Lilai'ali Baj

Tk Stole ef

llomba;

Sin.ha J~

March 7.

SUPREME COURT REPORTS

the order impugned.

Hence in the instant case there is no need to apply the rule of conclusive proof as laid dmrn in sub-s.(2) of s. 13.

In any event, as the concluding words of the section have provided, any irregularity or failure to comply with the requirements of the section cannot "affect the validity of the order".

As all the g, rounds urged in support of the petitions fail, they are dismissed with costs, one set.

Petitions dismissed.

SOHANLAL

THE UNION OF INDIA

( BHAGWATI, jAGANNADHADAs, ]AFER IMAM, Gov1NDA

MENON and J. L. KAPUR JJ.)

Jl'rit f mandamus-Disputed qulstions of fact and !aw- Disf,11!e rrgarding tit/e-T11hether ronrf£1' by U!~Y of writ approj1riate -l1.litt! writ can issue to private iu_dividual-~S'tate illegally evicting jJtrso11 fronl house-.A1wther person takzug possession bona fide u:ithout !:11ou1/edge qf illegal eviction-r11hether ivrit can t"ssue against such j; enon-Consti!ution f India, Art. 226 . .J, a displaced person, "'as.found /1ri1nafacie entitled to allotment of~. house and the Accomn1odtion Officer moved his family into the house on I\1ay 10, 1952, but no letter of allotment ,\as issued to him.

Later, ,\hen certain facts became knc\vn which in tht" opinion of the Union of India disentitlcd J to the allotment, he "as informf'"<l that the house could not be allotted to him.

J \vas c, icted fr01n the house on September 27, 1952, ,...,.ithout being gi, en 1 s days notice as reqnircd hy s. 3 of the Public Premise-; Eviction Act (XXVII of i950). fhe house \Vas then allotted to S and he \\as given possession on October 3, 1952. J filed a petition under Art. 226 of the Constitution in the High Court. The High Court ordered the Union of India and also S to restore possession of the house to J. S appealed.

He!d, that the High Court erred in issuing the writ of

.111a1; da1nus.

There ,\as a secious dispute on questions of fact bet\veen the paTties and also 'vhether J had acquired any title to the property in dispute.

Proceedings by \vay of a \\Tit \\'ere not approp1iate in ;"J. case \\here the decision of the Cou;:t \Yould amount to a decree declaring a party's title and ordering restoration of poss:!ssl.nn. The proper remedy in such a case is by \\'ay 'of a title suit in 'A Civil (:011rt.

The alternati\-e remdy of obtaining relief by a

~...,,.., \Vrit of nzandarnus or an oider in the nature of 1nandamur could 1955

J only be had if the facts we; c not in dispute and the title to the . property in dispute was clear.

Solian Lalv. .

L\s the eviction of J was illegal on account of the fai.lure to TM Union. of lfulia give him notice under s. 3 of the Public Pren1ises Eviction Act a \Vrit of 1nanda1nus might have issued to the Union if the property had still been in its possession.

But no such \'vTit could issue to S as, normally, it does not issue to a private individual.

If it had been proved that the Union and S had colluded, and the transC action betvveen them vvas merely colourable, entered into \Vith a view to deprive J of his rights, jurisdiction to issue the \Yr.it might

be said to exist in the Court. The \Vrit ho\\'CVer could not issue to S 'vho had, apparently, entered into bona fide pOssession Of the house without knowledge that J had been illegally evicted

~"'I therefrom.

R. v. Chester Co1poration (1855) 25 LJ.Q.B. 6r, applied.

CIVIL APPELLATE JURISDICTION: Civil Appeal NO• 132 of 1954

Appeal by special leave from the judgment and order dated April 30, I 953, of the Circuit Bench of the Punjab High Court at Delhi in Civil Writ Application No. 3I4 of I952.

Ram Lal Anand and S. N. Anand, for the appellant.

R. Ganpathy Iyer and R. H. Dhebar, for respondent

~,. - No. 1.

A. N. Grover and K. L. Mehta, for the respondent No. 2.

I957 March 7. The Judgment of the Court was delivered by IMAM ].-The respondent Jagan Nath filed a petition under Art. 226 of the Constitution in the Punjab High Court which was allowed.

The High Court ordered the re.-.pondent The Union of India and the appellant Sohan Lal to forthwith restore possession of house No. 35 situated in \'Vest Patel Nagar, Delhi to ~- Jagan Nath.

Against this order of the High Court the ' appellant applied for and obtained special leave to appeal to this Court.

}Q.gau Nath is a displaced person ad a refugee fom Pakistan. The Government of India had devised various s<; hemes for the rehabilitation of refugees. One

1957 of these was a scheme for sale of certain houses con-

Sohan Lal structed by the Government of India for refugees in v, West Patel Nagar.

It was not intended under the Unfon of India J • j' fj d' J d _ sc 1eme to entertam app 1cat10ns rom 1sp ace persons

Imam J. who had already been allotted agricultural land in East Punjab.

A limited number of houses known as "box-type tenements" were constructed.

According to the procedure prescribed in order to give effect to the scheme, only those displaced persons, who were registered before the 15th of August, 1948, and were gainfully employed, were eligible for allotment of a house.

A displaced person wishing to apply for allotment of a house was required to submit an application in the prescribed form offering to purchase a house in West Patel Nagar. If the applicant was prima facie eligible, he could be instructed to deposit the sale price of the house in the treasury, his eligibility to be verified later on.

Permission to deposit the sale price did not mean that his eligibility had been accepted.

After payment of the sale price the applicant could be required to produce proof of his eligibility.

A list would be prepared of all the applicants who had deposited the sale price and whose eligibility had been verified. If the number of the applicants was in excess of the available number of houses, those, whose treasury challans bore a later date, would be excluded and their money refunded.

The applicants whose names were included in the final list would be required to pay the ground rent by a specified date.

A particular house would be allotted to an applicant by drawing lots.

Jagan Nath had got himself registered as a refugee on December 31,

1947.

He had made his application in the prescribed form.

He had deposited the sum of Rs. 5,600 as the sale price after his prima facie eligibility had been accepted.

He had also deposited the ground rent for the plot on which the house had been built, having been informed previously that it had been decided to allot him a two-roomed enclosed verandah "box-type" house in \\'est Patel Nagar.

He was informed that the allotment of a particular house whould be decided by drawing lots at site on February 15, 1952, at 3 p.m.

As the result of the drawing of lots, house No. 35, the

property in dispute in this appeal, fell to his lot. 1957 According to Jagan Nath, on May 10, 1952, the Aecom- Sa/ran Lal modation Officer in his absence removed the members Tiu u . v. {Ii d' of his family along with his entire belongings to the no n "' house in dispute in a truck and he and his family thus Imam]. entered into possession of the house in dispute. Jagan Nath, however, was evicted from the house in dispute on September 27, 1952, by virtue of a warrant of eviction dated September 11, 1952, purporting to have been issued under s. 25 of Ordinance III of 1952.

After his eviction, possession of the house in dispute was given to the appellant on October 3, 1952. The appellant, who is also a displaced person, had applied on February 27, 1952, for allotment of a house in West Patel Nagar. He had made the deposit of Rs. 5,600 as sale price and had apparently complied with all the necessary conditions for allotment of a house to him and the house in dispute was allotted to him on July 31, 1952. The appellant has been in possession of the disputed house since October 3, 1952.

The appellant's main contention has been that, having regard to the circumstances of the case, the High Court erred in making the order it 'did which presumably purported to be in the nature of a writ of mandamus.

There was a serious dispute on quc5tions of fact between the parties and also whether .J agan Nath had acquired in law any title to the property in dispute.

Proceedings by way of a writ were not appropriate in a case where the decision of the Court would amount to a decree declaring Jagan Nath's title and ordering restoration of possession.

The proper remedy open to Jagan Nath was to get his title declared in the ordinary way in a Civil Court.

The alternative remedy of obtaining relief by a writ of mandamus or an order in the nature of mandamus could only be had if the facts were not in dispute and .Jagan Nath's title to the property in dispute was clear.

It was further contended on behalf of the appel-. lant that a writ of mandamus or an order in the nature of mandamus could not be made against the appc:llant, a private individual.

He had come into awful possession and there was no evidence of collusion

The

1957 between him and the Union of India and there was no

Soh'n Loi finding by the High Court that the appellant had acted '"· in collusion with the Union of India as a result of Union of India which Jagan Nath was dispossessed of the propeny in

Imam J. dispute and the same was allotted to him.

On behalf of Jagan Nath, it was urged that when he entered into possession of the property in dispute he did not do so as a trespasser.

He had been inducted on the property by the Accommodation Officer. He could not have been illegally evicted. S. 3 of the Public Premises (Eviction) Act, 1950 (Act No. XXVII of 1950), required a notice to be served upon him directing him to vacate the premises within 15 days from the date of the service of the notice upon him before he could be evicted.

This was not done and he had been evicted without complying with the mandatory provisions of s.3 of the said Act.

His eviction was a high-handed act of the Government without any legal justification whatsoever.

The' Union of India which had illegally evicted him should be ordered to restore possession of the property in dispute to him and as the eviction was at the instance of the appellant, he should also be directed to restore possession of the said property to Jagan Nath.

Reliance was placed upon certain decisions of the High Courts of Punjab in K/zuslzal Singh v. Shri Rameshwar Dayal, Deputy Commissioner, Delhi('), Hyderabad in G. Kistareddy v. Commr. f City Police, Hyderabad(') and Pepsu in lv!ohinder Singh v. State ef Pepsu('), as well as certain observations in the judgment of this Court in the case of TVazir Chand v. The State of Himachal Pradesh(') in support of the proposition that, as Jagan Nath was in possession and he had been illegally evicted, he was entitled to have property, from which he had been illegally evicted, restored to him.

vVe do not propose to enquire into the merits of. the rival claims of title to the property in dispute set up by the appellant and Jagan Nath. Ifwe were to do so, we would be entering into a field of investigation which is more appropriate for a Civil Court in a properly constituted suit to do rather than for a Court exercising

(1) I. L. R. [1954] Punjab211.

