G.SADANANDAN v.

STATE OF KERALA & ANR.

February 11, 1966

[P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO,

M. HIDYATULLAH, J.C. SHAH AND

S. M. S!KRI, JJ.)

Defence of India Rules, 1962 Ruic 30(1)(b)-DetentiOn under- Wril petition by de1enu-Pleas that may be entertained by court durin1

operation of Emergency and Presidenl's Order--Obllga1wn of detaining authoriry to place material justifying detention before coll1't-Proper affi. davll mu.st be filed by authorised person.

The petilioner was a wholesale dealer in Ker09elle oil in Kera!a State.

The State Government detained him under r. 30(l)(b) of the Defence of India Rules, 1962 on the alleged ground that he was likely to act in a manner prejudicial to the maintenance of supplies and services essential to the life of the community. By writ petition under Art. 32 of the Constitution ho challenged his detention as being maia fide, making certain specific allegations against respondent No. 2, a police official.

In particular, it was urged on his behalf that after the coming into operation of the Kerala Keroaene Control Order, 1965 which permitted kerosene trade to be carried on only under a licence, Ibero was no justification for bis detention. On

behalf of the State an affidavit was filed by the Home Secretary generally denying the petitioner's allegations. The affidavit stated, Inter alia, that even after the passing of the Kerala Kerosene Control Order it was possi

blc for the petitioner to obtain a licence and carry on the trade in a pre

judicial manner.

HELD : (i) The Proclamation of Emergency and the notification subsequently issued by the President constitute a bar against judicial scrutiny in respect of the alleged violation of the fundamental right\ of a detenu.

Nevertheless a detenu can urge in his support such statutory safeguards as are pcrmis.ible under the Rules, and when this Court is satisfied that the impugned orders suffer from serious infirmities on grounds which it is permissible for the detenu to urge, the aaid orders would be set aide. (595 D, E]

(ii) The detention of a citizen under the Defence of India Rules is the result of the subjective satisfaction of the appropriate authority; and so if a prime facie case is made out by the petitioner that hi• dctontion ii either ma/a fide, or is the result of a casual approach adopted by the appropriate authority, the appropriate authority should place before the court sufficient material in the form of proper affidavit made by a duly authorised person to show that the allegations made by the petitioner about the casual character of the decision or it> ma/a fules, are not well-founded. (598

In the present case no such material had been placed before the court.

Respondent No. 2, though implcaded, had not come forward to deny the specific lllcgations made against him. The Home Secretary had taken it upon himself to deny the allegations against respondent No. 2, but hia denials were at best based on hearsay evidence. The Home Secretary"• affidavit suffred from the formal defect that it did not distinguiYI ~

statements based on personal knowledge and those made on the basis of information received.

It moreover gave no sufficient )ustification for the

-A ... • '

( :B

I -' r

'<=

D •

_..

lilADANANDAN V. KERALA (Gajendragadkar, C.l.) 591

continuance of the petitioner's detention after the passing of the Kerala Kerosene Control Order. {596 E, FJ

Under the circumstances there was no escape from the conclusion that the impugned order was clearly and plainly ma/a {idt.

(iii) It is the paramouut requirement of the Constitution that even during Emergency, the freedom of Indian citizens cannot be taken away without the existence of the justifying necessity specified in the Rules themselves.

The tendency to treat these matters in a somewhat casual and cavalier manner which may conceivably result from the continuous use of such unfettered powers, may ultimately pose a seiious threat to the basic values on which the democratic way of life in this couutry is founded.

Cases of this kind may be rare; but even the presence of such rare case& constitutes a warning deserving the attention of the authorities. [599 B, CJ

ORIGINAL JURISDICTION : Writ Petition No. 136 of 1965.

Petition under Art. 32 of the Constitution of India for the enforcement of Fundamental Rights.

M. K. Ramamurthi, S. C. Agarwal, R. K. Garg and D. P. Singh, for the petitioner.

Niren De, Solicitor-General, A. G. Pudissery and M. R. Krishna Pillai, for the respondents .

The Judgment of the Court was delivered by

Gajendragadkar, C.J. This petition was heard on the 11th February, 1966; and at the close of the hearing, we allowed the petition and directed that the petitioner should be released forthwith and indicated that our reasons would be pronounced later.

