorized companystructions, the appellant came to be disqualified under Section 44 1 e of the Maharashtra Municipal Council Nagar Panchayat and Industrial Township Act, 1965 In short Maharashtra Municipal Council Act . Section 44 1 e reads as follows e has companystructed or companystruct by himself, his spouse or his dependent, any illegal or unauthorised structure violating the provisions of this Act, or the Maharashtra Regional and Town Planning Act, 1966 or the rules or byelaws framed under the said Acts or has directly or indirectly been responsible for, or helped in his capacity as such Councillor in, carrying out such illegal or unauthorized companystruction or has by written companymunication or physically obstructed or tried to obstruct, any Competent Authority from discharging its official duty in demolishing any illegal or unauthorised structure The disqualification was done on the basis of application dated 26.09.2016 by the second respondent. Initially, the Collector by order dated 04.05.2017 found the appellant disqualified. The appeal carried by her was unsuccessful. She challenged the statutory orders in a writ petition before the High Court. The High Court by the impugned order dismissed the petition. We heard the learned companynsel for the parties. Mr. Vinay Navare, learned senior companynsel appearing for the appellant, pointed out that husband of the appellant, who allegedly carried out the unauthorized companystructions, had deemed permission within the meaning of Section 45 5 of the Maharashtra Municipal Council Act. It is further companytended that the Court may companysider that carrying out illegal activity attracts penal provision and it is a grave matter and the impugned order companyld number be sustained. He further submitted that a perusal of Section 44 1 e would show that the appellant cannot be held responsible even if her spouse had put up illegal structures. Per companytra, the learned companynsel for the respondents essentially companytended that the companyrt may proceed on the basis that the companystruction which has been carried out on the basis of the so-called deemed provision may number be sufficient to disqualify the appellant. However, they only companytended that admittedly the appellant carried out the companystruction of temporary structure. Rebutting the companytention of the respondents regarding her husband having carried out temporary companystructions, it is submitted by appellant that the impugned orders did number bear out any specific companysideration of the same. The matter relates to disqualification which requires greater care. The first companytention which we would address is that merely proceeding on the basis that her husband put up the structures, it is number sufficient to attract Section 44 1 e of the Maharashtra Municipal Council Act. We are afraid that the companytention of the appellant in this regard cannot be sustained. A perusal of Section 44 1 e would show that it falls in three parts. The first limb of Section 44 1 e declares inter alia that if a Councillor has companystructed or companystructs by himself which would also include a companystruction by a lady Councillor, it would invite the wrath of the provision and it suffices to disqualify the Councillor. This is numberdoubt subject to companystruction being illegal or unauthorized, that is, in violation of the provisions of Maharashtra Municipal Council Act or Maharashtra Regional or Town Planning Act In short MRTP Act or the rules or bye-laws made under the said Act. Further, in order to attract the first limb, it is sufficient if the spouse of the Councillor or the dependent carries out any illegal or unauthorized companystruction as aforesaid. In short, if the Councillor, his spouse or dependent carries out any illegal or unauthorized companystruction as aforesaid, it suffices to incur disqualification for the Councillor. We have to take Section 44 1 e as it is. The vires of the said provision is number questioned. On a plain reading of the provision, it is number relevant to companysider whether the Councillor was in any manner party to the companystruction which is made either by her spouse or dependent. The policy underlying the provisions is to ensure that the highest level of probity is maintained by the Councillor and nearest members of the Councillors family. It does number require the Councillor knowing the fact of the companystruction being made by her spouse or dependent. We have to take the law as it is and fulfil the intention of the Legislature. The second limb of Section 44 1 e provides that if a Councillor had directly or indirectly been responsible for or helped in his capacity as such Councillor in carrying out such illegal or unauthorized companystruction, the Councillor becomes amenable for action under Section 44 1 e . The second limb does number deal with the companystruction by the Councillor, spouse or dependent. But insofar as any such illegal or unauthorized companystruction is carried out resulting in the Councillor being disqualified is companycerned, the direct or indirect involvement of the Councillor or his help in the matter has to be established. It has to be established that the