STATE OF MYSORE AND ANR.

H. SRINIVASAMURTHY

January 29, 1976

[R. S. S, ARKARIA AND S. MuRT•zA FAz-'-I~ Au, JJ.]

Constuuuon of India-Articles 14 and I6-Pe11alty-Di.1crin1ination-Civil Service-Departing fronz Adnlinistratire Po/icy.

The respondent entered service of the State of 1lysore in 1935 as Instructor of Tailoring in the Department of Public Instruction. In 1949 he went on deputation in the Polytechnic In_stitute at Devangere.

One K. N. Chetty \Vh? was far junior to respondent was also sc:tt on deputation to another similar institution in 1949.

K. N. Chetty \Vas absorbed from the date he went on deputa- C tion in the new post but respondent was not so absorbed.

In 1955, for no fault of the respondent, Government passed orders reverting him to his parent departn1ent. In 1956, respondent, was again posted on deputation. The interven~ ing pcri1)d beiwecn his reversion and re-posting Vi'as treated as leave.

On reorganisation of State respondent's services \.Vere allotted to the new State of I\<1yserc.

The respondent made several representations and stated that he was discrimir.:::iled against and treated differently from K. N. Chetty v; ho was junior to him in the parent dep:::irtment.

The Public Service Comn1ission found that respondent's case v.'as on all fours with tha1 of Chetty nn<l that he deserved simi- D lar trat1nent. The Commission follnd that the temporary reversion of the respondent io his parent department was not justified.

The Government in 1964 ordered the absorption of the respondent in the Department of Technical Education fron1 the date of the order subject to the conditions that he would not be entitled to the benefit of revision of scales of pay that had heen effected in 19:57 and 1961 and that he would not be given any more financial benefit or revision of pny or nddition inCremnt for his previou~ service.

The respondent filed a Writ Petition challenging these conditions and praying E for a dirction that he should be absorbed in the Department of Technical Education fron1 the date of his initial appointment in 1949, and granted consequential benefits of the revision of p<1y scales etc. The appellant opposed the \Vrit Ptition on the grounds that the respondent had no legal right to be absorbed in the Department of Technica~ Education \Vith effect frorn a particular anterior date or to be given the revised pay scales applicable to those borne permanently in the service of that department.

Chctty's case Was sought to be distin_guished on the _ground that he \Vas absorbed in the year 1951 as against F the respondent's absorption in 1964 and that there \1,:as a break in the service of the repondent.

The 1-:ligh Court allowed the Writ Petition and issued a direction that absorp tion of the respondent in the Department of Technical Education be given effect from 1949 when he initially assumed duty on deputation. The High Court aho declared that he would be entitled to <ill consequential benefits.

The appellant in an appeal by Special Leave relied on the judgment of this Hon'ble Court in the case of K. V. Raja!akshn>iah Setty v. State of Mysore [1967] G

2 S.C.R. 70.

Diss111issing the appeal,

HELD : In he present case it appears that the State had evolved a principle pursuant to \vh1ch all the employees who came on deputation from nther de~ partmci:its to the Polytechnic, exceptii:g the respondent, were absorbed permanently rn the Department of Technical Education with effect from 1he

ats on which they came on deputation. Even Chctty who was ndmittedlv 1un1or to the :esponden~ <ind was identically situated ~--as accorded the sam~

teatment. It 1s an undisputed fact that 6 other employees who were similarly situated. were absorbed from the date on which they initially joined. duty after deputation to the Polytechnic.

[259 A-C, 260 DJ

A .

There was no justification whatever to depart from this principle of policy in the case of the respondent.

His reversion was not ordered owing to any fault on his part. The said reversion could not be treated as a break :in service since it was treated as leave, nor did it nmount to reduction in rank. [260 F-HJ The High Court was therefore, justified in granting the relief, it did to the respondent. 1261 Bl "Rajalaksfvniah Setty \·. State of lvfysore, [1967] 2 S.C.R. 70, ditinguished. ...

B CIVIL APPELLATE JURISDICTION : Civil Appeal No. 722 of 1968.

Appeal by Special Leave from the Judgment and Order dated the 17th July, 1967 of the Mysore High Court in Writ Petition No. 989 of 1965.

Narayan Nettar and K. R. Nagaraja for the Appellant. c Mrs. Shyamla Papp11 and Vineet Kumar for the Respondent.

The Judgment of the Court was delivered by

SARKARIA, J .-The circumstances leading to this appeal, directed . 1 against a judgment of the High Court of Mysore, are as follows : ...,

The respondent herein entered the service of the Princely State of Mysore in 1935 as Instructor of Tailoring in the Department of Public Instructions.

In 1949, three Occupational Institutes (Polytechnics) at Hassan, Devangcre and Chintamani were started in the State.

The respondent was sent on deputation to serve in the Polytechnic at Devangere as Instructor in Tailoring and he joined the new post on November 28, 1949.

One Shri K. Narayanaswamy Chetty who was also an Instructor in Tailoring in the Department of Public Instruction was also deputed to the Occupational Institute at Hassan and joined duty there on December 1, 1949. This K. N. Chetty was far junior to the respondent in service. Special Officer-in-Charge of the three Occupational Institutes considered the names of the respondent and K. N. Chetty for absorption as Instructors in Tailoring and recommended for their absorption with effect from the respective dates of their joining duty, after deputation, in the Institutes. Accordingly K. N. Chetty was absorbed with effect from December 1, 1949, but no order was passed in the case of the respondent despite repeated representations made by the latter.

In 1953, the then State of Mysore set up the Department of Technical Education and the Polytechnic at Devangere became part of that Department.

The respondent continued to serve on deputation in that Department. In 1955, for no fault of the respondent, the Government passed orders reverting him to his parent Department. On June 11, 1956, the respondent was again posted on deputation as Instructor in Tailoring in the Polytechnic at Bellary "on provisional basis". The intervening period between his reversion and .reposting to the Polytechnic was treated as leave. On the re-orgamza!ion of States with effect from November l, 1956, his services were allotted to the new State of Mysore. The respondent continued to make representations to the effect that like other employees who were taken on deputation from other Departments, he should also be absorbed in the Department of Technical Education with effect from November .28, 1949, which was the date on which he initially came on deputat10n.

...

MYSORE v. H. SRIN!VASAMURTHY (Sarkaria, !.) 257

His specific grievance was that in any case, he could not be discriminated against and treated differently from K. N. Chetty who was junior to him in the parent Department and came on deputation to the Polytechnic establishment subsequently.

The State Government referred the respondent's case to the Public Service Commission who examined it and by a communication, dated Febrnary 2, 1960, made these recommendations in favour of the respondent;

"It is stated in the Government letter dated 26-10-1959 that the Director who was the Unit Officer for both the dcpartinents ordered the transfor of Sri Srinivasa Murthy who was fully qualified as Tailoring Instructor in the Technical Education Department and there was no need to classify the vacancy post to which he was transferred under the then existing rules.

Along with him Sri K.

Narayanaswamy Chetty who was his junior and possessing similar qualifications was transferred as Tailoring Instructor in the Technical Education Department and was absorbed in the same department by Government in consultation with the Public Service Commission. The case of Sri Srinivas.amurthy is on all fours with that of Sri Narayanaswamy Chetty and he is deserving of similar treatment.

In view of the above, and since Sri Srinivasa Murthy, who was fully qualified was transferred in 1949 by the Director and appointed as Tailoring Instructor under the rules then in force, and as his reversion at this distance of time for no fault of his would cause a great hardship to him, the Commission

are of the opinion that he may be absorbed as Tailoring In- E structor from the date of his appointment as such as has been ordered in the case of Sri K. Narayanaswamy Chetty."

In the opinion of the Commission, the temporary reversion of the respondent to his parent department in 1955-56, was not justified.

Ultimately. the Government by order, dated February 19, 1964, ordered the absorption of the respondent in the Department of Tech- F nical Education in the grade of Rs. 150-250 with effect from the date of the order, in the vacancy in which he was working, subject to these conditions.

(a) that he would not be entitled to the benefit of revision of scales of pay that had been effected in 1957 & 1961 by way of increments or weightage benefit G accruing thereunder;

(b) that he would not be given any more financial benefit or revision of pay or additional increments for his previous service.

Against this order the respondent made representations to the Government praying that his absorption should be related back to H _1949 a_nd he be given the benefit of the revisions of pay scale, includ- . rng: weightagc benefit.

The Government did not accept the representation.

On April 21, 1965, the respondent filed a writ petition under Article 226 of the Constitution in the High Court, for the issue of a writ of mandamus directing his absorption in the Department of Technical Education from the date of his initial appointment therein, namely.

November 28, 1949, and to give him benefits of the revisions cf pay scales effected in 1957 and 1961 and wcightage benefits thereunder.

The order dated February 19, 1964, was impugned on the ground that he had been in, ""m1sly discriminated against in the matter of absorption and appointment, while his junior K. Narayanaswamy Chetty, whose case was identical in all respects, and six other officers whc were similarly situated, were absorbed in the Department of Tee 'rnical Edncation with effect from the, initial date of joining duty on deputation. It was contended, that in making the impugned order, co1trary to the recommendations of the State Public Service Commission, the State Government had acted arbitrarily and in violation of Artie. es 14 and 16 of the Constitution.

The petition was opposed by the appellant, who in its co, rnteraffidavit. contended that the respondent had no legal right to tc absorbed in the service of the Department of Technical Education from a particular anterior date, or to be given the revised pay scales applicable to those borne permanently in the service of that Depar :ment.

It was further contended that the case of the respondent did not stand on the same footing as that of Narayanaswamy Chctty becaus': the order of Chetty's absorption was passed in 1951 and that of te respondent's absorption in 1964, and there was a break in the serl'icc of the respondent in the Department of Technical Education, in 19:i5-56.

It was stated that the absorption of the employees which came on deputation from a particulaor date, was a concession which could not be claimed as of right, and consequently, a writ of mandamus, as prayed for by the respondent, should not be issned.

The High Court allowed the writ petition and issued a direction that the absorption of the respondent in the Department of Te<hnical Education, be given effect from November 28, 1949 when he initially resumed duty on deputation to the Polytechnic at Dcvangerc.

The High Court further declared that he will be entitled to all consequential benefits from such abosrption including the be)lefit of revision of pay scales in the years 1957 and 1961 and also weightage benefits.

Hence this appeal by the State.

