ATMA SINGH & ORS.

STATE OF PUNJAB & ORS.

April 2, 1981

[Y.V. CHANDRACHUD. C.J., A.P. SEN AND

V.BALAKRISHNA ERADI, JJ.]

Punjab Municipal Act, 1911, read with Election Rules, 1952 and Delimitation of Wards of Municipalities Rules, 1972-State Government notifies inclusion of certain local areas within the limits of Sunam Municipality under sub-section (3) of section 5 of the Act-Operation of the notification stayed by the High Court and,

therfore, the State Government without reconstituting the Municipality into new wards held elections on the basis of the old municipal limits in view of the obligatory proviso to sub-section (3) of section 13 of the Act inserted by Punjab Act IO of 1978 as amended by Punjab Act 2 of 1979-Propriety of the action of the State to hold elections in the municipality without de/imitation of wards und preparation of fresh electoral rolls and validity of the elections.

In exercise of their powers under sub-section (3) of section 5 of the Punjab Municipal Act, 1911, the State Government by its Notification dated August 2, 1976 directed inclusion, in Sunam Municipality, of eight local areas including Moranwali Gram Panchayat, which challenged the validity of the said notification by a writ petition filed before the High Court and obtained stay of operation.

Under the Election Rules of 1952 and the Delimitation of Wards of Municipalities Rules, 1972, whenever there is a change in the limits of the municipality the State Government cannot proceed to hold election of councillors without delimitation of the municipality into wards. However, since proviso to subsection 3 of section 13 of the Act, inserted by Punjab Ace 18 of 1978 as amended by Punjab Act 2 of 1979 made it obligatory for the State Government to hold the election before June 30, 1979, along with those of the 42 other municipalities the election of the councillors of the Sunam Municipality was also held on June I 0, 1979 on the basis of the old municipal limits, that is, from the existing 15 wards.

On June 23, 1979 the appellants who seek to represent about 1,000 voters from the local areas newly added to the municipal limits, filed a writ petition in the High Court challenging the election as null and void on the ground that there was no delimitation of wards and no fresh electoral rolls were prepared.

The High Court by its order dated July JO, 1979 declined to set aside the elections held, but directed that the local areas be given representation under sub-section(5)

of section 5 of the Act. Hence the appeal after obtaining special leave of the A Court .

Dismissing the appeal, the Court

HELD: I. The State Government without reconstituting a municipality into new wards cannot proceed to hold an election of councillors, when there is an extension of the municipal limits. [346 C] 8

2. The whole purpose of delimitation of municipality into wards is to ensure that every citizen should get a fair representation in them unicipalities.

When a municipality in reconstituted by the inclusion of any local area within the limits of a municipality under sub-section (3) of section 5 or by the exclusion of any local area from the limits of a municipality under section 7, that is, when there is an alteration of the limits of the municipality, there must of necessity be a division of the reconstituted municipality into new wards without which the elections cannot be held. There can be no:'.dis-enfranchisement of part of the electorate of a municipality. [345 C-D] . -

3. But, in the instant case, the said principle could not be applied due to the stay order passed by single Judge of the Punjab High Court which was in force from August 2, 1978 to October 23, 1978 and thereafter till April 1, 1980 consequent to the order of stay of dispossession by the Division Bench, dated December 19, 1978 in the Letters Patent Appeal preferred by the Gram Panchayat, Moranwali. When a local area sought to be •brougb.t within the limits of the municipality by the issue of a notification under sub-section (3) of section 5 was kept out of such limits by reason of the stay order passed by the Division Bench there could, obviously, be no delimitation of the municipality into new wards. [346 C, D; 347 B, A] -

4. To contend that with the di>misnl of the wcit P"tition on October 23, 1978, the impugned notification was brought into effect and, therefore, the State Government could not proceed with election without delimitation of wards and preparation of fresh electoral rolls is incorrect. It is equally incorrect to say that with the vacation of the stay by the dismissal of the Letters Patent Appeal on April t, 1980 the whole election would b~ invalidated. [346 F, 347 F]

5. The Elections held on June 10, 1979 were valid and the councillors elected [are [enti.tled to , run their full term or live years as provided in] section

13. The State Government acted with the best of intentions in deciding to hold the elections. The State Governmont had no other alternative but to hold the election of the councillors on the basis of the existing limits of the municipality, that is, from the existing 15 wards due to the amendmont of proviso to subsection (3) of section 13 of the Act by Punjab Act 2of1979 which made it 'obligatory for the State Government to hold the elections before Jun; 30,

1979. [347 E, D]

Bhaichandbhai Maganlal Shah v. Th" State of Gujarat and Ors., 8 Guj. L.R.

210, approved.

6. In view of the fact that a large number of inhabitants of the local areas brought within the municipal limits under sub-section (3) of section 5 of the Act,

SUPREME COURTS REPORTS

[198 I] 3 S.C.R.

A who were otherwise eligible to be enrolled as voters but for the stay by the High Court, have thereby been deprived not only of their valuable right to vote at the election but also the right to contest as a candidate for election as a councillor from any of the wards of the municipality or to the office of the President or the Vice-President, the Court directed ; (i) that the local areas included in the municipality should be formed into a ward or wards and representation given to them under sub-section (5) of section 5 of the Act; (ii) that the term .of the coun- B cillors so elected from such local areas shall be co-terminus with the term of the councillors already elected from the existing 15 wards and (iii) that this shall be a purely interim arrangement necessitated by the somewhat unfortunate stay order passed by the High Court and that obviously it cannot extend beyond the term of the present council. (347 G, 348 BJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1958 of 1980.

Appeal by Special Leave from the Judgment and Order dated 20th July 1979 of the Punjab and Haryana High Court in Civil Writ Petition No. 2135/79.

P. P. Rao and C. M. Nayar for the Appellants.

0. P. Sharma and M M. Dhillon for Respondents Nos .. 1-5.

S. M. Ashri & G. K. Bansal for the other appearing Respondents.

The Judgment of the Court was delivered by

SEN, J.. This appeal by special leave from a judgment of the Punjab & Haryana High Court, raises a question of some complexity.

The question is when there is a notification issued under sub-s. (3) of s. 5 of the Punjab Municipal Act, 1911, for inclusion of certain local areas within the limits of a municipality, whether it is permissible for the State Government to hold elections in the municipality without delimitation of wards and preparation of fresh electoral rolls.

It arises under the following circumstances.

In exercise of their powers under sub-s. (3) of s. 5 of the Punjab Municipal Act, 1911 (hereinafter referred to as 'the Act'), the State Government of Punjab by notification dated August 2,

J 976, directed inclusion of certain local areas.

The local areas so included are : (I) Moranwali Panchayat Area, (2) Grain Market Area, (3) Guja Peer Basti, (4) Jakhal Road, (5) ITI Area, (6) BOO Block, (7) Tehsil Court Area and (8) Thei Area. The Gram Panchayat, Moranwali challenged the validity of the said notification by a writ petition filed before the High Court. A learned Single

Judge granted an ad interim stay staying the opration of the impugned notification.

The writ petition was dismissed by the learned Single Judge on October 23, I 978.

Thereupon, the Gram Pa.nchayat preferred a Letters Patent Appeal and prayed for grant of stay of operation of the impunged notification. On December

I 9, I 978, a Division Bench passed the following order :

Admitted. Stay dispossession ad interim.

Notice regarding stay.

It is common ground that eventually the stay was confirmed by the Division Bench and remained operative till April 1, 1980 when the

Letters Patent Appeal was dismissed.

In the meanwhile, the State Government decided to hold the elections of councillors of the Sunam Municipality on the basis of the old municipal limits, i.e. from the existing 15 wards, along with those of the 42 other municipalities, since proviso to sub-s. (3) of s. 13 of the Act, inserted by Punjab Act 18 of 1978 as amended by Punjab Act 2 of 1979 made it obligatory for the State Government to hold such elections before June 30, 1979. Accordingly, the Deputy Commissioner issued a notification on April 6, 1979 under r. 3 of the Election Rules, 1952, specifying that the elections in the municipality shall be held on June JO, 1979. On June 23, 1979, i.e. after the whole process of election was over, the appellants, who seek to represent about I 000 voters from the local areas newly added to the municipal limits, filed a writ petition in the High Court challenging the election as null and void on the ground that there was no delimitation of wards and no fresh electoral rolls were prepared. The High Court, by its order dated July 20, 1979, declined to set aside the elections held, but directed that the local areas be given representation under sub-s. (5) of s. 5 of the Act.

In support of the appeal, there is a two-fold contention advanced. In the first place, the submission is that when a local area is included within a municipality, elections cannot be held without delimitation of wards and preparation of fresh electoral rolls; and secondly, the submission is that, in any event, with the vacation of stay, the election was invalidated. The first of these submissions is unexceptionable, but it does not arise, and the second appears to us to be wholly devoid of substance.

Sub-s. (5) of s. 5 of the Punjab Municipal Act, 1911, which is relevant for our purposes, reads as follows :

.. G

(5) Whefl any local area included in a municipality under sub-section (J) is a Sabha area, or a part thereof under the Punjab Gram Panchayat Act, 1952, representation to the inhabitants of the local area so included on the committee of the municipality, in which local area is included, shall be given in the prescribed manner.

The Act does not prescribe the manner of giving representation to the inhabitants when any local area included in a municipality under sub-s. (3) of s. 5 is a Sabha area, unlike that in the case of a municipality or a notified area for which an express provishn is made in sub-s. (6) thereof.

The matter, therefore, falls to be governed by the Election Rules, 1952 and the Delimitation of Wards of Municipalities Rules, 1972, framed by the State Government in exercise of their powers under s. 240 (I) (b) and (c) and s. 258 of the Act.

Whenever there is a change in the limits of a municipality, the D State Government cannot "proceed to hold election of councillors without delimitation of the municipality into wards. The delimitation of wards, a delicate and important task, is entrusted to a Delimitation Board constituted. under r. 3 of the Delimitation of Wards of Municipalities Rules, 1972 and under r. 4 thereof it is the duty of the Delimitation Board to effect a re-division of a E municipality. That rule reads thus :

Functions of the Bo(; rd-It shall be the duty of the Board:--

(i) to divide the Municipality into such number of wards as may be necessary, having regard to the number of elected members prescribed by the State Government, for the Committee, and the number of seats reserved for members of the Scheduled Castes; and

(ii) to re-adjusf the wards as and when the limits of the Municipality are altered or there is increase in population of the Municipality or there is abnormal variation in population or voting figures of some of the wards of the Municipality, which requires, such re-adjustment.