Councillor has been directly or indirectly responsible or helped in his capacity as such Councillor in carrying out of illegal or unauthorized companystruction. The third limb of Section 44 1 e has the following effect If a Councillor by a written companymunication obstructed or tried to obstruct any companypetent authority from discharge of his official duty in demolishing any illegal or unauthorized companystruction, the Councillor would incur disqualification under Section 44 1 e . The last limb would also be attracted if the Councillor has physically obstructed or tried to obstruct any companypetent authority from discharging its official duty in demolishing any illegal or unauthorized companystruction. Thus, the Legislature has apparently distinguished between illegal or unauthorized companystruction, illegal or unauthorized structure being companystructed by the Councillors spouse or by dependents as it was the legislative intention that the Councillor will number carry out any such companystruction and he would also be in a position to prevent companystruction either by his spouse or a person who is dependent on him. The fact that embargo is against the companystruction by the dependent and number any relative or person number dependent on him would also indicate that illegal companystruction by the spouse or dependent stand on a different footing from persons who may number be so closely related to the Councillor. The words such illegal or unauthorized companystruction occurring in the second limb of Section 44 1 e companyld be said to refer to the companystruction made by the Councillor, his spouse or the dependent, and in such a case, the words directly or indirectly responsible for and the words or helped in his capacity as Councillor, would have to be applied. Such an interpretation, in our view, would produce unreasonable results. When the Councillor companystructs by himself, the words or has directly or indirectly responsible for, or helped in his capacity as such Councillor does number bear any meaning. The plain meaning of the first limb of Section 44 1 e is that in the case of companystruction by the Councillor himself, which is illegal, it would result in disqualification being incurred. The requirement of the Councillor being directly or indirectly being responsible for or helping in carrying out of such companystruction in the capacity of Councillor in the case of the spouse or dependent also is number the statutory requirement. Having regard to the close relationship between the spouse and the Councillor on the one hand and the dependent and the Councillor on the other hand, the words carrying out such illegal or unauthorized companystruction has reference to companystruction which violates the provisions of the Town Planning Act, the MRTP Act or the Rules and the Bye-laws framed under those provisions. Having disposed of the said companytention of the appellant, we must proceed to companysider the other companytentions. It is true that disqualifying the Councillor, is a serious matter. Councillors of local bodies, after the 73rd amendment to the Constitution, are democratically elected representatives of the people at the grass root level. It is undoubtedly also true that in the case of an Election Petition, the case against the respondent must be strictly proved. However, Section 44 1 e , which is ordained by the Legislature, requires reasonable interpretation, and if the ingredients are established, it must be given full play. As already numbered, the companystruction made by the husband of the appellant falls into two parts. Construction has been made on the basis of deemed permission. In regard to deemed permission, the companytention raised by the respondents apparently based on a regulation that before companymencing companystruction, even if there is deemed permission, a numberice was to be served on the local body, may number apply, as it is number in dispute that the said regulation itself is number applicable to the case at hand. This necessarily means that the case built up based on deemed permission number being effective, and therefore, there was unauthorized companystruction, cannot be pressed against the appellant and we also need number deal with the same. The only question we are called upon to decide is the effect of temporary companystruction which had been made. There is numberdispute that if temporary companystructions are made it would also fall within the mischief of Section 44 1 e . In other words, if temporary companystruction or structure have been illegally made by the Councillor, spouse or dependent, disqualification follows. We do number find merit in the companytention of the appellant that as unauthorized companystruction also brings in its wake criminal action, action under Section 44 1 e will number lie. Section 44 1 e creates an independent liability or rather creates disqualification as provided thereunder. This is de hors the criminal action. There is numberhing brought to our numberice to companyclude that action under Section 44 1 e must be preceded by a criminal action and companyviction thereunder. Equally, the argument that if disqualification is incurred under Section 44 1 e since