JAGE RAM AND ORS.

STATE OF HARYANA AND ORS.

March 2, 1971

[K. S. HEGDE AND P. JAGANMOHAN REDDY, JJ.]

Land Acquisition Act, 1894 ss. 17(2) (c), 38 to 44B-Public purpose- Decla"ration by Govern1r1ent not, open to challenge unless acquisition is for collateral purpO!ie or i.i; a colourab/P. ext>rcise of power-Acquisition for Company-Stale contributing towards cost-Proceedings need not be taken under ss. 38 to 44B-Sect<on 17(2) (c) cannot be interpreted ejusdem Generis-Scope of s. 17(2) (c)-Maxims-Ejusdem Generis- Scope of Rule.

In March 1969, the respondent State issued a notification under sec• tion 4 of the Land Acquisition Act, 1894, as amended by the Punjab Legislature, for acquisition of the appellants' land. The notification stated that the land was likely to be required to be taken by Government, at public expense, for a public purpose, namely, the sett; ng up of a factory for the starting of an industry and, further that action under section 17(2) (c) would be taken on the ground of urgency and provisions of s. 5A will not apply in regard to the said acquisition.

The appellants filed a writ petition in the High Court questioning the validity of the acquisition on the ground, inter alia, that there was no urgency in the matter, of requiring the land therefore recourse to s. 17 was not justified.

The state government pleaded that since the Government of India had extended the time for completion of the project till April 30, 1969, it had become nece>&ary to take immediate steps to acquire the land. The High Court uismissed the petition.

In the appeal to this Court it was contended that (i) the acquisition in question being one for the benefit of a Company, proceedings should have been taken under ss. 38 to 44B of the Act, and that there was no public purpose involved in the case;

(ii) there w"' no urgency and hence recourse could not be had to section 17 of the Act; and (iii) s. 17(2)(c) was inapplicable to the facts of the case, because, though s. 17 ( 2)( c) read by itself covered a very large field, l!Jlplying the ejusdem generis Rule that provision had to be given a narrower meaning because of the provisions of s. 17(2) (a) and (b).

Dismissing the appeal,

HELD : (i) On the facts of the case the purpose for which land was acquired was a public purpose. The question whether the starting of an industry is in public interest or not is essentially a question that has to. be decided by the Government. So long as it is not established that the acquisition is sought to be made for some collateral purpose or that there is a colourable exercise of poww the declaration of the government that it is made for a public purpose is not open to challenge, [874 E-G]

.smr. Somavantl and Ors. v. State of Pun/ab, (1963] 2 S.C.R. 774 and Raia Anand Brahma Shah v. State of U.P., [1967) 1 S.C.R. 373, referred to.

In view of te: fact .that the State Government had contributed towsrds the cost of acqu1S11ton ti was not necessary to proceed wlth the acquisition under Part VII of the Act, [875 A]

(ii) On the facts of the case there was urgency. The conclusion of the Government in a given case that there was urgency is entitled to. , weight, if not conclusive. 1

(iii) , In_Jnterpreting cl. (c) of s. 17(2) the rule of ejusdem generis cannot be applied. If a given provision is plain and unambiguous and the legislative intent is clear, there is no occasion to call into _aid that rule.

Under els. (a), (b) and (c) of sub-s. (2) of s. 17 the decision to acquire land has not to be made by the same authority but by different authorities.

Further, the conditions under whlch the acquisition has to be made differ from clause to clause. Therefore, there is no basis to say that the general words in cl. (c) follow the particular and specific words in els. (b) and

I c). [877 E; 879 H]

State o/ Bomba.v v. Ali Gulshan, [1952] S.C.R. 867, Lilavati Bal v.

SMe of Bombay, [1957] S.C.R. 721, K. K. Kochuni v. State of Madras, A.I.R. i 960 S.C. 1050, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2034 of 1969.

Appeal from the judgment and order dated May 7, 1969 of '..lie Punjab and Haryana High Court in Civil Writ No. 850 of 1969.

K. L. Gosain, N. N. Goswamy, S. K. Mehta, K. L. Mehta and K. R; Nagaraja, for the appellant.

Harbans Singh and R. N. Sachthey, for respondeints Nos, 1 and 2.

S. V. Gupte and S. K. Gambhir, for respondent No. 18.

The Judgment of the Court was delivered by E

Hegde, J.

This appeal by certificate arises from the decision of a Division Beµch of the Punjab and Haryana High Court in a writ petition wherein the appellants challenged the validity of proceedings under ss. 4, 6, 9 and 17 (2) ( c) of the Land Acquisition Act, 1894 as amended by the Punjab Legislature.

For convenience sake we shall refer to that amended Act as 'the Act'. The High Court dismissed the writ petition.

It appears that severnl ccntentions were sought to be advanced before the High Court but in this Court only three contentions have been pressed for onr consideration i.e. ( 1) the G acquisition in question being one for a company procewings should have been taken under ss. 3fs to 44(B) of the Act, the same..ilaving not been taken, the proceedings taken are void; , (2) fi)t)(e was no urgency and hence recourse should not have been had to s. 17 of the Act and (3) Section 17(2)(c) is inapplicable to fhe 1 facts of the case.

Now we may state the facts _relevant for the purpose of deciding the ques'tions in dispute.

.,,.,/

On 14/17 March, 1969, Government of Haryana issued a notification under s. 4 of the Act notifying for acquisition the land concerned in this case.

The notification further directed that action under s. 17(2)(c) of the Act shall be taken on the ground of urgency and the provisions of s. 5-A shall not appy in regard to the said acq1.1isition.

The preamable to the said notification says that "whereas it appears to the Governor of Haryana that land is likely to be required to be taken by Government, at public expenses, for a public purpose, namely for the setting up a factory for the manufacture of Chine-ware and Procelain-ware including Wall Glazed Tiles etc. at village Kasser, Tehsil Jhajjar, District Rohtak, it is hereby notified that the land in the locality described in the specification below is likely to iJe required for the above purpose''. On March 18, 1969 the GovernmeD't isued a notification under s. 6 of the Act acquiring the land for a public purpose.

On March 28, 1969 notices under s. 9 of the Act were served on the appellants. On April 8, 1969, the appellants filed the writ petition giving rise to this appeal.

The allegations in the writ petition include the assertion that there was no urgency in the matter of acquiring the land in question and therefore there was no justification for having recourse to s. 17 and thus deprive the appellants of the benefit of s. 5-A of the Act. It was further alleged therein that the acquisition in, question was made for the benefit of a company and hence proceedings should have been taken under ss. 38 to 44(B) of the Act and that there was no public purpose involved in the case. It was further pleaded that the land acquired was not waste and arable land and that s. 2 ( c) of the Act did not

onfer power on the Government to dispense with the proceedms under s. 5-A. In the counter-affidavit filed by the Deputy Director of Industries (Administration), Government of Haryana on bealf of the , Stte. of Haryana, the above allgations were all demed.

Therem it 1s stated that at the instance of the State of Haryana, Government of India had issued a letter of intent to a comany for .settig up a factory for the manufacture of Glazed T.tles etc. m villag~ Kasser.

That project was to be

st.ared with . the collaboration of a foreign company known as Pilkington. Tiles Ltd. The scheme for setting up the project had been finalised and approved by the concerned authorities.

On November 26, 1968, the Government wrote to one of the pro rooters of .. the project, Shri H. L. Somany asking him to complete. h.e arrangem:nts for the import of capital equipment and acqms1tion of land ID Haryana Srate for setting up of the pro- sed factory"· It was further stated in that communication e Goemment was . pleased to extend the time for compleing the pro1ect upto April 30, 1969. Under those circumstances it

had become necessary for the State of Haryana to take immediate steps to acquire the required land.

It was under those circumstances the Government was constrained to have recourse to s. 17 of the Act. The Government denied the allegation that the facts of this case did not come within the scope of s. 17 (2) ( c). It was also denied that the acquisition in question was not made for a public purpose.

We have earlier seen that in the notification issued under s. 4, it had been stated that the acquisition was made "at public expenses, for a public purpose" namely for the setting up a factory for the manufacture of China-ware and Porcelain-ware

incl u<ling Wall Glazed Tiles etc. c

In the writ petition it was not denied that the acquisition in question was made at "public expenses".

All that was challenged iii the writ petition was that the purpose for which the acquisiti6n was made not a public purpose.

There is no denying the fact that starting of a new industry is in public interest.

It is stated in the affidavit filed on behalf of the State Government that the new State of Haryana was lacking in industries and consequently it was become difficult to tackle the problem of unemployment. There is also no denying the fact that the industrialisation of an area is in public interest.

That apart, the question whether the starting of an indu.Stry is in public interest or not is essentially a question that has to be decided by the Government.

That is a socio-economic question.

This Court is not in a position to go into that question.

So long as it is not established that the acquisition is sought to be made for some collateral purpose, the declaration of the Govern rnent it is made for a public purpose is not open to challenge.

Section 6 ( 3) says that the declaration of the Government that the acquisition made is for public purpose shall be conclusive evidence that the land is needed for a public purpose.

Unless it is shown that there was a colourable exercise of power, it is not open to this Court to go behind that declaration 'and find out whether in a particular case the purpose for which the land was needed was a public purpose or not-see Smt. Somavanti and ors. v. The State of Pu11jab( 1) and Raja Anand Brahma Shah v. State of U.P.(').

On the facts of this case there can be hardly any doubt that the purpose for which the land was acquired is a public purpose.

In view of the pleadings referred to earlier it is not open to the appellant to contend that the State Government had not con: tributed any amount towards the cost of acquisition.

We were informed at the bar that the State Government had contributed

(l) [1963] 2 S.C.R. 774.

(2) [1967] I S.C.R. 373.

r .

a sum-of-Rs. 109;- towards the cost of th_e, and which fact is also mentioned in the , award of Land Acqu1S1t1on Officer. That being so it was not necessary for the Government to _proceed wi!; h the acquisition under Part VII of the Act-see Somavantz s case(').

Now coming to the question of urgency, it is clear from the facts set out earlier that there was urgency.

The Government of India was pleased to extend time for the completion of the of project upto April 30, 1969. Therefore urgent steps had to be taken for pushing through the project.

Th.e fact that the State -Government or the party concerned was lethargic at an earlier stage is not very relevant for deciding the question whethc:r on the date on which the notification was issued, there was .urgency or not the conclusion of the Government in a given case that there was urgency entitled to weight, if not conclusive.

