PREM CHAND JAIN & ANR.

R. K. CHHABRA

February I 3, 1984

{S. MJJRTAZA FAZAL ALI, A. V ARADARAJAN AND

RANGANATH MISRA, JJ.j

Unfrersity Grants Commission Act, 1956 (Act III of 1956) Sections 2 (f). 22 and.-23, Scope of-Right to confer degree and Right to have the word "University" associated to the name of an institution--Whether the wOrds ,."established" or "incorporated" in section 2 (h}. 22 and 23 also included a univ, rsity regiStered C 1D1der the Companios Act of 1913?

SectiOn 2 (f) of the University Commission Act; 1956 defines "a University" to ffiean : "a University established or incorporated by or under a Central Aet, a Provincial A.ct,. or a State Act, and inc1udeS any such institution, as may in consultation with the University concerned, be recognised by the Commission in accordance with the regulations made in this behalf under this .Act''.

Section 22 which empower the right to confer degrees and Section 23 which imposes the prohibition for use of the word "University" also ptovides that way.

Penalties for contrave:riing the provi".' sions of sections 22 and 23 are provided under section 24 o.f the Act but the proviso to section 23 exempts any institution having a suffix "University"· before the commencement of the University Grants Commission Act, _ for a period of two years only to enable it to take appropriate steps under the University Grants Con1mission Act. ·

Commercial University which was registered. under the companies Act of 1913 and before the coming into force of the University Commission Grants Act, 1956 and was doing useful service to the students

community did not take any -steps as required under the new Act even p after the lapse of the two years, and therefore, the appellant came to be prosecuted for the offences under sections 22 and 23.

The appellants having lost their case including in the High Court have come up- in appeal by way of. special leave.

Allowing the appeil iti. part and setting asde the convictions and

sntence of fine? the Coqrt

G ·

884 SuPllmlE'coURT REPORTS

(1985) 2 S.C.R.

HELD I : I The University Grants Commission Act, 1956 did nOt intend to admit a commpany incorporated under the Companies Act into the definition of a ''University,' under section 2 (f), or for - the purposes of Section 23. Several institutions stayaing themelves as cuniversities' had started awarding degrees and. diplomas which had no basis and could not be accepted.

Keeping in view the mischief which wa~ sought to be eradicated and the _consideration which weighed with Parliament to introduce the prohibition in the Act, the Act recognises only those institutions established or incorpoq1.ted under special statutes of sovereign leg; slatures. (890D-E)

1:2 The definition of university and' the provisions in S.23 of the Act refer to Acts of the Cenlral, Provincial or the State legislatures by which one or more universities are established or incorporated and not to institutions incorporated under a general statute providing for incorporation.

The words "established" or "incorporated'' referred to Act under which universities are established or incorporated. Several universities in this country have been either established or incorporated under special statutes, such as the Delhi University Act, the Banaras Hindu , University Act, the Allahabad University Act etc.

In these cases, there is

~ special Act e; ther of the Central or the _Provincial or the State legislatures e_stablishing and incorporating the particular universitiCs. There is a)so another pattern-where urider one compondious Act several universities efe either-established or incorporated-for instance, the Madhya Pradesh Universities Act 1913. [889a-E; P]

1 :3 Commercial University Ltd. when incorporated under the Companies Act, therefore, did not satisfy the definition as also the provisions of section 23 of Act consequently the prosecution under section 23 was valid. [889H]

Attorney General v. H.R.H. Augushtis [1957] I All

E.R. 49

(HL); Bhagwan Prasad v. Secretary of State; AIR 1940 P.C. 8_2, quoted with approval.

2:1 The-definition of University given in section 2 (f) or the prohibition in section 23 of the Act are not ultra vires the Parliament on the ground that such provisionS are beyond its legislative competence. [ 8 91 F]

2:2 'Education including universities' was a State subject until by the 42nd Amendment of the Constitution in 1976, that entry was omitted from the State lis~ and, was taken into entry 25 of the Concurrent Ii st.

The University Grants Commissions Act essentially intended to make provisions for the coordination and determination of standards in univer sitics and that, is squarely covered under entry 66 of list I.

While legislatin1 for a purpose germane to the subject covered by that entry and establishing a University Grants Commission, Parliament consicred .it necessary, as a regulatory measure, to prohibit unauthorised conferment of degrees and diplomas as also use of the word 'university' by institution which had not been either established or incorporated by special Icgisla,-

PREM CHA)ID JAi)! V. ll.IC. CHIUJIRA

ation.

In doing s.o the Parliament did uot entrench upon lc&islativc power reserved for the State legislature. [890EG)

2:3.

The legal position is well-settled that the en_tries incorporated in the lists.covered by Schedule VII are not powers of legislation but 'fields' of legislation.

Such entries are mere legislative heads and are of an enabling character.

The language of the entries s.hould be siven the widest scope or amplitude.

Bach general word has been asked to be extended to all ancillary or subsidiary matters which can fairly and reasonably be comprehended.

An entry confers powers Upon the legislature to legislate for matters ancillary or incidental, including provision for avoiding the law.

As long as the legislation is within the permissible field in pith and substance, objection would not be.entertained merely on the ground that while enacting legislation, provision has been made for a matter which though germane for the purpose for which competent legislation is made it covers an aspect beyond it.

If an enactment subs. tantially falls within the powers expressly conferred by the Constitution upon the legislature enacting it, itcannot be held to be invalid merely because it incidentally encroaches on matters assigned to another legislature. [891AB]

Harakchand v. Union of India, [1970] 1 S.C.R. 479 at p. 489; Stall of Bihar v. Kameswar, [1952] S.C.R. 889; Navlnchandra v. C.I.T. [1955] 2 S.C.R. 829 at p. 836 ; State of Madras v. Cannon Dunkerley, [1959] S.C.R. 379 at p. 391 ; The Check Post Officer & Others v. K.P. Abdulla Bros, [1971] 2 S.C.R. 817 ; State of Karnataka v. Ranganatha, [1978] 1 S.C.R. 641 at p. 661 ; KSE Board v. Indian Aluminium, [1976] 1.S.C.R. 552 ; Subramanyam Cttiar v.

Muthuswami, [1945] F.C.R. 179 ; Praful/a Kumar Mukherjee & Other• v. Bank of Commerce, [1947] F.C.R. 28; Ganga Sagar Co. v. U.P .. State, [1960] S.C.R. 769 at p. 782.

The observations in Azeez Pasha & Anr v. Union of India (1968) I.S.C.R. 833 were with reference to the rights of the minority community to establish a university in exercise of its right guaranteed under Art.

30 of the Constitution.

Admittedly. CUL is not an institution belonging to any minority community.

It will not be appropriate either to allow aruguments based on what has been observed with reference to an institution belonging to the minority community or to examine the vires of the Act with reference to what dOes not arise for consideration in the appeals. [892A-B)

Though the proviso to s. 2 3 had specifid a period of two years within which the word 'university' had to be omitted by the institution not entitled to its use yet there is scope for the submission that being incorporated under a Central Act, the people connected with CUL worked under the bona fide . impression that sue~ incorporation satisfied the requirements of the Act.

In such circumstances, the conviction of the appellant must be set aside. (8920-E)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 2S3-254 of 1972. ·

from the Jud$ment and Order dated the 6th day of January,

•ID

1972 or the Delhi High Court in Criminal Appeal Nos. 103 & 104 of 71.

Shanti Bhushan, R.K. Garg, Shiv Dayal and S. K. Bagga for the Appellants.

Hharbans Lal, R. N. Poddar, Ms. Halda Khatun and C. V. S, ubba Rao for the Respondent.

The Judgment of the Court was delivered by

RANGANATH MISRA, J. Both these appeals are by Special leave and challenge is to the conviction and sentence of fine imposed under Section 24 of the University Grants Gommission Act, 1956 (III of 1956) ('Act' for short) by the learned Additional Sessions Judge and upheld by the Delhi High Court in appeal.