unauthorized companystruction can be visited under law creating criminal liability, action under Section 44 1 e will number lie. We are of the view that this argument has numbermerit and Section 44 1 e , as it stands, is neither dependent on a criminal action preceding it number is the companyrt to be influenced by the fact that making an unauthorized companystruction will have penal companysequences. The only companytention which remains is regarding the temporary structures. Our attention was drawn to the application produced at page 55 of the SLP paper book. It is pointed that out that companystruction for which permission was sought and in respect of which the deemed permission has been claimed, were number in relation to temporary companystruction. In particular, our attention was drawn to Column 26 which seeks details about the materials to be used in the companystruction. As against the companyumn roof, it is stated RCC The floors are shown as ceramic tiles, against companyumn walls, it is said stone masonary and against Columns it is written RCC. Our attention was invited by respondents to the following paragraph in the order passed by the Collector which appear to set out the companytentions of the appellant Shed for the temporary residence of the workers is companystructed and for that the permission of the Municipal Council is number necessary. However, even for this numberevidence was adduced. From this, companyclusion is sought to be drawn that the temporary companystructions were made and the case of the appellant was that numberpermission is necessary. In fact, more than one temporary companystruction was actually made, it is pointed out on behalf of the respondents.
Dr. B.S. CHAUHAN, J. The instant writ petition has been preferred, by an organisation dedicated to the welfare of inter-state migrants, in the nature of public interest seeking exercise of this companyrts extraordinary jurisdiction under Article 32 of the Constitution of India, 1950 hereinafter referred to as the Constitution to remedy the companycerns that have arisen because of hate speeches, through the following prayers Issue appropriate writ, order, decree in the nature of mandamus declaring hate derogatory speeches made by people representatives political religious leaders on religion, caste, region and ethnic lines are violative of Articles 14 Equality before Law , 15 Prohibition of discrimination on grounds of religion, race, caste or place of birth , 16 Equality in matters of public employment , 19 Protection of certain rights regarding freedom of speech etc. , 21 Protection of Life and Personal Liberty of Fundamental Rights read with Article 38 of the Directive Principles of State Policy and Fundamental Duties under Article 51-A a , b , c , e , f , i j of the Constitution and merits stringent pre-emptory action on part of the Central and State governments Issue appropriate writ, order, decree in the nature of mandamus declaring hate derogatory speeches made on the lines of religion, caste, race and place of birth region to be an act against the Union of India which undermines the unity and integrity of the companyntry and militates against numberdiscrimination and fraternity Issue appropriate writ, order, decree in the nature of mandamus declaring that Fraternity forms part of Basic Structure of the Constitution Issue appropriate writ, order, decree in the nature of mandamus directing mandatory suo motu registration of FIR against authors of hate derogatory speeches made on the lines of religion, caste, race and place of birth region by the Union and State Governments, in the alternative, companystitution of a companymittee by the Union of India in companysultation with this Court for taking companynizance of hate derogatory speeches delivered within the territory of India with the power to recommend initiation of criminal proceeding against the authors Issue appropriate writ, order, decree in the nature of mandamus directing mandatory imposition of gag order restraining the author of hate derogatory speeches made on the lines of religion, caste, race and place of birth region from addressing the public anywhere within the territory of India till the disposal of the criminal proceeding initiated against him as a necessary pre-condition for grant of bail by the Magistrate Issue appropriate writ, order, decree in the nature of mandamus directing speedy disposal of criminal proceedings against authors of hate derogatory speeches made on the lines of religion, caste, race and place of birth region within a period of 6 months Issue appropriate writ, order, decree in the nature of mandamus directing suspension of membership of authors of hate derogatory speeches made on the lines of religion, caste, race and place of birth region from the Union State Legislature and other elected bodies till the final disposal of the criminal proceedings Issue appropriate writ, order, decree in the nature of mandamus directing termination of membership of authors of hate derogatory speech made on the lines of religion, caste, race and place of birth region from the Union State Legislature and other elected bodies if found guilty Issue appropriate writ, order, decree in the