. •

-. -

HARI SINGH & ORS.

STATE OF U.P. AND ORS.

'(A.P. SEN E.S. VENKATARAMIAH. JJ.]

April 6, 19$4

Land Acquisition Act, I 894-s. 4 and s.6-Acq>lsltlon proceedings (Notification u/.<.4 incorporating ordr u/s. 17 (4) exempting application of s .. ~A and notification u/s. 6 containing. order u/s. I 7 (/) authorising Collector 10 1ake possesSion issued and published in official Gazette)- Validity of acqui.dtion proceedings challenged by ay of writ petiticm 0.fter a period of o'1er two years-Whether petition could be dismissed on ground af delay-Whtther court could interfere when facts alleged in petition are disputed.

On January 8, '1980 the respondent State issued a notification urider

Se~. 4 (I) of the Land Acquisition Act of 1894 for acquisition of 60 adjoining pJots of land of_ two small villaacs for construction of a market yard. Th_e notification alSo contained an order of the Government made under Sec. 17(4) of the Act directing that Sec. SA would not apply to tho said proc.eedings. The notification was publiShed in the. Official Gazetto dated January 9, 1980. That notification was followed by another·· notification dated January .9, 1980 issued under Sec. 6 of the Act. This notification contained an order made under Sec .. 17 (I) of the Act authorising the ColleCtor to take possession of the plot's.

The notification was published in the official Gazette dated January 10, 1980.

Tho possessfon of the Plots was taken in course of the acquisition proceedings. Jn or a, bout June 1982 notices were issued by the CollectOr to the interested persons for determining the compensation . pa:Yable tothem.

By filing a writ petition in the High Court 1he appellants qdestioiied the validitY

of the acquisition proceedings in regard to certain plots -on the groundS that : (!) t)ley had no knowledge of the acquisition proceedings and were prejudiced by the order made under sec. 17 (4)i (2) there was no urgency sufficient in law to sustain the .order made under. Sec. 17 (4); and 13) Sec. 17 (4) would not be applicable because on a part of a plot of land there was a house.

The High Colt<! d'ismissed the writ petition.

Hence this appeaJ.

Dismissing the appeal;

'HELD : In a pmall place whero these plots are situate, the acquisition of these llQds would be the talk of the town in a shortwhilo and it is difficult to believe that tho appellants who are resident.• of that place l'f9Uld l)Ot have qoW!j till Jutr 1982 tqat the impune<J notjfiation had

A been published in l98tr. Any interference in this case filed after two and U half years' Wirh the acqt.iisition protecdings is likely to cause -serious 'public prejudice.

This appea.1 should, th:rcfote1 fail , On the ground of. delay alone. [420G-H) . • :

; .K

Appellant No. r claims to be the owner of plot No. 249, On beb•lf of .the respondents it) is urged that appella9-t No. 1 is recorded only as a, co-tenure holder alongwith five others and they hve not iplpeached the notifications.

With regard to the allegations about the existenc'e of a house on this plot, it is seen that the said. fact is denied.

Tho resPon .. dents rely upon some statements recorded by th.e revt'nue authorities

uggesting that there was no_ house- on thi's plot on the dafe of the notification.

This is a.disputed question of fact. Appellant No. 2 who claiins to be_the owiier of plot No. 261 is. stated to have purchased it . op-NQvember 17, -19.80 .. after the impugned notificJtions. were published. The title of appellant No. 3 to pl it No. J33 is denied by R K. Kannaujia, Secreh\, ry,, Krishi Utpadan .M1odi _Sarni ti, Kheragarh.

Ia tis Stte._of affSlirs. where there are disputed questions_ of f;.lcts it cannot be said that (he appe11ants have made out any case for .inteiference under Article 226 of the Const.itution.

[42 IBD]

There is.no ground to held that the order made undei: scti.on J7 (4)-0f the A>t exempting the operation of section 5-A ot the Act is bad in Jaw. even though _there appears to be .some adminis_tralive delay irr commencing the construction 9f the Market Yard.

[421FG] . ' '

State. of Punjab v. ·. Gucdlal Singh & Ors.,

[1980] .1 S.C.R. 1011, feferrid to. ·

. CivIL APl'fLLAl'E JuRlSDIQTION :Ci.Yi! Appeal No. 5313 of 1983,, ·

Appeal by Special leave fr.om the Judgment and Order dated the 17th January, 1983 in CMWP. No. 8397of1982. ,, . :' . .

Shanti Bhusharj and S. Markandeya for the Appellant ..

Gopal Subrtimanlam and Mrs. S. Di":shit for the Respondents. ·

The Judgment of the Court was delivered by ' VENKATARAMiAa, J.. About 45 plots of land of Kheragarh village. and about 15 adjoining plots of land of Naala Udaiya village situated in the district of Agra were notified under

ection 4 (I) of the Land Acpuisition Act, 1894 (Act No. 1 of

1894) (hereinafter referred to as 'the Act') for acquisition fora p'Ublic .purpose, namely, for the construction of the Market Yard of tl:te Krishi Utpadan Mandi Samiti, Kl:teragarl:t under a. noti fication dated .January 8, 1980 issued by the Government of the

Stti; Qf tJttr Praclesll . As tl:te plots of land . in question w)Jich;

L • ~

F::

'" .. --

'!-.,

. HARi SINGH v. U; P. STATE (Venkataramiah, J.)

