S.C.R.

SUPREME COURT REPORTS 395

P. D. Sham

dasani v.

(I) of the Government of India Act, 1935, was never interpreted as prohibiting deprivation of property by private individuals.

Its restoration, therefore, in the same form in article 31, after omission in the original draft article 19, could lead to no inference in support of the petitioner's contention, which indeed proceeds on the fundamental misconception that article 19(1) (£) and article 31(1), which are great constitutional safe. guards Vagainst State aggression on private property, are directed against infringements by private individuals for which remedies should be sought in the ordinary law.

Central Bank of India Ltd.

 In this view 1t 1s unnecessary to deal with certain other objections to the maintainability of the petition raised by the Solicitor-General on . behalf of the Bank.

The petition is dismissed. We make no order as to costs.

Petition dismissed.

Agent for the respondent : Rajinder Narain,

NARANJAN SINGH NATHAWAN v.

THE ST ATE OF PUNJAB

(and 13 other petitions).

lPATANJALI SAsTRr C. J., MEHR CHAND MAHAJAN,

MuKHERJEA, DAs and CHANDRASEKHARA ArYAR JJ.] Preventive Detention-Ordt; r of detention challenged as illegal- Fresh order superseding previous order-Validity-Question of bad faith-Habeas corpus proceeding-Legality of detention must be determined as at date of return.

In the absence of bad faith the detaining authority can super-_ sedc an earlier order of detention which has been challenged as defective on merely formal grounds and make a fresh order wherever possible which is free from defects and duly complies with the . requirements of the law in that behalf. The question of bad faith, if raised, must be decided with reference to the circumstances of each case.

In habeas corpus proceedings the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the date of the institution of the proceedings.

Patanjali Sastri C. /.

Jan. 25.

Naranian Singh

Nathawan v.

The State of

Puniab.

Pataniali Sastri C. /.

Basanta Chandra Glzose v. King Emperor ( [ 1945] F.C.R. 81) followed. Naranjan Singh v. The State of Punjab (unreporte<l) explained. Maklzan Singh Tarsikka v.

The State of Punjab ([1952] S.C.R. 368) referred to.

CRIMINAL

JURISDICTION: Petitions (Nos. 513, 566, 568, 570, 591, 595, 596, 601, 616, 617, 623, 625, 631 and 632 of 1951) under article 32 of the Constitution. for writs in the nature of habeas corpus. The facts are stated in the judgment.

Raghbir Singh (amicus cu11ae) for the petitioners in Petitions Nos. 513, 566, 568, 570, 595, 596, 609, 616, 617, 623, 625 and 631.

A. S .. R. Chari (amicus curiae) for the petitioner in Petition No. 591.

Shiv Charan Singh (amicus curiae) for the petitioner in Petition No. 632.

S. M. Sikri, Advocate-General of the Punjab (lindra Lal, with him) for the State of Punjab.

1952. January 25. The Judgment of the Court was delivered by

PATANJALI SASTRI c. J.-This is a petition under article 32 of the Constitution submitted through the

4 •

Superintendent, Central Jail, Ambala, for the issue of -4 a writ of habeas corpus for the release of the petitioner from custody.

On 5th July, 1950, the petitioner was arrested and detained under an order of the District Magistrate of Amritsar in exercise of the powers conferred on him under section 3 of the Preventive Detention Act, 1950. and the grounds of his detention were served o,; him as required by section 7 of the Act on 10th July, 1950.

The Act having been amended by the Preven- ..:~. tive Detention (Amendment) Act, 1951, with effect from 22nd February, 1951, a fresh order No. 7853- ADSB, dated 17th May, 1951, was issued in the following terms :-

• "Whereas the Governor of Puniab is satisfied with . respect to the person known as Naranjan Singh Nathawan, s/o Lehna Singh of village Chak Sikandar,

.. .

. )'

•, -

.).

P. S. Ramdas, Amritsar District, that with a view to preventing him from acting in a manner prejudicial to the security of the State, it is necessary to make the following order : Now, therefore, in exercise of the powers conferred by sub-section (1) of section 3 and section 4 of the Preventive Detention Act, 1950, as amended by the Preventive Detention (Amendment) Act, 1951, the Governor of Punjab hereby directs that the said Naranjan Singh Nathawan be committed to the custody of the Inspector-General of Prisons, Punjab, and detained in any jail of the State till 31st March, 1952, subject to such conditions as to maintenance, discipline and punishment for breaches of discipline as have been specified by general order or as contained in te Punjab Detenu Rules, 1950."

This order was served on the petitioner on 23rd May, 1951, but no grounds in support of this order were served on him.

The petitioner thereupon presented this petition for his release contending that the aforesaid order was illegal inasmuch as (1) the grounds of detention communicated to him on 10th July, 1950, were "quite vague, false and imaginary" and (2) he was not furnished with the grounds on which the order dated 17th May, 1951, was pased. The petition was heard ex partt: on 12th November, 1951, when this Court issued a rule nisi calling upon the respondent to show cause why the petitioner should not be released, and it was posted for :final hearing on 23rd November, 1951.

Meanwhile, the State Government issued an order on 18th Novemher, 1951, revoking the order of detention dated 17th May, 1951, and on the same date the District Magistrate, Amritsar, issued yet another order for the detention of the petitioner under sections 3 and 4 of the amended Act; this last order along with the grounds on which it was based was served on the petitioner on 19th November, 1951.

Thereupon the petitioner submitted a supplemental petition to thi's Court on 28th November, 1951, challenging the validity of the last order on the ground 3-5 S. c. India/71

Naranjan Singh

Nathawan v.

The State uf

Punjab.

Pataniali Sastri C. /.

Naranian Singh Nathawan v.

The State of Punjab.

Patanjali Sastri C. /.

that "it was only a device to defeat the habeas corpus petition of the petitioner in which a rule had already been issued", and he put forward an additional ground of attack on the legality of the earlier order dated 17th may, 1951, namely, that it fixed the term of detention till 31st March, 1952, before obtaining the opinion of the Advisory Board as required by section 11 of the amended Act. This ground was evidently based on the view expressed by this Court that the specification of the period of detention in the initial order of detention under section 3 of the amended Act before obtaining the opinion of the Advisory Board rendered the order illegal.

In the return to the rule showing cause filed on behalf of the respondent, the Under Secretary (Home) to the Government explained the circumstances which led to the issue of the fresh order of detention dated 18th November, 1951. After stating that the petitioner's case was referred to and considered by the Advisory Board constituted under section 8 of the amended Act and that the Board reported on 30th May, 1951, that there was sufficient cause for the detention of the petitioner, ' ' the affidavit proceeded as follows :

"That the Government was advised that the orders made under section 11 of the Preventive Detention Act, 1950, as amended by the Preventive Detention (Amendment) Act, 1951, but carried out in the form of orders under section 3 of the said Act, should be followed by grounds of detention and, as this had not been .done in most cases, the detentions were likely to be called in question.

The Government was further advised there were other technical defects which might render the detention of various detenus untenable.

In view of this, the Government decided that the cases of all detenus should be reviewed by the District Magistrates concerned.

Accordingly, the Punjab Government instructed the District Magistrates to review the cases and apply their minds afresh and emphasised that there must exist rational grounds with the detaining authority to justify the detention 9£ a person and they were asked to report clearly in each case if the District

"( .

....

J...

. 'Y

..., -

Magistrate concerned wanted the detenus to be detained. The Punjab Government also reviewed some cases.

Accordingly all cases including the case of the petitioner were reviewed and in this case the District Magistrate was again satisfied that it was necessary that the detenu be detained with a view to prevent him from acting in a manner prejudicial to the security of the State and the maintenance of public order." And it concluded by stating "that the petitioner is detained now under the orders of the District Magistrate, Amritsar."

The original and supplementary petitions came on in due course for hearing before Faz! Ali and Vivian Bose JJ. on. 17th December, 1951, when reliance was placed on behalf of the petitioner on certain observations in an unreported decision of this Court in Petition No. 334 of 1951 (Naranjan Singh v. The State of Punjab) and it was claimed that in view of those observations and of the provisions of Part III of the Constitution, the de6sion in Basant Chandra Chose v. King Emperor(1), on which the respondent relied, was no longer good law. The learned Judges thought that the matter should be considered by a Constitution bench and the case was accordingly placed before us.

It will be seen from the affidavit filed on behalf of the respondent that the case of the petitioner, along with his representation against the detention order of 17th May, 1951, was placed before the Advisory Board for its consideration, and the Board reported on 30th May, 1951, that in its opinion there was sufficient cause for the detention of the petitioner. It is said that, on the basis of that report, the Government decided that the petitioner should be detained till 31st March, 1952, but while a properly framed order under section 11 should "confirm" the detention order and "continue" the detention for a specified period, the order of 17th May, 1951, was issued under a misapprehension in the form of an initial order under section 3 of the amended Act, on the same grounds as before without any fresh communication thereof to the petitioner.

(1) [1945] F. C. R. 81. 52

Naranian Singh

Nathawan v.

The State of Punjab. - Pataniali Sastri C. / •

Naran; an Singh

Nathawan v.

The State of

Puniab.

Pataniali Sastri C. /.

avoid arguments based on possible defects of a technical and formal character, the said order was revoked under section 13, and on a review of the case by the District Magistrate, a fresh order of detention was issued under section 3 on 18th November, 1951, and this was followed by a formal communication of the same grounds as before as there could be no fresh grounds, the petitioner having throughout been under detention.

It is contended bv the Advocate-General of the Punjab that the decisio'n reported in [ 1945] F.C.R. 81 is clear authority in support of the validity of the aforesaid order.

On essentially similar facts the court laid down two propositions both of which have application here. (1) Where an earlier order of detention is defective merely on formal grounds, there is nothing to preclude a proper order of detention being based on the pre-existing grounds themselves, especially in case& in which the sufficiency of the grounds is not examinable by the courts, and (2) if at any time before the court directs the release of the detenu, a valid order directing his detention is produced, the court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. The question is not whether the later order validates the earlier detention but whether in the face of the later valid order the court can direct the release of the petitioner. The learned Judges point out that the analogy of civil proceedings in which the rights of parties have ordinarily to be ascertained as on the date of the institution of the proceedings has no application to proceedings in the nature of habeas corpus where the court is concerned solely with the question whether the applicant is being lawfully detained or not._

The petitioner's learned counsel conceded that he could not challenge the correctness of the second pr<> position, but took exception to the first as being no longer tenable after the Indian Constitution came into force.