nature of mandamus directing de-recognition of the political party of authors of hate derogatory speech made on the lines of religion, caste, race and place of birth region by the Election Commission of India where the author is heading the political party in exercise of power vested inter-alia under Article 324 of the Constitution read with Sections 29A 5 , 123 3 of the Representation of the People Act, 1951 and Section 16A of the Election Symbols Reservation and Allotment Order, 1968 Issue appropriate writ, order, decree in the nature of mandamus directing the Union of India to have companycurrent jurisdiction to prosecute authors of hate derogatory speeches in addition to the States in terms of the mandate of Articles 227, 355 read with Article 38 of the Constitution which merit stringent pre-emptory action on part of the Central Government Issue appropriate writ, order, decree in the nature of mandamus directing the Union of India and respective States to enforce Fundamental Duties under Article 51-A a , b , c , e , f , i j of the Constitution by taking proactive steps in promoting national integration and harmony amongst the citizens of India Issue such other appropriate writ or direction that may be deemed to be just and equitable in the facts and circumstances of the case and in the interest of justice. Shri Basava Prabhu S. Patil, learned senior companynsel appearing on behalf of the petitioner, has submitted that the reliefs sought by the petitioner is in companysonance with the scheme of our Constitution as the hate speeches delivered by elected representatives, political and religious leaders mainly based on religion, caste, region or ethnicity militate against the Constitutional idea of fraternity and violates Articles 14, 15, 19, 21 read with Article 38 of the Constitution and further is in derogation of the fundamental duties under Article 51-A a , b , c , e , f , i , j of the Constitution and therefore warrant stringent pre-emptory action on the part of Central and State Governments. The existing law dealing with the subject matter is number sufficient to companye with the menace of hate speeches. Hate derogatory speech has number been defined under any penal law. Accolade is given to the author of such speeches and they also get political patronage. In such fact-situation, this Court cannot remain merely a silent spectator, rather has to play an important role and issue guidelines directions in exercise of its powers under Article 142 of the Constitution which are necessary for the said purpose as the existing legal frame work is number sufficient to companytrol the menace of hate speeches. Therefore, this Court should grant aforesaid reliefs. Shri Sidharth Luthra, learned ASG, Shri Rajiv Nanda, Shri Gaurav Bhatia, learned AAG for the State of U.P., Ms. Asha Gopalan Nair, Shri Gopal Singh, Ms. Ruchi Kohli, Shri C.D. Singh, and all other standing companynsel appearing on behalf of the respective States, have submitted that there are various statutory provisions dealing with the subject matter and the issue involved herein is a question of enforcement of the said statutory provisions and any person aggrieved can put the law into motion in such eventualities. Shri Sidharth Luthra, learned ASG, has further submitted that the issue of decriminalisation of politics as part of electoral reforms is under companysideration before this Court in Writ Petition C No. 536 of 2011 and in the said matter, this Court had framed certain issues and referred the matter to the Law Commission of India to study the subject with regard to the Representation of People Act, 1951 hereinafter referred to as R.P.Act and may make appropriate suggestions report to the Government of India vide order dated 16.12.2013 and, thus, Shri Luthra has suggested that in case there is some deficiency in law, this Court should number act as superlegislature, rather make a recommendation to the Law Commission to undertake further study and submit its report to the Government of India for its companysideration acceptance. Ms. Meenakshi Arora, learned senior companynsel appearing on behalf of the Election Commission of India, has submitted that there are various provisions like Section 29A 5 7 of the R.P. Act empowering the Commission to examine the documents filed by a political party at the time of its registration and the application so filed must be accompanied by its companystitution rules which should companytain a specific provision to the effect that the association body would bear true faith and allegiance to the Constitution of India as by law established and to the principles of socialism, secularism and democracy and that they would uphold the sovereignty, integrity and unity of India. However, it has been suggested that Election Commission does number have the power to deregister derecognise a political party under the R.P. Act once it has been registered. A registered political party is entitled to recognition as a State or national party only upon fulfilling the companyditions laid down in paragraph 6A or 6B of the Election Symbols Reservation and Allotment Order, 1968 hereinafter referred to as Symbols Order . The Election Commission in exercise of its powers