were agricu.Itur.al lands were urgently reqLtired for the aforesaid . purpose and tho Government was of the view that it was necessary to direct that section 5-A of the Act should not apply fo the said acquisition proceedings, it simultaneously made an' order under section 17 (4) of The Ac! direeiing that section 5-A wouhl not

apply to the said proceedings and incorporated the said order also in the notification issued under section 4 (1) of the Act. The notification was published in the Official Gazette dated January 9, 1980. This. was followed by a notification dated January 9,

1980 under section 6 of the Act published in. the Official Gazette dated Janury IQ, 198.0. That notification containe<) an/order made under section 17 (I) of the.Act authorising the Collector to take possession of the plots on the expiration of fifteen days from the publication of the notice under section 9 (I) of the Act though no award under section 11 of the Act had been made. The above said plots of land which were in all aoout 60 in number belonged to a number of persons. The total extent of land proposed to be acquired was about 41 .46 acres. The possession of all the plots .of land was also taken in the course of the said acquisition proceedings. In or about June. 1982, notices were issued by the Collector to various persons having interest in the said plots under. sectiop 9 (3) of the Act for the purpose 'of determining the compensation payable to them. After the issue o.f the said notices, three persons Hari Singh (appellant No. 1), Pooran Chand (appellant No. 2) and Munna Lal (appellant No. 3) filed a writ petjtion in Civil Misc. Writ Petition No. 8397 of 1982 on the file of the High Court of Allahabad questioning the validity of the acquisition proceedings as regards 6 plots of land in Kheragarh village out of th~ total of about 60 plots of land which had been acquired by the State Government in the above said prnceedlngs. Appellallt No. 1 claimed to be the owner of plots Nos. 249, 250 and 252.

Appellant No. 2 claimed. to be the owner 'of plot No. 261 and appellant No. 3 claime.d to be the owner of plots Nos. 133 and ·

134. Appellant No. I pleaded that there was a house sittiated on plot No. 249 and that he had also installed a flour mill on it.

They all pleaded thllt they had . uo knowledge ot the. acquisition proceedings and were prejudiced by the order made under section 17 (4) of the Act exemptiag the operation of section 5-A of the Act in the case of these proceedingJ. They further pleaded that there was no urgency sufficient in Jaw to sustain the order made under .. section 17 (4) of the Act as nothing had been done on the Jiirtds for nearly two years. Appellant No. I also pleaded that

• A

.420

section 17 ( 4) of the Act would not b; applicable becase on a part of his land there was a house., They also applied for an interim order restraining the Collector from dispossessing them from th~ plots in qu<; stion. On September 9, 1982 the High Court made an interim order restraining the. respondents from <lispossessing the appellants from the plots until. further orders, unless they had already been dispos.sessed. But. on January J 7, 1983, the High Court rejected the writ petition at the stage of admission after hearing the advocates for both the parties. This appeal by special leave is filed by the appellants under Article 136 of the Constitution on against the order of the High Court.

The High Court has not given any reasons for its order dismissing the writpetition. TJie order reads : 'Rejected'. ·

We have been taken through the writ petition, counter affidavits. and other papers filed in the High Court and in this Court.

At the .out set we are of the view. that the writ petition filed in July, 1982 questioning. the notification issued in 1anuary, 1980 after a delay of nearly two and a half years is liable to be dis missed on the ground of !aches only. It is.no doubt true that th~. appellant have pleaded that they did not know anything about the notifications which had been published in the Gazelle till they eame to know of the notices issued under section 9 (3) of the Act but the'y have not pleaded that there was . no. publication in the locality of the public notice or' \he substance.of the noti- . fication as required by . section 4 (1) of the Act. Jt should be

presumed .. that official acts would have been performed duly as. ·: required by law. It is significant that a large number of persons who own the. remainin~ plots have not challenged the acquisition proceedings. J"he only other petition in wh!ch these proceedings. are challenge'd is Civil Misc. Writ Petition No. I 1476 of 1982 on the file of the High Court filed subsequently by. Amar Singh and (our others. Moreoverin a small place like Kheragarh where these plots are situate, the acquisition of these lands-would be the. talk of the town in' a shortwhile and it is difficult to believe that the appellant who are residents of that .pla'ce would not have kriown till July, 1982 that the impugned notification had been published in 1980. Any interference in this case filed after two ' and a half years with the acquisition proceedings is likely to cause serious public prejudice. This apl'eal should, therefore, fail on the ground of delay)lone. ·

HAR\ SiNGH v. u. p, STATE (Venkotaramiah, J,) 421

Now evenonmerits there appears to be no substance in the A case of the appellants.

At the.hearing of this appeal, the appellants have confined their case to plots Nos. 249, 26! and 133 and have given up their case in regard to pl?ts Nos. iso, 252 iµid 134,

Appellant No. 1 claims to be the owner of plot No. 249.

On behalf of the respondents it is urged that appellant No. I is recorded only as a co-tenure hotqer alongwith five others and they have not impeached the notifications. With regard to the allegation about the existence of.a house on this plot, it is seen that the said fact is denied. The respondents rely upon some

statements recorded by tlle revenue authorities -suggesting that there was no house on this plot on the date of the notification.

This is a disputed question of fact, Appellant. No. 2 who claims to be the owner of plot No. 261 is stated to have purchased it on November 17, 1980 after the impugned nol!fications were published.