(2) A. I. R. [1952] Hydt:rabad 36.

(3) A. I. R. [1955] Pcpsu 60.

(4) [1955] I s. c. R. 4o8.

the prerogative of issuing writs. There are questions 1957 of fact and law which are in dispute requiring determi- Sohan Lal nation before the respective claims of the parties to . v. ,__,. l 1 b d "d d B r h • The Union of inura t 11s appea can e ec1 e . e10re t e property m _ dispute can be restored to Jagan Nath it will be neces- Imam]. sary to declare that he had title in that property and was entitled to recover possession of it.

This would in effect amount to passing a decree in hi~ favour.

In the circumstances to be mentioned hereaher, it is a matter for serious consideration whether in proceedings under Art. 226 of the Constitution such a declaration ought to be made and restoration' of the property to Jagan Nath be ordered.

Jagan Nath had entered into a transaction with the Union of India upto a certain stage with respect to the property in dispute, but no letter of allotment had been issued him.

Indeed, he had been informed, when certain facts became known, that the property in question could not be allotted to him as he was a displaced person who had been allotted land in East Punjab.

As between Jagan Nath and the Union of India it will be necessary to decide what rights were acquired by the former in the property upto the stage when the latter informed Jagan Nath that the property would not be allotted to him.

Another question for decision will be whether Jagan Nath was allowed to enter into posses<ion of the property because it was allotted to him or under a misapprehension as the Union of India was misled by the contents of his application.

The case of the Union of India is that under the scheme Jagan Nath was not eligible for allotment of a house in West Patel Nagar, as it was subsequently discovered that he had been allotted, previous to his application, agrkultural land in the District of Hissar. Being satisfied that Jagan Nath was not eligible for allotment, the Union of India refused to allot to him the tenement No. 35, VVest Patel Nagar and allotment of that house was made to the appellant who was found to be eligible in every way. The appellant was accordingly given possession of the property after Jagan Nath's eviction. The appellant had complied with all the conditions imposed by

l957 the Union of India and a letter of allotment was

So/ran Lal actually issued to him and he entered into possession

T '- ,; .v. if in11 of the property in dispute under the authority of the

, e unwn o

10 U . f I d.

D"d h - mon o n ia. 1 t e appellant thereby acquire a Imam]. legal right to hold the property as against Jagan Nath?

In our opinion, all these questions should be decided in a properly constituted suit in a Civil Court rather than in proceedings under Art. 226 of the Constitution.

The eviction of Jagan Nath was in contravention of the express provisions of s. 3 of the Public Premises

(Eviction) Act. His eviction, therefore, was illegal. He was entitled to be evicted in due course of law and a writ of mandamus could issue to or an order in the nature of mandamus could be made against the Union of India to restore possession of the property to J agan Nath from.which he had been evicted the property was still in the possession of the Union of India. The property in dispute, however, is in possession of the appellant. There is no evidence and no finding of the High Court that the appellant was in collusion with the Union of India or that he had knowledge that the eviction of Jagan Nath was illegal.

Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual.

Such an order is made against a person directing him to do some particular thing, specified in the order, which appertains to his office and is in the nature of a public duty (Halsbury's Laws of England Vol. 11, Lord Simonds Edition, p. 84). If it had been proved that the Union of India and the appellant had colluded, and the transaction between them was merely colourable, entered into with a view to deprive Jagan Nath of his rights, jurisdiction to issue a writ to or make an "order in the nature of mandamus against the appellant might be said to exist in a Court.

We have not been able to find a direct authority to cover a case like the one before us, but it would appear that so far as election to an office is concerned, a mandamus to restore, admit, or elect to an office will not be granted unless the office is vacant. If the office is in fact full, proceedings must be taken by way of injunction or election petition to oust the party in

possession and that a mandamus will go only on the 19.57 supposition that there is nobody holding the office in Sohan Lal question.

In R. v. Chester Corporation(') it was held ... ._ " . v. if •-J h • • • fl "bl 1 f 1 h h , ne vnwn o ""''o t at It IS an m exi e ru e o aw t at w ere a person - has been de facto elected to a corporate office, and has Imam]. accepted and acted in the office, the validity of the election and the title to the office can only be tried by proceeding on a quo warranto information.

A mandamus will not lie unless the election can be shown to be merely colourable. We cannot see why in principle there should be a distinction inade between such a case and the case of a person, who has, apparently, entered into bona fide possession of a property without knowledge that any person had been illegally evicted therefrom.

In our opinion, the High Court erred in allowing. the application of Jagan Nath filed under Art. 226 of the Constitution and making the order it did. The appeal is accordingly allowed and the order of the High Court is set aside.

In the circumstances of the present case, however, we are of the opinion that each party should bear his own costs in this Court and in the High Court.

Appeal allowed.

THE STATE OF BOMBAY

SALAT PRAGJI KARAMSI

(BHAGWATI, ]AGANNADHADAS, jAFER IMAM, GOVINDA MENON and ]. L. KAPUR JJ.)

Application f Laws-Law of one St11te made applicable t1 another State-When comes into force-Adaptations-Words "shall be construed as"-Meaning ef-Br•mbay Prevention ef Gambling Act (Born. IV of 1887), s. I-Kutch (Application of Laws) Order, 1949

By cl. 3 of the Kutch (Application of Laws) Order, 1949 the Bom?ay Prevention of Gambling Act (Born. IV of 1887) was ade applicable to Kutch.

Clause 4 of the Order provided that the Acts applied to Kutch by the Order "shall be construed" as if

(1) [1855] 25 L.J. Q. B. 6J (Regina v. Chester, Mayor, etc.)

Marth 1.

s. 13

SOHANLAL

THE UNION OF INDIA

BHAGWATI

jAGANNADHADAs

AFER IMAM

MENON

L. KAPUR JJ.

Art. 226

s. 3

Art. 226

Solian Lalv

s. 3

Ram Lal Anand

S. N. Anand

R. Ganpathy Iyer

R. H. Dhebar

A. N. Grover

K. L. Mehta

Jagan Nath

Art. 226

Punjab High Court

Sohan Lal

Jagan Nath

Q.gau Nath

Government of India

Sohan Lal

Imam

East Punjab

15th of August, 1948

December 31,

1947

February 15, 1952

May 10, 1952

September 27, 1952

September 11, 1952

s. 25

October 3, 1952

February 27, 1952

July 31, 1952

agan Nath

.Jagan Nath

Union of India

Soh'n Loi

S. 3

High Courts of Punjab

Art. 226

Hissar

Art. 226

s. 3

J agan Nath

Art. 226

STATE OF BOMBAY

SALAT PRAGJI KARAMSI

BHAGWATI

AGANNADHADAS

jAFER IMAM

GOVINDA MENON

L. KAPUR

Prevention ef Gambling Act

cl. 3

Prevention of Gambling Act

Clause 4


S.C.R.

SUPREME COURT REPORTS 745

possession and that a mandamus will go only on the 19.57 supposition that there is nobody holding the office in Sohan Lal question.

In R. v. Chester Corporation(') it was held ... ._ " . v. if •-J h • • • fl "bl 1 f 1 h h , ne vnwn o ""''o t at It IS an m exi e ru e o aw t at w ere a person - has been de facto elected to a corporate office, and has Imam]. accepted and acted in the office, the validity of the election and the title to the office can only be tried by proceeding on a quo warranto information.

A mandamus will not lie unless the election can be shown to be merely colourable. We cannot see why in principle there should be a distinction inade between such a case and the case of a person, who has, apparently, entered into bona fide possession of a property without knowledge that any person had been illegally evicted therefrom.

In our opinion, the High Court erred in allowing. the application of Jagan Nath filed under Art. 226 of the Constitution and making the order it did. The appeal is accordingly allowed and the order of the High Court is set aside.

In the circumstances of the present case, however, we are of the opinion that each party should bear his own costs in this Court and in the High Court.

Appeal allowed.

THE STATE OF BOMBAY

SALAT PRAGJI KARAMSI

(BHAGWATI, ]AGANNADHADAS, jAFER IMAM, GOVINDA MENON and ]. L. KAPUR JJ.)

Application f Laws-Law of one St11te made applicable t1 another State-When comes into force-Adaptations-Words "shall be construed as"-Meaning ef-Br•mbay Prevention ef Gambling Act (Born. IV of 1887), s. I-Kutch (Application of Laws) Order, 1949

By cl. 3 of the Kutch (Application of Laws) Order, 1949 the Bom?ay Prevention of Gambling Act (Born. IV of 1887) was ade applicable to Kutch.

Clause 4 of the Order provided that the Acts applied to Kutch by the Order "shall be construed" as if

(1) [1855] 25 L.J. Q. B. 6J (Regina v. Chester, Mayor, etc.)

Marth 1.

The State of

B<tmbqy

Sa/at Prag; i

Karam.si

Kaµ, r J.

references therein to the <:l.uthorities and territories \Vere references to the authorities and territories of Kutch as set out in that clause. 'I'he \Vord~ "shall be construed as" mean "shall be read as" and consequently wherever in the Bombay Act the \YOrds

"Provincial Government" or "Govern1nent" are used, they have to be r:':ad as "Chief Con1missioner of f(utch", and :he words "Province or the Presidency of Bombay" <.:.s "Kutch or any part thereof". So understood, S.

I of the Bombay Act :i.s

pplied to J(utch provided that all or any of thC" provisions of thv.t .<\ct n1ay be extended frorn time to time by the Chief Co1nrnissioncr of Kutch by ::in order published in the Official Gazette to any local area in Kutch or any part thereof. 'fhc. contenti11a that the Bombay Act had been validly exrend<:d to and ".<!." in force in the 'vhole of Kutch because of the J(utch (A.pplication of Lavvs) Order, r949, is not sound. The true position is that the whole of the Act in::luding amended s.