It was urged that article 22 lays down the procedure to be followed in cases of preventive detention and the said procedure must be strictly observed

...

as the only prospect of release by a court must be on the basis of technical or formal defects, a long line of decisions having held that the scope of judicial review in matters of preventive detention is practically limited to an enquiry as to whether there has been strict compliance with the requirements of the law.

This is undoubtedly true and this Court had occasion in the recent case of Makhan Singh Tarsikka v. The State of Punjab (Petition No. 308 of 1951) (1) to observe "it cannot too often be emphasised that before a person is depriTed of his personal liberty the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person 2ffected".

Th~ proposition, however, applied with equal force to cases of preventive detention before the commencement of the Constitution, and it is difficult to see what difference the Constitution makes in regard to the position.

Indeed, the position is now made more clear by the express provisions of section 13 of the Act which provides that a detention order may at 11ny time be revoked or modified and that such revocation shall not bar the making of a fresh detention order under section 3 against the same person. Once it is conceded that in habeas corpus proceedings the court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the date of the institution of the proceeding, it is difficult to hold, in the absence of proof of bad faith, that the detaining authority cannot supersede an earlier order of detention challenged as illegal and make a fresh order wherever possible which is free from defects and duly complies with the reqmrements of the law in that behalf .

. ) As regards the observation in Naranjan Singh's case. we do not understand them as laying down any general proposition to the effect that no fresh order of detention could be made when once a petition challenging the validity of an earlie.r order has been filed in court.

The learned Judges appear to have inferred from the facts of that case that the later .order was

( 1) Since reported as [ 1952] S.C.R. 368.

Naranjan Singh

Nathawan v.

The State of Punjab.

Patanjali Stlstri C. /.

Naranjan Singh

Nathawan v.

The State of

Punjab.

Patanjali Sastri C. /.

Jan. 30.

not made bona fide on being satisfied that the petitioner's detention was still necessary but it was "obviously to defeat the present petition".

The question of bad faith, if raised would certainly have to be decided with reference to the circumstances of each case, but the observations in one case cannot be regarded as a precedent in dealing with other cases.

We accordingly remit the case for further hearing.

This order will govern the other petitions where the same question was raised.

Petitions remitted.

Agent for the respondent: P. A. Mehta.

SHRIMANT SARDAR

BHUJANGARAO

DAULATRAO GHORPADE

SHRIMANT

MALOJIRAO

DA ULA TRAO

GHORPADE AND OTHERS.

[PATANJALI SAsTRI C. J., DAs and VIVIAN BosE JJ.] Bombay Revenue Jurisdiction Act (X of 1876), s. 4(a)-Saranjam-Dispute between branches of grantee's •family-Government Resolution regulating succession-Suit to declare Resolution ultra vires, for declaration of sole right as saranjamdar, and for injunc tion against other branches-Governtnent impleaded as party- Maintainability of suit.

The position of the Gajendrcigad estate which had been recog nised by the British Government as a saranjam and which had been declared by the Bombay High Court in 1868 to be partible, was re-examined in 1891 and Government passed a Resolution in 1891 that "the whole of the Gajendragad estate was a saranjam continuable as hereditary in the fullest sense of the word.

It ls continuable to all made legitimate descendants of the holder at the time of the British conquest." In 1932 by another Resolution Government formally resumed the grant and re-granted it to the plaintiff who belonged to the first branch of the family of the original grantee with a direction that it should be entered in his sole name in the accounts of the Collector. The other two branches felt aggrieved and in 1936 Government passed another Resolution which confirmed the Resolution of 1891 and modified the Resolution of 19321, by declaring that the portions of the

~ .

Government of India Act, 1935

article 31

article 19

article 19(1)

article 31(1)

Central Bank of India Ltd.

Rajinder Narain

NARANJAN SINGH NATHAWAN

THE ST ATE OF PUNJAB

MEHR CHAND MAHAJAN

MuKHERJEA

DAs

Patanjali Sastri

1945] F.C.R. 81

article 32

Raghbir Singh

A. S .. R. Chari

Shiv Charan Singh

S. M. Sikri

PATANJALI SASTRI

article 32

Superintendent, Central Jail, Ambala

5th July, 1950

section 3

Preventive Detention Act, 1950

section 7

17th May, 1951

Puniab

Naranjan Singh Nathawan

P. S. Ramdas

Amritsar District

section 3

section 4

Preventive Detention Act, 1950

Punjab

31st March, 1952

Punjab Detenu Rules, 1950

23rd May, 1951

10th July, 1950

12th November, 1951

23rd November, 1951

18th Novemher, 1951

District Magistrate, Amritsar

sections 3 and 4

State of Punjab

Patanjali Sastri

section 11

section 3

18th November, 1951

section 8

30th May, 1951

section 11

Preventive Detention Act, 1950

section 3

Punjab Government

Amritsar

Faz! Ali

Vivian Bose

17th December, 1951

section 11

section 3

[1945] F. C. R. 81

State of

Puniab.

Pataniali Sastri

section 13

section 3

1945] F.C.R. 81

article 22

section 13

section 3

Naranjan Singh

P. A. Mehta

SHRIMANT SARDAR

SHRIMANT

MALOJIRAO

PATANJALI SAsTRI

VIVIAN BosE

Bombay Revenue Jurisdiction Act

s. 4(a)


Naranjan Singh

Nathawan v.

The State of

Punjab.

Patanjali Sastri C. /.

Jan. 30.

SUPREME COURT REPORTS [1952]

not made bona fide on being satisfied that the petitioner's detention was still necessary but it was "obviously to defeat the present petition".

The question of bad faith, if raised would certainly have to be decided with reference to the circumstances of each case, but the observations in one case cannot be regarded as a precedent in dealing with other cases.

We accordingly remit the case for further hearing.

This order will govern the other petitions where the same question was raised.

Petitions remitted.

Agent for the respondent: P. A. Mehta.

SHRIMANT SARDAR

BHUJANGARAO

DAULATRAO GHORPADE

SHRIMANT

MALOJIRAO

DA ULA TRAO

GHORPADE AND OTHERS.

[PATANJALI SAsTRI C. J., DAs and VIVIAN BosE JJ.] Bombay Revenue Jurisdiction Act (X of 1876), s. 4(a)-Saranjam-Dispute between branches of grantee's •family-Government Resolution regulating succession-Suit to declare Resolution ultra vires, for declaration of sole right as saranjamdar, and for injunc tion against other branches-Governtnent impleaded as party- Maintainability of suit.

The position of the Gajendrcigad estate which had been recog nised by the British Government as a saranjam and which had been declared by the Bombay High Court in 1868 to be partible, was re-examined in 1891 and Government passed a Resolution in 1891 that "the whole of the Gajendragad estate was a saranjam continuable as hereditary in the fullest sense of the word.

It ls continuable to all made legitimate descendants of the holder at the time of the British conquest." In 1932 by another Resolution Government formally resumed the grant and re-granted it to the plaintiff who belonged to the first branch of the family of the original grantee with a direction that it should be entered in his sole name in the accounts of the Collector. The other two branches felt aggrieved and in 1936 Government passed another Resolution which confirmed the Resolution of 1891 and modified the Resolution of 19321, by declaring that the portions of the

~ .

estate held by the branches shall be entered as de facto shares and that each share shall be continuable hereditarily as if it were a separate saranjam estate.

The plaintiff instituted a suit impleading the representatives of the other two branches as defendants 1 and 2, and the Province of Bombay as the 3rd defendant, alleging that the Resolution of 1936 was tdtra vires and praying (A) for a declaration (i) that the defendants 1 and 2 had no right to go behind the Resolution of 1932 under which the plaintiff was recognised as the. sole saranjamdar and that the assignments held by defendants were held by them as mere potgi holders,

(ii) that the plaintiff had the sole right to all privileges appertaining to the post of saranjamdar, and (iii) that the Government had no right to change the Resolution of 1932, and (B) for restraining the defendants I and 2 from doing anyacts in contravention of the aforesaid right of the plaintiff.

Held, (i) that the suit was a suit "against the Crown" and also a suit "relating to lands held as saranjam" within the meaning of sec. 4 of the Bombay Revenue Jurisdiction Act, 1876, and the Civil Courts had no jurisdiction to entertain the suit;

(ii) that the plaintiff could not be given even the reliefs claimed against defendants 1 and 2 alone, as the rights claimed against these defendants could not be divorced from the claim ' against the Government and considered separately;

(iii) in any event if the claim against the Government was to be ignored it can only be on the basis that its orders could not be challenged and if the orders stood, the plaintiff could not succeed because both sides held their respective properties on the basis of those orders.

Basalingappagowda v. Secretary and Basangauda v.

Secretary of approved.

Province of Bombay v.

103) distinguished.

of State (48 Born. L.R. 651)

State (32 Born. L.R. 1370) Hormusji Maneklal (74 I.A.

- ll eld also, that sec. 4 of the said Act would apply even if the only relief claimed in the suit against the Government was a declaration.

Dattatreya Viswanath v. Secretary of State for India (I. L.R. 1948 Born. 809) disapproved. Daulatrao v.

Government of Bombay (47 Born. L.R. 214) approved.

CIVIL

APPELLATE

JURISDICTION Civil Appeal No. 11 of 1950.

Appeal from the judgment and decree of the High Court of Bombay (Bhagwati and Dixit JJ.) dated 16th December, 1948, in Second Appeal No. 1226 of 1945 confirming a judgment and decree of the District Judge of Dharwar in Appeal No. 123 of 1943. The facts of

Bhunjangrao Daulatrao v.

Malojirao Daulatrao and Others.

8h#njangrao

Da11/atrao

M•lojirao

Da14/a1rao and Others.

the case and the the judgm_ent.

arguments of the counsel appear iil

B. Somayya and Sanjiva Rao Naidu (N. C. Shaw, with them) for the appellant.

M. C. Setalvad, Attorney-General for India, (V. N. Lokur, with him) for the respondents Nos. 1 and 2.

M. C. Setalvad, Attorney-Genaal for India, ( G. N.

Joshi, with him) for respondent No. 3 (the State of Bombay.) 1952.

January BosE J .. PATANJALI with BQse J.

30.

Judgment was delivered bv SAsTRI C. J. and DAs J. agreed

BosE J.-The plaintiff appeals.

The suit relates to a Saranjam estate in the State of Bombay.

The plaintiff claims to' be the sole Saranjamdar and seeks certain declarations and other reliefs appropriate to such a claim.

The first and second defendants are members of the plaintiff's family while the third defendant is the State of Bombay (Province of Bombay at the date of the suit) •

. The only question is whether the suit is barred by section 4(a) of Bombay Act X of 1876 (Bombay Revenue Jurisdiction Act).