The title of appellant No. 3 to plot No. 133 is denied by R. K Kannaujia, Secretary, Krihi Utpadari Mandi Samiti, Kheragarh.

In this sta, te of affairs where ther~ are disputed . questions of fact it cannot be said that the appellants have made out any case for interference tinder Article 226 of the Consti. - tution.

' On behalf of the appellants reliance is, however, placed on a decision of this Court in State of Punjab v. Gurdial Singh & Ors.(1) In that decision the main point mde out was that the acq"isition proceedings had been engineere!i ma/a fide by a State Minister.

We do not have any such allegation in the' present case; In the circumstances of this case we do not find that there is any ground to hold that the order made Ul)der section 17 (4) of the Act.exempting the operation of seetion 5-A of th~ Act is bad in law even though there appears to be some administrative delay in commencing the constr11ction of the Market Yard.

Some photographs of the la.nd produced before us, howevei;, show that the work of

construction has already been commeneed. ·

G-0

We do not, .therefore, find that there is any ground to interfere •with the order of the High Court dismissing the writ petition. The appeal fails and it is dismiS£ed with .costs.

H. S.K.

Appeal dismissed.

(1). (1980] 1 $.C, R, I07i.

i H

HARI SINGH & ORS

STATE OF U.P. AND ORS

A.P. SEN E.S. VENKATARAMIAH

Land Acquisition Act

s. 4

s. 17

s. 6

January 8, '1980

On January 8, '1980 the respondent State issued a notification urider

Se~. 4 (I) of the Land Acquisition Act of 1894 for acquisition of 60 adjoining pJots of land of two small villaacs for construction of a market yard.

Sec. 17(4)

January 9, 1980

Sec. 6

January 10, 1980

sec. 17

Sec. 17

Sec. 17

R K. Kannaujia

J33 is denied by R K. Kannaujia, Secreh\, ry,, Krishi Utpadan .M1odi Sarni ti, Kheragarh.

Krishi Utpadan

Article 226

section 5

Shanti Bhusharj

S. Markandeya

Gopal Subrtimanlam

S. Di":shit

VENKATARAMiAa

Land Acpuisition Act, 1894

Venkataramiah

section 5

section 17

section 5

section 4

January 9,

1980

section 6

section 17

section 9

section 11

Hari Singh

Pooran Chand

Munna Lal

Kheragarh village

section 17

section 5

section 17

section 17

September 9, 1982

January J 7, 1983

Article 136

section 9

section 4

Amar Singh

Kheragarh

Venkotaramiah

November 17, 1980

R. K Kannaujia

Article 226

section 17


- 422

SMT. SURINDAll KAUR SANDHU

HARBAX SINGH SANDHU & ANR.

April II, 1984

[V.V. Cl!ANDRACHUD, C.J, AND SABYASACl!I MUKHARJf, J, j ·

Hindu MlnoTity ancl Guardiahshtp Act, J9S6·1Vec•iOn 6-Interpretalion of-Custody of the child. Conflict of Laws'-Jurisdlction 'Of the court to decid~ the questloa of custody of o minOr. child-who is a , British citizen while the parents are Indian .. citizens.

Appellant and Respondent No. I wore married io 1975 at Bodni Kalan District Paridkot, Punjab according•to Sikh rites. Soon after the marriage, they left for England, where a boy naed Pritpal Singh wa.s born to them on October 24,. 1976. Soon thr:rep.fter, their relationship came under a strain with the. reSult Respondent 1 'was trYing to negotiate witb ·• hitman to have tho appellant run over by a oar.

The Berkshire Police got.-=ent o(it rCsultiog in the Responderit's conviction and'Sentence for a period of three years. Ironically the' appellant. wife interovcncd and succeeded 1u obtaining a probation order for the man who-ha~ attn; iptcd to procure her murder; The husband was released on probation on February 4, 1982. The period of probation expired on December 24, 198i. On January 31, 1983, while the wife.was away at wor~, Respon dent No. 1 removed tho boy from England and brought him to India. On the same date, the appeUant~Wife obtaind an order under section 41 of tho Supreme Court Act, 1981 under which the boy became the ward of the Court with effect from that date. This order was codfirmed on July 22, 1983.

In tho meantime the appellant came to India in April, 198.3 and on 5.5.1983 filoda petition under section 97 of the. _Code of Criminal Procedure -in the Court of the learn_cd Judicial Magistrate first .class Jagraon praying for° tho custody o(, the child. The Respondent No .. l contested and took an objection . that under section 6 of' the Hinda Minority and Guardianship Act, 1956 he was the natural guardi_an .of the . . . minor.boy. Thecontention was accepted and thepetition was dismissed.

The_appellant went back to England to resume her work and obtained the confirmation order dated 22.7.1983 referred to afove. Armed with the said order sh$' returned to Iodf8 and filed a writ Petition in the- High_ Court of Punjab and Haryana. The Wrif Petition was dismissed on the grounds inter a/ia that her status in England fs that of a foreigner, factory worker and a wife.Jiving separately from e husband and h1ving no: relatives and as such the ohiid would have to live in lonely and dismal 5UrroUtldiogs in .England~ while it WOUid grOw in an atmosphere _Of seJf confidence and seff respect, if it was permi\teq tq Uve with its fa(her aq "and preg tu,

• • s. K. SANDHU v. H. s. SANDH{J (Chandrachud, c J.)

Hence the appeal arter ohtainiog special leave of the Court.

