_,· •

.. ;

• . .

MANMOHAN KAUA

Y'ASH & OTHERS

April 2, 198'

[S. MURTAZA

FAZAL ALI, A. YARADARAJAN

AND

RANGNATH.

MISRA, JJ.]

Eleclion Lo•s-Corrupt P; ac1ict. aJlgotiQn of;_StantMrd of proof must

b~ prnved s1ric1Jy at a crimhsal char1e a"fd lhe p. i1cipJe of prepond.:ra11C<!. of

probabi.dlits woUJJ Ml app.I> tothtt Rtpresenta1ion of tht People A(f, I 9Sl- Cred1bil( .v a.1d rtlvaf!ct: Of Nt"'s item pub/1shtd ApplicaliJn-1•/ the principle 'of Jnut1.do-Rtprstn ation of Iht P1oplt Act, J9jJ, Sttrion-.J 2:J (4} 1 scope of.

l.J tbe oloction to the A1scmb1y consituehcy No -31 J_ullundur Cntt., which. -was held on 31.S 1980, the total Voles polled from the cons.1itueacy ·· were 47t>50, out of which the appellantpolled 19710, whereas te res~

po:ldnt Yash secured 41_8 voco1. more i.e. 20118 vqtes.

Therefor.e, the appe11ant+sou1b.t to challcn10 \he clcctioa of Respon.:11nt No. l on-various grounds c005-i•tin• of corrupt practio:es com:iliSted by .res;:toodent No. 1 wb, ch materially affected the result of the election.· 1\cCording to the "app:llartt,. Re&, oad.m1 No . .I thr0uah spec.ches ci thcr ma.de by him or his

ff1end carded out a vilhfyi.na ca.mpai111_ to show that he appellant was directly connected Wt1h the murd" of one Asa Rai1 a ha"r.ijan and one of

th•; supporters of Cona:rffs ll) party, 50 as to w.eaa away the votes of the hanj-1ns of th_e locality and tnembers of the Conaress (l) party. The Punjab and H:lry3-n1 -High Court disbelieved the 9!al vidence and found no nexus with tbc riews items etc. and dii.miid the election petition.

Hence the appealb'y special leaYc.

HELD L 1 It is well soa1ed that where the doctrine of iouendo is applied, it m11Jt be clearly proved that the defamatory alteaation -was m3de ia rCp_ect of a person thoUgh rio~ named Jet so fully described -that•

tile allegation wOUtd refer to that. person and that person alone. lnuendo cannot be proved merely by inFerentiJ.I evidence whih 'm:i.y be capable of two possibilities. [386F-G]

1. 2 ln the instant case, the evidence.statement pf.. witnesses aad the documents produced,- do not can for ar{y. inference Qr any close COn9ection or direct iink between the imputations made against the appellarit in 1978 and those made in 1980.

In none of the documents produced by the 3ppellant whicb °refer to the activities of the_ first respondent,"' there is the

slightest possible hint that th• appellant had anything to do with tho

muder of Aia Ram.

Further more, the allegadons made in 1978 being far too remote and there being no cootinuou~ link between those allega- . tions.and the allegati0115 made io 1980, thC first c1tcgory of the cbarse

11gaiost 'tb-e respondent cannot be sustained, more particularly because in

38 3',

. .

' SUPREME COURTS REPORTS

. [1984] 3 S.C.R"

1978. a fre&h election was not in the offina because .th.e Jznata' GOvernent came into.power iq 1977 and._in normal course would have completed its fuJI term~ in ~82_ ... Thus, ac that tinlno bp~1 coiil~ have predicted that the election would be held only two ye'ars Jter which happened by a suddtn spurt of events.

~386E--F; G-H]

N. Vimala [Jevi v. K •• Madhusudhana Reddy [1975] 3. S.C.R. 128 Jo!lowed.

2.J It is'now well settled by Eevcral aufkorities of the Sup1eme

ourt. t~1 an -aUe8a1iqn of: corrupt Practice musi be proved as. :stric tlY as a 1=rirninal charge and the principle of prepondertnce of .probaf:?iliti .es woutd not apply'- to corrupt practices envisaged by the Act because if th1 s test is no(applied a very sericus prtjudi.ce would be caused to the elected candidate who may be diqualified _for period of six years f1 om fight in& any election, whiCCh will adversely affect the elctoral process. !.JB7F-G]

2.2 In the instant case, ths evidence.both oral and documentary_ .. Jed by the appellant falls short of the •tandard of proof required to bring his case within the four corners of.section 123 (4) of the Representatjon of

th~ People Act 1951 (!) .• Aboutthe speech made on May 18, 1980, the deposition of PW8 ca'nnot be relied on inasmuch as it is i{qpolible to conceive of contradicti'On5 made by him..

If tho Witness a:pari from being 'interested and part jsan, had been Present in 'the meeting throughe_ut, he

would not forget whOspoke Brit.

Ev"en PW J 3 c.annot. b~ believed since,. : white admittinjl in Iris cross exaniinatio.p: that he did not make a notc:d of Wh3t YB.sh had Sl)okcn, yet he was able to givr: "full and grotesque details 'of t"be .spcech 1 that toa, when he was exarnind in 'thecourt after more .thati a year and half.

[390Q--D; ; J88B-D] ·

3. It is very difficult for a Court to rely on , news items pi.iblished in ;:i:ny new!papCr <:n the basis of infrrnation given b, r crrespondents beC-ause that may .not represent the true state of affairs.

It is at best a secoDd , h•nd •econdary evidence.

[388F-G]

:samant N. Balkrishnt1 v. George Fernandez & Ors. f1969] 3 S.CR •

. 603, reit~..fated.

CIVIL APPELLATE JUR!SDICTiON : Civil Appeal No. 2691 of .· 1982.

From the Judgment and Order dated the 4th day of Jun'e, 1982 of the Punjab and Haryana High Court in Election Petition No. 2 of !980.

Appllant in Person

O .. P. Sharma, .K, R. llu1i11, R. t:. 6ub;'1~. and R. ·~ •. 'Bhqftt1, . for the Regpondents.

,.\...:

' .

MANMOHAN f<AtJA v. YASH (s. , pazalAli, J.)

Th~ Ju13.n:nt of the Court was delivered by

PAZAL Au, J. This election appeal is directed agaimt a judgment dated June 4, I 982 of the Punjab & Haryana High Court <lism'ssing the election petition filed by the appellant against the respondent. The present appeal arises out of an election to , the Assembly constituency No. 31-Jullundur Cantt., which wa~ held on 31. 5. 1980 and the result of which was declared on 3.6.1980.

Both the appdlanl and respondent No ... ) wee the main rival "clnd'd3tes.

Tti: total votes pollea from the constituency were 47650, oqt of which the appellant polled 19710 whereas respondent No. 1 securd 20128' votes, the margin being rather small,

Vif'., 4JS. .

• The appelhnt sought to challenge the election of respondent No. I on various grounds consisting of corrupt practices committed by him (respondent No. !}, which, according to the appelhnt,

.mterially affected the result of th election.

The appellant, who is an Advocate, argued his case with brevity and ingenuity and fairly concedeathat l)e was not going . to press alJ. the allegations made inthe petition but would confine ·

his arguments only to the allegations pertaining to s. 123 (4) of : the Representation sif the People Act, 1951 (for short, to be referred to as the 'Act'). In orde' to understand the ambit and scope within the c?nfiites of which the appellant h1s argued his . case, it mw be necessir)' to extract sub-section (4)-

"The publication by a candidate or h!s agent or by

my other person, with the onsent Of a candidate or his' election agent, of any staten1ent of fact wh'ch is false, and which he either believes to b.e false or does not believe to . "be true, in relation to the personal character or conduct of

any candidate, or in relation to the candidature, or with-. drawal, o( any candidate, being a statement reasonably calculated to prejudice the prospects of that oondidate's

election." ·

Jn view of the concessions made by the appellant, the case lies within a very narrow compass. ']; he allegations made by the appellant against the respondent consist oftwo categories-,

(I)' speeches having been made y , the respondent or his friends near about. the. time. of the electi6n and after the , respondent was , nominated as a candidate, which amounted

'G.

to serious character aisasination of the appellant by projec- . trng bimas a murderer of one Asa.Ram, who died as far

back as 1978. ·

According to the appellant, the respondent No. I carried out . a villifying compaign to show that be (appellant) was directly conneted with the aforesaid murder so as to wean way the vote~. of the harijans 9f the locality. and members of the Congress (I). part)' because Asa Rm was harijan an.d one of the supporters or Congress (I) party. Jn thi~ <;.onnection, the allegations made ma:ir be clased under t'Yo. separate categ()ries:. -

(a) Utterances; speeches, 31e'l'(s items and articles regarding the allegation that •tho appellant was directly connected with tbe murder of Asa Ram in.1978, and ·

(b} speeces 'and news item~ mde and issued by respondent N1>. 1 on varic us occasions proximate to the date of the election. ·

(2)' Similar acts comm(tted by respondent No. I in closeproximity vto the election, i.e., sometime in May 1980_ After, hav!ng gone through the ovidonce. statemcnr.ofwitnesses. andt he ·.iocuments placed before us, weare. un.able to find any close connection or direct link beNeen the imputations n:iadc against the appelillnt in 1978 and those made in'l980. In none ofthedocui; nents produced by the 'appellant, which refer t6 the act.ivities of the firstrespondent, there is the slightest possible hint that the appellant had anything to do wilh tho murder of Asa Ram .. Realiiing. this diffiCl!ltY, the appellant sought the application of the doctrine of inµendo: It is well settled that where t.his doctrine is applied, it must be cl¢ar)y proved that the defamat9ry allegation was m.:i1le in respect of a person though not . nam.ed . Yet so fully described that the allegation would refer to. that person and that.

prson alone.· ]nuendo canot b.e proved. '?rely by inferentiat evidence which may be capable of two po~1b1ht1es. Furthermore, the allegations made in l 978 being far to? remote and there being: no continuous link botween those al!egat1on9 aod the allegations. made in J 980, the first categor)' of the charge against the respon' dent cannot sustai, ned, more particularly because in. 1978 a. fresh election was not in . the offi!lg because the Janata Govern,

ent came into power in 1977 and in normal courae would have:> :rinpleted itsfuU term in 1982. Thus, at that time nobody could have.predicted that the elections .would be held only two yean .. later which happened by a , udden spurt of events.

' --t .

<.•

)u.

~·

A..

' j. •

" MANMOHAN KALIA v. YASH ( Fazal Ali, J.)