Mr. Nettar appearing for the appellant contends that this ,; ase is fully covered by this Court's decision in K. V. Rajalakshmiah Setty

and anr. v. State of Mysore and anr. ('). The point canvassed by the Counsel is, that the absorption of K. N. Chctty and five other;, with effect from particular anterior dates, was not made in pursuance of any principle of policy or statutory rule, but was done as a matter of concession. It is urged that Articles 14 and 16 of the Constitution cannot be invoked to enforce a mere concession. Counsel has further made an attempt to show that the respondent and K. N. Chctty were not similarly situated because there was a break in the respondent's service with the Department of Technical Education.

....

MYSORE v. H. SRINIVASAMURTHY (Sarkana, J.) 259

As against this, Mrs. Shyamla Pappu submits that in Rajalaksh- A miah Setty's case (supra), the facts were entirely different. It is emphasised that in the present case, seven employees had come on deputation from other Departments to the Polytechnics and _all of them, excepting the respondent, were absorbed permanently in the Department of Technical Education with effect from the dates on which they came on deputation.

Even Narayanaswamy Chetty, who was admittedly junior to the respondent, and was identically situated, was B accorded the same treatment. It is urged that this principle of policy was ignored in the case of the respondent, and he was without reason, singled out for unfair discriminatory treatment. It is pointed out that his so-called "reversion" to the parent Department in 1955 for a short period, was a misnomer. It was not a reduction in rank, nor a break in the continuity of his service. Moreover, it was, as the Public Service Commission found, undeserved and could not, by any stretch of C reasoning, be considered a ground for meting out discriminatory treatment to the respondent. ·

We find a good deal of force in the arguments of the learned Counsel for the respondent.

Rajalakshmiah Setty v. State of Mysore (supra) is clearly distin- D guishable from the facts of the present case. In that case, the Government of the then State of Mysore, by a notification dated December 12, 1949, directed that the promotions of 63 petitioners therein, from the post of Surveyors as Assistant Engineers were to take effect from that date irrespective of the dates on which they were put in charge of sub-divisions.

But by a notification dated May 17, 1950, the Government showed a concession to a different batch of 4 I Sur- E vcyors, who had been placed in charge of different sub-divMons between March 1944 and January 1946, by promoting them as Assistant Engineers, with effect from the dates of occurrence of vacancies, according to seniority.

In November 1958, another batch of 107 persons were similarly promoted as Assistant Engineers with retrospective effect from !st November 1956, when the new State of Mysore emerged under the States Reorganization Act. The petitioners F therein filed a writ petition praying for the issue of mandamus directing the State to fix their seniority, also, on the basis that they had become Assistant Engineers from the dates on which the vacancies to which they had been posted had occurred.

The High Court dismissed the petition.

On appeal, this Court held that the concession shown to the batch of 41 persons who had G been appointed before the petitioners and to the batch of 107 persons who had been appointed thereafter, were mere ad hoc concessions and not SOil)ething which they could claim as of right. It was observed that there was no service rule which the State Government had transgressed, nor the State had evolved any principle to be followed in respect of persons who were promoted to the rank of Assistant Engineers from surveyors.

It may be noted that the grant of the relief prayed for by the 63 petitioners, would have unsettled and caused wholesale alterations of

the seniority list with regard to the entire cadre of Engineers thus affecting persons who were not before the Court and who would have been condemned unheard.

Further, acceptance of the petitioners' contentions would have unsettled pre-Constitution matters, and it would have been directly productive of results going against s. 115(7) of the States Re-organization Act. Furthermore, the petitioners in that case claimed to be promoted with effect from past dates.

There was no principle of policy or service rul_e on the basis of which they could claim such promotions as of right.

Lastly, the petitioners in that case were found guilty of serious ]aches.

Such impediments in the way of the relief claimed by the respondent, do not exist in the present case. It appears to us that the acceptance of the respondent's contentions in the present case cannot lead to any untoward results such as were apprehended. in Rajalakshmiah's case (supra). Indeed, it has not been shown that the absorption of the respondent with effect from November, 1949, would ad, versely affect even Narayanaswamy Chetty, who was admittedly junior to him in the parent Department.

On the other hand, it is an undisputed fact that six other employees, who were similarly situated, were absorbed from the dates on which they initially joined duty, after deputation to the Polytechnics. It is not the case of the appellant that this principle whereby the absorption in the Department of Technical Education was related back to the date on which a person initially came on deputation, was ever departed from, excepting in the case of the respondent. This being the case, the High Court was right in holding that the State Government had evolved a principle "that if a person was deputed to the Department of Technical Education from another department and he stayed on in that other department for a reasonable long time his absorption in that department should be made to relate back to the date on which he was initially sent". There was no justification whatever to depart from this principle of policy in the case of the respondent, who was, in all material respects, in the same situation as K. N. Chctty. Very rightly, the High Court has held that his "impermissible reversion" for a short while in 1955 to the parent department was no ground to hold that he was not similarly situated as K. Narayanaswamy Chetty. This so-called reversion to the parent Department for a short period in 1955-56, could not by any reckoning, be treated as a break in his service, this period having been treated as leave. Nor did it amount to reduction in rank. In any case, this 'reversion' was not ordered owing to any fault of the respondent. It is not the appellant's case th.at the responderrt's work in the Department of Technical Education

. .,

j '

MYSORE v. H. SRINIVASAMURTHY (Sarkaria, J.) 261

was found unsatisfactory or that he was not otherwise suitable or quali- A fied to hold the post of Tailoring Instructor in that Department.

That he was suitable to be absorbed in that post, is manifest from the recommendation of the Public Service Commission and is implicit in the impugned order, itself.

For the reasons aforesaid, we are of opinion that in the special circumstances of this case, the High Court was fully justified in granting B the relief, it did, to the respondent.

The appeal fails and is dismissed with costs.

P.H.P.

Appeal dismissed.

STATE OF MYSORE AND ANR

H. SRINIVASAMURTHY

January 29, 1976

Articles 14

K. N. Chetty

Chctty

Chctty's case Was sought to be distinguished on the ground that he \Vas absorbed in the year 1951 as against F the respondent's absorption in 1964 and that there \1,:as a break in the service of the repondent.

[1967] 2 S.C.R. 70

Narayan Nettar

K. R. Nagaraja

Shyamla Papp11

Vineet Kumar

SARKARIA

High Court of Mysore

Hassan

Devangcre

Chintamani

Devangere

November 28, 1949

K. Narayanaswamy Chetty

December 1, 1949

State of Mysore

June 11, 1956

Bellary

November l, 1956

Mysore

November .28, 1949

Srinivasa Murthy

K.

Narayanaswamy Chetty

Public Service Commission

Srinivas.amurthy

Narayanaswamy Chetty

February 19, 1964

April 21, 1965

Article 226

Narayanaswamy Chctty

Chetty

Dcvangerc

Nettar

K. N. Chctty

Articles 14 and 16

Department of Technical Education

Shyamla Pappu

Rajalaksh- A miah Setty

Government of the then State of Mysore

May 17, 1950

s. 115(7)

Rajalakshmiah


RAM JIVAN v.

SMT. PHOOLA (DEAD) BY LRS. & ORS.

January 30, 1976

[R. S. SARKARIA, S. MURTAZA FAZAL ALI AND P. N. SHINGHAL, JJ.J

U.P. Zamindari Abolition & Land Refornis Act, 1950-Sections 172 and 174-Scope of.

Practice-Whether decision of a Division Bench in an ap{Jt'al binding on another Division Bench hearing a writ petition.

Under s. 172 of the U.P. Zamindari Abolition and Land Reforms Ac1:, i950, when a bhu1nidar who has, after the date of vesting, inherited an interest in any holding, dies, the holding or the part thereof shall devolve upon the nearest surviving heir (such heir being ascertained in accordance \vith the proviions of s. 171). Section 174 provides that \Vhen a bhumidar who is a woman dies, her interest in the holding shall devolve in accordance with the order of succession given in the section.

The appellant was the grandson (son's son) of one brother while respond ent No. l \Vas the only daughter of another brother.

On the death of the respondent's father, her mother continued in possession of the lands as heir of her husband under the provisions of the Oudh Land Act, 1886.

U.P. Act 4 of 1921 which replaced the 1886 Act, conferred the status of a statutory tenant upon a person in possession of lands on the date of the amend ment. Section 29 of the U.P. Tenancy Act, 1939, which was a consolidating Act, conferred the status of a hereditary tenant on any person who was a tenant of the land at the commencement of the Act and so the mother acquired the status of a hereditary tenant. The 1939 Act was replaced by the U.P. Zan1indari Abolition & Land Reforms Act. 1950 under which she became :i bhun1idar.

The mother died in 1952.

On the death of the respondent's' mother the appellant got his name rnutated in the revenue records as the nearest heir of the mother. The respondent filed a suit under s. 21 of the Abolition Act 1950 claiming to be the sole legal heir to the property. She also filed an application before the Consolidation Officer under the U .P. Consolidation of Holdings Act for mutation of her name in place of the appellant's, which was accepted.

On appeal to this Court it was contended that it was the appellant'-) father who would succeed to the property in preference to the respondent and it \Vas contended for the respondent that \vhen the respondent's father died, the tenancy was heritable and so the tenancy acquired by her mother \Vas in her own right as selfacquired property.

A.llowing the appeal, HELD: (1) Section 172A \vhich was introduced in 1954 ha" no application to this case because the mother died two years bCfore the amendment came into force and the question of succession to her estate v, rould be govern ed by s. 172 or s. 174 of the Abolition Act.

[274-A]

r ..

(2) The statute seeks to make a clear cut distinction betv,:een a widow who -" has inherited an interest from her husband dealt with in s. 172 and fl wido\V .. who had acquired an independent interest in the holding covered by s. 174.

[272 CJ

Mst. Jaini & Ors. v. Ram Prasad, A.I.R. 1952 AIL 852, approved. (3)(a) Section 172 uses the word 'holding or the part shall devolve' to denote that if it was found that a widow had inherited an interest in the holding from her husband then it was the holding that devolved and not interest of the widow, \Vhich ceased after her death. The High Court had overlooked the fact that merely because the mother having initially inherited possession or

occupation of the holding from her husband acqu!red other types of inter:est by operation of law that could not destroy the 0~1g1n or the source of her tttle which was inheritance from her husband. Nor did the conferme_nt of the status of a statutory tenant under the various laWs passed_ by the legislature amount to an acquisition of a self-acquired interest by the widow. [272B, D]

(b) The \vords "inherited an interest" occurring in s. 172 are. not deed in the statute and, therefore, they must be deemed to be of the widest possible amplitude. [272FJ

(4) Section 174 applies only to such cases where the widow did not inherit an interest from her husband but had an independent interest in the holding which she possessed as her self-acquired property.