In the delimitation of wards, the Board must observe the principles H laid down inr. 6, namely, (1) all wards shall, as far as practicable, be geographically compact areas, and in delimiting them due regard shall be had to physical features, existing boundaries of administrative units, if any, facilities of communication and public convenience; (2) wards in which seats are reserved for the Scheduled Castes shall be located, as far as practicable, in those areas where the proportion of their population to the total population of the municipality is the largest; arid (3) each municipality shall be divided into wards in such manner that the population of each ward, as far as practicable, is the same throughout the municipality, with a variation upto IO per cent above or below the average population figures.

While making a re-division, it may not be possible to achieve mathematical perfection, but there must definitely be a substantial compliance with the requirement that every person should have an equal vote.

The whole purpose of delimitation of municipalities into wards is to ensure that every citizen should get a fair representation in the municipalities.

When a municipality is re-constituted by the inclusion of any local area within the limits of a municipality under sub-s. (3) of s. 5 or by the exclusion of any local area from the limits of a municipality under s. 7, i.e. when there is an alteration of the limits of the municipality, there must of necessity be a division of the re-constituted municipality into new wards without which the elections cannot be held.

There can be no dis-enfranchisement of a part of the electorate of a municipality. The question was dealt with at some length by the Gujarat High Court in Bhaichandbhai Magan/al Shah v. The State af Gujarat & Ors.(') and it was observed :

It must follow logically and inevitably from this proposition that the constitution of wards dividing the whole of the municipal district is a sine qua non of a valid election.

If no wards at all are constituted in the municipal district, the machinery of election cannot go through and equally the machinery of election cannot go through if wards are constituted in respect of a part of the municipal district and the other part is not divided into any ward or wards.

In such a case there would be lists of voters for the wards which are constituted out of a part of the municipal district but there would be no lists of voters so far as the other part of the municipal district is concerned and no one from that part would be qualified to vote or to stand as a candidate for the election and no Councillors being elected by

(1) 8 Guj. L.R. 210.-

that part, there would be no representation of that part on the municipality. Where such a situation arises, it is difficult to see how the Municipality can be said to be a Municipality for the whole of the municipal district within the meaning of s. 9.

We approve of the view taken by the Gujarat High Court.

There can be no dispute with the principle that the State Government without re-constituting a municipality into new wards, cannot proceed to hold an election of councillors, when there is an extension of the municipal limits, but the difficulty is about the applicability of that principle to the facts of the present case. There is no denying the fact that the effect of the stay order passed by the learned Single Judge staying the operation of the notification issued under sub-s. (3) of s. 5 was to put the said notification in abeyance, with the result that the local areas to which it related were not brought within the municipal limits.

It is also an undisputed fact D that the stay order passed by the learned Single Judge was in force from August 2, 1978 to October 23, 1978. It is, however, urged that with the dismissal of the writ petition by the learned Single Judge on October 23, 1978, the impugned notification was brought into effect and, therefore, the State Government could not proceed with the election without delimitation of wards and preparation of E fresh electoral rolls.

We are afraid, the contention cannot be

accepted.

The case presents a rather disturbing feature.

There were drastic changes brought about in s. 13 of the Act dealing with the term of councillors leading to the supersession of all municipalities in the State and casting an obligation on the State Government to hold fresh elections of councillors, before June 30, 1979. In these circumstances, the Division Bench should have acted with greater circumspection. On the contrary, the Division Bench, on December 19, 1978 passed a stay order staying the dispossession of the Gram .

Panchayat although the Gram Panchayat had applied for staying the operation of the impugned notification. It is somewhat unfortunate that the stay order passed by the Division Bench was couched in rather ambiguous terms, but it had virtually the same effect as the one passed by the learned Single Judge. It is difficult to comprehend the distinction between "stay of dispossession of the Gram Panchayat" and "stay of operation of the impunged notification". Apparently, the Division Bench, without applying its mind, passed an order staying dispossession of the Gram Panchayat, failing

to realise that the effect of stay would dislocate the whole electoral process.

When a local area sought to be brought within the limits of the municipality , by the issue of a notification under sub-s. (3) of s. 5, was kept out of such limits by reason of the stay order passed by the Division Bench, there would obviously be no delimitation of the municipality into new wards.

There was some doubt created about the purport and effect of the stay order passed by the Division Bench.

This brought about an inevitable chain of events.

After the Division Bench passed the order on December 19, 1978, the State Minister for Transport who represented the Sabha Areas in the State Legis lative Assembly wrote to the Minister for Local Self-Government

to postpone the elections scheduled to be held for the municipality.

When the exact nature of the stay order was brought to the notice of the Minister, he agreed with the view of the Local Self-Government

Department that the elections to the municipality could not be held without a delimitation of the muincipal area.

Eventually, the State Government had no other alternative but to hold the election of the councillors on the basis of the existing limits of the municipality, i.e. from the existing 15 wards, due tothe amendment of Proviso to sub-s.(3) of s.13 of the Act by Punjab Act 2 of 1979 which made it obligatory for the State Government to hold the election before June 30, 1979.

There can be no doubt that the State Governnent acted with the best of intentions in deciding to hold the elections. The election so held on June I 0, 1979 was a valid election and the councillors elected are entitled to run their full term of five years as provided by sub-s.(2) of s.13.

The contention that with the vacation of the stay by the dismissal of the Letters Patent Appeal on April 1, 1980, the whole election would be invalidated, must, therefore, fail.

We are distressed to find that due to the stay order passed by the Division Bench a large number of inhabitants of the local areas brought within the municipal limits under sub s.(3) of s.5 of the Act,

who were otherwise eligible to be enrolled as voters, have thereby been deprived not only of their valuable right to vote at the election but also of the right to contest as a candidate for election as a councillor from any of the wards of the municipality or to the office of the President or the Vice President.

But there is little that can be done in the matter at this stage.

Driven to this situation brought about by the stay orders of the High Court, there is no other alternative but to direct that

the local areas included in the municipality under sub-s. (3) of s. 5 should be formed into a ward or wards and representation given to them under sub-s. (5) of s. 5 of the Act. The term of the councillors so elected from such local areas shall be co-terminus with the term of the C'ouncillors already elected from the existing 15 wards. We are - assured by learned counsel for the State that the State Government shall take immediate steps to comply with this direction. This shall be a purely interim arrangement necessitated by the somewhat unfortunate stay orders passed by the High Court. The interim arrangement cannot obviously extend beyond the term of the present council.

We hope and trust that the State Government shall, in the meanwhile, take steps to constitute a Delimitation Board under r. 3 of the Delimitation of Wards of Municipalities Rules, 1972.

After the delimitat10n of the municipality into new wards, the State Gowrnment shall proceed to re-fix the number of councillors of the re-constituted municipality under s. 11, prescribe the number of elected councillors afresh as required under cl. (a) of sub-s. (I) of s. J 2 of the Act and issue necessary directions for the preparation of fresh electoral rolls as required under rr. 8 and. 8A of the Election Rules, 1952.

In the result, the appeal fails and is dismissed.

There shall be no order as to costs.

S. R.

Appeal dismissed.

ATMA SINGH & ORS

STATE OF PUNJAB & ORS

April 2, 1981

Y.V. CHANDRACHUD

A.P. SEN

V.BALAKRISHNA ERADI, JJ.

Punjab Municipal Act, 1911

Election Rules, 1952

section 5

section 13

section 5

Punjab Municipal Act, 1911

August 2, 1976

Sunam Municipality

Moranwali Gram Panchayat

section 3

section 13

June 30, 1979

Sunam Municipality

June I 0, 1979

June 23, 1979

July JO, 1979

section 5

section 5

section 7

Punjab High Court

August 2, 1978

October 23, 1978

April 1, 1980

December 19, 1978

Moranwali

section 5

June 10, 1979

section

13

section 13

30,

1979.

section 5

section 5

P. P. Rao

C. M. Nayar

P. Sharma

M M. Dhillon

S. M. Ashri

G. K. Bansal

SEN

s. 5

Punjab Municipal Act, 1911

s. 5

Punjab Municipal Act, 1911

State Government of Punjab

August 2,

J 976

October 23, I 978

s. 13

April 6, 1979

Election Rules, 1952

June JO, 1979

July 20, 1979

s. 5

s. 5

Punjab Municipal Act, 1911

Punjab Gram Panchayat Act, 1952

s. 5

Election Rules, 1952

s. 240

s. 258

s. 5

s. 7

Gujarat High Court

s. 9

s. 5

s. 13

s. 5

s. 5

s. 5

s. 11

Election Rules, 1952


STATE. OF PUNJAB

SARWAN SINGH

April 2, 1981

[ S. MURTAZA FAZAL ALI AND A. VARADARAJAN, JJ.]

Bar of /imitation Under the statute-Whether the entire proceedings instituted after period of limitation including the conviction and sentence becomes non-est- Criminal Procedure Code 1973 (Act II of 1974) Scope of-Section 468, explained.

Based on the audit report dated January 5, 1973 revealing an embezzlement having been committed by the Respondent on 22.8.1972, a challan was presented against him on the 13th October, 1976 under Sec. 406 Penal Code for misappropriating the amounts deposited with him as a Cashier of the Tanda Badha Co-ope,·

rati ve Society, district Patiala. The Trial Court convicted the respondent under ;;. section 406 Penal Code and sentenced him to rigorous imprisonment for one year and to pay a fine of Rupees one thousand. The respondents' appeal to the High Court was allowed accepting the plea of bar of limitation under section 468 of the Criminal Procedure Code. Hence the State appeal after obtaining special leave of the Court.

Dismissing the appeal, the Court,

HELD : (i) Taking any of these dates, namely, 22nd August 1972, (Commission of embezzlement), and 5th January 1973 (date of detection of embezzlement) the prosecution was barred by limitation under sections 468(2) (a) and 469(b) of th Code of Criminal Procedure. Therefore, the conviction and the sentence of the respondent as also the entire proceedings culminating in his conviction became non-est. [350 F, 351 G]

(ii) The object of the Criminal Procedure Code in putting a bar of limitation on prosecution was clearly to prevent the parties from filing cases after a Jong time, as a result of which material evidence may disappear and also to prevent abuse of the process of the court by filing vexatious and belated prosecutions long after the date of the offence. The object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Art. 21 of the Constitution of India. It is, therefore, of the utmost importance that any prosecution, whether by the State or a private party must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation. [351 E-F) .