This takes us to the question of applicability of s. 17 ( 2 )( c ). lo the facts of the case.

The appellant had denied in the affidavit that the entire land acquired is either waste or arable land. Thal contention o[ his has not been examined by the High Court. Therefore we have to proceed on the basis that the case does not come within the scope of s. 17 ( 1). The State has also not purported to act under s. 17 ( 1 ) . It has purported to act under s. 1 7 ( 2) ( c).

Therefore we have to see whether the State could have proceeded on the facts of this case under s. 17 (2 )( c). Section 17 as amended by the Punjab Act 2 of 1954, Punjab Act 17 of 1956 and Punjab Act 47 of 1956 to the extent necessary for our present purpose reads thus : .,

"17 (1) In cases of urgency whenever, the appropriate Government so directs, the Collector, tllough no such award has been made, may, on tile expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section (1) take possession of any waste or arable land needed for public purposes or for a ompany. Such land shall thereupon. vest absolutely m the Government free from all encumbrances.

Explanation . .

"(2) In the following cases, that is to say:-

(a) Whenever owing to any sudden change in the

cht el of any navigable river or other unfores~ ·. emergeny, it _becomes necessary for any R. waY Adminstration to acquire the inimed1ate posset<; sfon of any land for the mainte- !lance of their tr:rtJic or for the purpose of makmg thereon a nver-side or ghat, station or of

(b)

providing convenient connection with or access to any such station;

Whenever in the opinion of the Collector it becomes necessary to acquire the immediate possession of any land for the purpose of any library or educational institution or for the construction, extension or improvement of any building; or other structure in any village for the common use of the inhabitants of such village, or any godown for any society registered under the. Co-operative Societies Act, 1912 (Act II of 1912), or any dwelling-house for the poor, or the construction of labour colonies or houses for any other class of people under a Government-sponsored Housing Scheme or any irrigation tank, ir'rigation or drainage channel, or any well, or any public road;

(c) Whenever land is required for a public purpose

which in the opinion of the appropr'iate Government is of urgent importance, the Collector may, immediately after the publication of the notice menti.oned in sub-section ( 1) and with the previous sanction of the appropriate Government enter upon :md take possession of suclil land, which shall thereupon vest absolutely in the Government free from all encumbrances.

Provided that the Collector shall not take possession of any building or part of a building under this sub-section mthout giving to the p occupier thereof at least forty-eight hour's notice of his intention so to do . . .

( 3) In every case under either of the preceding subsections the Collector shall at the time of taking possession offer to the persons interested compensation for the standing; crop and three (if any) on such land G and for any other damage sustained by them caused by sudden dispossession . . . .

( 4) In the case of any land to which in the opinion of the appropriate Government, the provisions of subsection (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisioR3 of section 5-A shall not apply .... "

Herein we are only concerned with the scope of s. 17(2)(c) as the vires of s. 17 ( 2) is not challenged.

Section 17 ( 2 )( c) if read by itse1f is plain. It seems to permit the appropriate Government to direct that the provisions of Section 5-A shall not apply whenever land is required for public purpose which in the opinion of the appropriate Government is of urgent im portance. The conditions precedent for the application of s. 17 (2)(c) are (1) . that the land must be required for a public purpose and (2) the appropriate Government must be of the opinion that the purpose in question is of urgent importance.

But it was urged on behalf of the appellants that we should apply ejusdem generie rule in interpreting s. 17 (2 )( c). The contention on behalf of the appelants was that though s. 17(2) (c) read by itself covers a very large field, that provision should be given a narrower meaning because of the provisions in s. 17(2)

(a) and (b). It was urged that as the general words contained ins. 17(2)(c) follow the specific words of the same nature, in s. 17(2)(a) and (b), those ge-ueral words must be understood as applying to cases similar to those mentioned in s. 17 (2 )(a) and (b).

The ejusdem generis rule is not a rule of law but is merely a rule of construction to aid the courts to. find out the true intention of the legislature. 11£ a given pti'Yvision is plain and unambiguous and the legislative intent is clear, there is no occasion to call into aid that rule ejusdem generis rule is explained in Halsbury's Laws of England (3rd Edn.) Vol. 36 p. 397 paragraph 599 thus : ·

"As a rule, where in a statute there are general words following particular and specific words, the general ords/must be confined to things of the same kind as those specified, although this as a rule of construction, must be applied with cauti~ and subject to the primary rule that statutes are to be construed in accordance with the intention of Parliament.

For the ejusdem rule to apply, the specific words m?st constitute a category, class or genus; if they do constitute such a category, class or genus then only

thing~ hich belongs to that category, clas; or genus fall Wifhtn the general words .... "

It is observed in Craies on Statute Law (6th &In.) p. 1 gt that:

. ''The jusdem generis rule is one to be applied with cautiol! .and not. pushed too far, as in the case of many dec1S1ons, which treat it as automatically applicable, and not 1fs being, whai it is, a mere presumption in the absence of other indications of the intention of the kgislature.

The modem tendency of the law, it was said, is "to attenuate the application of the rule of ejusdem generis". To invoke the application of the ejusdem generis rule there must be a distinc.t genus or category. The specific words must apply not to different objects of a widely differing character but to something which can be called a class or kind of ob.iects."

According to Sutherland Statutory Construction (3rd Edn.) Vol. II p. 395, for the application of the doctrine of ejusdem generis, the following conditions must exist.

(i) The statute contains an enumeration by specific words;

(ii) The members of the enumeration constitute a class;

(iii) The class is not , exhausted by the enumeration; (iv )A general term follows the enumeration and

(v) There is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires.

The scope of the ejusdem generis rule has been considered by this Court in several decisions.

In State of Bon,?, ay v.

Ali Gulshan('); it was observed:

"Apart from the fact that the rule must be confined within nauow limits, and general or comprehensive words should recive their ful! and natural meaning unless they are clearly restrictive in their intendment, it is requisite that there must be a distinct genus, which must comprise more than one species; before the rule can be applied."

J.n Lilavati Bai v. The State of Bombay( 2 ) it was observed :

"The rule of ejusdem generis is intended to be applied where general words have been used following . particular and specific words of the same nature on the established rule of construction that the legislature presumed to use the general words in a restricted sense; that is to say, as belonging to the same genus as the particular and specific words. Such a rtrided mean-

(2) [1957] S.C.R. 721.

A I

.· B

ing has to be given to words of general import only where the context of the whole scheme pf legislation requires it.

But where the content and the oject and mischief of the enactment do not require such .restricted meaning to be attached to words of general ifttport, it becomes the duty of the courts to give those wor.ds their plain and ordinary meaning." ·

~79

the same view was reiterated by this Court in K. K. Kochilli

v. State of Madras and Kerala( 1).

Bearing in mirlll the principles set out earlier, we shall now consider whether the general import of the words in s. 17 ( 2 )( c) should be cut down in view of s. 17(2)(a) and (b).

Under

cl. (a) of s. 17(2), the acquisition is to be made by the Rail- way Administration when owing to any sudden change in the

channl of any navigable river or other tinforeseeen emergency ·

it becomes necessary for the administration to acquire the im mediate poasession of any land for the maintenance of the trntlic or for the purpose of making thereon a river-side or ghat station or for providing convenient connection with or access to any such station. We would like to emphasize that under this provision, the acquisition can only be made by the Railway Administratiop and that when it considers that innnec):i'ate possession c{ any land is necessary for the purposes nlent1oned therein.

Undi!r cl. (b) of sub-s. (2) of s. 17. before an acquisition can be made, the Collector must form an opinion that it has become necessary to acquire the immediate possession of the land concerned for the purposes mentioned theNin.

Under cl. ( c) of s. 17(2), the acquisition can be made only when the appropriate Government forms the opinion that. because of urgent importance, the concerned land has to be acquired for the purpo;; cs mentioned in that provision.

Under cl. (a) the decision to JC quire has to be made by the Railway Administration.

Under

cl. (b), the acquisitiol) can be made only on the formation of the required opinion by the Collector. Under cl. ( c) the ac4uisition can be made only when the tequisi)e opinion is fonwd by the appropriate Government.

Further under cl. (a) the acquisition has to be. made to meet certain unforeseeon emergency as a result of which the immediate possession of the land is rieces- . sary.

Under cl. (b )' the Collector must form an opinion that it has become necessary to acquire the . immediate possession of land but undJr cl. ( c) the requir-ment is that the appropriate

Governmnt/must form the opinion that the acquisiion is of urgent importance.

Under els. (a), (b) and (c} of sub-s. (2) of s. 17, the decision to acquire land has not to be made by the

(I) A.LR. 1960 S.C. 1050.

1c-LI100 St1p Cl/71

same authority but by different authorities. Further the conditions under which the acquisition has to be made differ from clause to clause.

Therefore there is no basis to say that the geireral words in cl. ( c) follow the particular and specific words

in els. (b) and ( c). Nor can it be said that the specific words contained in els. (a) and (b) constitute a category, class or genus.

Hence we are unable to accept the contention that in B interpreting cl. (c) of s. 17(2), we should apply the rule of ejusdem generis. ·

As none of the contentions taken by the appellants are acceptable, thise appeal fails and is dismissed. But in the circumstances of the case we make no order as to costs.

K.B.N.

Appeal dismissed. c

.;,.

JAGE RAM AND ORS

STATE OF HARYANA AND ORS

March 2, 1971

K. S. HEGDE

P. JAGANMOHAN REDDY, JJ.

Land Acquisition Act, 1894

ss. 17(2)

ss. 38 to 44B

s. 17(2)

Maxims-Ejusdem Generis- Scope of Rule

Land Acquisition Act, 1894

section 17(2)

s. 5A

s. 17

Government of India

April 30, 1969

ss. 38 to 44B

section 17

s. 17(2)(c)

s. 17

s. 17(2)

(1963] 2 S.C.R. 774

[1967) 1 S.C.R. 373

Part VII of the Act

s. 17(2)

s. 17

CIVIL APPELLATE JURISDICTION

K. L. Gosain

N. N. Goswamy

S. K. Mehta

K. L. Mehta

K. R; Nagaraja

Harbans Singh

R. N. Sachthey

S. V. Gupte

S. K. Gambhir

E

Hegde

ss. 4, 6, 9 and 17

Land Acquisition Act, 1894

ss. 3

s. 17

Section 17(2)(c)

14/17 March, 1969

Government of Haryana

s. 4

s. 17(2)(c)

s. 5

Haryana

Kasser

Jhajjar

Rohtak

March 18, 1969

s. 6

March 28, 1969

s. 9

April 8, 1969

s. 17

s. 5

ss. 38 to 44(B)

s. 2

s. 5

Pilkington. Tiles Ltd.