Allowing the appeal, the Court,

HELD : I. Section 6 of the Hindu Minority and' Guardianship Act, 1956 onstitutes the father as the natural gllardian of a mi'nor son. But that povision cannot upersede the paramOunt co_nsideration as to what is conducive to tho welfare of the minor. As the rnatters are presented to the Court the boy, from bis. own point of view, ought -to be in the

custoy of the mother.

[427AB]

2: 1 The modern theory of conflict of laws recognises 3nd, in any event, prefers the jurisdiction of the State whiCh has the most intimate contact with tho issues ari.sing in the case.

Jurisictian is not attraCtcd bY the operation or' creation of fortUitous circumstances such as the

circumstance as to whC:rc the child, whose custody is in 'issue,. is brought C or for the time being lodged. To allow the assumption of iurisdiclion by another State in such circumstances will only result in encouraging forumshopping. Ordinarily, jurisdiction must follow upon funCtional lines. That is to say, foi example, that in matters relating to matriony • and custody, the law of that place must govern which has the closest concern with the welJ.beine of the spouses and the welfare of the offsprings of marriage rhe spouses in this case had made BDgtand their D home where this boy was QOrn to them.

The_ father cannot deprive the English. Court of 'its jurisdiction to decide upon bis custody by , removing him .to India, not in the normal movement. of the mtrimonial home but, by an act which was gravely detrimental to the place of that home.

The fact that the. matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that Sta tc in order to make it. reasonable" and just for. tho Courts of that $tate to assume jurisdiction to E enforce obligations which were.incurred therein by the spouses. [427-CG)

2:2 The spouses had set up their matrimonial home in England . where the wife was working as a clerk and the husband as a bus driver.

The boy is a British citizen,. having been born in Bngfand, and he holds a British passport. It cannot be controverted that, in these cjrcumstances the England Court had jurisdiction to decide the question of his custody. p '

[427B-C] International Shoe Company V. Stale of Was.hington, 90 L.ED 95. [1945] quoted with approual. 3;1 Jo the instance case; (i) The welfare of the boy does not require that he should live with his . father or with the grand parents;

(ii) the "traumatic experience of~ cqoviction on a criminal chargo'' is not a factor in favour of the father especially when his conduci following jmmediately upon his release on probation shows that the experience has not chastened him, and (iii) The father is a man without a character who offered s9Iicitation to the commis&ion of his wife., s murdCr.

The wife, obtained an order of probation for him but, ho abused he'r magnanimity .by rtinniiig away with the boy soon after the probationary period was over. Even i~ that act., he displayed a singular lack of respect for law y obtaining a duplicate passport for the boy on an untrue represen- :tation that the original passport was lost. The Original passport was, to his knowledge, in the keeping of his wlfo. Iii Ibis background, tho

SUPRaMB COURT lulPORTS [1984] 3 s.C.it.

affliJ.ence of tbC husband's parents cannot be reg:irded as a circumstance of such overwhelming imporianCe as to tilt the balance in favour of the father on the question of what is l:ruely, . .for the \velfare of thC niinor. At any rate it .will not be les:i for the welfare of the minor if the lived with his mother. He was whi3kt; d away from her and it cannot be said that there are any circumHances to support the view that lbe new environment in which he is wrongruliy br"ought is more conducive to his welfare. He jsabout _8 years of age and thJ loving care of the mother ought not to be denied to him. The father is made of coarse stuff.

The mother earns an. income. of £ioo a week, which is certainly not 13.rge by English standards, but is not so low as not to e:iablo her totake reasonable . care of the boy. [426E•H}

3:2 It is the duty and functioff of the court to protect the wife C against the bur<ten cf litigating in an inconvenient foru; n which-she and her husba.nd bad left volunt<irily in orde'r to make their living in England, where they gave birth .to this unfortunate boy.

[427H]

(The court directed the custody of the child to the mother forthwith and awarded c.ost of Rs. 3000) [428B] Y

CRIMINAL APPELLATE JvRISDICTION : Criminal Appeal No. 183 of 1984.

Appeal by Special leave from the Judgment and Order dated the 26th August, 1983 of the Punjab and Haryana High Court in Cr. Writ Petition No. 392 of 1983.

C. M. Nayar and Vijay Jhanji for the Appellant:

Puran. Chand, Mrs. Naresh Bakshi and Miss Kailash Mehta for the Respondents.

F The Judgment of the Court was delivered by

CHANDRACHUD C. J., : The appellant, Surinder Kaur Sandhu, is the wife of respondent l; Harbax Singh Sandhu. Respondent 2 is the father of respondent l. , Appellant and respondent I were married in 1975 at Bodni Kalan,. District Faridkot, Punjab, according to Sikh rites. Soon after the m11_rriage they left for . England, where a boy named Pritpal Singh was born to them on October 24, 1976.

Within a short period after the bitth of the boy, the relationship lietween the spouses came under a strain resulting in 'a serious episode. The husband was trapped by the Berkshire Police who got the scent that he was negotiating with a hitman to have the wife run over by a car., The husband was convicted and sentenced . - . . . t

.. •· '

s. R;. SANDHU v. H. s. SANDHU (Chandrachud, c. J.) 42;

to a term of three years for that offence. Ironically, it was the wife who intervened and succeeded in obtaining a pr-0bation order for the man who had attempted to procure her murder. The husband was released on. probation on February 4, 1982.

The period of probation expired on December 24, 1982.