SUPREME COURT REPORTS

[1981] 3 S.C.R

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 60 of 1981.

Appeal by Special Leave from the Judgment and Order dated 8-4-1980 of the Punjab and Haryana High Court in Criminal Revision No. 342 of 1980.

M. S. Dhillon for the Appellant.

T. S. Arora for the Respondent.

The Judgment of the Court was delivered by

FAZAL Au, J.

This appeal by special leave is directed against the Judgment of the Punjab and Haryana High Court dated 8th April, 1980 by which the respondent Sarwan Singh was acquitted of the charge under s. 406 of the Indian Penal Code.

It appears that the respondent-accused was charged under s. 406 of the Penal Code for misappropriating the amounts deposited with him as a cashier of the Tanda Badha Co-operative Society, District Patiala.

The challan was presented against the accused on the 13th October,

1976. The trial court after recording the evidence acquitted the respondent of the charge under s. 408 but {convicted the respondent of the charge under s. 406 and sentenced him to rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-.

The respondent then filed the appeal to the High Court which allowed the appeal and acquitted the respondent mainly on the ground that the prosecution launched against the respondent was clearly barred by limitation under ss. 468 and 469 of the Code of Criminal Procedure.

The High Court was of the view that the charge-sheet clearly shows that the embezzlement is said to have been committed on 22nd August, 1972 and the audit report, through which the offence was detected is dated 5th January, 1973. Taking any of these dates, the prosecution was barred by limitation under s. 468 (2) (c) of the Code. In our opinion, the High Court has taken the correct view of the law.

Section 468(2) (c) may be extracted thus :

Sec. 468 (2) (c) :

"three years, if the offence is punishable with imprisonment for a term exceeding one year but n0t exceeding three years."

:::(

PUNJAB v. SARWAN SINGH (Fazal Ali, J.) 351

Section 469 (1) (a) and (6) may be extracted thus :

"(a) on the date of the offence; or

(b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier;"

In the instant case as the charge-sheet clearly mentions that the offence was committed on the 22nd August, 1972, the bar of limitation contained in s. 468 (2) (c) clearly applies and the prosecution therefore, is clearly barred by limitation. Even assuming that so far as, the offender is concerned, the commission of the offence came to knowledge of the officer concerned, it would be so according to charge-sheet on January 5, 1973, the date when the audit report was made. Even if this extreme position be accepted, the prosecution would still be barred by limitation under s. 469(b) of the Code of Criminal Procedure, 1973.

Counsel for the State of Punjab was unable to assail the point of law derived by the High Court regarding the interpretation of s. 468.

The object of the Criminal Procedure Code in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the court by filing vexatious and belated. prosecutions long after the date of the offence. The object which the statutes seek to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Art. 21 of the Constitution of India. It is, therefore, of the utmost importance that any prosecution, whether by the State or a private complainant must abide by the Jetter of law or take the risk of the prosecution failing on the ground of limitation. The prosecution against the respondent being barred by limitation the conviction as also the sentence . of the respondent as also the entire proceedings culminating in the conviction of the respondent herein become non-est. For these reasons given above, we hold that the point of Jaw regarding the applicability of Section 468 of the Code of Criminal Procedure has been correctly decided by the Punjab and Haryana High Court.

This Court has also taken the same view in a number of decisions.

The result is that the appeal fails and is dismissed.

The respondent will now be discharged from his bail bonds.

S.R.

Appeal dismissed.

STATE. OF PUNJAB

SARWAN SINGH

April 2, 1981

S. MURTAZA FAZAL ALI

A. VARADARAJAN, JJ.

Section 468

Sec. 406

Penal Code

Patiala

section 406

Penal Code

section 468

sections 468(2)

Code of Criminal Procedure

Art. 21

Constitution of India

M. S. Dhillon

T. S. Arora

FAZAL Au

Sarwan Singh

s. 406

Indian Penal Code

s. 406

Penal Code

s. 408

s. 406

ss. 468 and 469

Code of Criminal Procedure

22nd August, 1972

5th January, 1973

s. 468

Section 468(2)

Sec. 468

Section 469

s. 468

January 5, 1973

s. 469(b)

Code of Criminal Procedure, 1973

State of Punjab

s. 468

Art. 21

Constitution of India

Section 468

Code of Criminal Procedure

Punjab and Haryana High Court


ARTI SA-PRU

STATE OF JAMMU AND KASHMIR & OTHERS

February 27, 1981

[R.S. PATHAK AND 0. CHlNNAPPA REDDY, JJ.J

Admission to medical college-Government Notification No. 41-G.R of 1980 dated 24th September, 1980 purporting to identify certain villages as socially and educationally backward.for applying the pri11ciple nf"rectification of imbalance in different parts of the S1ate"-W/1ether the classification is wholly arbitrary a11d without any foundatio11 to sustain ir and conseque111/y the criteria adopted in grallfing admission to the M.B.B.S. course is discriminatory, unreasonable and void-When viva voce test lasts between two to four minutes, whether allotment of 30% of total marks is patently unreasonable and arbitrary-Whether accepting applications beyond the time prescribed on the [!round that qualifying examination in which the applicant appeared was held late and the results were announced after the date prescribed for submitting the applications, bad in law.

Regulationsframed by the Indian Medical Council under section 33 read with section T9A oft he I11dian Medical Council Act, 1956, whether Ito/ding viva voce examination and assigning 30% of the total marks in it is in violation of Article 31 of the Constitution-Whether the presence of a Government official 011 the Selection Committee in the viva vore test is obnoxious to law.

Selection of candidates to be admitted to M.B.B, S. course in the Medical College of the State of Jammu & Kashmir was made by a Selection Committee on the basis of (a) merit in qualifyin.g examination (35_ marks) (b) an objective test (35 marks) and (c) a viva voce test (30 marks). The seats were distributed besides the examination base was determined by a distribution of the seats into three distinct divisions namely, (i) 60% on the basis of open merit ; (ii) 20% on the basis of reservation for scheduled castes and other reserved categories, one of which was broadly described as "socially and educationally backward classes" which included candidates from (a) areas adjoining actual line of control and

(b) areas known as "bad pockets", including Ladhak and (iii} 20% were reserved as seats to be.filled "on the basis of inter se merit to ensure rectification of imbalance in the admission for various parts of the State, if any, so as to give equitable and uniform treatment to those parts".

In Nishi Maghu v. State of Jammu and Kashmir, (1980) 3 S.C.R. 1253, the Supreme Court held that the selections made under the third category were invalid, inasmuch as the classification made for rectification of regional imbalance without identifying the areas suffering 'from imbalance was vague.

The Stale Government, therefore, published Notification No. 41 G.R. of 1980 dated 24th September, 1980 purporting to identify certain villages as socially and educationally backward for applying the principle of "rectification of imbalance in different parts of the States" and reduced the distribution of seats in the Medical Colleges of the State under this category from 18 to 17% under this category. This order is challenged by the petitioner, an unsuccessful candidate in the selection made for admission to M.B.B.S. course.for the year 1980-81.

)··

----\

ART! SAPRU V. J. AND K. 35

Allowing the petitions, the Court

HELD: I. The classification attempted by the State Government by its order dated 24th September, 1980 suffers from tbe vice of arbitrariness and is, therefore, invalid. There was no intelligible data before the Court for sustaining the classification. No doubt the State Government had acted in its own wisdom, but the material to which that wisdom was applied was not disclosed at all. The fact by itself that some hundreds of villages had been brought within the classification is of no assistance whatever. That a comprehensive understanding of regional imbalances from the Anand Committee report and the Sikri Commission report had not been possible yet affords no justification for an arbitrary classification.

The State failed to bring the case within Article 15(4) of the Constitution.

[39 G; 40 DJ

State of U.P. v. Pradip Tandon, [1975] 2 S.C.R. 761 applied.

2 : I. There is need to revise the marks ratio for the viva voce test because of the very real risk future selections would face on this score. The Government would also do well to ensure that Selection Committees take care to devote sufficient time to the oral interview of individual candidates having regard to the several relevant considerations which must enter into their judgment respecting each candidate. [ 41 D & G]

2: 2. The selection cannot be said to _be vitiated on the ground that one of the members, Shri Kunda!, left after some time and therefore the composition of the Interview Cgmmittee varied from time to time, since three out of four members remained present throughout the proceedings and a proportionately small number only of the candidates was interviewed when Shri Kunda! was present. [ 42 D-E]

2 : 3. The appointment of a Government official as a member of the Selection Committee is not obnoxious to the law.

There is no principle of law disqualifying a Government official from participating on the Interview Committee merely because he is a Government official. It cannot be said that a Government official cannot be a person of high integrity, calibre and qualifications. The constitution of a Committee lies in the wisdom of the State Government and it is expected men suitably qualified in every respect will be appointed to discharge the functions of the Committee. So long as the . State Government acts boQa fide it cannot be said that the presence of a Government official on the Selection Committee vitiates its constitution. [44H, 45 A-Bl

2 : 4. Selection of a number of candidates, in the present -case, cannot be said to have been made because of favouritism on account of relationship or friendship with members of the Selection Committee or because they were related

to important and influential persons in the State. Besides being sketchy and extremely vague, such allegations have been made for the first time in the rejoinder affidavit and there has been no reasonable opportunity to the respondents to H reply to them. [ 42 F]

SUPREME COURT ~J; JPORTS

[198!] 3 S.C.R.

3. The grant of admission to respondents Nos. 7 to 12, in the instant case is in order, inasmuch as the relevant qualifying examination was held ]ate and th~

annoncement of. the results was delayed. The State Government correctly permitted the candidature of these applicants to be considered for inclusion in a common list drawn up to cover canidates for admission to either of the Government Medical Colleges, at Srinagar and at Jammu. Even according to petitioner those respondents have an excellent record and if they had applied in time for admission in the Government College at Srinagar they would certainly have been'admitted on the basis of their meri.t. [42G-H]

' 4.

A competitive entrance examinat, ion is permissible in law in addition to the qualifying examination. Jn regard to the sufficiency of the objectiw test, the absence of a prescribed formal curriculum does not vitiate the objective test.