In these circumstances, we would place no reliance at all so far as the first category of the allegations against the respondenth is concerned. In N. Vimala Devi v. K. Madhusud!uma Reddy(1) this Court corrtpletely ruled out documents containmg instances of corrupt practice which had nothing to .do with the 1972 election with which their Lordships were concerned in that case and in.' this connection while overruling an important documeltt they observed thus : ·

, "We are not impressed by the argument on behalf of the. respondent that Ex. A-57, whiph shows that even in

1970 a representation of a similar kind was made,' shows that there were many others out to besmirch the name of the appellant. Ex-A-57 contains many instanees which have nothingto do with the election in 1972'or the detting up of a Congress candidate in that election. T.hat is the affinity between Ex. A-48 and E, x-Al."

' A

On a parity of reasoning, tl\erefore, we cannot call into aid D the allegations made as far back as 1978. It is, therefore, not necessary for us to consider or to go into the 'evidence offered by • tlie appellant as far as the 1978 incident it concerned.

Coming now to the second category of allegations, as the appellant has confined his arguments only to the averments made regarding the application ofs. 123 (4) of the Act, the ambit of the case is greatly reduced.

Before examining the allegati'ons, we might mention that the learned election Jndge of the High Conrt had dealt with all the allegations and has given convincing and cogent reason§ for holding that they had not been proved either by oral or documentary evidence. It is now well settled by several authorities of this Court that an allegation of corrupt practice must be proved as .strictly as a criminal charge and the principle of preponderance of probabilities would not apply to corrupt practice envisaged by the Act because .if this test is not applied a very serious prejudice would be caused to the elected candidate who may be disqualified for a period of six years from fighting any election, which will adversely affect the electoral process.~

Keeping in view, therefore, the strict standard of proof required in. such cases, we proceed to consider the evidence on which the appellant has relied in order to determine whether or not the corrupt practice alle$ed has been proved. In this connection, the first circ.uinstance stNssed before 11s was that a meeting

(Jl [191s] 3 s.c, R,. 1;:s,

,,.

- \ was convenea in Gopal Nagar, Ward No. 22, on May 18, 1980 where respondent No. 1 and, with his consent, his friend Sansar Chand, delivered fiery speeches connectmg the appellant with the •murder of Asa Ra!ll, which was deposed to by PWs 8 and 13.

PW 8 has stated that he attended a meting on 18. 5. 80 at Bas ti Guzan. The. learned Judge disbelieved his evidence as being wholly improbable. Moreover, there is a .contradiction• in his evidence li'ecause at one place he says tl; l.at Yash (respondent .

No. 1) spoke first and was followed by Sansar Chand and yet at another place. he says. that Sansar Chand spoke first and w.as followed by Yash. It is. impossible to conceive of such a co~ trad}ction if .the witness apart from being interested and partisan, had been present in the meeting throughout, he would not forget the sequence of such 2n important matter. Another witness relied upon by the appellant was PW 13 who has also been dis believed by the learned Judge, and he had admitted in his cross examination that he did not make a note of what Yash had spoken and yet.he was able to give fult and grotesque details of the speech when he was examined in the court, after more than a year and a half. Furthermore, _he states that when he talked to the appellant he was told that the respondent already knew about the meeting. this shows that the appellant himself did not take this witness very seriously. We, therefore, entirely agree with the appreciation of the evidence of these two witnesses made by the learned High Court Judge.

The evidence of.PWs 8 and 13, however, is alleged to have been corroborated by a news item published in an Urdu-daily 'Milap' whose Chief Sub-Editor (PW 5) was examined by, the • appellant. But the witness far from supporting his case has deposed that he had absolutely no personal knowledge of the Report'made by Prnshar which was published on 24.5.80. M; ore, over, it is very difficult for a court to rely on, new; jtems published on the information given by correspondents because that may not represent the true state of affairs.

In Samant N. Ba!akrishna etc. v. George Fernandez..&> Ors. eta. (l) while dwelling on the relevance and credibility of such type of news items. this Court made the fqJlowing observations :

"The best proof would have been his own speech or soine propaganda ma, terial such as leaflets or pamphlets etc., but none was produced ...... A news item without any fur- • ther proof of what had actually happened through witnesses is of no value. It is at bes\ a secondha1,1d secondary evi-

(1) (1969] 3 S.<;.R.~603.

.. Jr

... •

MANMOHAN KALiA v. YA.SH (Faza!.A/i, J.)

dence. It is well-known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In. this process the trnth m\ght i; et

perverted or garbled: Such news items canuot be said to pcove themselves although they may be taken into account with other evidence if the other evidence is forcible,"

In the instant case, there is no evidence to show the actual record of the speech made by respondent No. I or Sansar Chand and, therefore, the said news item does. not advance the case of the appellant any further, particularly when it has been stoutly denied by respondent No. I and PW 5.

Reliance was also placed on another news item (Ex. PW 25/4) appearing on 20-. 5. 80 which also has to be rejected on the same gronnd as the firstitem •

. The learned Judge has rightly pointed out in his judgment that PW 25, after he was shown the newspaper dated 12. 5. 80 (Ex. PW 25/3), has said that he did not know anything else, that is to say, neither the correspondent revealed the source from which he got the information nor does he ay that he was actually present when the speeches were delivered. On the other.hand, RW-3, Dev Raj Puri, had clearly stated that certain changes were made in the items which he had filed and this statement of RW3 was n<)t challenged .

Thus, the evidence furnished oy the aforesaid items is also of little value to the appellant. On the same principles of reasoning the reports ot the meetings published in 'Milap' regarding the

speeches delivered on 17th and 28th May 1980 also suffer from the F same infirmity.

Strong reliance was placed on the document, Ex. R W-24, which had been admitted by the first respondent.

We have gone . through the entire speech published in the daily 'Milap' on 18.5.80

and we do not find even a •ingle word to connect the appellant with the murder of Asa Ram.

In fact, the entire speech repro duced in the said Paper does not at all show that the speaker, viz., the first respondent, made any reference to the appellant at all.

Ill these circumstances, therefore, even the appellant himself had to admit before us that as the text of the speech has been reprodu. ced, no allegation has been made against him. ·

The appella11t, h9wever, tried in vain to argue that the afore-

A said speech would amount t9 inuendo because it has expressly referred to the drcumstances under which Asa Ram was murdered. By no stretch of imagination can the doctrine of inuendo be invoked to the aforesaid .speech. We therefore, reject this contention also.

. ,,

After a careful consideration of the documents, the circum- . stances of' the case and the oral evidence of the witnesses placed before us. We find ourselves in agreement with the judgment of . the High Court. Indeed, it is very difficult to prove a charge of

corrupt practice merely on the basis. of ornl evidence because in . election cases, it is very easy to get the help of interested witnesses but very difficult ro prove charges of corrupt practice. Iu the instant case, the evidence-both oral and documentary-led by. the appellant falls short of'the standard of proof required to bring his case within the four corners f s. 123 (4) of the Act.

We must, however, record our appreciation of the crisp and candid manner ill which this case has been presented before us by the appellant.

. ·~: . .

For the reasOl)S given above; the judgment of the High Court is affirmed and . the appeal is dismissed but in the circumstances without any order ils to costs. ·

S. R ..

Appeal dismissed •

...

MANMOHAN KAUA

ASH & OTHERS

FAZAL ALI

MISRA, JJ.

S 1980

Asa Rai1

Aia Ram

section 123

People Act 1951

pazalAli,

PAZAL Au

s. 123

Representation sif the People Act, 1951

Asa

Ram

Asa Ram

Sansar Chand

Asa Ra!ll

18. 5. 80

Sansar Chand

Yash

Yash

Prnshar

20-. 5. 80

12. 5. 80

Dev Raj Puri

17th and 28th May 1980

s. 123


UNION OF INDIA & ANR

AVTAR SINGH & ANR .

• April 4, 1984

(D. A. DESAI, A.P. SEN AND V. BALAKRISHNA E~AD!, JJ.]

Punjab Refugees (RegiJtration of Land Claims). A ct; 1948-s. 33- Revisional ppwer 'of Central Government-Scope of-Whether can be ex'ercised repeatedly.

One Harnam Singh, filther of the respondents, was owner of some agricultural land in the erstwhile Siad Province now forming part of Pakistan.

After the partition of the country he along with his wife and three sons migrated to India.

As displaced person, J:ie lodged a claim on March"lS, 194g in respect of his entire holding on Pakistan.

On the introduction of the Punj.ab Refugees' (Registration of'La.nd Claims) Act,

1948. on April 3, 1948 the said Harnam Singh, his sons and. his wife filed separate claims alh; ging that in 1946 there was an oral partition of the land which origioaIJy belonged to Ha.roam Singh.

The claims were

verifid and allotments were made in favour of each claimant.

The Chief Settlement Commissioner rejected a .reference from the department and by his order dated August 21, 1961 held the allotments to be valid.

Apprehending that tlle claim of ownership of I.and in Sind and the partitioD. between himself, his sons and his wife and the allotnicnt of land was being reexamiped, on March 13, 1962 Haroam Singh submitted a

represenation to the Government of India for issuing a direction under s. 33 of the Act that the matter be treated as finally settled.

On this representation, Shri N. _P. Dube, Joint Secretary to the Governmentof India, Department of .Rehabilitation wrote a D. 0. let1er dated Ma)' 31,

J 96f to Shri J.• M. Tandon, Deputy Secretary to the Government" of Puojab, Rehabilitation Department, saying, inter alia.- c'that there is no ' polnt in \\aitii1g any more and the mater should be finalised on lhe basis of the judical findings arrived t in the case.

We also feel that there are no reasons to differ from those judicial pronouncemeots at this stage~ The record received from the Punjab Government is, theefore, returned with thC request that the case may be finalised as mentioned above".

It appears "thaf the Managing Officer of the Rehabilitation Departinent, Punjab Goeernment sublllittd a 'note to moVe the Central Government under s. 3 3 of the Act for reopening and cancellation of the order of the Chief Settlement Commissioner dated August 21, 1961.

Thereupon a notice was issued to the allotees calling upon them to show cause why the order of the Chief Settlement Commissioner datod August 21, 1961 should not be set aside and allotment in .favour of each of them should

. . 392

~.:

sUPREMll COURT REPORTS . !1984} 3 s.c.R .

not be cancel1ed.

The al!otees contended that since.the power of revision conferred by s. 33 of the Ac~ had already been exercised by the Central Government. the same pow.Jr Qf revisioncould not be.repeatedly exercjsed particularly when no fresh material against the allotees was prOduced after the ee).rlier decision.