Accordingly, our present judgment gives our reasons for the order which has already been passed by us.

The petitioner, G. Sadanandan, has been detained by respondent No. I, the State ofKerala, under Rule 30(1) (b) of the Defence of India Rules, 1962 (hereinafter called "the Rules") by an order passed by it on the 20th October, 1965. The said order recites that from the materials placed before respondent No. I, it was satisfied that with a view to prevent the petitioner from acting in a manner prejudicial to the maintenance of supplies and services essential to the life of the community it was necessary to detain him. The said order further shows that under Rule 30(4) of the Rules, respondent No. I had decided that the petitioner be detained in the Central Prison, Trivandrum, under conditions as to maintenance, discipline and punishment of offences and breaches of discipline as provided in the Travancore-Cochin Security Prisoners Order, 1950: The petitioner challenges the validity of this order by his present petition filed under Art. 32 of the Constitution.

_ The petitioner is a businessman who carries on wholesale business in kerosene oil as ESSO dealer and in provisions in his places of business at Trivandrum. In connection with his whole-

\ ...__

592 SUPlll!Mll COUil T llEPOR TS

[1966] 3 S.C.R.

sale business of selling kerosene oil, the petitioner receives kero- 1ene oil either in bulk or in sealed tins from the ESSO company.

When the kerosene oil is thus received by him, the petitioner transfers the kerosene oil from barrels into empty tins purchased from the market and sells them to his customers. Until the Kerala Kerosene Control Order, 1965 was promulgated, and brought into force on the 24th October, 1965, the petitioner was not required to take a licence for carrying on his business in kerosene oil. As from the 24th October, 1965 the said trade could not be carried on in Kerala without obtaining a licence. It is common ground that the petitioner has not been granted a licence in that behalf. To his present petition, the petitioner has joined respondent No. l and N. Paramasivan Nair, Deputy Superintendent of Police (Civil) Supplies Cell, Crime Branch, Trivandrum, as respondent No. 2.

The petitioner alleges that respondent No. 2 caused to be initiated criminal proceedings against him in Criminal Case No. 70 of 1965 in the Court of the District Magistrate, Trivandrum.

These proceedings were commenced on the 20th May, 1965. The charge against the petitioner set out in the First Information Report was that the petitioner had exhibited a board showing stock "nil" on the 20th May, 1965, at about 7 00 p.m. in his wholesale shop at Chalai, Trivandrum when, in fact, there was stock available in his shop. The Police searched the shop that day in the presence of respondent No. 2, though in the relevant papers prepared in regard to the said search, no reference was made to his presence. According to the petitioner, the board indicating 'nil' stock had been exhibited in his shop, because 7 tins out of the available stock had been sold to one D. N. Siktar in regard to which a sale memo was being prepared when the raid took place, whereas the two remaining tins were in a damaged condition and could not have been sold. Even so, the raid was carried out and F.1.R. was lodged against the petitioner alleging that he had committed an offence by violating Rule 125(2) and (3) of the Rules read with clause 4 of the Kerosene (Price Control) Order, 1963.

The petitioner appeared before the District Magistrate before whom the F.l.R. had been filed, and was released by him on bail.

In this case, all the witnesses for the prosecution had been examined, except the officer who had submitted the charge-sheet. Except the Sub-Inspector of Police (P.W.l.), and the Head Constable (P.W. 2), no other witnesses supported the prosecution case, though in all five witnesses were examined for the prosecution.

Pending the trial of this case, the Inspector of Police, Crime Branch (Food), Trivandrum, who is a subordinate of respondent No. 2, initiated another case at his instance, being case No. 332 of t 965 before the District Magistrate, Trivandrum, on the 29th September, 1965. In this case, it was alleged that the petitioner bad

- .,

, •

. . ..

l..

.. •

~ ~

...