On January 31, I'l83, while the wife was away .at work, the husband remove<) the boy from England and brought him to India.

On the same date, the wife obtained an.order under section 41 of of the Supreme Court Act, 1981 under which the boy became the Ward of the Court with effect from that date. That order was confirmed on July 22, 1983 by Mrs. Justice Boo\h of the High Court of Justice (Family Division). By the said order, the husband was directed to haud over the custody of the ininor boy to the wife or her agent forthwith.

The wife came to-India ii} April 1983. On May 5, 1983 she filed a petition under section 97 oHhe Code of Criminal Procedure. in the Court of the learned Judicial Magistrate, First Class, Jagraon. She asked for the custody of her son, contending t)lat he was in the illegal custody of the respondents.

Section 97 authorises the Magistrate to direct a search to be made for persons wrongfully lonfined and, on their being found, to be produced _in the Court in order to facilitate the passing of Stich order as the

circumstances of the case may .require. The respondents relied. upon section 6 of the Hindu Minority and Guardianship Act, 1956, and opposed the petition on the ground that Respondent I . was the natural guardian of the minor boy. Accepting that contention, the learned Magistrate dismissed the petition; leaving the question of the custody of the child to be decided in an. appropriate proceeding. , The wifethen went back to England to resume her work and obtained the order dated July 22, 1983 to which we have already referred.

She came back to India once again, this time armed with _the aforesaid order of the English High Court. She then filed tb.e present writ petition in the High Court of Punjab and Haryana, asking for the production and custody of her minor son.

The learned single iudge of the High Court who dealt with th.e petition JUlide an excellent effort to bring about a rapproachement between the spouses but, , he did not succeed. He questioned the boy more than once and he even presi1aded the spouses to live together for a couple of days in the house 'or the lnspector General of Prisons; Haryana. The spouses reported back to him that they

G. ~

H •

 A were unable to resolve their differences.

.. F

' The iearn_ed Judge dismissed the wife's petition on the grounds, inter alia, that her sttus in England is that of a foreigner, a factory worker and a wife living separately from the' husband: that she had no relatives in England; and that, the child would have to live in lonely and dismal surroundings in England. On t]\e other hand, according to the learned. Judge, the father had gone through a traumatic experi, ence of a conviccion on a criminal charge; that he was back home i.n an atmosphere which welcomed him; that his parents were in affluent circumstances; and that, tpe child would grow iu an atmosphere of self-confidence and self

respect if he was permitted to live with them.

Some of these circumstances mentioned by the learned Judge are not beside the point but, their comparative assessment is diffi cult to accept as made,. For example, the 'traumatic expei; ience of a conviction on a criminal charge' i~ riot a factor in favour of the father, especially when his conduct following immediately upon his release on probation shows that the experience has 11ot chas tened him. On the whole, 'we are unable to agree that the welfare of the boy requires that he should live with his father or with llie grand-parents. The father is a man without a charscter who offered solicitation to the commission of his wife's murder. The wife obtained an order of probation for him but, he abused her magnanimity by running away with the boy soon after the probationary period was over. Even in that act, he displayed a singular la.ck of respect for Jaw by obtaining a duplicate passport for the boy on an untrue representation that the original passport was lost. The original passport was, to his knowledge, in the keeping; of his wife.

In this background, we do not. regard the aJlluence of the husband's par, nts to be 'a circumstance of such overwhelming importance as t,0 tilt the balance in favour of the father on the question of what is truly for the welfare of the minor. At any rate,· we are unable to agree that it will be less for the welfare of the minor if he lived with his mother. He was whisked away .froni ii.er and the question is whether, .there are any

circun, stances to support the view that -the new environment' in which he is wrongfully brought is niore conducive. fo his welfare.

He is about .8 years of age and the lovirig care of the mother ought not to be denied to him. The father is made of coarse stulf. The mother earns an income of £100 a week, whicl:i is certainly not large_by English standards, but is not so low as uot to enable her,

, ..

. -)

s: K..SANDHu v. it. s. S/\, NDHU (Chandrachud, c. J.)

to take reasonable care of the boy.

. Section 6 of the Hindu Minority and Guardia!Jship At. 1956 .-constitutes .the father as the natural guardian of a minor son. But that provision cannot supersede the pai:amount consideration as to what is conducive to tho welfare of the minor. As the matters are presented' to us to-day, the. boy, from his own point. of view, ought to be in the custody of the mother.

We may add !hat the spouses had set up their matrimonial home in England where the wife wasworking as a clerk and the husband as a bus driver. The boy is a British citizen, having .been borr in: England, and he holds a British passport.

It cannot" be controverted that, in these circumstances, the English Court had jurisdiction t.o decide the question of his custody. The modern theory of Conflict otLaws recognises and; in any .event, prefers the jurisdiction of the State which has the most intimate contact v.ith the issues arising iµ the .case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption Of jurisdiction by another State , ir, such circumstances will only remit in encouraging t'orum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that. in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the otfsprings of marriage. The spouses in this case had made Engjnd their .home where this boy was born to them: The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the. normal m9vement of the matrimonial )lome but, by an act which was gravely detrimental to the peace .of that home.

