(2) S.C.R.

SUPREME COUR'l' REPORTS 761

THE PATNA ELECTRIC SUPPLY CO., LTD.,

PATNA

THE PATNA ELECTRIC SUPPLY vVORKERS'

UNION (B. P. SINHA, P. B. GAJENDRAGADKAR and

K. N. WANCHOO, JJ.)

Industrial Dispute-Housing Jacilities for industrial labour-- Award based on Bihar Government Scheme~Validity.

One of the i terns in dispute referred to the Industrial Tribunal for adjudication, which was the subject matter of this appeal, related to the demand of the Workers' Union that the appellant company must provide quarters to its employees in terms of the Bihar Government Scheme and undertake immediate construction for that purpose. The case of the Company was that the State and not the employer was primarily responsible for providing quarters to the employees and, in any event, it was not financially possible for the appellant to undertake the task. The Tribunal upheld the Union's claim and directed the company to start construction of at least 15 quarters, as specified by the Government scheme, within a year. The Labour Appellate Tribunal, on appeal, held that the Government scheme was binding on the company and upheld the award.

The scheme, on which the award was based, was one prepared by the Industrial Housing sub-Committee appointed by the Government of Bihar and sanctioned by the Government as recommended by the Bihar Central (Standing) Labour Advisory Board. It imposed on the employers the responsibility for housing industrial labour and provided for financial assistance to the employers by the State Government to the extent of 50% of the capital required, by way of loan repayable in 25 annual instalments, recoverable, on default, from the properties mortgaged for the loan or the assets of the debtor. The scheme prescribed the terms on which the quarters were to be let out to the employees and specified their size.

It was contended on behalf of the appellant that, the scheme was not obligatory and could not impose a term of employment for the workmen. For the Union it was argued that the scheme had materially altered the rule, followed by industrial adjudication in such cases, so far as the State of Bihar was concerned and had imposed a moral obligation on the appellant.

Neither the Industrial Tribunal nor the Labour Appellate Tribunal in appeal, took the financial position of the company into consideration where they held that the Scheme did impose a

I959

April 23.

I959

The Patna Electric Suj-1ply Co , Ltd., Patna

The Patna Electric Supply

JVorkers' Union

moral obligation on the appellant to provide quarters for its employees, which \Vas enforceable in industrial adjudication.

Held, that the scheme sanctioned by the Bihar Government was merely of a recommendatory nature and since it had no statutory force it could not provide a basis for the direction made by the a\vard.

Its language sho\ved that it was vague and not intended io be acted upon anJ so it could not have the effect of intro. ducing a term of employment as between the employer and the ¥.'Or.k1nen.

Although there could be no doubt that, Industrial Tribunals' had generally the power and jurisdiction, apart from any scheme or agreen1ent bet\veen the parties, in appropriate cases, to impose new obligations on the employers in the interest of social justice and for securing peace and co-operation between the employer and the \VOrkmen, the award in appeal could not be justified on the merits under the prevailing condition of the industrial evolution in the country.

H 1 estern India Autu!J'iohile Association v. The Industrial Tribunal, Bombay, A.LR. r949 F.C. rrr, The Bharat Bank Ltd., Delhi v.

The Employees of the Bharat Bank Ltd., Delhi, [1950] S.C.R. 459 and Rohtas Jndu.stries Ltd. v. Brijnandan Pandey, [1956] S.C.R. 800, referred to.

It was the duty of Industrial Tribunals to take into consideration the interests of national economy and progress and they were entirely right in taking the view, which they had consistently done, that it would be inexpedient in the present financial condition of the industries in the country to impose the additional burden of providing housing facilities on them which should be the primary responsibility of the State.

Eastern Plywood Manufacturing Co., Ltd. v. Their Workers, [1949] L.L.J. 29r, Mohamad Rai Akbarali Khan v. The Associated Cement Companies Ltd., [1953] L.A.C. 677, Samastip"r Central Sugar Co., Ltd. v. Their Workmen, [1955] 2 L.L.J. 727 and M/s.

National Carbon Co. (India) Ltd. v. National Carbon Co. Mazdoor Union, Calcu.tta, [r956] L.A.C. 660, approved.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 227 of 1958.

Appeal by special leave from the judgment and order dated January 31, 1956, of the Labour Appellate Tribunal of India, Calcutta, in Appeals Nos. Cal. 36 and 38 of 1953.

M. C. Setalvad, Attorney-General for India and Na unit Lal, for the appellant.

P. K. Chatterjee, for the respondents.

1959. April 23. The Judgment of the Court was delivered by

GAJENDRAGADKAR, J.-This appeal by special leave r959 arises out of an industrial dispute between the Patna The Patna Electric Supply Co., Ltd., (hereafter called the appel- Electric supply ]ant) and its workmen represented by the Patna Elecc Ltd p o, ., at11a _ tric Supply Workers' Union (hereafter called the v. respondent). The appellant is a public company incor- The Patna porated under the Indian Companies Act and has its Electric Supply d 1 Workers' Union registered office at Patna. It is an in ustria establish- _ ment' engaged solely in public utility service, namely, Gajendragadkar J. the supply of electricity for the requirements of the public and is a licensee under the provisions of the Electric Supply Act, 1948 (54 of 1948). On March 29, 1952, the Government of Bihar, by a notification issued under s. 7 read with s. 10(1) of the Industrial Disputes Act, ffi47 (14 of 1947) (hereafter called the AcL) referred twelve items of dispute for adjudication to the Industrial Tribunal consisting of Mr. H. K.

Chaudhuri as the sole member. Out of the said items the present appeal is concerned with only one; and it relates to "the housing facilities to the workmen and principle of allotment of quarters to them ". The respondent had put forward a demand that the appellant should provide houses to its employees and should undertake the construction of quarters immediately in that behalf. The respondent's case was that the appellant was bound to provide quarters to its em ployces and let out the same to them according to the Bihar Government scheme. The appellant denied its liability to make any housing provision for its employees and that gave rise to the industrial dispute.

The appellant urged before the tribunal that the housing facilities and allotment of quarters to workmen was the primary responsibility of the State and not of the employer; and it alleged that in any event it was financially not possible for the appellant to undertake the task.

The appellant had also contended that it had to function within the limits prescribed by the Electricity Supply Act, 1948, and that the relevant provisions of the said Act would not permit the appellant to undertake any expenditure to meet the respondent's demand.

On March 9, 1953, the tribunal upheld the respondent's claim and by its award it directed the appellant

'959 to start construction of at least 15 quarters according Th P to the specifications laid down in the Government Elect;;, ;~":rzy schme within one year from the date of the publica- Co.,.Ltd., Patna catIOn of the award. v.

This part of-the award was challenged by the appel- • The Patna !ant before the Labour Appellate Tribunal; but the Electric Supply appellate tribunal was not imp ressed by the appel- Workers' Union !ant's pleas and so it dismissed the.appeal on January Gajendrngadkar J. 31, 1956. It agreed with the tribunal in holding that the scheme sanctioned by the Bihar Government was binding on the appellant and it saw no substance in the appellant's contention that expenditure involved in the construction of the quarters would be inadmissible under the Electricity Act.

The appellant then applied for, and-obtained, special leave from this Court on September 17, 1956. That is bow this appeal has come to this Court, and the only question which it raises for our decision is whether the direction issued by the award calling upon. the appellant to start the construction of at least 15 quarters is justified or not. It is true that the appellant bas provided housing facilities for some members of its staff. It appears that 17 employees out of 183 in the Power Station, 146 out of 329 in the Mains Department, and I out of 58 in the General Department have been provided by th!l appellant with free quarters, whereas one employee in the Mains Department is granted honse allowance at

12~% in lieu of a house.

But this arrangement is a matter of the appellant's choice and volition; and it cannot be made an obligation and thus virtually a term of employment; that is the appellant's case.

On the other band, the respondent's contention is that the Bihar Government scheme of industrial housing has now been finalised and it imposes upon the appellant an obligation to provide housing facilities for all its employees. It is not seriously disputed by the respondent that the industrial adjudication has so far consistently held that providing housing facilities for industrial labour is the primary responsibility of the State; but the argument is that the scheme formulated by the Industrial Housing Sub, Committee in

(2) S.C.l~. 8Ul'l{, EME UOUH, T HEl'OH.TS 765 •

Bihar bas materially altered the position so far as the 1 959 State of Bihar is concerned. It is this argument which The Patna has been accepted by the tribunals below. They have Electric supply held that the scheme sanctioned by the Bihar Governco, Ltd., Patna ment on the recommendation of the Industrial Housing v.

Sub-Committee, though recommendatory in character, The Patna imposes a moral obligation on the employer to provide Electric Supply

Workers' Union housing for his employees, and in industrial adjudica- __ lion this moral obligation can be enforced against it. Gajendragadkar J.

It is this conclusion which must first be examined.