Under s. 174 it is the interest in any holding which devolves and not the holding. The language used in Ss. 172 and 174 of the Abolition Act unmistakably brings forth the distinction between the two contingencies in which the two sections are to apply.

[273E-F]

(5) The Higfi Court having found as a fact that the mother had inherited C the property initially from her husband erred in law in not applying the provisions of s. 172 read with s. 171 of the Abolition Act as a result of which her husband's brother's son was entitled to succeed to the estate left by her in preference to her daughter (respondent). [271H]

(6) The origin of the title of the mother lay in inheritance of the estate of her husband however limited or precarious it might have been. The succession to the estate of the mother \vould have to be governed by the provisions of s. 172 of the Abolition Act. In the order of succession given in s. 171 D brother's son \Vas a preferential heir.

Before the amendment of the Abolition Act in 1954, married daughter was completely excluded from inheritance. [274G-Hl

Jn the instant case the resIJondent having married on the death of her mother in 1952 the holding held by the mother would devolve on the appellant's father and thereafter, on the appellant as heir to his father.

(7) The expressions 'heir of a tenant' and 'shall be entitled to retain occupation' occurring in s. 48 of the Rent Act 1886 before its amendment in E 1921 dearly postulate that the right to retain the occupation of the lands in dispute was given to the heirs of the deceased tenant, which clearly indicated that the person v.rho retained occupation would inherit or succeed to a limited right which the deceased tenant possessed under the Act. [273A]

In the instant case on the death of her husband occupation of the tenancy by the mother was by no way other than as heir of her husband. It cannot be said that the occupation of the lands by the mother on her husband's death was purely in her individual or independent capacity or that her p<>ssession of F the lands amounted to her self-acquired property. [273D-EJ

. (8) hether a ec!sioJ?- i~ given in appeal from an original suit or in a wnt pet1t1on the !at10 _r~ ?t?drng on te subsequent Division Bench and merely because .te. previous D1v1s1on Bench Judgment was given in a suit the subsequent D1~1s1on Bench cannot refuse to follo\v the same on the ground that it

\\'as eanng the proceedings , in writ petition. The rule of judicial precedent ,1s a sl~1ary one and is aimed at achieving finaJ!ty of judgments.

cas~ . the D1v1s1011: .B.ench under appeal wanted to differ from the previous

decision of the D1v1s1on Bench of the same court it ought to have referred the matter to a large bench.

[271F-GJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 901 of 1968.

Appeal by special leave from the judgment and order dated the 5-10-1966 of the High Court of Judicature at Allahabad in Special Appeal No. 97 of 1965.

J. P. Goyal and A. G. Ratnaparkhi for the Appellant.

G. N. Dikshit and M. V. Goswami for Respondents.

The Judgment of the Court was delivered by

FAzAL A:L~. J. This is an appeal by special leave against the judgment of a D1V1s10n Bench of the High Court of Allahabad dated Octoller 5, 1966, and raises a question of law regarding the applicability of ss. 172 and 174 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (Act No. 1 of 1951).

It appears that the case had a chequered career and the dispute between the parties passed through several phases both before the Revenue Courts and in the High Court. In order to appreciate the pomt of Jaw involved in this appeal, it may be necessary to give a resume of the facts which culminated in the judgment of the High Court under appeal. The dispute refers to lands comprised in Khata Nos. 1002, 1344 and 1411 of village Bishunpur in the District of Rae Bareli (U.P.).

It is not disputed that these Khattas originally belonged to one Harbans who died leaving behind three sons, namely Gurdin, Ramcharan and Ramadhin.

Ramcharan appears to have died issueless but Ramadhin died leaving a widow Smt. Menda and a daughter from her Smt. Phoola who was respondent No. 1.

The other son Gurdin died leaving a son Jit who had contested the present proceedings against Smt. Phoola.

During the pendency of the present proceedings Jit also died and the proceedings have been continued by his son Ram Jivan @ Lallu. The District of Rae Bareli fell in what was previously known as the Oudh Area of the United Provinces.

The dispute between the parties appears to have arisen on the death of Ramadhin one of the sons of Harbans who died in 1916 leaving behind his widow Smt. Menda.

At the time of the death of Ramadhin in 1916 the tenancy of the lands in dispute was governed by the provisions of the Oudh Rent Act, 1886-hereinaftcr referred to as 'the Rent Act of 1886'. Under the provisions of the Rent Act of 1886 Smt.

Menda was to continue in possession of the lands as an heir of Ramadhin but only during the fixed period of the tenancy on the rent payable to the landlord and was not entitled to renewal of the same.

The terms and conditions of the tenancy at the time of the death of Ramadhin were governed by s.48 of the Rent Act of 1886 which applied to the Oudh Area where the lands in dispute were situate. Under s.48 of the Rent Act of 1886 it is obvious that on the death of a tenant his widow was to continue in occupation of the lands for the unexpired portion of the period for which the deceased tenant might have held the holding. Accordingly Smt. Menda continued to occupy the lands after the death of her husband in 1916.

Meanwhile five years later the Rent Act of 1886 was amended by U.P.

Act 4 of 1921 under which the statns of a statutory tenant was conferred on a person who was in possession of the lands o~ the date when the amendment came into force.

The amendment mtroduced a substantial change in s.48 of the Rent Act of 1886 and added clause

(18) to s.3 which runs thus :

"(18) "Statutory tenant" means a tenant to whom sec· tion 36 or section 37 applies.

Explanation.-A person who succeeds as an heir of a statutory tenant under section 48 shall not be deemed to be

a statutory tenant unless he has obtained a patta from the landlord or has remained in occupation of the holding for three years after the expiration of the period for which he is entitled to retain occupation of the holding under section 48:

"Provided that when a holding is held by two or more co-tenants no person who succeeds as an heir of any such cotenant under section 48 shall be deemed to be a statutory tenant of the holding unless he has obtained a patta from the landlord, or has remained in occupation of the holding for three years after the expiration of the period for which the heir of the last surviving co-tenant is entitled to retain occupation of the holding under section 48."

By virtue of the Explanation extracted above, a tenant to whom ss. 36 and 37 applied would be deemed to be a statutory tenant. Section 36 of the Rent Act of 1886 runs thus :

"Every tenant, not being a tenant with a right of occupancy or a sub-tenant, shall be entitled to retain possession

of the holding occupied by him at the commencement of the D Oudh Rent (Amendment) Act, 1921, at the rent then payable by him, for a period of ten years from the date of the last change in his rent or the last alteration in the area of the holding, or where no such change or alteration has taken place, from the date on which the tenant was admitted to the occupation of the holding."

As Smt. Menda was in possession of the holding at the date when the amendment came into force. she would be clearly governed by s. 36 and not s. 37 of the Rent Act of 1886 which deals with tenants who were admitted to the occupation of the holding after the coming into force of the amendment.

Under s. 36 the widow was entitled to retain possession of the holding acquired by her for a period of ten years from the date on which she was admitted to the occupation of the holding.

Thu_s the combined effect of s. 3 (I 8) and s. 36 of the Rent Act of 1886 would be to clothe Smt. Menda with the status and the rights of a statutory tenant. Section 48 made the status of a statutory tenant heritable and provided as follows :

" ( 1) When a statutory tenant dies, bis heir shall be entitled to retain occupation of the holding at the rent payable by the deceased for a period of five years from the date of the tenant's death, and to receive compensation under the provisions of this Act for improvements, if any, made on the holding by his predecessor in interest, but shall not be entitled to a renewal of the tenancy.

Provided that a person who succeeds as an heir of a deceased tenant to whom clause ( e) of sub-section (1) of section 62A applies shall be entitled to retain occupation of the holding at the rent payable by the deceased only for

A the unexpired portion of the statutory period of the deceased tenant.

(2) Subject to any rights which he may have under section 22 as a representative of the deceased, a collateral relative who did not at the date of the death of the deceased, share in the cultivation of the holding, shall not be deemed to be an heir of the deceased within the meaning of this section."

In the instant case as Smt. Mendir had succeeded as an heir to her husband before the amendment of s. 48 her case will be governed by the provisions of s. 48 and she would be entitled to retain possession of the tenancy but not to a renewal thereof. It appears that soon after the death of Ramadhin the Court of Wards claimed that the tenancy had escheated to the State because Ramadhin had left no heirs and that Ramadhin was only a tenant at will.

Smt. Menda appears to have resisted the claimJ>f the Conrt of Wards which resulted in proceedings before the Revenue Courts which ultimately found that Smt. Menda had acquired the independent rights of a statutory tenant and was, therefore, not liable to be ejected at the instance of the Court of Wards.

This order was passed by the Assistant Collector on June 4, 1926 and thereafter Smt. Menda continued in possession of the holding as a statutory tenant under the amended Rent Act of 1921.

We might mention here that previous to the passing of the U.P.

Tenancy Act, 1939 the areas of Oudh and Agra in the United Provinces were governed by two separate Acts so far as the tenancies were concerned. The areas in Agra were governed by the Agra Tenancy Act and those in Oudh by the Oudh Rent Act. The U.P. Tenancy Act 17 of 1939 appears to have consolidated the tenancies in the whole of the Province and the Legislature passed one Act which would govern all the tenancies in the entire Province.

The U.P. Tenancy Act 17 of 1939 was passed on December 16, 1939 and bys. 2 thereof the Agra Tenancy Act, 1926 and the Oudh Rent Act, 1886 were repealed.

Section 29 of the Tenancy Act conferred the status of a hereditary tenant on any person who was a tenant of the land at the commencement of the Act.

Thus Smt.