The fact that the matrimonial home of the spouses was m England, establishes sufficient contacts or1ies with that 'State in order to make it reasonable and jnst for the Courts of • that state to assume jurisdiction to enforce obligations which were incurred therein by the spouses.,. (See lntejnational Shoe Company

v. State of Washington, (l) which was not a matrimouial case but which is regarded as the fountainhead of the subsequent develop

mets ofjurisdictional issues like the one involved in the instant case.) It is our duty and function to protect the wife against the burden of litigating in an -inconvenient forum which she and her husband had left voluntarily in order to make their 1iv1ng in England, where they gave birth to this unfortunate boy .

(I) 90 L. Ed. 95 [1945]

_..,.

For these reasons, we set asid; the judgment of the High Court and direct that the custody of the child shall be handed over to the appellant-mother. lhat shall he done during the course of fuis day. ,

The High Court has referred to the evidence showing that the annual income of the father's family is in the range of Rs. 90,000.

That would justify an order directiug the respondents to pay a sum of Rs. 3,000 (three thousand) to the appellant for her costs of this appeal.

Order accordingly,

S. R.

Appeal allowed.

SURINDAll KAUR SANDHU

HARBAX SINGH SANDHU & ANR

Hindu MlnoTity ancl Guardiahshtp Act

October 24,. 1976

February 4, 1982

December 24, 198i

January 31, 1983

England

India

section 41

Supreme Court Act, 1981

July 22, 1983

section 97

section 6

Theappellant went back to England to resume her work and obtained the confirmation order dated 22.7.1983 referred to afove.

Chandrachud

Section 6

Guardianship Act, 1956

Bngfand

SUPRaMB COURT lulPORTS [1984] 3 s.C.it

C. M. Nayar

Vijay Jhanji

Puran. Chand

Naresh Bakshi

Kailash Mehta

CHANDRACHUD

Surinder Kaur Sandhu

Pritpal Singh

October 24, 1976

January 31, I'l83

section 41

Supreme Court Act, 1981

Boo\h

High Court of Justice (Family Division)

section 97

Code of Criminal Procedure

Section 97

section 6

High Court of Punjab and Haryana

Armed with the said order sh$' returned to Iodf8 and filed a writ Petition in the- High Court of Punjab and Haryana.

JUlide

Section 6


.. ,

DELHI VETERINARY ASSOCIATION

v •

UNION or INDIA & ORS.

April I 2, 1984

[E.S. VENKATARAM!AH AND D.P. MADON, JJ.]

Constitution of India 1950-Artic/e 39 (d) 'Equal pay for equal work' -Principle--Applicability of-Factors to be taken into conslderatlon while fixing pay scales. ·

Veterinary Assistant Surgeoas emp/Oyed In Delhi Administration, ,-1 UnlOn Territory Of Chandigarh and' Central Government-Disparity , in pay scales-"-Whether IJeterinarY asiistant 5Urgeons in Delhi Administration entitled to equal scales of pay.

. The Petitioner in a writ petition sought relief in respect of Veteri- . nary Assistant Surgeons working in the Delhi ·.Administration, alleging . that the Veterinary Assistant Surgeons have been denied the benefit of the principle of 'equal pay for e'qual work' ioCorporated i-n Article 39 {d) of the Constitution and that there has b<:een violationof the furida rriental :ights guaranteed under Arti~Jes 14 and 16, because their scale of salary (Rs. SS0-990) was lower than the pay scalo of Veterinary Assistant Surgeons employed by the Union Territory of Chandigarh . (850-1700), or by the Central Government in the IndoTibetan Boarder

l;'olice and by the Border Security Force (Rs. 6S0-!200).

The Writ petition was oPposed by the Union of India denying many of the allegtions in the pe.tition, while the Development Commissioner, while. the o"ethi Administration contested the writ petitiOn by justifying -

the impugned pay scale and also by pleading that the matter should be allo.wed tO be examined by the Fourth Pay Comnlission.

LJ;

Dismissing 'the writ petition.,

HELD : !.

The question, of the fixation of pay scale for Veteri nary Assistant Surgeons should be Jeft to be decided by the Government on the basis of the recommendation of the Fourth Pay Commission.

The question of dirimiiiation canno~ be decided in isolation.

Having regard to the long delay in approaching this Court after the fixation of the pay scale, no relief can'be granted in respect of the periC>d between 1973 and 1984.

The pe(itioner is at liberty to make its representation before the Fourth Pay Commission.. [ 434 HE)

SUPREME COURT REPORTS [1984) 3 s.c.ll..

\ 2.

In a:ddition to the principle . of i equal pay for equal. work', the pay structure of tl,1e employees of. the Government' should rCflect many other social values.

Apart frdm being the Qominnt empl_oyer, the Government is also eXpccted to be a 'model employer. It has, there fore, to follow certain, basic pr, inciples in fixing 1he pay scales of various posts <ind C3.dres.

The degree of skill; strain of work, experience in volved, train'fng required, reSponsibility, uadertakeo, mental and physical requirement' disa:greeBblooess of the t.ask,- hazard attendant on work and faHgue involved ate some of the factors , which should be taken into ·· consideration in fixing pay scales.

The met bod of recruitmentJ ihe level at which the initial recrpitment is made in the' hierar"cby of service Or

cadre~ minimum educational and 'technical qualification prescfibed for - the post, the nature of 'dealings with the p'Jblic_, avenues of pfomoti.on available arid horizontal and vertical relativity with other jobs in .the same service or outside are also relevant.factors. [432fi-H; 433A]

Wil.e fixing the pay scales, the paying capacity or:the Government, the total financial btirden which has to be .borne by .the general public, the disParity between the incomes of the Government employees and the incomes of those who are not in government service and tho net amount available for governmentat the current tax1tion level, after paying the salaries and allowances to the-GOvernment servants have also to be borne in mind. [4338-0]

4. It is imperative that thefe should b~ an evolution and impJe .. menta_tiOo of a scieatific national Policy of incomes; wages and pr\ces which would be ap\)Iicable not merely to Government services but als9

to the other sectors of the national eco1101ny.