It appears that in March 1938 the Government of Bihar had set up a Committee known as the Bihar Labour Enquiry Committee under the Chairmanship of Dr. Rajendra Prasad for the purpose of enquiring into the conditions of industrial labour in the State and for making such recommendations as might appear practicable with the object of improving the level of wages and conditions of work of industrial workers.

This Committee submitted its report to Government in April 1940. It had suggested that housing on an adequate scale should be made a statutory obligation of the employer but the extent to which the industry could be required to fulfil such an obligation should be determined by the State Government after careful investigation into its financial condition. No action was, however, taken on this recommendation by the State Government.

Subsequently the Bihar Government appointed the Industrial Housing Sub-Committee cm the recommendation of the Bibar Central (Standing) Labour Advisory Board and this Sub-Committee submitted its report on December 16, 1948, recommending the setting up of an industrial housing board for formulating certain schemes for housing industrial workers.

The matter was then considered by the Bihar Central (Standing) Labour Advisory Board on :February II, 1950, and the Board asked the Industrial Housing Sub-Committee to re-examine the question further and make specific recommendations. Accordingly the Sub.

Committee reconsidered the matter and made its final recommendations on August 17, 1950.

These recommendations were considered by the Bihar Central

r959

The l'alna Electric Supply Co, Ltd., l)atna

766 SUPREME COURT REPOitTS [1959] Supp.

(Standing) Labour Advisory Board in September 1950 and they were adopted by it with slight modifications.

This scheme was finally sanctioned by the State Government.

Under this scheme the responsibility for housing in- The Patna dustrial labour is placed on the shoulders of the em- Elecl•ic supply 1ilo,-ers.

To begin with the scheme was intended to Workers' Union .J

be applicable only to factories registered under Facto- Gajendragadkar J. ries Act, 1948. lt provides for financial assistance by State Government to the employer on terms and conditions specified in it. It appears that under para. 4 of the scheme the State Government may give loan to the employer to the extent of 50% of the capital required for industrial housing and that the loan would carry interest at 3% per annum. The remaining 50% of the capital is to be provided for by the employer. The amount granted as a loan together with interest thereon bas to be repaid by the employer in 25 annual instalments of equal amount on the dates fixed for such repayment. There is also a default clause which enables the State Government to recover the amount due from the properties mortgaged to the State Government for the loan or from other assets of the borrower. The scheme prescribes the terms on which the quarters when built should be let out to the employees. and it lays down the standard size and other specifications of the quarters. The respondent's contention is that since this scheme has been sanctioned by the State Government it imposes on the employers in the State of Bihar a moral obligation to implement it and industrial adjudication can give effect to the scheme by issuing appropriate directions by their awards; this contention has been accepted by the tribunals below.

\Ve do not think that the scheme in question can justify the direction issued by the award under appeal.

It is clear that though the original Bihar Labour Enquiry Committee had recommended to the State Government that housing on an adequate scale should be made a statutory obligation of the employer, the State Government has so far taken no action on this recommendation. It is common ground that the State

Legislature has passed no legislation imposing statur959 , tory obligation on the employer to provide for housing The ratna _on an adequate scale to his employees. The scheme Electric supply in question on which the respondent relies has no co., Ltd., Patna statutory force. It merely approves of the recomv. mendations made by the Bibar Central (Standing) The. Patna Labour Advisory Board and the only liability which Etectnc , supply Workers Union the State Government has purported to undertake by _ . sanctioning the scheme is to agree to afford partial Gajendragadkar J. financial assistance to the employers on the terms and conditions specified in it. In other words, if any industrial employer wants to provide housing facilities for his employees he may be able to ask for financial assistance from the State Government and the State Government may afford such assistance under the scheme; but that is a very .different matter. It may be conceded that in a large majority of cases industrial labour is very badly in need of housing accommodation, and it would, therefore, be desirable that such facilities should be afforded to labour either by the State or if possible by the employer or by both of them acting together in co-operation; but we do not see how the present scheme which no doubt is laudable in its object can afford any valid basis for issuing directions against the appellant calling upon it to construct quarters for its workmen as the award purports to do.

It appears that both the tribunals assumed that the scheme in question had been adopted with the consent of the appellant and as such the appellant was bo.und by it.

This assumption is clearly unjustified.

No partner of the appellant was a member of the Committee and Mr. Chandra, the appellant's Labour Adviser was not its member in 1950 but became one in 1952.

Mr. Chandra is a Labour Adviser of other companies as well and so it would be difficult to accept the argument that even after be became a member in 1952 he could represent the appellant in the legal sense so as to bind it by his consent; but apart from this aspect of the matter, even Mr. Chandra was not a member in 1950 when the scheme was adopted. It is true that some representatives of industrial employers were nominated by the State Government as members

7 959 of the Committee; but that would not jnstify the assumption that the scheme adopted by the Com- The Patna Electric supply mittee and sanctioned by the Government is binding co., Ltd, Patna on the appellant. It is significant that even the scheme v. lays down tha, t providing housing accommodation to The Patna the lowest paid workers is mainly the responsibilit.y of Elec"ic Supply the employers and that the State Government could Workers' Union _ only help the employers by giving them aid in the Gajendragadl<ar J. form of loan and in the matter of acquisition of land.

The scheme is thus merely recommendatory and the use of the word "mainly" shows that it is vague and cannot be, and was not expected to be, enforced as it stands. It is clear that tribunals cannot call upon the Governm'ent to advance a loan to the employers whenever they pass awards calling upon the employers to start the construction of quarters for their employees; so that if Government takes time to sanction the required loan, or, owing to its own difficulties, it is unable to sanction it, the employer would be exposed to the risk oft.he penalties arising out of his failure to comply with the award; and that only serves to emphasise that the problem must be tackled by the employers and the State in co-operation with each other and cannot at present at least be treated as a subject-matter of an award .. We are, therefore, satisfied that the scheme in question which is the sole basis for the award cannot have the effect of introducing a term of employment between the appellant and its workmen in regard to housing facilities.

We may incidentally point out that if the present award is upheld it would give rise to similar demands from employees in other allied or similar industries in Bihar; and if such demands are upheld it would inevitably impose a very large burden on the employers and that may materially affect the industrial progress of the State of Bihar. It is necessary to emphasise that, in considering the claims of workmen sympathetically on the ground of social and economic justice, industrial adjudication has to bear in mind the interests of national economy and progress which are relevant and material. We must, therefore, hold that the award under appeal cannot be sustained on the

basis of the scheme sanctioned by the Bihar Governz959 ment.

It lias, however, been urged before us on behalf of ElTht •. P5atna 1 d h h . d ec ric . upp y the respon ent that, apart from t e scheme, t em usco .. Ltd, Patna trial tribunal has jurisdiction to make an award "· calling upon the appellant to provide housing accom- The Patna modation for its employees. The argument is that, Electric Supply unlike commercial arbitration, industrial arbitration Workers' Union may, and often does, involve the making of a new con- G . nd agadilar 1 tract or the imposition of new obligations on the aJe r • employer in the interests of social justice; and having regard to the fact that the employees are very badly in need of housing accommodation it was open to the tribunal in the present case to have directed the appellant to make a beginning in that direction by providing housing .accommodation to some of its employees. In support of this argument the respondent has relied upon the oft-quoted observation of Ludwig Teller that "Industrial arbitration may involve the extension qf

an existing agreement or the making of a new one, or, in general, the creation of new obligations or modification of old ones while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements "(1).

There is no doubt that in appropriate cases industrial adjudication may impose new obligations on the employer in the interest of social justice and with the object of securing peace and harmony between the employer and his workmen and full co-operation between them. This view about the jurisdiction and power of the industrial tribunals has been consistently recognised in this country since the decision of the Federal Court in Western India Automobile Association

v. The Industrial Tribunal, Bombay (2).

In that case the employer had chall.<:Jnged the jurisdiction of the industrial tribunal to direct the reinstatement of his employees ; and it was urged that such a direction was contrary to the known principles which govern the

(r) Ludwig Teller's" Labour Disputes & Collective Bargaining", Vol. J, p. 536. {z) A.LR. 1949 F.C. III, 120.

I959 relationship between master and servant and was out.

Th' Patna side the jurisdiction of the tribunal. This contention

El<ctdc supply was negatived by the :Federal Court, and it was co., Ud., Patna observed that industrial adjudication does not mean v.

The Patna Electric Supply Workers' Union

adjudication according to the strict law of master and servant. "The award of the tribunal", observed Mahajan, J., in delivering the judgment of the Court, " may contain provisions for the settlement of a dis- Gaj, ndragadkar ;. pute which no Court could order if it was bound by ordinary law, but the tribunal is not fettered in any way by these limitations". The same view has been more emphatically expressed by Mukherjea, J., in The Bharat Bank Ltd., Delhi v. The Employees of the Bharat Bank Ltd., Delhi (1 ). "In settling the disputes between the employers and the workmen", observed the learned Judge, "the function of the tribunal is not confined to administration of justice in accordance' with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or to give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace". In Rohtas Industries Ltd. v. Brijnandan Pandey('), Mr. Justice S. K. Das has expressed the same conclusion en he observed that "a court of law proceeds on the footing that no power exists in the courts to make contracts for people; and the parties must make their own contracts. The courts reach their limit of power when they enforce contracts which the parties have made.