November 26, 1968

H. L. Somany

State of Haryana

s. 17

s. 17

s. 4

Section 6

[1963] 2 S.C.R. 774

Part VII of the Act

Somavantz

s. 17

s. 17

s. 17

s. 1

s. 17

Section 17

section 9

Co-operative Societies Act, 1912

section 5

s. 17(2)(c)

s. 17

Section 17

Section 5

s. 17

s. 17

s. 17(2)

s. 17(2)

s. 17(2)(a)

s. 17

s. 17

s. 17(2)(a)

s. 17(2)

s. 17

s. 17(2)

s. 17

s. 17(2)

K.B.N.


s:'K,. ~SHYAP & ANR.

THE STATE OF RAJASTHAN

March 2, 1971

[C. A. VAJDIAL!NGAM AND A. N. RAY, JJ.J

Army Act, 1878 (1 of 1878)-Sections 125 and 12&-Code of Criminal Procedure, 1898 (5 of 1898) Section 549-Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952-Jurisdiction of Special Judge-Ru/es 4, 5, 8 and 9-Scope of Rules.

Criminal Law Amendment (Amendingi Act, 1966----Section 5(1)(a)(b)-"Pending", "Charged with a11d tried for an offence", meaning of.

On January 27, 1966, a charge sheet against the four appellants and four civilians was put up before the special judge. On January 12, 1967 the Special Judge gave notice to the commanding officer notifying under rule 4 of the Criminal Courts and Courts Martial (Adjustment of Juris-·

diction) Rules, 1952, framed under s. 549 of the Code of Crirr.inal Pro• cedurc, that charges would be framed against the accused.

On January 16, 1967, the Officer Commanding wrote to the Special Judge, in exercise of the powers conferred on him hlle 5 of the 1952 Rules, that the four appellants belonging to his unit would be tried by Court Martial under the Army Act, 1950, and \he Court of the Special Judge was requested to stay the proceedings with immediate effect. On January 17, 1967, the State of Rajasthan made an application before the Special Judge stating that the period of limitation fclr the purpose of Court Martial had already expired and tilat the Special Judge take cognisance of the case on the basis of sanction by the Central Government. The Special Judite requested the Commanding Officer to make a reference to the Central Government.

On January 28, 1967, the Commanding Officer wrote to the Special Judge that the notice dated January 16, 1967, unde'r Rule 5, served on the Special Judge might be treated as cancelled.

Thereupon the appellants made an application before the Special Judge challenging the legality of the action of the Commanding Officer in cancelling the notice dated January 16, 1967 and praying that they be delivered to the Army authorities.

The Special Judge held that since the notice dated January 16, 1967 had been cancelled, he had jurisdiction to try the case. A revision against this order was dismissed and the High Court directed the Special J ud2e to conduct the trial.

In the appeal to this Court it was contended that the High Court was wrong, because, the Special Judge had DD jurisdiction to deal with the application of the State made on January 17, 1967 and pass an order that the Commanding Officer should make a reference to the Central Government; and that the Commanding Officer had no power to caacel the intimation dated January 16, 1967. The respondent contended !bat the effect of the cancellation of the notice dated January 16, 1967,. was that no Court Martial proceeding was to be commenced and that in any event the Special Judge had jurisdiction and authority to try and dispose

of the case which was pending on June 30, 1966 in the Criminal Court by virtue of the provisions contained in the Criminal Law. Amendment (Amending) Act, 1966.

Dismissiag the appeal,

-!'

HELD : The provisions of the Army Act, the Rules under Section 549 of the Criminal Procedure Code and the decisions of this Court all support

the c, onclusion that the Special Judge in the present case was justified i11 asking the Officer Con1ma-nding to make a reference .to the Central Go,·- 1..Tnmcnt and that the Officer Commandjng in the -facts and circumstances of the case expressed the opinion that the appellants should be tried bv

criminal cot1rts because there would in fact he no Court Martial proceedings.

The contention that the Officer Comn1an<ling having once exercised the discretion under Rule 5 could not cancel the discretion is unacceptahlt.!.

There / arc no ::illCgations of n1ala fide or abuse of power to challenge the propri<:ty of !he exercise of power and discretion.

Ram Sarup v. The Union of India & Anr., '(1964] 5 S.C.R. 931, So111 Datt Datta .v. Union of India & Ors., [1969] 2f S.C.R. 177; Joginder Singh

v. State of Himachal Prade.h,.Criminal Appeal No. 34 of 1969 decidedon :10-11-1.970 an!'I Major /;', G. Barsay v. State of Bombay, [1962] 2 S.C.R. 195: referred to.

Th~ present upi=1~<1I relates to a c~1se "pending" immetli •tely .hcfor~ Jun~ .10, 1966, before u Special Judge. within the meaning of s. 5(1)(al of.

the Criminul Law Amendment Act. l 966.

The word "pending" will Ndinarily mean that the matter is not concluded and the court which ha•

cognisance of it cnn n1akc an order on the matter in isscc.

The test i" whether any proceedings can he taken in the cause before the Court Qr lribunal where it is snid to b'e- pending.

Ju"ged hy these tests the proscnt appeal relates to a case pending before June 30. 1966.

It is n_ot necessarv that charges shouhJ havci; hcen framed in order to m"kc it a case pendin.g within the meaning of Sec'tion 5 (I) (a) of the 1966 Act.

The words "charged \.Vith and tried for an offence" mean that thcr~ .arc accusations and allegntions against a person. -The words "charged \.\'ith"

are used in Section 5(1) (a) in contradistinction to the words "charge< 'have already been framed" in Section 5 (l )(h) of the Act.

Further. Sec- tions 25lA, 252 and 253 of the Code, of Criminal Procedure throw liµht ·

; is to the meaning to he given to the \vords "charged with and tried for an offence:".

- CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 241 of 1968.

Appeal by special leave from the judgment and order dated September 9, 1968 of the Rajasthan High Court in Criminal Appeal No .. 134 of 1968.

S. V. Gupte, D. P. Singh. R. K. Jain !\Ind V. J. Francis, for the ;1ppcllants.

nebabrata Mukherjee and R. N. Sachthey, for the respondent.

The Judgment of the Court was delivered by

Ray, J.

This is an appeal by special leave against. the order ,, rn.Ljudgment dated 9 September, .. 1968 of the High Court

Rajathan.

s. K. KASllYAP r. STATF ( Rar. !. )

The question for consideration is whether the Additio.nal Special Judge. Rajasthan, Jaipur could proceed with the trial of

Crninal Case No. 2/68/Spl. Cr. as directed by the order of the High Court. That case was initiated under a sanction accorded by the Central Government under section 197 of the Code of Criminal Pro.cedure and section 6( 1) (a) of the Prevention of Corruption Act and the appellants along with four civilians were d1arged with offences punishable under sections 120-B, 161, '165-

A. 420, 409 and 467-A of the Indian Penal Code and section :' t 2) of the Prevention of Corruption Act read with sections 5 I l )(a) and 5 (1 )( d) of the Prevention of Corruption Act.

The Special Police Establishment, Jaipur Branch on 27 January, 1966 pu( up before the Special Judge, Jaipur a charge- 'hcet against the four appellants and four civilians. One of the

dvilian.~ turned approver.

The four appellants thereafter made an application on 13 September, 1966 before the Special Judge tlrnt they were Commissioned Officers of the Indian Army and

11 ithout complying with the provisions of section 549 of the Code of Criminal Procedure and the Rules thereunder called the "Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules," the Special Judge could not proceed against the appellant> in the criminal court which under the Army Act is described a> " civil court as opposed to court-martial under the Army Acts.

The Special Judge rejected that application on 10 October, 1966 ; md ordered that the case would be put up for further proceedings ,; n 16 January, 1967. A revision application was thereafter moved in the Rajasthan High Court. The High Court of Rajasthan by "rder and judgment dated 20 Decemper, 1966 said that the Special

.T udge would proceed in accordance with the provisions of Rule~

3 and 4 of the Rules framed under section 549 of the Code of Criminal Procedure.

In compliance with the aforesaid order of the High Court, the Special Judge on 12 January, 1967 gave notice to the Commanding Officer, 123 Infantry Battalion (T.A.), Jaipur notifying under Rule 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 that the appellants along with three civilians were charged with the offences as indicated above and

chargs would be "frf\llled against the accused after the expiry of

a penod of seven days from the date of the service of the notice".

On 16 January, 1967 the Officer Commanding wrote to the Special

.T udge for Rajasthan that in exercise of the powers conferred upon him by Rule 5 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 the Officer Commanding i:ave

notice that the four Officers meaning thereby the appellants belonged to his Unit and that the appellants would be tried by Court Martial under the Army Act, 1950 for the offences alleged to have

been committed by them as set out in the notice of the Special Judge and that the Court of the Special Judge was requested.Jo stay the proceedings against the four appellants with immediate effect.

The Jetter concluded by stating that the four appe!Jants might be delivered immediately to Major R. N. Kesar who was carrying the notice to be handed over to the Court by hand.

On 17 January, 1967 the State of Rajasthan made an application before the Special Judge that under section 122 of the Army Act, 1950 a period of three years was provided after which no Court Martial proceedings could be commenced against the Army Officers and the period of limitation was to be computed from the date of such offence. The charges of conspiracy and corruption against the appellants were alleged to have been committed in the month of December, 1962 and the end of the year 1963 and as such, according to the State of Rajasthan, the limitation for the purpose of Court Martial expired with the close of the year 1966.

The State of Rajasthan submitted that the Special Judge took cognizance of the case on the basis of sanction granted by the Central Government and there were two orders one from the highest authority of the Government, namely, the President of India sanctioning the prosecution of the appellants by a competent criminal_court and the other by an Officer Commanding for holding a CourtJAartihl and therefore the matter might be referred to the Central Government for clarification. The Special Judge on 17 January. 1967 held that along with the appellants three civilians were charged with the commission of offence and they could not be tried by Court Martial. The Special Judge requested the Commanding Officer to make a reference to the Central Government within seven days failing which the Special Judge would make a reference to the Central Government. The Special Judge did not deliver the four appellants to the Commanding Officer.

On 28 January, 1967 the Officer Commanding, 123 Infantry Battalion (T.A.), Jaipur wrote to the Special Judge that the notice under Rule 5 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 served by the Officer on the Special Judge by Jetter dated 16 January, 1967 might be treated as cancelled.