The following genealogical tree will show the relationship between the parties :

Bhujangrao Appasaheb (British Grantee)

I Daulatrao I (died 24-7-1864) r--------- 1 Bhujangfao 1 (died 1881)

(widow) Krishnabai Daulatrao II (died 8-5-1931) .

I Bhl\langrao III

(Plaintiff)

I Mal.ojirao

I Daulatrao III (Def. 1)

----.

I Yeshwantrao alias Annasaheb

. I Bhuiangrao II (Def. 2)

. :::..

The facts are as follows. A common ancestor of the _present parties was given the Gajendragad estate as a Saranjam .some time before the advent of the British.

When they arrived on the scene they decided, as far as possible, to continue such Sararijams, jagirs and inams as had been granted by the earlier rulers, and accordingly they framed rules under Schedule B, Rule 10 of Bombay Act XI of 1852 (The Bombay Rent Free Estates AGt of 1852) to regulate the mode of recognition :and the succession and conditions of tenure to Saranjams, which are analogous to jagirs. In compliance with this, the common ancestor shown at the head of the genealogical tree set out above was recognised by the British Government as the Saranjamdar of the Gajendragad estate.

He may for convenience be termed the British Grantee.

The Register Ex. P-53 shows that the estate consisted of 26 villages. We do not know the date of the British recognition but the nature of the tenure is described as follows :-

"Continuable to all male legitimate descendants of the holder at the time of British conquest, viz., 'Bhujangrao Appasaheb, the first British Grantee, son of Bahirojirao Ghorpade."

On the death of the British Grantee (Bhujangrao Appasaheb) he was succeeded by his son Daulatrao I who died on the 24th of July, 1864. This Daulatrao I left three sons, Bhujangrao I, Y eshwantrao and Malojirao.

In the year 1866 Bhujangrao I and his brother Y eshwantrao alia1 Annasaheb sued Malojirao for possession -0£ this Saranjam.

A question of impartibility was raised but the Bombay High Court declared that the ' property in British India was partible.

They further declared that Bhujangrao I was the head of the familv and as such was entitled to a special assignment which was not to exceed a quarter share, for the expenses and duties which might devolve on him by virtue of his position, and that after this had been set aside each of the three brothers was entitled to an equal one-third share in the landed property in India.

This judgment

Bhunjangrao Daulatrao. v.

Malojirao Daulatrao and Others.

Bose/.

Bhunjangrao Daulatrao v.

Maloiirao Daulatrao and Others.

Bose/.

is reported in 5 Born. H.C.R. 161. The duties enumerated at page 170 included the "keeping up of armed retainers for the fort of Gajendragad, and for the im provement of that village, which was the chief seat of this branch of the Ghorpade family, and also to enable him to distribute on ceremonial occasions the custom ary presents to the junior members of the family." The judgment is dated the 12th of October, 1868.

As a consequence a division of the property wa!> effected. Malojirao separated himself from his brothers and was allotted seven villages.

The other two brothers continued joint and took the remainder.

But this was only with respect to property situate in British India. .The parties also had property in the State of Kolhapur.

That was left undivided.

Bhujangrao I died in 1881 and his younger brother Y eshwantrao (alias Annasaheb) claimed to succeed as the sole heir. The Political Department of the Government of India refused to recognise this claim and permitted Bhujangrao I's widow Krishnabai to . adopt a a boy from the family and recognised him as the heir in respect of that portion of the estate which lay within the Principality of Kolhapur. This was on the 3rd of

....

February, 1882. ....

The Bombay Government followed a similar course regarding the property in British India.

On the 26th of April, 1882, they passed a Resolution embodying the following decision : ( 1) The adoption was to be recognised and the adopted son was to occupy the same position as his adoptive father, that is to say, he was to get one-third of tle property plus the assignment given to him as head of the family.

(2) Malojirao who had already taken his share of the estate was to continue in possession. (3) Yeshwantrao (alias Annasaheb) was given the option of remaining joint with the adopted boy or separating.

Finally, the Resolution concluded-

.. '

_. • •

,. .

"The two brothers will hold their respective shares as their private property in virtue of the decree of the High Court and the J ahagir will henceforth be restricted to the portion awarded by the High Court to Bhujangrao which the adopted son will now inherit.

It should however be clearly understood that the decision of the High Court is not to be held as a precedent and that no partition of the Jahagir Estate to be continued to the adopted son will ever be allowed."

This position was emphasised by Government in the same year on the 22nd August, 1882.

Krishnabai, who had been allowed by Government to adopt Daulatrao II, asked that her husband's one-third share in the estate be also treated as private property in the same way as the shares of the other two brothers. This prayer was refused and Government stated :

"It should be plainly understood that Government allow the adoption to be made by her only in consideration of Bhujangrao's one-third share as well as the portion assigned to him as head of the family being continued to the adopted son as indivisible Jahagir Estate descending in the line of male heirs in the order of primogeniture and subject to no terms whatsoever as to the enjoyment of the same by Krishnabai during her lifetime."

The position was re-examined by Government in 1891 and its decision was embodied in the following resolution dated the 17th of March, 1891 :

"It appears to Government that the whole Gajendragad Estate is a Saranjam continuable as hereditary in the fullest sense of the word as interpreted by the Court of Directors in paragraph 9 of their Despatch No. 27 dated 12th' December, 1855.

It is continuable to all male legitimate descendants of the holder at the time of the British conquest; and should Government ever sanction an adoption the terms of sanction would be those applicable to Saranjamdars.

The property should be dealt with like other Saranjams in the Political Department."

Bhuniangrao.

Daulatrao v.

Malo; irao Daulatrao and 0 thrt.

Bos~/.

Bhunjangrao

D11Hl111rao

J4R/ojirll0 DRHlatrao "'ml Others.

Bos•],

In the year 1901 the adopted son Daulatrao II sued Yeshwantrao's son Bhujangrao II for partition.

It will be remembered that in the litigation of 1866, which ended in the Bombay High Court's judgment reported in 5 Born. H.C.R. 161, Malojirao alone separated and the other two brothers continued joint.

The litigation of 1901 put an end to that position. The High Court's judgment dated the 12th of March, 1908,

makes it clear that as Government was not a party to that litigation its rights against either or both of the parties were not affected.

But as between the parties inter se they were bound by the previous decisiol'I and so the adopted son was entitled to partition and separate possession of uch properties as might fall to his share. After this decision was given the two partitioned the property between themselves amicably.

In or about the year 1930 a Record of Rights was introduced in fourteen of the villages in the Gajendragad Jahagir and a dispute arose again between the three branches of the family. The District Deputy C, ollector, after inspecting the records, found that "the name of the Khatedar Saranjamdar alone has found place in the village Inam register, in the Saranjam list and the land alienation register," while in the other village records the various members of the family were entered according to the "actual wahivat or enjoyment."

After due consideration he thought that the interest of Government and the Saranjamdar would be sufficiently safeguarded by allowing the same position to con6nue.

He ordered the entries to be made accordingly.

The order also discloses that the matter had been referred to the Legal Remembrancer to the Bombay Government.

In the meanwhile, on the 5th of May, 1898, a set of Rules framed under Schedule B, Rule 10, of the Bombay Rent Free Estates Act of 1852 were drawn up and published in the Bombay Gazette.

These Rules were republished, probably with some modification, in the Gazette of 8th July,

1901. The portions applicable here were as follows :-

....

. .:..,

"I. Saraniams shall ordinarily be continued in accordance with the decision already passed by Government in each case.

II. A Saranjam which has been decided to be hereditarily continuable shall ordinarily descend to the eldest male representative, in the order of primogeniture, of the senior branch of the family descended from the first British Grantee or any of his brothers who were undivided in interest. But Government reserve to themselves their rights for sufficient reason to direct the continuance of the Saranjam to any. other member of the $aid family, or as an act of grace, to a person adopted into the same family with the sanction of Government.

* * V. Every Saranjam shall be held as a life estate. It shall be formally resumed on the death of the holder and in cases in which it is capable of further continuance it shall be made over to the next holder as a fresh grant from Government, unencumbered by. any debts, or charges, 5ave such as may be specially imposed by Government itself. >· VI. No Saranjam shall be capable of sub-division ..

VII. Every Saranjamdar shall be responsible for making a suitable provision for the maintenance of .... " (certain members of the family enumerated m the Rule).

IX. 'If an order passed by Government under Rule VII is not carried out, Government may, what-_ ever the reason may be, direct the Saranjam, or a portion of it, to be resumed .... Provision for the members of the Saranjamdar's family entitled to maintenance shall then be made by Government out of the revenues of the Saranjam so resumed."

After the District Deputy Collector's orders were passed on the 20th of May, 1930, Daulatrao II died on the 8t11 of May, 1931, and the matter was again taken up by Government. This time it passed ilie following

Bhuniangrao

Daulatrao v.

Malo; irao Daulatrao and Others.

Bo; e / .

Bhunjangrao Dau/atrao v.

Malojirao Daulatrao and Others.

Bose /.

Resolution on the 7th of June, 1932.

The Resolution was headed, "Resumption and regrant of the Gajendragad Saranjam standing at No. 91 of the Saranjam List." It reads-

"Resolution :-The Governor-in-Council 1s pleased to direct that the Gajendragad Saranjam should be formally resumed and regranted to Bhujangrao Daulatrao Ghorpade eldest son of the deceased Saranjamdar Sardar Daulatrao Bhujangrao Ghorpade and that it should be entered in his sole name in the accounts of the Collector of Dharwar with effect from the date of the death of the last holder. The Collector should take steps to place the Saranjamdar in possession of the villages of the Saranjam estate which were in possession of the deceased Saranjamdar.

The Governor-in-Council agrees with the Commissioner, Southern Division, that the assignments held by the Bhaubands as potgi holders should be continued to them as at present."

The Bhujangrao mentioned in the Resolution is the 1 plaintiff who is shown as Bhujangrao

III in the genealogical tree.

The defendants were evidently aggrieved by this, (or they filed Suit No. 23 of 1934 against the present plaintiff and the Secretary of State for India in Council praying inter alia "that the properties in that suit, viz., the villages allotted to their shares, were their independent and private properties and in case they were held to be . Saranjam properties, they be declared as independent Saranjams, separate and distinct from the one held by the present plaintiff."

This suit was withdrawn with liberty to bring a fresh suit on the same cause of action against the present plaintiff but not against the Secretary of State for India in Council.

According to defendants 1 and 2, this was pursuant to an arrangement between the Government and themselves that Government would issue a fresh Resolution in terms of the earlier Resolution dated the 17th of March, 1891.

...: . -

...