An Industrial Tribunal is not so fettered and may create new obligations or modify contracts in the interests of industrial peace, to protect legitimate trade union activities and to prevent unfair practice or victimisation". Thus there can be no doubt that an industrial tribunal has jurisdiction to make a proper and a reasonable order in any industrial dispute; and in that sense the respondent may be right when it contends that it was within the competence of the tribunals below to entertain its

(I) [1956] S C.R. 459, 513.

(z) [1956] s.c.R. 800, 810.

grievance about housing accommodation and to give it appropriate relief in that behalf.

The Patna Eiectric Supply Co., Ltd., Patna v.

But assuming that the tribunal had jurisdiction to entertain the dispute, the question still remains whether, apart from the agreement on which the tribunals have based their decision, the award under appeal The Patna can be 1ustified on general grounds. In our opinion, Electric supply Workers' Union under the present conditions the answer to this question has to be in favour of the appellant and against Gajendragadkar ]. the respondent. Industrial tribunals have consistently taken the view that housing accommodation of industrial labour is the primary responsibility of the State ; and there has also been no difference of opinion on the point that in the present economic condition of our industries it would be inexpedient to impose on the employers the obligation to provide housing accommodation for their employees. Besides a scheme of wages properly fixed necessarily takes into account house rent amongst other relevant facts; and under a proper scheme of dearness allowance adjustments can be made when necessary from time to time so as to take into account an appreciable rise in the rents which industrial labour my have to pay. That is why usually tribunals do not entertain employees' claim for housing and do not even allow a separate demand for house allowance as such. This position is not disputed before us by the respondent.

We may, liowever, refer to a few typical decisions of the Industrial Tribunals on this point. In Eastern Plywood Manufacturing Co., Ltd., And Their Workers (1) the Industrial Tribunal rejected the workmen's claim for housing accommodation or in the alternative for house rent allowance of Rs. 10 per month on the ground that the obligation for housing labour in an urban area is not really on the employer, and that the tribunal had already considered in the issues on basic pay and dearness allowance as to how much the company should be directed to pay in emolument~ to its workmen. The tribunal thought that it woulrl not be reasonable to saddle the company with any further financial commitments in the shape of house rent allowance.

(1) [1949] L.L.J. 291,

. x9s9 In Mahomad Rai Akbarali Khan v . . The Associated

The Patna Cement Companies Ltd. (1), the Labohr Appellate Tri- , Elect.ic supply bmial has considered this problem. It was urged by Co., Lid., Patna the employees before the appellate tribunal that the v. employers should either provide quarters or pay house

EI Th•. P5atnpopl rent allowance, whereas the company contended that "t"' u Y t th r f h d Workers' Union rt was no e unct10n o t e management to prov1 e accommodation for its employees. The appellate tri- Gajmdragodkar J. bunal, however, took the view that the emplqyers'

contention should be accepted subject to considerable qualifications in certain cases; and it proceeded to consider the special features of the problem presented by the employers' factory at .Sevalia. Sevalia was a village until the employer went there to start its factory which needed the services of' a large contingent of workers. "When an industrial concern like this"; observed the appellate tribunal, "bursts upon a rural area there is a very considerable impact on its economy. The inhabitants nearby join the factory as well as those living further away; there is also an influx of persons from outside; in short it means that accommodation becomes scarce and expensive; and if a workman has to go further afield for his accommodation he is put to considerable physical fatigue and inconvenience. In such circumstances it has not been the policy of the tribunals to ignore a claim for house rent allowance". After making these observations, the appellate tribunal proceeded to readjust the dearness allowance payable to the employees after taking into account the increased house rent which they had to pay for their housing accommodation in Sevalia ; and having thus readjusted the dearness allowance the appellate tribunal held that no separate order as to house rent .allowance was necessary. It appears that in that, case the industrial tribunal had taken the view that the problem was not likely to be solved by granting house rent allowance to the employees and that the only practical course, therefore, was that the company should either help the workers in building their houses or that the company itself should construct quarters. That is why it bad rejected the

(1) [1953] L.A.C. 677.

employees' demand for house rent allowance but had r959 recommended to the concern to undertake building The Patna operations. The Labour Appellate Tribunal reversed ElectriC supply this conclusion and took a more practical and a wiser co., Ltd., Patna course by readjusting the dearness allowance so as to v. grant adequate relief to the employees in that behalf.

The Patna It would thus be seen that even where the employer wElecktric , 5uuply h d d f 11 11 l.k S i or ers nion a starte its actory at a sma v1 age i e eva 1a _ the appellate tribunal did not accept the employees' Gajendragadkar ]. demand for housing accommodation and did not also think it proper to ask the employer to pay to its employees any separate special house rent allowance.

In Samastipur Central Sugar Go., Ltd., And Their Workmen (1) the Labour Appellate Tribunal had occasion to consider this question once again. In dealing with the merits of the problem, it accepted the decision of the Appellate Tribunal in Mahomad Rai Akbarali Khan v. The Associated Cement Go. Ltd. {2), •• and observed that "where the basic wage and dearness allowance are consolidated, house rent at the normal time and the subsequent rise must be presumed to have been taken into account when the total consolidated amount was fixed".

The same view was taken by the Labour Appellate Tribunal in 11Iessrs. National Carbon Go. (India) Ltd. v.

National Carbon Go., M azdoor Union, Calcutta (3).

In that case the tribunal had directed the employer to pay his workmen house rent allowance because it had taken the view that in making the said order it was granting a relief lesser than granting free quarters which the employees had claimed and that the lesser was involved in the greater relief and could be granted by it. On the evidence adduced in the said proceedings the Labour Appellate Tribunal did not agree with this view. It held that "provision for free quarters by constructing houses cannot permit of comparison with payment of house rent allowance in money month after month to determine which is greater and which is smaller than the relief of providing free quarters".

On this view the Labour

(1) [1955] II L.L.J. 727, 730.

(2) [1953] L.A C. 677.

(8) [1956] L.A.C. 660.

'959 Appellate Tribunal came to the conclusion that the tribunal had no J

0 Urisdiction to award house rent The Patna Ekctdc supply allowance when the dispute referred to it for adjudica- Co., Ltd .. Patna tion was about free quarters.

It is thus clear that industrial tribunals have conn, Patna sistently refused to entertain a claim for housing Elect>ic supply accommotlation or for the grant of a special and sepa- Workers' Union __ rate housing allowance against their employers. That

Gajendrngadka, J. is why in making the award under appeal the tribu,

nals below were at pains to emphasise the fact that the scheme sanctioned by the Bihar Government made the position substantially different so far as Bihar was concerned.

The problem of housing industrial labour has been the subject-matter of some legislative enactments.

As regards the workers employed in Plantations, the Plantations Labour Act, 1951 (69 of 1951), provides that it shall be the duty of every employer to construct and maintain for every worker and his family residing in the plantation necessary housing accommodation subject to the other provisions of the Act.

Housing Boards have also been established in different States to tackle the larger problem of housing in general.

The Bombay Housing Board Act, 1948 (Born. 69 of 1948), the Mysore Labour Housing Act, 1949 (Mys. 28 of 1949), the Madhya Pradesh Housing Board Act, 1950 (Madhya Pradesh 43 of 1950), the Hyderabad Labour Housing Act, 1952 (Hyd. 36 of 1952), the Saurashtra Housing Act, 1954 (Saurashtra 32 of 1954) and the U. P. Industrial Housing Act, 1 1955 (U. P. 32 of 1955), are attempts made by the respective States to nieet their responsibility in the matter of providing housing accommodation to its citizens in general and to industrial labour in particular.

This problem appears to have been considered by the Planning Commission in its report on the Second Five Year Plan. Chapter 26 of the re.port deals with the general problem of housing and ch. 27 deals with labour policy and programmes. The discussion of the problem in these two chapters shows that housing shortage can be conquered only by sustained ;:ind well

planned efforts made by the States and the industry together. It is a very big problem and involves the expenditure of a huge amount. Efforts are being made by the Central Government to invite the co-ope-

I959

The Patna Electric Supply Co, Ltd., Patna ration of industrial employers to tackle this problem v. with the progressively increasing financial and other El~~; icP;~; ly assistance offered by the State Governments. But it Wotkers' Union is obvious that this problem cannot at present be tackled in isolation by industrial tribunals in dealing Gajend1agadkar J. with housing demands made by employees in individual cases. In the present economic condition of our industries it would be inexpedient to impose this additional burden on the employers. Such an imposition may retard the progress of our industrial development and production and thereby prejudicially affect the national economy.