On 21 March, 1968 the appe!Jants made e.n application before the Additional Special Judge, Jaipur that the Commanding Officer acted illegally and without jurisdiction in cancelling the earlier notice dated 16 January, 1967 and the Commanding Officer should have made a reference to the Chief of the Army Staff. The appellants prayed that they might be handed over to the ommanding

Officer in terms of the letter dated 17 January, 1967 issued by the Commanding Officer asking the Special Judge to deliver the !1J>pel lants to the Army authorities. On 5 April, 1968 the Additional

Special Judge held that the Officer Commanding revised his discretion and intimated by letter dated 28 January, 1967 that the earlier notice dated 16 January, 1967 issued.under Rule 5 requiring delivery of the appellants to the Army authorities for trial by Court Martial was cancel!ed and therefore the Special Judge would try the case and not deliver the appellants to the army authorities.

The appellants thereafter made an application to the High Court of Rajasthan under secticm 435 read with section 561-A of the Code of Criminal Procedure for quashing the proceedings before the Additional Special Judge and for directing the Special Judge to hand over the appellants to be tried by Court Martial.

The High Court by order dated 9 September, 1968 dismissed the revision application and directed the Special Judge, Rajasthan to conduct the trial expeditiously, because sufficient time had elapsed 'ince the submission of the charge-sheet by the Special Police Establishment Branch, Jaipur.

Counsel on behalf of the appellants contended that the order of the High Court was wrong for 3 reasons : First, that the Special Judge having issued a notice on 12 January, 1967 under Rule 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 to the Officer Commanding and having received a reply dated 16 January, 1967 from the Officer, the Speeial

Judge had no jurisdiction to deal with an application of the State made on 17 January, 1967 and pass an order on 17 January, 1967 on the stay application that the Commanding Officer should make

a reference to the Central GOvernment. The second contention was that the Commanding Officer had no power to cancel the intimation dated 16 January, 1967 by the subsequent letter dated .28 January, 1967. Thirdly, it was said that the sanction for prosecution accorded by the Central Governmellt had no relevence to section 549 of the Code of Criminal Procedure read with the Rules.

Counsel on behalf of the respondent on the other hand , contended that the Officer Commanding by letter dated 28th January, 1967 cancelled the earlier notice dated 16th January, 1967 with the result that no Court Martial proceeding was to be' commened against the appellants.

It was said on behalf of the respondent that the competent military authority had power and jurisdiction to cancel the letter dated 16th January,

l 967.

Secondly, it was said that the Special Judge had jurisdiction and authority to try and dispose of the case which was pending on 30th June, 1966 in the criminal court by virtue .of the provisions contained in the Criminal Law Amendment r( Amending) Act, 1966.

The third contention was that the Special Judge was justified in making an order on 17th January, 1967 requesting the competent military authority fo make a reference to the Central Government failing which the Special Judge 1would _make a referenq: _to .the Central Government.

ssn SUPREMEcoURT REPORTS [l 97 J ]3 S.C.R

In order to appreciate the rival contentions reference has to k made to sections 125 and 1.26 of the Army Act and Rules 3 to 9 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 made by the Central Government . in exercise of the powers under section 549 of the Code of Criminal Procedure.

Sections 125 and 126 of the Am1y Act are framed for the purpose of ensuring that there is no conflict between the criminal court and the Court MartiaL Section 125 confers discretion on .. ' the Officer Comnianding of the army corps, division' or brigade in which the accused is serving to decide before which~ court the proceedings shall be instituted in respect of an offence alleged to be committed by the accused:····. If the decision will_ be for institution .of proceedings bdore the Cour\ Martial direction .is

given for detention of the accused in military custody.

Section '126 provides that where a criminal court having jurisdiction i> of opinion that proceedings shall be instituted before it in respect of any iilleged offence, the criminal court, may require the Officer Commanding mentioned in section 125 of the Army Act either to deliver the offender to the Magistrate or to postpone proceedings pending a rderence to the Central Government.

Section 126(2) of the Army Act provides that th.~ Officer Commanding shall either deliver the offender to the Magistrate or shall . refer the question to the Central Government whose .order upon such refereno:: shall be final.

These two sections of the Army Act do not leave any room for doubt that if after commencement of Court Martial proceedings the ordinary criminal court intends to proceed against an accused who is subject to

. '.

the control of the Army Act, the criminal court will have to adopt either of the two courses mentioned The order cf the Central Government shall b~ final in cases of reference bv the criminal F court to the Government. ·

In the present case there was in the beginning suggestion by the Officer Commanding of institution of Court Martial proceedings. When the S]J'cial Judge found on the application made by the State on 17 January, 1967 that section 122 of the Army Act raised the bar of limitation with regard to initiation of Court Martial proceedings and farther found that there were civilians charged along with the appellants, it was not unjustified in asking the Officer Commanding to make a reference to the Government in order to prevent any competition or conflict between the criminal courts. and Court Martial. On 17th January, 1967 as matters stood, the Special Judge had the intimation from the Officer Commanding that Court Martial proceedings would be instituted.

Therefore on a reading of section 126 of the Army

Act the Special Judge requested the Officer Commaading to refer the question to the Central Government for determination as to the Court before which proceedings would be started.

Section 549 of the Code of Criminal Procedure e_mpowers the Central Government to make Rules as to the case in wliich persons subject to military, naval or air-force law be tried by a court to whicih the Code of Criminal Procedure applies or by Court Maritial.

When any such person is brought before the Magistrate and charged with an offence for which he is liable to be tried either by a cour~ or by Court Martial, the Magistrate shall have regard to such Rules and shall in appropriate cases deliver him together with the stati; ment of the offence of which. he is accused to the Commanding Officer for the purpose of being tried by Court Martial.

There are 9 rules under section 549 of the Code of Criminal Proo-...dure.

These Rules are called Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952.

Broadly stated, rules 3 to 9 are as follows Under rule 3, (a) a Magistrate may proceed against a persun subject to military, naval or air-force laws without being moved by a competent military, naval or air-force authority, or (b) by being moved by such authority.

Under rule 4 if the Magistrate is of opinion that he will proceed against such a person without being moved by the competent military, naval or air-force authority, he shall give written notice to the Commanding Officer of the accused and until the expiry of a period of sev.n days shall not (a) convict or acquit the accused, or (b) har him in defence or ( c) frame in writing a charge, or ( d) make an order committing the acclisell for trial by the Hight Court or by the Court of Sessions under section 213 of the Code of Criminal Procedure Under Rule 5 where within the period of seven days or at any time thereafter before the Magistrate has done any act or is.sued any order, the Commanding Officer gives notice to the Magistrate that the accused should be tried by Court Martial, the Magistrate shall stay the proceedings and if the accused is in his power or under this control the Magistrate shall deliver him to the relevant authority Under rule 6 where a Magistrate has been moved by the' competent military, naval or airforce authority under rule J(b) and the Commanding Officer subsequently giV-es notice to the Magistrate !hat the accused shall be tried by Court Martial, such Magistrate, 1f he has not before ret:eiving such notice done any act or issued any order referred to in rule 4, shall stay proceedings and, if the accused is in his power or under his control, shall deliver him to te relevant uthority. Under i; ule 7 where an accused person havmg been delivered by the Magistrate under rule S or 6 is not tried by a court-martial for the offence of which he is accused;

$88 Sl'PREME COL'RT REPORTS

[1971J3 S.C.R.

or other effectual proceedings are not taken against him, the Magistrate shall report the circumstance to the State Government which may, in consultation with the Central Government take appropriate s'teps to ensure that the accused person is dealt with in accordance with law.

Under rule 8, where it comes to the notice of the Magistrate that a person subject to military. naval or air-force la~ has committed an offence, proceedings in respect of which are instituted before him and_ that the presence of such a person cannot be procured unless throngh military, naval or air-force authorities the Magistrate may by a written notice requir~ the Commanding Officer of such person either to deliver such a person to a Magistrate to be named in the said notice for being proceeded against according lo law, or to stay the proceedings against such person before the courtmartial if since instituted, and to make a referenc-~ to the Central Government for detem1ination as to the Court before which the proceedings should be instituted.

Under rule 9 where a person subject to miitary. naval or air-force law has committed an offnce which in the opinion of the competent military, naval or air-force authority. as the case may be, ought to be tried by a Magistrate in accordance with the civil law in force or where the Central Government has on a reference mentioned in rule 8. decided that proceedings against such person should be instituted before a Magistrate the Commanding Officer of such person shaH after giving a written notice to the Magistrat~ concerned, deliver such person under proper escort to that Magistrate.

These Rules enjoin comity of criminal courts and Court Martial. .Before proceeding against the person subject to military law, the M!ljl:istrate is required to give notice to the Commandinj! Officer. If within the period of seven days or before the M)!!istrate has done any act or issued any order the Commaridmg Officer !lives notice that the accused should be tried by a Court-Martial the criminal court shull stay proceedings. If :thereafter the court-martial proceeding is not taken the Magistrate may report to the State Government which may in consultation with the Central Governmen !take appropriate steps to ensure that the accused is dealt with in accordance with law.

Whero~ it comes to the notice of the Magistrate that proceeding~ ought to be instituted before him he may by written notice require the Commanding Officer to deliver the accused to the Magistrate or require the Commanding Officer to stay the Court Martial proceedings if instituted and tomake a refer•wce to the Central Government for detennination as to the Court before which the proceedings shall be instituted. Rule 8 again supports the step taken by the Magistrate in the present case. on 17th

January 1967 when he requir-.xl the Commanding Officer to make a' reference to the Central Government. Under rule 9 if the relevant authority of the armed forces is of opinion that the criminal court ought to try ihe offender or if the Central Government on a reference to it is of similar opinion the offender is delivered to the Magistrate.

Rule 9 is also attracted in the present case by reason of two features, viz., the Officer manding on 28th January, 1967 informed that no Court-Martial proceeding would be instituted, and, secondly, the miiitary

authorities never asked the criminal court to deliver the appellants to the military authority. The facts and circumstances inJicate that the competent military authority formed the opinion that the appellants should be tried by the Special Court.

This Court in the case of Ram Sarup v. The Un.ion of India(! J considered the question whether section 125 of the Army Act could be said to be discriminatory and violative of Article 14 of the Constitution.

In that case Ram Sarup who was subject to the Army Act was tried by the General Court Martial found guilty and sentenced to death.