This was done. On the 25th of February, 1936, Government passed the following Resolution:-

"Resolution:-After careful consideration the Governor-in-Council 1s pleased to confirm the decision in Government Resolution (Political Department) No. 1769 dated the 17th of March, 1891, and to declare that the whole of the Gajendragad Estate shall be continuable as an inalienable and impartible Saranjam on the conditions stated in the said Resolution.· Having regard, however, to the manner in which different portions of the estate have been held by different branches of the family, the Governor-in- Council, in modification of the orders contained in Government Resolution No. 8%9 dated the 7th June, 1932, is ?leased to direct that the portions of the said estate held by Sardar Bhujangrao Daulatrao Ghorpade, Daulatrao Malojirao Ghorpade and Bhujangrao Yeshwantrao Ghorpade, respectively, shall henceforth be entered in the Revenue Records as de facto shares in the said estate held by the said persons as representatives, respectively of three branches of the Ghorpade family.

Each of the said de facto shares shall be continuable hereditarily as such as if it were

~ separate Saranjam estate in accordance with the rules made for the continuance of Saranjams by the Governor-in-Council in exercise of the powers referred to in the rules framed under the Bombay Rent Free Estates Act, 1852, and section 2(3) of the Bombay Summary Settlement Act (VII of 1863) and such special orders as the Governor-in-Council may make in regard to the Gajendragad Estate as a whole or in regard to the said share.

The recognition of the aforesaid shares and their entry in the Revenue Records separate shares shall not be deemed to amoua.t to a recognition of the estate of Gajendragad as in any manner partible or alienable and shall not in any way affect the right of_ Government to treat the said estate as an entire impartible and inalienable Saranjam estate.

2. The Governor-in-Council further directs that the aforesaid shares shall in no case be capable of

Bhunjangrao Daulatrao v.

Malojirao Daulatrao and Others.

Bose/.

Bhuniangrao Daulatrao v.

Ma/o; irao

Daulatrao and bthers.

Bose f.

sub-division and shall not in any way be alienated or encumbered except m accordance with the rules and orders referred to above ... "

The present suit 1s an attack on the action of Government in passing this Resolution.

The first and second defendants are the present representatives of the other branches of the family and the third defendant is the Province of Bombay (now the State of Bombay). The plaint states-

"9. Government can have no . jurisdiction to. deprive the plaintiff at any rate during his lifetime of the full benefit of all the rights and privileges apertaining to the holder of a Sarani am.

The Order of Government of the 8th February, 1936 is, therefore, ultr.a vires and in no way binding on the present plaintiff ..... .

10. Defendants 1 and 2, therefore, are not entitled to any rights or privileges claimable by the holder of a Saranjam which according to the G. R. is continuable 'as an inalienable and . impartible Saranjam', such as for example in the matter of appointment of the village officers m any of the 27 villages appertaining to the Gajendragad Saranjam. -

11. The cause of action aose in April 1938 and the resolution and the entry being ultra "titres is not binding ...

12. As this is a suit claiming for relief primarily against defendants I and 2, defendant 3 is made a party to the suit in order to enable Government (defendant 3) to give proper effect to the decision of Government of the 17th March, 1891, and of 7th June, 1932, as against defendants I and 2 who have no right to the position which they claim ... "

The reliefs prayed for are- " (a) That is be declared that defendants I and 2 have no right to go behind the order of the Government as per Resolution No. 8969 of 7th June, 1932, under which plaintiff is entitled to be recognised as the sole Saranjamdar in the Revenue Records, and that the assignments held by defendants 1 and 2 are held by them as mere potgi holders.

....

....

. •.

./ .

........

(b) That in consequence of his position of a sole Saranjamdar, the plaintiff alone at any rate during his lifetime has the sole right to the rights and privileges appertaining to the post of a sole Saranjamdar, to wit, to be consulted in the appointment of the village officers in all the villages appertaining to the Saranjam estate, but assigned to defendants 1 and 2 for potgi ..•

( c) Defendants 1 and 2 be restrained from doing any acts or taking any steps in contravention of the aforesaid right of the plaintiff.

(d) That it be declared that defendant 3 (Government) have no right to change the Resolution No. 8969 of 7th June, 1932, and at any rate during the lifetime of the plaintiff."

The first Court dismissed the plaintiff's claim on the merits holding that Government had the right to amend its Resolution in the way it did.

The lower appellate Court also dismissed the suit on three grounds: (1) that the two previous decisions of 1868 and 1908 operate as res iudicata, (2) .that the impugned Resolution 1s intra vires and (3) that section 4

(a) and (d) of the Revenue Jurisdiction Act bars the jurisdiction of the Court.

In second appeal the High Court only considered the question of jurisdiction and, agreemg with the lower appellate Court on the point, dismissed the appeal but it granted the plaintiff leave to appeal to this Court.

The only question we have to consider is the one of jurisdiction. Section 4 of the Bombay Revenue Jurisdiction Act, 1876 (Bombay Act X of 1876), runs~

Subject to the exceptions hereinafter appearing, no Civil Court shall exercise jurisdiction as to-

(a) . . . claims against the Crown relating to lands ... held as Saranjam ... "

It was strenuously contended that this is not a claim against the Crown but one against the first and second defendants.

That, m my opinion, is an idle contention in view of paragraphs 9 and 12 of the plaint and reliefs (a) and (d). In any event, Mr. Somayya was asked whether he would strike out the third defendant 4-'--5 S.C. India/71

Bhuiangr111:1

Daulatrao v.

Malojirao Daulatrao and Other$

Bose /.

~ Bhujangrao Daulatrao v.

Malo; irao Daulatrao and Others.

Bose/.

and those portions of the plaint which sought relief against it.

He said he was not prepared to do so. I cannot see how a plaintiff can insist on retaining a person against whom he claims no relief as a party. I am clear that this is a suit against the "Crown" within the meaning of section 4(a).

The next question is whether, assuming that to be the case, it ts also one "relating to lands held as Saranjam." So far as the reliefs sought against Government are concerned, that . is clearly the case.

Paragraph 9 of the plaint challenges Government's jurisdiction to deprive the plaintiff of the full benefit of all rights and privileges appertaining to the holder of a Saranjam. These rights cannot exist apart from the lands which form part of the Saranjam estate and the implication of the prayer is that Government has, for example, no right to resume the Saranjam either under Rule V on the death of the last Saranjamdar or under Rule IX during his lifetime. It 1s to be observed that a resumption under Rule IX can only be of the land because the rule directs that when the Saranjam is resumed Government itself shall make provisions for the maintenance of those entitled to it "out of the revenues of the Saranjam so resumed." These revenues can only come out of the land.

Relief ( d) in the prayer clause seeks a declaration that Government has no right to change Resolution No. 8969 dated the 7th of June, 1932. That Resolution directly relates to the land because it directs that the Gajendragad Saranjam be resumed and the Collector is directed to take steps to place the Saranjamdar in possession of the villages of the Saran jam estate etc.

It is impossible to contend that this is not a claim relating to lands held as Saranjam.

It was next argued that if that be tlte case the claim against Government can be dismissed and the plaintiff can at least be given the reliefs claimed against the other two defendants.

These, it was contended, do not relate to land and in any event are not claims against the "Crown".

....

In my opinion, this is not a suit in which the rights claimed against the other defendants can be divorced from the claim against Government and considered separately. That is evident enough from paragraph 10

of the plaint.

In paragraph 9 the power of Government to deprive the plaintiff of the rights he claims is challenged and in paragraph 10 of the plaintiff explains that "therefore" the first and second defendants are not entitled to any of the rights and privileges of the Saranjamdar. One of those rights, as we have seen from Rules VII and IX, is to take the revenues of the entire estate in order that he might fulfil his obligation regarding the payment of maintenance to certain members of the family; and if the dfendants claim to hold their lands under the orders of Government and the plaintiff insists on retaining Government as a party in order that it may be bound by the decree he wants against the other defendants it 1s obvious that his claim against these defendants cannot . be separated from his claim against the Government. • In any event, if the claim against Government is to be ignored it can only be on the basis that its orders cannot be challenged and if the orders stand it 1s evident that the plaintiff can have no hope of success because both sides hold their respective properties on the basis of those orders.

There are two decisions of the Bombay High Court which have taken this view.

Basalingappagouda v.

The Secretary of State for India(1) was a Watan case.

Government had recognised the second defendant as the W atandar.

Plaintiff sued Government and the second defendant and sought a declaration and injunction. On being faced with the dilemma that the suit against Government did not lie because of section 4

(a) (3) of the Bombay Revenue Jurisdiction Act of 1876, he asked the Court, as here, to leave the Government out of consideration and decree his claim against the second defendant alone.

The learned Judges held that that would amount to striking out the main relief sought against both the defendants and would entirely

. (I) 28 Born. L.R. 651.

Bhujangrao Daulatrao v.

Malojirao Daulatrao and Others.

Bose/.

Bhujangrao Daulatrao v.

Malojirao Daulatrao and Others.

Bos< /.

change the character of the suit and added that "as

lo1,1g as the Secretary of State is a party to the suit, such a declarat:ton could not be granted."

In the other case, Basangauda v. The Secretary of State('), Beaumont C. J. and Baker J. took the same view.

They said- "Mr. Gumaste, who appears for the appellant, says that his claim is not a claim against the Government but in that case he ought to strike out the Government.

He is not prepared to strike out the Government, because if he does they will not be bound by these proceedings and will follow the decision of their revenue tribunals. Therefore, he wants to make the Government a party in order tliat they may be bound. But, if they remain a party, it seems to me tha~ there is a claim against them relating to property appertaining to the office of an hereditary officer, although no doubt it is quite true that the appellant does not desire to get any order against the Government as to the way in which the pl'bperty should be dealt with or anything of the sort, and he only wants a declaration as to his title which will bind Government."

They held that the jurisdiction of the courts was ousted.

It was next contended, on the strength of a decision of the Judicial Committee of the Privy Council reported in Province of Bombay v.

Hormusji Manekji( 2 ), that the courts have jurisdiction to decide whether Government acted in excess of its powers and that that question must be decided first.

In my opinion, this decision does not apply here.

Their Lordships were dealing with a case falling under section 4(b) of the Bombay Revenue Jurisdiction Act of 1876.

That provides that- ". . . no Civil Court shall exercise jurisdiction as to ..... . *

(b) objections to the amount o~ incidence of any assessment of land revenue authorised by the Provincial Government."

(!) 32 Born. L.R. 1370.

(2) 74 I.A. 103.

. "'lo..

... ..

> .

..... -

,...