Besides such an imposition on the employers would ultimately be passed by them to the consumers and that may result in an increase in prices which is not desirable from a national point of view. It is true that the concept of social justice is not static and may expand with the growth and prosperity of our industries and a rise in our production and national income; but so far as the present state of our national economy, and the general financial condition of our industry are concerned it would be undesirable to think of introducing such an obligation on the employers today. That is why we think the industrial tribunals have very wisely refused to entertain pleas for housing accommodation made by workmen from time to time against their employers.

In the present case it is clear that the question about the financial ability of the appellant to meet the additional burden imposed by the award has not been considered at all. In fact the Tribunals below seem to have taken the view that since the appellant is bound by the scheme it is immaterial, if not irrele-

- vant, to enquire whether the appellant would be able to meet the expenses involved in the construction of quarters as directed by the award. It is obvious that such a view proceeds on purely theoretical considerations wh~ have no relation to existing facts in regard to the financial position of the industry or the state of

I959

The T'atna Electric Supfly Co., Ltd., Patna v.

The Patna

national economy. In fairness to the Tribunals we ought to add that if the tribunals had not taken an erroneous view about the effect of the scheme sanctioned by the Bihar Government they would not have granted the demand made by the respondent for housing accommodation. Since we hold that on the Elecfric supply merits the award cannot be sustained we do not think Workers' Union it is necessary to consider whether the expenditure

Gajcndragadkar J. involved in the construction of quarters would be admissible under the relevant provisions of the Electricity Act.

April 23.

The result is the appeal succeeds and the award under appeal is set aside. , In the circumstances of this case we think it would be fair that the parties should bear their own costs.

Appeal allowed.

DIN DAYAL SHARMA

THE STATE OF UTTAR PRADESH

(JAFER !MAM and J. L. KAPUR, JJ.)

Criminal Trial-Bribery and criminal miscond14ct-Accused committed to Court of Session-Law amended making such cases triable by Special Judge-Sessions Judge, if has jurisdiction to continue trial-Investigation by officer below Deputy Superintendent of Police-Whether trial vi(iated-Prevention of Corruption Act, I947 (II of Ig47), s. 5-A-Criminal Law (Amendment) Act, I952 (46 of

I952), S. IO. .

The appellant was committed to the Court of Session for trial of offences under s. 5(2) Prevention of Corruption Act, 1947 and s. r6r Indian Penal Code. Shortly thereafter, the Criminal Law (Amendment) Act, 1952 came into force.

An Assistant Sessions Judge tried the appellant aud convicted him of the offences charged. The appellant contended that the trial was vitiated as the investigation had been mad~ by a police officer below the rank of Deputy Superintendent of Police and that the Assistant Sessions Judge had no jurisdiction to try the case as it was triable by a Special Judge. "f< Held that, the Assistant Sessions Judge had jurisdiction to

P. B. GAJENDRAGADKAR

K. N. WANCHOO, JJ.

Companies Act

Electric Supply Act, 1948

s. 7

s. 10(1)

Industrial Disputes Act

Electricity Act

Plantations Labour Act, 1951

Bombay Housing Board Act, 1948

Mysore Labour Housing Act, 1949

Madhya Pradesh Housing Board Act, 1950

Hyderabad Labour Housing Act, 1952

Saurashtra Housing Act, 1954

Industrial Housing Act

Electricity Act

Prevention of Corruption Act

s. 5

s. 5(2)

Prevention of Corruption Act, 1947

Indian Penal Code


I959

The T'atna Electric Supfly Co., Ltd., Patna v.

The Patna

776 SUPREME COURT REPORTS [1959) Supp.

national economy. In fairness to the Tribunals we ought to add that if the tribunals had not taken an erroneous view about the effect of the scheme sanctioned by the Bihar Government they would not have granted the demand made by the respondent for housing accommodation. Since we hold that on the Elecfric supply merits the award cannot be sustained we do not think Workers' Union it is necessary to consider whether the expenditure

Gajcndragadkar J. involved in the construction of quarters would be admissible under the relevant provisions of the Electricity Act.

April 23.

The result is the appeal succeeds and the award under appeal is set aside. , In the circumstances of this case we think it would be fair that the parties should bear their own costs.

Appeal allowed.

DIN DAYAL SHARMA

THE STATE OF UTTAR PRADESH

(JAFER !MAM and J. L. KAPUR, JJ.)

Criminal Trial-Bribery and criminal miscond14ct-Accused committed to Court of Session-Law amended making such cases triable by Special Judge-Sessions Judge, if has jurisdiction to continue trial-Investigation by officer below Deputy Superintendent of Police-Whether trial vi(iated-Prevention of Corruption Act, I947 (II of Ig47), s. 5-A-Criminal Law (Amendment) Act, I952 (46 of

I952), S. IO. .

The appellant was committed to the Court of Session for trial of offences under s. 5(2) Prevention of Corruption Act, 1947 and s. r6r Indian Penal Code. Shortly thereafter, the Criminal Law (Amendment) Act, 1952 came into force.

An Assistant Sessions Judge tried the appellant aud convicted him of the offences charged. The appellant contended that the trial was vitiated as the investigation had been mad~ by a police officer below the rank of Deputy Superintendent of Police and that the Assistant Sessions Judge had no jurisdiction to try the case as it was triable by a Special Judge. "f< Held that, the Assistant Sessions Judge had jurisdiction to

try the case. Section IO of the Criminal Law (Amendment) Act, r959 1952 transferred only cases pending before Magistrates to Special Judges but did not transfer cases which had been committed to Din Dayal Sha.ma Court of Session before the Act came into force. v.

Asgarali Nazarali Singaporewalla v. The State, [1957] S.C.R.

The State of 678, relied on.

Uttar Pradesh Held further that, the conviction was not vitiated by the investigation having been made by an officer below the rank of a Deputy Superintendent of Police. If the matter had been urged before the Courts at an early stage it would have had to take steps to get the illegality cured by ordering fresh investigations.

But the appellant could not be permitted to raise the questions whether the objection regarding investigation had been taken at the earliest stage as the question had not been raised in the Courts below.

H. N. Rishbud v. The State of Delhi, [1955] r S.C.R. n50, relied on.

CRIMINAL

APPELLATE

JURISDICTION: Criminal Appeal No. 95 of 1957.

Appeal by special leave from the judgment and order dated December 16, 1955, of the Allahabad High Court in Criminal Revision No. 1403 of 1953, arising out of the Judgment and order dated August 6, 1953, of the Court of the Additional Sessions Judge at Meerut in Criminal Appeal No. 225 of 1953.

H.J. Umrigar and K. L. Mehta, for the appellant.

G. 0. Mathur, 0. P. Lal and G. N. Dikshit, for the respondent.

1959. April 23.

The Judgment of the Court was delivered by IMAM, J.-The appellant was convicted under s. 5(2) Imam J. of the Prevention of Corruption Act and under s. 161 of the Indian Penal Code and sentenced to one year's rigorous imprisonment on each count. The sentences were made to run concurrently.

On the facts found by the courts below the appellant accepted Rs. 20/- as illegal gratification from one Malekchand who had applied for allotment of a house.

The appellant was employed at that time as a clerk in the office of the District Relief and Rehabilitation Office, Meerut. The aforesaid sum of money was accepted by the appellant as bribe with a view to getting a house allotted to Malekchand. There can be 98

. '

'959 no question that., on the facts found, the appellant

Din Dayal Sharma was guilty both uuder s. 5(2) of the Prevention of Cor-

. v. ruption Act and under s. 161 of the Indian Penal

The State of Code.

Uttar Prndesh The first point taken was that the investigation had

Imam]. taken place by a police officer below the rank of Deputy Superintendent of Police.

Consequently, the investigation had taken place in contravention of the provisions of the Prevention of Corruption Act.

The conviction of the appellant was therefore vitiated.

This point was taken before the Additional Sessions Judge who had heard the appeal of the appellant against his conviction. The Additional Sessions Judge referred to a decision of the Calcutta High Court

which supported the submission made on behalf of the appellant. He also referred to a decision of the Allahabad High Court to the contrary effect.

He followed, as he was bound to follow, the decision of the Allahabad High Court. The decision of this Court in the case of H. N. Rishbud and Inder Singh v. 'Phe State of Delhi(') does not support the submission made by Mr. Umrigar on behalf of the appellant.

He, however, referred to a passage in the aforesaid cited decision at page 1164 to the effect that where a breach of a mandatory provision is brought to the knowledge of the court at a sufficiently early stage, the court, while not declining cognizance, would have to take the necessary steps to get the illegality cured and the defect rectified by ordering such investigation as the circumstances of the case may i; all for. It ha.s not been shown to our satisfaction that the attention of the trial court was drawn at an early stage to any breach of the provisions of.the Prevention of Corruption Act.

There had been an enquiry before commitment to the Sessions.