[44 F]

5. A reading of the regulations framed by the Indian Medical Council under section 33 read with section 19A of the Indian Medical Council Act, 1956 makes it clear that the reservation permissible need not necessarily be confined to scheduled castes and scheduled tribes. [44 .E]

ORIGINAL JURISDICTION: Writ Petition Nos. 5600, 5601, 5615, 5689-5697 and 6283-6307/1980.

(Under Article 32 of the Constitµtion)

Soli J. Sorabjee, O.N. Tikk~, ·.E.C. Aggarwala, M.L. Bhatt, R.

Satish, and V.K. Pandita for the Petitioners in W.Ps. 5600-01,5615& 5689-97/80. ' '

M. K. Ramamurthy, Miss R. Vaigai, Joginder Singh and J.

Ramamurty for the Petitioners in WPs. 6283-6307/80.

S.N. Kacker and A/taf' Ahmed for the Respondents in all the l Writ Petitions.

The Judgment of the Court was delivered by

PATHAK J.

The petitioner challenges the admission of a number of candidates to the M.B.B.S. course in the Government Medical College Srinagar for the session I 980-81.

The petitioner, who had also applied for admission, was denied it.

She contends that the criteria adopted in granting admission is discriminatory, unreasonable and void.

The Principal, Government Medical College, Srinagar invited applications by 3rd April, 1980 for admission to the M.B.B.S. cours~ for the session 1980-81, and the notice specified the qualifying examinations of the Board of Secondary Education, Kashmir, or any other equivalent Board or University which constituted the basis of eligibility.

The manner and procedure governing the eligibility for admission had been set forth in a Government order

ARTI SAPRU v. J. AND K. (Pathak, J.) 37

of 3rd April, 1978, which laid down that a Selection Committee constituted by the Government would determine the inter se merit of eligible candidates on the basis of an interview for judging their

(a) physical fitness, (b) personality, (c) aptitude, (d) general knowledge and (e) general intelligence. This Government order was modified by a subsequent Government order dated 23rd June, 1980 and in the result eligible candidates were now required to appear not only in the viva voce examination but also in an objective test. These two tests along with merit in the qualifying examination of the Board or University constituted the three elements which together combined to form a basis for Selection. The qualifying exammation carried 35 marks, the objective test was allotted 35 marks and the viva voce examination was assigned 30 marks.

Besides the examination base constituted by the aforesaid three criteria, the selection was also determined by a distribution of the seats into three distinct divisions.

Of the total number of seats 50% were earmarked for being filled on the basis of open merit, 25%were reserved for candidates from Scheduled Castes and other reserved categories, one of which was broadly described as "socially and educationlly backward classes'' and included candidates from (a) areas adjoining actual line of control, and (b) area known as bad pockets including Ladhak.

After selection had been made as above the remaining 25% of the seats were to be filled "on the basis of inter se merit to ensure rectification of imbalance in the admission for the State, if any, so as to give equitable and uniform treatment to those parts". It was also recited that in case there was no "visible imbalance", the seats earmarked under that head were to be distributed among further "open merit" candidates.

On 27th June, 1974, the percentage of seats reserved for the different categories was refixed, so that 60% of the seats were now earmarked for admission on the basis of "open merit", 20% for distribution among candidates from the Scheduled Castes and other reserved categories including socially and educationally backward classes, and the remaining 20% of the seats were earmarked for "ensuring rectification of imbalances". Still another order dated 21st April, 1976 reduced the reservation for removing regional imbalances from 20% to 18%.

The selection of candidates for admission to the Government Medical College, Jammu for the academic year 1979-80 was challenged in this Court in Nishi Maghu v. State of Jammu and Kashmir(1)

and the Court held that "the classification made for rectification of regional imbalance without identifying the areas suffering from imbalance was vague and the selections made under that head were accordingly invalid'". The Court directed that the seats reserved under that head should be added to the quota of seats earmarked for selection on the basis of merit and filled accordingly.

Thereafter, in an attempt to remove the deficiency pointed out by this Court in Nishi Maghu (supra), the State Government published Notification No. 41-GR of 1980 dated 24th September, 1980 purporting to identify certain villages as socially and educationally backward for applying the principle of "rectification of imbalance in different parts of the State". A long schedule (covering over 60 pages of the record before us) was annexed and listed some hundreds of villages.

About the same. time, a Government order was issued fixing 17% of the seats in the M.B.B.S course of the medical colleges of D the State as the admission quota for the purpose of "rectification of

imbalances."

From 14th to 17th July, 1980, as many as 660 candidates were interviewed by a Committee at Srinagar by way of viva voce examination. On 21st July, 1980 the State Government issued a directive that a total list of J 25 candidates be prepared against all the seats of the two Government Medical Colleges, at Srinagar and at Jammu.

A Selection List was finalised taking into account the reservations made for various categories and classes by the different Government orders, and was published on 29th September, 1980, and the names of 75 candidates were announced for admission to the M.B.B.S. course to the Govenment Medical College, Srinagar.

The principal contention of Mr. Soli Sorabjee appearing for the petitioner in Writ Petition No. 5600 of J 980, is that not with standing this brave attempt to meet the constitutional requirement indicated in Nishi Maghu (supra) the State Government has failed in its purpose.

Tt is urged that there was no material before the State Government affording a pertinent basis for classifying these villages.

It is pointed out that almost whole tehsils of different districts have been identified as socially and educationally backward, 'bad pockets' and areas belonging to the line of actual control have been included and in the result with more than 95 per cent of the villages classified as socially and educationally backward, the inference must be that almost all

. ,

--~ , .+·

J.., )

of Kashmir Division calls for a reservation quota. It is asserted that a portion of Srinagar city, which includes Sangin Darwaza and Bhagwanpure, has also been identified as socially and educationally backward. To that class have also been added towns where Notified Area Committees exist. The submission is that the classification is wholly arbitrary and without any foundation to sustain it.

The

mere circumstance, it is urged, that the classification is defined on

B the basis of villages without anything more demonstrates its unconstitutional character.

The case of the State Government is that the classification fully satisfies the criterion "social and educational backwardness". In proof of the assertion it is pointed out that the present selection shows that candidates from areas not included in this classified category have taken 66 seats out of 75 on the basis of open merit.

It is conceded that a large number of villages have been included in the classification, but it is pointed out that the greater bulk of the population resides in the two cities of Srinagar and Jammu alone and would be equivalent to the population of hundreds of villages taken together. The classification is supported by the consideration that in the nature of things the in habitants of the rural areas are socially. and educationally backward.

It is urged that merely because some of the villages are administered by Notified Area Committees does not remove the stigma of backwardness. It is admitted that two reports, popularly described as the Anand Committee report and the Sikri Commission report, are under consideration by the Government but, it is said, as a comprehensive appreciation of the situation disclosed by the two reports of all the aspects of social and educational backwardness in the State has not been made yet, the Government has proceeded "in its own wisdom" to identify the areas suffering from regional imbalance.

We are of opinion that the classification attempted by the State Government by its order dated 24th September, 1980 suffers from the vice of arbitrariness and must be declared invalid. There is no intelligible data before us for sustaining the classification. No doubt the State Government has acted in its own wisdom, but the material to which that wisdom was applied has not been disclosed at all. The fact by itself that some hundreds of villages have been brought within the classification is of no assistance whatever.

Over six years ago, this Court in State of U.P. v. Pradip Tandon(1) ruled that in the matter of admission of students to medical colleges

(1) [ 1975] 2 S.C.R. 761.

a reservation in favour of candidates on the ground that they hailed from rural areas was unconstitutional.

The Court repelled the argument that it was necessary to reserve seats for candidates from rural areas because they were handicapped in the matter of education. It also rejected the plea that as the number of marks obtained by candidates from rural areas in the qualifying test were much lower than the marks obtained by the general candidates that was an indication of the farmer's educational backwardness. Ray, C.J., speaking for the Court, observed :

"The reservation for rural areas cannot be sustained on the ground that the rural areas represent socially and educationally backward classes of citizens. This reservation appears to be made for the majority population of the State 80 per cent of the population of the State cannot be a homogeneous class. Poverty in rural areas cannot be the basis of classification to support reservation for rural areas."

The criterion adopted by the State Government cannot be accepted unless supported by other relevant considerations. That a comprehensive understanding of regional imbalances from the Anand Committee report and the Sikri Commission report has not been possible yet affords no justification for an arbitrary classification.

We are not satisfied that the State Government has succeeded in bringing the case within Article 15 (4) of the Constitution. The material before us is woeful, ly inadequate and fails to sufficiently support the validity of the classification.

We are of opinion that the order of the State Government dated 24th September, 1980 must be declared invalid.

The next contention on behalf of the petitioner is that the allocation to the viva voce test of 30 per cent of the total marks is patently unreasonable and arbitrary. Our attention has been drawn to the observations of this Court in Ajay Hasia v. Khalid Mujrb(1) where an allocation of more than 15 per cent of the total marks for the oral interview was regarded as arbitrary and unreasonable and liable to be struck down as constitutionally invalid. It seems to us that the State Government would have done well to apply its mind seriously to the evaluation ratio between the three criteria adopted for admission.

When the Government order of 23 rd June, 1980 dividing the total marks between the three criteria was issued, there

·-+-

~·

was ample evidence of the principle and practice adopted by examining bodies of high repute and status in the country. The marks ratio adpoted by the Union Public Service Commission provided wise example. Besides, almost 10 years before this Court in A. Peeriakaruppan, etc. v. State of Tamil Nadu & Ors.(1) had expressed its disapproval of the ear-marking of 75 marks for the interview test out of 275 marks. And before the selection procees was taken in the present case this Court had already observed in Nishi M:ighu

(supra) that reserving 50 marks for the interview out of 'a total of 150 marks appeared excessive, especially when the time spent was not more than 4 minutes on each candidate. This precisely is what happened here, because on the case of the State Government itself the average time devoted to the oral interview of each candidate was 4 minutes. However, we are reluctant to interfere on this ground because a clear pronouncement that an allocation of more than 15%

of the total marks to the viva voce examination would result in constitutional invalidity has been made only recently, in Ajay Rasia (supra), by this Court and that was after the selection process in the present case had already been taken.

We would prefer to impress D on the State Government tliat there is need to revise the marks ratio because of the very real risk future selections will face on this score.