Commercial University Limited (CUL for short) was incor-

< porated under the Companies Act, 1913 (VII of 1913) with objects, inter alia, to promote commercial education, encourage and impart commercial education by opening institutes, colleges and schools . and provide, prescribe. and maintain various standards of studies and examinations in the study of. commercial subjects and 'to ascer:

lain by means of examinations and/or otherwise the persons who acquire the prescribetl standards and to confer on such persons any academic diplomas, degrees, etc. It has a Board of Governors and the Registrar of the University is one of the Ex-Officio Governors.

This institution claims to have expanded its activities and regular convocations have been held for awarding degrees and diplomas.

The Act came into force in 1 956 and for the first time provided restrictions under ss. 22 and 23 of the Act to the following effect :

"S.22. the right io confer degrees-

(!) The right of conferring or granting degrees shall be exercised only by a University established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a University under section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees.

(2) Save as provided in sub-section (I) no person or authority shall confer, or grant, or hold himself or itself out as entitled to confer or grant, any degree.

. . r

PREM CHAND JAIN v. R. K. CHHABRA (Ranganath Misr11, J.) gg7

(3) For the purpose of this section, "degree means any such degree as may, with the previous approval of the Central Government, be specified in this behalf by the Commission by notification in the official gazeUe."

"S.53. No institution, whether a corporate body or not, other than a University established or incorporated by or under a Central Act, a Provincial Act or a State Act shall be entitled to have the word 'University' associated with its name in any manner whatsoever :

Provided.that nothing in this section shall, for a period C of two years from the commencement of this Act, apply to an institution which, immediately before such commencement, had the word 'University' associated with its name."

Penalties for contravening the proyisions of ss.22 and 23 were provided in s. 24 and whoever contravened those provisions became punishable with fine which would extend to rupees one thousand and if the person contravening was an association or other body of individuals, every member of such association or other body, who knowingly or willingly authorised or permitted the contravention was punishable with fine which would also extend to one thousand rupees. .,, The appellants came to be prosecuted for the offence under s. 24 of the Act as CUL continued to bear the description of University even after the period indicated in the proviso to s. 23 of the Act was over.

Before coming into force of the Act, there was no legislation in India which prohibited any individual or body from establishing a university and such university was free to confer degrees and diplomas. Section 22 prohibited privately established universities from conferring degrees and restricted such conferment to universities established by Acts passed by State legislatures or Parliament or institutions which were deemed to .be universities in the manner provided by the Act. Similarly, before the Act came into force there was no law which restricted the use of the wod 'University' and all institutions were free to associate this word with their names if they liked.

Section 23, however, imposed the . restriction in absolute term and the proviso allowed a period of two years within which adjustments to the new situation brought about by law had to be made,

Originally there were five accused persons.

One of them died and in respect of another the prosecution was withdrawn as he resigned from CUL. .The prosecution continued against the remain •. ing three-Shri P.C. Jain and Smt. Sushi[a Sohni who are appel !ants in Criminal Appeal No. 253 of 1972 and Shri L.N. Mehra who is appellant in the connected criminal appeal.

Mr. Shanti Bhushan appearing for the appellants anvanced four contentions :-(I) CUL had been incorporated under the Companies Act of 1913 and is deemed to be a company under s. 3 ,~~~- . of the Companies Act, 1956, the prosecution was misconceived as the prohibition in s. 23 was not attracted. (II) The restriction imposed under s. 23 of the Actwas ultra vires because entry 11 which read as "Education including universities" was in list.II of Schedule VII of the Constitution and was a State subject but the Act in question was passed by Parliament. The long title of the Act reads as "an Act to make provision for the coordination and determination of standards in universities and for that purpose, to establish a University Grants Commission" and is covered by entry 66 oflist I of the Seventh Schedule. The restriction provided py s. 23 as such does not appear to be a matter squarely within the 'ambit of the entry and therefore such a provision is ultra vires the Constitution. (III) This Court observed in S. Azeez Basha & Anr. v . . Union of India(') as per Wanchoo, C. J. :

" ...... we should like to say that the words 'educational institutions' are of very wide import and would include a university also, This was not disputed on behalf of the union of India and therefore it may be accepted that a religious minority had the right to establish a university under Art. 30 (I). The position with respect to the establishment of Universities before the Constitution came into force in 1950 was this. There was no law in India which prohibited any private individual or body to establish a university ......... Thus, in law in India there was no prohibition against establishment of universities by private indivi duals or bodies and if any university was so established it . must of necessity be granting degrees before it could be called a university. But though such a univetsity might be granting degrees it did not follow that the Government of the country was bound to recognise those degrees ............. "

(!) (1968) I S. C. R. 833.

PREM CHAND JAIN v. R .IC. CHHABRA (Ranganath Misra, J.) 889

It was urged by Mr. Shanti Bhushan that since Art. 30 guaranteed the right to establish a university to the minotity communities, the restrictions imposed by the Act would not be operative and to that extent the provision would be ultra vires the Constitution; (IV) All the three accused appellauts had severed their connection with CUL-Smt. Sohni resigned in Angus!, 1962; Shri Mehra in December, 1965; and Shri Jain in 1970. On the same analogy which led to withdrawal of the prosecution against Shri Anand Singh, the present prosecution should not have been pursued against the appellants.

The word 'university' has been defined in s. 2 (f) of the Act to mean: "a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognised by the commission in accordance with the regulations made in this behalf under this Act". Section 23 of the Act imposing the prohibtion for use of the word 'University' also provides that way. Undoubtedly under the Companies Act when a company is duly registered, it gets incorporated and such incorporation brings into existence an independent legal entity different from the share-holders constituting it. Yet we are not prepared to agree with Mr. Shanti Bhushan that the Act intended to admit a company incorporated under the Companies Act into the definition or for the purpose of s. 23. The word "established" or "incorporated" referred to Acts under which universities are es.tablished or incorporated Several universities in this country have been either established or incorporated under special statutes, such as the Delhi University Act, the Banaras Hindu University Act, the Allahabad University Act etc. In these cases, there is a special Act either of the Ce11tral or the Provincial or the State legislatures establishing and incorporating the particular universities. There is also another pattern-where under one compendious Act several universities are either established or incorporateds-for instance, the Madhya Pradesh Universities Act, 1973. The definition of university and provisions in s. 23 of the Act refer to Acts of the Central, Provincial or the State legislatures by which one or more universities are established or incorporated and not to institutions incorporated under a general statue providing for incorporation.

We do not accept 'the contention of Mr. Shanti Bhushant that CUL when incorporated under the Companies Act satisfied the definition

as also the provisions of s. 23 of Act and, therefore, there could

be no prosecution. We agree with the observation of Lord Somervell to the effect :

"The mischief against which the statute is directed and, perhaps though to an undefined extent, the surrounding circumstances can be considered",

"In ascertaining the true legislative intention. (A. G. v.

H. R. H. Augustus('). Lord Porter also spoke to the same effcet while speaking for the Board in the following words :

"A right construction of the Act can only be attained if its whole scope and object together with an analysis of its working and the circumstances in which it is enacted are taken into consideration."

Bhagawan Prasad v. Secretary of State('). SeYeral institutions styling themselves as 'universities' had started awarding degrees and diplomas which had no basis and could not be accepted. Keeping in view the mischief which was sought to be eradicated and the consideration which weighed with Parliament to introduce the prohibition in the Act, it must be held that the Act recognises only those institutions established or incorporated under special statutes of sovereign legislatures.

'Education including universities' was a State subject until by the 42nd Amendment of the Constitution in 1976, that entry was omitted from the State list and, was taken into entry 25 of the_ concurrent "list.

But as already pointed out the Act essentially intended to make provisions for the coordination and determination of standards in universities and that, as already indicated, is squarely covered under entry 66 of list I. While legislating for a purpose germane to the subject covered by that entry and establishing a University Grants Commis.sion, Parliament considered it necessary, as a regulatory measure, to prohibit un-· authorised conferment of degrees and diplomas as also use of the . word 'university' by institution which had not been either. established or incorporated by special legislation.