B . l

' D

SADANANDAN v. KBRALA (Gajendragadkar, C.J.) 593

violated R. 125(A) of the Rules read with Rules 3 and 4 of the Kerosene (Price Control) Order, 1963, as well as had committed. an offence under section 420, I.P.C. The F.l.R. in regard to this case was made by Narayan Pillai Sivasankaran Nair of Tampanoor, Trivandrum. This Nair is a salesman in his elder brother's provision store at Trivandrum, and both these brothers are close relatives of respondent No. 2. This case was initiated after the search of the petitioner's shop at Chalai. The petitioner was then arrested and brought before the District Magistrate on the 30th September, 1965. On this occasion also, when the petitioner's shop was searched, respondent No. 2 was present. During the course of the search, the police seized one tin weighing 16 200 kgs. None of the other 899 tins which were stored in the two rooms of the place of sale of the petitioner, were seized. The police party also 11earched the godown of the petitioner and took into custody 632 tins of kerosene oil. Six barrels of oil were likewise seized. According to the petitioner, all this was done at the instance of N. Sivasankaran Nair who is a close relative of respondent No. 2 and who had purchased two tins of kerosene oil from the petitioner which were produced before the police officers for the purpose of showing that the tins were short of contents.

The petitioner was granted interim bail on the 30th September, 1965 by the District Magistrate, and finally released on bail on the execution of a bail bond on the 21st October, 1965. When the order of bail was made absolute by the District Magistrate, the Assistant Public Prosecutor did not oppose the release of the petitioner on bail. The petitioner contends that though the case Wai posted several times for the submission of the final report by the prosecution, respondent No. 2 has so managed that the said final report has not been submitted till the date of the present petition.

After the petitioner was released by the District Magistrate on the 21s! October, 1965, he reached home at 4 o'clock in the evening.

Immediately thereafter, respondent No. 2 came in a jeep to the

etitioner's residence and took him into custody. When the petitioner asked respondent No. 2 as to why he was being arrested he refused to disclose the grounds. Respondent No. 2 took 'the petitioner into custody by force and carried him to jail.

The petitioner's wife thereafter instructed a lawyer to contact the petitioner who in turn tried to get in touch with the petitioner at Wanchiyoor Police Station, but did not succeed. Under these circumstances, the petitioner's wife instructed her advocate to file a writ petition in the Kerala High Court for the production of the petitioner. Accordingly, a writ petition was filed on the 22nd October, 1965.

Later, the advocate engaged by the petitioner's wife was able to get in tonch with the petitioner with the permission of the Home

Secretary in the Central Jail at Trivandrum. At this interview, the A advocate was given the detention order which had been served on .. the petitioner, and instructed to take suitable action to challenge the said order. In view of the fact that the petition filed by the Advocate in the Kerala High Court under the vague instructions of the petitioner's wife contained a very limited prayer, the petitioner's advocate withdrew the said petition on the 27th October, 1965.

B Ultimately, the present petition has been filed in this Court on behalf of the petitioner on the 20th November, 1965. That, in brief is the background of the present writ petition.

The petitioner challenges the validity of the impugned order of detention mainly on the ground that it is ma/a fide, and has been c passed as a result of the malicious and false reports which have been prepared at the instance of respondent No. 2.

The whole object of respondent No. 2, according to the petitioner, in securing the preparation of these false reports is to eliminate the petitioner from the field of wholesale business in kerosene oil in Trivandrum, so that his relatives may benefit and obtain the dealership of the ESSO Com , pany. The petitioner further alleges that the order of detention D has been passed solely with the purpose of denying him the benefit of the order of bail which was passed in his favour by the District Magistrate on the 21st October, 1965. In support of the plea that his detention is malafide, the petitioner strongly relies on the fact that on the 24th October, 1965, the Kerala Kerosene Control Order, 1965 has come into force and in consequence unless the petitioner E gets a licence, it would be impossible for him to carry on his business of kerosene oil; and yet, the detention order ostensibly passed against him as a result of his activities alleged to be prejudicial in respect of his business in kerosene oil, continues to be enforced against him even after the Control Order has been brought into operation. It is mainly on these grounds that the petitioner chal- F lenges the validity of the impugned order of his detention.

The allegations made in the petition have been controverted by Mr. Devassy who is the Secretary in the Home Department of respondent No. I. In his counter-affidavit_. the Home. Secretary. as, in a general way, denied all the allegations made m the pet1tton.

The purport of the counter-affidavit filed by the Home Secretary G is that the impugned order of detention has been passed by respon-

~ J dent No. I bona fide and after full consideration of the merits oft~~ case. Respondent No. I was satisfied, says the counter-affida"'.1t,. that the activity of the petitioner was likely to prejudice supplies essential to the life of the community as a whole; and so, the pell •, tioner's contention that the impugned order is ma/a fide is contro- H verted.

