NIRANJAN SINGH & ANR.

PRABHAKAR RAJARAM KHAROTE.& ORS.

Mqrch 10, 1980

(V. R. KRISHNA IYER AND A.P. SEN, JJ.]

Criminal Procedure Code 1973, Section 439(1) (ai)-Enlargement on bail- PerSOff to be accused of an offence and in custody-Wiren is a person in custndy.

Bait.--Orders on bail application-Detailed examination of evidence, elaborate documentation to be avoided.

Suspension-Police Officers-Serious charges framed by a criminal court- Placing such officers under suspension-Necessity of.

The petitioner was the complainant in a criminal case where the accused were two sub-inspeetorn and eight police constables (respondents l to 10). The case of the complainant was that in pursuance to a conspiracy his brother was way laid by a police party consisting of these respondent•. It was alleged that he was caught and removed from the truck in which he was travelling, tied with a rope to a tree and one of the sub-inspectors fired two shots from his revolver on the chest of the deceased at close range which killed him instantaneously.

Having perpetrated this villainy the policemen vanished from the scene. The respondents' version was that the victim was himself a criminal and was sought to be arrested.

An encounter ensued, both sides sustained injuries and the deceased succumbed to a firearm shot.

The State not having taken any action, the petitioner was constrained to file the private complaint.. The Magistrate who ordered an inquiry under section 202 Cr.P.C. took oral evidence of the witnesses and found that there was sufficient ground to proceed against all the respondents under sections

382, 341, 395 and 404 read with section 34 IPC.

Non-bailable warrants were issued for production of the accused and the Magistr:ite who refused the bail I' litayed the issuance of the warrants.

The respondents moved the Sessions Court for bail which granted bail subject to certain directions and conditions.

Feeling aggrieved, the petitioner moved the High Court but it declined to interfere in revision but imposed additional conditions to ensure that the bail was not abused and the course of justice was not thwarted.

In the special leave petition, the petitioner contended that the respondents G could not be released on bail asi they were not in custody and being on bail they were abusing their freedom by threatening the petitioner.

lia.D : I. Cutody, in the context of section 439 Cr.P.C. is physical control or at least physical presence of the accnsed in court coupled with submission to the jurisdiction and orders of the court. He can be in cust<X1y not merely when the police arrests him., produces hin1 before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in juidic; ial

cns.tody when he surrenders before the court and submits to its directions.

HY F-GJ

2. A responsible Government, responsive to appearances of justice, would have placed police officers against whom serious charges had betn framed by a criminal c0urt, under suspension unless exceptional circumstances suggesting a conaary course exist A gesIDre of justice to courts of jU.sticc is the least that

a government owes to the governed. [20 H-21 A]

3. Detailed examination of the evidence and elaborate documentation of the B merits should be avoided while passing orders on bail applications.

No party should have the impression that his case has been prejudiced.

To be satisfied about a prin1a facie case is needed but it is not the same as an exhaustive exploration of the merits in the order itself. [18 CJ

4. Grant of bail is within the jurisdiction of the Sessions Judge but the court must not, in grave cases, gullibly dismiss the possibility of police-accused

.t C intimidating the witnesses with cavalier ease.

Intimidation by polictmen, when they are themselves accused of offences, is not an unknown phenomenon. [18 D-El

CRIMINAL APPELLATE JURISDICTION (Criminal) No. 393 of 1980.

Special Leave Petition

From the Judgment and Order dated 25-9-1979 of the Bombay High Court in Cr!. Appln. No. 607 of 1979.

Petitioner No. 1 in person.

P. R. Mridul, S. V. Deshpande and N. M. Ghatate for Respondents l to 11.

0. P. Rana and M. N. Shroff for Respondent No. 13.

The Order of the Court was delivered by

KRISHNA IYER, J. ''No one shall be subjected to torture or to ' cruel, inhuman or degrading treatment or punishment" is a part of the Universal Declaration of Human Rights. The content of Art. 21 of our Constitution, read in the light of Art. 19, is similarly elevating.

But romance about human rights and rhetoric about constitutional mandates lose credibility if, in practice, the protectors of law and minions of the State become engines of terror and panic people into fear. We are constrained to make these observations as our conscience is in consternation when we read the facts of the case which have given rise to the order challenged before us in this petition for special leave.

The petitioner, who has appeared in person is the complainant-in a criminal case where the accused are 2 Sub-Inspectors and 8 Constables attached to the City Police Station, Ahmeanagar. The charges against them, as di, dosed in the private complaint, are of murder and allied offences under ss. 302, 341, 395, 404 read with ss. 34 and !20B of the Penal Code. The blood-curdling plot disclosed in the complaint is

NIRAN.JAN SINGH v. P. R. KHAROTE (Krishr; a Iyer, J.) 17

that pursuant to a conspiracy the brother of the complainant was waylaid by the police party on August 27, 1978 as he was proceeding to Shirdi. He had with him some gold ornaments and cash. He was ca'ught and removed from the truck in which he was travelling, tied with a rope to a neem tree nearby, thus rendering him a motionless target to a macabre shooting. One of the Sub-lnspectors fired two shots from bis revolver on the chest of the deceased at close range and killed him instantaneously. The policemen, having perpetrated this villainy, vanished from the scene. No action was taken by the State

against the criminals. How could they, when the preservers of the peace and investigators of crime themselves become planned'executors Of murders? The victim's brother was an advocate and he filed a private complaint. The learned m,; gistrate ordered an inquiry under s. 202 Cr. P.C., took oral evidence of witnesses "t scme length and held: "Thus taking au overall survey of evidence produced before me, I am .of the opinion that there are sufficient grounds to proceed against all the accused for the offences undet es. 302, 323, 342; read with s. 34 I.P.C." Non-bailable warrants were issued for production of the accused and the magistrate who refused bail, stayed the issuance of the warrants although we are unable to find any provision to enable him to do so. The police-accused moved the sessions (conrt for bail and, in an elaborate order the sessions court granted bail subject to certain directions and conditions. The High Court, which was moved by the complainant for reversal of the~ order enlarging, the accused on bail, declined to interfere in revision but added additional conditions to ensure that the bail was not abused and the course of justice was not thwarted.

It is fair to state that the case in the complaint, verified under s. 202 Cr. P.C. to have some veracity, does not make us leap to a conclusion of guilt or refusal of bail. On the contrary, the accused policemen have a version that the victim was himself a criminal and was sought to be arrested. An encounter ensued, both sides sustained injuries and , the deceased succumbed to a firearm shot; even as some of the police party sustained revolver wounds but survived.

1 Maybe, the defence case, if reasonably true, may absolve them of the crime, although the story of encounters during arrest and unwitting injuries resulting in 'casualties, sometimes become a mask to hide easy liquidation of human life by heartless policemen when[some one allergic to Authority resists their vices. The police have the advantage that they prepared the preliminary record which may 'kill' the case against them. This dis- . . . ·(]meting syndrome of policemen committing crimes of killing and , m 1 king up perfect paperwork cases of innocent discharge of duty

should not be ruled out when courts examine rival versions. Indeed, we must emphasise that the trial judge shall not be influenced by what we have said and shall confine himself to the evidence in the case when adjudging the guilt of the accused. We were constrained to make the observations above because the Sessions !Judge, quite un warrantedly, discussed at prolix length the probabilities of police party's exculpatory case and held :

"So it is reasonable to hold that there was a scuflle and resistance offered by the victim AmarjeefSingh before shots were fired at his person by the accused No. !."

Detailed examination of the evidence and elaborate documenta- + tion of the merits should be avoided while passing orders on bail applications. No party should have the impression that his case has. been prejudiced. To be satisfied about a prima facie case is needed but it is not the same as an exhaustive exploration of the merits in, the order itself.

Grant of bail is within the jurisdiction of the Sessions Judge but the court must not, in grave cases, gullibly dismiss the possibility of police-accused intimidating the witnesses with cavalier ease. In our country, intimidation by policemen, when they are themselves accused . of offences, is not an unknown phenomenon and the judicial process .,_. will carry credibility with the community only if it views impartially and with commonsense the pros and cons, undeterred by the psychic 'pressure of police presnce as indictees.

Let us now get to grips with the two legal submissions made by the petitioner. The first jurisdictional hurdle in the grant of bail,.

argues the petitioner, is that the accused must fulfil the two conditions specified in s. 439 Cr. P.C. before they can seek bail justice. That: provision reads : ~

439. (l) A High Court or Court of Session may direct-

( a) that any person accu>ed of an offence, and in custody be released on bail, and if the offence is of the nature specified in rnb-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section:

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified.

Here the respondents were accused of offences but were not in> custody, argues the petitioner. So no bail, since this basic condition.

NIRANJAN SINGH v. P. R. KHAROTE (Krishna Iyer, !.) 19

of being in jail is not fulfilled. This submission has been rightly rejected by the courts below. We agree that, in our view, an outlaw cannot ask for the benefit of law and he who flees justice cannot claim justice. But here the position is different. The accused were not absconding but had appeared and surrendered before the Session~ Judge. Judicial jurisdiction arises only when persons are already in custody and seek the precess of the court to be enlarged. We agree that no person accused of an offence can move the court for bail under s. 439 Cr. P.C. unless he is in custody.

When is a person in custody, within the meaning of s. 439 Cr. P.C. ?

When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been nmanded by judicial order, or having offered himself to the court's jutisdiction and submitted to its orders by physical presence.

No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of s. 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into foqnal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose.

Custody, in the context of s. 439, (we are not, be it noted, dealing with anticipatory bail under s. 438) is physical control or a1 least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court.

He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he

surrrndus before the ccmt and submits to its directions. In, the present case, the police offic¢rs applied for bail before a Magistrate who refused bail and still the accused, without surrendering before the Magistrate, obtained an order for stay to move the Sessions Court.