I beca1ne applicable to Kutch and, therefcJre, a notirication \Vas nl'.:'ccssary before it could be br0ught into force in any part of l(utch. 1'hc Chief (ornn1is sioner h:sued a notification' on November 28, 1950, brin£; i~1~~ all the provisi::>ns of the Bombay Act into force throughout the \\"h<)le of Kutch \Vi th imn1ediatc effect. The Chief Commissioner of Kutch under s. I of the Bo1nba)r Act, h;, d p0\vers to issue the notifi.:,\- tion making that Act operative in Kutch or in any part of Kuch and those po'"''ers \Vere not affectexl by r\rt. 239 of the Con~titu tion.

The notification \\'as valid and the }\ct came into force in th~ parts of the State to \vhich the notification made it applicable.

CRIMINAL APPELLATE JURISDICTION Appeal No. 33 of 1955.

Criminal

Appeal under Articles 132(1) and 134(1)(c) of the Constitution of India from the Judgment and Order dated June 30, 1954, of the Court of Judicial Commissioner, Kutch in Criminal Revision Application No. 13 of 1952.

Porus A. Mehta and R. H. Dhebar, for the appellant.

H. ]. Umrigar, for the respondent.

1957. March 7. The Judgment of the Court was delivered by

KAPUR J.-Two important questions arise for decision in this case of a small magnitude and the State has filed this appeal not for the purpose of obtaining a conviction but because of the importance of the questions raised and implications of the judgment

of the Judicial Commissioner.

The respondent was convicted of an offence under s. r2(a) of the Bombay Prevention of Gambling Act (Act IV of 1887 hereinafter termed the Bombay Act) as applied to Kutch and was sentenced to a fine of Rs. 50 or in default simple imprisonment for 15 days and forfeiture of the amounts recovered from the respondent at the time of the commission of the offence.

He took a revision to the Judicial Commissioner of Kutch, who held that the Act under which the respondent had' been convicted had not been validly extended to and was not in force in the State of Kutch.

It is the correctness of this decision which has been canvassed before us.

There was sufficient evidence against the respondent which was accepted by the trying magistrate ; and if the Act was validly extended to and was in operation in the State of Kutch, his conviction by the learned magistrate wa 0 , correct and his acquittal by the learned Judicial Commissioner erroneous.

OnJune 7, 1951, the respondent, it was alleged committed the offence he was. charged with.

He was convicted by the magistrate on July 26, 1951, and his revision to the Sessions Judge was dismissed.

He then took a revision to the Judicial Commissioner of Kutch who allowed his petition on June 30, 1954, and granted a certificate under Arts. r 32 ( r) and r 34( l) of the Constitution.

Kutch before 1948 was what was called an Indian State. The Maharao of Kutch handed over the governance of the State to the Dominion of India on June r,

1948 and thus the whole administration of the State passed ta the Dominion and it became a Centrally administered area. On July 3 l, r 949, the then Central Government issued under s. 4 of the Extra Provincial Jurisdiction Act (Act XLVII of 1947), an order called the Kutch (Application of Laws) Order, 1949.

Under

cl. 3 of this order certain enactments were applied to Kutch with effect from the date of the commencement of the order.

One of these enactments was the Bombay Act.

Clauses 4 and 6 of this order are important and may be quoted ·

The State of Bombay v.

Sa/at Pragji Karamsi

Kapur J.

Tiu State of Bombay v.

Salat PraJ!Ji

Karamsi

Kapur].

4. "Except as otherwise specifically provided in the fi; st schedule to this order the .enactments applied by this order shall be construed as if references therein to the authorities and territories mentioned in the first column of the table hereunder printed were references to the authorities and territories, respectively, mentioned opposite thereto in the second column of the said table.

TABLE

Provincial Government, GQvernor The Chief Commissioner of Kutch. or Chief Controlling Revenue Authority. 2.

Government Th~ Central Government or the Chief Commissioner, as the context may require. 3.

High Court Court of the Judicial Commissioner, Kutch. 4.

Provinces of India, any Province Kutch or any part thereof. of India or any part thereof. 5.

The Province or Presidency of Kutch or any part threof." Bombay or any part thereof.

6. "Any Court may constr•le the provisions of any enactment, rule, regulation, genet a; order or byelaw applied to Kutch or any part thereof by this order, with such modifications not affecting the substance as may be necessary or proper in the circumstances."

On August 1, 1949, Kutch became a Chief Commissioner's province under the States Merger (Chief Commissioner's Provinces) Order, 1949.

Clause 2(1)(c) of this order is as follows :

"As from the appointed day, the parts of States specified in the Second Schedule to this order shall be administered in all respects as if they were a Chief Commissioner's Province, and shall be known as Chief Commissioner's Province of Kutch."

The Second Schedule gives the parts of the pre-194 7 Indian States which were to comprise the Chief Commissioner's Province of Kutch.

Under cl. 4 of this Order all laws which were in force including orders made under s.4 of the Extra Provincial Jurisdiction Act of 194 7, were to continue in force until replaced.

On January 1, 1950, Merged States' Laws Act (Act LIX of 1949), came into force.

By this Act certain Central Acts were extended to the province of Kutch

including the General Clauses Act (Act X of 1897).

On January 26, 1950, the Constitution of India came into force and Adaptation of Laws Order, 1950, was promulgated the same day.

Clause 4( 1) of this order provides :

"Whenever an expression mentioned in column 1 of the table hereunder printed occurs (otherwise than in a title or preamble or in a citation or description of an enactment) in an (existing Central or Provincial Laws) whether an Act, Ordinance or Regulation mentioned in the Schedule to this Order or not, then, unless that expression is by this Order expressly directed to be otherwise adapted or modified, or to

stnd unmodified, or to be omitted, there shall be substituted therefor the expression set opposite to it in column 2 of the said Table, and there shall also be made in any sentence in which the expression occurs such consequential amendments as the rules of grammar may require."

The necessary portions of the table are : , Province (except where it occurs in any expression mentioned above)

Provincial. ... , ............................. ..

Provinces (except where it occurs in

State State

any expression mentioned above).

States Clauses 15 and 16 in (Part III)-Supplementary, are as follows :-

15. "Save as is otherwise provided by this Order, all powers which under any law in force in India or any part thereof were, immediately before the appointed day, vested in or exercisable by any person or authority shall continue to be so vested or exercisable until other provision is made by some legislature or authority empowered to regulate the matter m question."

16. "Subject to the provisions of this Order any reference by whatever form of words in any existing law to any authority competent at the date of the passing of that law to exercise any powers or authorities, or to discharge any functions, in any part of India shall, where a corresponding new authority has been constituted by or under the Constitution, have

The Stal< of

Bombqy

Sa/at Pragji

Karamsi

Kapur].

Tiu State of

Bombay

Sa/oJ hagji

Earamsi

Kapur].

effect until duly repealed or amended as if it were a reference to that new authority." On November 28, 1950 the Chief Commissioner of Kutch issued the following notification

"In exercise of the powers vested in him under section r of the Bombay Prevention of Gambling Act, 1887 (IV of 1887) as applied to Kutch by the Kutch (Application of Laws) Order, 1949 the Chief Commissioner has been pleased to order that all the provisions of the said Act shall come in to force throughout the whole of Kutch with immediate effect."

On a consideration of all the Acts and Orders as well as the abovementioned Adaptation of Laws Order, of 1950, the learned Judicial Commissioner was of the opinion that "all such powers vested in or exercisable by any other person or authority before 26-1-1950 ceased to be so vested or exerciscble by that person or authority", and, therefore, only the President, whether exercising the powers himself or through the Chief Commissioner, could exercise the powers of a State Government and the Chief Commissioner himself could not.

His finding therefore was that the Chief Commissioner could not issue the above notification of November 28, 1950.

In its appeal against the Order of acquittal by the learned Judicial Commissioner, the State has raised two questions : ( l) That the Bombay Act had been validly extended to and was in force in the whole of Kutch because of the Kutch (Application of Laws) Order, 1949 and thus any contravention of that Act became punishable under the Act, and

(2) That even if the Bombay Act was not thus extended to Kutch, the Act became applicable to the State of Kutch by the issuing of the notification of November 28, 1950, and therefore, the respondent was rightly convicted and the conviction was wrongly set

aide by the learned Judicial Commissioner.

1 In order .to decide the first contention we have to see what is the effect of the various provisions of the.

Acts and Orders above referred to.

In cl. 4 of the

J{_utch (Application of Laws) Order, 1949, the words used are 'shall be construed as if reference therein ...... ' In our opinion all that these words mean is 'shall be reacl as' ar d if that is how these words are understood then wl1ereveT in the Bombay Act the words 'Provincial Government' arc used they have to be read as the Chief Commissioner of Kutch ; the word Government has to be read as the "Chief Commissioner of Kutch"; and the Province or the "Presidency of Bombay" as "Kutch or any part thereof".

If the Bombay Act is so read, then at the time when the Constitution came into force the words Provincial Government or Government or Province or Presidency of Bombay were no longer in the Act which had become applicable to the State of Kutch.

On the other hand, the words there must be taken to be Chief Commissioner of Kutch, and Kutch or any part thereof, respectively.

The fallacy in the learned Judicial Commissioner's _judgment lies in this that due effect was not given to these words which had become substituted, but emphasis was laid on the words 'shall be construed as' as if these words had been used for the purposes of interpretation of tl; c difTerent words in the Born bay Act rather than implying substitution of the corresponding words.

In this view of the matter

cl. z(1)(cj of the States Merger (Chief Commissioners' Provinces) Order, 1949 which provided for the administration of the State of Kutch as if it was a Chief Commissioner's Province, would not affect the position nor would the extension of the General Clauses Act under the Merged States' Laws Act.