Menda who continued to be in possession as a statutory tenant acquirea the status of a hereditary tenant, under s. 29(a) of the Tenancy Act which runs thus:

"29. Every person belonging to one or another of the following classes shall be a hereditary tenant, and subject to any contract which is not contrary to the provisions of section 4 shall be entitled to all . the rights conferred, and be subject to all the liabilities imposed on hereditary tenants by this Act, namely :

(a) every person who is, at the commencement of this Act, a tenant of land otherwise than as a permanent tenureholder, a fixed-rate tenant, a tenant holding on special terms in Oudh, an ex-proprietary tenant, an occupancy tenant, or

,/ •

ii I

RAM JIY/\N v. SMT. PHOOLA (Faza[ Ali, J.) 267

e:>.cept as otherwise provided in this Act as a sub-tenant or a tenant of sir : " The Tenancy Act having conferred heritable rights on the tenants to which s. 29 applied also laid down an order of succession in which the rights of the tenants would pass after the death of the tenant.

Sections 36 and 37 of the Tenancy Act provided two different modes of devolution in the case of the death of a female tenant.

Section 36 runs thus :

"36 (I) When a female tenant, other than a tenant mentioned in section 34, who either before or alter the commencement of this Act has inherited an interest in a holding as a widow, as a mother, as a step-mother, as a father's mother, or, as a daughter dies or abandons such holding, or surrenders such holding, or a part of such holding or, in the case of a tenant inheriting as a widow or as a daughter, marries such holding or such part of such holding shall, notwithstanding anything in section 45, devolve in accordance with the order of succession laid down in section 35 on the heir of the last male tenant, other than a tenant who inherited as a father's father under the provisions of that section.

x x x x ,,

Section 37 of the Tenancy Act runs thus:

"When a female tenant, other than a tenant mentioned in section 34 or section 36 dies, her interest in the holding shall devolve in .accordance with the order of succession given below :-

(a) male lineal descendants in the mac line of dcacent : Provided that no member of this class shall inherit if any male descendant between him and the deceased is alive;

(b) husband;

(c) unmarried daughter;

(d) daughter's son;

(e) brother

(f) brother's son." It will he seen that under s. 36 of the Tenancy Act the heirs of the husband get precedence over the daughter or the nnmarricd daughter, whereas in the case of a female tenant falling under s. 37 of the Tenancy Act the nnmarried daughter gets precedence over the brother or brother's son.

In other words, the policy of the law was that where a female tenant died having inherited an interest in the property from her husband then the male heirs of the husband should get preference over the female heirs.

Where, however, the female tenant had died having an independent and self-acqnired interest in the holding, her property was to pass in a different manner.

We are not concerned in this appeal with either s. 36 or s. 37 of the Tenancy Act, because Smt. Menda had died some time in September 1952

-LS22SCl176

A when the U.P. Tenancy Act, 1939 had been replaced by the U.P.

Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act 1 of

1951) hereinafter to be referred to as 'the Abolition Act.'

In short, therefore, Smt. Menda who originally occupied the lands in suit as a tenant on the death of her husband became a statutory tenant under the Rent Act of 1921, a hereditary tenani under the Tenancy Act and finally she acquired the status of a bhumidhar under the Abolition Act which came into force on July 1, 1952.

The relevant portion of s. 18 of the Abolition Act may be extracted thus :

18. (1) Subject to the provisions of Sections 10, 15, 16 and 17, all lands-

(u)

(b)

(c)

(d)

in possession of or deemed to be held by an intermediary as sir, khudkasht, or an intermediary's groveheld as a grove by, or in the personal cultivation of a permanent lessee in Avadh, held by a fixed-rate tenant or a rent-free grantee as such, or held as such by- ( i) an occupancy tenant,

(ii) a hereditary tenant,

(iii) a tenant on patta I dawami or istamrari referred to in section j' 17

possessing the right to transfer the holding by sale.

(e) held by a grove-holder,

on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary lessee, tenant, grantee or grove-holder, as the case may be, who shall, subject to the provisions of this Act, be entitled to take or retain possession as bhumidhar thereof."

:As Smt. Mcnda had already become a hereditary tenant under the Tenancy Act she automatically acquired the statns of a Bhumidhar under the Abolition Act and by virtue of the legal fiction created by s.18(1) of the Abolition Act, the lands, having been vested in the State Government, were deemed to have been permanently settled with the bhumidhar, namely, Smt. Menda in this case.

It is the admitted case of the parties that Smt. Menda died some time in september 1952, i.e. only a few months after coming into force of the Abolition Act.

The controversy between the parties now centres round the question as to who would succeed to the tenancy left by Smt. Menda.

In other words, the matter to be decided is whether s. 172 or s. 174 of the Abolition Act would apply to the present case.

Tt is not disputed that Smt. Mcnda died leaving a daughter Smt.

Phoola and her husband's brother's son Jit.

These were the two contending heirs for the property left by Smt. Menda.

' \

i •

RAM JIVAN v. 5MT. PHOOLA (Faza/ Ali, I.) 269

Sections 172 and 17 4 of the Abolition Act, insofar as they are relevant, may be extracted as follows :

"172.

(1) When a bhumidhar. sirdar or asami, who has after the date of vesting, inherited an interest in any holding-

"(a) as a widow, widow of a male lineal descendent, in the male line of descent, mother or father's mother dies, marries, abandons or surrenders of such holding or part thereof; or (b) the holding or the part shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 171) or the last male bhumidhar, sirdar or asami. x x x x" "174. When a bhumidhar, sirdar or asami (other than a bhumidhar, sirdar or asami mentioned in Section 171 or

172) who is a woman dies, her interest in the holding shall devolve in accordance with the order of succession given

below D

(a) son, son's son, son's son's son, predeceased son's widow and predeceased son's predeceased son's widow in equal shares per stirpes : Provided firstly that the nearer shall exclude the remoter in the same branch : Provided secondly that a widow, who has E remarried, shall be excluded;

l )[ x x x

(d) daughter; x x x x x

(g) brother's son; x x x x x It is, therefore, clear that the mode of succession to the property of Smt. Menda would depend on the determination of the question whether Smt. Menda had inherited an interest in any holding or had an independent interest in the holding.

This matter appears to have been canvassed before the Revenue Courts which upheld the plea of Smt. Phoola.

To begin with on the death of Smt. Phoola, Jit was successful in gettiµg his name mutated in respect of the Khattas in dispnte as being the nearest heir to Smt. Menda.

The mutation was made by the Tahsildar Maharajgunj on July 30, 1954. This mutation appears

to have been challenged by Smt. Phoola who claimed to be the daughter of Smt. Menda and therefore a preferential heir to the property as compared to Jit.

In 1957 Smt. Phoola filed a suit un- H der s. 209 of the Abolition Act for the ejectment of Jit from the disputed lands, on the ground that she was the sole legal heir of the

3-L522SCI /76

property left by Smt. Menda.

In the meanwhile in 1961 a notificauon under s. 4 of the Consolidation Act was issued bringing village Bishunpur m which the lands in dispute were situate under the consohdation operations.

Accordingly Smt. Phoola filed an application during the consolidation operations before the Col\solidation Officer, Bachhrawan, for correction of the records under s. 10(1) of the U.P. Consolidation of Holdings Act and prayed that the name of Jit in the Khattas in dispute may be struck off and Smt. Phoola's name may be mutated therein.

The Consolidation Officer accepted the plea of Smt. Phoula and he accordingly struck off the name of Jit trom the Khattas and directed that Smt. Phoola being the legal heir of Smt. Menda her name be mutated in respect of the Khattas.

Thereafter Jit filed an appeal against the order of the Consolidation Officer before the Settlement Officer (Consolidations), Tahsil Maharajgunj, District Rae Bareli.

The Settlement Officer by his order dated December 26, 1961 dismissed the appeal and upheld the order of the Consolidation Officer.

Thereafter Jit filed a second appeal before the District Deputy Director of Consolidation, Rae Bareli, which was permitted under the U.P. Consolidation of Holdings Act as it was in force then.

The District Deputy Dirjlctor of Consolidation upheld the plea of Smt. Phoola and held that she was entitled to inherit the property of Smt. Menda being her legal heir in preference to Jit who was merely her husband's brother's son and relied npon s. 171 of the Abolition Act, and accordingly dismissed the appeal.

Thereafter Jit filed a revision before the Joint Director of Consolidation who also dismissed the revision as being concluded by .a finding of fact.

Thereafter Jit filed a writ petition before the Allahabad High Court on December 21, 1962 and the writ petition was allowed by the Single Judge on August 6, 1965.

Smt. Phoola then filed a special appeal before a Division Bench of the Allahabad High Court which reversed the decision of the Single Judge and dismissed the writ petition filed by Jit upholding the plea of Smt. Phoola. Thereafter Jit moved the High Court for granting leave to appeal to this Court and the same having been refused the present appeal by special leave has been filed in this Court.

In support of the appeal Mr. J. P. Goyal has submitted that the Division Bench as also the Revenue Courts had taken a wrong view of the law in holding that SQ1\. Phoola was entitled to succeed to the property left by Smt. Menda.

The learned counsel submitted that the present case squarely fell within the ambit of s. 172 of the Abolition Act since Smt. Menda had originally inherited the property from her husband Ramadhin and, therefore, according to the order of succession provided in s. 171 of the Abolition Act which applied to s. 172, Jit who was the son of the brother of Ramadhin would succeed in preference to the daughter of Smt. Menda.

The . respondents despite service did not appear and we requested Mr. G. N. Dikshit to assist the Court amicus curiae and we are grateful to him for the valuable assistance he rendered to us in deciding the complicated issues of law involved in .this appeal.

Mr. Dikshit submitted .that at the time when Ramadhin died the tenancy was not heritable and therefore the question of Smt. Menda having inherited the estate ef herhusband did

RAM J!VAN v. SMT. PHOOLA (Fazal Ali, J.) 271

not arise and the tenancy held by Smt. Menda must therefore be regardeJ as having been acquired by her in her own right as her selfacquired property and, therefore, the Division Bench of the High Court and the Revenue Courts were right in upholding the plea of Smt.

Phoola.

We have gone through the entire record as also the judgment of the Single Judge and the Division Bench and we think that the Division Bench of the High Court has taken an erroneous view of the law in the present case.

The Division Beneh found that although it was established that Smt. Menda had inherited the property from her husband Ramadhin yet the finding of the Revenue Courts was that she had acquired the status of a statutory tenant independently and since there was no error of law in this finding of the Revenue Courts there was no reason for the Single Judge to set aside the order of the Joint Director of Consolidation and allow the petition. It was argued before the High Court that the matter was concluded by a Division Bench decision of the Allahabad High Court in Mst. Jaini & Ors. v.