I 1 • F - ' ' As pointed out by Strangman K. C., on behalf of the plaintiff respondent, "authorised" must mean "duly authorised," and in that particular case the impugned .assessment would not be duly authorised if the Government Resolution of 11-4-1930 purporting to treat the .agreement relied on by the respondent as cancelled and authorising the levy of the full assessment was ultra vires under section 211 of the Land Revenue Code.

Thus, before the exclusion of the Civil Court's jurisdiction under section 4(b) could come into play, the Court had to determine the issue of ultra vires. Consequently, their Lordships held that that question was outside the scope of the bar.

But the position here is different.

We are concerned here with section 4(a) and under that no question about an authorised act of Government arise5.

The section is general and bars all "claims .against the Crown relating to lands.... held as Saranjam." That is to say, even if the Government's act in relation to such lands was ultra vires, a claim impugning the validity of such an act would fall within the scope of the exclusion in clause (a) provided it relates to such land.

There is a difference of opinion in the Bombay High Court as to whether section 4 is attracted if the only relief sought against Government is a declaration.

One set of decisions holds that that does not amount "to a "claim against Government." Dattatraya Vishwanath v. The Secretary of State for lndia(1) is typical Of that view.

On the other hand, Daulatrao v. Government of Bombay(2), a case relating to the Gajendragad estate, took the oter view.

In my opinion, the latter view is correct.

In my opinion, the decision of the High Court was :right and I would dismiss the appeal with costs.

PATANJALI SASTRI C. J.--:J agree . .S. R. DAs J.-I agree.

Appeal dismissed Agent for the appellant : Ganpat Rai.

Agent for respondents Nos. 1 & 2 : M. S. K. Sastri.

Agent for respondent No. 3 : P. A. Mehta.

(I) I.L.R. 1948 B°.m. 809 at 820.

(2) 47 Born. L.R. 214.

Bhujangrao Daulatrao v.

Malojirao Daulatrao and Others.

Bose/ .

Patanjali Sastri

P. A. Mehta

SHRIMANT MALOJIRAO DAULATRAO GHORPADE AND OTHERS

DAs

VIVIAN BosE JJ.

Bombay Revenue Jurisdiction Act

s. 4(a)

sec. 4

Bombay Revenue Jurisdiction Act, 1876

State

Hormusji Maneklal

L.R. 1370) Hormusji Maneklal (74 I.A.
ll eld also, that sec.

sec. 4

CIVIL

APPELLATE

JURISDICTION

High Court of Bombay

Bhagwati

Dixit

Bhunjangrao Daulatrao

Malojirao Daulatrao

B. Somayya

Sanjiva Rao Naidu

N. C. Shaw

M. C. Setalvad

V. N. Lokur

G. N.

Joshi

BQse

State of Bombay

section 4(a)

Bombay Act X of 1876

Bombay Revenue Jurisdiction Act

Daulatrao

Bhl\langrao

Mal.ojirao

Daulatrao

Yeshwantrao alias Annasaheb

Bhuiangrao

Bombay Act XI of 1852

Bhujangrao Appasaheb

Bahirojirao Ghorpade

Daulatrao I

24th of July, 1864

Bhujangrao I

Y eshwantrao

Malojirao

Annasaheb

Bombay High Court

British India

India

12th of October, 1868

Kolhapur

Bhujangrao

Krishnabai

3rd of

....

February, 1882

Bombay Government

26th of April, 1882

Malojirao

Yeshwantrao

22nd August, 1882

Daulatrao

17th of March, 1891

12th' December, 1855

Bhunjangrao

12th of March, 1908

5th of May, 1898

8th July,

1901

20th of May, 1930

Daulatrao II

8t11 of May, 1931

Bhujangrao Daulatrao Ghorpade

Dharwar

Saranjamdar

25th of February, 1936

June, 1932

Sardar Bhujangrao Daulatrao Ghorpade

Daulatrao Malojirao Ghorpade

Bhujangrao Yeshwantrao Ghorpade

section 2(3)

Gajendragad

Governor-in-Council

8th February, 1936

Gajendragad Saranjam

7th June, 1932

section 4

Section 4

Bombay Revenue Jurisdiction Act, 1876

Bombay Act X of 1876

Somayya

section 4(a)

7th of June, 1932

section 4

Bombay Revenue Jurisdiction Act

Baker

Gumaste

section 4(b)

Bombay Revenue Jurisdiction Act

Strangman

section 211

section 4(b)

section 4(a)

section 4

PATANJALI SASTRI

.S. R. DAs

Ganpat Rai

M. S. K. Sastri

Bhujangrao Daulatrao


Feb. 1.

SUPREME COURT REPORTS [1952]

W. H. KING v.

REPUBLIC OF INDIA AND ANOTHER.

[PATANJALI SASTRI c. J.,

MEHR CHAND

MAHAJAN, MuKHERJEA, DAs and

CHANDRASEKHARA ArYAR JJ.] Bombay Rents, Hotel and Lodging Rates Control Act (LVII of 1947), s. 19-Tenant handing over possession to third person receiving "pugrec"-W hether constitutes urelinquishment" -Difference between assignment and relinquishment-Construction of penal siatutes.

Sub-section (1) of sec. 19 of the Bombay Rents, Hotel and Lodging House Rates Control Act, LVJI of 1947, provided that "it shall not be lawful for the tenant or any person acting or purporting to act on behalf of the tenant to claim or receive any sum. or any consideration as a condition for the relinquishment of his tenancy of any premises"; a.nd sub-sec.

(2) provided that" any tenant or person who in contravention of the provisions of subsec. (1) receives any sum or consideration shall on conviction be punished with imprisonment and also with fine.

A, who was a tenant of a fiat, handed over vacant possession. of the fiat to B on receiving "pugree", under a document which recited that A shall have no claim whatever over the flat and that B shall pay the rent directly to the landlord. A was convicted of an offence under sec. 19(2).

Held, that there was no "relinquishment" of his tenancy by A, within the n1eaning of sec. 19(1) and the conviction could not be sustained.

There is a clear distinction bet\veen an assignment of a tenancy on the one hand and a relinquishment or surrender on the other.

-·

In the case of an assignment, the assignor cntinues to be liable .. to the landlord for the performance of his obligations under the tenancy and this liability is contractual, \vhile the assignee becomes liable by reason of privity of estate.

The consent of the landlord to an assignment is not necessary, in the absence of a contract or local usage to the contrary.

But in the case of relinquishment it c<:1nnot be a unilateral transaction; it can only be in favour of the lessor by mutual agreement between them.

Rel~ .. > inquishment of possession must be to the lessor or one who holds his interest; and surrender or relinquishment terminates the lessee's rights and lets in the lessor.

As sec. 19 of Bombay Act LVJI of 1947 creates an offence and imposes a penalty of fine and imprisonment, the words of the section must be strictly construed in favour of the subject. The Court is not concerned so much with what might possibly have been intended as with what has been actually said in and by the language employed in the statute. "'"

Judgment of the Bombay High Court reversed.

'>- _ _,

CRIMINAL

APPELLATE

JURISDICTION : Criminal Appeal No. 8 of 1951.

Appeal from an Order of the High Court of Bombay (Bavdekar and Chainani JJ.) dated 20th February, 1950, in Criminal Appeal No. 106 of i950 arising out of an order dated 9th January, 1950, of the Presidency Magistrate, 19th Court, Esplanade, Bombay, in Case No. 10879/P of 1949.

The facts are stated m the judgment.

lswarlal C. Dalal and R. B. Dalal, for the appellant.

C. K. Daphtary, Solicitor-General f<>r India (G. N.

Joshi, with him) for the Republic of India (respondent No. 1).

~ Jindra Lal for the respondent No. 2.

1952. February 1. The Judgment of the Court was delivered by

CHANDRASEKHARA

AIYAR J.-The facts our of which this Criminal Appeal has arisen are not long.

The appellant, W. H. King, who is carrying on a business in Bombay under the name and style of Associated Commercial Enterprises, was the tenant of a Bat on the second Boor of a building called "Ganga Vihar", Marine Drive, Bombay, which belongs to a lady named Durgeshwari Devi. The tenancy was a monthly one, the rent being Rs. 215.

It is said that the appellant wanted to go to the United Kingdom for treatment of his failing eye-sight and he gon into touch with the complainant Mulchand Kodumal Bhatia, who is the second respondent in this appeal, through one Sayed for the purpose of making necessary arrangements about the Bat occupied by him in view of his intended departure. The prosecution case is that the accused demanded a sum of Rs. 30,000 which was later on reduced to Rs. 29,500 as consideration for putting the complainant in vacant possession of the Bat and an additional amount of Rs. 2,000 for the furniture, and that the complainant agreed to pay these sums.

The complainant actually paid the accused two sums of

W. H. King

Republic of India

and Another.

W. H. King v.

Republic of India

and Another.

Chandrasekhara

Aiyar ].

}' I ' ! ' I [1?521

Rs. 500 each on 7th November, 1948, and 17th November, 1948.

He, however, got into touch with the police on 1-12-1948, and in conjunction with the latter, a trap was laid for the appellant. It was arranged that the complainant should bring with him Rs. 1,000, being the balance due in res.pect of the furniture and tbat the police would give him Rs. 29,500 to be paid to the appellant.

The complainai'it and a Sub-Inspector, posing as the complainant's brother, went to the appellant on 4-12-1948, and paid him the two sums of money; and the keys of the flat and the motor garage were handed over to the complainant.

As the appellant and his wife were leaving the flar, the man, who masqueraded as the . complainant's brother; threw off his disguise and' disclosed his identity.· The police party, who were down below ready for tht 1 raid, held up the car of the appellant and recovered the sum of Rs. 30,500 from the rear seat of the car and also some papers,· a typed draft of a partnership agreement between the complainant and the appellant and an application form for permission to occupy the building as caretaker. ·"From the complainant were recovered the bunch of keys and the documents that were handed over to him by the appellant, namely, the ktter handing vacant possession ·(Exhibit D), the receipt for "'Rs.' 2,000 for the articles : of furniture (Exhibit E), a letter to the Bombay Gas Company for transfer of the gas' connection to. the name cif the complainant (Exhibit• F); and the ktter to the Bombay Electric Supply' and Transport Committee for transfer of the ' telephone connections' and the deposit of Rs. 27 (Exhibit G). . ..

' . ..

J l The appellant was charged under section 18(1) of the• Bombay Rents;· Hotel i:ind Lodgmg House Rates 'Cbntrol Act, •LVII of 1947, for receiving a pugret: of 1Rs. •29,500 :ind' he was further- charged under section 19(2) ofthe" said Act for receiving' the said sum ., • as a condition for the relinquishment of his tenancy. •His wife; who was the second accused in the 'case, was' char#d .. with . aiding . and ' abetting her husband in the:'l:ommission of the two offencci.