The next contention for the petitioner is that having regard to the number of candidates interviewed and the time applied to conducting the interview no more than two minutes or so could have been given on the average to the oral interview of each candidate, a period demonstrating, in the submission of learned counsel, that the selection process was conducted in a perfunctory manner and there was no real application of the mind to the.selection of candidates.

The State Government maintains that the time spent was four minutes per candidate'.

We have given the matter our anxious consideration, and we are unable to hold.that there is adequate material for striking down the selection on this ground.

But_ here again the State Government would do well to note the observations made by this Court in Ajay Rasia (supra) in this matter, and to ensure that Selection Committees take care to devote sufficient time to the oral interview. of individual candidates having regard to the several relavant considerations which must enter into their judgment respecting each candidate.

(J) (1971] 2 S.C.R. 430.

- G

We are also told by the petitioner that the composition of the Interview Committee varied from time to time during the interviews.

Therefore, it is said, the selection stands vitiated. It is alleged that while one member, Shri N.S. Pathania, Principal, Medical College, Jammu joined the Committee some time after the interviews had begun, another member, Shri B.R. Kunda!, Deputy Commissioner, Udhampur was present during a part of the proceedings only and left thereafter. In regard to Shri N.S. Pathania, it is not possible to say that his joining with a slight delay has materially affected the validity of the proceedings. And as regards Shri Kunda!, it appears that he was present on the I 4th July, I 980 and according to the petitioner, left on the morning of the next day. It will be noticed that all the members of the Committee except Shri Kunda! were persons closely associated with medical educatfon. Shri B.R. Kunda! was Deputy Commissioner of Udhampur. We also do not know what was the mode , of functioning employed by the Committee, whether it was such as to invalidate the proceedings if one of the members ex necessitas, was unable to participate throughout in them. The respondents maintain that at least three out of four members remain ed present throughout the proceedings.

And according to the petitioner, a proportionately small number only of the candidates was interviewed when Shri Kunda! was present. In all the circumstances, we find it difficult to say that Shri Kundal's absence from the Committee vitiated its proceedings.

Shri Soli Sorabjee then contends that a number of candidates were selected for admission because of favouritism on account of Y relationship or friendship with members of the Selection Committee er because they were related to important and influential persons in the State. The allegations have for the most part been made for the first time in the rejoinder affidavit and there has been no reasonable opportunity to the respondents to reply to them. Such

allegations on this point as are contained in the writ petition are extremely vague and sketchy, and can form no basis for a finding in favour of the petitioner.

There is one more contention, and that is that the respondents Nos. 7 to 12 did not apply for admission to the Principal, Government Medical College, Srinagar, and even if they are found to have done so their applications must have been submitted beyond the time prescribed as the qualifying examination in which they appeared was held late and the results were announced after the date prescribed for submitting the applications at Srinagar had expired. lt

ARTI SAPRU 'v. J. AND K. (Pathak, J.) 43

appears from the record before us that inasmuch as the relevant A examination was held late and the announcement of the results was delayed the State Government permitted the candidature of these applicants to be considered for inclusion in a common list drawn up to cover candidates for admission to either of the Government Medical Colleges, at Srinagar and at Jammu. Besides, it is conceded

by the petitioner that those respondents have an excellent record B and if they had applied in time for admission to the Government Medical College, Srinagar, they would certainly have been admitteti on the basis of their merit. In the circumstances, we do not propose to interfere with the grant of admission to those respondents.

Accordingly, the only relief which, in our judgment, should be awarded to the petitioner is the quashing of admissions granted irt the quota reserved for rectifying regional imbalances. In consequence, those seats must be filled up on the basis of open merit.

Writ Petitions Nos. 560 I of 1980, 5615 and 5689 to 5697 of

1980, which proceed on the same lines as Writ Petition No. 5600 of D 1980, must be disposed of in like manner.

The remaining cases, Writ Petitions Nos. 6283 to 6307 of 1980, fall in a separate category. The petitioners here challenge the selection of candidates for admission to the M B.B.S. course in the Government Medical College, Jammu for the year 1980-81; and complain of the denial of admission to them. The facts on which. these writ petitions have been brought and the grounds on which they claim relief are substantially the same as in Writ Petition .No. 5600

of 1980. Indeed, Shri M.K. Ramamurthi, learned counsel for the petitioners, states at the outset that he adopts the submissions urged in that case against the validity of the admissions granted for the purpose of rectification of regional imbalances, in regard to the invalidity alleged by the assigning of 30% marks to the viva voce examination and also in regard to the legal effect on the interview proceedings of the absence of some members of the Selection Committee during part of the proceedings. These pofots have bee11 considered and disposed of by us in that writ petition, and those findings are of equal validity in these writ petitions also.

Besides this, learned counsel for the petitioners raises other contentions.

He urges that the selections made are not in accordance with the Regulations framed by the Indian Medical Council under

s. 33 read with s .. 19A, Indian Medical Council Act, 1956 and H therefore violate the fundamental right of the petitioner guaranteed

under Article 15 of the Constitution.

It is contended that the Regulations are law and are enforceable in a court, and that if they are to prevail the only rese1vation permissible is that in favour of Scheduled Castes and Scheduled Tribes.

According to the Regulations, it is asserted, a Selection Committee can either take into consideration the marks obtained in a qualifyin.g examination or in the competitive test.

Nor, it is said, can a viV1 voce examination be permitted as a vehicle for selection. The validity of holdin.g a separate objective test is also assailed as also of assign.ing 35% of the total marks to it.

The merit test is challenged on the ground that no curricula have been prescribed in relation thereto

Objection to the objective test and the viva voce examination is based on the ground that they fall outside the scheme envisaged by the Regulations made by the Indian Medical Council for admission to the M.B.B.S. course. The respondents, however, question the validity of the Regulations.

We are then referred by the petitioners to clauses ( j) and (I) of s. 33, Indian Medical Council Act, 1956 in support of the contention that the power of the Council to make regulations extends to making regulations prescribing the examinations and tests for admission. It seems to us prima facie that those provisions do not authorise the Council to do so.

But we refrain from expressing any final opinion in the matter as the Council is not a party before us.

We are also not satisfied that the reservations permissible must be confined to Scheduled Castes and Scheduled Tribes. Nor do we find sufficient basis in the submission that there is arbitrariness in providing for 35 marks to a separate objective test in addition to the 35 marks earmarked for the qualifying examination. The grounds taken before us do not justify the conclusion that a competitive entrance examination is not permissible in law in addition to the qualifying examination. In regard to the sufficiency of the objective test, we are not satisfied that the absence of a prescribed formal curriculum vitiates the objective test.

The next contention on behalf of the petitioners is that the presence of a Government official on the Selection Committee vitiates its constitution. It is stressed that the viva voce test to be acceptable should be conducted by persons who are men of high integrity, calibre and qualifications. There is no principle of law, so far as we know, disqualifying a Government official from participating on the Interview Committee merely because he is a Government official.

Nor do we believe that a Government official cannot be a person of high integrity, calibre and qualifications.

The constitution of a

. .

Committee lies in the wisdom of the State Government and it is expected that men suitably qualified in every respect will be appointed to discharge the functions of the Committee. So long as the State Government acts bona fide and on the basis of relevant considerations it is not possible to say that the appointment of a Government official is obnoxious to the law.

In the result, the writ pelitions are allowed insofar that the selection of candidates for admission to the M.B.B.S. course of the Government Medical Colleges at Srinagar and at Jammu for the year 1980-81 mde on the basis of rectifying regional imbalances is quashed and the respondents are directed to fill up those seats on the basis of open merit. The candidates who will be displaced in consequence have already completed a few months of study and in order to avoid serious prejudice and detriment to their careers it is hoped that the State Government will deal sympathetically with their cases so that while effect is given to the judgment of this Court the rules may be suitably relaxed, if possible by a temporary increase in the number of seats, in order to accommodate the displaced can didates.

In the circumstances, there is no order as to costs.

S.R.

Petitions allowed .

PRU

STATE OF JAMMU AND KASHMIR & OTHERS

February 27, 1981

R.S. PATHAK

0. CHlNNAPPA REDDY, JJ

Indian Medical Council

section 33

Medical Council Act, 1956

Article 31

(1980) 3 S.C.R. 1253

Supreme Court

24th September, 1980

SAPRU

Anand Committee

Sikri Commission

Article 15(4)

[1975] 2 S.C.R. 761

Kunda

Srinagar

Jammu

section 33

section 19A

Indian Medical Council Act, 1956

Article 32

Soli J. Sorabjee

O.N. Tikk~

.E.C. Aggarwala

M.L. Bhatt

R.

Satish

V.K. Pandita

M. K. Ramamurthy

R. Vaigai

Joginder Singh

J.

Ramamurty

S.N. Kacker

PATHAK

23rd June, 1980

27th June, 1974

21st April, 1976

Government Medical College, Jammu

Nishi Maghu

14th to 17th July, 1980

21st July, 1980

29th September, 1980

Govenment Medical College, Srinagar

Soli Sorabjee

Srinagar city

Sangin Darwaza

Bhagwanpure

1975] 2 S.C.R. 761

Ray

Article 15

Union Public Service Commission

Nishi M:

Ajay Rasia

(1971] 2 S.C.R. 430

N.S. Pathania

B.R. Kunda

Udhampur

Kundal

Government Medical College, Srinagar

Medical College, Srinagar

M.K. Ramamurthi

s. 33

Indian Medical Council Act, 1956

Article 15

s. 33

Indian Medical Council Act, 1956


SONE LAL & ORS.

STATE OF U.P.

April 3, 1981

[ S. MURTAZA FAZAL ALI, BAHARUL ISLAM AND

A. VARADARAJAN, JJ. ] .

Indian Penal Code 1860, Ss. 302, 307, 323 read with S. 149-Enmity between parties of the accused and deceased-Altercation and assault-Accused receiving injuries-Accused whether aggressors-Whether entitled to right of private defence.

The prosecution alleged that there was a long standing enmity between the parties of the deceased and the appellants. There was a vacant plot of land in front of the flour mill and residence of PW. 1. The appellants started throwing rubbish on this piece of land. PW.I and his son, the deceased, objected to this. On the fateful day at about noon there was an altercation in connection with the throwing of rubbish, and at about 8 p.m. one of the appellants armed with a lathi went to the flour mill and challenged PW. 1 and his companions. At the call of this appellant, the other appellants who were armed with gun, pistol, Jathi and spear arrived at the spot. PW. 1 managed to snatch the spear from the hands of one of the appellants and started giving blows to the assailants in order to defend himself. At that time two of the appellants fired their gun and pistol as a result of which the son of PW. 1 received injuries, to which he succumbed while being removed to the Police Station. The defence of the appellants was one of alibi and that the offence had not taken place on the land of

PW. I.