We are not inclined to agree with the submission advanced on behalf of the appellants that in doing so Parliament entrenched upon legislative power reserved for . the State legislature. fhe legal position is well-

(1)

(1057) 1 A. E. R. 49 (H.L.)

(2) A. I. R. 1949 P. C. 82.

PREM CHAND JAIN v. R. K. CHHABRA (Ranganath Misra, J.) 891

settled that the entries incorporated in the lists covered by Sche dule VII are not powers of legislation but 'fields' of legislation.

Harakchand v.

Union of India(1). In State of Bihar :v.

Kameswar(') this Court has indicated that such entries are mere legislative heads and are of an enabling character. This Court, has clearly ruled that the language of the entries should be given the widest scope or 'amplitude.. Navinchandra v.

C.T.T. (3) Each general word has been asked to be extended to all ancillary or subsidiary matters which can fairly and reasonably be comprehended. See State of Madras v.

Gannon Dunkerley('). It has also been held by this Court in The Check Post Officer and Others. v.

K.P. Abdulla Bros (5) that an entry confers power upon the legislature to legislate for matters ancillary or incidental, including provision for avoiding .the law.

As long as the legisla tion is within the permissible field in pith and substance, objection would not be entertained merely on the ground that while enacting legislation, provision has been made for a matter which though germane for the purpose for. which competent legisl.ation is made it covers an aspect beyond it. In a seiies of decisions this Court has opined that if an enactment substantially falls wiihin the powers expressly conferred by the Constituiion upon the legislature enacting it, it cannot be heid to be invalid merely because it incidentally encroaches on matters assigned to another legis lature. See State of Karnataka v.

Ranganatha (6);' KSE Board

v. India Aluminium (7); Subramanyam Chettiar v. Mutuswami ('); Prafulla Kumar Mukherjee & Othere v.

Bank of Commerce('); Ganga Sugar Co. v. UP. State (10).

We, therefore, do not accept the submission that the definition of university "given in.s. 2 (f) or the prohibition in s. 23 of the Act are ultra vires the Parliament on the ground that such provisions are beyond its legislative competence.

(1) ·(1970] 1 S. C.R. 479 at p. 489. (2)

(195.2] S. C. R. 889.

(3) (1955] 2 S. C. R. 129 at p. 836. (4) (1959] S. C, R. 379 at p. 391. (5)

(1971] 2 S. C.R. 817. (6) (1978] IS. C.R. 641 at p. 661.

(7) (1976] ! S. C. R. 552.

(8) (1945) F. C.R. 179.

(9) [1947] F. C.R. 28.

(10) (1960] S. C.R. 569 at p. V82.

. ~,.

In the decision of this Court in the case of. Azee• Basha, the observations relied upon were with reference to the rights of the minority community to establish a university in exercise of its right giiaranteed under Art. 30 of the Constitution. Admittedly, CUL is not an institution belonging to any minority community.

We do not think it is appropriate to allow arguments to be canvassed in this case on the basis of what had been observed with reference to an institution belonging to the minority commu- ' uity. Nor is it appropriate that the vires of the Act should be examined with reference io what does not arise for consideration in the appeals before us.

There is no dispute that prosecution against Shri Anand Singh was withdrawn as he had resigned from CUL after the case was launched. The claim of Mr. Shanti Bhushan that the three accused persons have resigned between 1962 to 1970 as already indicated has not been disputed.

Though the proviso to s. 23 had specified a period of two years within which the word 'university' had to be omitted by the institution not entitled to its use, yet there is scope for the submission of Mr. Shanti Bhushan that being incorporated under a Central Act, the people connected with CUL worked under the bona fide impression that such incorporation satisfied the requirements of the Act.

In such circumstances, we think it appropriate to accept the submission advanced on behalf of the appellants to a limited extent and allow the appeals and set aside the conviction of the appellants under s. 24 of the Act. They are acquitted of the offence and fines if already realised be refunded.

Before we part with the matter, we think it appropriate to deal with another aspect. Under s. 3 of the Act provision has been made that the Central Government may on .the advice of the Commission declare by notification in the official gazette any institution for higher education other than a university to be deemed to be a uuiversity for the purposes of the Act and when such declaration is made, all the provisions of the Act would apply to such an institution as if it were a university within the definition of the term in s. 2 (f). CUL may make an application to the Central Government for such recognition and on the advice of the University Grants Commission, the Central Government should dispose of the same in accordance with law.

We have been told that the institution has been working very satisfactorily

and has, to its credit, a long history of service in the field of

PREM CHAND iAIN v. i!.. K. CHHABRA (Ranganath Missra, i.) 893

education.

We are hopeful that taking all aspects into considra tion botJj the Commission as also the Central Government would consider the request of the institution to be recognised under s. 3 of the Act. If it is so recognised the institution would be able to confer degrees as provided in s. 22 of the Act.

It is for the Central Government next to consider whether an institution covered by s. 3 of the Act would not satisfy the provision of s. 23 of the Act and if in the opinion of the Central Government such an institution is not covered, whether an appropriate amendment to s .. 23 should not be made so as to exclude recognised institutions under s. 3 of the Act from the field of prohibition covered by s. 23 of the Act. CUL should make the application within one month from now and the Central Government should examine the matter appwpriately and pass proper orders or directions within six months thereafter.

At any rate the institution should have reasonable time-until end of 1984-to take such.appropriate steps as it may be advised, to avoid fnrther Prosecution under the Act.

S.R.

Appeal partly allowed.

PREM CHAND JAIN & ANR

R. K. CHHABRA

February I 3, 1984

S. MJJRTAZA FAZAL ALI

RANGANATH MISRA, JJ

Unfrersity Grants Commission Act, 1956

Sections 2

section 2

Section 22

Section 23

sections 22 and 23

section 24

section 23

University Grants Commission Act

companies Act

University Commission Grants Act, 1956

sections 22 and 23

University Grants Commission Act, 1956

section 2

Section 23

Parliament

Delhi University Act

Madhya Pradesh Universities Act 1913

Commercial University Ltd.

Companies Act

section 23

section 23

section 2

section 23

Schedule VII

[1970] 1 S.C.R. 479

[1955] 2 S.C.R. 829

[1971] 2 S.C.R. 817

[1978] 1 S.C.R. 641

[1945] F.C.R. 179

[1947] F.C.R. 28

Art.

30

CUL

s. 2

Shanti Bhushan

R.K. Garg

Shiv Dayal

S. K. Bagga

Hharbans Lal

R. N. Poddar

Halda Khatun

C. V. S

ubba Rao

Section 24

University Grants Gommission Act, 1956

Delhi High Court

Commercial University Limited

Companies Act, 1913

ss. 22 and 23

Provincial Act or a State Act

section 3

Central Government

Provincial Act or a State Act

ss.22 and 23

s. 24

s. 24

s. 23

India

Section 22

Section 23

CUL

P.C. Jain

Sushi[a Sohni

L.N. Mehra

Shanti Bhushan

s. 3

Companies Act, 1956

s. 23

s. 23

Seventh Schedule

s. 23

Wanchoo

Art. 30

Government of the country

Ranganath Misra

Art. 30

Sohni

Mehra

Jain

Anand Singh

s. 2

Provincial Act or a State Act

Section 23

Undoubtedly under the Companies Act

s. 23

Delhi University Act

Banaras Hindu University Act

Madhya Pradesh Universities Act, 1973

s. 23

s. 23

Somervell

Porter

s. 2

s. 23

(1970] 1 S. C.R. 479

(1955] 2 S. C. R. 129

(1971] 2 S. C.R. 817

(1945) F. C.R. 179

[1947] F. C.R. 28

Azee• Basha

Art. 30

s. 23

s. 24

s. 3

s. 2

University Grants Commission

s. 3

s. 22

s. 3

s. 23

s. 3

s. 23


E ,

A. MADAN MOHAN

v ..