In dealing with writ petitions by whkh orders of detention passed by the appropriate authorities under r. 30(1) (b) of the Rules are

r •.

~ .

-f •

SADANANDAN V. KBRALA (Gajendragadkar, C.J.) 595

challenged, this Court has consistently recognised the limited scope of the enquiry which is judicially permissible. Whether or not the detention of a detenu is justified on the merits, is not open to judicial scrutiny; that is a matter left by the Rules to the subjective satisfaction of the appropriate authorities empowered to pass orders under the relevant Rule. This Court, no doubt, realises in dealing with pleas for habeas corpus in such proceedings that citiz:ens are detained under the Rules without a trial, and that clearly is inconsistent with the normal concept of the Rule of Law in a democratic State. But having regard to the fact that an Emergency has been proclaimed under Art. 352 of the Constitution, certain consequences follow; and one of these consequences is that the citizens detained under the Rules are precluded from challenging the validity of the Rules on the ground that their detention contravenes their fundamental rights guaranteed by Articles 19, 20 and 21.

The presence of the Proclamation of Emergency and the notification subsequently issued by the President constitute a bar against judicial scrutiny in respect of the alleged violation of the fundamental rights of the detenu. This position has always been recognised by this Court in dealing with such writ petitions.

Nevertheless, this Court naturally examines the detention orders carefully and allows full scope to the detenus to urge such statutory safeguards as are permissible under the Rules, and it has been repeatedly observed by this Court that in cases where this Court is satisfied that the impugned orders suffer from serious infirmities on grounds which it is permissible for the detenus to urge, the said orders would be set aside. Subject to this position, the merits of the orders of detention are not open to judicial scrutiny. That is why pleas made by the detenus that the impugned orders have been passed by the appropriate authorities without applying their minds properly to the allegations on which the impugned orders purport to be based, or that they have been passed malafide, do not usually 1ucceed, because this Court finds that the allegations made by the detenus are either not well-founded, or have been made in a casual and light-hearted manner. But cases do come before this Court, though not frequently, where this Court comes to the conclusion that the impugned order of detention is passed without the appropriate authority applying its mind to the problem, or that it can well be regarded as an order passed malafide. Having heard Mr. Ramamurthi for the petitioner and the learned Additional Solicitor- General for respondent No. 1, we have come to the conclusion that the impugned order in the present case must be characterised as. having been passed mala fide.

The first consideration which has weighed in our minds in dealing with Mr. Ramamurthi's contentions in the present proceedings is that respondent No. 2 has not chosen to make a counter-affidavit denying the several specific allegations made against him by the

petitioner. Broadly stated, the petition alleges that respondent No. 2 is responsible for the criminal complaints made against the petitioner, that respondent No. 2 was present when his premises were searched, and that respondent No. 2 actually went to the house of the petitioner when the petitioner was forcibly taken into custody and removed to the j:1il. The petition further alleges that the second criminal complaint filed against the petitioner was the direct result of the F.l.R. by Narayan Pillai Sivasankaran Nair who and his brothers are the trade rivals of the petitioner and are closely related to respondent No. 2. The petition likewise specifically alleges that the reports on which the impugned order of detention has been pass- cd, were the result of the instigation of respondent No. 2.

Whether or not these allegations, if proved, would necessarily make the impugned order ma/a fide, is another matter; but, for the present, we are dealing with the point that respondent No. 2 who has been impleaded to the present proceedings and against whom specific and clear allegations have heen made in the petition, has not chosen to deny them on oath. In our opinion, the failure of respondent No. 2 to deny these serious allegations constitutes a serious infirmity in the case of respondent No. I.

The significance of this infirmity is heightened when we look at the counter-affidavit filed by the Home Secretary. This affidavit has not been made in a proper form. The deponent does not say which of the statements made by him in his affidavit are based on his personal knowledge and which are the result of the information received by him from documents or otherwise. The form in which the affidavit has been made is so irregular that the learned Additional Solicitor-General fairly conceded that the affidavit could be ignored on that ground alone. That, however, is not the only infirmity in this allidavit.