Ultimately a Joint Secretary to the Government of India exercising Power of revision conferred bys. 33 by his order dated March 15; 1965 quashed and set aside the order of the Chief Settlement Comniissioner datd August 21, 1961 and further directed that the .allotment of land in favour of Harbans Siog!'t~ bi~ sons and his wif~ be cancelled and that a fresh' allotment be made on the fc;>oting that Harnam Singh alone was_ the owot:_r of lb~ Ian~ situated in Sind.

The validity of the order dat'd March 15, 1965 of the Joint Secretary was challenged in the.Higb, Court by two sons of Harnam Singh, respondents in this apptaJ. roadly agreeing with the view taken bya learned o&in8; le Ju.dge, a Division Bench while dismissing the Letters: Patent appeal in the High Court, held that the D. 0. Le\ter of the Joint Secretary dated May 31, .1963 conveyed the decision of the Government of India in exercise. of powers under s. 33 and therefore, the power of revision against the order : of the Chief Settlement Commissioner was eXhaustedbecause.a quasi .. judicial tribunal bad no power to revise or review its earncr decision on merltS even if the earlier decision was wrong on facts OJ law. Acc, ordingly , th.e.High Court eldthat the impugn, ed order of the Go.vrnm:nt df.India •ctated March 15, 1965 waswitbout jurisdiction and w.5 invalid and' of -no lega~ effi.C!fY Hence this appeal.

Allowing the appeal,

HELD : The. contention that he power of revision cannot bo repea tedly exercised and finality must attach to the orders would necessilat .. an examination iil depth rof the nature and extent of power conferred by section 33 of the Punjab Refugees (Registrati.on of Claims) Act, 1!>48 which enables the Central Government to revise nd reopen any proeceeding under be Act and to pass any Order in relation thereto as in the opU:tion of the Central Governmenl the circumstances of the -case i'equire

and a& is not-inGonsistent with any of the provisions contained in the Act or the Rules4Dade thereunder.

But in the facts of the 4present case it is not necessafy to undertake this exercise.

The Court would proceed on the assumption that section 33 of the Act does not provide reservoir .of power from which revisional jurisdiction.can b~ exercised more than once in.respect of the same order or the same proceeding. [403E-F]

Jn the instarit case the questic~ which would squarely arise is .wbe . ther on an earlier occasion, tbe Central Government h::d exercised any r.evisional power cenferred by section 33 in tespect of the order dated -August 21, 1961 of the Chief Seltlet'nent Col'pmissioner.

In other .Words, whether, as contended by the appellants, the letter of Shri N. P. Dube, Joint Secretary dated May 31, 1963 is a decision recorded by the Central Governnlcnt in exetcise of .the power conferred by section 33 7 The letter of Mr. Dube dated May 31, 1963 does not record any decision of the Central Government.

It merely says that it is not necessary to wait any tnore fQr r.espons~ to the queries addreSsed to authorities in .Pakistan and

~· ..

.· .

• -"

. ,

• UNION v. A vTAR SINGH (Desai, J.) 393 • the matter should be finalised .on the basis of finding-arrived at in tbe A case.

IL further proceeds to aver that there is a feeling that there is no ,.q reason to differ from those judicial pronou11ce.ments at 'this stage'.

Such . expression of feelingcould hardly tentamount to a decision of the Ceptral Government under Sec. 33. By this letter the Central 'Government lnformed~

the Government of Punjab that the record is -returned with the request that the case may b~ finalised as indicated in the letter.

The rev, isional B power is tl1e po, vcr of the Central Government and not of the Punjab Government.

The decis.ion was Jeft to the Punjab Government. There was nothing pending with the Punjab 9overnment for finalisation Therefore, the High Court was clearly in error in tteq.ting, the letter of Shri Dube dated May 31, 1963 as a decision of the Central Government in

exercise of the power conferred by Sec. 33. There was no occasion for the Central Government to exercise power under Sec. 33 and therefore, C it is not possible to agree with the, Righ Court that the letter records the decision of the Central Government under sec, 33. If the letter of Shri Dube is not a decision al the Central Government uDder Sec. 33 of the .' Act. as a necessary coro11ary, the impugned decision must be treated as one renderer. for the first time in exercise of the revisional power under Sec. 33 and therefore, it cannot be said to be one without jurisdiction.

(403 G; 404 A; F_:G; 405 B-E] 0

'D. N. Roy and S. K. Bannerjee & Ors.

v. State of Bihar ·&Ors. (1971] 2 S.C.R. s2'2.

If every litigant in whose favour a competent authority has made an order can still appn1ach the bighei authority for the affirmanCe of the orJer witbont any rhyme or reason, the whole gamut of power of revisional jurisdiction )VOUld become a play thing for already successful party who muy fOreclose the decision and when needed can successfully urge that lhe power of revision is exhausted.

[404 E-F]

CivIL APPELLATE JURisDICTION : Civil Appeal No. 503 of 1971.

. From the Judgme11t and Order dated 2-2.5.1969 of the Punjab & Haryana High Court in LP.A. No. 384 of 1966.

M.M. Abdul Khader and Ms. A. Subhashinifor the appellants.

 P.P. Rao foF the Respondent No. I and R.S. Bindra and Har G bans Singh for respondent No. 2.

The Judgment of the .Court was delivered by

DEs~1, J. Avfa~ Singh and Dr .. Kartar Singh two sons of S.Harnam Singh filed Civil Write No. 1242 of. 1965 against their fathers. H,;;\rnam Singh, respondent No. 2 and Union of India and Tehsildar cum Managing Officer, respondents Nos. I and 3 res

'394

. E

SUPRm.iE COURT REPORTS .U984] 3 s.c.lt.

pectively questioning the correctness and vali<lity of an order dated March 15, oi96~, Anneimre 'G' to the petition.

S. Hanam Singh was the owner of agdcultural land compri sed in DehNo.)00 as also a portion of the land included in Qoh No. 99 situated in District Nawab Shah, in erstwliile Sind Pr0vi-. nee now forming part .of Pakistan. Harnam Singh hd three sons : Avtar singh, Dr. Kartar Singh and Hu bans Singh. Smt.

Tej Kaur was the wife of Harnam Singh. It was alleged that ia the year 1946 Harnam Singh dfected a partition of agricultural land between himself, his three sons and hi"s wife Smt. Tej Kaur each being given an almost equal share. It was alleged thaf intimation of the alleged partition was sent to the revenue authorities of Sind Province with a request to effect necessary mutation .in the revenu\records showing land as haying been given in the partition to the particular person .. After the partition oft)le conn- .· try S. Harnam Singh his three sons and hi; wife migrated to India and they claim to be displaced persons. ' Harnam Singh lodged a claim on March 15, 1948 in respect 6.f the entire land including the Jand belonging to •the heirs of Ch. Attar Singh who was his father-in-iaw. Later on, on April 21, 1948 Harnam Singh intimated to the ehabilitation Authorities that out of a total claim of 300 acres of land lodged y him, about 75 acres of land• was of ti)e ownership of Ch. Attar Singh and confine?! his clai111 to•the total area of 225 acres of land. It may be mentioned that in the claim lodged on March 1,5, 1948 there was no reference to the partition effected by Harnam Singh between himself his sons and his wife.

On the introduction of the Punjab Re.fugees (Registration of Ljtnd Claims) Act, 1948 ('Act' for short) on April 3, 194S Harnam Singh and his sons as also Smt. Tej Kaur filed separate claims ~µ the basis of the partition of the land which originally belonged to .s. Harnam Singh. It was alleged that .these claims were verified and allotments of land were made to th.e extent of 21-8 standard

acre~ in favont of each claimant on temporary liasis. On October

5, 1953, Harnam Singh and his sons approached the .authorities in the Rehabilitation Department' to convert temporary allotment into quasi-permanent allotment. Deputy Registrar °Land. Claims accepted the request of Harnam Singh and his sons, both with regard to the ownership of the land as well as partition thereof amongst various members of the family.

I!owever, it was recomended that on the basis of the revjsed calculations, each claimant would be entitled to 19-LH S.A. of land instead of 21-8 S.A. and the excess allotment should be cancelled This recommenda; tion was approved by the competent antho.rity vide its order dated,

. .J • •

. I"

UNION v. AVTAR SiNGH (l>esai, J.) • October 28, 1953 as also by the Deputy Custodian of Evacuee Property as per its order dated November 11, 1953. Conseqirently

excess allotment of 8-14, l . standard a.ores in respect of five claimants was cancelled and the remaining allotment was ordered to be made on cjuasi-permane1if basis.. It was alleged that later on proprietary rights were conferred on each claimant in respect of . the land allotted to him by the Managing Officer. Some time in

39S

1960, a notice was received by the allottees from ihe Chief Settlement Commissioner1 Punjab calling upon them to show cause why their allotment should not be cancelled. In view of the notice, it became necessary for the allottees to eatabhsh not only the ownership of land in Sind but the partition thereof amongst themselves. The allottees claimed that they offered the necessary proof which satisfied the Chief Settlement Commissioner who had issued notice on the basis of Jamabandi entries received from Pakistan.

Accordingly the Chief Settlementcommissjoner by his rder dated . August 21, 1961 c_onfirmed the allotment, directed conferment of quasi-permanent status and rejected the departmental reference.

Somewhere in October 1961 , Harnam Singh apprehended that the claim to ownership of land in Sind and the partition between

himself, his sons and his wife and the allotment of land was being re-examined whereupon on March 13, 1962 he submitted a representation to the Government of India for issuing a direction under Section 33 of the Act that the matter be treated as finally .. settled. It is alleged.that on this representation, the Government

of India sent for the record of the whole case, called for the comments of the Punjab Rehabilitation Department which led Land Claims Officer to forward his note dated October 27, 1961 to the Government of India alongwith the whole record of the case. It' is alleged that the case was examined and the Joint Secretary 'to the Government of India, Ministiy of Rehabiiitation, one Shri Dube, conveyed the decision. of the Govrn ment of India to the Deputy Secretary to the Government of Punjab, Rehabilitation. Department, Jullundur vide his D.O.

Letter No. 13(66) L&R0-62 dated May 31, 1963 with certain observations which it is alleged tend to ; how that the power of revision under Sec. 33 was ex_ercised and. both, the holding of the land in Sind, partition thereof betwen, Harnam Singh, his sons and his wife and the allotment of land to them as displaced persons in India were considered as valid and finally settled. It appears that the Managing Officer of the Rehabilitation Department, Punjab

Government submitted a. note dated November 5, 1963 to move the Central Government under Sec. 33 of the Act for cancellatiou ·

of the order of the Chief Settlement Commissioner dated 11.ugust

~- B

D ..