It is clear that during these proceedings before commitment no objection was raised that the investigation had taken place by a police officer below the rank of Deputy Superintendent of Police in contravention of the provisions of the Prevention of Corruption Act. The decision of this Court was given on December 14, 1954, and the High Court j).1dgment in the present case was delivered on

{I) [1955] I S.C.R. u50, u64.

',,.

"December 16, 1955. No point was taken before the 1959 High Court to the effect that the investigation had n D - 15, .b db ffi 1 h kfD u1aya11a7ffl.4 een ma e y an o cer be ow t e ran o eputy v.

Superintendent of Police in contravention of the pro- The stat• of visions of the Prevention of Corruption Act. Such an Uttar Pradesh objection should have been taken if the appellant was prepared to establish before the High Court that the. 1"'"m J. objection had been taken at a sufficiently early stage and that in view of the decision of this Court in the case cited the trial court ought not have proceeded with the trial unless the defect had been removed.

The decision of this Court in the case cited is clear, however, that generally a conviction is not vitiated because there had not been strict compliance with the provisions of the Prevention ofCurruption Act in the matter of investigation by a police officer.

As to whether the objection was taken at a siifficiently early stage is a question of fact and ought to have been raised in the High Court as the decision of this Court in the case cited had been delivered something like a year before. As this point in this form was not raised before the High Court we cannot allow it to be raised at this stage.

It was next contended that the Assistant Sessions Judge who tried the case had no jurisdiction to try the case as it was triable by a Special Judge only. It is clear, however, that the case had been committed to the Court of Session before the Criminal Law (Amendment) Act,' 1952, came. into force. Under s. IO of this Act all cases pending before the Court of a Magistrate were transferred to the Court of a Special Judge .. Section 10 did not purport to transfer c11oses, pending in the Court of Session at the commencement of the Act, to the Court of the Special Judge. In the case of Asgarali Nazarali Singaporewalla v. The State('}, this Court observed " The cases which were pending before the courts of sessions did not require to be so transferred because they would be tried by the procedure obtaining in the courts of sessions ancl

nothing further required to be done." It seems clear to us, therefore, that the Assistant Sessions Judge had jurisdiction to try the case as the same had been

{I) [1957] S.C.R. 678, 686.

. r959 pending in the court of Session when the Act came . ·. - into force. Din Dayal Sha, ma . . • v.

The third content10n raised was that the courts The state of below had not correctly appreciated the nature, extent u11a .. P; adesh and the quantum of proof required for raising the presumption under s. 4 of the Prevention of Corrup- Im, am J. tion Act. The High Court's judgment does not show that that Court in any way raised any presumption under s. 4 against the appellant. The following passage from the High Court's judgment would make this clear:

"It was next contended that the evidence on the

ecord does not satisfactorily prove that the sum of Rs. 20 was received by the applicant as illegal gratification. The finding on this point is a finding of fact. I have gone through the judgment of. both the courts below and . I see no satisfactory reason to disagree with the concurrent finding of both the courts on this -~ point. There is ample evidence on behalf of the prosecution to the conclusion that the sum of Rs. 20 was

~ paid by Malekchand to the applicant on his demand in order to secure the allotment of a house. There does not appear any satisfactory reason why Malekchand should have paid Rs. 20 to the applicant to procure wheat.for him." There is, therefore, no question of. any presumption being raised against the appellant. On the contrary, his defence that he had taken the sµm of Rs. 20 from l\Ialekchand to purchase wheat for him was disbelieved and l\falekchand's evidence that he had taken this money in order to secure an allotment of a house for l\Ialekchand was accepted. There appears to be no substance in the point raised.

It was next urged that the matter of sentence may be considered. The incident took place in 1951 and the appellant has been on bail and it would not bo desirable to send him back to jail. The sentence of one year's imprisonment for corruption by a public servant cannot, however, be considered as unduly severe.

The appeal is accordingly dismissed.

Appeal dismissed •

Electricity Act

DIN DAYAL SHARMA

THE STATE OF UTTAR PRADESH

L. KAPUR, JJ.

Prevention of Corruption Act

s. 5

s. 5(2)

Prevention of Corruption Act, 1947

Indian Penal Code

Court of Session before the Act

s. 5(2)

Prevention of Corruption Act

s. 161

Indian Penal Code

s. 5(2)

s. 161

Prevention of Corruption Act

Prevention of Corruption Act

Prevention of Corruption Act

Prevention of Corruption Act

Section 10

s. 4

s. 4


-------.-- ~---·

(2) S.O.R. SUPH.EME COURT HEPOHTS > ~781 ·

UJAGAR SINGH,

v. l\IST. JEO (JAFER b1A~1, A. K. SARKAR and SunnA RAO, JJ.)

Customary Law-Proof of custom-TVhm can be taken judicial notice of-]at agriculturists of the Punjab-Sister inheriting brother's property in preference to collaterals-Indian Evidence Act, r872 (rof r872), s. 57(r). The question involved in this appeal was whether under the customary law of the Punjab a sister was a preferential heir in respect of her brother's self-acquired property, to a collateral.

The respondent, the sister, relied on a custom, which she termed a special custom; and on that basis claimed her brother's pro- . perty, and the appellant, a collateral of the 8th degree of her brother, resisted her claim relying solely, on a general custom stated in paragraph 24 of the Rattigan's Digest of the Customary Laws of the Punjab to the effect that sisters were excluded by collaterals in the matter of inheritance to non-ancestral property.

The Subordinate Judge, and the District Judge on appeal, held in favour of the appellant but the High Court revei:sed their decisions holding that, there was no such general custom as recorded by Rattigan and that it was in any event for the appellants to prove that custom and this he had failed to do. The High Court also held that the respondent had succeeded in proving the custom set up by her •. It was contended on behalf of the appellant that the High Court was in error in placing the onus of proving the custom on him since the custom was a general custom as stated by Rattigan.

IIe/d, that no distinction could be made bet.ween a general custom or other customs so far as the need of proof \Vas concerned and the ordinary rule was that all customs, general or otherwise, had to be proved unless. by repeated recognition by the courts a custom had become entitled to judicial notice under s. 57(1) of the Evidence Act.

Raja Rama Rao v. Raja of Pittapt<r, (1918) LR. 45 LA. 148, relied on.

Although there could be no doubt that Rattigans Digest was of the highest authority on questions of custom of the Punjab, it was not possible, regard being had to the formidable array of conflicting decis; ons of the courts as to its existence, to take judicial notice of the custom mentioned in paragraph 24 of the Digest, without further proof.

Case-law reviewed.

Although the respondent had in the plaint relied on a custom and termed it a special custom, that could not amount to an

April a3.

' \ '" .. - \

. r959 admission which would obviate the , necessity of proof of the general customs or its. terms by the appellant.

Ujaga, Singh Even supposing that the High Court was not correct in its v. finding that the respondent had proved. the custom entitling her

Mst feo to succeed, as the custom set up by the appellant had not also been established, s. S of the Punjab Laws Act, 1872, applied and the case had to be decided by the personal law of the parties.

The respondent was entitled to base her claim on the personal _ law although in her plaint she had relied on a custom. The per- ---- -· sonal law of the parties was the Hindu law and the respondent was entitled to succeed under that law also.

Daya Ram v. Sahel Singh, no P.R. 1906, Abdul Hussein Khan v. Bibi Sona Dero, (1917) L.R. 45 I.A. 10 and Mst. Fatima Bibi v. Shah Nrrwaz, (1920) I.L.R. 2 Lah. 98, relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No . 296 of 1955. Appeal by special leave from tho judgment and decree dated September 8, 1952, of the Punjab High Court in Civil Regular Second Appeal No. 327of1948, arising out of the judgment and decree dated November 21, 1947,.of the Court of District Judge, Amritsar, in Appeal No. 212 of 1946 from the judgment and decree dated August 20, 1946, of the Subordinate Judge, 1st Class, Amritsar, in Suit No. 297 of 1945.

Achhru Ram and R. S. Narula, for the appellant.

Gurbachan Singh and Madan Lal Kapur, for the respondent.

1959. April 23. The Judgment of the Court was delivered by Sa•••• f.

SaBKAR, J.-The suit out, of which this appeal

arises concerns the right to certain plots of land in

- village Sultanwind, Tehsil and District Amritsar in the Punjab. It raises a question of the Punjab customs.

Sahib Singh, the last male owner of the lands in dispute, died in December 1918 leaving a widow Nihal Kaur. The widow succeeded to the lands but on her remarriage soon thereafter, she was divested .of them and they passed to Sahib Singh's mother, Kishen Kaur who died on November 12, 1942.

On Kishen Kaur's death disputes arose between Sahib Singh's sister, Jeo, the respondent in this appeal

and his agnatic relation, the appellant Ujagar Singh, as to the ownership of the lands. The Tehsildar entered the respondent's name as the owner of the lands in the revenue records but on appeal by the appellant, the Collector of Amritsar directed the name of the respondent to be. removed and the appellant's name to be entered in its place.