... .

The defence of the appellant was that he was in search of a partner to carry on his business during his intended absence, who was also to act as caretaker of his flat and that it was in this connection and with this object in view that he entered into negotiations with the complainant. The sum of Rs. 29,500 was not pugree but represented capital for 0-12-0 share in the business and as the complainant was also to be a caretaker of the flat, the sum of Rs. 2,000 was paid arid received as a guarantee against disposal and damage of the furniture and it was agreed to be paid back on the appellant's return to India.

The wife of the appellant denied any aiding and abetting.

The Presidern:y Magistrate, who tried the case, disbelieved the defence on the facts, holding that what .,.., was received by the accused was by way of pugru.

As section 18(1) of the ct was not applicable he convicted him under section 19(2) of the Act and sentenced him, in view of his old age and blindness, to one day's simple imprisonment and a fine of Rs. 30,000. The wife was acquitted, the evidence being insufficient to prove any abetment.

The appellant preferred an appeal to the High Court of Bombay but it was summarily dismissed on 20-2-1950.

He asked for a certificate under :article 134(1) (c) of the Constitution but this was rejected on 10-4-1950.

Thereafter he applied for special: leave to appeal to this Court and it was grant- •ed on 3-10-1950.

A short legal argument was advanced on behalf of the appellant based on the language of section 19(1) of the Act and this is the only point which requires our cons5deration.

The section which consists of two parts is in these terms :-

" (l) It shall not be •lawful for the tenant or any person acting or purporting to act on behalf of the tenant to claim or receive any ., sum 6r any consideration as a condition for the relinquishment of his tenancy of any premises; . '

W. H. King v.

Republic of India

and Another.

Chandrasekhara

Aiyar /.

W. H. King v.

Republic of India

and Another.

Chandrasekhara

Aiyar ].

(2) Any tenant or person who in contravention of the provisions of sub-section

(1) receives any sum or consideration shall, on conviction, be punished with imprisonment for a term which may extend to 6 months and shall also be punished with fine which shall not be less than the sum or the value of the consideration received by him."

It was urged that the offence arises only on receipt of any sum or any consideration as a condition of the relinquishment by a tenant of his tenancy and that in the present case there was no such relinquishment ..

Exhibit D, which is the most material document,. under which the appellant handed over vacant possession of the flat to the complainant, constitutes or evidences an assignment of the tenancy and not a relinquishment. It says:-

"I, W. H. King, hereby ha11d over vacant possession of my flat No. 3 situated on 2nd floor and garage No. 4 on the ground floor of Ganga Vihar Building on Plot No. 55 situated on Marine Drive Road to Mr.

Mulchand Kodumal Bhatia from this day onward and' that I have no claim whatsoever over this flat and Mr.

Mulchand Kodumal Bhatia will pay the rent directly to the landlord."

The argument raised on behalf of the appellant appeaIIS to us to be sound and has to be accepted~ The learned Solicitor-General urged that the word "relinquishment" was not a term of art and was used in the section not 111 any strict technicar sense but in its comprehensive meaning as giving up of possession of the premises; and he pointed" out that if it was intended by the legislature that "relinquishment" should have 'the limited meaning sought to be placed upon it on behalf of the appellant, the word "surrender" used in , the Transfer of Property Act would have been more appropriate, Sections 15 and 18 of the Act were referred to in this connection but in our opinion they lend no assistance to the argument of the learned counsel. Any subletting, assignment or transfer in any other manner of his

interest by the tenant is made unlawful under

. .

,. .

section 15.

Section 18 deals with the grant, renewal 1952 or continuance of a lease of any premises or the giving

W H K' of his consent by the landlord to the transfer of a lease • v mg. by sub-lease or otherwise, and it provides that the . Republic~! India landlord, who receives any fine, premium, or other and Another. like sum or deposit, or any consideration for the grant, renewal or continuance or the accord of consent Chandrast:khara would be guilty of an offence and liable to the punish- Aiyar ]. meI\t therein specified.

It would thus be seen that an assignment of the lease or transfer in any other manner by a tenant is not made an offence; the statute merely says that it is not a lawful transaction. It is the landlord's consent to the transfer of a lease by sub-lease or otherwise on receipt of consideration that has been made an offence. Then follows section 19 which speaks of the relinquishment of his tenancy of any premises by a tenant. If, by the expression, an aSJSignment such as we have in the present case was meant, appropriate words could have been used, such as the transfer by a tenant of his interest, which we find in section 108, sub-clause (j), of the Transfer of Property Act.

The distinction between an assignment on the one hand and relinquishment or surrender on the other is too plain to be ignored.

In the ce of an assignment, the assignor .continues to be liable to the landlord for the performance of his obligations under the tenancy and this liability is contractual, while the assignee becomes liable by reason of privity of estate. The consent of the landlord to an assignment is not necessary, in the absence of a contract or local usage to the contrary.

But in the case of relinquishment, it cannot be a unilateral transaction; it can only be in favour of the lessor by mutual agreement b_etween them.

The relinquishment of possession must be to the lessor or one who holds his interest.

In fact, a surrender or relinquishment terminates the lessee's rights and lets in the lessor.

It is no doubt true that the word "relinquishment" does not occur in the Transfer of Property Act but it is found in many of the Tenancy Acts in various provinces were there are sections which deal with the

W .. H. King v. !Republic of India and Another. •

Chandrasekhara Aiyar /.

SUJ>REME COURT REPORTS

. ~- 1.. t f • :

' J [1952]

relinquishment of their holdings by tenants in favour of the landlord by notice given to him in writing. The sectiOn' in'' question, it should .be further noted,. does hot peak of relinquishment or giving up of 'possession, in general terms.

The words are "the relinquishment 'of his tenancy of any premises". The relinquishment 'of a tenancy is -equivalent to surrender by' the lessee or teriant of his rights as such. Whether abandonment of a' tenancy would come within the meaning of relinquishment i~ a question that does not arise in this appeal, because in the face of Exhibit D, there is no abandonment' in the sense that 'the tenant dis:ippeafed from the scene altogether saying 'nothing and making no arrangements about his interest and 'possession under the lease~

As the statute creates an offence and imposes a penalty of fine and imprisonment, the words of the section must be stictly construed in favour of the subject.

We' are not concerned so much with what might possibly have been intended as with what has been actually said m and by the langliage employed.

As in our view, there has been no "relinquishment" within the meaning of section 19, sub-clause {l),' the conviction under sub-clause (2) cannot be sustained.

It is set aside and the fine of .Rs. 30,000 will be refiinded if it has already been paid. The other parts of the order 'of the learned Presidency Magistrate, as 'regards the 'disposal of Rs. 1,000 , Paid by the complainant to t; he appellant and the sum of Rs. 29,500. brought in by the police, will, however, stand.

~ , . ' . '

Conviction set aside.

' Agent for the appellant: P. K. C hatteriee. ,, _, • Agent for respondent No .. 1: P.A. Mehta.

Agent for respondent No. 2: Ganpat Rai.

't' ot ' ·• ., . ., ~·

' .

• •

W. H. KING

REPUBLIC OF INDIA AND ANOTHER

PATANJALI SASTRI

MAHAJAN

MuKHERJEA

DAs

Hotel and Lodging Rates Control Act

s. 19

sec. 19

sec. 19(2)

sec. 19(1)

sec. 19

Bombay High Court

Bavdekar

Chainani

lswarlal C. Dalal

R. B. Dalal

C. K. Daphtary

G. N.

Joshi

Jindra Lal

CHANDRASEKHARA

AIYAR

W. H. King

Durgeshwari Devi

United Kingdom

Mulchand Kodumal Bhatia

Sayed

Chandrasekhara

Bombay Gas Company

section 18(1)

section 19(2)

India

section 18(1)

section 19(2)

High Court of Bombay

article 134(1)

section 19(1)

Republic of India

W. H. King

Mulchand Kodumal Bhatia

Transfer of Property Act

Sections 15 and 18

section 15

Section 18

Chandrast:khara

section 19

section 108

Transfer of Property Act

Transfer of Property Act

Chandrasekhara Aiyar

section 19

P. K. C hatteriee

P.A. Mehta

Ganpat Rai


' '

S.C.R.

SUPREME COURT REPORTS 425

BATHINA RAMAKRISHNA REDDY

THE STATE OF MADRAS. [PATANJALI SASTRI c. J., MEHR CHAND MAHAJAN, Muui:ERJEA, DAs and CHANDRASEKHARA

AIYAR JJ.]

Contempt of Courts Act (XII of 1926), s. 2(3)-lndian Penal Code (XLV of 1860), s. 499-Contempt of subordinate Court-/urisdiction of High Court to take cognisance-Contempt punishable as defamation under Penal Code-Whether iurisdiction ousted-Scope and object of Contempt of Courts Act.

Sub-sec. (3) of section 2 of the Contempt of Courts Act, 1926, excludes the jurisdiction of the High Court to take cognisance of a contempt alleged to have been committed in respect of a Court subordinate to it only in cases where the acts alleged to constitute contempt are punishable as contempt under specific provisions of the Indian Penal Code, but not where these acts merely amount to offences of other description for which punishment has been provided for in the Indian Penal Code.

The fact that defamation of a judge of a subordinate Court constitutes an offence under sec. 499 of the Indian Penal Code does 11ot, therefore, oust the jurisdiction of the High Court to take cognisance of the act as a contempt of court.

Defamatory statements about the conduct of a judge even in respect of his judicial duties do not necessarily constitute contempt of Court.

It is only when the defamation is calculated to obstruct or interfere with the due course of justice or proper administration of justice that it amounts to contempt.

Kisan Krishna /i v. Nagpur Conference of Society of St. Vincent de Paul (A.I.R. 1943 Nag. 334) disapproved.

V. M. Bason v.

A. H. Skone (LL.R. 53 Cal. 401) explained. Subordinate fudge, First

Class Hoshangabad v. /awaharlal (A.LR. 1940 Nag. 407)> Narayan Chandra v. Panchu Pramanick (A.LR. 1935 Cal. 684), Naresh Kumar

v. Umaromal (A.LR. 1951 Cal. 489), Kaulashia v. Emperor (I.L.R. 12 Pat. 1), State v.

Brahma Prakash (A.I.R. 1950 All. 556), Emperor v. /agannath (A.LR. 1938 All. 358), Bennet Colman v.