This direction of the Magistrate was wholly irregular and maybe, l'nabled the accused persons lo circumvent the principle of s. 439 Cr.P.C.

We might have taken a serious view cf such a course, indifferent to

mandatory provisions by the subordinate magistracy but for the fact that in the present case the accused made up for it by surrender before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application. It could have refused bail and remanded the accused to custody, but, in the circumstances and for the reasons mentioned by it, exercised its jurisdiction in favour of grant of bail.

The High Court added to the conditions subject to which bail was to be granted and mentioned that the accused bad submitted to the custody of the court. We therefore, do not proceed to upset the order on this ground. Had the circumstances been different we would have demolished the order for bail. We may frankly state that had we been left to ourselves we might not have granted bail but sitting under Art. 136do not feel that we should interfere with a discretion exercised by the two courts below.

We are apprehensive that the accused being police officers should not abuse their freedom and emphasise that the Inspector General of Police of the State of Maharashtra will take particular care to take two steps. He should have a close watch on the functioning of the concerned police officers lest the rule of law be brought into discredit by officers of the law being allowed a larger liberty than other people especially because the allegations in the present case are grave and even if a fragment of it be true, does little credit to the police force.

It must be remembered that the allegations are that the deceased was dragged out of a truck to a secluded place later tied to a tree and shot and killed by the police officers concerned.

We hasten to make it clear that these are one-sided allegations and the accused have a counter-version of their own and we do not wish to make any implications for or against either version. The accused policemen are entitled to an unprejudiced trial without any bias against the 'uniformed' force which has difficult tasks to perform.

We conclude this order on a note of anguish. The complainant has been protesting against the State's bias and police threats. We must remember that a democratic state is the custodian of people's interests and not only police interests. Then how come this that the team of ten policemen against whom a magistrate after due enquiry found a case to be proceeded with and grave charges including for murder were framed continue on duty without so much as being suspended from service until disposal of the pending sessions trial? On

whose side is the State? The rule of law is not a one-way traffic and the authority of the State is not for the police and against the people.

A responsible Government responsive to appearances of justice, would

NIRANJAN SINGH v. P. R. ICHAROTE (Krishna Iyer, J.) 21

have placed police officers against whom serious charges had been A. framed by a criminal court under suspension unless exceptional circumstances suggesting a contrary course exist. After alla gesture of justice to courts of justice is the least that a government owes to the governed. We are confident that this. inadvertance will be made good and the State of Maharashtra will disprove by deed( Henry Clay's famous censure : Bo

"The arts of power and its minions are the same in all countries and in all ages. It marks its victim denounces it; and excites the public odium and the public [hatred to conceal its own abuses and encroachments."

The observations that we have made in the concluding portion of the order are of such moment, not merely to the State of Maharashtra but also to the other States in the country and to the Union of India, that we deem it necessary to direct that a copy of this judgment be sent to the Home Ministry in the Government of India for suitable sensitized measures to pre-empt recurrence of the error we have highlighted.

N.V.K.

NIRANJAN SINGH & ANR

PRABHAKAR RAJARAM KHAROTE.& ORS

V. R. KRISHNA IYER

A.P. SEN, JJ.

Criminal Procedure Code 1973

Section 439(1)

section 202

Cr.P.C

sections

382, 341, 395 and 404

section 34

IPC

section 439

Cr.P.C

P. R. Mridul

S. V. Deshpande

N. M. Ghatate

P. Rana

M. N. Shroff

KRISHNA IYER

Art. 21

Art. 19

City Police Station, Ahmeanagar

ss. 302, 341, 395, 404

ss. 34

Penal Code

August 27, 1978

Shirdi

s. 202

s. 34

I.P.C

s. 202

AmarjeefSingh before

s. 439

section 437

Krishna Iyer

s. 439

s. 439

s. 439

s. 439

s. 438

s. 439

Cr.P.C

Art. 136

State of Maharashtra

Krishna Iyer

State of Maharashtra

Henry Clay

Union of India

Government of India

N.V.K.


SUNIL KUMAR BANERJEE A v.

STATE OF WEST BENGAL AND ORS.

March 26, 1980

[V. R. KRISllNA IYER, R. S. PATHAK AND 0. CmNNAPPA REDDY, JJ.J B

Service matter-All India Services Discipline and Appeal Rules 1969- Consultation with Vigilance Commissioner, if vitiates the order-Enquiry Offi cer if combined the roles of prosecutor and judge-Reasonable opportunity, if )'- - denfrd.

The appellant \\'as a n1en1ber of the Indian Administrative Service. In an C enquiry under rulC 8 of the All India Services (Discipline and Appeal) Rules, 1969 against him the Commissioner for Departmental Enquiries, Vigilance Com. mission, West Bengal was appointed as the Enquiry Officer.

He held that certain charges framed against the appellant were proved, certain others were partly proved and one was considered to be a technical omission mther than a serious lar-; e.

The State Vigilance Commission expressed its view on the Enquiry Officer's Report. Thereafter, after consulting the Union Public Ser :0. vice Comn1ission, the State Government, which was the Disciplinary Authority, imposed on the appellant the punishment of reduction in rank from the stage of Rs. 2,750 p.m. to the stage of Rs. 2,500 p.m. with certain other consequences.

The appellant's writ petition was dismissed by a single Judge of the High Court and his appeal to the Division Bench was also dismissed.

-In appeal to this Court it was contended by the appellant that instead cf holding the enquiry under the All India Services Disciplinary Rules, 1969 it was held under the All India Services (Discipline and Appeal) Rules, 1955 which were repealed and that this caused prejudice to him; as required by rule 8 .(19) of the 1969 rules he v,.as not questioned with reference to the circumstances appearing against him which denied him that opportunity of explaining the circumstances which "eighed in the mind of the Enquiry Officer; the Govrnment should not have consulted the Vigilance Commis4 sioner \Vho had no statutory st..1.tus; though the ultimate finding was based on the report of the Vigilance Commission his report was not supplied to him; the Enquiry Officer combined in hin1self the role of prosecutor and judge and he \Vas denied a reasonable opportunity Of defending himself as important \vitness..::s were not called to enable hini to cross-examine them.

Dismissing the appeal,

HELD : 1. There is no substance in the contention that the 1955 ru!es and not 1969 rules were followed.

The charges framed against the _appellant as well as in the first show-cause notice, the reference was clearly tO the 1969 rules.

The appellant himself mentioned in one of his letters that the charges had been framed under 1969 rules. The enquiry report mentioned that the Enquiry Officer was appointed under the 1969 rules. [183 B-C].

2. The appellant was' not questioned by the Enquiry Officer under rule $(19) of the 1969 rules. The failure tO comply with this requirement did

A not vitiate the enquiry unless the delinquent officer was able to establish pre judice. [183 C-DJ

In the instant case the single judge as well as the Division Bench found that the appellant was in no way prejudiced by the failure to observe the requirement of rule 8(19). [183 G]

3. The provision incorporated in rule 8(19) is akin to section 342 of the Criminal Procedure Code of 1898 and section 313 of the Criminal Procedure Code of 1974.

It is now well-established that mere non 8 examination or defective examination under section 342 of the 1898 Code is not a ground for inter ference unl.ess prejudice is established. [183 E-Fl ·

K. C. Mathew v. The State of Travancore-Cochin, [1955] 2 S.C.R. 1057; Bibhutl Bhusan Das Gupta and Anr. v. State of West Bengal, [1969] 2 S.C.R. 104; referred to.

4. The appellant was not in the least prejudiced by the failure of the Enquiry Officer to question him in accordance with rule 8(19). He crossexamined the witnesses himself, submitted his defence in writing in great detail and argued the case himself at all stri.ges.

The appellant was fully alive to the allegations against him ond dealt Vvith all aspects of the allegations in his written defence.

[183 G-H, 184 A]

5. If the disciplinary authority arrived at its own conclusion on the material available to it, its findings and decision cannot be said to be tainted with any illegality merely because the disciplinary authority consulted the Vigilance Commission and obtained its views on the very same material. [184 D-E]

6. The findings which were cornn1unicated to the appellant were those of the disciplinary authority and it was \I/holly unnecessary for the disciplinary

uthority to furnish the appellant the copy of the report of the Vigilance Commissioner when the findings con1muniooted to the appellant were those of the disciplinary authority and not of the vigilance commission. [184 F-G]

7. From the circumstances that the Enquiry Officer considered the report of investigation with a view to find out if there was material for framing charges and prepared draft charges, it cannot possibly be said that when he was later appointed he constituted himself both as prosecutor and judge. There is nothing strange in the same Magistrate who finds prinia-facie case at an earlier stage trying the case, after framing charges. There is therefore ncy basis for the contention that the Enquiry Officer was prejudiced against the appellant and combiiled in himself the role of the prosecutor and judge. [185 A.

C-EJ

8. The appellant cross-examined the prosecution witnesses and also examine ed defence \Vitnesses.

Therafter when the matter v."1s posted for argument and was adjourned at least once at the instance of the appellant, the appele lant came forward with an application seeking permission to engage a lawyer.

The Enquiry Officer rejected the application noticing that it was made at a very late stage. The rules give a discretion to the Enquiry Officer to permit or not to permit n delinquent officer to be represented by a lawyer.

No prejudice has resulted by the denial of a lawyer. [185 E-Gl

9. A11 the necessary documents were called and there is nothing in the record to suggest that the appellant wanted any particular witness to be called and the request was turned down. The grievance of the appe11ant that if the

' ·~

) ~

officers who made the notings on the file in connection with some of the A. charges had been called, he would have been in a position to crossxamine them and elicit statements to substantiate his defence, has neither reasonabl"' basis nor force.

[186 B-0]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1277/1975.

Appeal by Special Leave from the Judgment and Order dated 8 19-9-1975 of the Calcutta High Court in Appeal No. 299/73.

S. N. Chaudhary for the Appellant.

Gobinda Mukhoty and G. S. Chatterjee for the Respondents.