On June 11, 1945, the respondent filed a suit against, ' the appellant asking for a declaration that she was the owner of the lands. In paragraph 3 of the plaint it was stated that the respondent "came into possession of the properties left by Kishen Kaur, as the heir of her father and brother, according to the Zamindara Custom prevalent in .Mauza Sultanwind among the people of the Got (Sub-caste) Bheniwal and the custom of the family of her father ". In paragraph 5 it was stated, " According to the afore-mentioned special custom, the right of inheritance of the daughter and her descendants and in their absence that of the sister and her descendants to the property left by her father and brother is preferential to that of the collaterals beyond the fifth degree; no matter whether the property is ancestral or self-acquired." The defence taken in the written statement of the appellant was that " According to the General Custom and the Custom of the District of A:qnitsar, the plaintiff as his sister is in no way the heir of the property left by (her) brother in presence of the reversionary heirs, no matter whether the land is ancestral qua reversionary heirs or it is self acquired. There is no particular family, Got or village custom of the District of Amritsar." In substance, the position taken by the appellant was that he as the agnatic relation or collateral of Sahib Singh was entitled to the properties under the general custom of the Punjab in preference to the respondent.

The question that the suit involved was, who was the preferential heir of Sahib Singh.

The suit was heard by the Subordinate Judge, Amritsar, who found that the appellant was a collateral of Sahib Singh of the eighth degree and that the properties in dispute were not ancestral. He held that the respondent had based her claim on a special

r959

U jagar Singh

Mst. j eo

Sarkar ].

I959

Ujagar Singh v.

Mst. ]eo

Satkar ].

custom but bad not been able to establish it by necessary evidence and therefore the appellant was to be considered as the preferential heir under the general custom.

The respondent then appealed to the District Judge, Amritsar. That learned Judge confirmed the findings of the Court below that the land was not ancestral and that the appellant was a collateral of Sahib Singh of the eighth degree. He then held that the general custom of the Punjab among the agriculturists which the parties were, was, as stated in para. 24 of Rattigan's Digest of the Customary Law of the Punjab, that "sisters are usually excluded as well as their issues " and therefore put the onus of proving any special custom entitling the sister to succeed on the respondent. On the evidence led by the respondent he came to the conclusion that she had failed to discharge the onus and thereupon dismissed the appeal.

The respondent took the matter up in further appeal to the High Court of Punjab. Kapur J. who delivered the main judgment of the High Court, observed that para. 24 of Rattigan's Digest did not lay down the custom correctly and that the statement there was too broad. He held that the onus of proving the custom whereby a sister was exoluded from the inheritance lay on the appellant and that he had failed to discharge that onus.

He also held that even if the onus lay on the respondent of proving a custom giving her the right to succeed, she had succeeded in discharging that onus. Soni J., another member of the bench which heard the appeal, delivered a short judgment in effect agreeing with the view of Kapur J.

In the result the High Court allowed the appeal and upheld the respondent's claim.

The present appeal is from this judgment of the High Court. .

It is not in dispute that the parties belong to an agriculturist J at tribe and are members of the Bheniwal sub-caste of village Sultanwind in Tehsil and District Amritsar. The genealogical table on the record would show that the appellant was a ninth degree collateral of Sahib Singh and this is what the High Court found. It was not in dispute in the High Court

nor before us that the properties were not the ancestral x959 properties of Sahib Singh. h 1

Ujagar Singh Mr. Achhru Ram appearing fort e appe lant conv. tended that the learned Judges of the High Court . Mst. Jeo were wrong in placing the onus on his client.

His /r - contention was that the general custom in the Punjab .

Sarkar J. among the agriculturist tribes was that sisters were excluded by collaterals in the matter of succession to both ancestral and non-ancestral properties and that custom had been correctly set out in Rattigan's Digest.

That being so, according to him, the respondent was not entitled to the properties unless she established a special custom of the tribe or family, entitling her to succeed in preference to the collaterals and the onus of doing this must, therefore, be on her. He contended that she had failed to discharge the onus.

Eniinent Judges have from time to time pointed out that the use of the expression " the general custom of the Punjab" fa inaccurate. Plowden, J. in Ralla v.

Buddha (1) at page 223 said, "It seems expedient to point out that there is strictly speaking no such thing as a custom or a general custom of the Punjab, in the same sense as there is a common law of England,- a general custom applicable to all persons throughout the province, subject (like the English common law) to modification in its application, by a special custom of a class, or by a local custom." Young C. J. said in Mussammat Semon v. Shahu (2), "There is no such thing as general customary law known to the Legislature." In Kesar Singh v. Achhar Singh (3) Addison A. 0. J. said that the expression "general custom of the Punjab " was clearly a misnomer.

The reason given for saying that there is no such thing as general custom in the Punjab is that custom there is tribal and even with the same tribe there are different customs for different localities. So Sir Charles

Roe had said in his Tribal Law in the Punjab, " Under such circumstances, seeing that the origin of all the tribes is not the same, and that even with

(I) 50 P.R. 1893.

(2) (1934) l.L.R. I7 Lah, IO, rr.

(3) (I935) I.L.R. i7 Lah. Ior, 106.

I959

Ujagar Singh v.

Md. ]eo

Sarkar ].

tribes of the same origin local and social conditions have greatly differed, it would be impossible that there could be a single body of Customary or Tribal law, common to the whole of the Punjab": see Rattigan's Digest (13th Ed.) p. 157. Each tribe has its own customs 0 and in the Punjab there are many tribes.

None the less however the expression " general custom of the Punjab " has been frequently used. It has been used for a purpose which appears clearly from the observations of Addison J. in Kartar Singh v.

Mst. Preeto (1), set out below:

" In fact it had become customary even in the Courts to look upon custom as a thing generally followed and to place the burden of proof upon any person who asserted that his custom was not the same as the so called general custom of the Province. If this person succeeded in proving the custom he alleged, the name, ' special custom ' was given to it." The reported decisions very often proceeded on the basis that if there was a general custom, it did not have to be proved; that anybody wishing to rely on a custom at variance with the general custom, must prove it or fail in his claim.

It seems to us wrong to say that a general custom need never be proved. It is stated in Halsbury's Laws of England (3rd Ed.) Vol. 11, Art. 319 at p. 171, "All customs of which the Courts do not take the judicial notice must be clearly proved to 'exist-the onus of est:i.blishing them being upon the parties relying upon their existence". No distinction is here made between a general custom and other customs. Section 48 of the Evidence Act also contemplates the proof of a general custom. In Daya Ram v. Sohel Singh (2), Robertson J., said at p. 410:

" ......... It lies upon the person asserting that he is ruled in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, imd further to prove what the particular custom is.'' These observations were approved by the Judicial

(1) (1935) I.L.R. 17 Lah. 296, 299.

(2) uo P.R. 1906,

(2) S.C.R. SUPREME COURT REPOHTS 787

Committee in Abdul Hussein Khan v. Bibi Sona Dero (1).

It therefore appears to us that the ordinary rule is that all customs, general or otherwise, have to be proved.

Under s. 57 of the Evidence Act however nothing need b~ proved of which courts can take judicial notice. Therefore it is said that if there is a custom of which the courts can take judicial notice, it need not be proved. Now the circumstances in which the courts can take judicial notice of a custom were stated by Lord Dunedin in Raja Rama Rao v. Raja of Pittapur (2), in the following words, " When a custom or usage, whether in regard to a tenure or a contract or a family right, is repeatedly brought to the notice of the Courts of a country, the Courts may hold that custom or usage to be introduced into the law without necessity of proof in each individual case." When a custom has been so recognised by the courts, it passes into the law of the land and the proof of it then becomes unnecessary under s. 57(1) of the Evidence Act. It appears to us that in the courts in the Punjab the expression "general custom" has really been used in this sense, namely, that a custom has by repeated recognition by courts, become entitled to judicial notice as was said in Bawa Singh v. Mt. Taro (3) and Sukhwant Kaur v. Balwant Singh (4).

Is there then a custom that sisters are excluded by collaterals in the matter of inheritance to non-ancestral properties of_ which the coufts ought to take judicial notice? Mr. Achhru Ram contends that such is the position and it is recognised as such in Rattigan's Digest paragraph 24.

There is no doubt that Rattigan's Digest is of the highest authority on questions of the customs of the Punjab. But we can take judicial notice of a statement of custom therein contained only if it has been well recognised by decisions of courts of law. We have been taken through a large number of reported decisions on the question and it seems to us that the custom as stated by Rattigan

(1) (1917) L.R. 45 I.A. 10, 13. (3)

0 A.I.R. 1951 Simla 239.

(2) (1918) L.R. 45 I.A. 148, 154, 155

(4) A.LR. 1951 Simla 242.

r959

Ujagar Sinzh

Mst. ]eo

Sarkar ].

I959

Ujagar Singh

Mst. ] eo.

Sarkar ].

cannot be said to have been so well recognised as to have become entitled to judicial notice from courts without further proof.