Ram Prasad(') and the High Court appears to have brushed aside this decision on a strange process of reasoning which does not appeal to us at all.

The High Court observed as follows :

"Mr. Misra has strenuously contended that Jaini v. Ram Prasad (supra) is clear authority for the proposition that even in the case of a statutory tenant succession would devolve under section 36 which, according to Mr. Misra is a counterpart of section 172 read with section 171 of the U.P. Zamindari Abolition Act.

Jaini v. Ram Prasad (supra) is clearly distinguishable because that case came up in appeal before this Court and not in the form of a writ or an appeal against the decision of a learned single Judge in a writ petition."

It is obvious that whether a Division Bench decision is given in an appeal from an original suit or in a writ petition the ratio is binding on the .subsequent Division Bench, and merely because the previous Division Bench judgment was given in a su!t the subsequent Division Bench cannot refuse to follow the same 15ecausc it was hearing the proceeding in a writ petition.

The rule of judicial precedent is a very salutary one and is aimed at achieving finality and homogeneity of judgments.

In case the Division .Bench under appeal wanted to differ from the previous decision of the Division Bench of the same Court it ought to have referred the matter to a larger Bench but it was not open to it to ignore completely the previous decision on illogical and unintelligible grounds as given by the High Court.

We are further of the opinion that the Division Bench having found as a fact that Smt. Menda had inherited the property initially from her husband erred in law in not applying the provisions of s. 172 read with s. 171 of the Abolition Act as a result of which Jit being her husband's brother's son was entitled to succeed to the estate left bv

Smt. Menda in preference to Smt. Phoola the daughter.

We now H proceed to give reasons for this conclusion. ~

{i) A.l.R. 1952 AU. 852. ~

Section 172 of the Abolition Act as extracted above provides that when a bhumidhar who has after the date of vesting inherited an interest in any holding dies the holding would devolve upon the heirs in accordance with the order of succession mentioned in s. 171 of the Abolition Act. It is manifest therefore that in order to determine the applicability of s. 172 of the Abolition Act we must go to the origin of the title of the bhumidhar or the main source from which tl1e bhumidhar has derived interest in the holding.

It may be pertinent to note here that the statute uses the ·.vords "the holding or the part shall devolve" to denote that if it is found that a widow has inherited an interest in the holding from her husband, then it is the holding that devolves and not interest of the widow which ceased after her death. Thus the statute seeks to make a clear-cut distinction between a widow who has inherited an interest from her husband which is dealt with by s. 172 of the Abolition Act and a widow who has acquired an independent interest in the holding which is covered by s. 174 of the Abolition Act.

The High Court appears to have overlooked the fact that merely because Smt. Menda having initially inherited possession or occupation of the holding from her husband acquired other types of interests merely by operation of law, that could not destroy the origin or the source of her title which was inheritance from her husband.

Nor can we regard the conferment of the status of a statutory tenant or a hereditary tenant or a bhumidhar under the various laws passed by the U.P. Legislature as amounting to an acquisiton of a self-acquired interest by the widow. It was, however, argued by Mr. Dikshit that under the Rent Act of 18 86 before its amendment by Act 4 of 1921 the estate which was held by Ramadhin was not heritable at all and, therefore, Smt. Menda could not have inherited any interest in the tenancy on her husband's death.

In this connection the learned counsel sought to draw a distinction between the provisions of the Agra Tenancy Act which had made the tenancies heritable and the provisions of the Oudh Tenancy Act which did not make the tenancies heritable.

Although the argument appears to be extremely attractive, on closer scrutiny if is not tenable.

The words used in s. 172 of the Abolition Act are "inherited an interest".

The statute has not defined the word "interest" and therefore it must be deemed to be of the widest possible amplitude. It will include not only an absolute interest but also a limited interest, a precarious interest and an inchoate interest or the like.

Section 48 of the Rent Act of 1886 before its amendment by Act 4 of 1921 stood as follows :

"48. (1) The heir of a tenant who dies during the currency of the tenancy of a holding shall be entitled to retain occupation of the holding at the rent payable by the deceased for the unexpired portion of the period for which the deceased tenant might have held without liability to enhancement or ejectment, and to receive compensation under the provisions of this Act for improvements, if any, made on the holding by himself or his predecessor in interest, but shall not be entitled to a renewal of the tenancy. x x x x ..

The expressions "heir of a tenant" and "shall be entitled to retain occupation" clearly postulate that the right to retain the occupation of

' j

the lands in dispute is given only to the heirs of the deceased tenant which clearly indicates that the person who retains occupation would inherit or succeed to a limited right which the deceased tenant possessed under the Act.

In the instant case since Smt. Menda continued to retain occupation of the lands on the death of her husband, she did so only as the heir of her husband and not otherwise, for if that was not

so then she could not have been entitled to retain occupation.

The word "entitled'' clearly signifies that the occupant must have some right, however precarious or limited it may be. In these circumstances, therefore, there can be no doubt that Smt. Menda's occupation of the tenancy on the death of Ramadhin was by way of inheritance only.

There was no other method by which she could have a right or claim to retain occupation of the holding.

It is true that the interest of Smt.

Menda was a very limited one and she could have been ejected by the landlord under certain circumstances.

But section 48 of the Rent Act of 1886 undoubtedly conferred two important rights on the heir of the deceased tenant-(1) the right to retain occupation of the holding on the rent payable; and (2) to receive compensation for the improvemonts made.

In these circumstances, therefore, it cannot be said that the occupation of the lands by Smt. Menda on her husband's death was purely in her individual or independent capacity or that the possession of the lands amounted to her self-acquired property. Section 174 of the Abolition Act would naturally apply only to such cases where a widow does not inherit an interest from her husband but would include cases where the female tenant had an independent interest, nainely, an interest which she possessed in the holding as her self-acquired property, her stridhan or the like.

That is why s. 174 of the Abolition Act provides that it is the interest in any holding which devolves and not the holding.

Thus the language used in ss. 172 and 17 4 of the Abolition Act unmistakably brings forth the distinction of the two contingencies in which the two sections are to apply.

The Revenue Courts have also held as a fact that initially Smt. Menda had inherited the property from her husband but they have construed

the conferment of the various kinds of status on Smt. Menda after she had already inherited the property as amounting to her self-acquired property. It seems to us that the Revenue Courts were wrong in misconstruing the scope and ambit of the words "inherited an interest in any holding'' as mentioned in s. 172 of the Abolition Act.

Section 172-A of the Abolition Act was introduced by an amendment of the Act in 1954 which makes the position absolutely clear, by declaring that where a sirdar or adhivasi who had inherited any interest in any holding as a widow, it would be deemed to be an accession to the holding of the last male holder thereof.

We are, however, not at all concerned with s. 172-A of the Abolition Act, because Smt.

Menda had died two years before the amendment came into force and the question of succession to her estate would be governed by s. 172 or s. 17 4 of the Abolition Act.

In the Division Bench decision in Mst. Jaini's case (supra) the Allahabad High Court had taken the same view.

Malik, C.J ., speaking for the Court observed thus :

"Section 36 does not require that the tenancy as such should have been inherited by the widow.

All that it provides is that the widow should have inherited an interest in the holding.

The mere fact that she had to remain in possession for a further period of eight years liefore she could become the statutory tenant of the holding does not mean that she acquired no interest in the holding as a wiqow.

We fail to see how it could be said, in view of the language of s. 36, that her acquisition of statutory rights had nothing to do with the fact that she had inherited an interest in the holding as widow of Bhan.

Section 36 was thus clearly applicable."

The Division Bench also relied in the aforesaid case on an earlier unreported decision of a Single Judge of that Court in Sita! v. Suraj Din(I) where exactly the same view was taken as the one we have taken in tho instant case.

The observations of the learned Single Judge have been quoted by the Division Bench in the case referred to above thus:

"We can assume that she acquired on the passing of the new Act (Act 4 of 1921) a fresh statutory period and a renewal of the tenancy but that does not take away the origin of her title. . . . . . . . . . . . . . . It is only when a female tenant acquires tenancy rights which do not have tacir origin in inheritance that the case could be takeu out of the amb,. of s. 36 to be governed by s. 37."

It would he seen that in this case the husband of the appellant haJ died in 1916 as in the instant case and yet the Court held that it is really the origin of the title that has to be seen and if the tenanc;

rights had their origin in inheritance then ss. 36 & 37 would po1 apply.

For these reasons, therefore, we are satisfied that the origin o' the title of Smt. Menda Jay in inheritance of the estate of her husband however limited or precarious it may have been. This being the position, the succession to the estate of Smt. Menda would have to be governed by the provisions of s. 172 of the Abolition Act which ha:; applied the provisions of s. 171 regarding the order of succession.

In the order of succession given in s. 171 of the Abolition Act brother's son is a preferential heir. It might be mentioned here that by virtue of the amendment of the Abolition Act in 1954 the married daughter wa;

also introduced as an heir before brother's son. But thi' was not th<~ position prior to 1954 when the married daughter was completely e>- cluded from inheritance. It is also not disputed that Smt. Phoola was

(!) Second Appeal No. 421of1943 decided on 20-12-48.

---•

j ,.

' •

a married daughter on the death of Smt. Menda. In these circumstances, therefore, the holding held by Smt. Menda would devolve on Ramadhin's brother's son, namely, Jit and thereafter on his heir who is now continuing the present proceedings.

Thus the Tahsildar Maharajgunj was fully justified in mutating the name of Jit in respect of the lands in dispute instead of Smt. Phoola.

The Rvenue Courts as also the Division Bench of the High Court had taken a legally erroneous view in holding that the mode of succession would be governed by s. 17 4 of the Abolition Act as the interest left by Smt. Menda was her self-acquired property.

The result is that the appeal is allowed, the judgment of the Division Bench is set aside and that of the learned Single Judge is hereby restored. In the peculiar circumstances of this case, and particularly having regard to the fact that the respondents have not appeared to. c contest the appeal before this Court, we make no order as to costs in this Court.

P.B.R.

Appeal allowed.