It is surprising that the Home Secretary should have taken upon himself to deny the allegations made by the petition against respondent No. 2 when it is plain that his denial is based on hearsay evidence at the best. It is not easy for us to appreciate why the Home Secretary should have undertaken the task of refuting serious allegations made by the petition against respondent No. 2 instead of requiring respondent No. 2 to make a specific denial on his own. Whether or not Narayan Pillai Sivasankaran Nair and his brother are close relatives of respondent No. 2 and whether or not they are the trade rivals of the petitioner and expect to receive benefit from his detention, are matters on which the Home Secretary &hould have wisely refrained from making any statement in his affidavit. He should have left it to respondent No. 2 to make the necessary averments. Besides, it is impossible to understand why the specific allegation.s made by the petition against respondent No. 2 in regard to the part played by him either in searching the petitioner's shop or in arresting him should not have been definitely

G ...

' -f

SADANANDAN v. KERALA (Gajendragadkar, C.J.) 597

denied by respondent No. 2 himself. The statements made by the Home Secretary in his affidavit in that behalf are very vague and •nsatisfactory. We have carefully considered the affidavit made by the Home Secretary and we are satisfied that apart from the formal defect from which it plainly suffers, even otherwise the statements made in the affidavit do not appear to us to have been made by the deponent after due deliberation.

Take, for instance, the statements made by the Home Secretary in regard to the petitioner's contention that the continuance of bis detention after the Kerala Kerosene Control Order, 1965 came into operation on the 24th October, 1965, is wholly unjustified.

The petitioner's grievance is clear and unambiguous. He says that unless a licence is granted to him, he would no longer be able to trade in kerosene oil; and since admittedly, no licence has been granted to him, his continued detention on the ostensible ground that his dealings in kerosene oil amount to a prejudicial activity, is entirely unjustified. Now, what does the Home Secretary 5AY in respect of this contention? On the date of the detention of the petitioner, says the Home Secretary's affidavit, the Control Order had not come into force, and that, no doubt, is true. But the question is : is the continuance of the petitioner's detention justified after the said Order came into force? The affidavit says that the petitioner is not a licensee under the Kerala Kerosene Control Order, 1965, and cannot legally carry on the business as a dealer in kerosene at present; but there is nothing under the law preventing him from applying for such licence to carry on the same business.

It is difficult to understand the logic or the reasonableness of this averment. Indeed, we ought to add that the learned Additional Solicitor-General fairly, and we think rightly and wisely, conceded that this part of the Home Secretary's affidavit could not be supported and that he saw no justification for the continuance of the petitioner's detention after the Kerala Kerosene Control Order came into operation on the 24th October, 1965. It is remarkable that in the whole of his affidavit, the Home Secretary does not say how he came to know all the facts to which he has purported to depose in his affidavit. We have, however, assumed that as Home Secretary, the file relating to the detention of the petitioner must have been handled by him, though the Home Secretary should have realised that he should himself have made a statement to that effect in his affidavit. We have had occasion to criticise affidavits made by appropriate authorities in support of the detention orders in writ proceedings, but we have not come across an affidavit which shows such an amount of casualness as in the present case. We have carefully examined all the material and relevant facts to which our attention has been drawn in the present proceedings and we see no escape from the conclusion that the impugned order of detention passed against the petitioner on the 20th October, 1965, and more

particularly, the petitioner's continued detention after the 24th October, 1965, must be characterised as clearly and plainly ma/a fide.

This is a case in which the powers conferred on the appropriate authority have, in our opinion, been abused.

We are conscious that even if a subordinate officer makes a malicious report against a citizen suggesting that he should be detained, the malice inspiring the report may not necessarily or always make the ultimate order of detention passed by the appropriate authority invalid. Even a malicious report may be true in the sense that the facts alleged may be true, but the person making the report was determined to report those facts out of malice against the party concerned. But a malicious report may also be false. In either case, the malice attributable to the reporting authority cannot, in law, be attributed to the detaining authority; but in such cases, it must appear that the detaining authority carefully examined the report and considered all the relevant material available in the case before passing the order of detention. Unfortunately, in the present case, the affidavit made by the Home Secretary is so defective and in many places so vague and ambiguous that we do not know which authority acting for respondent No. I in fact examined the case against the petitioner and what was the nature of the material placed before such authority; and the affidavit docs not contain any avermcnt that after the material was examined by the appropriate authority, the appropriate authority reached the conclusion that it was satisfied that the petitioner should he detained with a view to prevent him from acting in a manner prejudicial to the maintenance of supplies and services essential to the life of the community.