The Judgment of the Court was delivered by.

CmNNAPPA REDDY, J.-The appellant, a member of the Indian Administrative Service, while working as Divisional Commissioner, Nprth Bengal, was served on May 2, 1970, with a memorandum of charges and was informed by another memorandum to which a list of documents and witnesses was attached, that it was proposed to hold an enquiry against him under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969, and that, if he so desired, the appellant could inspect the documents mentioned in the enclosed list. He was further informed that he should submit a written statement of defence within fourteen days from the date of completion of inspection. The appellant submitted his written statement of defence on June 9, 1970. On August 12, 1970 Shri

A. N. Mukherjee, Commissioner for Department Enquiries, Vigilance Commission, West Bengal, was appointed as Enql)iry Officer to enquire into the charges against the appellant. After completing the enquiry, the Enquiry Officer submitted a report giving his findings on the various charges. Charge Nos. 2 and 5 were held to be proved, charge Nos. 3 and 4 partly proved and charge No. 1 also proved but considered to be a technical omission rather than serious lapse. The Vigilance Commission which considered the Enquiry Officer's report, found that charge Nos. 1, 2, 3 and 5 were fully proved and charge No. 4 partly proved. On April 6, 1971, the disciplinary authority namely the Government of West Bengal issued a notice to the appellant informing him that, on a consideration of the report of the Enquiry Officer they had come to the conclusion tllat charges Nos. 1, 2, 3 and 5 were fully proved and that charge No. 4 was partly proved and calling upon the appellant to show cause why he should not be reduced in rank. The Union Public

Service Commission was then consulted and their advice obtained.

According to the Union Public Service Commission charg~ No. 3 bad not been proved while charge No. I was proved but was conc

'• E

SUPREMJJ COURT REPORTS

[1980] 3 SC.R,

sidered to be a technical irregularity and charge Nos. 2, 4 and 5 were partly proved.

Thereafter the Government of West Bengal came to the final conclusion that charge No. 3 had not been proved, charge No. 1 had been proved but was only a technical irregularity and charge Nos. 2, 4 and 5 were partly proved. On those findings the punishment which was imposed on the appellant was reduction 'from the stage of Rs. 2750/- per month to the stage of Rs. 2500/- per month in the scale of Rs. 2500/· 125/- 2750/- with effect from the date of issue of the order'. This was, however, not to be a bar to his earning increments from the stage of Rs. 2500/- from the date of reduction to the lower stage. Aggrieved by the order of the Government the appellan, t filed a Writ Petition iu the High Court of Calcutta. A learned Single Judge of the High Court went into the matter in great detail, almost as if he was hearing a regular . appeal, perhaps because one of the arguments urged before him was that there was no evidence to sustain any of the charges. The learned Single Judge found that charge Nos. 2, 3 and 5 were not provec\, charge No. 4 was partly proved, charge No. 1 was proved but was only a technical irregularity. He was, however, of the view that the punishment which was actually imposed on the appellant could be imposed in respect of charge No. 4 to the extent to which it was proved. He, therefore, dismissed the Writ Petition. On appeal under the Letters Patent a Division Bench of the Calcutta High Court came to the conclusion that charge No. 5 was proved, charge No. I was proved but was a technical irregularity and charge No. 2 was partly proved. There was a difference of opinion on ' the question whether charge No. 4 was proved. Both the learned Judges agreed in dismissing the appeal.

The appellant who argued the appeal in person raised several contentions. He contended that though the enquiry was to have been held under All India Services Disciplinary Rules 1969, it was i-n fact held under the All India Services (Discipline & Appeal) Rules, 1955, which had been repealed. He was thereby prejudiced and in particular he pointed out that he was not questioned with reference to the circumstances appearing against him as provided by sub rule 19 of rule 8 of the 1969 rules. He was thus denied an opportunity of explaining the circumstances which weighed in the mind of the Enquiry Officer. The appellant also contended that the Vigilance Commissioner had no statutory status and he should not have been consulted by the Government. He made a grievance of the circums tance that th~ report of the Vigilance Commissioner was not furnished to him though the ultimate findings of the Government were based on the report of the Vigilance Commissioner. He further

submitted that the Enquiry Officer was prejudiced against him and A that he combined in himself the role of both prosecutor and judge. ' + He further submitted that he was denied a reasonable opportunity of defending himself as important witnesses were not called so as to enable him to cross examine them though the notings made by them in the files were relied upon against him. Some of the additional documents sought by him were not also made available.

B He was also not permitted to engage a lawyer.

There is no substance in the contention of the appellant that the 1955 rules and not the 1969 rules were followed. As pointed out by the High Court, in the charges framed against the appellant and in the first show cause notice the reference was clearly to the C 1969 rules. I The appellant himself mentioned in one of his letters that the charges have been framed under the 1969 rules.

The enquiry report mentions that Shri Mukherji was appointed as an Enquiry Officer under the 1969 rules. It is, however, true that the appellant was not questioned by the Enquiry Officer under rule 8 (!'9) which provided as follows: D

"The enquirying authority may, after the member of the services closes his case and shall if the member of the service has not examined himself, generally question him on the circumstances appearing against him in the evidence" for the purpose of enabling the member of E the service to explain any circumstances appearing in the evidence against him".

It may be noticed straightaway that this provision is akin to sectlon 342 of the Criminal Procedure Code of 1898 and section 313 of the Criminal Procedure Code of 1974. It is now well established that mere non examination or defective examination under section 342 of the 1898 Code is not a ground for interference unless prejudice is established, vide, K.

C. Mathew

v. State of Travancore-Cochin (1), Bibhuti Bhusan Das Gupta & Anr. v.

State of West Bengal (2). We are similarly of the view that failure to coinply with the requirements of rule 8 (19) of the 1969 rules does not vitiate the enquiry unless the delinquent officer is able to establish prejudice. In this case the learned single Judge of the High Court as well as the learned Judges " of the Division Bench found that the appellant was in the way prejudiced by the failure to observe the requirement of rule 8 (19).

The appellant crossexamined the witnesses himself, submitted his defence in writing

(2) (1969] 2 S.C.R. 104

in great detail and argued the case himself at all stages. The appellant was fully alive to the allegations against him and dealt with all aspects of the allegation in his written.defence. We do not think that he was in the least prejudiced by the failure of the Enquiry Officer to question him in accordance with rule 8 (19).

We do not also think that the disciplinary authority committed any serious or material irregularity in consulting the Vigilance Commissioner, even assuming that it was so done. The conclusion of the disciplinary authority was not based on the advice tendered by the Vigilance Commissioner but was arrived at indepen• dently, on the basis of the charges, the relevant material placed before the Enquiry Officer in support of the charges, and the de fence of the delinquent officer. In fact the final conclusion of the disciplinary authority on the several charges are so mnch at variance with the opinion of the Vigilance Commissioner tbat it is impossible to say that the disciplinary authority's mind was in any manner influenced by the advice tendered by the Vigilance Commissioner. We think that if the disciplinary authority arrived at its own conclusion on tbe material available to it, its findings and decision cannot be said to be tainted with any illegality merely because the disciplinary authority consulted the Vigilance Commissioner and obtained his views on the vary same material. . One of the submissions of the appellant was that a copy of the report of the Vigilance Commissioner should have been made available to him when he was called upon to show cause why the punishment of reduction in.rank should not be imposed upon him. We do not see any justification for the insistant request made by the appellant to the disciplinary authority that the report of the Vigilance Commissioner should be made available to him. In the preliminary findings of the disciplinary authority which were CO!D municated to the appellant there was no reference to the views of the Vigilance Commissioner. The findings which were communkated to the appellant were those of the disciplinary authority and it was wholly unnecessary for the disciplinary authority to furnish the appellant with a copy of the report of the Vigilance Commissioner when the findings communicated to the appellant were those of the disciplinary authority and not of the Vigilance Commission. That the preliminary findings of the disciplinary authority happened to coincide with the viel'(s of the Vigilance Commission is neither here nor there.

We find no basis for the contention of the appellant that there was a reasonable apprehension in his mind that the Enquiry Olllcer

• .,. •

was prejudiced against him. Nor do we agree with the statement that e Enquiry Officer combined in himself the role of the pro~

secutor and the judge. It appears that when the preliminary report of investigation was considered by the Vigilance Commissioner with a view to recommend to the disciplinary authority whether a disciplinary proceeding should be instituted or not, the report of investigation wa£ referred by the Vigilance Commissioner to Shri A.N. Mukherji for his views and for the preparation of draft charges if institution of disciplinary proceedings was to be recommended.

Shri Mukherji expressed his opinion that there was material for framing five charges and he also prepared five draft charges and forwarded them to the. Vigilance Commissioner. The Vigilance Commissioner in turn forwarded the papers to the Government who finally decided to institute a disciplinary proceeding against the appellant. Thereafter Shri A. N.

Mukherji was appointed as Enquiry Officer. From the circumstance that Shri Mukherji considered the report of investigation with a view to find out if there was material for framing charges and prepared draft charges, it cannot possibly be said that Shri A. N. Mukherji, when he was later appointed as Enquiry Officer constituted himself both as prosecutor and judge. Anybody who is familiar with the working of criminal courts will atonce realise that there is nothing strange in the same Magistrate who finds a prima facie case and frames the charges, trying the case also. It cannot for a moment be argued that the Magistrate having found a prima facie case at an earlier stage and framed charges is incompetent to try the case, after framing charges.

This was one. of the circumstances on which the appellant relied to substantiate his allegation of apprehension of bias.

The other circumstances were that he did not permit the appellant to engage a lawyer and that he allowed the Presenting Officer to introduce extraneous matters. The rules give a discretion to the Enquiry Officer to permit or not to permit a delinquent Officer to be represented by a lawyer. In the present case the appellant cross-examined the prosecution witnesses and also examined defence witnesses.