KALA VAKUNTA CHANDRASEKHARA

February 14, 1984

(S. MURT AZA FAZAL ALI, A. VARADARAJAN AND

RANGANATH MISRA, JJ.]

Representation of the Peo_ple At, 1951;

Sections 81, 82 and 86-Schedu/es and'annexure~; to election petition 1101 served on the opposite party-Fai/ure-Wheiher renders the petition liable to be rejected in llmine.

The respondent fi)ed an election petition in the High Court allegin& that th~ returned candidate (petitioner herein) had committed corrupt prac tices which rendered his election void. The returned candidate made an application stating that the respondent had committed breach of the manda tor.y provisions of section 81 (3) in that with the copy of the election petition served on him, copies of documents and schedules which formed an integral part of the election petition, had not been enclosed and that for this reason the election petition was liable to be dismissed in liminc unJer section 86.

The High Court dismissed his application. In the special leave petition the returned candidate has urged the same argument advanced by him before the High Court.

Dismissing the pciition,

HELD : There is no requirement of law that the documents or schedules to the election petition should also be served on the candidate because if they were filed in Court il is always open; to the returned candidate to inspect them and find out the allegations made in the petition. Documents or sche dules donot forn1 an integral part of the election petition. [897E-F]

In the instant case all that was necessa.ry to be done by the election petitioner had been done. The election petition was accompanied by as many copies as there were responden:s. It was duly verified and copies thereof were accompanied by necessary schedµlcs containing the details of corrupt practices and the schedules were also signed by the pet!tioner. [897£..F]

Sahodrabai Rat v. Ram Singh Aharwar, [1968. 3 SCR and M. V. Hamle,

[1983) 2 sec 473, held inapplicable.

CIVIL APPELLATE JURISDICTION : Special Leave Petition

(Civil) No. 11868 of 1983.

From the Judgment and Order dated the 16th July, 1983 of the Andhra Pradesh High Court in Application No. 53 of 83.

So/i J. . Sorabjce, V.R. Reddy; K. Rajendra Chowdhary and K. Shivraj Chowdhary for the Petitioner.

The Judgment of the Court was delivered by

FAzAL ALI, J: .This petition for special leav~ is directed against an interlocutory Order dated July 16, 1983 of the Andhra Pradesh High Court rejecting the application of the petitioner for dismissing the election petition of the respondent in limine under s. 86 of the Repsesentaiion of the People Act (hereinafter referred to as the 'Act'.)

The petition arises out. of an election to the Siddipets Assembly Constituency in Andhra Pradesh which took place on January 5, 1983. The petitioner was declared elected to the said Assembly. The respondent filed an election petition in the High Court alleging certain corrupt practices.

The short point for consideration before us is as to" whether or not the election petition was liable to be dismissed in /imine under s. 86 of the Act as the copies of the documents and sche dules, which formed an integral part of the election petition, were not supplied to the petitioner which amounted to a clear breach of the mandatory provisions contained in s. 81 (3) of the Act.

 The High Court after hearing both the parties dismissed the application of the petitioner for throwing out the election petition of the respondent in /imine We have heard counsel for the parties at. length and it seems to us that the matter is no longer res integra and is covered by a decision of this Court is Sahodrabai Rai v.

Ram Singh Aharwar (') to which we shall refer hereafter. --------

(!) (1968) 3 s.c.R. 13.

SUPREME COURT R!PORTS it984) 2. S.C.R.

On the findings of the High Court three facts are clearly proved:

(a) that when the election petition was filed, it was accompanied by as many copies as were.the respondents,

(b) that the election petition was duly verified and the copies. thereof were accompanied by the necessary schedules containing the details of corrupt practices, and

(c) that the schedules or the annexures to the petition were also .signed by the election petitioner (respondent).

The only complaint of the petitioner was that the copy of the election petition served on him was not accompanied by copies of the schedules and hence the1e was a clear breach of the provisions of s. 81 (3) of the Act. Section 81(3) may be extracted thus :

"81. Presentation of petitions-

(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested b ,., the petitioner under his own signature to be a true copy of the petition."

An. analysis of the above reveals-

(a) that the petition should be accompanied by as many F copies as there are respondents, ·

(b) that every such copy should be attested by the petitioner under his own signature to be a true copy of the petition.

It is not disputed in this case that both these conditions were fully satisfied.

Section 83 of the Act contains four requirements, viz.,

(a) that the election petition shall contain a concise statement of the material facts relied upon by the petitioner,

{b) that the petitioner , should set forth the full particulars

of the corrupt practices alleged,

A. M. MOHAN v. ltALAVAIWNTA (Faza/ Ali, J.) 897

(c) that the petition should be sigEed by the petitioner and verified in the manner laid down in the Code of Civil Procedure and where a corrupt practice is alleged the petition should also be accompanied by an affidavit in the prescribed form, giving the particulars of the corrupt practice, and

(d) any schedule or annexure to the petition should also be signed and verified by the petitioner.

These conditions have also been fulfilled in the present case.

The counsel for the petitioner vehemently contended that as the schedules and other documents formed .an integral part _of the petition, the same should have been served on the petitioner (respondent in the. High Court) before it could be said that the pr_ovisions of ss. 81 and 82 of the Act had been complied with.

It was further argued that in the absence of such a compliance, the petition was liable to be rejectd in limine under s. 86 of the Act.

We are, however, unable to ai:; ree with this contention which does not at all flow from the plain and simple requirements of ss. 81 and 82. As indicated above, all that was necessary was done in this case and there was no requirement that the documents or the schedules .should also have been served on the petitioner because if they were flied in the Court it was always open to the petitioner to inspect them and find out the allegations made in the petition.

We are unable to hold that the documents or the schedules formed an integral part of the petition.

An identical question came up for consideration before this Court in Sahodrabai's case (supra) where while repelling a similar argument the following observations were made :

"The only proviion to which our attention has been drawn is sub-s. (3) of s. 81 and sub-s. (2) of s. 83. The first provides that every election petition shall be accompained by as many copies thereof as there are respondents mentioned in the petition and that every such copy _shall be an authenticated true copy. The words used here are only "the election petition." There is no mention of any document acc_ompanying the election petition ......... Assistance is however taken from the provisions of sub-s. (2) of s. 83 which provides that any schedule or any annexure to the

SUPREME COURT REPORTS

(1984] 2 S.C.R.

petition shall also be signed by the petitioner and verified in the same manner as the petition. It is contended that , since the pamphlet was an annexure to the petition it was not only necessary to sign and verify it, but that it should have been treated as a part of the election petition itself and a copy served upon the respondents. In this way, noncompliance with the provisions of s. 86 (I) is. made out. In our opinion, this is too strict a reading of the provisions.

We have already pointed out that s. 8 I (3) speaks only of the election petition ............ Even if this be not the case, we are quite clear that sub-s. (2) of s. 83 has reference not to a document which is proauced as evidence of the averments of the election petition but to avcrments of the election petition which are put, not in the election petition but in the accompanying schedules or annexures.

But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force to the petition are not kept back but produced or filed .)Vith the election petitions.

They are in no sense an integal part of the averments of the. petition but are only .evidence of those averments and in proof thereof. The pamphlet therefore must be treated as a ·, document and not as a part of the election petition in so -far as averments are concerned ........ .It would lie stretching the words of sub-s. (2) of s. 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper."

It is a well settled principle of interpretation of statute that wherever a statute contains stringent provisions they must be literally and strictly construed so as to promote the object of the Act.

As extracted above, this Court clearly held that if the arguments of the appellant (in that case) were to be accepted, it would be stretching and straining the language of ss. 81 and 82 and we are in complete agreement with the view taken by this Court which has

dedded the issue once for all.

The learned counsel relied on a latter decision of this Court iii the case of M. Karunanidhi v. H. V. Hande(1) where a Divison

(1) [1983) 2 s.c.c. 473,

. ' J

"" .