He then filed a petition under Article 32 of the Constitution for a writ of habeas corpus and a writ of certiorari setting aside the order of the Court Martial and the order of the Central Government. It was contended there that section 125 of the Army Act left to the unguided discretion of the Officer mentioned i'n that section to decide whether the accused should be tried by a court-martial or by a criminal court. This Court repelled that contention and held "there is' sufficient material in the Act which indicates policy which is to a guide for exercising discretion and it is expected th; it the discretion is exercised in accordance with it. The Magistrate could question it and the Government in case of difference of opinion between the views of the Magistrate and the Army authorities decide the matter finally".

In Ram Sarup's case

(supra) this Court further examined the meaning of sections 125 and 126 of the Army Act and section 549 of the Code of Criminal Procedure. and Rues 3 to 9 of the Criminal Courts Court Martial (Adjustment of Jurisdiction) Rules, 1952 made

une: the C:ode .of Crimin~! Procure and laid down two propos1tio!l~; First, 1f the Magistrate will find that the military

author!!Is do not take effectual proceeding~ under the Anny Act w1thm a reasonabl!l time the Magistrate can report the circl.!111stance to the State Government which may in consultation with the Central G(lvernment take appropriate steps to ensure that the .accused is dealt with in accordance with law. Secondly. whenever there will be difference of opinion between the criminal

(I) (1964] 5 S.C.R. 931.

court and the military authorities about the forum where an accused is to be tried for the particular offence committed by him, final choice about the forum of the trial of a person accused of a civil offnce meaning thereby an offence triable by criminal court rests with the Central Government.

This Court in the recent decision in Som Datt Datta v.

Union oj India & Ors. ( 1) considered the effect of rule 3 of the Rules framed under section 549 of the Code of Criminal Procedure.

The petitioner in that case made an application. under Article 32 for a writ of certiorari for quashing the proceedings before the Court-Martial whereby he was found guilty of charges under sectiom 304 and 149 of the Indian Penal Sode and sentenced to 6 years rii:torous imprisonment.

The contention in that case was that having regard to the provisions of section 1 ::?5 of the Arm~ Act and having further regard to the fact that the Am1y Offior liad in the first instance decided to hand over the matter for in\'estigation to the Civil Police and by reason of absence of notice under Rule 5 of the Rules under section 549 of the Code of Criminal Procedure that the petitioner should be tried by Court Martini. the criminal court alone had jurisdiction under rulf.! 3 to try the petitioner.

This Court held that

th~ action of the Officer under section 125 of th~ Army Act constituting a cort-martial indicated that decision was tak, en under section 125 of the Army Act for institution of Court- Martial proceedings. Rule 3 was said to be applicable to a case where the Police had completed the investigation and the accused was brou.2ht before the Magistrate after submission of the chargesheet.

Rule 3 could not be invoked where the Police merely started investigation.

In Some Datt Datta's case (supra) this Court said about sections 125 and 126 of the Army Act "These two sections of the Army Act provide a satisfactory machinery to resolve the conflict of jurisdiction having regard to the exingencies of the situation in particular case." Jn the present case the special Judge gave notice to the Officer Commanding.

The Officer Commandinl!, had first said that Court-Martial proceedings would be instituted.

The Officer Commanding thereafter cancelled that intimation: There is no further aspect of conflict between the criminal court or the Court-Martial in the present case.

The appellants. contended that they should be delivered to the Army authorities.

The Arn1y authorities did not want deli very of theappellants to them for any C:::ourt-Martial proceedings.

On the contrary, the Army authorities indicated in no uncertain tenns that the Special Judge should proceed with the case.

When Special Judge asked the Army authorities to make. a reference

A to the Government the Army authorities instead of making a reference to the Government cancelled their first intimation about the institution of Court-Maria! proceedings with the result that the Officer Commanding expr-ssed the opinion that the appellants ought to be tried by a Magistrate in accordance with law of the land. n

This Court in the recent unreported decision in Jogif!der Si11gii v. State of Himachal Pradesh(') considered the question

us to whether the trial and conyiction by the Assistant Sessio, ns Judge in respec~ of an offence under section 376 of the Indian Penal Code violated provisions of the Army Act read with criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952.

The contention in that case was that the criminal court did not follow the provisions contained in section 126 of the Army Act read with rules 3 and 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952.

It was particularly emphasised in that case that it was for the competent officer to decide in the first instance that the appellant should be tried by Coun Martial.

This Court referred to the earlier decision of this Court in Major E. G. Barsay v. State of Bombay(') for the proposition that there was no exclusion of Jurisdiction of the ordinary criminal courts in respect of offences which are also triable by Court Martial. Sections 125 and 126 of the Army Act leave no doubt in that matter; Rule 3 (a) of the Crimin:il Courts and Court Martial 'Adjustment of Jurisdiction) Rules also indicates that the criminal court can of its own motion start proceeding against an accused who is subject to the Army Act. The several provisions of the Army Act and the Rules also indicate that the criminal court is not powerless when it is of opinion that the case should be tried in a criminal court and in case of conflict betwe-n the criminal court and the Court-Martial the order of. the Central Government is final

dcisi?n as to the forum_ of trial of the offence. In Joginder Singh s case (supra) this Court examined the Rules and aid

that the abence of a notice under rule 4. was not fatal in the facts and c!rcumstaces of the case because the competent military authonty knowing the nature of the offence released the

accuse~. from military ustody and handed him over to the tivil

atont1es, an~ _the action amounted to a decision by the mthtary athontle~ tat the accused in that case was to be tried by an ordmary cnmmal court and not by Court-Martial

The provisions of the Army Act, the Rules under section 549 of tiie Code of Criminal Procedure and the decision of:

0this

(!) Criminal Appeal No.i4 of 1969 decided on 30-11-1970

Court all support the conclusion that the Special Judge in the present case was justified in .askipg the Officer Commanding to make a reference to the Central Government and that the Officer Commanding in the facts and circumstances of the case expressed the opinion tliat the appellants should be tried by criminal courts because there would in fact be no Court-Martial proceedings.

The contention on behalf of the appellants that the Officer Commanding having once exercised the discretion under rule 5 could not cancel the discretion is unacceptable. The Officer Commanding upon consideration of facts and circumstances and particularly in the context of the comrnunica'tion of the Special Judge on 17th January, 1968 intimated on 28 January, 1967 that the previous Jetter dated 16 January, 1967 was cancelled. There are no alfogations of malafide or abuse of power to challenge the propriety of the exercise of power and discretion.

The Officer Commanding did not lack authority of jurisdiction to communi6ate to the Special Judge that Court-Martial proceeding~ would/not be instituted.

Th~ Criminal Law Amending Act, 1966 being Act No. 22 of 1966 has an important bearing on the present appeal. Section 5 of Act 22 of 1966 is as follows :-

"( 1) Notwithstanding anything contained in this Act or in the principal Act as amended by this Act,-

( a) cases pending immediately before the 30th day of June, 1966, before a Special Judge i, n which one or more persons subject to military naval or air-force law is or are charged with and tried for an offence under the principal Act together with any other person or persons not so subject, and

(b) cases pending immediately before the said date before a Special Judge in which one or more persons subject to military', naval or air-force law is or are alone charged with and tried for an offence under the principal Act and charges have already been framed against such person or persons shall be tried and disposed of by the special Judge.

( 2) Where in any case pending immediately before the 30th day of June, 1966, before a special Judge one or more persons subject to military, naval or air force law is or are alone charged with and tried for. an offence

under the principal Act and charges have not been framed against such person or persons before the said date,

., .

H r

or where, on appeal or on revision against any sentence passed by a special Judge in any case in which one or more perscns so subject was or were alone tried, the Appellate Court has directed that such person or persons be retired and on such retrial charges have not been framed against such person or persons before the said date, then, in either case, the special Judge shall follow the procedure laid down in section 549 of the Code of Criminal Procedure, 1898, as if special Judge were a Magistrate.

The question is whether the present appeal relates to a case pending immediately before 30 June, 1966 before a Special Judge within the meaning of section 5(l)(a). Sanstion was accorded

on 29 October, 1965 under section 197 of the Code of Criminal Procedure. A charge-sheet was submitted before the Special Judge on 27 January, 1966. On 5 March, 1966 the case was adjourned to 4 July, 1966 at the request of the Public Prosecutor for enabling the Public Prosecutor to supply the copies of documents envisaged by section 173 of the Code of Criminal Procedure. The case was numbered 4/66/Spl. Cr.

The word 'pending' came up for consideration before this Court in Asgarali Narnrali Singaporawalla v.

The State of Bombay(!).

Criminal Law Amendment Act, 1952 provided for the trial of all offences under section 161, 165 or 165-A of the Indian Penal Code or sub-section (2) of section 5 of the Prevention of Corruption Act, 194 7 exclusively by Special Judges and directed the transfer of all such trial pending on the date of the coming into force of the Act to Special Judges. . The Presidency Magistrate continued the trial and acquitted the appellant. Upon

appeal by the State Government the High Court held that from the date of the commencement of the Act the Presidency Magistrate lost all ju.risdiction to continue the trial and ordered retrial by the Special Judge. It was contended that on the date of the coming into force of the Criminal Law Amendment Act, 1952, vi;::., 28 July, 1952, the case was not pending because no Special Judge was appointed until 26 September, 1962 and the trial also came to an end on 26 September, 1962. This Court did not accept that contention because the accused was not called upon his defence on 28 July, 1962 and the examination of the accused under section 342 of the Code of Criminal Procedure took pla.00 after that date and the accused filed his writen statement on 14 August, 1952 and the addresses by the prosecution as well as the defence continued right up to 26 September, 1952. Tue word 'pending' will ordinarily mean that the matter is not concluded and

II) [1957] S.C.R. 678.

G~Ji!.A.¥ - If'~--~ -· .,,,.,,

SUPREME COL'RT REPORTS

lhe court which has cognizance of it can make an order on the matter in issue. The test is whether any proceedings can be taken in the cause before the court or tribunal where it is said to be pending. The answer is that until the case is concluded it1s pending.

Judged by these tests it will appear that this present appeal relates to a case pending before 30 June, 1966.

The next question is as to what meaning should be given to the words 'charged with and tried for an offence under the principal Act', occurring in section 5(l)(a). Counsel for the appellants conteqded that the words "charged with and tried for an titfence" would mean that charges had been actually framed and

I rial commenced.

There is a distinction between clauses (a) and (b) of sub-section (I) of section 5 of Act 22 of 1966.