We find in the law reports a very large number of cases 011 the subject of a sister's right to inherit, one group of which takes the view that there is no custom excluding sisters from inheritance when there are collateral relations of the last male holder and another group taking , the contrary view. It would neither be possible nor profitable to refer to all these cases here but some may be mentioned.

We shall first mention the cases which do not recognise that a custom excluding sisters from the inheritance exists. In Makhan v. Musammat Nur Bhari (1) certain seventh degree collaterals of the last male holder sued the latter's sister for possession of his properties.

No claim appears there to have been made by the collaterals that there was any general custom entitling them to succeed in preference to the sister. The case having been returned to the Chief Court after the enquiry directed by it, Elsmie, J. held:

"The result of the further enquiry is to show that the plaintiffs have been unable to prove that they are by custom entitled to exclude the sister of the last owner. On the other hand, there is some evidence, though not much, to show that sisters have inherited.

It is indeed quite clear that no well defined custom is made out one way• or the other." The result was that the sister was held entitled to a share of the properties that came to her under the Mohammedan law, the parties being Mohammedans and no custom having been proved one way or the _ other. This was a case decided in 1884.

In Sheran v. Mussammat Sharman(') in which the collaterals were the plaintiffs and the sister the defendant, it was observed :

"On the question of inheritance, for the plaintiffs it has been contended that under the general Customary Law of the Punjab governing agricultural communities, the collaterals in the male line, fifth in

(2) 117 P.R. 19or.

descent from the common ancestor, exclude sisters, but we are not prepared to assent to the wide proposition that such a general custom exists." It was also there held that there was no general custom in the Mooltan District whereby collaterals were preferred to a sister. In the end, no custom having been found to exist favouring either side and the parties being Mahomedans, the Mohammedan Ia w was applied and the sister got a share.

In Bholi v. Kahna (1), it was remarked that paragraph 24 of Rattigan's Digest was rather broadly stated and hardly warranted by the authorities quoted for and against.

In .i.'11ussammat Bhari v. Khanun (2), where the contest was between the ninth degree collaterals and a sister, the onus of proving that the collaterals were entitled to succeed in preference to the sister was placed on the collaterals who were the plaintiffs in the suit, and as the collaterals were unable to discharge the onus placed on .them, they lost.

In Mst. Fatima Bibi v. Shah Nawaz (3), it was said that the general rule laid down in paragraph 24 of Rattigan's Digest was open to the criticism that it was based mainly on authorities regarding ancestral property and on the generally accepted principles of agnatic succession which do not apply in the case of self acquired property. It was also held that the reported decisions were not such that a general rule could be said to exist on the question of a sister's right to succeed which was so widely accepted that it would justify a court in coming to any definite conclusion based on custom.

In Samo v. Sahu (4) it was said that the court below was wrong in placing the onus on the sister in a contest between her and the collaterals of the fourth degree, for, there was no such thing as general customary law known to the legislature and that Rattigan's Digest on Customary La.w merely showed that according to judicial decisions a large number of tribes were governed by certain customs in certain matters.

(1) 3.'.i P.R. 1909,

(2) 20 P. R. 1919.

(3) (1920) I.L.R. 2 Lah. 98.

(4) (1934) I. L. R. 17 Lah. 10, II.

r959

Ujagar Singh v.

Mst. jeo

Sarkar j.

Ujagar Singh v. lvlst. /eo

Sarkar j.

In Jagat Singh v. Puran Singh (1), a case decided in 1944, it was oberved at p. 369:

"As I have indicated above there is no rule of special custom when a contest arises between a sister or a sister's son against a near collateral. Then one has to fall back on general custom. There is no rule of general custom on that point. It is no doubt true that in paragraph 24 of Rattigan's Digest it has been stated that sisters and their sons are in general not heirs but that has been said in very wide terms. It may be applicable to cases of ancestral property, but it i~ difficult to say there is any special rule of general custom when a contest arises between a sister and collaterals of the third or fifth degree and the property is self acquired."

In this case neither a general nor a special custom having been proved to exist, the Court based its decision on the personal law of the parties, namely, the Hindu law.

The cases decided since 1950 all take the view that there is no general custom giving collaterals preference to sisters in matters of inheritance. They are Sukhwant Kaur v. Balwant Singh (supra), Maulu v.

Mst. Ishro ('), Harnam Singh v. Mst. Gurdev Kaur(') and Shrimati Bui v. Ganga Singh (').

We now come to the other group of cases which seem to recognise the general custom excluding sisters from inheritance when there are collaterals of the last male holder.

In Hamira v. Ram Singh('), the Court approved of the decision in Shidan v. Fazal Shah('), the judgment in which is set out as an appendix to the report. In the latter case the contest was between a sister and collaterals of the seventh degree and it was held that the onus of proving a custom entitling the sisters to succeed rested on them and this was based on paragraph 24 of Rattigan's Digest, an entry in the Ri wajii-am which applied to the parties and certain reported decisions.

Obviously, Rattigan was relied upon.

(x) (x944) 49 P.L.R 366.

(3) (1957) 59 P.L.R. 6o9.

(5) 134 P.R. 1907.

(2) (1950) 52 P.L.R. 261.

(4) (1959) 61 P.L.R. 145.

(6) (1907) P.R. at p. 646,

(2) S.C.R.

SUPREME COURT RgJ:>ORTS 791

In Harnamon v. Santa Singh (1) it was said that the burden of proving that the sister was entitled to succeed in preference to a collateral lay on her.

The same view was taken in 1lfussammat Nurbhari v.

Abdul Ghani Khan (2), Mussammat Hussein Bibi v.

Nigahia (3), Jagu v. Bhago (4), Began v. Ali Gohar( 5),

Kirpa v. Bakshi Singh (6) (case decided in 1944), Santi

v. Ujagar Singh, Ex. D. 6 in the present case (decided in 1944) and Mussammat Ratni v. Harwant Singh (7).

In some of these cases paragraph 24 of Rattigan's Digest was expressly approved of as applying to nonancestral properties.

It will thus appear that there is a formidable array of authorities in support of either view. In this state of conflict of judicial decisions we are not prepared to say that a custom giving preference to collaterals over sisters in the matter of inheritance to non.ancestral properties has been so widely or uniformly recognised by courts as would justify us in taking judicial notice of it. It is important also to note that it is recognised that a Punjab custom is fluid and capable of adapting itself to varying conditions, as stated in Hassan v. Jahana (8) and that the decisions for the last ten years are uniformly against the view expressed in paragraph 24 of Rattigan's Digest. We there- • fore come to the conclusion that the High Court was right in its view that it could not be held on the authority of paragraph 24 in Rattigan's Digest that a general custom excluding' sisters from inheritance as against collaterals, existed.

It was then said that in the plaint it had been .admitted by the respondent that there was a general custom as alleged by the appellant and so no proof of that general custom was required in this case.

We do not think this contention is justified. No doubt in her plaint the respondent referred to a custom entitling her to succeed and termed it a special custom. We are anable to read the reference to a special custom as

(1) (1912) 13 I.e. 7u.

(3) (1919) l Lah. I.

(5) A.I.R. 1934 Lah, 554.

(7) (1948) 50 P.L.R. 249.

(2) mo P.R. 1916.

(4) (1926) 96 I.e. 907.

(6) (1948) 50 P.L.R. 220.

(8) 71 P.R. 1904.

U jagar Singh

Mst. jeo

Sarkar }.

I959 amounting to an admission of a general custom or its

Ujagar Singh terms.

That being the position we have to see if either side led any evidence in support of its claim. So far as the appellant is concerned he has relied on the alleged general custom and sought to support it by reference to paragraph 24 of Rattigan's Digest. It view of what we have said earlier we do not think that R.attigan's Digest can be taken as correctly laying down the custom on the point. Neither do we think that the reported decisions show the existence of any such general custom.

There is nothing else on wbich the appellant has sought to rely. \Ve therefore think that the appellant has failed to establish the custom

~1st. jeo

Sarkar ].

alleged by him. ' We have next to see whether the respondent has proved the custom which she set up.

We think that she has. The High Court has discussed the evidence led by the respondent, and found it acceptable. We have no reason to take a contrary view. Some reference to the evidence may now be made. Ex. P. 4, Settlement Record of 1852, proves that in the village Sultanwind Sajja Si11gh and l\fajja Si11gh succeeded to the properties of Nodh Singh as his sister's sons in the presence of collaterals. Mr. Achhru Ram contended that the statement in Ex. P. 4, that Sajja Singh and - ' Majja Singh were the sister's sons of Nodh Singh was wrong for, in Ex. P. 5, the Settlement Rcords of 1891 and 1892, they were described as the daughter's sons of Nodh Singh and Baghel Singh, his brother. He contended that on the authorities it is clear that on a conflict between two settlement records the later one in date has to be accepted. That appears to have been held in a number of cases of which Alo v.