Thereafter when the matter was posted for arguments and was adjourned atleast once at the instance of the appellant, the appellant came forward with an application seeking permission to engage a lawyer. The Enquiry Officer rejected the application noticing that it was made at a very belated stage. We think he was right m doing so. Nor is it possible for us to infer bias from the circumstance that the Enquiry Officer did not allow the appellant to engage a lawyer.

We may mention that the appellant who himself presented his case before us argued admirably and with such clarity

13-189 SC!/80

A and precision as would have done credit to the best of advocates.

We cannot conceive of any prejudice resulting to him by the denial of a lawyer. The other circumstance regarding extraneous matters being allowed to be brought in is also equally weightless and we need say nothing more about it.

There is also no substance in complaint of the appellant that necessary documents and witnesses were not called. All necessary documents were called and there is nothing in the record to suggest that the appellant wanted any particular witness to be called and the request was turned down. The grievance of the appellant is that if the Officers who made the notings ou the file in connection with some of the charges had been called, he would have been iu a position to cross examine them and elicit statements to substantiate his defence. We do not think that there is any reasonable basis in the record for such a submission. We find no force in any of thecontentions raised by the appellant and having given our earnest consideration to all the contentions raised by him we dismiss the appeal. but, in the circumstances of the case, without oosts.

The appellant made a complaint before us that his pension and other retirement benefits have not yet been finalised though it is quite a considerable time since he voluntarily retired from service.

Shri Mukhoti learned counsel for the State of West Bengal stated at the Bar that all steps would now be taken to finalise the matter.

We hope the Government will take immediate steps to redress forthwith this grievance of the appellant.

N.K.A.

Appeal di8misseti.

' ·~ •

SUNIL KUMAR BANERJEE

STATE OF WEST BENGAL AND ORS

March 26, 1980

V. R. KRISllNA IYER

R. S. PATHAK

0. CmNNAPPA REDDY, JJ

section 342

section 313

section 342

[1955] 2 S.C.R. 1057

[1969] 2 S.C.R. 104

Calcutta High Court

S. N. Chaudhary

Gobinda Mukhoty

G. S. Chatterjee

May 2, 1970

June 9, 1970

August 12, 1970

A. N. Mukherjee

April 6, 1971

Government of West Bengal

Union Public

Service Commission

Union Public Service Commission

High Court of Calcutta

Mukherji

section 313

section 342

(1969] 2 S.C.R. 104

A.N. Mukherji

A. N.

Mukherji

A. N. Mukherji

Mukhoti

State of West Bengal


• .,._

1 8 'l

THE PALACE ADMINISTRATION BOARD A v.

RAMA VERMA BHARATIIAN THAMPURAN & ORS.

March 27, 1980 [V. R. KRISHNA !YER, D. A. DESAI AND A. D. KosHAL, JJ.J

Review-when the Court would review its earlier judgment-earlier judq B ment clarified.

PER KRISHNA IYER AND DESAI JJ.

In a petition for review, once a clear error in the judgment is revealed no sen,!le of shame or infallibility complex absesses or dissuades this Court fiom the anxiety to be ultimately right, not consistently wrong. [189 HJ

Three points were raised for review of the earlier judgment.

!. The Kerala Joint Hindu Family System (Abolition) Act 1975 (Act 30 of 1976) governs the erstwhile ruling family of former Cochin State and observations of this Court giving a contrary in1pression may be modified.

2. -The observations of the Court that the Board is composed of the heads

or seniormost members of the four branches of the family is not wholly cor D rect.

3. The order of this Court dated 30th July, 1979 should not have the intent and effect .of nullifying the enormous amount of work and considerable steps taken by the Board so far for partitioning the properties of the family.

[193 A-CJ

1. (a) The second point arising out of three reliefs mentioned above was .an inconsCquential error which has crept in by oversight. The statement in the judgment that "the Board, being an old institution in plenary management since 1949 and wisely composed of the seniormost members of the four branches . ....... " \Vas not correct because the Board \Vas constituted by the Royal Proclamation of 1124 and continued by later Acts. [193 DJ

(b) The Cochin Maharaja had the power to nominate the five trustees p of the Board and there was no objection on him to choose the seniormost

embers of the Thavashies. What he had to comply with was the directh'e in section 4 to secure representation so far as possible for each of the four main Thavashies. It is sufficient if its composition secures fair representation so fer as possible for each of the four Thavashies of the family. The senior~ most need not necessarily be chosen. The Board which has been functioning all these decades is beyond legal cavil and has been rightly eonstituted. (193 G] G

2. (a) The first relief telescopes into the third. From the materials on record it is quite clear that the Board had done good and satisfactory work especially because competent engineers and valuers have been pressed into

sice. A retired judge of !he High Court has been playing the role of a mentor and a small committee of members has democratised and legitimated th.e process of partition by participation. There is no reason to sweep off the work of valuation done all these years. , The argument that the Board's labours shmtld be liquidated cannot be acceded to. The valuation the Board has carried out, the alienations it has effected Qnd provisional allotments it

A has made will be allowed to stand only subject to the obligation to hear objections and to take follow-up action. [196 CD]

' c

(b) It is not necessary to demolish the work done by the Board upto now. The Boards decision cannot be arbitrary. It bas to be reasonable and fair and for that purpose must comply with the opportunity for a hearing to every sharer. Group allotn1ent may be permissible provided the sharers composing the groups consent. Otherwise each member is entitled to a per capita share.· If the Board bad made group allotments it has to be justified by practical considerations and by acceptance by the members of the group concerned. The valuation made and the sales effected must be subject to the objections of those who have not had a say in the matter.

The draft partition deed, with necessary particulars regarding properties and their value shall be made available for the inspection of the various partiesfrom the office of the Board. The Boord will consider the objections and decide them on their merits.

Parties affected by such decision will be given

~ brief hearing by the Board. [196 H; 197 A-CJ

3. The 1976 Act leaves in tact, in large part, the proclamation as '\Ye11 as the 1961 Act. Section 7 of the 1976 Act expressly repeals the scheduled Acts. It also renders texts of Hindu law, customs and usages contrary to the provisions of the 1976 Act ineffective. The consequence of the omission of the Proclamation and the 1961 Act from the schedule is tbet they survive and co-exist with the 1976 Act. The definition of joint Hindu family is wide enough to include the Cochin royal family and prima-facie section 4(2) spells a division in status and substitutes a tenancy-in-common in the place of jointness vis a vis the Cochin royal family also. This consequences can be obviated only if there is something in section 7 which compels a contrary conclusion. The omission in the repealing section of 1961 Act by itself does not render inapplicable section 4(2) which creates the division in status.

It admits of no doubt that until Act 30 of 1976 was passed, there was no partition effected by any decision of the Meharaja persuant to the 1961 Act. Thus one of the joint Hindu families which subsisted at the time of the 1976 Act was the Cochin royal family and section 4(2) could

<lnd, therefore, did operate on it.

Nor is the rule of per capita division provided for in the 1976 Act contrary to the shares prescribed in the 1961 Act.

The survival of the 1961 Act. because of its onnss1on from the Schedule of the Ats. repealed has .one effec: and that is that the Boar~ alo~ has the power to d1v1de the properties. Section 3 of the 1961 Act provides for it and must prevail despite the 1976 Act in view of section 7 of the later Act read with the Schedule thereto. The non-repeal of the 196{ Act also leads to the conclusion that child in the lVomb is entitled to a she.re, whatever the meaning of section 4(2) of the 1976 Act may be. Thus a closeup view of the statutory scene vis-a-vis the Cochin royal family, it is clear that in 1976, the family was divided in statuts with shares for every member including the per capita share for fl child in the womb and such partition is to be worked out by metes and bounds only by the Board and not by the Civil Court. [200 B-G]

Kesha!, J. (concurring in the final result)

The proclamation coupled with the 1961 Act constituted an exception to the provisions of the 1976 Act which otherwise applied to all joint Hindu families.

• -<(

PALACE ADMN. BOARD v. RAMA VERMA (Krishna Iyer, 1.) 189

Under the proclamation 1124, the Cochin royal family was impartible. The concept of partition in relation to it was for the first time introduced by the

1961 Act subject to three conditions mentioned in section 3 of the Act. All the three conditions had to be satisfied before the Estate could be considered partible and till it acquired that character the Proclamation remained in full force. The 1976 Act did not make the slightest difference to the position prevailing till that Act into force. Neither the Proclamation nor the 1961 Act was repealed by the 1976 Act and, therefore, tbey continued to co-exist with the 1976 Act. Inview of the provisions of_ section 3 of the 1961 Act which were left in tact by the 1976 Act the Estate could become partible only if all the three conditions specified in section 3 of 1961 Act were fulfilled. The result is that when the 1976 Act was enforced in its original form the Estate continued to be impartible and, therefore, there was no question of section 4(2) of that Act being applicable to it. [203 H-204 A-Gl

After the promulgation of the 1978 Act the Proclamation has to govern the Cochin royal family subject to section 3 of the 196 l Act as mended

by the 1978 Act which would fully apply to that family notwithstanding anything contained in the 1978 Act or any other law for the time being in force.

Finality haS thus been given to the provisions of that section which states that the partition is to be made "among all the members entitled to a share of the

Estate, and the. Palace Fund under section 4 of the Kerala Joint Hindu D Family System (Abolition) Act 1975 (30 of 1976.)" Section 4 of the 1976 Act is thus made specifically applicable to the Cochin royal family by reason of the amendment of section 3 of the 1961 Act by the 1978 Act. If this be so the crucial date for determining the number and identity of the members of the family entitled to a share of the Estate and the Palace Fund would be 1st of December, 1976, that is, the date on which the 1976 Act came into force. [206 D-El IC

CIVIL APPELLATE JURISDICTION : Review Petition No. 150/1979.

Review of this Court's Order dated 30-7-1979 in SLP (Civil) No. 5863 of 1979.