Clause (a) deals with persons who are subject to the military, 11aval or air-force law being charged with and tried for an offence .together. with a pers0n or persons not so subject whereas clause ( b) deals only with persons who are subject to lnilitary, naval .or air-force law. In the present case, the appellants are persons who were subject to military law and they were charged along with civilians. Therefore, clause (a) is attrached. It is in connection with a case which concerns only .persons subject to military, naval or air-force law that under section 5 (1 )( b) it is en- •tcted that a case is not only to be pending before 30 June, 1966 before a Special Judge but that charges should also have been framed against such persons. The absence of framing of charges in clause (a) and requirement of framing charges in clause (b) repels the construction suggested by counsel for the appellants that charges should have been framed in the present case in order to make it a case pending within the meaning of section 5(1)(a) of the 1966 Act.

The words "charged with and tried for an -offence" mean that there are accusations and allegations agaiµst the person.

The words "charged with'' are used in section 5 ( l) (a) in contra-distinction to the words "charges have already been framed" in section 5( 1) (b) of the Act.

Therefore the use nf separate words in the two separate 'clauses (a) and (b) is significant to indicate that the statute speaks of the words "charged with" in clause (a) not in the sense of "charges have been framed" in clause (b). The legislative intent is abundantly clear from the use of. sejlarate words.

Sections 251, 251A, 252, 253 and 254 of the Code of Criminal Procedure throw some light as to the meaning to be given to the words "charged with and tried for an offence".

In the trial of warrant cases instituted on a police report. the Magistrate is to follow the procedure specified in section 251A and te present is one such. Sectien 251A contemplates that the Mag1s- 1rate on the commencement of the trial shall satisfy himself that

r c •

I h..-;

H r::.-,

the documents referred to in section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them he shall cause them to be

so furnished. In the present case, it will appear that in the month of March, 1966 the Public Prosecutor made an application to the Special Judge for adjourmnent of the case till the month of July, 1966 to enable copies of papers to be given to the accused uner section 173 of the Code of Criminal Procedure. Under section 251A(2) if, upon consideration of all the docun; ients referred to in section 173 and making such examination, if any, of the accused as the Magistrate thinks necess.ary and .after giving the pr?secution and the accused an opportumty of bemg heard, the Magistrate considers the charge against the accused to be groundless, p.e shall discharge him. This provision that the Magistrate may discharge the accused where the charge against the accused appears to e groundless indicates that the words "charged with" cannot be said to mean framing of a charge. It is because the charge or the allegation or accusation against the accused is groundless that he is discharged.

Again, in section 252 it will appear that the Magistrate in any case instituted otherwise than on a police report shall proceed to hear the complainant and take evidence in support of the prosecution.

Under section 253, if, upon taking the evidence referred to in section 252, and making such examination of the accused as the Magistrate thinks necessary, lte finds that no case against the accused has been made out, the Magistrate shall discharge him. The provisions contained in sections 252 and 253 are cases where the Magistrate deals with warrant case instituted not Olll a

police report but upon a complaint.

These three sections i.e. sections 251A, 252 and 253 indicate that an accµsed can be discharged by the Magistrate if the charge appears to be groundless. Charge is framed under section 254 of. the Code of Cr_imi1_1al rocedw; e. when the Magistrate upon evidence and exanunation 1s of op1mon that there is ground fQf presuming !hat the accused has committed an offence which the

Maistrate is competent to try and which could be ordinarily pumshed by them that he shall frame in writing a charge against the accused. The charge under section 255 of the Code of Crimi-· rtal Procedure is read and explained to the accused and Ile shall be asked whether he is guilty or has any defence to make.

H The Special iudge therefore has jurisdiction to try and dispose of the case. It is a case pending before 30 June 1966 and under Act 22 of 1966 it is to be tried and disposed of by the Magistrate.

The letter dated 28 January, 1966 is an additional reason to indi; 13- LllOOSupCI/71

[1~71]3 s.c.R.

cate that the appellants are not required to be delivered to the competent military authorities.

It is also in evidertce that no court martial proceeding is pending and the appellanfs are to be tried by the Special Judge. The judgment of the Hiph Court is upheld. ·

The appeal therefore fails and dismissed.

R. K. P. S.

Appeql dismissed.

s:'K,. ~SHYAP & ANR

March 2, 1971

A. N. RAY, JJ

Army Act, 1878

Sections 125 and 12

Code of Criminal Procedure, 1898

Section 549

Amendingi Act, 1966

Section 5(1)(a)(b)

January 12, 1967

s. 549

January 16, 1967

Court Martial under the Army Act, 1950

January 17, 1967

the State of Rajasthan

Central Government

January 28, 1967

June 30, 1966

Army Act

Section 549

(1964] 5 S.C.R. 931

[1962] 2 S.C.R. 195

Section 5(1)

Section 5

S. V. Gupte

D. P. Singh

R. K. Jain

nebabrata Mukherjee

R. N. Sachthey

Ray

K. KASllYAP

section 197

section 6( 1)

Prevention of Corruption Act

sections 120

Indian Penal Code

Prevention of Corruption Act

sections 5

Prevention of Corruption Act

Special Judge, Jaipur

13 September, 1966

section 549

Code of Criminal Procedure

Army Act

10 October, 1966

Rajasthan High Court

High Court of Rajasthan

20 Decemper, 1966

section 549

Code of Criminal Procedure

12 January, 1967

16 January, 1967

Army Act, 1950

R. N. Kesar

17 January, 1967

section 122

Army Act, 1950

India

17 January. 1967

28 January, 1967

Jetter

21 March, 1968

Additional Special Judge, Jaipur

section 561

Code of Criminal Procedure

9 September, 1968

Special Judge, Rajasthan

Jaipur

section 549

Code of Criminal Procedure

30th June, 1966

17th January, 1967

The third contention was that the Special Judge was justified in making an order on 17th January, 1967 requesting the competent military authority fo make a reference to the Central Government failing which the Special Judge 1would make a referenq: to .the Central Government.

sections 125 and 1

Army Act

section 549

Code of Criminal Procedure

Sections 125 and 126

Section 125

section 125

Army Act

Section 126(2)

Army Act

These two sections of the Army Act

Army Act

section 122

Army Act

section 126

Section 549

Code of Criminal Procedure

Code of Criminal Procedure

section 549

section 213

Code of Criminal Procedure

17th

January 1967

28th January, 1967

section 125

Army Act

Article 14

Ram Sarup

Army Act

Article 32

section 125

Army Act

Ram Sarup

sections 125 and 126

Army Act

section 549

Code of Criminal Procedure

(1964] 5 S.C.R. 931

section 549

Code of Criminal Procedure

Article 32

section 1

section 549

Code of Criminal Procedure

section 125

Army Act

section 125

Army Act

Datt Datta

sections 125 and 126

Army Act

These two sections of the Army Act

section 376

Indian Penal Code

Army Act

section 126

Army Act

Sections 125 and 126

Army Act

Army Act

Army Act

Joginder Singh

provisions of the Army Act

section 549

Code of Criminal Procedure

17th January, 1968

Criminal Law Amending Act, 1966

Section 5

30th day of June, 1966

section 549

Code of Criminal Procedure, 1898

section 5(l)(a)

29 October, 1965

section 197

Code of Criminal Procedure

section 173

Code of Criminal Procedure

Criminal Law Amendment Act, 1952

section 161, 165

Indian Penal Code

section 5

Prevention of Corruption Act

26 September, 1962

28 July, 1962

section 342

Code of Criminal Procedure

14 August, 1952

26 September, 1952

section 5(l)(a)

section 5

section 5

30 June, 1966

section 5(1)(a)

section 5

section 5( 1)

Sections 251, 251A, 252, 253 and 254

Code of Criminal Procedure

section 251A

section 173

section 173

Code of Criminal Procedure

section 251A(2)

section 173

section 252

section 253

section 252

sections 252 and 253

sections 251A, 252 and 253

section 254

section 255

28 January, 1966


BISWANATH BANARJEE

STATE OF WEST BENGAL & ORS.

March 2, 1971

[K. S. HEGDB AND P. JAGANMOHAN REDDY, JJ.]

West Bengal Board of Secondary Education Act (5 of 1963), ss. 16 and 46(2)-Existing employees to continue in office till arrangements are

mGde under the Act-Appointment of Secretary under the Act-Whether services of previous Secretary dispensed with-Whelher existing employees are 'deemed' to be the employees of the Board under the Act.

In 1962, lbe appellant was appointed Seciretary . of the Board of Secondary Education constituted under the West Bengal Secondary Education Act, 1950, as amended in 1954. In 1963, the West Bengal Board of Seoondary Education Act was enacted repealing the earlier Acts and the rules made thereunder.

The 1963-Act constituted an entirely new Board of Secondary Education.

Under s. 46(2), the services of the persons in the employment of the Board under the old Act are continued until other provision is made.

Under s. 16, the power of appointment of the Secretary for the Board is ves.ted in the State Government and not in the Board. Rule 8 of the Rules made under the 1963-Act provided that the State Government may dispense with the services of the Secretary on three months' notice or payment of three months' salary in lieu of notice. The State Government dispensed with the services of the appellant paying bim three months' salary in lieu of notice, and appointed a new secreta'ry in his place.

On the que.stions : ( 1) Whether the State Government ·coulJ act under r. 8 in respect of a person who is continued in service under s. 46 of the 1963-Act; and (2) Whether the services of an employee cf the Board could be terminated by the State Government,

HELD: (I) All that the 1963-Act provides for is the continuance of the employees of the prevrous Board till other. arrangements are made.

That is, in the present case, the appellant was Continued in_ service only 1mlil tmother secretary was appointed by the State Goyernment under the 1963-Act; and the State Government has the power to appoint a Secretary under s. 16 of the Act, irrespectiYe of its powers under the Rules. [9C l A-C]

(2) Under s. 46(2) of the 1963-Act the appellant merely continues in service but he is not deemed to be an employee of he Board. Therefore, there is no basis for the argument tbat the services of an em ployce of the Board could only be terminated only by the Board al)d not lJy the State Government. [901 C, Fl

St11.te of Assam v. Kripanath Sarma, [1967] 1 S.C.R. 499, distinguished.

CIVIL APPELLATE JyRJSDICTION: Civil AJ!lleals Nos. 1674 and 1675 of 1969.

Appeals from the judgment and decree dated July 23, 1968 o~ the Calcutta High Court in Appeal from Original Order Nos. 185 and 186 of 1967.