. SUPRBMB COURT REPORTS

21, 1961. 1hereupon the Chief Settlement Comissioner issued a notice da!ed May 21, 1964 to the ~Ilottees calling upon them to show cause why allotment in favour of each of them should not be cancelled The allottees appeared and submitted .their objections . to the re-opening of the cas_e inter alia contending that the power of revision conferred by Sec. 33 of the Act cannot be repeatedly exercise and it having been earlier exercised and the al!otfilent having been held to be valid as Per the letter of Shri Dube dated , May 31, 1963, the Central Government had no jurisdictio11 either to revise or review its previous decision more prticularly when no fresh material -against the allottees is produced after the earlier decisio11. Ultimately the Joint Secretary of the 6overn- -ment of India exercising power of revision co11ferred by Sec. 33 . by his order ilated March 15, 1965 Annex. G to the writ petition

quashed and set aside the order of the Chief Settlement Commissioner .dated August 21, 1961 and. further directed that the allotment of lal)d in favour of Harnani Singh, his sons and his wife be cancelled and that a fresh allottnent be made on the footing that Harnam Singh alone was the owner of the land situated in Sind.

In other words, the claim that each sons of Harnam Swgh ha\i acquired land on partition was rejected as untenable. Thereupon, two sons of Harnam Singh, Shri Avtar Singh and Dr. Kartar Singh filed Civil Writ Ptition in the High Court of Punjab at Chandigarh.

An affidavit in opposition was filed on behalf of respondent Nos. I and 3 by one A. G. Vaswani, Settlement Commissioner (A) & Ex-Officio Under Secretary to the Gvernment of India, Ministry of Labour Employment & Rehabilitation inter a/ia contending that in April 1948 when for the first time Shri Harnam Singh lodged his claim a~ displaced person against the loss of his land and property, in Pakistan, he had categorically stated that 225 acres _of land situated in Sind belonged to him and there was no express or implied, overt or covert reference or even a whisper of a partition between himself and .his sons and wife before he migrated to lni!ia. 'It was also contended that the claim lodged by Harnam Singh in Aplil, _ 1948 was attested by Shri Harnam Singh, then Deputy Custpdidn of Evacuee Property, East Punjab and at the relevant time Judge.· of the Punjab High Court. It is alleged tbat on the basis of the alleged partition, separate claims were lodged for the first time in Jum; 1948 each claiming

48 acres of land which was reduced to 32 acres. It was specifically contended that tJu, separate claims on the basis of

\llleed oral partition were an after thohugt and wre submitted '

UN'roli v. A VTAR SINGH (Desai, J.)

to escape a higher graded cut under the Quasi-permanent Allotment Scheme. Other averments in the affidavit are hardly releyant.

With respect to the D. 0. Letter of Shri Dube, it was stated that the opinion expressed in it was not a judicial decision in exercise of the revisionai jurisdiction under Sec. 33 of the Act nor could it constitute an exercise of power under Sec. 33 of the Act. It was submitted that the revis; onal power was exercised for the first time when the allotment was cancelled and a direction was given for fresh allotment on the basis that Harnam Singh alone, was the owne1: of the land situated in Sind.

The wr.it petition came up before a learned Single Judge of the High Court. The learned Judge by his Judgment and order dafed October 4, 1966made the rule absolute and quashed the : order dated March 15, 1965.

The Union of India prefer1 ed Letters Patent Appeal No. 384 of I 966 . which was heard by a Division Bench of the Punjab and Haryana High Court. 1 he Di vision Bench broadly agreed with the view taken by the learned Single Judge that the 'D. 0. letter . of Shri Dube dated May 31, 1963 conveyed the decision of the Government of India in exercise of powers under Sec. 33 and therefore, the power of revision against the order of the Chief Settlement Commissicne'11 was exhausted because a quasi-judicial tribunal has no p'ower to revise or review hs earlier decis on on merits even if the 'earlier decision is wrong on facts or law'.

Accordingly, while dismissing the L.P. Appeal the High Court held that the impugneo order of the Government of India dated March 15, 1965 was without jurisdiction and was invalid and bf no legal efficacy. Hence this appeal byspecial leave by the Union of India.

• Mr. Abdul Khader, learned counsel for the appellant urged that the High Couri was in error in treating D. O. letter No~ 33 (66)/L&R0-62 of Shri N._ P. Dube dated May 31, 1963 as a decision reached or. re.corded in exercise of the power conferred by Section 33 so as to cxhailst'the power of.revision. Consequently, it, was urged that the High C<, mrt was in error in holding that the aecision of the Central Government dated March 15, 1965 was without jurisdiction. ·

Chronology of events and the assertion and counter assertion would reveal that controversy centres ronnd the nature and cha-. racter of the letter dated May 31, 1963 of Shri N. P. Dube, Joint

sUPREME COURT REPOR'fS

[1984) 3 S.C.R.

Secretary to Shri J.M. Tandon, Deputy Secretary to the Government of Punjab, Rehabilitation Department, Jullundur.

More specifically the question is whether it was an inter-departmental c.ommunication or it was the decision 1ecorded in exercise of the power conferred by Sec. 33 of the Act? If it was not a decision recorded by the Central Government in exercise ot the power conferred. under Sec. 33 the judgment of the High Court would be unsustainable.

The Act as its long title shows was enacted to provide for the payment o( compensation and rehabilitation grants to displaced .. persons and for matters connected therewith: Consequent upon the pllrtition of the country, there was migration of population both the ways. Large number ofresidents of atea now forming part of Pakistan migrated to India and there was also a flow in the reverse direction-. Those who migrated under those tragic, traumatic and compulsive circumstances were forced to leave their properties at the place t)ley were settled for generations. Both India and Pakistan were faced with a huge pro):ilem of settling persons thus displaced. In order_ to compensate such displaced . persons who were uprooted out of their abodes, the Act was enacted.

Sec. 2 (b) defines 'displaced. person' to mean 'any person who, on account of the setting up of' the Dominions. of India and Pakistan, or pn account of civil disti.Jrbapces or the fear of such disturbances in any area now forming part of West Pakistan, has, . after the first day of March, 1947, left, or been di6placed .from, his place of residence in suc'h area and who has been subsequently residing in India, and incluc!'es any person who. is resident in any place now forming .part of India.and who for that reason is unable or has been tendered unable to manage, supervise or control any immovable property belonging to him in West Pakistan, and also includes the sqccessors-ininterest of any such person.' 'Evccuee property'_ has been defined in Sec. 2 (cJ to mean 'any pro perty which has been declared or is di:emed to have been declared as evacuee property under the A4ministration of Evacuee Property Act, 1950.' Sec, 14 of the Act envisages constitution of a compensation pool .which shall consist of evacuee proprty both.in cash and kind.

Sec. 4 requires all displaced persons having a verified claim to make applications for the payment of c()mpensation. Sec. 7 casts a duty on the Settlement Commissio11er to make an enquiry in such maruter as may be prescribed and having due regard to the . prescribed scales of compensation, the nature .of the verified

uNioN ' AVTAR SINGH (Desai, J.)

claim'and other circumstances of the case, to ascertain the amount of 'compensation to which the applicant is entitled. After following the procedure prescribed m several sub-sections of Sec. 7, the Settlement Commissioner has to make an order determining net amount of compensation, if any, payable . to the applicant. • Sec. 8 prescribes the form and manner of payment of compensation. Compensation.can be paid in cash, in Government bonds, _,; by sale to the displaced person of any property from the compen- " sation pool and setting off the purchase money against the compensation payable to hi111 etc. Sec. 22 provides for appeal against the order of tho Settlement Officer or . a Managing Officer to the Settlement Commissioner as the case may be, in such form anc\ manner as may. be prescribed. Sec. 23 provides for an appeal against the orders of the Settlemnt Commissioner. or the Additional Settlement Commissioner or an Assistant Settlement Commissioner to the Chfef Settlement Commissioner in such form ..... (· and manner as may be prescribed, with this proviso that no appeal shall lie from any order passed in appeal under Sec. 22. The next important section material for the present appeal is Sec. 33 which reads as under:-

"33 : The Central Government may at any time call for the record of any pro; eeding under the Act ad may pass such order in relation thereto as in its opinion the circumstances of the case. require and as is not inconstent with any of the provis; ons containe<I in the Act or the rnles made thereunder."

Having noticed the relevant provisions, certain facts may be reiterated. Harnam Singh a displaced person submitted a land claim on March 15, 1948 at Delhi for an area of 300 acre, S said to have been abandoned by him in Nasrat Tehsil, district Nawabshah 'in Sind. He filed another claim at Jullundur on April 1, 1948, reducing , his claim to 225 acres. On July. 13, 1948, Harnam

 Singh and his three son~ Kartar Singh, Avtar Singh and Harbans Singh and his wife.Sm!. Tej Kaur lodged separate claims each for 48 acres of land in lieu of land alleged to have been abandoned by each one of them in Pakistan. There was a modified claim submitted on Febrnary 22, 1949. The' difference b.etween the first and the second claim arises from the altered tand adopted by the claimants. Initially Harnam Singh claimed to be. the exclusive owner of 225 acres of land but when separate claims were sub- . lliltted by hi~ three sons [ind his wifo it was alleged that thre was orapl artition. of the property belonging to Harnam Singh betwee~

JJ'

Ii •

StjPRllMll COURT IUlPORTS [1981] j s.c.ti.

himself his wife and his three sons. Each one of the. five claimanis Verified hii own claim, whereupon each was alloted 21-8 s. A. of land: Upon thejrreqtiest !<1 convert emporary allotment into quasi-permanent allotment, their cases #'ere eamined by the Managing Officer who found that there was an excess aliotnierlt of 1-121/2 standard acres in case of each of the claimants and with their consent the. excess area of 8-141/2 standard areas was cancelled.

A. little while after the officer in-charge (Land claims) Jullundnr examined the case of each of the clai!]iants and made a reference to the Chief Settlement Commissioner on September 2, !960 recommending that 48-14 standard acres was in exess of the entitlement of the five claimants in view of the entries in Jamabandi and the excess allotment-be cancelled. A further enquiry revealed that the claim of Harnam Singh that there was partition between himself and his sons. was uµtenable and. that except Harnam Singh, the other claimants did riot have any land of their ownership and therefore tl{e etire allotment deserved to be cancelled. 'fhe Chief Settlement Commissioner rejected the reference by his order dated August 21, 1961.

It is this order which has .been revised by the Central Governmentin exercise of . the power conferred by Sec. , 33 by the impucd .order dated March 15, 1965;

• It would appear from the mere recital of the facts that the . . . .