The appellants were tried before the Sessions Judge who convicted and f sentenced them under Sections 302, 307 and 323 read with Section 149 of the -,.

Penal Code.

The High Court dismissed the appeal. It agreed with the ttial Court and found that the prosecution case was established by the evidence of the prosecution witnesses and that the defence version of the case had to be rejected on account of the inconsistent pleas made by the appellants before the committing court and the Sessions Court.

In the appeal in this Court, it was contended that there was no finding by H the trial and appellate courts as to how the assault initially started and which party was the aggressor, that the prosecution had not explained .as to how the

----- -

I •

SONELAL v. U. P. STATE (Baharu/ Islam, J.) 353

appellants received the injuries, and that the appellants had the right of private A defence and, therefore, they had committed no offence.

Dismissing the appeal,

HELD : l. The High Court rightly accepted the prosecution case as true and held that the defence case was false.

(356 F]

The findings of the two courts below indicate that it was the appellants who were the aggressors and that the occurrence took place on the land lying in front of the house of PW. I who was in possession thereof and that the deceased and PW. I had the right of private defence of property and person and that they exercised that right. The appellants who were the aggressors, even if they received injuries from the victims of their aggression, cannot have any right of private defence. The findings are that the deceased and PW. 1 were unarmed and that P.W. I snatched the weapon from one of the assailants and caused injuries to them. If the decesed and the other prosecution witnesses had been the aggressors, PW. l would not have come without his licensed gun.

[356 H-357A, 356 E]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 220 of 1974.

Appeal by Special Leave from the Judgment and Order dated 9th January, 1974 of the Allahabad High Court in Criminal Appeal No. 356/77 connected with Criminal Appeal No. 723 of 1970.

R. K. Garg, S. S. Bhatnagar, V. J. Fra11cis <ind Sunil Kumar Jain for the Appellants .

R. K. Bhat for the Respondent.

The Judgment of the Court was delivered by

BAHARUL ISLAM, J. This appeal by special leave has been directed against the judgment and order passed by the Allahabad High Court dismissing two appeals filed by the appellants before it.

The appellants were convicted under Sections 302, 307 and 323 all read with Section 149 of the Penal Code. They were sentenced to imprisonment for life, . each, under Section 302/ 149, rigorous imprisonment for 7 years, each, under Section 307/149 and rigorous imprisonment for six months, each, under Section 323/149 of the Penal Code.

Appellants Harish Chandra and Nathu were further convicted under Section 148 of the Penal Code and sentenced to rigorous imprisonment for two years, each. The sentences were directed to run concurrently.

The facts material for the purpose of disposal of this appeal may be stated thus. The prosecution alleges that there was

A long standing enmity between the parties of the deceased and the appellants.

Some time prior to the incident a flour mill was installed and a house constructed by P.W. I, Pahelwan, in his plot of land. In front of the flour mill and the residence of Pahelwan there was some vacant land in his possession.

The appellants had started

throwing rubbish on the land.

Pahelwan and his son, Ram Swarup

(deceased) objected to this.

The appellants were annoyed at the objection of Pahelwan and his son Ram Swarup. On 31st December, 1968 at about noon appellants Harish Chandra and Ram Sewak had some altereation with Pahelwan and Ram Swarup in connection with throwing of rubbish on the aforesaid land attd as a consequence the relation between the parties worsened.

In the evening at about 8 O'clock on the !st of January, 1969, appellant, Ram Sewak, armed with a lathi went to the front of the flour mill of Pahelwan and started to hurl abuses on Pahelwan and his son Ram Swarup.

Appellant, Ram Sewak, challenged Pahelwan and his companions to see them that day.

At that time, it has been alleged, an electric light was burning in the front of the room of the flour mill as usual.

At the call of the appellant, Ram Sewak, the other appellants came variously armed with lathis and spears and started giving blows to Pahelwan and his son, Ram Swarup, both of whom, according to the prosecution, were unarmed.

Pahelwan, somehow, managed to snatch the spear from the hand of the appellant, Ishwari, and started giving blows to the assailants in order to defend himself.

At that time, it has been further stated, appellants Harish Chandra and Nathu fired their gun and pistol respectively.

As a result, Ram Swamp was hit and he fell down in front of the flour mill.

The shot of Nathu hit P.W. I Pahelwan, Lal Ram and Shri Kishan, all of whom received injuries, Lekh Raj, P.W., then attacked the appellants with his lathi, as a result of which some injuries were caused to the appellants including Harish Chandra. Thereafter the appellants escaped.

Ram Swarup succumbed to bullet injuries while he was being removed to the police station.

A first information report was lodged by P.W. I, and eventually the appellants were committed to the court of Sessions that convicted and sentenced as stated above. Their appeal was also dismissed by the High Court as earlier stated.

H 4.

Learned counsel for the appellants submitted that large number of injuries had also been received by the appellants and that there was no finding by the courti> below as to how the assault

SONELAL V. U.P. STATE (Baharul Is/cm, J.) 355

initially started and which party was the aggressor, prosecution has not explained as to how the appellants received ti:e injuries. As such, he submitted, the conviction for the offences with the aid of Section 149, Penal Code, was bad in law.

In support of his contention he relied on a decision of this Court reported in AIR 1976 S. C. 2263. This Court in A.l.R. 1976 S.C. 2263(1) has held:

"(!) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the pre, cnce of the injuries on the person of the accused are lying on most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered

probable so as to throw doubt on the prosecution case.

The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one."

The submission of the learned counsel is that the injuries found in the persons of the appellants have not been explained by the prosecution.

The injuries are serious. The appellants had the right of private defence, and therefore, they have committed no offence.

The submission of the learned counsel is not warranted by the findings of the High Court. The High Court agreeing with the trial Court has found that the prosecution case as alleged has been established by the evidence of the prosecution witnesses.

The High Court as well as the trial Court has rejected the defence version of the case, in view of their inconsistant pleas before the Committing Court and the trial Court. Before the Committing Magistrate pleas of appellants, Harish Chandra and Soney Lal, were alibi.

The defence of appellants, Ram Sewak and Nathu, was that the occurr-

(I) Lakshmi Singh v. State of Bihar.

ence had not taken place on the land of P. W. 1, Pahelwan, as al1eged by the prosecution, but it had taken place at a different place.

According to them there was a quarrel in respect of some property between Ram Swarup, (deceased) and Zorawar, brother-in-law of Ram Swarup, in which appellant Nathu intervened whereupon Pahelwan (P.W. l), Lala Ram, Sbri Kishan, Triloki, Ram Swarup Prasad, Munna Jamadar, Lekthraj and others attacked the appellants and in that incident injuries were received by P.W. I and the deceased.

The defence of appellant, Ishwari, before the Committing Magistrate was that Pahelwan (P.W.l), Lekh Raj and others attacked hie1, as a result of which he became unconscious.

The defem:e of the appellants before the Sessions Judge was one of the right of private defence.

The defence of appellant Harish Chander before the Sessions Judge was an alibi.

The defence of the other appellanls was that Ishwari had been returning from Ghurwal Chak.

At that time he was attacked by the prosecution witnesses and the deceased. The incident took place on a land between residence and flour mill of P.W. l and in that assault the appellants had to defend themselves.

5. On a consideration of the evidence on record the learned High Court agreeing with the Sessions Judge has accepted the version of the prosecution and rejected that of the defence. In coming to that conclusion the High Court has also taken notice of the fact that P.W. I. had a licensed gun.

Had he and Ram Swarup and other P.W's been the aggressors, he (P.W.l) would not have come without the gun. In view of the "inconsistent pleas" and

"in view of the fact that no infirmity worth the name has been shown in . the statement of eye witnesses of the occurrence", the High Court accepted the prosecution case as true and held "that the defence case is false".

The High Court has also held that "appellants were the aggressors".

It is therefore, not correct to suggest as contended by the learned counsel for the appellants that there were no findings on record to show as to how the quarrel started and that the appellants were the aggressors.

6. From the findings of learned courts below the facts that emerge are (I) that it was the appellants who were the aggressors;

(2) that the occurrence took place on the land in front of the house of P.W.1, Pahelwan, who was in possession thereof; (3) that P.W.1 and the deceased bad the right of the private defence of property and person and they did exercise that right.

Aggresr- _,,.-

SONELAL v. U.P. STATE (Baharul Islam, J.) 357

sors, even if they receive injuries from the victims of their aggression cannot have the right of private defence.

The findings are that P.W.l and the deceased were unarmed. P.W.1 snatched a weapon from one of the assailants and caused injuries on them.

On the top of it two of the appellants brought fire arms and fired at the deceased and the P. W. I, as a result of which the deceased expired. The submissions of learned counsel for the appellants do not stand scrutiny.

7. This appeal has no merit and is dismissed.

N.V.K.

Appeal dismissed

SONE LAL & ORS

STATE OF U.P

April 3, 1981

S. MURTAZA FAZAL ALI

BAHARUL ISLAM

A. VARADARAJAN, JJ.

Indian Penal Code 1860

Ss. 302, 307, 323

S. 149

Sections 302, 307 and 323

Section 149

Penal Code

R. K. Garg

S. S. Bhatnagar

Sunil Kumar Jain

R. K. Bhat

Sections 302, 307 and 323

Section 149

Penal Code

Section 302

Section 307

Section 323

Penal Code

Harish Chandra

Nathu

Section 148

Penal Code

Pahelwan

Pahelwan

Ram Swarup

31st December, 1968

Ram Sewak

st of January, 1969

Ishwari

Nathu

Pahelwan

Lal Ram

Kishan

Lekh Raj

Ram Swarup

Section 149

Penal Code

Soney Lal

Zorawar

Lala Ram

Sbri Kishan

Triloki

Ram Swarup Prasad

Munna Jamadar

Lekthraj

Ishwari

Harish Chander

Ram Swarup

N.V.K.


WEALTH TAX OFFICER, CALICUT

C. K. MAMMED KA YI (SINCE DECEASED) THROUGH HIS

L.RS. T.M. POCKER & ORS.

April 7, 1981

[V.D. TULZAPURKAR AND E.S. VENKATARAMJAH, JJ.)