/3. Sen, D. N. Mukherjee and Somendra Chandra Bose, for the .ppellant.

K. R. Chaudhuri and K., Rajendra Clwwdhary, for resp<>ndents Nos. 2, 3 and 6.

Santosh Chatterjee, G. S. Chatterjee for Sukumar Basu, for respondent No. 1.

The Judgment of the Court was delivered by

P. Jaganmohan Reddy, J.-These appeals are by a certificate under Art. 132(C) of the Constitution of India against the judgment of the Calcutta High Court, which have by an order of this Court dated 25-8-1969 been consolidated for the purpose of hearing. The short question for determination in these appe;1ls in whether under the provisions of the West Bengal Board of Secondary Education Act 5 of 1963 read with Rule 8 of tlie West Bengal Board of Secondary Educatiqn (Appointment of scretary) Rules, the appellant could be discharged from the

srvice oJ the Board of Education. The appellant was an office

Suporintendent of the Board constituted under the West Bengal Secondary Education Act 37 of 1950 (hereinafter called 'the

1950 Act'). He was promoted as Assistant Secretary on 12-7-1952. as Deputy Secretary on 18-6-56 and on the 1st/8th August 1962 he was appointed as Secretary on probation and confirmed on 1-8-63 by an order dated the 24th August '63.

The appellant continued in this office till 25th November '66 when his services

wero dispensed with. with immediate effect on payment of 3 months

salary in lieu of notice. In his place the Government by its order of the same date appointed temporarily respondent

6-D.

Mazumdar, Director of Consumer Goods, West Bengal as Secretary for a period not exceeding 6 months from the date Ql1 which

he takes charge of the. office. As we have earlier mentioned the initial Act under which his appointment was m, ade was the Act of G 1950.

Subsc:qdiently another Act knoWJll as the West Bengal SecondaryEducation (Temporary Provision) Act 24 of 1954 was

passd hy the Legislature, by which the Board created by the Act of I .;}50 was superseded and its powers were vested in an administrntor appointed by the State Government. It was the administrator who had appointed the petitioner on probation. On the 20th February '63 the West Bengal Board of Secondary Education Act 5 of 1963 (hereinafter called 'the 1963 Act') was passed which came into force on 1-1-1964. Before this Act came into force

lllSWANATH I'. \\'LST BENGAL (J11ga11molw11 Reddy, ]. ) 899

ccrt•iin regulations were made on 12-12-63 under the Act of 1950, rule ..f of which dealt with the conditions of service which were

similar to those in Rule 4 of 1951 regulations made on 19-9-51.

Under rgulation 4 of 1951 the Board had .. powr to dispense with the services of the Secretary or any officer by giving 3 months notice or on payment to him of 3 months salary in Heu of notice.

Act 22 of 1954 it may be mentioned did not abolish the Board but only aut'J.orised the Administrator to carry on the duties and lunctious vested in the Board so that the appellant when he was appointed on probation by the Administrator was an employee of the Board. The 1963 Act by clause 1 of Sec. 46 repealed both the 1950 Act as well as the tempopary provisions Act 22 of 1954 and by sub-clause ( 2) it provided that "all Officers and other persons in the employment of the Board of Secondary Education immediately before the commencement of this Act shall until provision is made continue in the service of the Board". It may here be mentioned that prior to the enforcement of the Act on 1-1-64 the Government had made and published rules under that Act known as the West Bengal Secondary Education (appointment of Secretary) Rules 1963, rule 8 whereof is in the following terms :

"The State Government shall have the power to dispense with the services of the Secretary on three months' notice or in lieu of such notice on payment of three months' salary and also to .discharge or dismiss the Secretary from service without notice or compensation in the event of misconduct or of a breach of any of tlfe duties attached to the post of Secretary".

It is in exercise of powers vested l!nder this Rule that the Governor dispensed with the services of the appellant which is now challenged, The learned Advocate for the appellant contend; F' inter-alia that :-

(i) .the rule under which the appellant's services have been

dispnsed :-Vith hve no application to the case of a person who contmues Ill service under Sec. 46 (2) ( c) of the 1963 Act,

(ii) being an employee of the Board, his services could only be terminated by the Board and not by the State Government, .

(iii) Sec. 46(2)(c) envisages that till some other employment 1s found for all those persons who were in employment of the Board of Secondary Education before the. commencement of the 1963 Act, they cannot be discharged.

F?r an appreciation of these contentions it is necessary to cxamme the relevant provisions of the 1963 Act.

Under Sec. 2 (_a) the Bard means the West Bengal Board of Secondary Education established under the 1963 Act. Section 3

empowers the State Government as soon as may be after the Act comes into force to establish the Board named the West Bengal Secondary Education Board. The Board shall be a body corporate with perpetual succession and a common seal. Section 4 deals with the composition of the Board. which it may be stated is totally different to that which comprised the Board, under the 1950 Act.

The appointment of persons in the service of the Board and their condition of service etc. are the subject matter of Section 16, the relevant provisions of which are as follows :-

( 1) The Board shall have a Secretary who shall be appointed by the State Govt.

(2) The Board may appoint such other officers and servants as it considers necessary for carrying out the purposes of this Act. ( 3) The terms and conditions of appointment and the scales of pay and allowances, if any, shall-

(4)

( a) as respect the Secretary 'be such as may be prescribed, and

(b) as respect the other officers and servants be such as may be determined by regulations. ·

Sub-sec. ( 1) of Sec. 45 empowers the State Govt. after previous publication, to make rules for carrying out the purposes of this Act and sub-sec. (2 )(f) provides that :

"In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely-

( f) the terms and conditions of appointment, the scale of pay and the rules of discipline relating to the Secretary of the Board.

It is under the last mentioned provision 45(2) (f) that the rules were made, rule 8 of which we have already extracted. It G will thus be seen that the 1963 Act constituted an entirely new Board of Secondary Education and, after rej}ealing the old Acts it continued the services of the Officers and other person~ in t11~

employmnt of the Board of Education under the old Act until other provision is made. It may be stated that the power of appointment of a Secretary for the Board under Sec. 16 is not H vested in the Board but in the Govt. as such there can be no validity in the contention of the learned dvocate for th~ appellant that the Govt. has no power to appomt a Secretary m place

\····

.BISWA'NATH v. WEST BENGAL (Jaganmohan Reddy, J.) 901

of the appellant who according to him still continues as Secretary under the Board. As we read the provisions, we are clear in our minds and it admits of no doubt that the Board bas no power to appoint a Secretary, !lior has the appellant a right to the post as such; AU that the Act pro\l'ides for is the continuance of the employees of the previous Board till other arrangements are made, namely till a Secretary is appointed by the Govt. In our view the appointment of the new Secretary can be traceable to the powers vested in the Govt. under Sec. 16 irrespective of the power vested under the rules.

The argument tha't the appeliant being an employee of the Board his services could only be terminal¢ by the Board and not by the Staie Govt. has no validity in that the old rules have been repealed and the new Board has no power to, appoint a Secretary. It has been urged before us that a decision of this Court in State <Jf Assam v.

Kripanath Sarina & Ors.. etc. (1), lends support to the contention of the learned Advocate. That case was under the Assam Elementary Edncation Act 1962 the relevant provisions of which are not in pari-materia with the provisions of the Act which we a1e called upon to consider.

The respondents m that case were Elementary Education School Teachers appointed under the Assam Basic Education Act 1954. That Act was repealed by the Assam Elementary Education Act 1962 under which the Board was to be constituted and in the place of the School Boards functioning under the 1954 Act, the Deputy Inspectors of Schools were made Assistant Secretary of the said Board within their respective jurisdiction.

Sec. 34(2) provided that all the Elementary School Teachers appointed under the 1954 Act would be taken over by the State Board and who under Secti®. 38 were further deemed to have been employed by the. said Board. The statute therefore provided that they were the employees' of the Board. Sec. 46(2) ( c) however merely contimres them and does not deem them to be employees of the Board. What happened in that case was that the Board merely passed a resolution "that all teachers who are not Matriculates or who have not passed the Teachers test but who are working as Teachers in School shall be discharged with effect from 31-3-63". The Assistant Secretary without obtaining specific sanction from the Board issued orders for their discharge which he had no power to do. In those circumstances the power to terminate the services being in the Board, it was

eld .that th!'. order of termination, by the Assistant Secretary was mvahd.

This case does not help the appellant. Lastly the learned Advocate ought to press in aid a Judgment of a Bench of the Calcutta High Court in Bidyut Kr. Biswas & Ors. v.

West Bengal Board of Secorifiary Education & Ors.( 2), in which the

(I) [1967] l S.C.R. 499.

(2) c.w.N. Vol. 73 (1968-69) 417,

provision of Sec. 46(2)(c) of the 1963 Act were dealt with in support of his contention that the persons in the employment of Board ot Secondary Education under the 1950 Act could only

be discharged if an alternative employment is found for them inasmuch as the words 'until other provision is made' justifies that conclusion.

This point has not been raised in the Writ Petition nor has it been urged either before the Single Bench or before the Division Bench .of the High Court and is songht to be raised for the first time before this Court. We cannot permit him to do so, and therefore express no views on this aspect of the case. In the result the appeals are dismissed but in the circumstances without costs.

V.P.S.

Appeals dismissed.

BISWANATH BANARJEE

STATE OF WEST BENGAL & ORS

March 2, 1971

P. JAGANMOHAN REDDY, JJ.

ss. 16 and 46(2)

s. 46(2)

s. 16

s. 46

s. 16

s. 46(2)

[1967] 1 S.C.R. 499

CIVIL APPELLATE JyRJSDICTION

Sen

D. N. Mukherjee

Somendra Chandra Bose

K. R. Chaudhuri

Rajendra Clwwdhary

Santosh Chatterjee

G. S. Chatterjee

Sukumar Basu

P. Jaganmohan Reddy

Art. 132(C)

Constitution of India

Calcutta High Court

1st/8th August 1962

Mazumdar

West Bengal

20th February '63

clause 1

Sec. 46

Sec. 46

Sec. 46(2)(c)

Sec. 2

Section 3

West Bengal Secondary Education Board

Section 4

Section 16

Sec. 45

Sec. 16

Jaganmohan Reddy

Sec. 16

Sec. 34(2)

Sec. 46(2)

Sec. 46(2)(c)


H. L YNGDOH & ORS.

GROML YN L YNGDOH, JUDGE

March 2, 1971

[K. S. HEGDE AND P. JAGANMOHAN REDDY, JJ.]