RAM JIVAN

PHOOLA (DEAD) BY LRS. & ORS

January 30, 1976

R. S. SARKARIA

S. MURTAZA FAZAL ALI

Land Refornis Act, 1950

Sections 172 and 174

s. 172

s. 171

Section 174

Oudh Land Act, 1886

Section 29

Tenancy Act, 1939

Land Reforms Act

s. 21

Abolition Act 1950

Consolidation of Holdings Act

Section 172A

s. 172

s. 174

s. 172

s. 174

Section 172

s. 172

Section 174

s. 174

Ss. 172 and 174

s. 172

s. 171

s. 172

s. 171

s. 48

Rent Act 1886

J. P. Goyal

A. G. Ratnaparkhi

G. N. Dikshit

M. V. Goswami

FAzAL A

ss. 172 and 174

Bishunpur

Rae Bareli

U.P.

Harbans

Gurdin

Ramcharan

Ramadhin

Ramcharan

Menda

Phoola

Jit

Ram Jivan @ Lallu

Oudh Rent Act, 1886

Menda

Oudh

Meanwhile five years later the Rent Act

section 37

section 48

section 48

section 48

section 48

ss. 36 and 37

Section 36

s. 36

s. 37

s. 36

s. 3

s. 36

Section 48

section 62A

section 22

Mendir

s. 48

s. 48

June 4, 1926

Tenancy Act, 1939

December 16, 1939

Agra Tenancy Act, 1926

Oudh Rent Act, 1886

Section 29

s. 29(a)

section 4

Faza[ Ali

s. 29

Sections 36 and 37

Section 36

section 34

section 45

section 35

Section 37

section 34

section 36

s. 36

s. 37

s. 36

s. 37

Tenancy Act, 1939

July 1, 1952

s. 18

Sections 10, 15, 16 and 17

Avadh

s. 172

s. 174

Sections 172 and 17

Section 171

Section 171

Maharajgunj

July 30, 1954

Phoola

s. 209

s. 4

s. 10(1)

Consolidation of Holdings Act

Phoula

December 26, 1961

Consolidation of Holdings Act

s. 171

Jit

Allahabad High Court

December 21, 1962

August 6, 1965

J. P. Goyal

s. 172

s. 171

s. 172

Dikshit

Phoola

Misra

section 36

section 172

section 171

Zamindari Abolition Act

s. 172

s. 171

Section 172

s. 171

s. 172

s. 172

s. 174

U.P. Legislature

Dikshit that under the Rent Act

s. 172

Section 48

section 48

Section 174

s. 174

ss. 172 and 17

s. 172

Section 172

s. 172

s. 172

s. 17

Jaini

Malik

Section 36

s. 36

Bhan

Section 36

s. 36

s. 37

ss. 36 & 37

Menda Jay

s. 172

s. 171

s. 171

s. 17


ABDUL KARIM v.

M. K. PRAKASH AND ORS.

January 30, 1976

fM. H. BEG, P. N. BHAGWATI AND R. S. SARKARIA, JJ.]

Contempt of Court's Act 1971-Sec. 2(c)-Standard of proof for Criminal contempt-Contempt by a iudicial officer-Assumption-If should be wilful of jurisdiction erroneously or passing a wrong order.

The appellants in Criminal Appeals 195 and 196 are the owner and Manager of a timber depot respectively (hereinafter referred to as appellants).

Appellants complained to the Police that Respondent No. 1 had collected a large number of persons with deadly \.veapons and that the sheds constructed by the appellants were attacked and that there was apprehe_nsion that the shed would be demolished.

The Police seized thedisputed timber.

The appellants made an application praying that the seized logs may be handed over to them.

Respondent No. 1 also made an application claiming the timber to be his property.

After perusing the Police Report and bearing the counsel for the claimants, the Magistrate directed the Forest Range Officer to keep the timber in his custody pending the further investigation by the Police.

Respondent No. l filed a Revision in the High Court against the said order of the Magistrate.

The High Court did not grant stay of the order of the Magistrate.

The High Court, however, observed that as the rainy season was approaching it 'vas necessary that the timber should be removed from the place as early as possible.

Thereafter, the Police Officer submitted the final report stating that the earlier Police report was biased and that thi appellants were the owners of the disputed timber and that the timber might be relensed to them.

On that the Magistrate passed an order directing that the timber should be returned to the appellants.

The Magistrate also issued a letter to the Forest Range Officer directing him to hand over the seized timber to the appellants, urgently.

Respondent No. 1 filed a contempt petition in the High Court against the appellants, as well as against the appellant in Appeal No. 118 of 1971, the Magistrate.

The charge against the Magistrate was that he passed the second order without giving notice to respondent No. 1 and directed the Forest Range Officer to release the timber urgently and thereby defeated whatever order the High Court might have finally passed in revision and that he permitted process of the court to be abused and that he impeded the course of justice. The Magistrate filed his affidavit and stated that the High Court had not stayed his order and that he ordered the delivery of the disputed timber in the bona fide discharge of his official duty after accepting in good faith the final report made by the Police in which it was indicated that its notice had been given to the complainant and a copy of such notice was also enclosed.

The High Court did not find the appellants guilty of contempt. The High Court, however, found the Magistrate guilty of 'Criminal contempt' on the fol- G lowing grounds :

1. The case between the parties had gained notoriety in the State and attracted a good deal of public attention.

2. The certified copy of the order was taken only by appellant No. 1, and since the case was not posted in the open court, appellant No. 1 must have shown the order to the Magistrate at a place other than the open court.

3. The Magistrate passed the order in spite of the fact that he was aware that the revision application was pending in the High Court which was seized of the matter of determining the question of the custody of the timber.

- •

ABDUL KARIM V. M. K. PRAKASH 277

4. The Magistrate did not give notice to the other side before passing the order. The procedure adopted by the Magistrate in writing the letter to the Forest Range Officer asking him to release the timber urgently is very strange and reveals an anxiety on the part of the Magistrate t~ help the appellants.

The urgency can only be to circumvent any poss1~ ble orders of stay that might be passed by the High Court.

In appeal filed by the Magistrate.

HELD: (!) Section 2(c) of the Contempt of Courts Act 1971 codifies the definition of criminal contempt which had previously been crystalized by judicial decisions.

The broad test to be applied in such cases is whether the act com~ plained of \Vas calculated to obstruct or had an intrinsic tendency to interfere with the course of justice and the due administration of law.

The standard of proof required to establish a charge of criminal contempt is the same as in any other criminal proceeding. It is all the more necessary to insist on strict proof of such charge when the act or omission complained of is committed by the respondent under colour of his office as a Judicial Officer.

Wrong order or usurpation of jurisdiction by a Judicial Officer owing to an error of judgment or to a misapprehension of the legal position, docs not fall within the mischief of 'criminal contempt'. Human judgment is fallible and a judicial officer is no exception. Consequently, so long as a Judicial Officer in the discharge of his official duties acts in good faith and without any motive to defeat, obstruct or interfere with the due course of justice, the court \Vill not, as a rule, punish him for a criminal contempt. Even if it could be urged that mens rea as such is not an indispensable ingredient of the offence of contempt, the courts are loath to punish a contemner if the act or omission complained of was not wilful. [203B D-G] (Case of Debabrata Bandopadh_yay A.LR. 1969 S.C. 189, cited with approval.)

(2) The main ground which influenced the High Court was that the case had gained certain amount of notoriety. This was a very vague, indefinite and nebulous circumstance. In the instant case, the prejudice generated by this creeping circumstance has unmistakably vitiated the approach of the High Court.

[284 C-D]

(3) The explanation given by the Magistrate was at least sufficient to dispel the suspicion that the Magistrate while passing the order ¥.'as actuated by a motive to impede or obstruct or defeat the course of justice. It was immaterial as to who sho\ved the certified CODY of the order of the High Court to the Magistrate.

On reading the final report of the Police and the order of the HigC. Court the Magistrate might have honestly formed the opinion that there was no need to give the notice to the other party and that it was necessary to direct the Forest Officer to deliver the timber urgently to the appellants.

It is true that under the circumstances, the prudent course for the Magistrate would have been to postpone the making of any final order in regard to the delivery of the timber till the final disposal of the revision petition by the High Court.

It would have been also proper for him to have given opportunity of being heard to the other side before making any order. Nevertheless it was evident from the stark circumstances of the case, that in failing to do so, the Magistrate was not actuated by any improper motive ur deliberate design to impede, obstruct or interfere with the course of justice or to curcumvent or defeat the proceedings in the Revision pending before the High Court.

Consequently the penal action taken by the High Court was not justified.

[284 H,

285A, B, F, 286A-D] CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 118 of 1971.

From the Judgment and Order dated 15th October, 1970 of the Kerala High Court at Ernakulam in O.P. No. 4879 of 1969 and Criminal Appeals Nos. 195 and 196 of 1971.

Appeals by special leave from the jndgment and Order dated the 15th October, 1970 of the Kerala High Court at Ernakulam in 0.P.

No. 4879 of 1969.

A. S. Nambiar for the Appellant in Cr!. A.118/71.

Kunhiraman Menon and A. S. Nambiar for the Appellants in Crl.

A. Nos. 195 and 196 of 1971.

For the respondents in all the appeals : Nemo.

Ihe Judgment of 1he Court was delivered by-

SARKARIA, J_.-These three appeals arise out of a common judgment of the High Court of Kerala holding the appellants guilty of contempt of court.

S. Abdul Karim, the appellant in Criminal Appeal 118 of 1971. was, at the material time, a Munsif-Magistrate posted at Perambra.

He was Respondent No. 3 in the contempt petition filed in the High Court and will hereafter be referred to as R. 3.

A. P. Parukutty Mooppilamma and A. P. Achuthankutty Nair appellants in Cr. Appeal No. 195 of 1971 were respondents 1 and i in the original petition before the High Court, and will be hereafter be called R. 1 and R. 2. The appellant K. P. Ramaswami in Criminal Appeal No. 195 of 1971 was Respondent 4 before the High Court.

He will, for short, be called R. 4.

M. K. Prakash, Respondent No. 1 in all these appeals before us, was the petitioner in the contempt petition before the High Court. He will hereafter be called as 'P'.

The facts are these : R-1 is the owner of the Olathooki Ariyalakkan Malavaram in Kayanna Amsom which is managed for and on her behalf by her son,

R-2.

On March 28, 1969 R-1 presented a petition through R-2, to the Superintendent of Po.[icc, Kozhikode alleging that the accused persons (P and his men) were likely to trespass into the Olathilkki Arialakkan Malavaram to remove her timber.