Bench while considering a similar question made the following observations :

"The Preliminary issue and the appeal turn on a short point of construction. The question that arises is whether the words "copies thereof" in sub-section (3) of Section 81 comprehend the ' election petition proper or do they also include a schedule or annexure in terms of sub-section (2) of Section 83 or merely a document only in proof of the allegations in paragraph 18 (b) must. turn on a construction of sub-section (3) of Section 81 read with sub-section, (2) of Section 83. It now appears to be well set.tied by Sahodrabai' s case, (1968 (3) SCR 13) that s111;::secti_on (2) of section 83 applies only to a schedule or annexure which is an integral part of the election petition and Iiot to a document which is produced as evidence of the averments of the election petition..'' . . ,

This decision in no way departs from the ratio laid down in Sahodrabai's case (supra). The aforesaid case however, rested on the ground that the document (pamphlet) was expressly referred to in the election petition and thus became an integral part of the same and ought to have been served on the respondent. It is, therefore, manifest that the facts of the case cited above ae clearly distinguishable from the facts of the present case. Furthermore, the decision in M. Karunanidhi's case (supra) has noticed the previous decision and has fully endorsed. the same.

For these reasons, therefore, we are clearly of the opinion that the view taken by the High Court was correct and no interference is called for with the judgment of the High Court. As the matter was clearly concluded by authorities of this Court we did not think it necessary to grant special leave and hearing the parties at length we disposed of and dismiss the petition in tetms of the aforesaid observations. ·

P.B.R.

Petition dismissed.

A. MADAN MOHAN

KALA VAKUNTA CHANDRASEKHARA

February 14, 1984

S. MURT AZA FAZAL ALI

A. VARADARAJAN

RANGANATH MISRA, JJ.

Sections 81, 82 and 86

section 81

section 86

sec 473

J. . Sorabjce

V.R. Reddy

K. Rajendra Chowdhary

K. Shivraj Chowdhary

FAzAL ALI

s. 86

Andhra Pradesh

s. 86

s. 81

SUPREME COURT

s. 81

Section 81(3)

Section 83

the Code of Civil Procedure

ss. 81 and 82

s. 86

ss. 81 and 82

Sahodrabai

s. 81

s. 83

s. 83

s. 86

s. 8

s. 83

s. 83

ss. 81 and 82

Section 81

Section 83

Section 81

Section 83

section 83

M. Karunanidhi


SMT. KAUSHALYA DEVI BOGRA AND OTHERS ETC.

THE LAND ACQUISITION OFFICER, AURANGABAD

ANDANR.

February 15, 1984

[S. MURTAZA FAZAL ALI, A. VARADARAJAN AND

RANGANATH MISRA JJ.]

Constltioa of Iudia 1950, Artie/• UI.

Supr1me Court in appeal telling asld• jKdgl11'at of High Court-High Court directed to dispos1_ of cas• afresh-High Court wh1th1r entit/1d to resurrect th11ariilr Judlfl11'DI.

Land AcquisitioR A.ct, 1894, Section 23-Lar11 tract of land acquired valuation of such lmtd--Transactions in respect of small properti'es do not offer proper guide-li1H1. • A large tract of land located with in the Municipal Limits was notified for acquisition under a.3 (1) of the Land Acquisition Act prevailing in the State of Hyderabad, corresponding to section 4 of the Land Acquisition Act. 1894 for a public purpose. Appeals were filed by two groups of people whose lands were acquired under a common notification-, and they were disposed of by the High Court by applying a common basis.

Dissatisfied with the compensation awarded, the first eroup of claimants and the State preferred appeals.

A Division Bench of the High Codrt after dividing the land into zones for the purpose of fixation of compensation determined the compensation. Beine dissatisfied with the results, the claimants preferred appeals to this Court.

In the appeals, it was urged on behalf of the claimants that the decision of the Civil Judge in the second groups had not becoffie final and that an en~ hanced compensation was granted by the Civil Judge in that matter, and sought to introduce additional evidence, This Court set aside the judgments of the High Court, sent the cases bac'; tr> the Hi&h Court and directed the Hi&h Court to dispose them.

In the connected appeal (second group), the claimant being dissatisfied with the compensation awarded both by the Land A"'!uisition . Collector aqd

' I .

KAUSHALYA DEVI V. LAND ACQN. OFFICER 901

the Civil Judge preferred an .appeal to the High Court, and a Division Beneh A which reassessed the evidence, held that as no acceptable material was on record to justify_any enhancement of compenation, that award of :the Land Acquisition Officer should be sustained, The appellant challenged this order of the High Court, in his appeal to this Court.

When the appeals after remand (first group) came before the same Division Beneh, the High Court finding that no further evidence was forth ... ' coming either on behalf of the appellants or the State, held that the ear1ier Judgment of the High Court shotild be treafed as the substantive judgment declared it to be placed on tbe record as the judgment of the High Court after remand by the Supreme Court,. and thereby confirmed the aluation and cornpensatio~ awarded by the earHer Division Bench.

Allowing the appeals by both the groups to this Court;

HELD : 1 (i) The High Court exceeded its jurisdiction in dealing with the first appeals. This Court. in ex-ercise of its appellate powers vested in it u:Odcr Article 136 of the Constitution had set aside the Bench decision of the High Court delivered iP 1971 and that judgment for all inteDts _ and pur poses had become nonexistetit. Thepresent Division Bench of. the High Court was not entitled, by any process known to law, to resurrect that judgment into life. [909B-C]

(ii) The dfrection of the appell<"te court is binding on all courts subordinate thereto.

The provisions of Article 141 of the Constitution, require all Courts in India to be bound to follow the decisions of this Court. Judicial discipline requires and decorum known to law warrants. that appellate direc

tions should be taken as binding and followed. [909D-E] E

Broom v. Cassell & Co., [1972] 1 All. E.R 801 :.referred to.

In the instant case, a jqdgnient which has already been sCt aside has been brought on record and has been described as the judgment iri the first appeals. That judgment is a nullity. The Division". Bench of the High Court a11owed itself to be s"!'ayed awa:Yand landed up ina sitution which was wholly unwarranted. Some of its observations were uncalled for and greater restraint was expected, It was open to the High Court .to require the parties to move this Court for modification of the direction. If necessary, a reference could have been made to the Registry of this Court, so that this Court cotild have even taken suo motu action. If additional evidence w!s not forth coming, the Division Bench could have appJied its mind afresh to the materials already on record, and the appeals should have been disposed of by an independent judgment and not by restoring to life a judgment which had, in exercise. of appellate powers of this Court, been. rendered lifeless. [910GH; DFJ

2. When large tracts of 13.nd are acquired, the transaction in respet of srna11 properties do not offer a proper guideline. Therefore, the valuation intransactions in regard to smaUer property is not taken asa real basis for determin ing the Compensaticn fot larger _tracts of Property. For determining the market value of a large property on the basis of a sale transaction for smaller property a dedction should be s; iven. A reduction of 25% was jndicated in one case:

D . '

while certain other cases indicated that the reduction should be to the extent of 1/3. [912F-H; 913A]

Prithvi Raj Taneja v. State of Madhya Pradesh and Others, [1972] 2 S.C.R 633; Padma Uppal Etc. v. State of Punjab and Others, [1977] 1 S.C.R. 329; Special Land Acquisition Officer, Bangalore v. T. Adinarayan Setty, [ 19S9] Suppl.

I S.C.R. 404; referred to. •

In the instant case, the lands have been acquired in a toY.rn, which was in a developed part of the State, and was a constituted municipality. Not far away from it are places of tourist importance. A fort and a place of historical importance are in the vicinity of the town. There is. evidence that the Jands acquired are located close to these spots, and that these areas were developed and semi-developed portion of the 'town. The town had become the regional be. ad-quarters of a Zon~ of the State and had been industrially developing.

~ .' , : I I The lands in qµestion had potential value which had to be kept in view in the matter of fixing the compensation under the iand Acquisition Act.