Clause 4 of the Adaptation of Laws Order, 1950 only substituted in place of the words Province, Provincial and Provinces the words State or States, wherever they occurred in any existing law, and the effect of els. 15 and 16 of that order was the continuance of the powers vested in the authorities in whom they had previously been vested.

The position which therefore emerges on a combined reading of these various clauses is that in Bombay Act, as applied to Kutch, the words 'Presidency of Bombay' were to be replaced by the words 'Kutch or any part thereof' and the 'Provincial 3-99 SC India/59

The State of Bombay v.

Sa/at Pragji Karamsi

Kapur J.

Th~ Statt of

Bomb0;_y

Sa!at Pragii Karamsi

Kapur J.

Government' by the 'Chief Commissioner of Kutch'- and the powers which had been given to the different authorities under the different Acts were to continue to remain in the person or persons in whom they were already vested.

As the powers had been vested in the Chief Commissioner under the provisions of these various Acts and Orders, they continued to remain so vested and the General Clauses Act did not have any operational effect on these various words which were used in the Bombay Act as modified and applied to Kutch.

So understood, s. 1 of the Bombay Act would read as follows :-

"This Act mav be cited as the Bombav Prevention of Gambling Act, 1887.

All or any or' its provisions may be extended from time to time by the Chief Commissioner of Kutch by an order published in the "Official Gazette" to any local area in Kutch or any part thereof."

The Chief Commissioner of Kutch may, from time to time, by an order published as aforesaid, cancel or vary any order made by it under this section."

The portion of this section, vi.::., "It extends to the city of Bombay, to the Island of Salsette, to all Railways and railway Station houses without the said citv and island and to all places not more than three miles distant from any part of such station houses respecti, ely" would not continue in the Act as applied to Kutch because these parts are not in the State of "Kutch or any part thereof" and cl. 6 of the Kutch r_Application of Laws) Order, 1949 would come into operation for the purpose.

It was then contended that by the mere application of the Bombay Act to Kutch it became operative and came into force in the whole of Kutci1_.

This argument suffers from the infirmity that in its application to Kutch s. 1 of the Bombav Act would ha\e to be excluded which would be n incorrect way of looking at the question. The true position is that the whole of the Act including amended s. 1 as given above, became applicable to Kutch and therefore a notification

was necessary before it could be brought into force in any part of Kutch. It was applied to Kutch, but its provisions were not in operation before the notification ; and in our opinion, the judgment of Baxi ]. C. in Agaria Osman A/arakhya v. The Kutch State (') which has been followed in the case now before us, to the extent that it dealt with the necessity of a notification under s. r of the Bombay Act, was correctly decided ; and therefore, the first contention raised by counsel for the appellant is unsustainable and we hold that without a notification, the Bombay Act, could not be held to have been validly applied to the State of Kutch.

This brings us to the second question, i.e., the valirlity of the notification issued on No\-cmber 28, r 950.

The learned J uclicial Commissioner held

"The Chief Commissioner of a Part C State can act to such extent as he is authorised by the President to do.

These being the provisions of the Constitution, the Bombay :\ct must be construed with the adaptation that the rule of construction mentioned in the Kutch (Application of Laws) Order, r 9-J.9 is deleted.

Hence, e\Tn if substitution of cxpre, sion as mentioned in para -J. of the :\dapLttion of La\\'s Order, r 950 is not made, the rule of construction mentioned in the

Kutd1 1Application of La\\'s) Order, 19.19 for construing

the expression 'Prmincial Go\"C:-rnmcnt'as the 'Chief Commissioner, Kutch' docs 1'ot sunive."

:\rticlc '239 of the Constitution relate.; to administration of Part C States and prmides:

"Subject to the other prmisions of this Part, a State specified in Part C of the First Schedule shall be ad ministered by the President acting, to such extent as he thinks fit, through a Chief Commissioner or a Licutenant-GO\ernnr to be appointed by him ......... " This Article has been relied upon for urging that in a

Part C State, the administration had to be carried on by the President acting through a Chief Commissioner But this does not take away the powers -0f the Chief Commissioner gi\en to him under any other Statute or

1-A.. I. R. (1951) Kutch9.

T Ji. State of Bombay v.

Sala! Pragji Karamsi

Kapur J.

The State of Bombay v.

Sa[at Pragji

Karamsi

Kapur J.

March 20

Order. The Chief Commissioner of Kutch under s. 1 of the Bombay Act, had the power to issue notifications making that Act operative in Kutch or any part of Kutch and those powers were not affected by Art. 239 of the Constitution particularly because of cl. 1 5 of the Adaptation of Laws Order, 1950, which preserved these powers of the Chief Commissioner.

Therefore, the notification issued by the Chief Commissioner on November 28, I 950 was valid and issued under legal authority ; and the Act came into force in the parts to which the notification made it so applicable. \Ve have therefore, come to the conclusion that the learned Judge was in error in holding that the notification was not a valid one and in so far as that was the basis of the acquittal of the accused, the judgment under appeal must be set aside.

In the result the appeal of the State is allowed, the judgment of the learned Judicial Commissioner acquitting the respondent is set aside and that of the learned Magistrate sentencing him to a fine of Rs. 50 and sentence in default and of forfeiture restored.

Appeal allowed.

THE NEWSPAPERS LTD. v.

THE STATE INDUSTRIAL TRIBUNAL, U.P.

(BHAGWATI, B. P. SINHA and J. L. KAPUR ]].)

Industrial DisjJut.:, Mt>aning nf-Dtsp11te betu; een enlpioyer and a ringie ri.; orkn1an--TV!zether induJtrial dzspute-Governnu, nt making referer.ce on the assufn/Jtion that a dispute exsits betiveen the ernployer and hi_1 u1nrk1nen--l11hether r:alidity of the re_(erence can be questioned --U.P. Industrial Di•putes Act,

1947 (U.P.

XXVIII rd" 1947), ss.2, 3-Industrial Disputes Act, 19.J.7 (XIV ef 19~ 7, s. 2 (k).

A dispute bern:een an employer and a single workman dot>s not fall \vithin the definition of "industrial dispute" under the L'.P. Industrial Disputes Act, 1947. But though the applicability of the Act to an individual di;; pute as oppost>d to a dispute involving a groLp of \l\1orkmen is excluded, if the workmen as a body or a considerable section of them make common cause with the individual '\York.man then such a dispute "'ould be an industrial dispute.

Sohan Lal

has Imam

Jagan Nath

Art. 226

THE STATE OF BOMBAY

SALAT PRAGJI KARAMSI

BHAGWATI

GOVINDA MENON

L. KAPUR JJ.

Prevention ef Gambling Act

cl. 3

Prevention of Gambling Act

Clause 4

State of

Kutch

Articles 132(1) and 134(1)(c)

Constitution of India

Porus A. Mehta

R. H. Dhebar

H. ]. Umrigar

KAPUR

7, 1951

July 26, 1951

June 30, 1954

Dominion of India

June r,

1948

July 3 l, r 949

Central Government

s. 4

cl. 3

Provincial Government, GQvernor

Government Th~ Central Government

Provinces of India

Bombay

Kutch

August 1, 1949

Clause 2(1)(c)

Second Schedule

Second Schedule

cl. 4

January 1, 1950

General Clauses Act

January 26, 1950

Constitution of India

Clause 4( 1)

India

November 28, 1950

cl. 4

State of Kutch

Terent words in the Born bay Act

General Clauses Act

Clause 4

Sa!at Pragii Karamsi

General Clauses Act

s. 1

Salsette

cl. 6

s. 1

s. 1

Baxi ]. C.

First Schedule

Chief Commissioner of Kutch

s. 1

Art. 239

cl. 1

November 28, I 950

B. P. SINHA

J. L. KAPUR

ss.2, 3

Industrial Disputes Act

s. 2

Industrial Disputes Act, 1947


The State of Bombay v.

Sa[at Pragji

Karamsi

Kapur J.

March 20

SUPREME COURT REPORTS

Order. The Chief Commissioner of Kutch under s. 1 of the Bombay Act, had the power to issue notifications making that Act operative in Kutch or any part of Kutch and those powers were not affected by Art. 239 of the Constitution particularly because of cl. 1 5 of the Adaptation of Laws Order, 1950, which preserved these powers of the Chief Commissioner.

Therefore, the notification issued by the Chief Commissioner on November 28, I 950 was valid and issued under legal authority ; and the Act came into force in the parts to which the notification made it so applicable. \Ve have therefore, come to the conclusion that the learned Judge was in error in holding that the notification was not a valid one and in so far as that was the basis of the acquittal of the accused, the judgment under appeal must be set aside.

In the result the appeal of the State is allowed, the judgment of the learned Judicial Commissioner acquitting the respondent is set aside and that of the learned Magistrate sentencing him to a fine of Rs. 50 and sentence in default and of forfeiture restored.

Appeal allowed.

THE NEWSPAPERS LTD. v.

THE STATE INDUSTRIAL TRIBUNAL, U.P.

(BHAGWATI, B. P. SINHA and J. L. KAPUR ]].)

Industrial DisjJut.:, Mt>aning nf-Dtsp11te betu; een enlpioyer and a ringie ri.; orkn1an--TV!zether induJtrial dzspute-Governnu, nt making referer.ce on the assufn/Jtion that a dispute exsits betiveen the ernployer and hi_1 u1nrk1nen--l11hether r:alidity of the re_(erence can be questioned --U.P. Industrial Di•putes Act,

1947 (U.P.

XXVIII rd" 1947), ss.2, 3-Industrial Disputes Act, 19.J.7 (XIV ef 19~ 7, s. 2 (k).

A dispute bern:een an employer and a single workman dot>s not fall \vithin the definition of "industrial dispute" under the L'.P. Industrial Disputes Act, 1947. But though the applicability of the Act to an individual di;; pute as oppost>d to a dispute involving a groLp of \l\1orkmen is excluded, if the workmen as a body or a considerable section of them make common cause with the individual '\York.man then such a dispute "'ould be an industrial dispute.