Wealth Tax Act, 1957-Section 3-"lndividual"-Whether includes Mapi/la -'!

Marumakkathayam Tarawad (Muslim undivided family) governed by Marumakukathayam Act.

The assessee who was the Karnavan of Mapilla Marumakkathayam Tarawad registered as impartible within the meaning of section 20(1) of the Mapilla Marumakkathayam Act, 1939 was assessed to wealth tax on the net wealth of his Tarawad in the capacity of an individual under section 3 oft he Wealth Tax Act.

The assessee's challenge as to the constitutional validity of section 3 as being violative of Article 14 of the Constitution was rejected by the High Court.

The High Court, however, held by majority, that non-Hindu Undivided Families like Mapilla Marumakkathayam Tarawads were altogether outside the purview of the charging section of the Act. The assessment was, therefore, quashed.

In appeal to this Court it was contended on behalf of the Revenue that the expression "individual" in section 3 took in a body or group of individuals like Mapilla Marumakkathayam Tarawad for being assessed to wealth tax and that long legislative practice obtaining in the taxing scheme Mapilla Marumakkathayam Tarawads have always been treated and assessed in the status of ''individual".

Allowing the appeal,

HELD : J.

The term "individual" in section 3 includes a group of individuals like [Mapilla Marumakkathayam Tarawad. The term "individual" does not mean only a human being but is wide enough to include a group of persons forming a natural unit. (365 E]

The canon of construction applicable to Entries in the Legislative Lists of the Constitution would be different from the canon of construction applicable to terms used in a taxing statute. While the object of an entry in the Legislative Lists is to demarcate a wide field by the use of compendious words the rule of construction applicable to a taxing statute must ensure _that the

WEALTH TAX OFFICER V. C.K.M. KAYI 359

subject is not to be taxed unless the language of the statute clearly imposes the A obligation. [364 B-C]

Russell v. Scott, [1948] A.C. 422, referred to.

3. The general scheme of the Wealth Tax Act is to assess to tax all persons who happen to possess wealth beyond the statutory limit and since the Act imposes a general tax on the entire wealth of the community the presumption would be of equality of incidence rather than exemption of a few. Secondly, the term "individual'' can be read in plural and so read would include a body or group of individuals like Mapilla Tarawad. Thirdly t.he two terms 'individual' and 'Hindu Undivided Family' cannot b3 said to have been used in anti-thesis with each other. Section 3, the charging section, is merely concerned with specifying different assessable units for the purposes of assessment of wealth and imposition of the levy.

[364 E-F]

4. It is well settled that the legislature can select persons, properties, transactions and objects for the imposition of a tax and for that purpose classify as many different assessing units as it could reasonably think necessary. This is how the three assessable units have come to be specified in that section. [364 G]

5. Specific mention of Hindu Undivided Family in section 3 does not D result in the exclusion of a group of individuals who only form a unit by reason of their birth like a Mapilla Marumakkathayam Tara wad from the operation of the scheme. [365 A]

6. The argument that because ol the references to wife, daughter and child of an individual in section 4 the term "individual" in section 3 should be construed as referable to a single human being is without force. Similarly, absence of provisions similar to those applicable to Hindu Undivided Family for assessing groups of individuals who form non-Hindu Undivided Families cannot affect or control the charging section. [365 D-E]

7. The legislative practice in the country in the taxing scheme had always been to treat and assess Mapilla Marumakkathayam Tarawad as an "individual".

[365 F] F

V. Venugopala Ravi Varma Rajah v. Union of India and Another, 74 I.T.R. 49 referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1543 of 1971.

,,,_, Appeal by certificate from the Judgment and Order dated 28.10.1965 of the Kerala High Court in O.P.674 of 1958.

B.B. Ahuja and Miss A. Subhashini for the Appellant.

G.C. Sharma, E.D. Helmes, S.P.Nayar and R.S. Sharma for H the Respondents.

The Judgment of the Court was delivered by

TULZAPURKAR, J.

This appeal, by certificate granted by the Kerala High Court, raises the question whether Mapilla Marumakkathayam Tarwads of North Malabar-Muslim undivided families governed by Marumakkathayam Act (Madras Act 17 of 1939)- fall within the expression 'individual' and are assessable to tax under s. 3 of the Wealth Tax Act, 1957?

The checkered history through which this litigation has passed may briefly be indicated in order to appreciate how the aforesaid question arises for our determination. At the relevant time deceased respondent was the karnavan of a Mappilla Marumakkathayam Tarwad registered as impartible within the meaning of s. 20(1) of the Mapilla Marumakkathayam Act (Madras Act 17 of 1939).

He was assessed to wealth tax for the assessment year 1957-58 on the net wealth of his Tarwad considered as an individual under s.3 of the Wealth Tax Act, J 957 and on completion of the assessment a demand notice dated July 16, 1958 was served on him for payment.

On September JO, 1958 he filed a writ petition being O.P. No. 674 of 1958 seeking to quash the said assessment and the demand notice on the ground of unconstitutionality of the Wealth Tax Act No. 27 of 1957 (hereinafter called 'the Act'). Four other writ petitions were also filed by the karnavans of Hindu undivided families of Malabar and Cochin governed by the Madras Marumakkathayam Act No. 22 of 1923 challenging the constitutionality of the Act.

Since comll}on questions of law arose for determination, the High Court disposed of the writ petitions by a common judgment. The constitutionality of the Act was challenged on two grounds-·( a) that the Parliament was not competent to include a Hindu undivided family in the charging s. 3 of the Act in view of Entry 86 in List I of the Seventh Schedule of the Constitution and (b) that the charging s. 3 of the Act was violative of Art. 14 of the Constitution. The High Court repelled the first ground of challenge and held that Parliament . was competent to include a Hindu undivided family in s. 3 of the Act as constituting a body or group of individuals coming within the term 'individuals' in Entry 86, but accepted the latter ground of challenge by its judgment rendered on July I, 1951.

It took the Jview that there was discrimination as between Hindu undivided families and Muslim . Mapilla Tarwads which were also undivided families and, therefore, the charging section in so far as it governed undivided families was hit by Art. 14. The High Court observed that the Department had . failed to substantiate its contention that Muslim Mapilla Tarwads

-~--

were so insignificant in number that their existence could be ignored in the context of the attack under Art. 14.

The Department carried the matter in appeal to this Court. By its judgment dated February I 7, 1964, this Court set aside the judgment and orders of the High Court and remanded the cases to the High Court to consider whether Art. 14 applied to the cases or not after giving the parties opportunity of putting forward their respective cases supported by facts and figures.

In doing so, this Court observed that on the question raised under Art. 14 the High Court seemed to take the view that it was for the State to show that Art. 14 was not applicable, that this was not correct and that it was for the party who came forward with the application that equality before the law or equal protection of laws was being denied to him to adduce facts to prove such denial.

On remand, out of the two contentions initially formulated by the assessees, the first relating to the constitutionality of the Act in relation to Entry 86 in List I had in the meantime been squarely dealt with and over-ruled by this Court in the case of Banarsi Dass v.

Wealth Tax Officer(1) and, therefore, the same was not pressed and only the second contention regarding the validity of the charging s. 3 as being violative of Art. 14 was argued before the High Court.

Each one of the three learned Judges, who heard the matter ultimately rejected the challenge and held that s. 3 was not violative of Art. 14, but each one did so for different reasons and in that process the majority reached the conclusion that non-Hindu undivided families like Mapilla Marumakkathayam Tarwads, were altogether outside the purview of the charging s. 3 and hence assessment made and the demand notice served on the deceased respondent deserved to be quashed.

Justice Velu Pillai took the view that the legislative entries in a constitution were to be widely and liberally construed but not the provisions of a taxing statute, that though the term 'individuals' in Entry 86 of List I would be comprehensive enough to include a body or group of individuals like undivided Hindu families similar construction of the expression 'individual' in s. 3 of the Wealth Tax Act so as to include non-Hindu undivided families like Mapilla Marumakkathayam Tarwads was not warranted, that the term 'individual' in s. 3 of Act occurred in anti-thesis with the terms 'Hindu undivided family' and if all undivided families were included in the terms 'individual' there was no necessity to mention Hindu undivided family as a distinct taxing unit.

. (1) [1965] 2 S.C.R. 355.

He, therefore, came to the conclusion that non-Hindu undivided families were not covered by the term 'individual' and were, therefore outside the charging section of the Act, but their exclusion from the charging section did not attract the vice of discrimination under Art. 14 inasmuch as it had been established that there were only 22 Mapilla Marumakkathayam Tarwads in the whole country and as such constituted an insignificant or microscopic minority and their exclusion from the charging provision was neither deliberate nor material and, therefore, s. 3 did not violate Art. 14. Justice V.P.

Gopalan Nambiyar, however, took the view that the expression 'individual' in s.3 of the Act properly read included a group of individuals who were members of a Mapilla Marumakkathayam Tarwad but since such interpretation of the term 'individual' led to differential treatment to such non-Hindu undivided families as compared to Hindu undivided families including Hindu Marumakkathayam Tarwads and would be violative of Art. 14 he would read down that expression so as to exclude Mapilla Marumakkathayam Tarwads and on reading down the expression as aforesaid s. 3 avoided the vice of discrimination under Art. 14.

Justice T.S.

Krishnamoorthy Iyer, however, took the view that the expression 'individual' in s.3 of the Act included group of individuals who were members ofa Mapilla Marumakkathayam Tarwad as, according to him, the specific mention of 'Hindu undivided families' as a separate assessable entity in the charging section could not restrict the meaning of the term 'individual' and, therefore, Mapilla Marumakkathayam Tarwads were assessable under s.3 of the Act and that even after inclusion of such group of individuals within the expression 'individual' the charging s.3 of the Act was not violative of Art. 14 of the Constitution. He took the view that the equality clause permitted the legislature a wider discretion to classify persons, properties or transactions into different categories and tax them differently under its power of taxation, that a Hindu Marumakkathayam Tarwad and a Mapilla Marumakkathayam Tarwad were not similarly situate, that the classification made by the legislature was rational and, therefore, the Act which provided for lower limit of exemption to individual and higher limit of exemption to Hindu undivided family could not amount to hostile discrimination against group of individuals constituting the Mapilla Marumakkathayam Tarwad.

In his view there was no substance in the challenge to s. 3 of the Act under Art. 14 and the writ petition was liable to be dismissed.