It was alleged that 'P' had collected a large number of persons and equipped them with dangerous weapons, unlicensed guns. swords etc.; that the sheds constructed by the petitioner and occupied by l11s workers and watchmen were being attacked and there was an apprehension that P and his men would demolish the sheds. The Superintendent of Police appears to have forwarded this petition to the Police Station Kayanna where, on its basis, a case under ss. 143, 147 and 506, Penal Code was registered against 'P' and others.

The Sub-Inspector in-charge of the Police Station, went to the spot and took into possession the disputed timber comprising of 587 logs and entrusted the same on a kychet to two strangers. On April 22, 1969, R-1 made an application, Ex. P-3, before the Magistrate (R-3) praying that the seized logs be handed over to him.

Thereafter, 'P' also made an application to the Magistrate claiming the timber to be his property and prayed for delivery of its possession to him.

The Magistrate thereupon issued notice to the Police who made a report.

After hearing the Counsel of the rival claimants and perusing the police report (Ex. P-17) and other material, the Magistrate on April

28, 1969, passed an order, directing the Forest Range Officer to keep the logs in his custody pending further investigation by the Police.

Against this order 'P' filed Cr. Revision Petition No. 176 of 1969 m the High Court.

No interim order directing the Magistrate to stay further proceedings or defer further action regarding the delivery of the disputed timber was issued by the High Court.

While P's Revision applicafion was pending in the High Court, the Police Officer, R-4, after completing the investigation, obtained the opinion of the Assistant Public Prosecutor on September 20, 1969 and submitted a Final Report on September 24, 1969 to the Magistrate (R-3). The material part of this Final Report runs as under :

'"On 16-7-69 a petitiOn from the complainant was received alleging that the investigation conducted by my predecessor was one-sided and biased against him and he had produced certain documents to support his contention that the property belongs to him and which were not considered by my predecessor.

Based on this petition I continued the investigation and in the course of my investigation, I questioned the Divisional Forest Officer, Calicut and the Forest Range Officer, Knttiady. They stated that the permit issned to M. K. Prakash in Kalpaidiyan Thirumudiyan Malavaram was stayed by the Government and hence not operated upon till now.

They also stated that the 587 logs of timber seized by my predecessor we.I!' from Olathukku Arialakkan Malavaram in the possession and ownership of the mother of the complainant and those logs were cut by Smt. A. R.

Parukutty Amma's workmen and for which proceedings have been taken against them under the M.P.P.F. Act.

To the same effect the Range Officer Kuttiadv had fifed an affidavit before the High Court in O.P. 2045/69 filed by the accused in this case.

In the said O.P. the accused had questioned 1he validity of the Government Order allowing Smt. Paruk utty Amma to remove timber cut from the permitted and non-permitted area of Olakhukki Arialakkan Malavaram and the High Court had upheld the order of the Government and the complainant's mother was allowed to transport all timber cut from the Malavaram, both from the permitted and non-permitted area.

According to the Divisional Forest Officer there is no Malavaram known as Kalpaidiyan Thirumudivan Malavaram in Pilliperuvanna Amsom as per the Regi>tration Manual.

T also questioned the complainant and his workmen and thev stated that there was no trespass as such bv the accused or his henchmen. They did not enter the Malavaram, nor have they intimidated anv of them and as s11ch no offence has been made out. u/s 447 or 506 (1)

IPC.

Under the above circumsfances, it is clear that Shri M. K.

H Prakash accused in this case was not allowed to operate his permit and the 587 logs of timber seized by mv predecessor were cut by the complainant's mother and the same

belong to her.

These logs are now in the custody of the Range Officer, Kuttiady as per the order of the -Munsiff Magistrate Perarnbra and the same may be ordered to be released to the mother of the complainant and the case is referred as mistake of fact."

Upon this report the Magistrate (R-3) passed this order :

"Notice given Case referred as mistake of fact. Further action dropped. Return timber logs to complainant."

Sd/- M. M. 26-9-1969.

In pursuance of this order, the Magistrate issued a letter (Ex.

P-10) dated September 26, 196'!1, to the Forest !{unge Officer Kuttiady, directing him that 5 8 7 logs seized by the Ins.e_ector of Police, Quilandy, then in his custody, be urgently released to R-1 (the mother of the complainant).

In compliance with the order of the Magistrate, the Range Officer symbolically handed over the charge of the timber to R. 1.

On the preceding facts, 'P' on November 26, 1969, made a petition in the High Court complaining that R-1, R-2, R-3, R-4 and

R-5 (Sri P. K. Appa Nair, Advocate) had committed centempt of the High Court within the meaning of s. 3 of the Contempt of Court~

Act, 1952 and prayeol that the respondents be ;>Unisbed for committing that contempt. The High Court issued notice to R-1 to R-5 who filed affidavits in reply.

The Magistrate (R-3) stated that he had passed the order directing delivery of possession of the disputed t; mbcr to R-1 in the bona fide discharge of his official duty, after accepting in good faith, the final report made by the police in which it was indicated that its notice had been given to the complainant,___ and a copy of such notice was also enclosed.

He further averred : ·

"The purchase of the petitioner's rights by the l st Respondent referred to in the F.I.R. and Ex. P-3 petition was not denied by the petitioner. On the other hand, his counsel

durillg the hearing of Exts. P-3 and P-4 petitions had admitted the same even though he had a case that the petitioner was duped to sign the same and receive part of the consideration.

Under the circumstances, I had no reason to reject P-6 report, it was accepted in its entirety and final orilers were passed bona fide directing return of the logs to the complainant.

The criminal revision 176 of 1969 itself is only against Ext. R order directing entrustments of the loogs to the Forest Range Officer pending further investigation.

The order in revision that may be ultimately passed by the Hon'ble Court can have reference only to What should be done with the logs pendin.Q invcstigati, on.

The order in revision would not and cannot relate to the disposal of the logs after the completion of the investigation. It is therefore

wrong to suggest that the final order is calculated to overreach the possible orders in the pending Cr. Revision Petition." In his affidavit, the Magistrate emphasised that in Cr. Revision 176 of 1969, the High Court had not issued any interim order staying further proceedings.

R-1, R-2, R-4 and R-5, also, in their reply affidavits denied the allegations made against them by 'P' in the -contempt petition.

The Advocate-General assisted the High Court and filed a statement of facts on February 16, 1970.

After considering the replies, a memoranda of charges was drawn up against R-1 to R-5 on February 10, 1970. The material part of the charges served on R-3 ran as under :

"That you, on receipt of the final report, even without giving notice to the petitioner, not only passed an order on 26-9-69 on the final report directing the return of the timber logs to the complainant but also wrote a letter (copy of which is Ext. P-10) to the Forest Range Officer, Kuttiadi, directing him urgently to release the timber logs to the 1st respondent-thereby effectively defeating whatever oroer the Honourable High Court may finally pass in Criminal Revision Petition 176 of 1969 and Criminal Miscellaneous Petition 309/69, and that in consequences of your order the timber logs were actually handed over to the 1st respondent; That in so doing :

(a) you have acted unjustly, oppressively and irregularly in the execution of your duties, under colour of judicial proceedings, wholly unwarranted by law and procedure; ·

(b) you have also permitted the process of your court to be abused by the other respondents and thereby diverted the dne course of justice and

(c) you have also impeded the course of justice by defeating the final orders that are liable to be passed by the High Court in Criminal Revision Petition 176/69 and Cr. Misc. Petition 309/69; thereby committing gross contempt of the Honourable High Court, to which you are subordinate."

The Magistrate (R-3) submitted a further counter-affidavit denying the charges.

The High Court rejected the Magistrate's explanation and found him guilty of contempt on grounds which may be summarisid as below

(1) "The case between the Petitioner and the 1st and the second respondent had gained certain amount of notoriety not only in the area but also in the State".

Allegations were being made "that even the then Minister of Forests was unjustly favouring R-1 and

R-2.

The case before the Munsif!-Magistrate would naturally have attracted quite a good deal of public attention."

(2) R-3 permitted R-1 and R-2 to approach and influence him. This irifercnce was available from the circumstance that in his affidavit, R-3 has said that an order dated May 2, 1969, passed by the High Court in C.M.P. 5869/69 in O.P. 2405/o9 v1as 'rown to him and the certified copy of this order was obtained from the High Court only by R-1. The copy must therefore have been shown to the Magistrate by R-1 or her Advocate or by R-2 or his agents. ""This could not have been in the open court. There was no posting of the case to 26-4-1969".

(3) (a) R-3 was aware that Criminal Revision 176/69 and Cr. M.P. 309/69 against his earlier order, was pending in the Higli Court which was "seized of the matter of determining the question of custody of the timber. His explanation that he felt that ho "'" free to pass an order because only the qnestion of interim custody was involved in Cr. Rev. Petition No. 1 '76 of 1 969 .......... was puerile".

(3) (b) R-3 passed the order on the Final Report. directing the release of the logs, without caring to issue notice to the petitioner (P).

( 4) In the letter Ex. P-10, dated 26-9-1969, the Magistrate wrote to the Range Officer thai the logs should be released to R-1, urgently. "This is a very strange procedure, unhearil of, and reveals an anxiety on the part of the Munsif!-Magistrate to help R-1 and R-2.

The urgency can only be to. circumvent any possible orders of sfay that may be passed by (the High) Court".

We have heard R-1 and the Counsel for the other appellants.

R-1 has argued his case in person becanse, according to him he has no funds to engage a Connsel.

His submissions are straight and simple. He has reiterated what he had stated in his further affidavit filed in reply to the memorandum of charge in te High Court.

In sum, his defence is that in all the proceedings relating to the disposal of the disputed timber, including the making of the order dated- September 26, 1969, the issuing of the letter, Ex.-10, of the same date, and in failing to issue notice to 'P', he acted in the bona fide discharge of his duties; that even if what be did or omitfed, was wrot1g, it was no more than an honest error of judgment on his part.

In particular, it is submitted that Ground No. 1 ( 1) is not based on any cogent or legal evidence but on mere rumours and hearsay and

~BDUL KARIM v. M. IC PRAKASH (Sarkaria, I.) 283

it is too vague and general; that even so, it was not incorporated in the charges against him. It is further maintained that the inferences of ulterior motives on the part of the appellant vide Grounds (2) and ( 4) drawn by the High Coiirt were wholly unjustllied.

It is contended that the approach of !lie High Court, is n©t in consonance with the Jaw laid down by this Court in Debabrata Bandopadhyay and ors.

v. State of West Bengal and anr.( 1) Before dealing with the contentions canvassed by the appellant, it will be useful to recall the law on the point.