Central Provinces Transport Service Ltd. v. Raghunath Copa!

Patwardhan, (1956) S. C. R. 956 and D N. Banerji v. P. R.

Mukherjee, (1953) S.C:.R. 302, rderred to.

Swadeshi Cotton Mills Co. Ltd. v. Their Workmen, ( 1953) 1 L.L.J. 757, in so for as it decideci that a dispute raised by an individual workman is within an industrial dispute, disapprnved.

Gase-law reviewed.

The third respondent was employed as a lino typist by the appellant company but on allegations of incompetence he was dismissed from service.

His case \\as not taken up by any union of workers of the appllaot C'.lmpany nor by any of the unions of workmen employed in similar or allied trades, but the

U.P. \Vorking Journalists Union, Lucknow, with which the third resp<mdent had no connection took the matter to the Conciliation Board, Allah; iha<l, an<l ultimately thE Government made a refe1 ence to the Industrial Tribunal bv a notification in which one cf the points for determimi, tion eferred was as to whether the services of the third respondent were wrongfully terminated bv the managemwt. The legality of the reference was challenged hy the appellant and the queotion was raised as to \\hether a di, pute between an employer and a single w0rkman falls within the definition of "indu'.; trial dispute" under the U.P. Industrial Disputes Act, 19+7.

Held, that the reference was bad because the dispute was not between the emplo, er on the one hand and his workmen on the other, nor could the U.F. Working Journalists Union be called "l:is workmen", within the maning of the U. P.

Industrial Disputes Act, 1947.

"£'hough the making of a referenc~ by the Government under the Act is the exerci:c o!' its administrative powers, an aggrieyec\ partv can question the jurisdiction of the Industrial Tribunal to sho\\· that what was rt [erred was not an industrial dispute.

Stale of Madras v. C. P. Sarathy, ( 1953) S.C.R. 334, referred to.

C1vrL APPELLATE juRISDJCTION Civil Appeal No. 213 of 1956.

Appeal from the judgment and decree dated September 22, 1954, of the A.liaahba<l High Court in Special Appeal No. 8 of 1954 arising out of the judgment and decree dated January 6, 1954 of the 5ai<l High Court in Civil Miscellaneous Writ Petition No. 651 of 1953.

S. P. Sinha and S. N. Mukherjee, for the appellam.

G. C. Mathur and C. P. Lal, for respondent No. 2.

The Newcpapers

ud.

v, The Sta!' lncistrial

Tribunal, U. P.

1957 r957. March go. The Judgment of the Court was

The JV, wspapers delivered by y Ltd.

The Stat:Industrial KAPUR J.- The ground on which the appellant Tribunal, U. P. company seeks to. have the order of the Industrial

Kapur J.

Tribunal set aside is that no industrial dispute existed within the meaning of the expression as used in the

U.P. Industrial Disputes Act, 1947 (XXVIII of r947) (hereinafter called the U.P. Act) and consequently the U.P. Government had no power to make the refe1ence in question. 'Industrial Dispute' is defined in G. 2 of the U.P. Act as having the same meaning assigned to it as ins. 2 of the Industrial Disputes Act, 1947 (here---r-- in after termed the Central Act). There this expression ' has been defined ins. 2(k) to mean :

"any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person."

The controversy between the parties arose in the following circumstances : Tajammul Hussain, respondent No. 3 was employed as a lino typist by the appellant company.

He was y dismissed on May 8, 1952, on allegations of incompetence under r. l2(ii) of the Standing Orders of the appellant company. It was alleged that the dismis,, al of Respondent No. 3 was welcomed by his co-workers and other workmen in the employ of the appellant company and they made no grievance of it, nor :iid they espouse his cause. · The case of respondent No. 3 was hot taken up by any union of workers of the. appellant company nor by any of the unions of workmen employed similar, or allied trades, but the U.P. Working Journalists Union, Lucknow, with which respondent No. 3 had no 1connection whatsoever, took the matter to the Conciliation. Board, Allahf!bad. Ultimately, the U.P.

Government made a reference to the Industrial Tribunal on June 3, r953,' by notification; the prefatory words of which are :

"Whereas an industrial dispute in respect of the 1957 matters hereinafter specified exists between the concern Tke Newspapers known as Newspapers Ltd., Allahabad and its workmen; Lta. and whereas in the opini?n of the Governo_r it is neces- The 81•1;·/naustrial sary so to do for the mamtenance of pubhc order and Tribunal, u. P. f; 't'' 1 t " or mam emmg emp oymen .. .. .. .. .. .. .. .. .. .. .. ..

Kapur J.

One of the questions referred was :-

"Whether the services of Sri Tajammul Hussain Lino Operator were wrongfully terminated by the Management ..................... "

On February 13, 1953, the State Industrial Tribunal at Allahabad decided in favour of respondent No. 3 and ordered his reinstatement "without break of continuity of service" and also ordered the payment of his wages for the period during whidi he "remained dismissed" An appeal was taken by the appellant company to the Labour Appellate Tribunal, who by its order dated February 24, 1953, affirmed the order of the Tribunal with costs.

The appellant company then moved a petition in the Allahabad High Court under Art. 226 of the Constitution but this was dismissed by Bhargava J. on January 6, 1954, and a Special appeal against this judgment was also dismissed.

The appellant company has come up in appeal with a certificate under Art. l 33 ( l) ( c) of the Constitution.

The controversy which arises in this case is whether a dispute between an employer and a single workman falls within the definition of 'industrial dispute' as used in the U. P. Act.

In order to resolve this controversy, it is necessary to refer to the scheme of the U.P.

Act and the relevant rules made thereunder. The preamble of the Act runs : " .................. to provide for powers to prevent strikes and lock-outs, and for the settlement of industrial disputes and other incidental matters".

Section 3 of the Act confers certain powers on the State Government for the purpose of prevention of strikes, lock-outs, etc.

The portion of this section relevant for the purpose of this appeal reads as follows :

"If in the opinion of the State Government, it is necessary or expedient so to do for securing the public safety or convenience, or the maintenance of public

The Newspapers

Ltd.

v, The State Industrial

Tribunal, U, P.

Kapur J.

order or supplies and services essential to the life of the community, or for maintaining employment, it may, by general or special order, make provision- ( c) for appointing industrial courts ; ( d) for referring any industrial dispute for conciliation or adjudication in the manner provided in the order ;

(g) for any incidental or supplementary matters, which appear to the State Government necessary or expedient for the purpose of the order ;"

Under s. 23 of the Act, the State Government can make rules consistent with the Act for giving effect to the provisions of the Act.

Under clauses (b), (c), (d) and (g) ofs. 3 and under s. 8 of the U. P. Act, rules governing Conciliation Boards and Industrial Tribunals in U. P. were promulgated by Notification No. 615 (LL) XVIII-7 (LL)-1951, dated Lucknow, March 15, 1951.

Rule 4 deals with the reference of disputes to Conciliation Boards.

The relevant portions of this rule are :

"Any workman or an employer or a registered association or trade union of employers or registered trade union of workmen or any federation of such associations or trade unions or where no registered trade union of workmen exists in any particular cencern or industry, the representatives not more than 5 in number of the workmen in that concern or the industry, duly elected in this behalf by a majority of the workmen employed in that concern or industry, as the case may be, at a meeting held for the purpose, may by application in writing move a Conciliation Officer of the area for settlement of any industrial dispute by conciliation. The application shall clearly state the indGstrial dispute or disputes."

Rule 5 deals with proceedings and the power of inclmion of other undertakings.

The proviso to this rule is :

"Provided that if the Board of its own motion or on an application made to it, is of the opinion that any question involved in any such dispute or matter affects or is likely to affect more than one workman in the same concern or industry or busineos or more

than one concern in the same industry or business, constituted within the jurisdiction of the Conciliation Board, it shall include in its proceedings relating to such dispute or order every such workman or concern or where there is a registered trade union covering the majority of such concerns of workmen, such trade unions."

Rules 7 to l 1-A deal with Industrial Tribunals.

Rule 10 gives power to the Government to make a reference of any dispute to the Industrial Tribunal either on its own motion or after considering the Report of the Conciliation Board made under r. 6.

Rule l 5 ( l) which deals with the representation of parties to the dispute provides :

"The parties may in their discretion be represented before a Board or Tribunal or an Adjudicator- ( l) In the case of a workman by- ( a) an officer of a registered trade union of which he is a member ;

(b) an officer of a federation of trade unions to which the trade union referred to in sub-clause(a) is affiliated ;

(c) Where the workman is not a member of any registered trade union, by an officer of any registered trade union connected with, or by any other workman employed in the same industry or business, if so authorised in writing by the workman." The fanguage of section 36(1) of the Central Act is almost identical.

Rule 27 prohibits strikes and lock-outs ; and r. 28 gives finality and conclusiveness to the orders made or directions given.

The use of the word 'workmen' in the plural in the definition . of 'industrial dispute' does not by itself exclude the applicability of the Act to an individual dispute because under s. 13(2) of the General Clauses Act;

" ............ unless there is anything repugnant in the subject ................ ..

(2) words in the singular shall include the plural and vice versa."

Tk Newspapers Ltd. v.

T/M State Industrial

Tribunal, U. P.

Kapur J,

But in order to get its true import itis necessary to view the enactment in retrospect, the reasons for enact- The Newspapers

Ltd. ing it, the evils it was to end and the objects it was to

T' "t , v1 d . 1 subserve.

The Act has therefore to be viewed as a '" uat n tutna h l d . . . d . d b .

Tribunal, u. P. w o e an its mtent10n etermmc y construmg all

Kapur J. the constituent parts of the Act together and not by taking detached sections or to take one word here and another there.

Exposition "ex visceribus actus" is applicable.