Chief Settlement Commissioner who rejected the reference as per its order dated August 21, 1961 held the allotment in favour of the five claimants to be valid, legal and correct.

' If the decision of the chief 'settlement Commissioner dated August 21, 1961 is wholly in favour of Harnam Singh and his sons and wife, they' could, .by no stretch of-imagination, be said to be pers6ns aggrieved by t_he decision of the-Chief Settlement Commis-. sioner.

Harnam Singh a.nd his sons contended that the allotment was valid and that the reference niade by .the Officer-in-charge (land claims) department must be rejected. The Chi'ef Settlement Commissioner accepted this submission of'llarnam Singh and his sons and rejected the reference. Can it ever b~ said that a decision wholly .in favour of Harnam Singh and his sons is one adverse to them or that they are aggrieved by the decision.?

H It is now necessary to turn to an intervening event .. It appears that the Chief Settlement Commissioner whi!e rejecting the refe- '> ~.., rence and accepting the allotment in favour of Harnam in~ am;\ . . ..

UN!ON v. A.VT/.R SINGH (Desai, J.)

his sons on the basis of holding and oral partition as legal and i\ valid observed in para 12 of the order as.under;

"Further in the terms of the proprietary rights Sarlad if any, evidence comes to the notice of the department which

~ establishes any of the facts mentioned in the clause below, the Central Govt. can at any time resume whole or any part B J. of the property." ,.

After convening temporary allotment into quasi-permanent allotment a Sanad was issued to each ctaimant. One condition in the Sanad was trult if it appears at any time that the grant or allot- c ment of land described in the Sanad, is obtained by fraud, lalse . representation or concealment <;>f any material fact, it shall be lawful for the President to resume the whole or any part ofthe said

property so allotted.

In view of the aforementioned observations and in absence D of any document evidencing partition of the property as cJaimed by Harnam Singh, the Punjab Government made. a reference to the Pakistan authorities for the necessary verification of entries in the Government record.

A similar request was also addressed to • the Central Government which lrd to a query being addressed to the High Commissioner for India in Pakistan to obtain documen- Ii

- tary evidence if any in this behalf. Nothing concrete emerged from these queries. In the meantime, Hamam Singh submitted • a rpresentation (Annexure 'B' to the petition) dated March 13, 1962 to the Government of India for issuing a directic!n under Sec. 33 of the Act that the matter be treated as finally settled.

Some correspondence ensued betwe'll.J the Union Government and F

' the Government of Punjab which ultimately led to Shri NJ>. Dube, Joint Secretary, Ministry of Rehabilitation sending a letter dated •

.J.

May 31, 1963 tp the Deputy Secretary to the Government of Pnnjab, Rehabilitation Department, Jullundur which reads as under: G

"N.P. Dube, Regd. A.D.

Joint Secretary.

D.O. No. 13 (66)/L&R/62

W.H.&R.

-... .J' (Department of Rehabilitation) H

~!st May, l963

SUPREME COURT REPORTS

[1984] 3 S.C.R.

A My dear Tandon,

E •

Pleas~· refer to Balmukand Sharma's D.O' .. letter. No. 422/ SINGH dated the 29th August, 1962, in connection with the re- . presentation filed by Shri Harnam. Singh P.C.S. (Retd.) .. The High' Commissioner for India in Pakistan was also addressed by Secretary in. August, 1962, to get the required information but the Pakistan Government have 'not been able to supply it so far.

The. matter has, therefor, ·.been considered in this office and it is frlt that there is.no point in. waiting any more and the matter should _be finalised on the basis of the judicial findings arrived at in the, case. We also feel that there arc no reasons to differ fr<ill, l those judicial' pronouncements at this stage. The record received from the Punjab Government is, therefore, returned with the request that the case may be finalised as mentioned above.

Shri J.M. 'fandon, Deputy Secretary to the Government of Punjab, Rehabilitation Department, Jullundur."

Yours sincerely, . Sd/- N.P. Dube 1.6..63

On November 5, 1963, the Managing Officer, Rehabilitation Department, Goyernment of Punjab submitted a note inter alia pointing out that the story . of partition alleged by Harnam Singh . and his sons is a myth and conseuently, except Harnm Singh, no other claimant was entitI.ed .. to any allotment and.therefore, the decision of the Chief .Settlement Comissioner dated August 21, !961 requires to be reopened under Sec 33 and allotment upheld by him should be cancelled. Upon this note a reference was made ". to the Central Government. Thereupon a nouce dated Maj 21,

1964 was issued to Haruam Singh and his sons, his wife Smt. Tej Kaur having, died in the meantime, calling upon them to show why the order of the Chief Settlement Commissioner dated August 21, 1961 should not be set aside and the allotment in. favour of each allottee be not cancelled. Ultimately, the impugned order was passed.

1J11dou.btedly, the impul1!led order is 111a<!e under Se9. 3~

...

UNiON v. AVTAR SINGH (Desai, J.) 403 ' which confers a wide power' of revision on the Central Government. The power of widest amplitude for revising and reopening any proceeding under the Act and to pass any order in relation thereto as in.the opinion of the Central Government the drcu.mstances of the case require and is not inconsfstenhvith any of the provisions contained in the Act or the rules made thereunder is conferred on the Central Government This is undoubtedly a power of revision.

It is not even hedged in by any concept of limitation. Such power of wide plenitude had to be conferred on the Central Government to set. right any illegal unfair, unjust or plainly untenable order because the proceedings under the Act. were not adversary in form and character which may. lead to the one or the other party approah ing \he Central Governmeflt to set right the matter. If a displaced person obtains allotment from the_ compensation pool, to which be was not entitled, certainly .the Central Government would hlrdly come to know in the absence of any opposite party or' adversary drawing attention of the Central Government to such " unjust enrichment. Therefore, Parliament coaferred a very wide power of revis10n on th_e Central Government. to reopen any proceeding or order under the Act. This was hardly dispute'd . .

 It was, however, contended that a power of revision cannot be r_epeatedly exercised and there must be attached finality to the orders. This submission would necessitate an examination in depth of the nature and extent of powr conferred by Sec. 33. But 'in the facts of the preent case we consider it unnecessary to undertake this exercise. We would proceed on the assumption that . Sec. 33 does not provide a reservoir of power from which , • revisional jarisdiction can be exercise.cl more than once in respect

of the same order or the same proceeding. In this view of the matter the decision in Everest Apartments Co-operative Housmg Society Ltd. v. State of Maharashtra and OrS. ('l is hardly of any assistance.

The question that would. squarely arise is : whether on an earlier occasion, hat\ the Central Governn1ent exercised any" revi- -sional power conferred by Sec. 33 in respect of the order dated August 21, 19~1 by the Chief Settlement Commiss_ioner by which the llepartmental reference was rejected and "the Chief. Settlement Commissioner had upheld the allotment of land in. favour of fiarnam Singh and bis sons.

O> [196~] 3 s.c.R. 365.

404.

, .

.. SUPREME COURT RllPORTS

[1984] 3 S.C.R .

Mr. P.P. Rao, learned counsel for the resllondents strenuously urged that the lette.r of Shri N.P. Dube dated May 31, 1963 is a Mcision recorded by the Central Government in exercise .of the power conferred by Sec. 33 in respect of \he . proceeding in which allotment made in favour of Harnam Singh and his sons was upheld by the Chief Settlement Commissioner and therefore, the order of the Chief Settlement Commissioner dated August 21, 1961 . became final and could not be the subject matter of a revision second iime, under Sec . .33 of the Act. There is no. substance in this contention.

It needs to be recalled that the decision of the Chief Settle . ment Commissioner dated August 21, 1961 was wholly in favour

of Harnam Singh and his sons. Atleast Harnam Singh ahd his sons could not be said to be persons agglleved bf tlie order SQ as to move the Central Government invoking its revisional power under Sec. 33. Mr. Rao however, contended that the rej:>resen tation Annexure •ty dated March 13 of Harnam Singh reveals that he apprehended that the case. may be reopened and therefore, by , his representation h~ moved the Central Governnientoto affirm or. confirm the decision .of the Chief Settlement Commissioner , dated August 21, 1961. We remain unimpressed. If every litigant in whose favour a competent authority has. made an order ca~ still approach the higher authority for the affirmance of the order without any rhyme of reasoµ, the whole gamut of power of revisional jurisdiction would become a play thing for alreaQ.y_ successful party who may' foreclose the decision and when needed can successfully urge that the power of revision is exhausted. Fur ther, assuming Harnam Singh made the representation apprehending danger to his allotment, the letter of Mr. Dube dated May 31, 1963 does riot record any decision of the Central Government. It merely says that it is not necessary to wait any more for response to the queries addressd to authorities in Pakistan and the matter should be fiiria!ised cm the basis of finding acrived at in the case. It further proceeds to aver that there is a feeling that thre is no reason to differ from those judicial pronouncements at 'this stage'.

Sucl; t expression of feeling could hardly tentamount to a decision of the Central Government under Sec. 33. It is not for a moment sugg@sted that the decision. of the Central Government hasto be recorded in atiy particular form. In D.N. Roy and S.K. B_annerjee & Ors. v. State of Bihal"& Ors. (1) a letter adpressed by Under Secretary to the Government of Judi& to a particular person

• \JNiON v. AVTARSiNGll (Desai, J.) •

' Stating therein 'that with reference to the application of thee-add

ressee on the subject noted, he was directed to say . that after careful consideration the Central Government by the letter rejects the revision application as being time-barred' was treated as a decision of the Central Government. This calls for no comments because the letter is self-explanatory. There is nothing ip Shri Dube's letter remotely comparable with the letter in the afore . mentioned case. On the contrary the Central Government infor

med the Government of Punjab that •the record is returned .with the request that the ciise may be finalised as indicated in the letter.

The revf; ional power is the power of the Central Government and not of the Punjab Government. The deci; ion was left to the Punjao Government: There was nothing pending with the Punjab Government for finalisation.