T. S. Krishnamoorthy, Vishnu Bahadur Saharya and Sardar 'Ji..._ Bahadur Saharya for the Appellant.

P. Govindan Nair and N. Sudhakaran for the Respondents.

The Order of V.R. Krishna Iyer, J. and D.A. Desai, J. was delivered by Krishna Iyer, J. Koshal, J. gave a concurring Opinion.

KR1sHNA IYER, J.-Horace wrote : "But if Homer, who is good nods for a moment, I think it a shame". We, in the Supreme Court do 'nod' despite great care to be correct, and once a clear error in our judgment is revealed, no sense of shame or infallibility complex obsesses us or dissuades this Court from] the anxiety to be ultimately right, not consistantly wrong. The present petition for review is one such and we have listened, at unusual length, to

counsel's oral submissions, having felt that an error in the judgment under review, likely to injure and unsettle, needed to be mended.

We may narrate, very briefly, the necesrnry facts and catena of statutes so that the flaw may be identified and rectified. The subject-matter is the partition of the assets of the erstwhile royaf family of the Maharajah of Cochin, if we may avoid the jaw-breaking description used in :one of the relevant legislations viz.

The Valiamma Thampuran Kovi/akam Estate and Palace Fund belonging to the.family of the Maharajah of Cochin. A capsulated survey of the landmark legislations will help locate the controversy and liquidate the error, if any. This family, to begin with, was impartible and its administration was statutorised by a Royal Proclamation of 1124 (hereinafter called the Proclamation) which constituted a Board in this behalf consisting of five trustees to be nominated by the Maharajah with an equitable eye on representation for each branch (tavazhi) of the family. Sec. 2 (a) read with Sec. 4 of the Proclamation defines the Board's composition which shows a slight oversight on our part in the earlier order. And thereafter, came the Great Divide in the story of the royal family and began. its slow integration into the commonalty, retaining in some measure,. its peculiar individuality. By Act 16 of 1961 (The Valiamma Thampuran Kovilakam Estate and, Palace Fund (Partition) Act, 1961 {for short the 1961 Act) impartibility was abolished conditionally, as it were. Sec. 3 therein laid down :

3. (1) Notwithstanding anything contained in Section 22 of the Proclamation, if a request in writing is made by the majority of the major members and the Maharajah of Cochin is satisfied that in the interests of the family it would be desirable to partition the Estate and the Palace Fund, among all the members he may declare his ~. decision to effect a partition under his supervision and control, and direct the Board to proceed with the partition.

(2) The decision of the Maharaja of Cochin under sub-section

(1) shall be published by the Board in the Gazette in English and I Malayalam, and a copy of the notifiction shall be affixed in consicuous place at the office of the Board. "'--'-- Of course, partibility nflcctcd the spirit of the times both in Kerala -and in the Hindu fold of India and royalty lost its regalia, including the privy purse, with the enactment of the Constitution (26th fAmeJidment) Act. Even though royalty had become fossilised and Maharaja's family had become partible the latter retained its. legislative_ [distinctiveness in important features, because of its uni-

• '

PALACE ADMN. BOARD v. RAMA VERMA (Krishna Iyer, J.) 191

que history, unwieldy membership and statutory singularity since

1949. The legislature took pragmatic note of these legitimate factors while enacting Act 16 of 1961. Thus partibility was not automatic but dependent on the Maharaja's decision. The division was not to be affected by the civil courts as in ordinary cases but by Board only.

The structure and identity of the Board created under the earlier Proclamation was preserved even for the purpose of effecting partition of the family assets. Once the majority's request was made and the Maharaja was satisfied about the desirability of partitioning the Estate and the Palace Fund, the process of partitioning was the responsibility of the Board, although under the supervision and control of the Maharaja himself. A ticklish question, which is one of the aspects involved in the pre, ei:t review petitic.n, turns on the division among the members and, more particularly, the fixation of shares, depending, as it does, on the number of members. This , number, in turn, is determined by the date of division in status of the family, Section 3 of the 1961 Act makes partition contingent on the Maharaja's declaration of his decision to effect a partition.

Once he declares his decision, there is, eo instanti a division in status. Thereafter, s. 4 of Act.16.of 1961 operates. That Section states:

4. Share of Members (!) Each member shall be entitled to an equal share of the Estate and the Palace Fund.

(2) The share obtained by a member on partition shall be the separate property of the member.

(3) A child who is in the womb on the date of the publication of the decision under Section 3 and who is subsequently born alive shall have the some right for a share in the Estate and Palace Fund as any other member as if he or she had been born on or before the date of such publication.

We may state even here that the Maharaja never made the statutory declaration under Sec. 3 and so no division in status took

place. The next statutory milestone which has relevance to our G legal journey is the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976) (for short 1976 Act). By this measure, the joint family system among Hindus in the state of Kerala was extinguished. All Marumakkathayam families were embraced by the Act and the right by birth in ancestral properties was also put an end to. By force of s. 4 of that Act, joint family ownership B was converted into tenancy-in-common as if partition had taken place among all the members. We may read s. 4 (2) at this point.

All members of a joint Hindu family, other than an undivided Hindu family referred to in sub-section (1) holding any joint family property on the day this act comes into force, shall, with effect from that day be deemed to hold it as tenants in common, as if a pal'tition of such property per capita had taken place among all the members of the family Jiving on the day aforesaid, whether such members were entitled to claim such partition or not under the law applicable to them, and as if each one of the members is holding his or her share separately as full owner thereof.

The emphasis, from the point of view of the date of transformation into tenancy-in-common, is on the date of coming into force of Act 30 of 1976. From that date (1-12-76) onwards a !division in status and a quantification of shares per capita must be deemed to have occurred.

Section 7 of this Act repeals certain enactments mentioned in the schedule thereto; but what is of significance in that schedule is that the Proclamation of 1124 and Act 16 of 1961 (which are measures specially devoted to Cochin Royal Family) are not repealed. What the impact of this omission is, is a subject of debate between the parties and we will come presently to it.

We then move on to ordinance 1 of 1978 promulgated on 6-1-1978 which was replaced duly by Act 15 of 1978, published in the Gazette on 19-3-78.

This Act (The Valiamma Thampuran Kovilakam Estate and the Palace Fund (Partition) and the Kerala Joint Family System Abolition) (Amendment Act, 1978),, is an amendatory adventure affecting vitally the partitioning of the Cochin Royal Family. The implications of the provisions of this legislation constitute the subject matter of the review petition on which the parties bitterly join issue.

It cannot be denied that partition by metes and bounds of the Cochin Royal Family properties is a stupendous effort, a timeconsuming task and an operation involving legal know-how, valuers' •kills and adjudicatory steps. We must remember that the assets are immense and varied even as the members are numerous, being well over 700 in strength. Each member being entitled to a share, the partition is sure to be complicated and if in the shortrun of a human life the partition is to be completed and the properties are to be enjoyed by the shares, innovative strategies of speedy justice must be resorted to. On this basis we have to appreciate the grounds raised for review by the petitioner herein who had substantially succeeded in the first round when we pronounced a lengthy order on the special leave petition.

• ' ,._

PALACE ADMN. BOARD v. RAMA VERMA (Krishna Iyer, !.) 193

The review sought revolves round three points:

(1) The Kerala Joint Hindu Family System. (Abolition) Act, 1975 (Act 30 of 1976) governs the erstwhile ruling family of former Cochin State and observations of this Court giving a contrary impression may be suitably modified:

(2) The observation of the Court that the Board is composed -0f the heads or senior most members of the 4 branches of the family is not wholly correct.

(3) The Order of this Court dated 30-7-1979 should not have the intent and effect of nullifying the enormous amount of work and considerable steps taken by the Board so far for partitioning the properties of the family.

The 2nd point may readily be conceded as it is an inconsequential error which has crept in by oversight which may be corrected

traightway. It is true that in the judgment earlier delivered in this case, it has been stated in passing that "the Board, being an old institution in plenary management since 1949 and wisely composed of the rseniormost members of the 4 branches .. .... "Strictly

speaking, this is not correct because the Board was constituted by the Royal Proclamation of 1124 and continued by later Acts.

Section 2 (a) of the Proclamation states that the '"Board" means the Board of Trustees appointed under Sec. 3 of this Proclamation.

Section 4 defines the composition of the Board and reads thus:

The Board shall 'consist of five Trustee' who shall be nominated by us from among the male members of our family so as to secure representation as far as possible for each of the four main thavashies of our family. One

of the Trustees shall be appointed as the President of the Board by us.

It follows that the Cochin Maharaja had the power to nominate the five trustees of the Board and there was no objection on him to choose the seniormost members of the thavashies. What he had to

comply with was the directive in sec. 4 to secure representation G as far as possible for each of the four main thavashies. We regret the mistake in this detail although so far as the judgment was concerned it made little difference in the reasoning or the result.

Even so, when cantankerous persons seek to read this court's judgment with scriptural regard, mischief may follow. The petitioner in his review petition states that some member of the family has H gone to court with a suit (O.S. 391 of 1976) and has issued a notice dated September 19, 1979 wherein he has challenged the validity

of the Board on the score that it did not consist of the seniormost members of the four thavashies as required by the judgment of this court. It is sufficient if its composition secures fair representation as far as possible for each of the four thavashies of the family. The seniormost need not necessarily be chosen. The Board, which, has been functioning all these decades, is beyond legal cavil and has been rightly constituted. We regret the pecadil!o and are surprised at the tendency to impugn the Board's doings on the unexpected score of illegal composition.

Even the 3rd relief, although hotly contested by Shri Govindan• Nair for the opposite party, cannot be wholly refused.

The grievance of the Palace Administration Board is that by virtue of the judgment of this Court and some observations contained therein the valuable, enormous and irreplaceable volume of work turned out over the years stands nullified. Were this consequence true, the consternation of Board might well be justified.