Lincoln College's Case(').

So construed the provisions of the U.P. Act show that the machinery of the Act has been devised with the object of maintaining industrial peace so as to prevent interference with public safety or public order or with the maintenance of supplies and services essential to the life of the community or of employment.

The Act is based on the necessity of achieving collective amity between labour and capital by means of conciliation, mediation and adjudication.

The object of the Act is the .prevention of industrial "strife, strikes and lock-outs and the promotion of industrial peace and not to take the place of the ordinary tribunals of the land for the enforcement of contracts between an employer and an individual workman.

Thus viewed the provisions of the Act lead to the conclusion that its applicability to an individual dispute as opposed to dispute involving. a group of workmen is excluded unless it acquires the general characteristics of an industrial dispute, viz., the workmen as a body or a consider<> ble section of them make common cause with the individual WDrkman and thus create conditions contemplated by s. 3 of the U.P. Act which is the foundation of State Governmental action under that Act.

The other provisions which follow that section only c.ubserve the carrying out of the objects of the Acts specified therein.

The use of the word workman in the singular in rr. 4, 5 and I 5 forms the basis of the argument for the inclusion of an individual dispute in the expression industrial dispute. But this suffers from more infirmities than one.

Rule 4 authorises a workman to (') 3 Co. Rep. 58. 76 E. R. 764.

apply to a conciliation Officer for the settlement of an industrial dispute.

The meaning sought to be given to this word is inconsistent with the language of the latter part of that rule ;

"or wh'ere no registered trade union of workmen exists in any concern or industry, the representatives not more than 5 in number of the workmen .......... .. duly elected."

The first proviso to r. 5 is no surer foundation for the argument because in the context it can only be interpreted to mean that, should there be an industrial dispute then all workmen who may individually be the cause of the dispute or are to be affected by its decision should get notices of foe proceedings. Similarly, r. r 5 only provides for the r::presentation of "a workman" even if he is only one by an officer of a trade union or other person mentioned in the rule.

Besides, s. r 3 ( 2) of the General Clauses Act as to the interpretation of the singular and the plural considerably reduces the efficacy of the argument, which altogether loses its force in view of r. 26 which is as follows :

"During the pendency of any conciliation proceeding or proceedings before the Tribunal or an Adjudicator in respect of any dispute an employer shall not

(a) alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceedings or (b) discharge or punish, whether such punishment is by dismissal or otherwise, any workman concerned in such disp.ute save with the express permission in writing of a Conciliation Officer of the area concerned irrespective of the fact whether the dispute is pending before a Board or the Tribunal or an Adjudicator."

The use of the words "workmen" and "workman" in the above rule is indicative of the intention of the Act being applicable to collective disputes and not to individual ones, and this is fortified by the finality and the binding effect to awards by r. 28 and more specially by s. r8 of the Central Act which makes

The Newspapers Ltd. v.

The State ln,/ustrial

Tribunal, U. P.

Kapur J.

The .1Vewspapers

Ltd. v.

The State Industrial Tribunal, U. P.

Kaptir J.

awards binding not only on the individuals present or represented but on all the workmen employed in the establishment and even on future entrants.

Another objection to reading these rules in the manner above suggested is that it would be tantamount to enlarging the scope of the expression 'industrial dispute' and the powers conferred on the State Government under s, 3 of the U.P. Act. The executive cannot under the power of framing rules and regulations clothe itself with powers which the Statute itself does not give and which are inconsistent with the interpretation put on the expression 'industrial dispute.' The cardinal rule in regard to promulgation of bye-laws or making rules is that they must be legi fidei rationi consona, and therefore all regulations which are contrary or repugnant to statutes under which they are made are ineffective. If the expression 'industrial dispute' as ordinarily understood and, construed conveys a dispute between an employer on the one hand and the workmen acting collectively on the other, then the definition of those words cannot be widened by a statutory rule or regulation promulgated under the Statute or by Executive fiat.

The notification in the present case was under s.3. ( c), ( d) and (g) and under s. 8 which deal with ( c) the appointment of industrial Courts, (d) referring any industrial disputes and (g) incidental or supplementary matters.

The Executive may in the exercise of these powers make such regulations which are necessary but under that garb it cannot extend the definition of the term industrial disputes, µor is this extended meaning necessary to subserve the objects of the Act.

In our opinion therefore rules 4, 5 and r 5 of the Rules cannot be a valid foundation for sustaining the argument raised that an individual dispute was within the definition of 'industrial dispute.' Ordinarily, an award of a tribunal binds or affects the rights of parties to the proceedings but awards of Industrial Tribunals have extended implications and may affect the rights of all workmen of a concern or undertaking and even the future entrants.

This doctrine of

representation which enlarges the meaning of 'parties' in the U.P. & Central Acts is an essential idea associated with industrial disputes and supports collectiveness as opposed to & individualism.

See Latham C.J. in Metal Trades Employers Association v.

Amalgamated Engineering Union (1).

Then there is the prohibition under r. 26 of the U.P.

Act and s. 33 of the Central Act against any change in conditions of service during the pendency of the proceedings the object of which is to ensure discipline and industrial truce during that period which also supports the basic idea of collectiveness in 'industrial disputes'.

In Central Provinces Transport Services Ltd., v.

Raghunath Copa! Patwardhan (2), this Court observed that decided cases in India disclose three views as to the meaning of 'industrial dispute'

(i) a dispute between an employer and a single workman cannot be an "industrial dispute";

(ii) it can be an industrial dispute ; and

(iii) it cannot per se be an industrial dispute but may become one if taken up by a trade union or a number of workmen.

This Court discussed the scope of industrial dispute as defined in s. 2 (k) of the Central Act, and after referring to the conflict of judicial opinion as to its applicability to the case of a dispute between an employer and a single workman further observed :

"The preponderance of judicial opinion is clearly in favour of the last of the three views stated above, and there is considerable reason behind it.

Notwithstanding that the language of s. 2(k) is wide enough to cover a dispute between an employer and a single employee, the scheme of the Industrial Disputes Act does appear to contemplate that the machinery provided therein should be set in motion, to settle only disputes which involve the rights of workmen as a class and that a dispute touching the individual rights of a workman was not intended to be the subject of an adjudication under the Act, when the same had not been taken up by the union or a number of workmen."

(') [!935] 54 C.L.R. 387.

(2) [1956] S.C, R. 956.

The Newsp1pers

Ltd. v.

The State Industrial Tribunal, U. P.

Kapur J.

Tiu Newspapers

Ltd. v.

The State Industrial Tribunal U. P.

Kapur J.

Although the question did not directly arise, this Court in D. N. Banerji v. P. R. Mukherjee and others(') discussed the meaning of the expression 'industrial dispute' and was of the opinion that it "conveys the meaning to the ordinary mind that the dispute must be such as would affect large groups of workmen and employers ranged on opposite sides ...... But at the same time, having regard to the modern conditions of society were capital and labour have organised themselves into groups for the purpose of fighting their disputes and settling them on the basis of the theory that in union is strength, and collective bargaining has come to stay, a single employee's case might develop into an industrial dispute, when as often happens, it is taken up by the trade union of which he is a member and there is a concreted demand by the employees for redress".

This view is in consonance with the basic idea under lying modern industrial legislation.

The interpretation given to the coresponding phrase "trade dispute" in Engfoh law and "industrial dispute" in Australian Law also accords with this view and m the absence of an express provision to the contrary or necessary intendment thre is no reason to give a different interpretation to the expression in the Indian Statute.

According to English decisions an individual dispute of a workman is not included in 'trade dispute' which corresponds to 'Industrial Dispute' in the Indian Act.

In the English Trade Disputes Act of r 906 and r g I 9 as also in Reg. 58-AA of the Defence (General) Regulation, 1939, 'trade dispute' as defined in language very similar to 'industrial dispute' in the Indian Statute Dealing with a trade dispute, Lord Shaw in Conway v. Wade (') said :

"But I cannot see may way to hold that "trade dispute" necessarily includes accordingly every case of personal difference between any one workman and one or more of his fellows.

It is true that after a certain stage even such a dispute, although originally grounded,

(1) [1953] s.c.R. 302, 3ro.

(2) [1909] A.G. 506, 520.

it may be, upon personal animosity, may come t be a subject in which sides are taken, and may develop into a shuation of a general aspect containing the characteristics of a trade dispute ; but until it reaches that stage I cannot hold that a trade dispute necessarily exi, ts ."

Lord \\'right observed in National Association of Local Government Officers v. Bolton Corporation( 1).

"I think the same may be said of the Industrial Courts Act and of reg. 58-AA, in both of which the word 'trade' is used in the very wide connotation which it bears in the modern legislation dealing with conditions of employment, particularly in relation to matters of collective bargaining and the like."

Ex parte Keable Press Ltd. (2 ) was an instance of an individual dispute developing into a 'trade dispute' because of the strike by a union to enforce the reinstatement of dismissed workman.

That was how this term (trade dispute) was interpreted by the Court of Appeal in R. v. National Arbitration Tribuna/(3) after taking into consideration the definition of the word 'd. ispute,.

In Australian cases also, without specific reference to any definition of the phrase the courts have excluded individual disputes from the scope of industrial disputes. In ]umbunna Coal Mine v. Victorian Coal Miners Association (4), Griffths C. ]. observed :

"An industrial dispute exists where a considerable number of employees engaged in some branch of industry make common' cause in demanding from or refusing to their employers (whether one or more some change in the conditions of employment which is denied to them ............................................. " Similarly in Federated Saw Mills & Co.

Employees of Australasia v. Jemes Moore & Son Properietory Ltd. (5), Griffths C. J. ga, e the characteristics of an industrial dispute as follows :

"It is necessary at the outset to consider the meaning which the term 'industrial dispute' conveyed

{1) [19H) A.C. 166, 185.

(3) (1951] 2 All E.R. 828.