Taking an overall picture of the matter) ccmpensation is fhted at' the rateof Rs. J.SO per spuare yard or Rs. 7260/- per acre for all the lands acquired by te notification in question. Over and above this amount, the appellants shall be entitled to statutory solatium of 15 % as also interest at the rate of 6 % per annum on additional compensation from the date of di. spossession till payment thereof.

The Collector to wOrk out.t:he compensation within two months. If the amount of com.pensation deter:mind is not paid within three months thereafter interest at 12 % per annum on. the additional compensation shall be payable till payment

is made. [912C-D; 913D-E] .

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2458- 7461 of 1981.

Appeals by Special leave from the Judgment and Order dated . . the 16th October, 1979 of the Bombay High Court in 1st.

Appeal Nos. 773/67, and 537/68, F.A. No. 774/67 and Cross Appeal No. 702/68.

WITH

Civil Appeal No. 2462 of 1981.

Appeal by Special leave from the Judgment and Order dated the 15th October, 1979 of the Bombay High Court in Civil Appeal H No. 628 of 1972.

Shanti Bhushan, C.S. Vaidyanat'1, P. Chowdhary, M. Mudgal,

,,.

KAUSHALYA.DEVI v. LAND ACQN. OFFICER (Ranganatb Misra, J.) 983

Ms. Gurdip Kaur and Prasant Bhushan for the Appellants.

O.P. Rana and M.N.

Shroff for the Re1pondents.

The Judgment of the Court was delivered by

RANGANATH MISRA, J. All these appeals are by special leave and seek to challenge two _separte judgments of the Bombay High Court. A large tract of land located within the municipal limits of Aurangabad within the State of Maharashtra wa11 notified for acquisition under section 3 (I) of the Land Acquisition Act prevailing in the State of Hyderabad ·(corresponding to s. 4 of the.

Land Acquisition Act, Act I of 1894), by notification dated November 28, 1957, for the. purpose of locating a Medical College 11.nd an attached hospital. These lands can be conveniently referred to as Navkhanda and Ahmadibag properties. Four of these-appeals are by one group being Kausalya Devi Bogra and others and the other is by Syed Yusufuddin Syed Ziauddin.

Since their lands were acquired under a common notification and as would be indicated later, the appeals were disposed of by the High Court by applying a common basis and these appeals at the request of the counsel have been heard together, they are being disposed of by a common judgment. The total acquisi_tion was of about 150 acres of land.

Out of it, the first group owi; ied about 74 acres while the claim of Yusufuddin related to about 15 acres of land.

In so far as the lands of Kausalya _ Devi's group are concerned, the Land Acquisition Officer determined compensaion at 4 paise per square yard for the Navkhanda land in--the two blocks besides statutory solatium of 15%. At the•_instance of the clai. mants reference was made to the Civil Judge who raised the compensation o 15 paise per square yard as against the claim laid at the rate of Rs. 2.50 per square yard. So far as •Ahmadibag lands are concerned, the Land Acquisition Officer -awarded compensation at the rate of 3 paise per square yard and on a reference to the Court, the learned Civil Judge raised the compensation to 12 paise per square yard besides the statutory solatium of 15% while the claimants had asked for compensation at the rate of Rs. 1.50 per square yard. In both the cases the claimants as also !he State preferred appeals-the State challenging the 'enhancement and the claimants asking for more.

A Diviiou

...

., .E

Bench of the Bombay High Court by judgment dated April 27, 1971, divided the Ahmadibag lands into three zones for the purpose of fixation of compensation; the firs.t portion was on the east, the portion which abutted the road near the main gate up to an indicated depth was treated as the second block and the patch of land which was to the north of the second portion was treated as the third block. The High Court fixed compensation at 12 paise per square yard for the middle portion and at 9 paise per square yard for the rest of .the land. So far as Navkhanda lands were concerned; the same was also divided into three zones and depending upon the location of these three blocks, compensation was fixed at 16 paise per square yard of the land in the zone abu'ttingthe road; 10 paise per square yard for the second zone and at 8 paise per square yard for the remaining lands forming the third zone. Being dissatisfied with the results obtained in the first.appeals before the High Court, the claimants came before this Court by certificate under Article 133 of the Constitution on the basis of valuation involved. Attempt was made to introduce additional evidence w.hich mainly consisted of material to show that. higher. compensation had been given for similarly situated , properties.

By Judgment dated March 23, 1979, in Civil Appeal Nos. 1035 & 1038 of 1972, this Court directed :

"We, therefore, allow the appeals, set aside the judgment of the High Court and send the cases back to the High Court to be restored and direct the High Court to take the appeals on its file and dispose them of according to law in the light of the directions given above." ·

One. of .the consi.deration for remand was reference to . two judgments of the Civil Judge where, .in respect of lands covered by the same Notification, compensation had been worked out at Rs. 4.50 per square yard. One of these judgments was the.case of Yusufuddin.

As.the ju.dgment of this Court would. show, it had been represented by the claimants before this Court that the decision .. of the Civil Judge in Yurnfuddin's case had not been challenged in appeal and had become final.

That was, however, not a fact and First Appeal No. 628/72 had been taken to the High Court by the State.

In Yusufuddin's case, as already indicated, the property acquired was around 15 acres. These lands were covered by two sector; 10 'acres and 16 gunthas appertained to Sej Nos. 3, 4 arn; l

....

ic:AUSHALYA DEVI v. LAND ACQN. OFFICER (Ranganath Misra, J.) 905

5 while 5 acres 32 gunthas related to Saj No. 167, and all these lands were situated close to the road leading from Aurangabad City to Panchakki. The Land Acquisition Officer had given an award of Rs. 5454.71 inclusive of solatium of 15% for the first sector and a sum of Rs. 4614.11 inclusive of the solatium in respect of 5 acres 32 gunthas in Sej 167. The appellant was aggrieved by the Award and laid claim of Rs. 40,360 in respect of first block and Rs. 2,26,512 in respect of the other. On the basis of the evidence placed on record, the learned Civil Judge came to hold that market value of the property on the date of the preliminary notification was Rs. 4.50 per square yard but as the claimants had claimed a lesser amount, he confined the compensation to the amount claimed and fixed the compensation accordingly. The decision of the Civil Judge was challenged in appeal as already indicated. The High Court re-assessed the evidence and came to hold that no acceptable material was on record to justify any enhancement of compensation and the Award of the Land Acquisition Offiicer should be sustained. Accordingly, the decision of the Civil Jndge was vacated and if out of the enhanced compensation any amount had been paid, refnnd thereof was directed.

This first appeal of the State against Ynsufuddin was disposed of by a Division Bench consisting of Deshmukh, C.J. and Deshpande, J. on October 15, 1979. Before the same Division Bench the other batch of first appeals remanded pursuant to the direction of this Court came up for hearing ou the next day, viz., October 16, 1976. The High Court referred to these first appeals as once upon disposed of by a Division Bench of the Court and stated :

"Being dissatisfied with this common judgment disposing of the four appeals, the claimants carried the matter to the Supreme Court on leave from this Court. According to the provisions of the law then existing, the leave granted was as a matter of course as the claim involved in each of the appeals was much more than Rs. 20,000 at all stages of the litigation. After obtaining a certificate of fitness for leave to appeal to the Supreme Court on I 7th December 1971 from this Court, the petition of appeal was filed in the Supreme Court on 15th February 1972. Certain statements were made in this petition of appeal with an allegation that steps were being taken .to produce additional

SUPRBME COURT REPORTS [19841 i s.c.lt.

evidence by a separate application as per rules. Accordingly, a separate application for production of additional evidence was made on 27th February 1972. Presuma.bly

a copy of the appeal memo, as also a copy of this appliication was served upon the State Government of Maharashtra, who were the respondents, and we further presume that those copies were made available to the learned counsel who were engaged by the State to defend the said appeals. We are told that before the matter comes up for hearing, there is an intervening stage when a statement of case is required to be filed before the final hearing. The learned counsel is not aware whether in these appeals any such statement of case was filed by the parties. After a lapse of aboUtseven years these appeals were called out for hearing before the Supreme Court on 23rd March, 1979.