Clause (c) of s. 2 of the Contempt of Court Act, I\)71 merely codifies the definition of "criminal contempt" which had previously been crystalised by judicial decisions. It defines 'criminal contempt' to man publication of any matter, or the doing of any other act which-

"(i) scandalises or tends to scandalise, ur lowers or tends to lower the authority of any court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings;

(iii) interferes or tends to interfere, or obstructs or tends D to obstruct, the administration of justice in any other mannei." The broad test to be applied in such cases is, whether the act complained of was calculated to obstruct or had an intrinsic tendency to interfere with the course of justice and the due adn1inistration of law.

The standard of proof required to establish a charge of 'criminal contempt' is the same as in any other criminal proceeding. It is all the more necessary to insist upon. strict proof of such charge when the act or omission complained of is committed by the respondent under colour of his office as a judicial officer. Wrong order or even an act of usurpation of jurisdiction committed by a judicial Officer, owing to an error of judgment or to a misapprehension of the correct legal position, does not fall within the misc1iief of "criminal contempt".

Human judgment is fallible and a judicial Officer is no exception.

Consequently, so long as a judicial Officer in the discharge of his official duties, acts in good faith and without any motive to defeat, obstruct or interfere with the due course of justice, the courts will not, as a rule, punish him for a "criminal contempt".

Even if it could be urged that mens rea, as such, is not an indispensable ingredient of the offence of contempt, the courts are loath to punish a contemner, if the act or omission complained of, was not wilful.

In Debabrata Bandopadhyaya's case (supra), Hidayatullah speaking for the Court elucidated the position, thus :

"A question whether there is contempt of court or not is a serious one.

The court is both the accuser as well as the judge of the accusation. It behoves the court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising froni inveterate

(1) (A.T.R. 1969 S.C. !89.)

C.J.

practices in c_ourts and tribunals.

It is only when a clear case of contumcious conduct not explainable otherwise, arises jhat the contemner must be punished. It must be realised that our system of courts often resnlts in delay of one kind or another.

The remedy for "it is reform and punishment departmentally.

Punishment under the law of C<>lltempt is called for when the lapse is deliberate and is in disregard of one's duty and in defiance of authority. To take action in an unclear case is to make the law of contempt do dnty for other measures and is not to be encouraged."

The judgment of the High Court is to be tested in the light of the above enunciation.

The main ground, as already noticed, which greatly influenced the decision of the High Court, was that thiscase between the parties had gained a certain amount of notoriety and allegations were being openly made that the then Minister for Forests was out to favour R-1 and R-2 against 'P'.

This was a very vague, indefinite and nebulous circumstance which had no better status than any other general rumour, gossip or talk in the town.

Courts have to guard against cognizance of such rumours and general allegations as they prejudice an objective treatment and a fair determination of the problems before them. In the instant case, the prejudice generated by this creeping circumstance has unmistakably vitiated the approach of the High Court. It has hindered a correct appreciation of the submissions made by R-3 in reply to the charges. In his cou11ter-ffidavit R-3 stated

"In the final report filed by the 4th respondent which is marked in these proceedings as P-6, there is reference to an order passed by this Honourable Court allowing the 1st respondent to remove the cut timber.

The order aforesaid is the order dated 2-5-1969 in C.M.P. 5869/1969 in O.P. 2405/1969, wherein it is said that it is necessary that the timber should be removed from the place as early as possible.

A certified copy of this order was also shown to me and that was the reason why I wrote Ext. P-10 letter to release the cut logs without delay. The reason that promptea

me to pass the final orders are therefore (I) there was no stay of further proceedings pending Crl.R.P. 176/1969 (2) the Crl.R.P. itself related only to Ex.R. order for custody pending further investigation, and can have no reference t0 the ultimate result of investigation (3) it was admitted before me that the 1st respondent had purchased the alleged rights of the petitioner and part of the consideration was already paid, even though he had the case that the assig•-

ment is not valid, and ( 4) this Honourable Court had in C.M.P. 5869 /1969 aforesaid directed the speedy removal of the timber from the place by the 1st respondent." In ou.r .. opinion, the above reply given by the Magistrate was at least, sufficient to dispel the suspicion that in making _the order dated September 26, 1969, in regard to the delivery of the timber to R-1 he was actuated by a motive to impede or obstruct o~ defeat thecourse of justice.

The notoriety of the case looming large in their minds, the learned Judges of the High Court without due consideration rather hastily rejected the explanation of the Magistrate that he had directed (vide his letter Ex.P-10), urgent delivery of the timber to R-1 because on seeing the copy of the High Court's order, dated May 2, 1969, which was shown to him, he was of the opinion that such a course was indicated therein.

The point of substance was, whether such an order was made by the High Court and had been shown to the Magistrate before he made the order for urgent delivery of the timber. It was immaterial if certified copy of that order was shown to the Magistrate by R-1 or her Counsel or her agent.

Ex.R-1 is a certified copy of that order dated May 2, 1969 which was passed by the High Court in C.M.P. 5869/1969 in O.P. 2405/ 1969, M. K. Prakash v. R-1 to R-4, C.M.P. 5869/69 was a petition made by 'P' before the High Court praying that the operation of the order of the then Respondent 1 be stayed am! the other respondents, inclnding the Magistrate, be directed not to cause the removal of the felled trees pending disposal of the original petition.

After hearing arguments of the Counsel for the parties, the High Court made an order, the material part of which reads as under :

"As the rainy season is fast approaching it is necessary that the timber should be removed from the place as early as possible.

Otherwise, the same would be lost to all concerned. It is seen from the counter affidavit of the 4th respondent that she had already given an undertaking to the Government to pay the compounding fee, if any that may be fixed by the Forest Authorities.

In the circumtanccs it appears to be only just to vacate the order of interim injunction passed on this petition.

Accordingly the order of interim injunction passed on this petition is vacated and this petition is dismissed but in the circumstances without costs.

On reading a copy of this order, and hearing the persuasive arguments of the party or her Counsel, the Magistrate might have honestly, albiet wrongly, formed the opinion that there was no need to give notice to the other party ('P') and that it was necessary to direct the Forest Officer to deliver the timber in question urgently to R-1.

We are therefore unable to agree with the High Court that by his letter Ex.P-10, the Magistrate directed urgent delivery of the logs to R-1 because "there was an anxiety on his part to help R-1 and R-2 and to circumvent any possible orders of stay that may be passed by the High Court". If the Magistrate had read the High Court's order, dated May 2, 1969, before making this order of urgent delivery and this fact has not been disputed then his explanation cannot be dubbed as wholly puerile".

Rather, the order dated May 2, 1969, whereby P's request for ad-interim stay or injunctio1' with regard to these logs was declined by the High Court, could have induced the Magistrate to go ahead with the making of the ex-parte final order in regard to the delivery of the logs to R-1.

3-L522SCI/76

It is true that the Magistrate was aware that P's criminal revision petition against his interim order, dated April 28, 1969, was then pending in the High Court. In such a situation, the prudent course for him was to postpone the making of any final order in regard to the delivery of this timber till the final disposal of the revision petition by the High Court. It would also have been proper for him to issue notice to 'P' and give an opportunity of being heard before making any order.

That would have been the ideal. But the point for consideration is whether the Magistrate deliberately did not follow this prudent course or whether he misdirected himself owing to an error of judgment.

The stark circumstances viz.-that the High Court had declined to issue any interim injunction or stay order in favour of 'P' in the criminal revision pending before it; that there was an observation in the High Court's order, dated May 2, 1969, stressing the need for speedy removal of the cut timber and the possibility of its being damaged by the in-coming rainy season; that he was labouring under the impression, though wrongly, that the order, dated April 28, 1969, was merely an interim order which had exhausted itself on the completion of the police investigation and the presentation of the Final Report by the police in which there was a positive finding that the timber belonged to R-1 and R-2 and they were entitled to its restoration-taken in their totality, go to show that in making the wrong order regarding delivery of the timber, the Magistrate was not actuated by any improper motive or deliberate design to thwart, impede, obstruct or interfere with the course of justice or to circumvent or defeat the proceedings in revision pendin!l before the High Court.

In the absence of any mens rea, the Magistrate had at the most committed only a technical contempt of the High Court, in such a case, as was pointed out by this Court in Debabrata Bandhopadhyay's case (supra), penal action was not called for.

We therefore allow R-3's appeal and set aside his conviction and sentence.

No conviction for contempt of court has been recorded against the appellants in the companion appeals by the High Court. All that we would observe in their (R-1 and R-2) case is that the High Court has made sweeping observations with regard to their civil rights, which might prejudice them in establishing their claims by a regular suit.

They shall therefore not be taken into account by any court before which the dispute with regard to this timber may come up for adjudication in due. course.

Similarly any adverse remarks made against the Police Officer (R-4) will not by themselves be taken conclusive as tQ his conduct in handling this case. Subject to these observations we dismiss Criminal Appeals Nos. 195 and 196 of 1971.

P.H.P Criminal appeal 118 of 1971 al/owed.

Criminal appeals 195 & 196 dismissed.

ABDUL KARIM

M. K. PRAKASH AND ORS

January 30, 1976

fM. H. BEG

P. N. BHAGWATI

R. S. SARKARIA, JJ.

Sec. 2(c)

Section 2(c)

Contempt of Courts Act 1971

A. S. Nambiar

Kunhiraman Menon

SARKARIA

High Court of Kerala

S. Abdul Karim

A. P. Parukutty Mooppilamma

A. P. Achuthankutty Nair

K. P. Ramaswami

M. K. Prakash

March 28, 1969

Police Station Kayanna

ss. 143, 147 and 506

Penal Code

April 22, 1969

April

28, 1969

September 20, 1969

September 24, 1969

Calicut

Knttiady

M. K. Prakash

Kalpaidiyan Thirumudiyan Malavaram

Olathukku Arialakkan Malavaram

A. R.

Parukutty Amma

Kuttiadv

Paruk utty Amma

Pilliperuvanna Amsom

s 447

IPC

M. K.

H Prakash

Quilandy

P. K. Appa Nair

s. 3

February 16, 1970

February 10, 1970

Kuttiadi

May 2, 1969

September 26, 1969

s. 2

Debabrata Bandopadhyaya

Hidayatullah

April 28, 1969

Debabrata Bandhopadhyay