If the basis. for the nullification of the Board's work is the invalidity of the composition of the Board, there is no need for apprehension becanse we have already clarified the position. The Board was rightly constituted and validly continues. The grievance of the Board isdifferent and is based upon its plea that, not being a party to the special leave petition, it should not be hit adversely without being heard adequately.

Indeed, it is for this reason that we have afforded a full length hearing. Actus curiae nomihem gravabit is a wliolesome admonition to the court itself.

There are two substantial controversies implied in the third: relief. In essence, the first relief telescopes into the third and may well be considered in a composite manner.

A partition by metes and bounds becomes possible only if the number of sharers is clearly settled. The first point over which the parties have fought before us in this review proceeding relates to the number of sharers which, in turn, follows from the date of divisiorr in status. The Board has proceeded on the basis that Act 30 of 1976 has brought about a division in status as on 1-12-1976 If that point of time were legally sustainable, there were 719 members in the family, each being entitled to one share. The rival contention put forwara by the oppo8ite parties is that the division in status took place much later when Ordinance 1 of 1978 was promulgated i.e. on 6-1-78. If this later date were to be taken as decisive more members would have been born into the family and their shares would also have to be given by the Board on partition.

There would also have been some exits by death whose heirs could

• '

PALACE ADMN. BOARD v. RAMA VF.RMA (Krishna Iyer,!.) 195

not claim shares on behalf of their proposite. We have, therefore, to see which view-point is correct in the light of the statutory; provisions and their rather ambivalent wordin~.

The other essential factor in making a satisfactory partition is the valuation of the numerous assets and their allocation to the plurality of sharers. Er ch one being entitled to his share and group partition not being the rule, the Board's submission is that it has proceeded on the footing of 719 sharers taking the date, 1-12-1976 when Act 30 of 1976 came into force as the crucial dateline. On

this basis, the Board claims that it has turned out a tremendous amount of work by way of valuation of properties through highly competent and fairly expensive architects and engineers. It is further stated that the services of a retired judge of the Kerala High Court had been relied on all and along to tender advice as and when required so that legal guidance may be available for the Boarc't An Advisory Committee of leading members of the family had also been constituted to assist the Board with its suggestions. Valuation sheets had been prepared and handed over to each group and in the light of representations made and duly considered, revaluation had been directed to be done wherever objections had been raised.

It is asserted that all these Himalayan labours have materialised in valuations of properties which, if subverted sterilised, or otherwise invalidated, would spell great loss, waste of energy and indefinite postponement of effective partition. The many members who are virtually royal proletarians cannot afford the price of further procrastination, bewails the Board. True, the court, in search of perfection, should not abandon pragmatic justice and play into the hands of those who have a vested interest in keeping the litigative pot boiling and actualisation of the fruits of partition a teasing illusion. Even so, we must not ignore the law and be stampeded into affirming the Board's blunders, if any, in the name of early finality.

Counsel for the first respondent has contested the ground urged by the Board and has sought to maintain that there has been no error in the judgment of this court and that the review sought must be repelled. The number of shares into which the properties must be divided depends. on the number of members entitled to shares. If the date were to be fixed with reference to Act 30 of 1976 i.e. 1-12-1976, 719 sharers have claims on the family assets.

On the other hand, if the later Act 15 of 1978 were to be operative the relevant date will be 6-1-1978. During this period of around 13 months it is conceivable that a few more members might have

been born or dead; but shares have to be precisely accounted and no person can be deprived of his property if the law confers on him a right thereto. Therefore, we will presently proceed to decide this issue, bnt before that, we wish to make it clear that the substantial amount of work done by the Board should not be allowed to go waste. After all, a creative, rather than a negative, application of law makes it truly functional. We are satisfied from the materials on record that the Board has done good and satisfactory work especially because competent engineers and valuers have been pressed into service, a retired judge of the High Court of Kerala has been playing the role of a mentor and a small committee of members has, in a way, democratised and legitimated the process of partition by participation. Without exaggerating the role of the Board or the turn-out of work it has done, we see no reason to sweep off the work of valuation d.one all these years and decline to accede to the argument that the Board's considerable labours should be liquidated.

There is no substantial reason for doing so. Even so, we cannot exclude the possibility of the Board having made errors, even blunders. After all, there is much force in hearing aggrieved parties before a correct conclusion is reached. That is why, we have in a later paragraph, subjected the acts and doings of the Board to a clear condition which stems from natural justice. The valuation the Board has carried out, the alienations it has effected and provisional allotments it has made will be allowed to stand only subject to the obligation to hear objections and to take follow-up action, as indicated below.

Sri Govindan Nair has two submissions which merit serious notice. Firstly, the number of shares have been fixed with reference to Ist December, 1976 and group allotments have been made and these are contrary to the •one man one share' basis and the valid date of disruption in status. Secondly, many members have had no say in the valuation and sales made by the Board and natural justice cannot be sacrificed at the alter of expediency.

Taking the second objection first, we feel that there is force in it bnt do not consider it necessary to demolish the work done by the Board upto now. The situation can be salvaged by a few practical directions which will take care of natural justice and resolve the grievances of affected sharers. It was represented by Shri Krishnamoorty Iyer, appearing on behalf of the Board, that the work of partition was almost complete and even the draft deed had been drawn up. But we must make it clear that the Board's decision

• '

PALACE ADMN. BOARD v. RAMA VERMA (Krishna Iyer, J.) 197

cannot be arbitrary, as explained in our earlier judgment. It has to be reasonable and fair and for that purpose must comply with the opportunity for a hearing to every sharer. Group allotment may be permissible provided the sharers composing the groups consent.

Otherwise, each member is entitled to a per capita share. Therefore, if the Board has made group allotments, it has to be justified by practical considerations and by acceptance by the members of the group concerned. Secondly, the valuation made and the sales effected must be subject to the objections of those who have not had a say inthe matter. So we direct that the draft partition deed, with necessary particulars regarding properties and their value etc., shall be made available for the inspection of the various parties from the office of the Board.

A notice shall be put .up within one month from today on the office notice board stating that requisite copies of the draft partition deed and the necessary details will be available in the office for the inspection of the members or their. representatives. They will also be permitted to take such number of copies as they want. This is necessary for the members who wish to file objections. Within six weeks thereafter, any sharer will be entitled to file his objections, with specificity, to the various valuations and sales and other actions impugned. The Board will consider these objections and decide them on their merits.

Parties affected by such decision will naturally be given a brief hearing by the Board. In short, although without the full panoply of natural justice, a fair and impartial consideration of the '.objections d< novo will be made by the Board. Its decisions will, as far as possible, be made within three months of the last date for objections and be published on the office notice board. Those who ask for copies of the decision or portion of the decision will be furnished them In the course of the arguments in Court we felt that the decisions of the Board should be subject to review by a judicial functionary of high stature, ifthat were practical. Mr. Govind an Nair, appearing for the first respondent, stated that Shri Justice Mathew, a distinguished

retired Judge of the Supreme Court, was available in Cochin and his G presence could be taken advantage of for this purpose. Speaking for the Board, Mr. Krishna Moorthy also agreed with the choice.

We would have been very happy had Shri Justice Mathew been appointed the final Arbitrator to consider the objections by the parties to the Board's decisions in regard to any of the matters covered by the partition. We are unable to make a formal direction to this effect H because many of the sharers are not before us. We must however, observe that taking advantage of the fact that the group represented by

SUPREME COURT REPQRJS

U 989) 3 S.C.R.

Shri Govindan Nair is willing to abide by Shri Justice Mathew's arbitral decision, the Board may if possible contact other sharers for their consent. If all the sharers agree in writing to abide by the decision of Mr. Justice Mathew in regard to contested points in the Board's partition arrangement we tliink that Shri Justice Mathew may be persuaded to agree. Indeed, if it is brought to our notice that all parties are agreeable, the Court itself may make a request and clothe Shri Justice Mathew with necessary decisional powers. We do not say more than make these observations. But even apart from the appointment of Mr. Justice Mathew as sole Arbitrator, it is necessary to insist that the other directions regarding hearing and compliance with natural justice will bind the Board before its completion of the partition.

This takes us to the most contentious issue viz. the number of shares and the date with reference to which the division in status must be deemed to have taken place. Certain fundamental facts must be under scored for appreciating the hotly asserted competing contentions. At the outset, we may mention that the drafting of the legislation has been somewhat slippery breeding semantics confusion.

This feature has accentuated the plausibility of both points of view.

Going to the basics, we must observe that originally the royal family was impertible but the concept of partition in relation to it subject to certain conditions was introduced by the 1961 Act. However, notwithstanding the 1961 Act, the Cochin Maharaja had not declared his decision that the family properties be partitioned. A few items out of the enormity of the assets were, it is said, divided. But it seems probable and parties, perhaps proceeded on the footing that there was no royal decision to divide the family pursuant to the enabling provision in the 1961 Act. The family continued joint.

Now we shift the focus to the statutory scene of 1976 and find a comprehensive Kerala legislation abolishing the joint family status of all coparcenaries generally. The Cochin royal family, prima facie, was covered by the 1976 Act. In that event, there must normally have occurred a division in status in the Cochin royal family too and quantification of shares would then have had to be done by the Board with reference to 1-12-1976 when that Act came into force. This is the Board's stand and it has proceeded on this premise. This position would have been unassailable but for the two circumstanceswhich, in a way, we have adverted to earlier. The 1976 Act contains a schedule repealing certain Acts and as indicated earlier the Proclamation and the 1961 Act do not find a place in the Schedule. We must infer from this circumstance argues Sri Govindan Nair, that the 1961 Act and

_,.J_

PALACE ADMN. BOARD v. RAMA VERMA (Krishna Iyer, J.) 199

even the Proclamation modified by the 1961 Act survived the 1976 Act. Did they, and if they. did, to what extent and effect ?

This complication is accentuated by the later 1978 Act which amends the 1976 Act and the 1961 Act.