C. S. Monga (I.L.R. 1937 Lah. 34) approved.

CRIMINAL

APPELLATE JurusDICTION: Criminal Appeal No. 13 of 1951.

Appeal by special leave from the judgment and order of the High Court of Madras (Rajamannar C. J. and and Balakrishna Ayyar J.) dated 10th April, 1950, in Contempt Application No. IO of 1949.

Feb. 14.

Bathina Ramakrishna Reddy v.

The State of Madras.

Mukheriea /.

S. P. Sinha ( S. S. Prakasam, with him), for the appellant.

R. Ganapathy Iyer, for the respondent. 1952.

February

14. The Judgment of the Court was delivered by

MuKIIERJEA J.-This appeal has come up before us on special leave granted by this court on May 23, 1950, and it is directed against a judgment of a Division Bench of the Madras High Court dated April 1(}, 1950, by which the learned Judges found the appellant guilty of contempt of court and sentenced him to serve simple imprisonment .for three months.

The appellant is the publisher and managing editor of a Telugu Weekly known as "Praja. Rajyam" which is edited and published at Nellore in the State of Madras. In the issue of the said paper dated 10th February, 1949, an article appeared under the caption "Is the Sub-Magistrate, Kovvur, corrupt?" The purport of the article was that Surya Narayan Murthi, the stationary Sub-Magistrate of Kovvur, was known to the people of the locality to be a bribe taker and to be in the habit of harassing litigants in various ways.

He was said to have a broker, through whom negotiations in connection with these corrupt practices were carried on.

Several specific instances were cited of cases tried by that officer, where it was rumoured that he had either taken bribes or had put the parties to undue harassment, because they were obdurate enough to refuse the demands of his broker. The article, which is a short one, concludes with the foHowing paragraph:-

"There are party factions in many villages in Kovvur Taluk.

Taking advantage of those parties many wealthy persons make attempt to get the opposite party punished either by giving bribes or ma:king recommendations.

To appoint Magistrates who run after parties for a Taluk like this .... is to betray the public.

It is tantamount to failure of justice. Will the Collector enquire into the matter and allay the public of their fears?"

' .

' .

,. .

The attention of the State Government being drawn to this article, an application was filed by the Advocate.

General of Madras before the High Court on November 14, 1949, under section 2 of the Omtempt of Courts Act (Act XII of

1926) praying that suitable action might be taken against the appellant as well as three other person~ of whom two were respectively the editor and sub-editor of the paper, while the third was the owner of the Press where the paper was printed.

On receiving notice, the appellant appeared before the High Court and filed an affidavit taking sole responsibility for the article objected to and asserting that the article was published beause of his anxiety to uphold the highest traditions of the judiciary in the land and to create popular .confidence in courts, the duty of which was to dispense justice without fear or favour and without any discrimination of caste, creed or community. It was said that before the article was published, numerous complaints had reached him from various quarters imputing corruption and disreputable conduct to this Magistrate and the only desire of the appellant was to draw the attention of the higher authorities to the state of public opinion in the matter and to invite an enquiry into the truth or otherwise of the allegations which were not asserted as facts but were based only on hearsay.

The High Court after hearing the parties came to the conclusion that the publication in question did amount to contempt of court, as it was calculated to lower the prestige and dignity of courts and bring into disrepute the administration of justice. As the appellant was not prepare8 to substantiate the allegations which he made and which he admitted to be based on hearsay and did not think it proper even to express any regret for what he had done, the court sentenced him :to simple imprisonment for three months.

The other three respondents, through their counsel, tendered unqualified apology to the courr and the learned Judges considered that no further action against them was necessary.

Bathina Ramakrishna Reddy v.

The State af

Madras.

Mukherjea /.

Bathina Ram~ krishna Reddy

The Staie of Madras.

Muk herjea /.

' [19521 ! . ' .

The propriety of the decision of the High Coun. so far as it relates to the appellant has been challenged before us in this appeal and Mr. Sinha, who appeared in support of the same, raised before us a two.fold contention; his first and main contention is that as the. contempt in this case was said to have been comml.tted in respect of a court subordinate to the High Court and the allegations made in the article in question constitute an offence under section 499 of the Indian Penal Code, the jurisdiction of the High Court to take cognizance of such a case is expressly barred under section 2(3) of the Contempt of Courts Act. The other contention advanced by the learned counsel relates to the merits of the case and it is urged that in publishing the article objected to, the appellant acted in perfect good faith, and as the article amounted to nothing else but a demand for enquiry into the conduct of a particular person who was believed to be guilty of corrupt practices in the discharge of his judicial duties,. there was no contempt of court either intended or committed by the appellant.

So far as the first point is concerned, the determination of the question raised by the appellant would

.,... .

depend upon the proper interpretation to be put upon • • section 2(3) of the Contempt of Courts Act which runs as follows :-

"No High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where s_uch contempt is an offence punishable under the Indian Penal Code."

According .to Mr .. Sinha, what the sub-section means is that if the act by which a , party is alleged to have committep contempt of a subordinate court constitutes offence of any description whatsoever punisbable under the Indian Penal Code, the High Court is precluded from taking cognizance of it. It is said that in the present case the allegations made in te article in question amount to an offence of defamation as defined by section 499 of the Indian Pelial Code . and consequently the jurisdiction of the High Court is barred.

Reliance

is placed in support of this proposition upon the decision of the Nagpur High Court in Kz'san Krifhna Ji v.

Nagpur Conference of Society of St. Vincent de Paul(1).

This contention, though somewhat plausible at first sight, does not appear to us to be sound. In our opinion, the sub-section referred to above excludes the jurisdiction of High Court only in cases; where the acts alleged to constitute contempt of a subordinate court are punishable as contempt under specific provisions of the Indian Penal Code but not where these acts merely amount to offences of other description for which punishment has been provided for in the Indian Penal Code.

This would be clear from the language of the sub-section which uses the words "where such contempt is an offence" and does not say "where the act alleged to constitute such contempt is an offence".

It is argued that if such was the intention of the Legislature, it could have expressly said that the High Court's jurisdiction will be ousted only when the contempt is punishable as such under the Indian Penal Code. J t seems to us that the reason for not using such language in the sub-section may be that the expression "contempt of court" has not been used as description of any offence in the Indian Penal Code, though certain acts, which would be punishable as contempt of court in England, are made offences under it.

It may be pointed out in this connection that although the powers of the High Courts in India esta blished under the Letters Patent to exercise jurisdiction as Superior Courts of Record in punishing contempt of their authority or processes have never been doubted, it was a controversial point prior to the passing of the Contempt of Courts Act, 1926, as to whether the High Court could, like the Court of King's Bench in England, punish contempt of courts subordinate to it in exercise of its inherent jurisdiction.

The doubt has been removed by Act XII of 1926 which expressly declares the right of the High Court to protect subordinate courtq against contempt, but

(l) (1943) A.LR. 1943 Nag. 334. 5- S C. lndia/71

19.52

Batlzioa Ram11krishna Reddy v.

The State of Madras.

Bathina Ratna- Jtrishna Reddy

The State of Madras.

subject to this restriction, that cases of contempt which have already been provided for in the Indian Penal Code should not be taken cognizance of by the High Court.

This seems to be the principle underlying section 2(3) of the Contempt of Courts Act.

What these cases are need not be exhaustively determined for purposes of the present case, but some light is undoubtedly thrown upon this matter by the provision of section 480 of the Criminal Procedure Code, which empowers any civil, criminal or revenue court to punish summarily a person who is found guilty of committing any offence under sections 176, 178, 179, 180 or section 228 of the Indian Penal Code in the view or presence of the court. We are not prepared to say, as has been said by the Patna High Court in /nanendra Pro1ad v. Gopal('), that the only section of the Indian Penal Code which deals with contempt committed against a court of justice or judicial officer is section 228. Offences under sections 175, 178, 179 and 180 may also, as section 480 of the Criminal Procedure Code shows, amount to contempt of court if the "public servant" referred to in these sections happen& to be a judicial officer in a particular case. It is well known that the aim of the contempt proceeding is "to deter men from offering any indignities to a court of justice" and an essential feature of the proceeding is the exercise of a summary power by the court itself in regard to the delinquent. In the cases mentioned in section 480 of the Indian Penal Code, the court has been expressly given summary powers to punish a person who is guilty of offending its dignity in the manner indicated in the section. The court is competent also under section 482 of the Criminal Procedure Code to forward any case of this description to a Magistrate having jurisdiction to try it, if it considers that the offender deserves a higher punishment than what can be inflicted under section 480.

Again, the court is entitled under section 484 to discharge the offender on his submitting an apology, although it has already adjudged him to punishment under acction 480

(I) J.L.R. 12 Pat. l?l.

.. >,

S.C.R.

SUJ>REME COURT REPORTS 431

or forwarded his case for trial under section 482.

The mode of purging contempt by tendering apology is a further characteristic of a contempt proceeding.

It seems, therefore, that there are offences which are punishable as contempt under the Indian Penal Code and as subordinate courts can sufficiently vindicate their dignity under the provisions of criminal law in mch cases the legislature deemed it proper to exclude them from the jurisdiction of the High Court under section 2(3) of the Contempt of Courts Act; but it would not be correct to say that the High Court's jurisdiction is excluded even in cases where the act complained of, which is alleged to constitute contempt, is otherwise an offence under the Indian Penal Code.

This view has been taken and, in our opinion quite rightly, in a number of decisions by the Calcutta,(1) Patna,(2) Allahabad(3 ) and Lahore(') High Courts. The only authority which Mr. Sinha could cite in support of his contention is the decision of the Nagpur High Court in Ki.ran Krishna Ii v.

Nagpur Conference of Society of St.

Vincent de Pau/(6). The authority is undoubtedly in his favour as it proceed5 upon the assumption that the idea underlying the provision of section 2(3) of the Contempt of Courts Act is that if a person can be punished by some other tribunal, then the High Court should not entertain any proceeding for contempt.

It is to be noticed that the learned Judge, who decided this case, himself took the opposite view in the case of Subordinate fudge, First Class, Hoshangabad v. fawaharla/( 8 ) and definitely held that the prohibition contained in section 2(3) of the Contempt of Courts Act refers to offences punishable as contempt of court by the Indian Penal Code and not to offences punishable otherwise than as contempt.

This decision was neither noticed nor dissented from in the subsequent case, and it is quite possible that

(1) Narayan Chandra v. Panchu Pramanik (A.LR. 1935 Cal. 684); N, msh Kumar v. Umaromal (A.LR. 1951 Cal. 489).

(2) Kaulashia v. Emperor (12 Pat. 1).