Therefore, the High Court. was clearly in error in treating the letter of Shri Dube dated May 31, 1963 as a decision of the Central Government jn exer. ise of the power conferred by Sec. 33. There was no reason for decision nor any occasion for the Central Goven, iinent to exercise power under Sec. 33 and therefore, it is nol possible to agree with the High . Court that the letter records the decision of the Central Government under Sec. 33. If the letter of Shri Dube is not a decisiOn of the Central Government under Sec. 33 of the Act, as a neces sary corollary, the impugned docision .must tie treated as one rendered for the first time in exercise of the revisional power under Sec. 33, and therefor.e, it cannot be said to be one without jurisdiction. In this view of the matter, th(appeal will have ti> be alloVLed. ·

Mr. Bindra, learned counsel who appeared for some of the respondents made a strenuous effort to persuade us to look into the equities of the case. "rn fact, we are wholly disinclined to undertake this exercise of evaluating facts or evidence in a petition for a writ of certiorari. Further in the impugned decision the fac!s as appearing from the record and submissions made by the learned counsel for claimants are exhaustively dealt with and ho cse for interferente is made out. Only two aspects howevr may be referred to,

Hamam Singh claimed to be the owner of 225 acres of land situated in erstwhile Sind Province .. In the first claim lodged by him, he clearly stated that h•; was the owner of 300 acres. He then modified it to 221 acres. In neither of the two claims he ever . ' suggessed that there was a partition between him and his sons also giving a share to his wife. The story of partition clearly appears

~ .

406' • SUPREME COURT REPORTs

[1984] '.} .S.C.R.

to be an fter t.hought because it is helpful in obtaining . higher allotment. No documentary evide, nce has been placed on record .to supportthe case of partition which clearly appears to have been an after thought. Earlier .tamabandi entries from Pakistan permitted a negative. inference that there was no partition. The Central Governmens while setting aside the order pf. the. Chief Settlement Commissioner dated August 21, 1961 recorded the. fin'ding that : (i) there is no writing or deed of partition : (ii) Revenue records show the name of Shri Hamall] 'Singh alone. on.the basis of the sale ded in his exclusive name : (iii) there are no receipts indicating s'epar.ate payment of land revenue by any' one of the respondents after alleged partition; (iv) .no objection w11s taken by the sons at the time of the filing of. the claim by the. father;

(v) there is .no mention .of individuals •hare in the claim filed by the father; These are relevant considerations which wonl<l certainely throw doubt on the claim of oral partition alleged to _ ·.have been effected by Haniam Singh: Once the allegation of oral partition.is rejected, the respondents are not entitled io arty consi- . deration even on equitable. "grounds, ..

In°fho concluding . stages of the arguments the .respondents contended that Harnam Singh has died and his heirs ha.vi11g ii.ot been substitued, the appeal has abated. T!\ere is no merit in this contention. Harnam singh was not the petitioner before the high Court.

He was respondent No,. 2. No relief was claimed against him. Further Hamara Sillgh was not asked to surrender tlje ljlnd.

Petitioners before the Hi, gh Court were adverself affected by the . impugned dec.isiori. Death of Hilrnatn Singh would therefore, have no impact on this appeal. . Therefore, the contenti9, n is rejected.

In view. of the above discussion, this appeal is allowed and the judgment and the order of the learned Single judge dated October 4, 1966 in Civil Writ No. 1242 of 1965 as also the judg- ment aud order in.LP.A. No. 384 of 19.66 dated May 22, 1969 of the same High Court are quaslfed and set aside and the. decision of the Central Government dated March 15, 1965 is resiored with n0 order as to costs throughout.

H. S. K.

ANR

AVTAR SINGH & ANR

April 4, 1984

• April 4, 1984

(D. A. DESAI, A.P. SEN AND V. BALAKRISHNA E~AD!,

D. A. DESAI

A.P. SEN

s. 33

Harnam Singh

India

Pakistan

April 3, 1948

on April 3, 1948 the said Harnam Singh, his sons and.

Ha.roam Singh

August 21, 1961

March 13, 1962

Haroam Singh

Government of India

s. 33

N. _P. Dube

Governmentof India

J.• M. Tandon

Punjab Government

s. 3

s. 33

Central Government

Harbans Siog!'t~

33 by his order dated March 15; 1965 quashed and set aside the order of the Chief Settlement Comniissioner datd August 21, 1961 and further directed that the .allotment of land in favour of Harbans Siog!'t~ bi~ sons and his wif~ be cancelled and that a fresh' allotment be made on the fc;>oting that Harnam Singh alone was the owot:r of lb~ Ian~ situated in Sind.

s. 33

section 33

section 33

section 33

N. P. Dube

section 33

Desai

Ceptral Government

Sec. 33

Sec. 33

Sec. 33

Sec. 33

Sec. 33

M.M. Abdul Khader

M.M. Abdul Khader and Ms. A. Subhashinifor the appellants.

A. Subhashinifor

P.P. Rao

R.S. Bindra

I and R.S. Bindra and Har G bans Singh for respondent No.

Har G bans Singh

J. Avfa~ Singh

Kartar Singh

Union of India

2 and Union of India and Tehsildar cum Managing Officer, respondents Nos.

S. Hanam Singh

Sind Pr0vi-

99 situated in District Nawab Shah, in erstwliile Sind Pr0vi-.

Avtar singh

Harnam Singh hd three sons : Avtar singh, Dr. Kartar Singh and Hu bans Singh.

Kartar Singh

Hu bans Singh

Tej Kaur

S. Harnam Singh

March 15, 1948

Ch. Attar Singh

March 1,5, 1948

April 3, 194S

Harnam Singh

October

5, 1953

Section 33

Government

of India

Punjab Rehabilitation Department

October 27, 1961

Government of Punjab

Sec. 33

Sec. 33

Sec. 33

Sec. 33

Harnani Singh

Sind

Harnam Swgh ha\i

Avtar Singh

High Court of Punjab at Chandigarh

A. G. Vaswani

I and 3 by one A. G. Vaswani, Settlement Commissioner (A) & Ex-Officio Under Secretary to the Gvernment of India, Ministry of Labour Employment & Rehabilitation inter a/ia contending that in April 1948 when for the first time Shri Harnam Singh lodged his claim a~ displaced person against the loss of his land and property, in Pakistan, he had categorically stated that 225 acres of land situated in Sind belonged to him and there was no express or implied, overt or covert reference or even a whisper of a partition between himself and .his sons and wife before he migrated to lni!ia. '

Ministry of Labour Employment & Rehabilitation

Harnam Singh

It was also contended that the claim lodged by Harnam Singh in Aplil,  1948 was attested by Shri Harnam Singh, then Deputy Custpdidn of Evacuee Property, East Punjab and at the relevant time Judge.·

Aplil

Punjab High Court

Sec. 33

Sec. 33

October 4, 1966made

Union of India

The Union of India prefer1 ed Letters Patent Appeal No.

Punjab and Haryana High Court

which was heard by a Division Bench of the Punjab and Haryana High Court.

Sec. 33

March 15, 1965

Union of India

Hence this appeal byspecial leave by the Union of India.

Abdul Khader

N._ P. Dube

Section 33

sUPREME COURT REPOR'fS

[1984) 3 S.C.R.

J.M. Tandon

Sec. 33

Sec. 33

Sec. 2

West Pakistan

first day of March, 1947

Sec. 2

Evacuee Property Act, 1950

Sec. 4

Sec. 7

AVTAR SINGH

Sec. 7

Sec. 8

Sec. 22

Sec. 23

Sec. 22

Sec. 33

Delhi

Nasrat Tehsil

Jullundur

He filed another claim at Jullundur on April 1, 1948, reducing , his claim to 225 acres.

April 1, 1948

July. 13, 1948

Harnam

 Singh

Harbans Singh

Febrnary 22, 1949

There was a modified claim submitted on Febrnary 22, 1949.

Jullundnr

September 2, !960

Jamabandi

Central Governmentin

It is this order which has .been revised by the Central Governmentin exercise of .

of'llarnam Singh

Harnam

Central Govt

Hamam Singh

Sec. 33

NJ>. Dube

J the Union Government and F

' the Government of Punjab which ultimately led to Shri NJ>.

N.P. Dube

Balmukand Sharma

13 (66)/L&R/62

W.H.&R.
... .J' (Department of Rehabilitation) H

~!st May, l963

SUPREME COURT REPORTS

[1984] 3 S.C.R.

A My dear Tandon,

E •

Pleas~· refer to Balmukand Sharma's D.O' .. letter.

Harnam. Singh P.C.S.

Pakistan Government

J.M. 'fandon

Government of Punjab, Rehabilitation Department, Jullundur

November 5, 1963

Harnm Singh

August 21, !

Sec 33

Haruam Singh

21, 1961

Central Governmeflt

Parliament

Therefore, Parliament coaferred a very wide power of revis10n on the Central Government.

Sec. 33

Sec. 33

Sec. 33

August 21, 19~1

fiarnam Singh

SUPREME COURT RllPORTS

[1984] 3 S.C.R

.. SUPREME COURT RllPORTS

[1984] 3 S.C.R .

P.P. Rao

N.P. Dube

Sec. 33

Sec. 33

Rao

May 31, 1963

Sec. 33

Punjao Government

Sec. 33

Central Goven

Sec. 33

Sec. 33

Sec. 33

Sec. 33

Bindra

Hamam Singh

Hamall] 'Singh

Haniam Singh

Harnam singh

Harnam singh was not the petitioner before the high Court.

Hamara Sillgh

Further Hamara Sillgh was not asked to surrender tlje ljlnd.

Hilrnatn Singh

Death of Hilrnatn Singh would therefore, have no impact on this appeal. .

May 22, 1969

H. S. K.


' •

• KOSHAL KUMAR GUPfA & ORS.

STATE OF J. & K. AND ORS.

April 6, 1984

[D. A. DESAI, A. p; SEN AND V. BALA, KRIS!lNA BRAD!, JJ.]

Educational Institutions-Admission to Engineering Col!eges-A_dmission to-Viva-Voce tes1-All.1trn~1Jt of 15 marks-Wheiher arbitrary. l;>lalogue between members of_ Selecdon COmmittee and candidate recorded on-tape.

_recorr-Procedu.re_.;.Wheth'er fair a/id reasonable. •

The Third Respoodant-Principal of the College by a public adver' tiscment invited applications for admission to the _ Bac_helor Degree EngineeriOg Course in the Regional Eog-ioeeriog College in fhe State. The candidates seeking admission were requi('ed to appear at a joint entrance examination, thos_e who. qu;1.lified had to appear at a viva-vOce test~ aad the sele.ction was to be based on the combined performance in the written and vivaMvoce-examinatiOn.

The petitjoners who-applied and were admitted to the written test andon being qualified~ were cal

1led for viVa-Vbce test; In their writ petitions they challenged the m1ni:ier, the. method and the number of mar)s:s assigned for the vlva-voce test.

It was conteQded that the rescr .. vation of IS marks for the viva-vOce. test conferred __ arbitrary, unguided and uocannalised power on those conducting the viva-voce tCst and tha.t tbC reservation of JS ma_rks would have th~ pernicious_ tendency of affecting merit disclosed by the marks obtai 1ed at the \vritten examination.