Sher (1) may be mentioned. But it seems to us that this is a point which should have been raised in the trial Court which does not appear to have been done, for, then the respondent could have led evidence to show which of the two settlement records put the matter correctly. Ex. P. 9 which is a settlement record of 1852 of the same village, shows that on Gandhi's

(1) A.I.R. 1927 Lab. 607.

death his sister's son succeeded to his properties though there were collaterals. Mr. Achhru Ram's comment was that in 1852 things were so unsettled in the Punjab that no one cared for lands and that was the reason why the collaterals allowed Gandhi's sister's son to succeed to his 'properties. This is an explanation which we are unable to accept. Exhibit P. 7 is a settlement document of the Bheniwal tribe in the village Sultanwind prepared in 1891-92. It shows that Mst. Chandi, the sister of Buta Singh, succeeded to his properties. It was said that the pedigree did not show that any collateral was alive. But this is not right because it shows that Buta Singh's great grand uncle, Tara Singh, was alive. Mr. Achhru Ram says that that must be a mistake and Tara Singh who was Buta Singh's great grand uncle could not have been alive when the latter died. This again is a matter which should have been cleared up in the • trial Court and we do not think it right to speculate about it.

It remains to consider two entries in the Riwaji-iam.

We have first the Riwaji-i-am of 1913-14. The entry there is in this form :

"Q. 70.-Does property ever devolve on sisters and/or upon their sons?

All tribes.-The property never devolves upon sisters and their issues." At the foot the case of Bholi v. Kahna (1) is cited.

Now it is well established that Ri waji-i-am entries are to be taken as referring to customs relating to succession to ancestral properties unless it is stated to be otherwise. So it was stated in the Full Bench decision of the Lahore High Court in Mst. Hurmate v.

Hoshiaru (2) at p. 235:

"It is reasonable, therefore, to assume that when manuals of Customary law were originally prepared and subsequently revised, the persons questioned, unless specifically told to the contrary, could normally reply in the light of their own interest alone and that, as stated above, was 9onfined to the ancestral property

(r) 35 P.R. 1909.

(2) (r943) I.L.R. 25 Lah. 228, 235.

IOO

I959 .

U jagar Singh

Mst. jeo

Sarkar ].

I959

Ujagar Singh

v, Mst. jeo

Sarkar ].

794 SUPREME COURT REPOH, TS [1959] Supp.

only. The fact that on some occasions the questioner had particularly drawn some distinction between ancestral and non-ancestral property would not have put them on their guard in every case, considering their lack of education and lack of intelligence in general. Similarly the use of the term " in no case " or " under no circumstances" would refer to ancestral . property only and not be extended so as to cover selfacquired property unless the context favoured that construction ".

The Full Bench was really authoritatively laying down a rule which had been the prevailing opinion in the courts in the Punjab. In the Riwaji-i-am of . 1913-14 we find nothing in the context to show that the answer there recorded was intended to apply to self acquired property. That being so, it does not prove any custom against the right of a sister to inherit the self acquired property of her brother.

The other Riwaji-i-am was that of the year 1940. ' It was in these terms:

"Q. 68.-Does property ever devolve upon sisters or sister's son ?

All tribe.-

(1) In the case of an unmarried sister or sisters the property is entered in her or their name till marriage. (2) Married sister 'or sisters or their descendants did not get the property in any case."

Here again there is nothing in the context to indicate that the answers were given in regard to nonancestral property. So this does not help the appellant either.

In this Riwaji-i-am eight instances are given. Some of them deal with the self acquired property. That does not in our opinion indicate that the answer recorded in the Riwaji-iam was intended to cover succession to self acquired property also. It is not disputed that the instances mentioned under the entries in the Riwaji-i-am are often collected by the officer in charge of the preparation of the record. It is impossible to say whether any, and if so, which, instance recorded in the Riwaji-i-am had been suppli((d

by the tribesmen in answer to questions put to them by the Settlement Officer. It is not possible therefore to say that then~ is any indication-in the instances in this H, iwaji-i-am entry that the anS\}'Cl'S were intended to cover self acquired property also.

Now of the eight instances given rn the Riwaji-i-am two are concerned with self acquired property where there were no collaterals and the sisters were allowed to succeed. The remaining six are concerned with ancestral property.

In four of these, the last ma!e owner died without leaving any reversioner and in each such case the married sisters succeeded to the property. In the fifth one, the sisters were unmarried at the time of the brother's death and they were allowed to take possession of the properties.

But this instance shows that on their marriages taking place they were dispossessed of the properties which apparently thereupon went to the collaterals. These seven instances therefore do not help either side. They show that sisters were allowed to succeed in respect of both kinds of properties in the absence of any collaterals and that sisters were on their marriages divested of the ancestral properties to which they had succeeded on their brothers' deaths, they being at that time unmarried. The last instance deals with the Rajput Mohammedan tribe of Tehsil Ajnala which is in the District Amritsar, the district to which the parties to the present litigation belong. This instance shows that a sister was allowed to succeed to the ancestral property left by the brother in preference to his collaterals of the sixth degree.

This therefore is an instance of a custom in a neighbouring Tehsil under which sisters were allowed to succeed in the presence of collaterals nearer in degree than the collateral in the present case.

In these circumstances we agree with the learned Judges of the High Court that the respondent was able to prove acustom whereby a sister was entitled to succeed in preference to the collateral relations of her brother.

We think it also right to say that even if it had been held that the respondent was not able to establish a custom entitling her to succeed she would get the

r959

Ujagar Singh v.

Mst. jeo

Sarkar J.

I959

Ujagar Singh v.

Mst. ]eo.

Sarka" ].

properties under the Hindu law. The parties are Sikhs to whorn the Hindu law applies. Since the Hindu Law of Inheritance (Amendment) Act, 1929, a sister is an heir under the Hinj:lu law in preference to collaterals and that Act would be applicable to the devolution in this case. It is however said that as the respondent had not made any claim in the plaint on the basis of Hindu law but on the contrary relied on custom, it was not open to her to fall back on the Hindu law on failing to establish the custom.

We do not think that this is the correct position.

Section 5 of the Punjab Laws Act, 1872, provides that in questions regarding succession, the rule of decision shall be (a) any custom applicable to the parties;

(b) the personal law of the parties except in so far as modified by custom or legislation. In the Full Bench case of Daya Ram v. Sohil Singh (1) Robertson, J., said at p. 410:

"It therefore appears to me clear that when either party to a suit sets up "custom" as a rule of decision, it lies upon him to prove the custom which he seeks to apply. If he fails to do so clause(b) of section 5 of the Punja.b Laws Act applies and the rule of decision must be the personal law of the parties subject to other provisions of the clause." As we have earlier said this observation was approved by the Judicial Committee in Abdul Hussain Khan v.

Bibi Sona Dero (').

In Fatima Bibi v. Shah Nawaz ('), a case to which we have earlier referred, the Court allowed the plaintiff's sisters, who had based their claim on custom and not on the personal law, to fall back on Mohammedan law, the personal law of the parties, on their failure to establish the custom, no custom against them having been proved by the collaterals.

There are a number of other authorities, to which it is not necessary to refer, in .which personal law was resorted to when no custom on either side was established. We agree that that is the correct view to take.

We therefore think that even if the respondent had been unable to prove the custom in

(1) IIO P.R. 19o6. (2)

(1917) L.R. 45 I.A. IO, 13. (3)

(1920) I.L.R. 2 Lah. 98.

her favour she is entitled to succeed in the suit on the basis of the personal law of the parties, namely, -the Hindu law.

Further, we see no prejudice to the appellant if such a course is adopted. It is not disputed that if the Hindu law applied, the respondent would be entitled to the properties in preference to the appellant.

The only defence to the claim under the Hindu law that the appellant could take would be a custom. The custom on which the appellant relied for his case was a general custom entitling the collaterals to succeed in preference to sisters. We have earlier held that no such general custom has been proved in this case.

Therefore it seems to us in the interest of justice and for the reason that litigation should come to an end that it is right that the respondent should succeed in the suit as her brother's heir under the Hindu law.

There remains one other matter to be mentioned.

The respondent had filed an application for an order that by reason of certain agreements and certain proceedings arising out of the decree in her favour passed in this case by the High Court, the appellant should not have been given leave by this Court to institute the present appeal and the leave granted under Art. 136 of the Constitution should be revoked.

As, in our view, the respondent succeeds on the merits of the case we think it unnecessary to express any opinion on this question.

In the result we dismiss the appeal with costs.

Appeal dismissed.

I959

U jagar Singh

Mst. }co

Sarkar .f.

UJAGAR SINGH

IST. JEO

A. K. SARKAR

SunnA RAO, JJ.

Indian Evidence Act

s. 57(r)

s. 57(1)

Punjab Laws Act, 1872

(1917) L.R. 45 I.A. 10

Art. 319

Section 48

s. 57

s. 57(1)

(1917) L.R. 45 I.A. 10

(1918) L.R. 45 I.A. 148

Section 5

Punjab Laws Act, 1872

section 5

Art. 136