Section 8 and 9 are the .p:rtinent pro visions. Section 8 iPserts a new sec. 8 in the 1976 .Act with retrospective effect:-

"8. Amendment of Act 30 of 1976 : In the Kerala 'Joint Hindu Family System (Abolition) Act, 1975 (30 of 1976), after Section 7, the following soction shall be, and shall be deemed always to have been inserted, namely:-

8. Proclamation IX of 1124 and Act 16 of 1961 to !continue in force: Notwithstanding] anything contained in this Act or in any other law for the time being in force Proclamation (IX of 1124) dated the 29th June, 1949, promulgated by the Maharaja of Cochin, as amended by the Valiamma Thampuran Kovilakam Estate and the Palace Fund (Partition) and the Kerala Joint Hindu Family System (Abolition) Amendment Act 1978 and the Valiamma] Thampuran Kovilakam j Estate and th< Palace Fund (Partition) Act, 1961 (16 of 1961), as amended by the said Act, shall continue to be in force and shall apply to the Valiamma Thampuran Kovilakam Estate and the Palace Fund administered by the Board of Trustees appointed under sec. 3 of the said Pcoclam1tion."

Section 9 also is significant and runs thus:

"9. Repeal and Saving:-(!) The Valiamma Thampuran Kovilakam Estate and the Palace Fund [(Partition) and the Kerala Joint Hindu Family System (Aboliton) Amendment Ordinance, 1978 (I of 1978), is hereby repealed .

. (2) Not withstanding such repeal, anything done or any action taken under the principal Act or the Proclamation (IX of

1124) dated the 29th June, 1949, promulgated by the Maharaja of Cochin or the Kerala Joint Hindu Family System

(Abolition) Act, 1975 (30 of 1976 ), as amended by the said Ordinance, shall be deemed to have been done or taken under the principal Act or the said Proclamation or Act, as the case may be, as amended by this Act as if this Act had come into force on the 6th day of January, 1978."

There is a sharp divergence between counsel: on the role of the various provisions we have briefly referred to above in determining the date on which division in status of the Cochin royal family took place. The 1976 Act, as we have indicated earlier, leaves intact, in large part, the Proclamation as well as the 1961 Act. Section 7 of the 1976 Act expressly repeals the scheduled Acts. It also renders texts of Hindu Law, customs and usages, contrary to the provisions of the 1976 Act, ineffective. The consequence of the omission of the Proclamation and the 1961 Act from the schedule is that they survive and co-exist with the 1976 Act. The crucial point on which much debate took place is as to whether section 4(2) of the 1976 Act which produce a statutory division in status of all Kerala undivided Hindu Families effects such a division in the Cochin royal family also. The definition of Joint Hindu Family is wide enough to include the Cochin royal family and, prima facie, sec. 4(2) spells a division in status :and substitutes a tenancy-in-common in the place .of jointness vis-a-vis the Cochin royal family also. This consequonce~ can be obviated only ifthere is something in sec. 7 which compels a contrary conclusion. The omission in the repealing section of the 1961 Act, by itself, does not render inapplicable sec. 4(2) which creates the division in status. It admits of no doubt that, until Act 30 of 1976 was passed, there was no partition effected by any decision of the Maharaja pursuant to the 1961 Act. Thus or.e oft~.e joint Hindu Families which subsisted at the time of :;·, e 1976 Act was the Cochin royal family and sec. 4(2) could, and, therefore, did opertec. on it. Nor is the rule of per capita division provided for in the 1976 Act contrary to the shares :prescribed in the 1961 Act. The survival of ; the 1961 Act, because of its omission from the Schedule of Acts repealed, , has one effect and that is that the Board alone has the p"ower to divide the properties.

Sec. 3 of the 1961 Act provides for it and must prevail despite the 1976 Act in view of sec. 7 of the later Act read with the :sch<dule thereto, J The non-repeal of the 1961 Act also leads to _the conclusion that chi d . in the womb is entitled to a share, (sec. 4 of the 1961 Act), whatever the meaning of sec. 4(2) of the 1976 Act may be. Thus, if we take a close-up of the statutory scene, vis-a-vis the Cochin royal family, in 1976, we get the position that the family is divided in status with shares for every member including ; a per capita share for a child in the womb and such partition is to be worked out by metes and bounds only by the Board and not by the civil court.

Things would have been simple had the situation er.ded here.

H .l!ut sections 8 and 9 of ihe 1978 Act have left a , trail of seemingly queer consequences, or, at any rate, scope Jor plausible, yet contra-

PALACE ADMN. BOARD v. RAMA VERMA (Krishna lyer, !.) 201

dietary interpretations.

We will, therefore, examine these two pro- A visions which will be the final exercise in this review proceeding.

According to Shri Krishnamurthi Iyer for the Board, the determination of the date of division in status and consequently the number of shares and the persons eligible thereto, are not affected by sections 8 and 9 of the 1978 Act. Shri Govindan Nair, on the contrary, argues that sections 8 and 9 will be rendered otiose and the statute stultified were we to treat the two sections as of functional irrekvance in fixing the shares and the sharers. Sec, 8 contains a non-obstante clause and so must prevail over other provisions.

The substantive directive in sec. 8 of the 1978. Actis that the proclamation, as amended by the 1961 Act, as further amended by the 1978 Act, shall continue to be in force, and shall apply is the assets of the Cochin royal family. Of course, the Section has been drafted in a jaw-breaking fashion and its combersomeness could have been simplified had a different type of legislative drafting skill been brought to bear upon the subject. Sec. 8 reminds one of the old British Jingle :

I'm the parliamentary draftsman I compose the country's laws And of half the litigation I'am undoubtedly the cause.

Why only half the litigation half the frustration too t Be that as it may, stripped of the complexities, sec. 8 merely means that the Proclamation, as amended by the subsequent legislation, shall continue to apply to the Estate and the Fund of the royal family. Shri Krishnamurthy Iyer construes this provision to mean that the processual part of the Proclamation, as amended by the 1961 Act, which, in turn had been amended by the 1978 Act was preserved by the legislature with a deliberate design, namely, to speed up the partition without getting clogged up in the formal coils of court proceedings with inevitable delays and interminable appeals. The legislature know that handing up the partition litigation to the civil courts would be denying for a life time any share to any member of the royal family in effect and would aslo mean undoing the considerable work which had already been done in the direction of division. Therefore, the anxiety of the legislature to preserve and consolidate what had been done and to accelerate the actual partition persuaded it to enact s. 8. The intent and achievement of s: 8 .was to keep. out the civil court and to continue the Board's jurisd!c!Jon to part1twn. Nothing more, nothing less. Sec. 9 merely gives retrospecl!vely to the Act and, more importantly preserves a&

14-189 SCI/80 '

A valid all acts done under the Proclamation and the 1976 Act as amended by the 1978 Act. This is meaningful because anything done or any section taken under the 1976 Act is also preserved. In our view only purpose of this saving clause is the quantum of shares, the number of shares, the particular shares having been decided by the 1976 Act,

the Board's proceedings on that footing are left unaffected.

There is force in Sri Krishnamurthy Iyer's contention that the goal of ss. 8 and 9 of the 1978 Act was to continue the Board intact to keep as valid all that it had done and)o preserve the shares as settled by the 1976 Act. There was no intent, nor effect, of upsetting everything that had been done uptil then by a process of statutory reversal.

Such an interpretation would be Jetting a statutory bull in a china shop demolishing the concrete work already done.

Let us, for a moment, examine the rival plea, which is to the effect that the Proclamation and the 1961 Act having been brought back to life the shares had to be determined on that basis updated to 1978, D having special regard to s. 3 of the 1978 Act. For convenience, we may re-read that section:

3. Partition of the Estate and the Palace Fund :(I) The senior. most male member of the family shall, within sixty days from the date of commencement of the Valiamma Thampuran Kovilakam Estate and the Palace Fund (Partition) and the Kerala Joint Hindu Family System (Abolition) Amendment Ordinance, 1978 direct the Board to effect Partition of the Estate and the Palace Fund among all the members entitled to a Share of the Estate and the Palace Fund under section 4 of the Kera/a, Joint Hindu Family System (Abolition) Act, 1975 (30 of 1976), and such direction shall be published by the Board in the Gazette.

(2) If the seniormost male member fails to direct the Board as required by sub-section (1), the Board shall on the expiry of the period specified in that sub-section proceed to effect the partition of the Estate and the Palace Fund among the members referred to in sub-section (I) and the Partition so affected shall be valid notwithstanding anything contained in section 17 of the Proclamation.

The plausible inference is that in tune with the Proclamation (which survives) the seniormost male member-the Maharaja system having H ended is to give direction to the Board to effect a partition of the Estate and the fund among the members "entitled to a share of the Estate and the Palace Fund under section 4 of the Kera/a Joint Hindu

PALACE ADMN. BOARD v. RAMA VERMA (Koshal, J.) 203

Family System (Abolition) Act, 1975 (30 of 1976)". Sub-section (2) of section 3 says that if the seniormost male member fails to make snch a direction within 60 days, the Board shall proceed to effect the Partition. According to Shri Govindan Nair, the total effect is the resnscitation of the Proclamation and the direction for Partition willy nilly by virtue ofs. 3 of the 1978 Act and, therefore, the date of division-in-status has to be reckoned as that date which falls on the expiry of the 60 days of the promulgation of the 1978 Act. There is a meritrious appeal for this interpretation provided we overlook the vital direction in s. 3 (1) that the division is to be among "all the members entitled to a share under s. 4" of the 1976 Act. None born later can claim, none dying later can lose. Thus, in our view, the inevitable consequence of Act 15 of 1978 is not to throw out of gear everything done so far but to clarify possible ambiguities and to stabilise the work of Partition by the Board. We read the meaning of the various provisions of the 1978 Act in this sense only. The net result is that the division among the members is to be effected according to s.4 of 1976 Act. The Partition by metes and bounds is to be effected by the Board. The work done upto now is to retain its force.