As Llf.as -possible tbeneeds of a family-unit have to be borne ill mind in fixing the wage scales.

The 'needs' are not static.' They include adequate nutrition, mediCal facilities, clothing, housing, education, cultural, activities etc.

Care• should also bo taken to seQ that what is fixed today as an adequate pay scale does not be-Come inadequate withi 1 a.short period by providing an automatic mechanism for the modification of the pay scale.

 (433B-G) ORIGINAL JURISDICTION i Writ Petition No. 9080 of 1983

(Under article 32 of the Constitution of Illdia)

K.K..Singhvi, A .K. Gupta and Bri} Bhushan for the petitioner.

K. (J_. Bhagat, Addi. Sol; General, Harbans [Al and R. N. PoddGr for the Respondents.

The Judgment of the Court was delivered by

VBNKATARAMIAll, J. The Delhi Veterinary AssociatJon is the petitioneF in the above case. It is an association of veterinary doctors who are residing in the Uuion Territory of Delhi. By this petition ilnde.r Article 32 of the Constitution, the petitioner

_,.

DELHI VETERINARY

ASSN. v. UNION (Venkataramiah, J.) 4ll • is seeking relief in respect of Veterinary Assistant Surgeons workig in the office of the Development Commissioner, Delhi Administration, Delhi; who are its members. It is alleged that these Veterinary Assistant Surgeons havebeen denied ti1e benefit

of the principle of 'equal pay for equal work' incorporated in Artide 39 (d) of the. Constirution and that there bas been violation of their fundamental rights guaranteed under Article 14 and

Article 15 of the Constitution because their scale of salary is lower than the pay scale of Veterinary Assistant Surgeons employed by tlie Union Territory of Chandigarh or by the Central Government in the Indo-Tibetan Border Police (I.TB.P.) and in the Border

Security Force (B.S.F) It is .also alleged that the Veterinary Assistant Surgeoqs are persons who have obtained Bachelor's Degree in Veterinary Science and Animal Husbandry (B.V.Sc. & A.H.) from colleges of veterinary medicine and the minimum qualifications for entering the said course are more or less the same as those prescribed for M.B.B.S. or B.D.S. Examinations.

They would be taught in the colleges of veterinary medicine inter alia subjects like Biochtmistry, Pharmacology & Toxicology; Bacteriology, Pathology, Hygiene,. Parasitology, Surgery, Radiology, Clinical & Preventive medicine, Obstetrics, Gynaecology and additionally Animal Husbandry. Some of them, it is stated, have also undergone some special courses after thefr degree. Having regard fo the period of study in the college and the subjects taught the)' claim that they are almost equal to those who have obtained

M.B.B.S.-and B.D.S. degrees.

It is alleged that whereas the Veterinary Assistant Surgeons in tho Union Territory of Chandigarh were .paid salary in the pay

scale of Rs. 850-1700 on the basis of.the pay scale prevailing in the adjoining State of Punjab and the Veterinary Assistant

Surgeons in the Union Territories of Arunacbal Pradesh and Mizoram were paid in the pay scale of Rs. 550-900, the Veteri- ·; nary ·Assistant Surgeons of the Union Territo'ry of Delhi were given pay in the pay scale of Rs. 425-750 from January l, 1973 and on a represerttation being made by tJiem, their pay scale was modified to Rs. 550-900 with effect from 'November 2, 1977 as was being paid in the Union Territories of Arunachal Pradesh and Mizoram with effect from January 1, 1973 even though the Ministry of Agriculture had recoml\lendcd that their pay scale should be revised to Rs. 650-1200. The petitioner .contends that even now the disparity between their pay scale and the pay scale 9f ~Jie Veterinary Assistant Surieons of the Union 1errito1?' of

• B

SUPREM!l COURT REPORTS

[1984.J 3 S.C; R,

Chanigarli and of I.T.B.P. and B.S'.F. which is fixed at Rs. 650- 1200 persists. On the basis of the abo_ve aliegation.s the petitioner prays that a direction should be issued to the respondents to treat the Veterinary Assistant Surgeb_ns or'the Delhi Administration at par with the Veterinary Assistant Surgeons of Chandigarh, I.TB P. and B.S.F .

A counter affidavit is fil'd on beh1lf of the Union Government denying many of the aliegations in the petition an<i in parti- . crilat the recommendation said to have been m1de by the .ministry of Agriculture.

The Developtneut CommissiOner, Delhi has fifod a counter affidavit justifying the impugned pay scale and at the 11ame time he has pleaded that this is a matter which should be allowed tobe examined by the Fourth Pay Commission. .In view' of the latter plea, we feel that it is not appropriate to deal with the merits of tho claim of the Veterinary Assistant Surgeons Of Delhi . in the course of this order although we feel tharprima facie their grievance appears to he a legitimate one. Since any alteration in their pay scales ; vould involve modification of the pay scales of officers in the higher cadres in the same department and in the corresponding cadres in other departments, the work of refixation of the pay scale should not ordinarily be under.taken by the Court at this stage because the Fourth Pay Commission is required to co.nsider the '{ery same question after taking into consideration all the relevant aspects.