(3) State v. Brahma Prakash (A.I.R. 1950 All. 556); Emperor v. fagannatll (A.I.R. 1938 All. 358).

(4) Bennett Coleman v. G. S. Monga (I.L.R. 1937 Lah. 34),

(5) A.LR. 1943 Nag. 334. ( 6) A.LR. 1940 Nag. 407.

Bathina Rama krishna Reddy v. 1' he State of Madras.

Mukheriea /.

Bathina Ramakrishna R<ddy

Th• Stat• of Madras.

Mukh.rj•a /.

the attention of the learned judge was not drawn to this earlier pronouncement of his, in which case the matter would certain! y have been more fully discussed. We think further that the decision of the Calcutta High Court in V. M. Bason v. A.H. Skone,(') which was the basis of the decision of the learned Judge in the subsequent case does not really support the view taken in it. In the Calcutta case what happened was, that a clerk of the Attorney, who appeared for the respondent decreeholder, went to serve a notice under Order 21, Rule 37 ( 1), of the Civil Procedure Code upon the appellant judgment-debtor. The judgmentdebtor refused to take the notice and abused and assaulted the Attorney's clerk.

Upon that, contempt proceedings were started against him and , Mr. Justice C. C. Ghosh, sitting on the Original Side of the High Court of Calcutta, held the appellant guilty of contempt and fined him Rs. 200. On appeal, this judgement was affirmed by the appellate Bench and there was a general observation made by Chief Justice Sanderson at the close of his judgment that it is not desirable to invoke the special inherent jurisdiction of the High Court by way of proceeding for contempt if ordinary proceedings in a Magistrate's court are sufficient to meet the requirements of a case. This was not a case under section 2(3) of the Contempt of Courts Act at all and no question either arose or was decided as to whether if an act is otherwise punishable as an offence under the Indian Penal Code the jurisdiction of the High Court' under that section would be ousted.

Undoubtedly the High Court had jurisdiction in that case and whether such jurisdiction, which is certainly of a special character and is exercised summarily, should be called in to aid in the circumstances of a particular case would depend upon the discretion of the court. This has, however, no bearing on the point that has arisen for consideration before us. We would hold, therefore, that the right view was taken by the learned Judge of the Nagpur High Court in the earlier case and not in the later one.

. ( 1) 1.L.R. 53 Cal. 40 l.

-.. ·.

•.f

~ .

•;.'

.,. .,. '

S.C.R.

SUPRE!-.~E COURT REPORTS 433

It is next urged by Mr. Sinha that even assuming that this view is correct, the language of section 499 of the Indian Penal Code is wide enough to cover a case of contempt of court.

What is said is, that if a libel is published against a judge in respect of his judicial functions, that also is defamation within the meaning of section 499 of the Inian Penal Code and as such libel constitutes a contempt of court, it may be said with perfect propriety that libel on a judge is punishable as contempt under the Indian Penal Code.

We do not think that this contention can be accepted as sound.

A libellous reflection upon the conduct of a judge in respect of his judicial duties may certainly come under section 499 of the Indian Penal Code and it may be open to the judge to take steps against the libeller in the ordinary \Vay for vindication of his character and personal dignity as a judge; but such libel may or may not amount to contempt of court.

As the Privy Council observed in Surendra Nath Benerjee v. Tlze Chief Justice and Judges of the High Court(1) "although contempt may include defamation, yet an offence of contempt is something more than mere defamation and is of a different character." When the act of defaming a judge is calculated to obstruct or interfere with the due course of justice or proper administration of law, it would certainly amount to contempt.

The offence of contemp~ is really a wrong done to the' public by weakening the authority and influence of courts of law which exist for their good.

As was said by Willmot, C.J.( 2 ) "attacks upon the judges excite in the minJs of the people a general dissatisfaction with all judicial determinations ...... and whenever man's allegiance to the laws is so fundamentally shaken it is the most fatal and dangc;:rous obstruction of justice and in my opinion calls out for a more rapid and immediate redress than any other obstruction whatsover; not for the sake of the judges as private indi1•iduals but because they are the channels by which the King's justice is conveyed to the people".

(1) I.L.R. 10 Cal. 109 at 131.

(2) Willmot's Opinions page 256: Ro: v. Davies 30 at p. 40-41.

Bathina Ramakrishna Reddy

The State of

Madras.

Mukherjea /.

Bathina Ram•· fc.rishna Reddy

The State of Madras.

What is made punishable in the Indian l'enal Code is the offence of defamation as defamation and not as contempt of court. If the defamation of a subordinate court amounts to contempt of court, proceedings can certainly be taken under section 2 of the Contempt of Courts Act, quite apart from the fact that other remedy may be open to the aggrieved officer under section 499 of the Indian Penal Code. But a libd attacking the integrity of a judge may not in the cir: cumstances of a particular case amount to a contempt at all, although it may be the subject-matter of a libel proceeding. This is clear from the observation of the Judicial Committee in the case of The Matter of a Special Reference from the Bahama Islands(').

The first contention of Mr. Sinha, therefore, fails.

The second point raised by the learned counsel does not appear to us to have any real substance. The article in question is a scurrilous attack on the integrity and honesty of a judicial officer.

Specific instances have been given where the officer is alleged to have aken. bribes or behaved with 'impropriety to the litigants who did not satisfy his clishonest demands.

If the allegations were true, obviously it would be to the benefit of the public to bring these matters into light. But if they were false, they cannot but undermine the confidence of the public in the administration of justice and bring judiciary into disrepute.

The appelhnt, though he took sole responsibility regarding the publication of the article, was not in a position to substantiate by evidence any of the allegations made therein.

He admitted that the statement was based on hearsay.

Rumours may have reached him from various sources, but before hr published the article it was incumbent upon him as a reasonable man to attempt to verify the informations he received and ascertain, as far as he could, whether the facts were true or mere concocted lies.

He does not appear to have made any endeavour in this direction.

As the appellant did not act with reasonabk care and caution, he cannot be said to have act:erl

Cl) fl 8931 A.C. 138.

.. .. ~

... ' .

bona fide, even if good faith can be held to be a defence

at all in a proceeding for contempt.

What is more, he did not express any regret for what he had done either in the High Court or before us and his behaviour Joes not show the least trace of contrition. In these circumstances, we think that the appeal cannot succeed and must be dismissed.

Appeal dismissed.

Agent for the appelliant : S. Subrahmanyam.

Agent for the respondent : P. A. Mehta.

KATHI RANING RAWAT

ti.

THE STATE OF SAURASHTRA

[PATANJALI SASTRI c. J.,

FAZL ALI, MEHAR CHAND

~1h.IHJAN, MuKERJEA, DAs, CHANDRASEKH., RA

A1Y AR and VIVIAN BosE JJ.]

Saurasiitra State Public Safety (Third Amendment) Orditzanu (LXVI of 1949), ss. 9, 10, 11-Law empowering State to constitute Special Court,· to try special classe . .- of ofjences-Constittttional 11alidity-Contraventio11 of fundamental rig/it to equal protection of

laws-Essntiais of valid clas.<ifimtion-I>c:legation of legislative powers--r:omritutio11 of lndia, .1rts. 13, 14.

The Saurashtra State Public Safety .Measnrcs Ordinance, 19-18, was p~5'ed "to provide for pul1lic safety, maintenance of public order and preservation of peace and tranquillity in the State of Saurashtra." As crimes involving violence such as dacoity and murder were increasing, this Ordinance was amended by the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949, which, by secs. 9, JO and 11, empowered the State Government hy notification in the official gazette to constitute Special Courts of criminal jurisdiction for such ,1rea as may he specified in the notification, to appoint Special fudges to prc, ide over such Conrts and to invest them with jurisdiction to try such offences or classes of offences or such cases or classes of cases as the Government may, by general or special order in writing, direct.

The procedure laid down by

Bathina Ramtt krishna Reddy

The State of

Madras:.

1952 p,,,. 27.

425

BATHINA RAMAKRISHNA REDDY

THE STATE OF MADRAS

PATANJALI SASTRI

MEHR CHAND MAHAJAN

DAs

AIYAR JJ.

Contempt of Courts Act

s. 2(3)

Penal Code

s. 499

Penal Code

Contempt of Courts Act

section 2

Contempt of Courts Act, 1926

Indian Penal Code

Indian Penal Code

sec. 499

Indian Penal Code

High Court of Madras

Rajamannar C.

Balakrishna Ayyar

S. P. Sinha

S. S. Prakasam

R. Ganapathy Iyer

MuKIIERJEA

Praja. Rajyam

Nellore

Madras

10th February, 1949

Sub-Magistrate, Kovvur

Surya Narayan Murthi

Kovvur

Kovvur Taluk

November 14, 1949

section 2

Bathina Ram~ krishna Reddy

Sinha

section 499

Indian Penal Code

section 2(3)

Contempt of Courts Act

section 2(3)

Contempt of Courts Act

Indian Penal Code

Indian Penal Code

section 499

Nagpur High Court

Indian Penal Code

Indian Penal Code

Indian Penal Code

Indian Penal Code

England

India

Contempt of Courts Act, 1926

Bathina Ratna- Jtrishna Reddy

State of Madras

Indian Penal Code

section 2(3)

Contempt of Courts Act

section 480

sections 176, 178, 179, 180

section 228

Indian Penal Code

Patna High Court

Indian Penal Code

section 228

sections 175, 178, 179 and 180

section 480

section 480

Indian Penal Code

section 482

section 480

section 484

section 482

Indian Penal Code

section 2(3)

Contempt of Courts Act

Indian Penal Code

Calcutta,(1) Patna,(2

Lahore

section 2(3)

Contempt of Courts Act

section 2(3)

Contempt of Courts Act

Indian Penal Code

Bathina Ramakrishna R

Calcutta High Court

Calcutta

Order 21, Rule 37

C. C. Ghosh

High Court of Calcutta

Sanderson

section 2(3)

Contempt of Courts Act

Indian Penal Code

section 499

Indian Penal Code

section 499

Penal Code

Indian Penal Code

section 499

Indian Penal Code

Willmot

Willmot

Bathina Ramakrishna Reddy

State of

Madras

Bathina Ram•

State of Madras

section 2

Contempt of Courts Act

section 499

Indian Penal Code

Bahama Islands

S. Subrahmanyam

P. A. Mehta

KATHI RANING RAWAT

STATE OF SAURASHTRA

FAZL ALI

MEHAR CHAND

IHJAN

MuKERJEA

CHANDRASEKH

RA

A1Y AR

VIVIAN BosE

ss. 9, 10, 11

Saurashtra

Bathina Ramtt krishna Reddy

State of

Madras