(2) ( 9H] 2 All E.R. 633. \4) [1go8] 6 C.L.R. 309, 332.

(5) [1909] 8 C.L.R. 465, 487, 488.

The Newspapm w.

The &ate Industrial

Tribunal, U. P.

Kapur].

The Newspapers

L, d,

The State industrial

Tribunal, U. P,

K:, w, rJ.

in 1 goo to the minds of persons conversant with the English language .......................................... " "The word 'industrial' ...... denotes two qualties which distinguish them from ordinary private disputes betweenindividuals, namely, ......... (') that on one side at least of the dispute the disputants are a body of men acting collectively and not individually. " Issacs J. in George Hudson Ltd. v. Australian Timber Workers Union (') sta tecl :

"The very nature of an 'industrial dispute', as clistingui, hecl from an individual dispute, is to obtain new industrial conditions, not merely for the specific individuals then working ......... It is a battle by the claimants, not for themselves alone and not as against the respondents alone, but by the claimants so far as they represent their class ................... " According to Griffths C.J. "The term "industrial dispute" connotes a real and substantial difference having some element of persistency, and likely, if not adjusted, to endanger the industrial peace of the community".

Viele Federated Saw Mills Case (') at p. 488.

The same meaning was attached to the expression by Latham C. ]. in J\; fetal Traders Employers Association v. Amalgamated Engineering Union (') at p. 4o3:

"Industrial disputes are essentially group contests-there is always an industrial group on at least one side. A claim of an individual employee against his employer is not in itself an industrial dispute ...... " We shall now refer to the Indian decisions which bear on this question.

Rajamannar C.J. in Kandan Texti Ltd, v.

The Industrial Tribunal, Maras and another (•) held that the definition of industrial dispute is wide enough to cover a dispute between an employer and an individual workman but taking into consideration S. 18 of the Central Act he was of the opinion that such an extanded definition cannot be given to it in S. 2 (k) of the Central Act. Mack J. agreed with the decision of Rajamannar C. J. but he said that the case of an

(1) [1923] 32 C.L.R. 413, 441.

(3) [1935] 54 C. L. R. 387, 403.

(2) [1909] 8 C.L.R. 465, 487, 488.

(4) A. I. R. 1951 Madras 616.

individual workman if taken up by the worker's union makes such a dispute an industrial dispute.

In that case 1 1 items of difference were referred to the Industrial Tribunal. One of the items in dispute was the wrongful removal of a workman, Sundaram by name. In the

Hi2'.h Court an objection was taken to the legality of the award on the ground that no industrial dispute existed and that there was no material before the Government on the basis of which it could make a reference.

It was held that the dispute as to a single workman was not an 'industrial dispute.' Kandan Textile Ltd. case (1) was followed in United Commercial Bank Ltd. v. The Commissioner of Labour, Madras( 2 ) which was a case under s. 41 of the Madras Shops and Establishments Act and the right of appeal given to an individual employee against the order of the employer dispensing with his services under s. 41 (2) of Madras Shops and Establishments Act was challenged on the ground that it had been taken away by the Central Act.

It was held that an individual worker had the right to appeal. Vishwanatha Sastri ]. in his judgment referred with approval to the distinction made between an individual dispute and an industrial dispute in Kandan Textile Ltd. v. Industrial Tribunal, Madras (supra).

The second view that such a dispute falls within the definition of the word "industrial dispute" is supported by a decision of a Full Bench of the Labour Appellate Tribunal-Swadeslzi Cotton Mills Co. Ltd. v.

Their Workmen( 3).

There the question was mainly decided on the basis of s. 33-A of the Central Act (introduced in 1950) which gives the right to an individual workman dismissed or dealt with contrary to s. 33 of the Act during an industrial dispute to raise the matter before a tribunal.

The introduction of s. 33-A would not alter the construction to be placed on the phrase 'indmtrial dispute'. On the contrary it supports the view that an individual di!.pute is not comprised in that phrase. In view of what has been said above, we are of the opinion that in so far as that case lays down

(1) A.I.R. 1951 Madras 616,

(o) I.L.R. [1952) Madras 43.

(3)_ [1953] 1 L.L.J. 757. 4-99 s. c. l./59

The NewJpapers

Ltd.

V, The State Industrial

Tribunal, U. P.

Kapur J.

Tiu Newspapers

Lid,

V, Tht State Industrial Tribunal, U. P.

Kapur J.

that a dispute raised by an individual workman as to his personal grievance is within an industrial dispute, it cannot be said to have been correctly decided.

The cases which support the third view are th'! following . ]. Chowdhury v. M. C. Banne1jee(1) was a case .in which a lino operator was removed from service on the ground of his negligence and arrears of work. The matter was referred to the Industrial Tribunal under the Central Act.

The Management moved the High Court under Art. 226 of the Constitution and s. 45 of the Specific Relief Act and it was held that the Tribunal had no jurisdiction to entertain the matter as on a perusal of the various sections of the Central .\ct including ss. IO and r 8 the dispute of an individual workman was not covered bv the term 'industrial dispute'. In Bilash Chandra ,\fitra v, Balmer Lawrie & Co. ('), a suit was brought for the recO\ery of arrears of wages on the basis of an award of an Industrial Tribunal and one of the issues raised was whether an 'individual dispute' fell within 'industrial di; pute'. Follm, ing the judgment in ]. Chowdhwy v.

JI. C.

Bannerje~ (1 ), Bose J. held that it did not.

Another case in which this dew was held rs N. /. Assurance Co. v. C. G. /. Tribunal (').

There the Government referred the question of dismissal of an employee of an Assurance Co. and it was not proved that his case was taken up by the employees association.

The same view was adopted in Standard Vacuum Oil Co. v. Industrial Tribunal(•).

In Lakshmi Talkies, Afadras v.

Munuswami and Others('), Balakrishna Ayyar J. held that an 'industrial dispute' arises where a case of an individual workman is espoused by a union. The same view was taken in Lynus & Co. v. Hemanta Kumar Samanta(').

The view taken in these cases is in accord with the interpretation we have put on the expression 'Industrial dispute' as defined in the U.P. Act or the Central Act.

(1) [1951] 55 C.W.N. 256.

(4) l.L.R. [1952] T.av • .CO. 432.

(o) f1952] 57 C, W.N. 169.

(5) [1955] 2 L.L.J. 477.

(3) [1953] I.L.R. 32 Patna 181.

(6) [1956] 2 L.LJ. Ilg • . ,.··

Taking into consideration the whole tenor of the Act and the decisions of this Court the decided cases to the extent that they take a contrary view, i. e., an individual dispute is comprised in an 'industrial dispute' must unless there is something peculiar as to facts , be held to have been wrongly decided.

In spite of the fact that the making of a reference by the Government under the Industrial Disputes Act is the exercise of its administrative powers, that is not destructive of the rights of an aggrieved party to show that what was referred was not an 'industrial dispute' at all and therefore the jurisdiction of the Industrial Tribunal to make the award can be questioned, even

though the factua~ existence of a dispute may not be subject to a party's challenge.

State of Madras v. C. P.

Sarathy(').

It may also be noted that the notification issued by the U. P. Government on January 3, 1953, already quoted proceeds on the assumption that a dispute exists between the "employer and hi<> workmen". The points of dispute in the reference, however, comprise the wrongful termination of the service of only Tajammul Hussain, a lino operator. The words used in the first part of the notification show that the Government was labouring under the misapprehension that this dispute was between the employer on the one hand and his workmen on the other, which, in fact it was not.

Tajammul Hussain could not be termed workmen (in the plural) nor could the U. P.

Working Journalists Union be called "his workmen" nor is there any indication that the individual dispute has got transformed into an industrial dispute.

The very basis, therefore, of the reference was bad and must be held to be so.

We would, therefore, allow this appeal with costs.

1(1) [1953] S.C.R. 334, 347. 99 .

Appeal allowed.

The Newspapers

Ltd. v.

The State Industrial

Tribunal, U. P.

Kapur J.

Kapur J.

s. 1

Art. 239

cl. 1

November 28, I 950

THE NEWSPAPERS LTD

THE STATE INDUSTRIAL TRIBUNAL, U

BHAGWATI

B. P. SINHA

ss.2, 3

Industrial Disputes Act

s. 2

Industrial Disputes Act, 1947

Industrial Disputes Act

U.F. Working Journalists Union

Industrial Disputes Act, 1947

S. P. Sinha

S. N. Mukherjee

G. C. Mathur

C. P. Lal

Newcpapers

Industrial Disputes Act, 1947

U.P. Government

Industrial Disputes Act, 1947

Tajammul Hussain

May 8, 1952

U.P. Working Journalists Union, Lucknow

Conciliation. Board, Allahf!bad

U.P.

Government

June 3, r953

Tke Newspapers

Allahabad

Kapur

Tajammul Hussain Lino

February 13, 1953

State Industrial Tribunal at Allahabad

February 24, 1953

Allahabad High Court

Art. 226

Bhargava

January 6, 1954

Section 3

s. 23

s. 8

U. P.

Lucknow

March 15, 1951

section 36(1)

s. 13(2)

General Clauses Act

Tk Newspapers Ltd.

s. 3

General Clauses Act

State Industrial Tribunal, U. P.

Kaptir

s. 8

Latham

s. 33

India

s. 2

s. 2(k)

Industrial Disputes Act

State Industrial Tribunal, U. P.

Shaw

Keable Press Ltd.

Federated Saw Mills & Co.

&ate Industrial

Tribunal, U. P.

Kapur]

Issacs

Rajamannar

S. 18

S. 2

Mack

Sundaram

Kandan Textile Ltd.

s. 41

s. 41

Vishwanatha Sastri

s. 33

s. 33

s. 33

Art. 226

s. 45

Specific Relief Act

Bose

Balakrishna Ayyar

Act or the Central Act

Industrial Disputes Act

U. P. Government

January 3, 1953

Tajammul Hussain

Tajammul Hussain

U. P.

Working Journalists Union


March 26.