The writ puHtion was contested on behalf of ._respondents l ,2 and 3 by sub:nitting that in order to avoid a1y ch1rge_o~ arbitrariness being levelled against the Selection Committee, 15 marks assi8aed for viva'9'oce test were further split-Up urider four heads, viz. (i) Science-5 marks, (ii).

General Knowledge4 marks, (iii) -Curricular Activilies--3 marks and {i~) Personality tCst-3 marks, and that the Selection Committee prep1red cards on each of which a quest.ion was typed referable fO Physics, Chemistry, Mathematics and General K.nowledge and they were kept in 4 different boXes.

Wh_eri the Candidate entere<; l the room for interview, he wa~' requited to pick-up at random one card from eaC:h , of the four boxes, eaCh.box containing 150 cards and answer the question. A tape4

recorder was kept on the table in frontof the members of tho SolMion Committee and the candidaie appearilig for the interview, aad the two 4

way dialogue was recorded in full. Mark• were aHigned undor each head of 1iva-voce test dapendiog UPJJ th;, m'!:rit or th;, anJwer. fheral.fter, .. tho merit list was prepared on the basis of tho total marks obtainod at

40S.

SUPRE$ COURT REPORTS tt984j 3 s.c.R. -1"'

.A t be written and vivaVoce tests.

DismissiOg the Writ Petitions & Transferred cases, • HELD :Merit.ha& been 'asqerlairied by the.most scientific mCihod tha can be applied for selecting candidates on merit leaving n6 room for_ any arbitrar§ choice. 'Ibe viva; voce test that was conducted was fair, free from the charS'e of arbitrariness, reasonable and just.

[410 F]

In the instant case, respondents Nos. 1 to 3 have practically set at naught some of the drawbacks and deficienciespoint.ed out in Ajay' Basia etc. v. Khalid Mujib Sehra, ard1 & others etc. [1981] 2 SCR 79•· in the manner . of holding of oral interview and the marksassigned at it.

The respondents in order to avoid any charge of arbitiiirjness reduced tbe marks assigned to the Viva-voce test, prepared the questions 1o advance kept them ready in the boxes and 'tbe candidatJ bad to .pick-up bis own <i, ueslion . nod answer it.

The record .'Of the answer was mint'llined in the candidate~ own voice. [41'Q Q-411 E] ·

ORiGINAJ, JURISDICTION : Writ Petitiri No. 8964 of 1982. ~

. (Under Article 32 of the Constitution of Irtdia)

WITH

Transfer Cases Nos. 13-15 of 1984.

Anil Dev Singh, Subhash Sharma and S.K. Sabharwa/ for the

E petitioners.

G.L. Sangh1 and Altaf Ahmed'for the respondents.

K.R.R. Pillai 'for the Petitioner in Transfor Cases Nos. 13-15 of84.

F The Judgment of the Court was delivered by

DESA~ J.

At' the conclu.sion of the hearing of the .writ. petition and the transferred cases on Jan.24, 1984, the Court pronounced the order dismissing the writ p, etition. agd the transferred cases, reserving that the reasons will follow later on. Here arc

the reasons.

To put.into' focus the controversy, the fact$. alleged in Writ Petition No. 8964 of 1982 may be taken as representative of the allegations in all allied cases.· ' · '

Nine petitioners in this petition questioned the legality and 'i..-Y correctness of admissions to Bachelor degree course for 1982-83 session in Regional Engineering Colleges at Srinagar, simtllta-.

neously praying for quashing the admissions of respondents Nos.

k. It GlJPTA v. i. AND.K. STATE (Desai, J.) 400

5 to 13 and Seeking a direction that the petitioners be admitted to A the same session.

A Regional Engineering College has been sd up at Srinagar in the State of Jammu and Kashmir. Third respondent, Principal of the College by a public advertisement dated March 13, 1982 i.nvited appLcations for admiSsion to the Bachelor Degree Engineering Course for 1982-83 session not only in the Regional Engineering College, Srinagar but also in eleven Regional Engineering Colleges set up in different States.. Candidates seeking admission had to fulfill the following requirements. They were required to appear at (i) a joint entrance examination in four papers viz. Physics, Chemistry, Mathematics and English; (ii} candidates who qualify in the written test had to appear at a viva-voce test; '(iii) the selections were - to be based on the combined performance in the written and viva-voce examination; and

(iv) the seats reserved for specified categories were also Bhown.

Pursuant to this advertisement, the petitioners applied and were admitted. to the' written test and on being found qualified, they were ealled for viva-voile' test. The challenge is to the manner, the mothod and the number of marks asigned for the viva-voce test. Broadly stated, the allegations were that reservation of 15 marks for viva-voce test conferred arbitrary, unguided and• un canna!ised power on those c2nducting the viva-voce test and that reservation of 15 marks for viva-voce'!est would have the perni- cious tendency of affecting the merit disclosed by the marks obtained at written examination. Tbere were other allegations which d9 not merit examination.

On rule nisi being issued, respondents Nos. I to 3 appeared and one Dr. O.N. Kou!, Head of the Mechanical Engineering . Department (Co-ordinator Admissions for session 1982·83), Regional Engineering College, Srinagar filed an affidavit in opposition on behalf of tlie Principal of the College. After • pointing out that 85 marks were assigned for written examination and 15 for viva-voce test, it was further pointed out that in order to. avoid any charge of arbitrariness being levelled against the Selection Committee 15 marks assigned for viva-voce test were further split-up under four heads, namely, (i) Science-5 marks

(ii) General knowledge-4 marks (iii) Curricular Activities-3 marks and (iv) personality iest-3 marks. It was pointed out that vltimately out of a total of 100 marks, only 3, marks were assigned for personality test and this is the area where if at all; discretion can be exercised which may not be reviewable on any

• • D

SUPREME COURT REPORTS tJ984J 3 s.c.I\.

documentary evidence. In respect of the three other heads, it was pointed .out that the Sele'!:tion Committee prepared cards on each of which a question was typed referable to the 4 subjects, llllmely, Physics, Chemistry, Mathematics and General Knowledge. and they were kept in 4 difforent boxes .. When the candidate entered the room for interview, he was required to pick up at random one card from each of the four boxes, .each box containing atleast 150 cards and answer the question. A tape recorder was kept on the table in front of the members of the SelectiQ!l Committee and the .. candidate appearing .for the interview and the two-way dialogue was recorded in full.

Marks were assigned undereach head of viva-voce test depending upon the merit of the answere. Thereafter, the merit list w11s prepared on the basis of the total marks obtai11ed at written test and the vivavoce test and it was stricily adhered to save and except for reserved seats whete alw persons seeking admission to reserved seats 'had t.o stand in queu~ as in the merit list. . ·

At the hearing of these pebtions, the respondents Nos. 1 to 3 produced before the Court the cards on which questions ll'.ere typed, the cassette and a tape recorder. They also produced the entire merit list with marks obtained by each candidate. The court at' random directed \)lorn to point out which card was pickedup by om of the candi'1atl's from amongst; the petitioners and then play the cassette on whi1; h . his intetview was taped. Learned counsel for the petitioners and some of the , petitioners were . preent during this demonstration.

We a; e fully satisfied that in this case merit has ben ascertainod by the most scientific method .that can be. applied for selecting candidates on merits leaving no.room for any arbitrary. choice. . .

There was no challenge to the written test and 85 marks assigiled for the written test. In A; ay Ha1ia etc. v Kha/id Mujib Sehravardi &; Ors. etc. (') whorein "admission to this very Regio· nal Engineering College for the year 1979-80 was challenged, this Court observed tha.t 'there can be no doubt that, having regard to the drawbacks and deficifncies in the oral interview test and the conditions prevailing. in the country, particularly .when

there is deterioratiou in n!oral values and corruption and nepotism are very much on the focrease, allocation of a high per- • centage of marks for the oral inte1vie.w as compared to the marks allocated llr the written test, cannot be accepted by thti court as . _____ , .

, OJ [19s1j 2 s.c.R. 79.

..... . . '

...

' " l

. }

k. 1::. GtiPTA V J. AND K. STATE (Desai, J.)

free from the vice of artrariness. The Court concluded by observing that in the existing circumstances, allocation of more than 15% of the total marks for the oral intervie.w would be arbitrary and unreasonable and would be liable to be struck down 'as constitutionally invalid.

• The respondents took one from these observations of the Court and reduced the marks assigned for viva-voce. test to 15.

Not only that but some of the drawbacks and deficiencies pointed out by this Court in the manner of holding of oral interview and the'marks assigned at it, the respondents split-up the marks under four heads and a; least in respect of three, there is direct evidence

as recorded mi the tape to show how the :andidate has faired.

And as for the dreaded persona.lily test, the marks assigned are 3 only. Not a single case was pointed out to us in the course of the hearing in which the candidate othetwise being eligible for admis&ion on merit, lost the ·same .because of inability to get som~

marks under the personality test, the maximum being -3 only.

It is to the credit of rescondents Nos. I to 3, how they in order to avoid any charge of arbitrariness reduced the marks assigned to viva-voce test, split them up under different heads and even in respect of questions to be put at the viva-voe\' test prepared the questions in adva:ic!', kept them ready. in boxes and the candidate had to pick-up his own qestion and answer it. The record of the answer is maintaintlli in candidates own voice. We must record our appreciation that respondents Nos. I to 3 have practically set .at naught drawbacks and deficiencie; in oral interview as pointed out by thi.s Court. The viva-voce test conducted mu; t be held to be fair, free from the charge of arbitrariness, reasonable' and just.

Undoubtedly, the expectation of the Court which frowns upon anything arbitrary or unreasonable has added to the workload of the 'Selection Committee. But today when there is ru; h for admission. to Engineering Colleges like the Ceasar's wife, the

selection must be objective and beyond reproach. That has been scientifically achievecUn this case: We hope that bodies charged with the difficult task of ascertaining merits for admission will take cue from.what has been done by respondents Nos. r to 3 and the lead provided by them in this fUd would restore faith of young aspirants in 'the system. Therefor, the Court dismissed the writ petition and the transferred cases. ·

N.V.K.