While considering the constitutionality of the impugned Act in our earlier judgment we had made it clear that the Board was not entitled to behave arbitrarily or unreasonably and had to conform to the norm of natural justice. We maintain that conclusion and, indeed, counsel for the Board has not challenged it. In fact, we have strengthened that conclusion by providing for objections and even an appeal against the decision by the Board to the limited extent indicated above to an arbitral body so that the hearing component may not be sacrificed for the speedy component of justice.

In the light of the directions we have made and the elaborate

.~· explanation we have given, the petition for review, in substantial part, is allowed.

KosHAL, J. I have had the advantage of going through the judg ment prepared by my learned brother Krishna Iyer, J., and find myself in agreement with him in regard to the conclusions arrived at by him on the three points around which the petition for review revolves but I regret that I am unable to subscribe to the reasons listed by him in relation to the effect of the 1976 and 1978 Acts. I am therefore recording this short note which may be read 'in continuation of that judgment.

2. There is no dispute regarding the proposition that nnder the Proclamation of 1124 the Cochin royal family was impartible and that

the concept of partition in relation to it was for the first time introdnced by the 1961 Act, subject to certain conditions which are contained in section 3 of that Act and are to the effect that the Estate would l; ecome partible only if-

(i) a request in writing is made to the Maharaja of Cochin by by the majority of the major members of the family;

(ii) the Maharaja is satisfied that in the interests of the family it would be desirable to partition the Estate and the Palace Fund among alJ the members of the family; and

(iii) the Maharaja declares his intention to effect a partition under his supervision and control and directs the Board to proceed with the partition.

All these three conditions had to be satisfied before the Estate could be considered partible and till it acquired that character the Proclamation remained in full force so that the Estate remained impartible and no question could therefore arise as to the persons entitled to a D share on a partition.

This position prevailed till the 1,976 Act was promulgated and, in my opinion, that Act also did not make the slightest difference to it, Section 7 of the 1976 Act effected a repeal of the enactments mentioned in the Schedule to the Act. Those enactments were twelve in number and did not include either the Proclamation or the 1961 Act which therefore, as pointed out by Iyer, J., survived and continued to coexist with the 1976 Act. In view of the provisions of section 3 of the 1961 Act which were left intact by the 1976 Act the Estate could become partible only if all the three conditions above specified were fulfilled which has never been the case so far. The result is that when the 1976 Act was enforced in its original form the Estate ~'Ontinued to be impartible and therefore there was no question of section 4(2) of ' that Act being applicable to it, the specification of shares being incompatible with impartibility. In this view of the matter, the Proclamation coupled with the 1961 Act constituted an exception to the provisions of the 1976 Act which otherwise applied to all Joint Hindu Families.

3. The 1978 Act however brought about certain basic changes in the 1961 and the 1976 Acts. Section 8 of the 1978 Act added a new section 8 to the 1976 Act with effect from the date on which the 1976 Act had come into force, i.e., the !st of December, 1976 and that new section stated in no uncertain terms that the Cochin royal family would be governed by- ( a) the 1978 Act itself, and,

.pALACE ADMN. BOARD v. RAMA VERMA (Koshal, l.) 205

(b) the Proclamation as amended by the 1961 Act which itself was to be read as obtaining after its amendment by the 1978 Act •

It is therefore necessary to examine the changes effected by the 1978 Act in the 1961 Act. They are detailed in the following table l

1961 Act as prevailing before the 1978 amendment

Section 2 : In this Act .......... ..

(a) 'Board' means the Board of Trustees

appointed under s. 3 of the Procia. mation.

(b) 'Estate• means the Valiamma Thsm

puram Kovilakam Estate and all properties bolonging to the said

Estate.

1961 Act as obtaining after the 1978 amendment

Section 2 1 In this Act ............. .

(a) 'Board' means the Board of Trustees

appointed under 1. 3 of the Procla.

mation.

(b) 'Estate' means the Valiamma Tham. puram Kovllakam Estate and 'all

properties belonging to the said Estate.

(c) 'Maharaja of Cochin' means Ruler (c) of former State of Cochin within

•family' means the Marumakkatha yam joint family lT consisting of

th~ four main tha vashie!I of the the meaning of Clause (22) of Article 366 of the Constitution.

Ruler of the former State of Cochin within the meaning"of Clause (22) of article 366 of the Constitution

Of India,

d) "Member" means a member of the (d) 'Member' means a member of the family of the Maharaja of Cochin. family.

(e) 'Palace Fund' shall have the same (e) meaning as in Clause (c) ofs. 2 of the Proclamation.

'Palace Fund' shall have the same meaning as in Clause le) ofs. 2. of the Proclamation.

(f) 'Proclamation•m, ans Proclam1tion (f) (IX of 1124) dated 29th June, 1949, promulgated by Maharaj• of O>chin.

'Proclamation' means Proclama

tion QX of 1124) dated 29th June, 1949, promulgated bv Maharaja ol Cochin.

Section 3

Maharaja of Cochin to order Partition(!) Notwithstanding anything contain ed in s. 22 of the Proclamation, if request in writing is made by the majority of the major members and the Maharaja of Cochin is satisfied that in the interest of the family it would be desirable to partition tho Estate and the Palace Fund, among all members, he moy declare his

Section 3

Partition of the Estate and the Palace Funp

(i) The seniormost male member or the family shall within sixty days from the date of the commencement of the Valiamma Thsmpuran Kovilakam Estate and the Palace Fund (Partition)

and Kerala Joint Hindu Family System (Abolition) Amendment !Ordinance 1978 direct the Board to eft'ect partition of the Estate and the Palace Fund

decision to effect a partition under his supervision and control, and direct the Board to proceed with the Partition.

(2) The decision of the Mabaraja of Cochin under sub-section (I) shall be published by the Board in the Gazette in English and Malayalam and a copy of the notification shall be affixed in a

conspicuou~ place at the office of the Board.

among an the members entitled to a share of the Estate and thePaJaceFund under Section 4 of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (30 Of 76) and such direction shall be published by the Board in the Gazette.

(2) If the seniormost male member failed to direct the Board as required by subsection (1), the Board shall, on the expiry of the period specified in that sub-section proceed to effect the partition of the Estate and the Palace Fund among the members referred to in sub-section (1 )and Partition so effected shall be valid notwithstanding anything contained in section 17 of the Proclamation.

After the promulgation of the 1978 Act therefore the Proclamation has to govern the Cochin royal family subject to section 3 of the 1961 Act as amended by the 1978 Act which would fully apply to that family "notwithstanding anything contained" in the 1978 Act or any other law for the time being in force. Finality has thus been given to the provisions of that section which states that the partition is to be made '. "among all the members entitled to a share of the Estate and the Palace Fund under section 4 of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (30 of 1976)". Section 4 of the 1976 Act is thus made specifically applicable to the Cochin royal family by reason of the amendment of section 3 of the 1961 Act by the 1978 Act; and if this be so, the crucial date for determining the number and identity of the j members of the family entitled to a share of the Estate and the Palace

- · Fund would be the 1st of December, 1976, i.e., the date on which the 1976 Act came into force.

P.B.R.

Petition partly allowed.

l

THE PALACE ADMINISTRATION BOARD

RAMA VERMA BHARATIIAN THAMPURAN & ORS

D. A. DESAI

A. D. KosHAL, JJ

PER KRISHNA IYER

30th July, 1979

Cochin Maharaja

section 4

Section 7

section 4(2)

section 7

section 4(2)

Meharaja

section 4(2)

Section 3

section 7

section 4(2)

Cochin

Kesha

section 3

section 3

section 3

section 4(2)

section 3

section 4

Section 4

section 3

1st of December, 1976

T. S. Krishnamoorthy

Vishnu Bahadur Saharya

Sardar 'Ji..._ Bahadur Saharya

P. Govindan Nair

N. Sudhakaran

V.R. Krishna Iyer

D.A. Desai

Krishna Iyer

KR1sHNA IYER

Homer

Supreme Court

Valiamma Thampuran Kovi

Sec. 2

Sec. 4

Sec. 3

Section 22

Kerala

India

Maharaja

Section 3

s. 4

Section 3

Sec. 3

s. 4

s. 4

Section 7

Amendment Act, 1978

Section 2

Sec. 3

Section 4

sec. 4

S. 391

September 19, 1979

Govindan• Nair

Palace Administration Board

Act 30 of 1976

Kerala High Court

High Court of Kerala

Govindan Nair

Krishnamoorty Iyer

Govind an Nair

Mathew

Krishna Moorthy

Govindan Nair

We must infer from this circumstance argues Sri Govindan Nair, that the 1961 Act and

,.J

PALACE ADMN.

Section 8 and 9

Section 8

sec. 8

Section 7

29th June, 1949

Amendment Act 1978

sec. 3

Section 9

Amendment Ordinance, 1978

Act or the said Proclamation or Act

6th day of January, 1978

Section 7

section 4(2)

sec. 4(2)

sec. 7

sec. 4(2)

sec. 4(2)

Sec. 3

sec. 7

sec. 4

sec. 4(2)

sections 8 and 9

Krishnamurthi Iyer

sections 8 and 9

sections 8 and 9

sec. 8

Sec. 8

sec. 8

Krishnamurthy Iyer

s. 8

Sec. 9

ss. 8 and 9

s. 3

Partition of the Estate

Amendment Ordinance, 1978

section 4

section 17

section 4

section 3

s. 3

s. 4

KosHAL

section 3

Section 7

Iyer

section 3

section 4(2)

Section 8

section 8

st of December, 1976

Section 2

s. 3

Section 2

Maharaja of Cochin

Article 366

article 366

Section 3

s. 22

Section 3

Mabaraja of Cochin

Section 4

section 17

section 3

section 4

Section 4

section 3