-- -

Asmm Fundamental Rules, rr. 9(22), ~6-Age of Superannuation 55 years-Me1nber of Assan1 Judicial Service appointed temporarily as Judge vf Distric~ Council Court of the Autonomous District of United Khasijaintia Hills-Continued in service after superannuation by order of District Council and placed in regular scale-Whether bcco1nes per; nanent

employee within meaning of r. 9(22).

On January 26, 1950 the Autonomous District of United Khasi-Jaintia Hills was constituted by virtue of the provisions of cl. 2 of Art. 244 and the Sixth Schedule of the Constitution of India, and the Goveor of Assam was empowered to administer the said Autonomous District. Pursuant thereto the Assam Autonomous District (Constitution of District Councils) Rules, 1961 were enforced as from October 15, 1951. On June 27, 1952 a District Council and an Executive Committee was constituted for the said autonomous District. The District Council was empowered to constitute courts and appoint suitable persons as Presiding Officers. On June 7, 1954 the United Khasi-Jaintia Hills Autonomous District (Administration of Justice) Rules. 1953 were framed by the District Council.

Under r. 9 a District Council Court was constituted for the Autonomous District. Judges were to be appointed by the Executive Committee with the app'roval of the Governor.

In the absence of any rules framed by the District Council under r. 15 of the Constitution of District Council Rules, the Assam Fundamental Rules. subsidiary Rules and instructions were applicable to the officers and staff or the District Council.

The respondent who was an Additional District Judge in the senior Grade of the Assam Judicial Service was appointed with effect from 7-1-1954 temporarily as a Judge of the District Council Court without the approval of the Oovemor.

The Governor however appointed him also as an Additional District Judge, Lower Assam District.

The scale of pay was Rs. 750--960-1000. On 16-2-1957 the respondent attained the age of superannuation on his completion of 55 years. Notwithstanding this the District Council continued him in service and by its order dated 22-4-1965 placed him in the regular scale of Rs. 1200--60 (E.B.)--

60-1500 with effect from 1-4-1965. However subsequently the Executive Committee terminated his services with effect from August 31, 1966. The respondent challenged this order by writ petition in the High Court. Thereafter .by special leave the matter came up in appeal before this Court. The question for consideration was whether in view of the definition of a permanent. post under Assam Furrdamental Rule 9(22) as a post 'carrying a defimte scale of pay. sanctioned without limit of time', the respondent '-''as a permanent emp1oyee.

. HELD : The respondent's employment was temporary and was conhnumg as su.ch. ¥erely placing him in a scale of pay which was different to the one m which he was temporarily appointed did not make him a pem1anent employee.

To become permanent he must be confirmed but that question could ever arise ?ecause under Fundamental Rule 56 which was .1dm1ttedly apphcable to h1!11 the date of his compulsory retirement was the date on which he attamed the age of 55 years.

After this he

could bt: retained with the sanction of the Government which adn1iitcdlv A in his cas.e had not been .given.

Even if the validity of his appointmedr by the D1str1ct Council without the sanct_ion of the Governor which \\-'as

'~ necessary condition for valid appointment was overlooked he cc:iuld not complain that his termination by the very Council wa; without the Governor's sanction. [906 E-G]

The argument that the Governor had invested the Respondent with B powers for the. Schedule Districts and lower Assam was unhelpful because

this was done. m 1954 long prior to his attaining the age of superannuatlon. when without a valid extension of the service he could not continue in service after that date. [906 HJ

. Accordingly the appeal must be allowed and the writ petition <lisn11sscd.

[Pers.anal remarks by the Chief .Justice of the High Court against another Judge of that Court disapproved.]

C1VJL APPELLATE JURISDICTION: Civil Appeal No. 1929 of 1967.

Appeal by special leave from the judgment and order dated D September 15, 1967 of the Assam and Nagala, nd High Court in Civil Rule No. 359 of 1966.

M. C. Chagla and D. N. Mukher; ee, for the appellants.

Sar; oo Prasad, R. B. Datar and S. N. Prasad, for the respondent.

The Judgment of the Court was delivered by

P. Jaganmohan Reddy, J.-The short question in this Appeal which is against the Judgment of the High Court of Asam and Nagaland by Special leave is whether the Respondent's ser- F vices as Judge District Council Court of the Autonomous 'District of United Khasi-Jaintia Hills could be terminated by the District Council. The facis relevant for the appeal are that on the 26th January 1950 the Autonomous District of United Khasi-Jaintia Hills by virtue of the Provisions of Clause 2 of Art. 244 and the Sixth Schedule to the Constitution of India was constituted and G the Governor of Assam was empowered to administer the said Autonomous District Pursuant thereto the Assam Autonomous Districts (Constitution of District Councils) Rules 1951 were enforced as from the 15th October 1951.

On the 27th June 1952 a District Council and an Executive Committee was constituted for the said autonomous District. The District Council was H empowered to constitute Courts and appo!nt suitab!e erons . as

Presiding Officers. On 7th June 1954 Umted Khas1-Jamtta Hi!ls Autonomous District (Administration of Justice) Rules 19)3

were framed by the District Council with the approval of the Governor, rule 9 of which reads as follows:

"Constitution of District Council Court-(1) There shall be one District Council Court for the United Khasi-Jaintia Hills Autonomous District which shall be called the United Khasia-Jaintia Hills District Council Court. The Court shall consist of one or more Judicial Officers to be designated as Judge or Judges -appointed by the Executive Committee with the approval of the Governor.

Provided that the Chief Executive Member or Member of the Executive Committee or any other members of the District Council shall not be entitled to hold office as Judicial Officer of the District Council Court."

It is admitted that no rules were made by the District Council under Rule 15 of the Constitution of District Council rules which empowered it to regulate conditions of service of Officers and staff appointed to the services and posts in connection wit11 the affairs of the District Council. In the absence of these rules it is also admitted that the Assam Fundamental Rules subsidiary Rules and instructions were applicable to the Officers and staff of the District Council.

The Respondent who was an Additional District Judge in the senior grade of the Assam Judicial service was appointed with effect from 7-1-1954 temporarily as a Judge of the District Council without the approval of the Governor. The Governor however appointed him also as an Additional District Judge Lower Assam Diltrict for the purpose of disposal of Civil and Criminal matters under the respeciive codes.

On 16-2-1957 the Respondent attained the age of superannuation which was on his completion of 55 years. It would however appear that notwithstanding his having reached .the age of superannuation the District Council continued him in service and by its order dated 22-4-1965 placed him in the Regular scale of Rs. 1200-60(EB)-60- 1500 with effect from 1-4-1965.

Thereafter on 30-7-1956 the Executive Committee of the District Council served notice upon him that his services alongwith the services of others mentioned in the oriler were terminated from 31st August 1966. It is this impugned order that was challenged in a Writ Petition which the Respondents filed in the High Court. The High Court came to the conclusion that unless the contrary is shown that the Respon'- dent was appointed by the District Council with the approval of the Governor while the termination was by the Council without

the approval of the Governor, though we observe that even with respect to this nothing contrary was shown that the Governor had not given his approval.

In our view a perusal of the order of appointment would show that it was issued by the Chief Executive Member District Council and it specifically states that the appointment is temporary.

Immediately after the R'espondent had reached the age of superannuation the High Court wrote to the Chief Executive Member on 5-3-57 enquiring whether the Respondent has been given an extension. In reply it was informed on 25-3-57 that he was appointed on the 10th February 1954 as Judge of the District Council Courts on a temporary basis; "and he will as such continue to perform his duties till further orders made by the Council". The initial temporary appointment as will be seen from the order of 10th February 1954 was on the scale of pay Rs. 750- 30-960-1000 but later he was placed in a regular scale of pay of Rs. 1200 to Rs. 1500 as already adverted to. It is this order that is being urged as having given the Respondent a permanent post, because as the learned Advocate submits, a permanent employee is one who is appointed to a permanent post which is defined under Assam Fundamental Rule 9 (22) as a post "carrying a definite scale of pay sanctioned without limit of time".

As we have already noticed the Respondent:s appointment was temporary and was continuing as such. Merely placing him in a scale of pay which is different to the one in which he was temporarily appointed does not make him a permanent employee. To become permanent he must be confirmed, but that question can never arise because under those very Fundamental Rules which it is not denied apply to him in the absence of any rules made by the District Council the d<rte of his compulsory retirement according to Fundamental Rule 56 is the date on which. he attains the age of 55 years and if he is retained after this date it can only be done with the sanction of the Government which admittedly in his case has not been given. Even if the validity of his appointment by the District Council without the sanction of the Governor which was a necessary condition for valid appointment is overlooked he cannot complain that his termination by the very Council is without the Governor's sanction. We can find no justification for his continuance nor has any rule or regulation Fundamental otherwise shown to us to continue him in service without the sanction and under some valid rule. The argument that the Governor had invested -the Respondent with powers for the Schedule Districts and lower Assam is equally unhelpful because this was also admittedly done in 1954 long prior to his attaining the age of superannuation when without a valid extension of the ser- vice he could not continue in service after that date.

Viewed

from any angle the respondent's l'lea is untenable, as such the appeal is allowed and the writ petition dismissed, but , fn the circumstances without costs.

Before we part with the case we were distressed to note certain personal remarks made by the learned Chief Justice against one of the Hon'ble Judges of that Court. To us these remarks do not appear to be either proper or just. By making these remarks the learned Chief Justice has let down bis office as well as his Court. In the objective discharge of judicial functions there is little justification nay, none-at-all to assume an~ attitude other. than of judicial restraint or to use a language w!lile referring to one's colleagues other than that which has been hitherto adopted by lonl!; usage.

G.C.

Appeal allowed and petition dismissed.

H. L YNGDOH & ORS

GROML YN L YNGDOH, JUDGE

March 2, 1971

K. S. HEGDE

P. JAGANMOHAN REDDY, JJ.

Asmm Fundamental Rules

January 26, 1950

cl. 2

Art. 244

Sixth Schedule

Constitution of India

Assam

October 15, 1951

June 27, 1952

June 7, 1954

August 31, 1966

Assam Furrdamental Rule

Schedule D

High Court in Civil Rule

M. C. Chagla

D. N. Mukher

R. B. Datar

S. N. Prasad

P. Jaganmohan Reddy

High Court of Asam and Nagaland

Clause 2

Art. 244

Sixth Schedule

Constitution of India

15th October 1951

27th June 1952

7th June 1954

10th February 1954

Assam Fundamental Rule

Schedule D