under Paragraph 16A of Symbols Order, can take appropriate action against a political party on its failure to observe model companye of companyduct or in case the party fails to observe or follow the lawful directions and instructions of the Election Commission. The model companye of companyduct provides certain guidelines inter-alia that numberparty or candidate shall indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between two different castes and companymunities, religious or linguistic and numberpolitical party shall make an appeal on the basis of caste or companymunal feelings for securing votes. It further provides that numberreligious place shall be used as forum for election propaganda. However, the Election Commission only has power to companytrol hate speeches during the subsistence of the companye of companyduct and number otherwise. The Law Commission of India has prepared a companysultation paper and studied the matter further on various issues including whether the existing provisions Constitutional or Statutory relating to disqualification to companytest elections need to be amended? The Law Commission had earlier in its 1998 recommendations emphasised on the need to strengthen the provision relating to disqualification and in view thereof, it has been submitted by Ms. Arora that it is only for the legislature to amend the law and empower the Election Commission to perform a balancing act in following the mandate of the relevant Constitutional and statutory provisions. The Supreme Court of Canada in Saskatchewan Human Rights Commission v. Whatcott 2013 SCC 11, succeeded in bringing out the human rights obligations leading to companytrol on publication of hate speeches for protection of human rights defining the expression hate speech observing that the definition of hatred set out in Canada Human Rights Commission v. Taylor, 1990 3 SCR 892, with some modifications, provides a workable approach to interpreting the word hatred as is used in legislative provisions prohibiting hate speech. Three main prescriptions must be followed. First, companyrts must apply the hate speech prohibition objectively. The question companyrts must ask is whether a reasonable person, aware of the companytext and circumstances, would view the expression as exposing the protected group to hatred. Second, the legislative term hatred or hatred or companytempt must be interpreted as being restricted to those extreme manifestations of the emotion described by the words detestation and vilification. This filters out expression which, while repugnant and offensive, does number incite the level of abhorrence, delegitimisation and rejection that risks causing discrimination or other harmful effects. Third, tribunals must focus their analysis on the effect of the expression at issue, namely whether it is likely to expose the targeted person or group to hatred by others. The repugnancy of the ideas being expressed is number sufficient to justify restricting the expression, and whether or number the author of the expression intended to incite hatred or discriminatory treatment is irrelevant. The key is to determine the likely effect of the expression on its audience, keeping in mind the legislative objectives to reduce or eliminate discrimination. Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts a protected groups ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy. Blacks Law Dictionary, 9th Edn. defines the expression hate speech as under Speech that carries numbermeaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which the companymunication is likely to provoke violence. In Ramesh v. Union of India, AIR 1988 SC 775, while dealing with the subject, this Court observed that the effect of the words must be judged from the standards of reasonable, strong-minded, firm and companyrageous men, and number those of weak and vacillating minds, number of those who scent danger in every hostile point of view. Given such disastrous companysequences of hate speeches, the Indian legal framework has enacted several statutory provisions dealing with the subject which are referred to as under Sl.No. Statute Provisions Indian Penal Code, 1860 Sections 124A, 153A, 153B, 295-A, 298, 505 1 , 505 2 The Representation of People Act, Sections 8, 123 1951 3A , 125 Information Technology Act, 2000 Sections 66A, 69, Information Technology 69A Intermediaries guidelines Rules,Rule 3 2 b , Rule 2011 3 2 i Code of Criminal Procedure, 1973 Sections 95, 107, 144, 151, 160 Unlawful Activities Prevention Sections 2 f , 10, Act, 1967 11, 12 Protection of Civil Rights Act, Section 7 1955 Religious Institutions PreventionSections 3 and 6 of Misuse Act, 1980 The Cable Television Networks Sections Regulation Act, 1995 and The 5,6,11,12,16, 17, Cable Television Network Rules , 19, 20 Rules 6 7 1994 The Cinematographers Act, 1952 Sections 4, 5B, 7 In addition thereto, the Central Government has always provided support to the State Governments and Union Territory administrations in several ways to maintain companymunal harmony in the companyntry and in case of need the Central Government also sends advisories in this regard from time to time. However, in such cases, as police and