Petitions &: Transfer Cases dismissed,

G •

KOSHAL KUMAR GUPfA & ORS

STATE OF J. & K. AND ORS

D. A. DESAI

SEN

[1981] 2 SCR 79

ORiGINAJ

Article 32

Anil Dev Singh

Subhash Sharma

S.K. Sabharwa/

G.L. Sangh1

Altaf Ahmed'for

K.R.R. Pillai

O.N. Kou

GtiPTA

Desai


- 412

R. S. NAYAK

A.R. ANTULA Y

April 5, 1984

(D.A. DESAI, R.S. PATHAK, 0. °CHINNAPPA REDDY,. A P, SEN AND

V. BALAKRISHNA BRAD!, JJ.] .

Crlmf 1ja/ , Appel/ate -Jurisdi'ctioft-Transfer of a pending criminal trial from the court oi Sessions to the High Caurt-Proc.edure to be followed iS the

same as prescribed in chapte.- XIX !Fof the Code of Criminal Procedure-If the Cognizance of an offence is taken upder section B{J} of the Criminal' Law {Ame11dment) Aci,- J.952-State need notappoint Q Public Prosecutor--The. comp}ail.zant's ad-JoCate will the Pu.b(iC Prosecutor.

In comPiianc: with directions given by the_ Constitution Bench of.the Supreme Court, tho Bombay High Court withdrew to itself Special Case No, 24 of 1982 and Special Case No. S/83 pending in the Court of the Special Judge, Greater Bombay and assi8ned the said two c8ses to Mr. !1Jstice S.N. Khatri a sitting Judge of the said court. When the cases were tken up for heariagJ two prelimioarY. contentions were raised as to wbeihel'. State should appOint a. PU:blic ProseCutOr to conduct the tdal and what should be the 'procedure to bo followed and from what stage_ .Of the trial. Hence the twO applications for classification. The court; • HELD: 1. The learned Judge has to .hoLd the trial according to tho procedure prescribed in chapter X(X B i.e,, !le . procedure prescribed' in section 244 to 247 (botb inclusive) of"the Code of Criminil Procedure. To be precise, the Jearned J\idge has .to try thC-case according to tbe proc_edµre pr(iscribed for cass insti•uted ctherwise than on police report by. Magistrate, The trial was to proceed from the stage when the acused was discharged. [ 4140-B] '

If the cognizance of an olfcace is taken under section s(;) of tlie criminal law (Amendment) Act, 1952, and the trial has t.o be held acdording to: the procOdure prescribed 'thereicl, under seciOn 8(3), the learned advocate engaged by the complainant to coaduct the prosecution will be Cteemd tO be a Public prosecutoc, Io such a situation, there is

DO questiOn. of the State appointed Public Prosecutor to conduct~' the prosecution. It is for the complaiila1lt io decide who should be his learned advocate in charge of tho Prosecution.

[4 !SB-C] ' \ . . .

CRIMINAL JUR\sDiCT\ON :.Criminal Misc. Petition No. 1740 of 1984. (For Directions)

(Crimin'll Appeal No; 356 of 1983)

.( ..

' j

it .. s. NA.YA.K v. A.:tt A.NWLA.Y (Desai, J.)

And • (Criminal Misc. Petition No. 22rl7of1984)

(For Directions)

(Criminal Appeal No. 356 of .1983)

Ram Jethmalani, Ms. 1 Rani Jethmalani, Naresh Jethmalani and J. Wad for the Petitioner.

A. K. Sen, M. N. Shroff and Dalveer Bhandari for the

Respondent.

The Order of the Court wa.s delivered by

DESAI,· J. Consequent upon the order made by a Constitution Bench <!f this Court on February 16, 1984 in the Judgment rendered iu Criminal Appeal No. 356 of 1983 and Transferred Case No. 347 of.'1983 alongwith Transferred Case No. 348 of 1983, , Special Case No. 24 of 1982 and Special Case No. 3/83 pending in the Court of the Special Judge, Greater Bombay (Shri R.B. Sule) were withdrawn and sto9d transferred to the High Court of Bombay. Jn compliance with the direction. given in the same judgment, the learned Chief Justice of the High Court of Bombay assigned both the cases to Mr. Justice S.N. F;, hatri, .a

sitting Judge of the High Court. The learned Judge called upon the parties to appear before him on March 12, 1984. When the cases were taken UI> for hearing, certain preliminary objections were raised on behalf of the accused which we were .told have been dealt with by the learned Judge in his order dated March 16,

1984. In respect of two issues further consideration was postponed.

These issues turn upon the q.uestion of procedure to be adopted by the learned Judge in the trial of the two cases and who should . be .incharge of the prosecution. In our opinion, if the judgment ·

of this Court was read with care and precision, these two questions would have hardly arisen. However, two misc. petitions were moved in tliis Court for clarification of the judgment so as to .thwart avoidable delay in the trial of cases.

The operative portion of the judgment which has a bearing on the question i:afsed reads as under:

"Therefore, Special Case No. 24 of 1982 .and Special Case No. 3/83 pending in the Court of Special Judge,

. SU.!>REM1! C:OURT Ral>ORTS ·

[!9S4) 3 S.C.R.

'A.

Greater Bomb~ Shri R.B. Sule are withdrawn and transferred to t)'te High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting .

Judge of the High Court".

In the penultimate paragraph of the jii:dgment while allowing the appeal this-.Court directed as Under : . .

"This appeal accordingly succeeds and i~ allowed. The

 order and decision of thp learned Special Judge Shi'i R.B~ Sule dated July 25, 1983 discharging the a.ccused in Special Case No. 24 of 1982 alid Special Case No. 3!83 is hereby set aside and the trial shall proceed further from the stage , where the accused was discharged."

Reading two dir.e.ctions togethet, it clearly emerges that the learned Judge has to hold trial according to the procedure . prescribed in Chapter XIX' B i.e. the procedure prescribed in . Secs .. 24.4 to 247 of the Code of Crimina.l Procedure, 1973. .T-0 ·

be precise;· the learned Judge has to try the case according to the procedure prescribed for cass mstituted. otherwise. than. on'poli~ report by Magistrate. This position 'is clear. and. unambiguous in view of the fact that this .Co1m while allowing the appeal was hearing amongst others Transferr.ed Case .No. 347 of 1983 being the Criminal Revision pplicatfon No .. 354 of 1983 on the fil.e of the Hig]j Court of the Judicature at' Boin bay against the 'or'der'of. the learned Special Judge Shri RB. Sule disc)larging

the accus.ed. 1f the criminal revision application was not withdrawn to ti; lis Court, . the lligh' Court while hearing criminal . . revision application could have under Sec. 407 Code of Crim.inal f Procedure, 1973 transferred the Special case from which criminal revision application arose to itself for trial and irr such a situation the High Court under Sec. 407 (8), Code of Criminal Procedure, !973 would have to follow the same procedure which the Court. of Speai Judge would have followed it the case would .not have been so transferred. His 11ot in dispute that th() learnd Special •.

!ff

Judge while holding the trial was required to follow the pro, cedure prescribsd by tlie Code of Criminal Procedure, 1973 for trial of .warrant cases by Magistrates and in the facts of this case the :procedure would !J, tl in respect of cases instituted. oth.erwise than on police report. "(he trial was to proceed further from the. stage when. the accused was discharged. This in our , opinion is obvious and needs no furbher clarification. Sec. S(I) o[Jhe Criminal.Law (AmeD; dmeilt) Act, 1952 as interprete~ by this Court in Criminal

, ,

. ".

I .

R. s. NAYAK v. A. R. ANTULAY (Desai, J.)

Appeal No. 247 of 1983 decided on February 16, 1984 makes this position unambiguous and.abundantly clear.

The clarification in re, pect of the first point read with the' judgment rendered in Criminal Appeal No. 247 of 1983 in which Sec. 8 (3) of the 'Criminal Law (Amendmnt) Act, 1952 had come in 'for interpretation, it follows as a corollary that iflhe cognizance of an bffence is taken under Sec. 8(1) of the Criminal Law (Amendment) Act, 1952 and the trial has to be held according to the procedure prescribed therein, under Sec .. 8 (3) the learned advocate engaged by the complainant to conduct the1Jrosecution will be deemed to be a public prosecutor. In such a 'situation, there is no question of.the State appointed public prosecutor to onduct the prosecution. It is, threfore, clarified which to some extent may appear tautologus in view of the af0<ementioned judgment, that it would be for th~ complainant to .decide who would be the learned advocate iucharge of the prosecution and ' . ' .the advocate so appointed would be deemed to be a public prosecutor.

Dr. Singhvi who appeared for the respondent-accused sub- 'mitted that in the guise of a petition for clarification, it is a covert attempt to forestall or foreclose the deCision on the aforementioned two points .which. are pending before the learned Judge before whom both the cases are pending. There was no.question of

peciding the aforementioned two. poi.nts afresh because the answers to them are implicit in the judgments referred to aBove. Dr,' Sing'hvi had nothing to say when invited by the Court about the clarification which the Court my offer in respect of the afore- • mentionecftwo questions. He left us in no doubt that he does not wish to make any submission on the , question of clarification in respect of the aforementioned two questions.

We note that the Government of Maharashtra has entered appearance before us through Shri A.K Sen and 'shri M.N.

Shroff but no submission were made by them. ·

Mr. Jethmalani, learned counsel for the complainant wanted this Court to consider. prayers Nos. (c) and (d) in the , misc. petition which we consider for the disposal of the misc. petitions as irrelevant and we do not propose to deal with the same in these petitions.

• Tn sum the clarification is that the learned Judge in the tril\\

.. F

4i6 . '

SUPRJ!Mll COURT REPORTS

(1984) 3 S.C.R.

of the two.cases pending before.him has to follow the procedure prescribed in Secs. 244 to 247 (both-inclusive} included in Chapter XIX-B of the Code of Criminal Procedure, 1973. It is for the

complainant to decide who shonldbe his learned advocate focharge "or tjle prosecution and there is no question 'of entrusting the trial of the two cases to a State appointed public prosecutor.

. •

• ,

....-

412

R. S. NAYAK

R. ANTULA Y

April 5, 1984

D.A. DESAI

R.S. PATHAK

0. °CHINNAPPA REDDY

SEN

Code of Criminal Procedure

section 244 to 247

Ram Jethmalani

Rani Jethmalani

Naresh Jethmalani

A. K. Sen

M. N. Shroff

Dalveer Bhandari

R.B. Sule

High Court of Bombay

S.N. F

March 12, 1984

March 16,

1984

R.B. Sule

Shi'i R.B~ Sule

RB. Sule

Sec. 407

Sec. 407

Code of Criminal Procedure

Code of Criminal Procedure, 1973

Desai

Sec. 8

Sec. 8(1)

Singhvi

Sing'hvi

Government of Maharashtra

A.K Sen

M.N.

Shroff

Jethmalani

Chapter XIX-B of the Code