By a speaking order, the Supreme Court set aside the Judgment of this Court and remanded the original four appeals for being Jurther heard and disposed of on merits.

It is only in this manner that we are hearing today the .said four appeals over again.

For reasons which we will detail hereafter, we have not heard the parties on merits at all. It is true that the Supreme Court has set aside the judgment of this Court and remanded the appeals for further hearing and disposal according to law. That is what precisely we are doing but for reasons which we will record hereunder why we have not heard the parties on merits.

On considering in detail the long and able judgment delivered by the two judges of this Court and afcer reading

the Supreme Court order and noting the factual position, there is not much force in hearing the appeal afresh and further there is no necessity for the application of mind. by another two judges of this Court to the same evidence which is on record. The factual position that has come to our notice reveals a state of affairs which cannot be described as very commendable so far as the handling of the Government litigation is concerned ......... What surprises us is that when copies of original appeal, petition as well as civil application . for additional evidence are served upon the Government no attempt is made to file a reply that these judgments need not 9c admitted as additional evidence as the High Court is

. ·~

\ l

KAUSHALYA DEVI v. LRND ACQN. OFFICER' (Riillgailath Misra, J.) "9'61

already seized of the judgments in appeals which are admit ted and they have not become final as alleged by the appellants in their memo of appeal to the Supreme Court. Even after seven years when the matter was called out for .final hearing before the Supreme Court, we are surprised to find from the Supreme Court's order that the Govermnent repre, sentative before the Supreme Court was on the defensive all the while and merely wanted to state that he shonld be heard further in the matter of additional evidence. We do not know whether any attempt was made to seek instructions from the State Government or in spite of query being made the informatiOn was wanting from this end. Whatever the reason may be for the Government's failure to provide instructions to the counsel appearing for the State in the Supreme.

Court or whatever may be the reason for the failure of the Government counsel in Delhi to seek information either of them is not a very commendable state of affairs.

The Supreme Court. should have been told at once that those judgments were subjected to appeals and the appeals are pending and almost ready for hearing. We are sure the Supreme Court would have adjourned the hearing unti!'ihe decision by the High Court in First Appeal Nos. 628 of 1972 and 179 and 180 of 1972. That undoubtedly would have been the proper course for the Government to adopt and we have no doubt that the Supreme Court would have valued that suggestion."

Then followed a long paragraph censuring the conduct of'

C I

counsel for the claimants which closed with the following observa F tion:

• "The Supreme Court took cognizace of all this and thinking that that Court cannot go into such questions in detail as it may invoive taking of evidence, the Supreme Court passed the order and that is how this group of appeals has come back to us for further hearing." ·

A set of first appeals one of which related to Yusiifuddin's matter being of the year 1972 first came up for hearing before the High Court. In course of hearing thereof, when the judgment of

the Division Bench of 1971 in the case of Kausalya Devi's group

H • was produced, it was pointed out that this Court had already vacated the judgment of the Division Bench and .the matter h'ad

been remanded. The Division Bench hearing tl1e appeals after remand, therefore, directed as stated in its order :

'.'We, therefore, said that the office may find out as to which are the group of appeals which were rema:nded and issue notice fixing 8th October, 1979 as the date of hearing along with those group of appeals. That is how they came to be shown on our Board from that day onwards continuously until they reached the final hearing.

However, the very next day'after 18th September 1979, Mr. Savant came to tell us that he would not be in a position to apply for additional evidence, as the very judgments of the Civil Judge in respect of which certain representations were made before the Supreme Court are those which are the subject-matters of First Appeals Nos. 179 and 180 of 1972 as also first appeal no. 628 of 1972. Since we had already adjourned the matter, we decided to hear these appeals first and take up these remanded appeals."

The Division Bench continued to State :

"The first factual position which we note here is that neither the appellant has pressed for additional evidence nor the State could lend additional evidence, though the wording of the Supreme Court order says that both the parties will be at liberty to apply for additional evidence.

None of the parties has any additional evidence to offer.

In fact, in our humble view, remand seems to be a direct result of a rash statement; not being deniec; I even at final hearing stage. If this is the position in so far as the appeal in the matter was concerned where two other judges of this Court who were seized of the matter had given full hearing to the parties at an earlier stage we told Mr. Andhyarujina, Advocate, that there was no necessity for any further hearing in the matter and that we are not inclined to do so. Since there is no change in the record anc:I no additional evidence is offered and the High Court judgment was pronounced on the evidence already recorded, we see no reason to differ in any way with the well considered earlier judgment of this Court. We, therefore, declare that a copy of that judgment, which will be our substantive judgment, be placed

KAUSHALYA DEVI v. LA' D ACQN. OFFICER (Ranganath Misra, J.) 909

on record as the judgment of this Court afier remand by the Supreme Court.

We thus not only confirm the valuation and compensation awarded by the earlier Bench of this Court hut also confirm their order .as to costs." .

Having read the judgment cif the High Court and considering the manner in which the. first appeals have been . disposed of, we have no doubts in our mind that the High Court exceeded its jurisdiction in dealing with the first appeals. This Court in exercise of appellate powers vested it under Article 136 of the Consititution had set aside the Bench decision of the High. Court delivered in 1971 and that judgment for all intents and pnrposes had become non-existent. The. present Division Bench of the High Court was not entitled, y any process known to law, to resurrect that judgment into life.

The direction of the appellate court is certainly binding on the courts subordinate thereto. That apart, in view of the provisions of Article 141 of the Constitution, all courts in India are bound. to follow the decisions of this Court. Judicial discipline requires and decorum known to law warrants that appellate directions should be taken as binding and followed. It is appropriate to usefully recall certain observations of the House of Lords in Broom v. Cassell & Co.(1) Therein Lord Hailsham, L. C. observed :

''The fact is, and I hope it will never be necessary to say so again, that in the hierarchical system of courts which exist in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tier."

Lord Reid added :

"It seems to me obvious that the Court ofAppeal failed to understand Lord .Delvin's speech but whether they did or G not, I would have accepted them to know that they had no power to give any such direction and to realise the impossible position in which they were seeking to put those judges in advising or .directing them to disregard a decision of this

House."

(1) [1972] I All E. R. 801.

'stlPREMB COuRT REPOR1'S (1984} 2 s:c.R.

A Lord Diplock observed at p. 874 of the Reports :

0 D

"It is inevitable in a hierarchical system of courts that there are decisions of the Supreme appellate tribunal which do not attract the unanimous approval of all members of the judiciary.

When I sat in the Court of Appeal, I sometimes thought the House of Lords was wrong in over ruling me.

Even since that time there have been occasions, of which the instant appeal is one, when alone or in company.

I have dissented from a decision of the majority of this House. But the judicial system orily works if someone is allowed to have the last word and if that last word, once spoken, is loyally accepted."

We refuse to accept the submission of Mr, Shanti Bhushan for the appellants that the High Court intended to disobey the direction given in the appellate order of remand. Nevertheless, the Division Bench of the High Court allowed itself to be swayed away and landed up in a situation which was wholly unwarranted. Some• of the , observations which we have extracted. were uncalled for and greater restraint was expected. It was open to the High Court to require the parties to move this Court for modification of the direction. If necessary, a reference could have been made to the Registry of this Court so that this Court could have even taken suo motu action. Finally, if additional evidence was not forth coming, the Division Bench could have applied its mind afresh to the materials already on record and the appeals should have been disposed of by an independent judgment and not by rcstori ng to life judgment which had, in exercise of appellate powers of this Court, been rendered lifeless.

We hope and believe that such an unfortunate situation will never recur and, therefore, we propose to say no more on this aspect of the matter.