However, in accordance with the view of the majority that Mapilla Marumakkathayam Tarwads were outside the purview of s. 3 of the Act the writ petition was allowed and the assess

'"(

---~

ment made and demand notice served on the deceased respondent were quashed. In other words, though all the learned Judges repelled the challenge to the charging section based on Art. 14 of the Constitution, the majority reached that conclusion by holding that Mapilla Marumakkathayam Tarwads were outside the purview of s. 3 of the Act.

It is this latter view which is being challenged before us by the Department in this appeal.

Counsel for the Revenue urged two contentions in support of the appeal.

In the first place he supported the construction placed by Krishnamoorthy Iyer, J., on the expression 'individual' in s. 3 of the Act that it took in a body or group of individuals like a Mapilla Marumakkathayam Tarwad for being assessed to wealth tax.

Secondly, he urged that such construction was in accord with the long legislative practice obtaining in the taxing scheme in the country under which Mapilla Marumakkathayam Tarwads have always been treated and assessed in the status of individual-a legislative practice that has been judicially noted by this Court in the case of V. Venugopala Ravi Varma Rajah v. Union of India and Another.(1) On the other hand, counsel for the respondent assessee canvassed for our acceptance the view taken by Velu Pillai, J., that the expression 'individual' in s. 3 did not cover non-Hindu undivided families like Mapilla Marumakkathayam Tarwads and these were, therefore, outside the purview of the charging provision. He attempted to strengthen that view by contending that the expression 'individual' in s. 3 meant a single individual as a human being and according to him this was clear from the fact that references to 'wife', 'daughter' and 'child' of an individual occur in s. 4 of the Act. He further pointed out that under s. 5(1) (ii) wealth tax was not payable by an assessee in respect of his interest in the coparcenary property of any Hindu undivided family of which he is a member but there was no corresponding exclusion of the interest of the assessee in the property of a non-Hindu undivided family like a Mapilla Marumakkathayam Tarwad from the incidence of the tax and this also suggested that the term 'individual' in s. 3 was not intended to include a Mapilla Marumakkathayam Tarwad.

• Section 3 of the Act at the material time ran thus :

"Subject to the other provisions contained in this Act, there shall be charged for every financial year commencing

on and from the first day of April, 1957, a tax (hereinafter H

(1) 74 I.T.R. 49.

referred to as wealth tax) in respect of the net wealth on the corresponding valuation date of every individual, Hindu undivided family and company at the rate or rates specified in the schedule."

It cannot be disputed that the canon of construction applicable to Entries m the three Legislative Lists occurring in a Constitution would be different fwm the canon of construction that would apply to terms or expressions used in a taxing statute. The object of an Entry in any Legislative List is to demarcate as wide a Legislative field as possible by the use of compendious words or expressions while the rule of construction applicable to a taxing statute must ensure that "the subject is not to be taxed unless the language of the statute clearly imposes the obligation" (per Lord Simonds in Russell v. Scott(1).

It is, therefore, clear that because the expression. 'individuals' occurrjng in Entry 86 of List I of the Seventh Schedule to the Constitution takes within its ambit a Hindu undivided family, it would not automatically follow that the term 'individual' occurring in s. 3 of the Wealth Tax Act 19.J7 would include a non-Hindu undivided family like a Mapilla Marumakkathayam Tarwad, but the qestion will have to be considered in the light of the scheme of the Wealth Tax Act itself.

The enactment is intended to provide for the levy of wealth-tax; the general scheme thereof is to assess all persons who happen to posess or earn wealth beyond a particular limit fixed by the statute to wealth-tax and since the Act imposes a general tax on the entire wealth of the community the presumption would be of equality of incidence rather than exemption of a few.

Secondly, the term 'individual' under s. 13 (2) of the General Clauses Act, 1897 can be read in plural and as such would include a body or group of individuals like a Mapilla Tarwad. Thirdly, there is no warrant for suggesting that the two terms 'individual' and 'Hindu undivided family' have been used in anti-thesis with each other, for s. 3 being the charging provision is merely concerned with specifying different assessable units for purposes of assessment of wealth and imposition of the levy; it cannot be disputed that the Legislature can select persons, properties, transactions and objects for the imposition of a levy and for that purpose classify as many different a ; sessing units as it could reasonably think necessary and this is how three assessable units namely, 'individual', 'Hindu undivided family' and 'company' (which was later omitted) have come to be specified in s. 3.

In our view the specific

(I) [1948] A.C. 422.

... __ ..

WEALTH TAX OFFICER v. C.K.M. KAY! (Tulzapurkar, J.) 365

mention of Hindu undivided family in the section does not result in the exclusion of group of individuals who only form a unit by reason of their birth like a Mapilla Tarwad from the operation of the section. It is difficult to accept the argument that if term 'individual' was intended to include joint families or undivided families it was redundant to specify Hindu undivided families.

In the context of the argument that the term 'individual' can refer only to a single human being it will be apposite to refer to what this Court has observed in Commissioner of Income Tax, Madhya Pradesh and Bhopal v. Sodra Devi.(1) At page 620 of the report

this Court has said : C

" ......... word 'individual' has not been defined under the Act (Indian Income Tax Act 1922) and there is authority for the proposition that the word 'individual' does not mean only a human being but is wide enough to include a group of persons forming a natural unit."

The contention that because there are references to 'wife', 'daughter' and 'child' of an individual in s. 4 the term 'individual' in s. 3 should be construed as referable to a single human being cannot obviously .be accepted.

Similarly absence of provisions similar to those applicable to Hindu undivided family for assessing group of individuals who form non-Hindu undivided families [provisions like s. 5 (I) (ii)] cannot affect or control in any manner the charging section.

On construction, therefore, we are clearly of the view that the term 'individual' in s. 3 includes a group of individuals like a Mapilla Tarwad.

Furthermore, we would like to point out that the aforesaid construction would be in accord with the legislative practice obtaining in the taxing scheme in the country whereunder Parliament has always been treating and assessing Mapilla Marumakkathayam Tarwads in the status of 'individual' under the various taxing statutes. In V. Venugopala Ravi Varma Rajah v. Union of India and Another (supra), a case arising under the Expenditure Tax Act (29 of 1957), the question for determination was whether s. 3 of that Act was violative of Art. 14 of the Constitution because a Hindu undivided family (specifically mentioned as a distinct assessing unit) governed by the Marumakkathayam Law had to pay tax at a higher

(!) 32 I.T.R. 615.

A rate by reason of the amalgamation of the expenditure of all the members .of the family whereas a Mapilla undivided family was required to pay tax at a lower rate since the members of such family governed by the Marumakkathayam Law were liable to be taxed as individuals under the section and this Court answered the question in the negative. While doing so this Court pointed out how Parlia- B ment had been accustomed in enacting tax laws to make a distinction between a Hindu undivided family consisting of Hindus and undivided families of Mapillas and how for purposes of taxing statutes Mapilla Tarwads have always been regarded as individuals.

The relevant observations in this behalf run as follows : c

"Under the taxing Acts the scheme of treating a Hindu Undivided Family has been adopted for a long time, e.g., the Indian Income-tax Act IX of 1869, Indian Income-tax Act IX of 1870, Indian Income-tax Act XII of 1871, ActVIIIofl872, Act II of 1886, Act VIIofl918, Act XI of 1922, Act 43 of 1961 have treated a Hindu Undivided Family as a distinct taxable entity. Similarly under the Wealth-tax 27 of 1957 and the Gift-tax Act 18 of 1958, the Hindu Undivided Family is made a unit of taxation.

Under the Business Profits Tax Act, 21 of 1947 and the Excess Profits Tax Act, 1940 also the Hindu Undivided Family was made a unit of taxation. For the purposes of these Act.s Mapilla Tcrwads governed by the Marumakkathayam law have been regard<d as individuals."

(Emphasis supplied)

For all these reasons we hold that the term 'individual' in s. 3 of the Act includes within its ambit Mapilla Marumakkathayam Tarwads and they are well within the purview of the taxing provisions of the enactment. Further, even after their inclusion in the term 'individual' s. 3 of the Act would not be violative , of Art. 14 for the same reasons for which s. 3 of the Expenditure Tax Act, 1957 has been held to be not so violative by this Court in V.

Venugopala' s case (supra).

In the result the appeal is allowed but there will be no order as to costs.

. P.B.R.

Appeal allowed •

WEALTH TAX OFFICER, CALICUT

C. K. MAMMED KAYI (SINCE DECEASED) THROUGH HIS L.RS. T.M. POCKER & ORS

V.D. TULZAPURKAR

Wealth Tax Act, 1957

Section 3

section 20(1)

Mapilla Marumakkathayam Act, 1939

section 3

Wealth Tax Act

section 3

Article 14

section 3

Mapilla Marumakkathayam Tarawad

section 3

Mapilla Tarawad

Section 3

section 3

section 4

section 3

B.B. Ahuja

A. Subhashini

G.C. Sharma

E.D. Helmes

S.P.Nayar

R.S. Sharma

TULZAPURKAR

Kerala High Court

s. 3

Wealth Tax Act, 1957

s. 20(1)

September JO, 1958

Malabar

Cochin

Parliament

s. 3

Seventh Schedule

s. 3

Art. 14

s. 3

July I, 1951

Art. 14

Art. 14

February I 7, 1964

Art. 14

Art. 14

Art. 14

s. 3

Art. 14

s. 3

Art. 14

s. 3

Velu Pillai

s. 3

Mapilla Marumakkathayam Tarwads

s. 3

[1965] 2 S.C.R. 355

Art. 14

s. 3

Art. 14

V.P.

Gopalan Nambiyar

Art. 14

s. 3

Art. 14

T.S.

Krishnamoorthy Iyer

Art. 14

s. 3

Art. 14

s. 3

Art. 14

s. 3

Krishnamoorthy Iyer

s. 3

s. 3

s. 3

s. 4

s. 5(1)

s. 3

Section 3

Simonds

Seventh Schedule

s. 3

s. 13

General Clauses Act, 1897

s. 3

s. 3

Indian Income Tax Act 1922

s. 4

s. 3

s. 5

s. 3

s. 3

Art. 14

Income-tax Act

Indian Income-tax Act

Indian Income-tax Act

Gift-tax Act

Excess Profits Tax Act, 1940

s. 3

s. 3

Art. 14

s. 3

Expenditure Tax Act, 1957

V.

Venugopala