In addition to the principle of 'equal pay for equal work', the pay structure , of the employees of the Government should reflect many other social values.

Apart from belng the dominant " employer, the Government is also expected 'to be a model employer. It has, therefore, to follow certain basic principles in fixing the pay sc.ales of various posts and cadres in the Government service.

The. degree of skill, strain of work, eperience involved, training required, responsibilily undertaken, mental and physical requirements, disagreeableness of the task, hazard attendant on work and fatigue _involved are, according to the Third Pay Commission, some of the relevant factors which should be taken into consideration in fixing pay scales. The method of recruitment, the level at which the initial recruitment ismade in the hierarchy of service or cadre, minimum educational and techniGal qualifications prescribed for the post, the nature of

dealins with the public, avenues of 1'toinotion available and hori-

. j

' ;

DELm VETERINARY ASSN. v. UNION (Venkdtararniah, J.) 433 .

zontijl and vertical relativity with othor jobs in the same service A or outside are also relevant factors.

Atthe same time while fixing the pay scales, the paying capacitY of the Government, the total financial burden which has to be borne by the general public, the disparity between the incomes of the Government. employees and the incomes of those who are not in Government service and the net amount available for Government at the current taxation level, which appears to be very high when compared with other countries in the world, for developmental purposes 11fter paying the salaries and allowances to the Government' servants hwe also to be bonie in mind.

These are, however, not exhanstive of the various matter& which should be considered while fixing the pay scales. There may be ma, ny , others including geographical considerations.

Above .1111, it should be noted that the work of a Pay Commission . does not really mean an increase of Rs. 100 here or recommending an additional allowance of Rs. SO there.

It does also mean a mere reduction of the number of pay. scales or an attempt at the reduction of the gap between the highest pay scale and the lowest pay scale It is a big exerc; jse in gearing up the national economy to secure the highest good to the milli1ms of our countrymen. Jn. an egalitari; m society based on planned economy it is imperative that there should be an evolution and . implementation of .a scientific national ."policy of incomes, wages and prices which would be applicable not merely to Government services but also to the other sectors of the national economy, As far as possible the needs of a family unit have to be borne in mind 'in fixing the wage seales. The 'needs' are nQt static.

They include adequate nutrition, medical .facilities, clothing, housing education, cultural activities etc.

Any provision made while fixing the pay scales for the development of a society of healthy and well educated children irrespective of the economic position of the parents is only an investment and not just an item. of

expnditure. In these days of gallopping inflation, care should alsq be taken to see that what is fixed today as an adequate pay scale does not become inadequate within a short period by providing an automatic mechanism for the modification of the pay scale.

The duties of a Pay <:; ommission are really onerous. -But we

ave no doubt that the Fo11rth Pay Comission will keep in view

' . '

434•

'' •· G

SUPREME COURT REPORTS [1984] 3 s.c.R.

all the relevant considerations, some of which are referred to above, whjfo dealihg with the complex problem of determining the equitab!; pay SCljles for the vast number of employees of the Central Government and of the Union Territories. We have also no douht tltat the Fourth Pay Commission will not just be another Pay Commission as in the past but will lay down sound principles regarding the salary structure of the public services.

In the above sittiiti()n, we do not feel called upon to decide in isolation the question of discrimination raised before us. This is a matter which should be left to be decided by the Government on the basis of the recommendations .. of the Fourth Pay 'Commis- ,,_ . . .

S!OQ. . , • '

It was, however, urged that since the Fourth Pay Commission would not be making any recommendation in bspect of the period

between 1973 and ; the dateon which the new. pay scales to be fiired on the recommendation of the Fourth Pay Commissloi: would come.into force, the Court should. eons id er whether the VetetiJlary Assistant' Surgeons were entitled to any retrospecti'Vei beniftt in respect Qf the said' pastperiod. Having regard to the . !orig delay in approaching this Court after the fixation of their pay sca'e earlier, we do not propose to grant 11ny relief in respect . of that period. ·

The. petition is,, therefore; dismis§ed. The petitioner is at liberty to make its representation befor tho .Fourth Pay Commission to determine the pay scale of the' Veterinary Assistllnt Surgeons of Delhi. We a; re sure that the Fourth Pay Commls sion which js presidedoover by a former Judge of this Coiil'li would consider theii: representation sympathetically.

N.V.K. . Petition dis"!is:teif.

DELHI VETERINARY ASSOCIATION

UNION or INDIA & ORS

D.P. MADON, JJ.

Constitution of India

Article 39

Chandigarh

Central Government

Union of India

Fourth Pay Commission

article 32

K.K

Singhvi

A .K. Gupta

Bri} Bhushan

K. (J_. Bhagat

R. N. PoddGr

VBNKATARAMIAll

Delhi Veterinary AssociatJon

Article 32

DELHI VETERINARY

ASSN. v. UNION

Venkataramiah

Article 14

Article 15

Arunachal Pradesh

Mizoram

Ministry of Agriculture

Delhi Administration

On the basis of the above aliegation.s the petitioner prays that a direction should be issued to the respondents to treat the Veterinary Assistant Surgebns or'the Delhi Administration at par with the Veterinary Assistant Surgeons of Chandigarh, I.TB P. and B.S.F .

Delhi

Third Pay Commission

N.V.K.