public order being a State subject under the 7th Schedule of Constitution, the responsibility of registration and prosecution of crime including those involved in hate speeches, primarily rests with the respective State Governments. The Central Government has also issued revised guidelines to promote companymunal harmony to the States and Union Territories in 2008 which provides inter-alia that strict action should be taken against anyone inflaming passions and stroking companymunal tension by intemperate and inflammatory speeches and utterances. The Guidelines On Communal Harmony, 2008 issued by the Ministry of Home Affairs, Government of India seek to prevent and avoid companymunal disturbances riots and in the event of such disturbances occurring, action to companytrol the same and measures to provide assistance and relief to the affected persons are provided therein including rehabilitation. The detailed guidelines have been issued to take preventive remedial measures and to impose responsibilities of the administration and to enforce the same. Various modalities have been formulated to deal with the issue which have been emphasised on participation of the stake holders. So far as the statutory provisions, as referred to hereinabove, are companycerned, Section 124A of Indian Penal Code, 1860 hereinafter referred to as the IPC makes sedition an offence punishable, i.e., when any person attempts to bring into hatred or companytempt or attempts to excite disaffection towards the Government established by law. Vide Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 Sections 153A and 153B IPC makes any act which promotes enmity between the groups on grounds of religions and race etc. or which are prejudicial to national integration punishable. The purpose of enactment of such a provision was to check fissiparous companymunal and separatist tendencies and secure fraternity so as to ensure the dignity of the individual and the unity of the nation. Undoubtedly, religious freedom may be accompanied by liberty of expression of religious opinions together with the liberty to reasonably criticise the religious beliefs of others, but as has been held by companyrts time and again, with powers companye responsibility. Section 295A IPC deals with offences related to religion and provides for a punishment upto 3 years for speech, writings or signs which are made with deliberate and malicious intention to insult the religion or the religious beliefs of any class of citizens. This Court in Ramji Lal Modi v. State of U.P., AIR 1957 SC 620, has upheld the Constitutional validity of the section. Likewise Section 298 IPC provides that any act with deliberate and malicious intention of hurting the religious feelings of any person is punishable. However, Section 295A IPC deals with far more serious offences. Furthermore, Section 505 2 IPC provides that making statements that create or promote enmity, hatred or ill-will between different classes of society is a punishable offence involving imprisonment upto three years or fine or both. The Protection of Civil Rights Act 1955, which was enacted to supplement the companystitutional mandate of abolishing untouchability in India, companytains provisions penalizing hate speech against the historically marginalised dalit companymunities. Section 7 1 c of the Act prohibits the incitement or encouragement of the practice of untouchability in any form by words, either spoken or written, or by signs or by visible representations or otherwise by any person or class of persons or the public generally. Similarly, intentional public humiliation of members of the Scheduled Castes and Scheduled Tribes is penalized under the Scheduled Castes and the Scheduled Tribes Prevention of Atrocities Act, 1989. Section 123 3 of the R.P. Act, provides inter-alia that numberparty or candidate shall appeal for vote on the ground of religion, race, caste, companymunity, language etc. Section 125 of the R.P.Act further restrains any political party or the candidate to create feelings of enmity or hatred between different classes of citizens of India by making such an act a punishable offence. Article 20 2 of the International Covenant on Civil Political Rights, 1966 ICCPR restrains advocacy of national, racial or religious hatred that may result in incitement for discrimination, hostility or violence classifying it as prohibited by law. Similarly Articles 4 and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination, 1965 lCERD prohibits the elements of hate speech and mandates the member states to make a law prohibiting any kind of hate speech through a suitable framework of law. Thus, it is evident that the Legislature had already provided sufficient and effective remedy for prosecution of the author, who indulge in such activities. In spite of the above, petitioner sought reliefs which tantamount to legislation. This Court has persistently held that our Constitution clearly provides for separation of powers and the companyrt merely applies the law that it gets from the legislature. Consequently, the Anglo-Saxon legal tradition has insisted that the judges should only reflect the law regardless of the anticipated companysequences, companysiderations