As already indicated, the order of remand has not been opera~ tive on account of the High not giving effect to it. On the other hand, a judgment which haJ already been set aside has been brought on record and has been described as the judgment in the first appeals. In our opinion, that judgment is a nullity. The two options available before the Court, therefore, are, a further remand to the High Court asking for a fresh disposal of the appeals or to dispose of the appeals in exercise of appellate powers by recording findings. Acquisition in this case is of the year 1957. Twentyseven

KAlisliALYA DEVI v. LAND ACQN. OFFICER (Ranganath Misra, J.) 911

years have already passed. A remand at this stage would indeed' be not in the interest of the parties nor in public interest.

We have, therefore, decided to look into the materials ourselves and dispose of these appeals finally.

Aurangabad was in a developed part of the Nizam's State of Hyderabad and .was a constituted municipality. Hyderabad had become a part of India by 1948.

By the State Re-organisation Act of 1956, Aurangabad and certain other tracts of Hyderabad became parts of the then State of Bombay. Aurangabad was cif historical importance.

Not far away from it are the famous caves of Ajanta and Ellora. Aurangabad, therefore, had been of tourist importance from before. A fort and a palace of historical importance are in the vicinity of this town.

There is evidence that the lands acquired in the instant appeals are located close to these spots. There is also evidence that these areas were developed and semi-developed portions of the town.

The learned Civil Judge Clid take into account certain documents for fixing up the valuation of the property on the date of the notification. In Yusufuddin's case a sale deed of October 18, 1957, was relied upon where ihe valuation was about Rs. 4.50 per square yard. This sale deed was of the year of the notification though the transaction happened to be a few months after the date. The learned Civil Judge had found that the property was located not away from the acquired land.

Exhibit 36 was also the c:ertified copy of a sale deed of 1957 but since it bad a construction on the property and the separate valuation thereof could not be known in the absence of any substantive, no reliance had actually been placed on this transaction. Exhibit 37 was a transaction of 1953 and the rate adopted there was about Rs. 5 per square yard. A party to the transaction was examined as a witness.

As noticed by the learned Civil Judge, the property was located at a distance of about there furlongs from the acquired land. The learned Civil Judge stationed at l\uran'gabad was

.. certainly in a better position to take judicial notice of the location of important landmarks within Aurangabad than the learned Judges of the Bombay High Court or even the Judges of this.

Court sitting at a long distance from the place wh¢re the lands . are situated. Exhibit 42 is a. saledeed of 1960 and keeping in view the extent of lands sold and the consideration per square yard, the rate worked out at Rs. 2.25. The purchaser had:been examined as a witness and the land'has been found to -be abOut

half a furlong away from the acquired land. The learned Civil Judge also relied upon a letter of the Collector of Aurangabad addressed to the Deputy Director of Excise Department wherein it was indicated that the price ofland in the area was about Rs. 5 per square yard and that was stated with reference to some land near the Railway Station. The acquired land is admittedly not far away from the Railway Station.

The learned Civil Judge did in fact state in his order that the lands of Yusufuddin were situated by the side of the road leading from Panchakki to Bhadkal gate.

The historical monument of Panchakki has been stated to be located by the side of the acquired land. A State Hotel has come up not far away from the land. The Court took judicial notice of the fact that Aurangabad city had developed rapidly following police action which brought about accession of the Nizam's State to India. Aurangabad had become the regional headquarters of a zone of the State.

The city had been industrially developing. Therefore, the lands in question had potential value which had to be kept in view in the matter of fixing the compensation under the Land Acquisition Act.

Admittedly, the lands of Yusufuddin and the lands belonging to Kausalya Devi group are in one adjacent tract. Therefore, it would not be improper to assume, particularly in the absence E of any contrary evidence from the side of the State that there was no great disparity in the quality of lands and that all these lands were substantially of similar type.

Two principles relating to the matter of fi•ation of compensation relevant for the present purpose may be kept in view.

When large tracts are acquired, the transaction in respect of small properties do not offer a prope~ guideline. Therefore, the valuation in transactions in regard to smaller property is not taken as a real basis for determining the compensation for larger tracts of property (see Prithvi Raj Taneja v. State of Madhya Pradesh and Ors(1). ; Padma Uppal etc. v. State of Punjab & Ors(').

In certain .other cases this Court indicated that for determining the market value of a large property on the basis of a sale transaction for smaller. property a deduction should be given~ In Special Land Acquisition Officer, Bangalore v. T. Adinarayan Setty, (') a reduction of 25 % --------· --·

(1)

[1972) 2 S.C.R. 633. (2)

(3) [1959) Suppl. 1 s.c.R. 404.

KAUSHALYA DEVI v. LAND ACQN. OFFICER (Ranganath Misra, J.) 913

was indicated while there are certain other cases where the view is that the reduction should be to the extent of 1/3.

Again, in the very scheme for fixation of compensation provided by the Land Acquisition Act there is bound to be some amount of arbitrariness.

The acquistion is deemed to be a statutory purchase and on the basis-Of. evidence the law requires an assumed consideration to be determined.

Keeping in view the fact that acquisition is of compulsory nature, a solatium of 15 % on the valuation is provided.

Bearing these considerations in view and taking into account the fact that the lands in question were located in a developed part of Aurangabad and had considerable potential value, we proceed to fix the market value of the property.

One acre of land is equal to 4840 square yadrs.

The learned Civil Judge had maintained a distinction between the two classes oflands.

We take note of that fact also in the matter of determing the compensation. We, however, do not propose to indicate separate valuations for thet wo classes of lands. Taking an overall picture of the ma!ter, we direct

compensation to be fixed at the rate of Rs. 1.50 per square yard or Rs. 7260 per acre for all the lands of the present appellants acquired by the notification in question.

Over and above this amount, the appellants shall be entitled to statutory solatium of 15 % as also interest at the rate of 6 % per annum on the additional compensation from the date of dispossession till payment thereof.

We direct the Collector to work out the compensation on the basis indicated above within two months from today. If Ute amount so determined is not paid within three monts thereafter, the interest on the additional compensatfoµ shall be at the rate of 12 % par annum till payment is made.

OrJintily, thi appJl!ants should have been entitled to costs.

Keeping in view the history of the litigation and manner in which the Kausalya Dovi group of appellants had conducted themselve• on the earlier occasion before this .court, we do not award costs to them.

In Civil Appoal No. 2462/81 appellant Syed Yusufuddin Syed Ziauddin will be c 1titled to .his costs in this Court and hearing fee of Rs. 1,000.

J'!.V.K.

Appeals a/lo>eeq.

KAUSHALYA DEVI BOGRA AND OTHERS ETC

THE LAND ACQUISITION OFFICER, AURANGABAD AND ANR

February 15, 1984

S. MURTAZA FAZAL ALI

A. VARADARAJAN

RANGANATH MISRA JJ.

Section 23

Hyderabad

section 4

Supreme Court

Article 136

Article 141

India

[1972] 2 S.C.R 633

[1977] 1 S.C.R. 329

Bombay High Court

Shanti Bhushan

P. Chowdhary

M. Mudgal

Gurdip Kaur

Prasant Bhushan

O.P. Rana

M.N.

Shroff

Aurangabad

section 3

s. 4

Land Acquisition Act

November 28, 1957

Kausalya Devi Bogra

Syed Yusufuddin Syed Ziauddin

Yusufuddin

Article 133

March 23, 1979

Yurnfuddin

Ranganath Misra

Aurangabad City

Panchakki

Ynsufuddin

Deshmukh

Deshpande

October 15, 1979

October 16, 1976

27th February 1972

Government of Maharashtra

23rd March, 1979

Riillgailath Misra

Supreme.

Delhi

Yusiifuddin

Kausalya Devi

18th September 1979

Savant

Andhyarujina

Article 136

Article 141

Hailsham

Reid

.Delvin

Diplock

Supreme appellate tribunal

Shanti Bhushan

Bombay

Ajanta

Ellora

October 18, 1957

Aurangabad city

Kausalya Devi group

[1972) 2 S.C.R. 633

Kausalya Dovi

Syed Yusufuddin Syed Ziauddin