SUPREME COURT REPORTS

THE STATE OF

UTTAR PRADESH v.

MOHAMMED SA YEED

(BHAGWATI, JAFER IMAM and A.K. SARKAR JJ.)

Surety bond--Undertaking to forfeit sum of monty to King Emperor Qaisar-e-Hind on Jaiture to produce accused-Whether bond legal and er.Jorceable-Code of Criminal Procedure, ss. 499, 514, and 555-Adaptation ef Laws Order, 1950, cl. 4ln 1953 the respondent executed a surety bond undertaking to produce the accused before the ~1agistru.te and to forfeit Rs. 500 to King Emperor Qaisar-e-Hind as penalty if he failed to do so.

Upon his failure to produce the acc; used, the !vfagistrate forfeited the bond to the extent of Rs. 300. The contenlion of the respondent \Vas that the bond not being in favour of the Government, could not be forfeited.

Held, that the bond \Vas a bond unknovvn to the law of the Republic of India under the Code of Criminal Procedure at the time of its execution and could not be forfeited. The respondent did not execute a bond by which he bound himself to forfeit the said sum either to the Government of the Union of India or that of the State of Uttar Pradesh. To be a valid bond, the undertaking should have been to forfeit to the Government and not to the King Emperor. The words King Emperor Qaisar-e-Hind in the bond executd by the respondent could not be read, by \'irtue of cl. 4 of the Adaptation of Laws Order, 1950, to mean Goverrunent.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 130 of 1955.

Appeal under Arti<; le 134(1) (c) of the Constitution of India from the judgment and order dated March 11, 1955, of the Allahabad High Court (Lucknow Bench) at Lucknow in Criminal Revision No. 60 of 1954 arising out of the judgment and order dated February 21, 1954, of the Sessions Judge at Gonda in Criminal Appeal No. 292 of 1953.

G. C. Mathur and C. P. Lal, for the appellant.

1957'.

March 26. The Judgement of the Court was delivered by IMAM J.-This is an appeal by the State of Uttar Pradesh against the decision of the Allahabad High Court on a certificate granted by that Court that the case was a fit one for appeal to this Court.

The undisputea facts are that one Mohammad Yasin was prosecuted under s. 379, Indian Penal Code.

He was released on bail. The respondent along with o;-ie

Ram Narain stood surety for him, having executed surety bonds under s. 499 of the Code of Criminal

Procedure, undertaking to produce the accused Yasin before the Court to answer the charge and to forfeit Rs. 500 each to King Emperor Qaiser-e-Hind as a penalty if they failed to do so.

Yasin absconded. All attempts to secure his presence before the Court were of no avail. Consequently notices were issued under s. 514 of the Code of Criminal Procedure to the sureties

to show cause why their bonds should not be forfeited.

The Magistrate, after giving the matter his consideration, ordered their bonds to be forfeited to the extent of Rs. 300 each.

The respondent appealed to the Sessions Judge of Gonda who dismissed his appeal.

Dissatisfied with the orders of the :Magistrate and the Sessions Judge, the respondent filed a criminal revision in the High Court and Mulla J. allowerl his application and set aside the order of the Magistrate forfeiting the bond executed by him.

At the request of the Government Advocate the learned Judge granted the requisite certificate by virtue of which the present appeal is before use.

The only question for consideration is whether the bond executed by the respondent was one under the Code of Criminal Procedure and therefore capable of being forfeited in accordance with the provisions of s. 514, Criminal Procedure Code. Section 499 of the

Code requires that before any person is released on bail or; released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be.

In Schedule V of the Code of Criminal Procedure various forms are set out and s. 555 of the Code provides that subject to the power conferred by s. 554 and by

The Stat• <f Uttar Praduh

Mohammed Say<ed

Imam j,

The State of Uttar Pradesh

Mohammed Sayud

Imam J.

SUPREME COURTREPORT3

Art. 227 of the Constitution, the forms, set forth in that Schedule, with such variation as the circumstances of each case require, may be used for the respective purposes therein mentioned, and if used shall be sufficient.

Form XLII of that Schedule sets forth the contents of a bond to be executed by an aacused and his surety.

The bond is in two parts--one part to be signed by the accused and the other part to be signed by his surety or sureties.

Both the accused and the sureties in executing such a bond guarantee the attendance of the accused in Court whenever called upon to answer the charge against him and in case of default also bind themselves to forfeit to Government the specified sum of money mentioned therein.

This is what the bond should state since the Adaptation of Laws Order, 1950, dated January 26, 1950.

Previous to that Order the word Government did not appear in the bond.

By virtue of cl. 4 of the said Order, whenever an expression mentioned in column 1 of the Table thereunder occurred (otherwise than in a title or preamble or in a citation or description of an enactment) in an existing Central or Provincial Law whether an Act, Ordinance or Regulation mentioned in the Schedules to the Order, then unless that expression was by the Order expressly directed to be otherwise adapted or modified, or to stand unmodified, or to be omitted, there shall be substituted therefor the expression set opposite to it in column 2 of the said Table.

In column 1 of the Table the words "Crown" "Her Majesty" and "His Majesty" appear and against them in column 2 the word "Government" appear~.

The plain reading of this clause is that wherever the words "Crov:n", "Her Majesty" or "His Majesty" appear, for them, the word "Government" shall be substituted in the existing Central or Provincial Laws mentioned in the First Schedule to the Order. The Code of Criminal Procedure is one of the Central Laws mentioned in the said Schedule wherein Schedule V of the Code of Criminal Procedure is mentioned and the Order directs that throughout Schedule" V of the Criminal Procedure Code, except where otherwise provided, for the words "Her Majesty The Queen"

and "His Majesty The King" the word "Government" shall be substituted.

Previous to the Adaptation of Laws Order, 1950, there was the Adaptation of Laws Order, 1948 and the words "Empress of India" appearing in the bond were repealed and in place thereof the words "Her Majesty The Queen" were substituted.

India attained Dominion status in 194 7 and became a Republic in 1950. The Adaptation of Laws Order, 1948 and that of 1950 were consequential upon the change of status of India into a Dominion and then into a Sovereign Republic. Since January 26, 1950, therefore no bond exetuted in favour of the Empress of India could be said to be a bond executed under the Code of Criminal Procedure. The bond which the respondent had executed was to forfeit to the King Emperor a certain sum of money if he made default in procuring the attendance of the accused before the Court. He did not execute a bond by which he bound himself to forfeit the said sum either to the Government of the Union of India or that of the State of Uttar Pradesh.

The bond executed by him in 1953 was a bond unknown to the law of the Republic of India under the Code of Criminal Procedure at the time of its execution.

Section 514 of the Criminal Procedure Code empowers a court to forfeit a bond which has been executed under the provisions of that Code and since the bond executed by the respondent is not one under the Code of Criminal Procedure, resort could not be had to the provisions of s. 5 l 4 of the Code to forfeit the same.

It was, however urged on behalf of the State that under cl. 4 of the Adaptation of Laws Order, 1950 the form of the bond stood amended by the substitution of the word "Government" therein in place and stead of the words "Her Majesty The Queen" and the bond should be read accordingly.

The words King Emperor Qaisar-e-Hind must be deemed 2s no longer existing in the forfeited bond.

Clause 4 of the Order, however, directs that the word "Government" shall be substituted for the words "Crown", "Her Majesty" and "His 11ajesty". There is no mention therein of the words king Emperor or Emperor of India, Queen Empress or Empress of India or Qaiser-e-Hind as being so

. The State of Uttar Pradesh

Mohammed Sayeed

imam J.

The State of Uttar Pradesh

v Mohamm; d Sayud

Imam].

substituted.

The words King Emperor Qaisar-e-Hind in the bond executed by the respondent cannot therefore be read, by virtue of cl. 4 of the Order, to mean Government. There has undoubtedly been some error, carelessness or negligence on the part of those on whom a duty lay to make the necessary changes in the phraseology of the bond set out in Schedule V of the Code of Criminal Procedure to be executed under s. 499.

The fact, however, remains that the respondent had not bound himself either to the Government of the Union of India or that of the State ofUttar Pradesh to have his bond forfeited on his failure to produce the accused before the court and he is entitled to say that no order of forfeiture could be passed against him with respect to a bond which was not one under the Code and which was one unknown to the law, as contained in the Code, at the time of its execution. The objection raised by the respondent to the order forfeiting the bond executed by him is a substantial one and the said order was made under a misapprehension that it could be made under s. 514 of the Code of Criminal Procedure.

The appeal is accordingly dismissed.

Appeal dismissed;

THE STATE OF

UTTAR PRADESH

MOHAMMED SA YEED

BHAGWATI

JAFER IMAM

A.K. SARKAR JJ.

Code of Criminal Procedure

ss. 499, 514

cl. 4

Government of the Union of India

State of Uttar Pradesh

cl. 4

Constitution of India

G. C. Mathur

C. P. Lal

IMAM

Allahabad High Court

Mohammad Yasin

s. 379

Indian Penal Code

Ram Narain

s. 499

Yasin

s. 514

Code of Criminal Procedure

Sessions Judge of Gonda

Mulla J. allowerl

Code of Criminal Procedure

s. 514

Criminal Procedure Code

Section 499

Schedule V

Code of Criminal Procedure

s. 555

s. 554

Mohammed Say

Mohammed Sayud

Art. 227

January 26, 1950

cl. 4

First Schedule

Code of Criminal Procedure

Schedule V

Code of Criminal Procedure

India

Code of Criminal Procedure

Republic of India

Code of Criminal Procedure

Section 514

Code of Criminal Procedure

s. 5

cl. 4

Clause 4

Mohammed Sayeed

imam

cl. 4

Schedule V of the Code

s. 499

State ofUttar Pradesh

s. 514

Code of Criminal Procedure