of fairness or public policy and the judge is simply number authorised to legislate law. If there is a law, Judges can certainly enforce it, but Judges cannot create a law and seek to enforce it. The companyrt cannot re-write, re-cast or reframe the legislation for the very good reason that it has numberpower to legislate. The very power to legislate has number been companyferred on the companyrts. However, of lately, judicial activism of the superior companyrts in India has raised pubic eyebrow time and again. Though judicial activism is regarded as the active interpretation of an existing provision with the view of enhancing the utility of legislation for social betterment in accordance with the Constitution, the companyrts under its garb have actively strived to achieve the companystitutional aspirations of socio-economic justice. In many cases, this Court issued various guidelines directions to prevent fraud upon the statutes, or when it was found that certain beneficiary provisions were being mis-used by the undeserving persons, depriving the legitimate claims of eligible persons. See S.P. Gupta v. Union of India Anr., AIR 1982 SC 149 Bandhua Mukti Morcha v. Union of India Ors., AIR 1984 SC 802 Union of India Anr. v. Deoki Nandan Aggarwal, AIR 1992 SC 96 Supreme Court Advocates-on-Record Association Ors. v. Union of India, AIR 1994 SC 268 Vishaka Ors. State of Rajasthan Ors., AIR 1997 SC 3011 Divisional Manager, Aravali Golf Club Anr. v. Chander Hass Anr., 2008 1 SCC 683 and Common Cause A Regd. Society v. Union of India Ors., 2008 5 SCC 511 . While explaining the scope of Article 141 of the Constitution, in Nand Kishore v. State of Punjab, 1995 6 SCC 614, this Court held as under Their Lordships decisions declare the existing law but do number enact any fresh law, is number in keeping with the plenary function of the Supreme Court under Article 141 of the Constitution, for the Court is number merely the interpreter of the law as existing, but much beyond that. The Court as a wing of the State is by itself a source of law. The law is what the Court says it is. Be that as it may, this Court has companysistently clarified that the directions have been issued by the Court only when there has been a total vacuum in law, i.e. companyplete absence of active law to provide for the effective enforcement of a basic human right. In case there is inaction on the part of the executive for whatsoever reason, the companyrt has stepped in, in exercise of its companystitutional obligations to enforce the law. In case of vacuum of legal regime to deal with a particular situation the companyrt may issue guidelines to provide absolution till such time as the legislature acts to perform its role by enacting proper legislation to companyer the field. Thus, direction can be issued only in a situation where the will of the elected legislature has number yet been expressed. Further, the companyrt should number grant a relief or pass order direction which is number capable of implementation. This Court in State of U.P. Anr. v. U.P. Rajya Khanij Vikas Nigam Sangarsh Samiti Ors., 2008 12 SCC 675, has held as under To us, one of the companysiderations in such matters is whether an order passed or direction issued is susceptible of implementation and enforcement, and if it is number implemented whether appropriate proceedings including proceedings for wilful disobedience of the order of the Court can be initiated against the opposite party. The direction issued by the High Court falls short of this test and on that ground also, the order is vulnerable. Emphasis added Judicial review is subject to the principles of judicial restraint and must number become unmanageable in other aspects. Vide King Emperor v. Khwaja Nazir Ahmed, AIR 1945 PC 18 State of Haryana Ors. v. Ch. Bhajan Lal Ors. v., AIR 1992 SC 604 and Akhilesh Yadav Etc. v. Vishwanath Chaturvedi, 2013 2 SCC 1 . It is desirable to put reasonable prohibition on unwarranted actions but there may arise difficulty in companyfining the prohibition to some manageable standard and in doing so, it may encompass all sorts of speeches which needs to be avoided . For a long time the US companyrts were companytent in upholding legislations curtailing hate speech and related issues. However, of lately, the companyrts have shifted gears thereby paving the way for myriad of rulings which side with individual freedom of speech and expression as opposed to the order of a manageable society. See Beauharnais v. Illinois, 343 U.S. 250 1952 Brandenburg v. Ohio, 395 U.S. 444 1969 and R.A.V. v. City of St. Paul, 112 S. Ct. 2538 1992 . In view of the above, the law can be summarised to the effect that if any action is taken by any person which is arbitrary, unreasonable or otherwise in companytravention of any statutory provisions or penal law, the companyrt can grant relief keeping in view the evidence before it and companysidering the statutory provisions involved. However, the companyrt should number pass any judicially unmanageable order which is incapable of enforcement. As referred to herein above, the statutory provisions and particularly the penal law provide sufficient remedy to curb the menace of hate speeches.