After all, the detention of a citizen in every case is the result of the subjective satisfaction of the appropriate authority; and so, if a prima facie case is made by the petitioner that his detention is either ma/a fide, or is the result of the casual approach adopted by the appropriate authority, the appropriate authority should place before the Court sufficient material in the form of proper affidavit made by a duly authorised person to show that the allegations made by the petitioner about the casual character of the decision or its ma/a jides, arc not well-founded. The failure of respondent No. 1 to place any such material before us in the present proceedings leaves us no alternative but to accept the pica made by the petitioner that the order of detention passed against him on the 20th October, 1965, and more particularly, his continued detention after the 24th October, 1965, arc totally invalid and unjustified.

In conclusion, we wish to add that when we come across orders of this kind by which citizens arc deprived of their fundamental right of liberty without a trial on the ground that the Emergency proclaimed by the President in 1962 still continues and the powers

....

' . ....

SADANANDAN v. KERALA (Gajendragadkar, C.I.) 599

conferred on the appropriate authorities by the Defence of India Rules justify the deprivation of such liberty, we feel rudely disturbed by the thought that continuous exercise of the very wide powers conferred by the Rules on the several authorities is likely to make the conscience of the said authorities insensitive, if not blunt, to the paramount requirement of the Constitution that even during Emergency, the freedom of Indian citizens cannot be taken away without the existence of the justifying necessity specified by the Rules themselves. The tendency to treat these matters in a somewhat casual and cavalier manner which may concievably result from the continuous use of such unfettered powers, may ultimately pose a serious threat to the basic values on which the democratic way of life in this country is founded. It is true that cases of this kind are rare; but even the presence of such rare cases constitutes a warning to which we think it is our duty to invite the attention of the appropriate authorities. In the circumstances of this case we direct that respondent No. I will pay the costs of the petitioner quantified at Rs. 500.

Petition allowed.

G.SADANANDAN

STATE OF KERALA & ANR

February 11, 1966

P. B. GAJENDRAGADKAR

K. N. WANCHOO

C. SHAH

Defence of India Rules, 1962

Defence of India Rules, 1962

Art. 32

lilADANANDAN V. KERALA

It moreover gave no sufficient )ustification for the
A ... • '

( :B

I -' r

'<=

D •

_..

lilADANANDAN V. KERALA (Gajendragadkar, C.l.)

Art. 32

Constitution of India

M. K. Ramamurthi

S. C. Agarwal

R. K. Garg

D. P. Singh

Niren De

A. G. Pudissery

M. R. Krishna Pillai

Gajendragadkar

G. Sadanandan

Defence of India Rules, 1962

20th October, 1965

Art. 32

Trivandrum

24th October, 1965

Kerala

N. Paramasivan Nair

D. N. Siktar

clause 4

District Magistrate, Trivandrum

section 420

I.P.C

Narayan Pillai Sivasankaran Nair

Chalai

30th September, 1965

N. Sivasankaran Nair

21st October, 1965

21s! October, 1965

Wanchiyoor Police Station

Kerala High Court

22nd October, 1965

27th October, 1965

20th November, 1965

Devassy

SADANANDAN V. KBRALA

Art. 352

Articles 19, 20 and 21

Ramamurthi


~00

MERVYN COUTillo'DO & ORS.

' COllECTOR OF CUSTOMS, BOMBAY It. ORS.

February 14, 1966.

[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, J.C. SHAH, s. M.Sll.Rl and v. RAMASWAMI, JJ.j

Constitut/Qn a/ India, Afls. 16(1), )~'Rotational rystem' applied in fl/ling vacancia in the cadres o/ Appraisers and Principal Apprtliler• Ifs

Customs Department-Fixation of Seniority-validily.

Tue petition= who were Appraisers in the Custom. Department ftled

a wnt petition under An. 32, cballengmg the validity of the 'rotational system as applied in fixing the seniority of Appraisers and Principal ap- C praisers. Tue system, as laid down in the relC\ant departmental circulars

was that vacancies occurring in the cadre of Appraisers were w go alternatively to "promotecs' and 'direct recruits'.

According to the petitioners this resulted in inequality, especially in view of the fact that the number of direct recruits over the years was very low.

Promotion to the grade of Principal Appraisers was from the cadre of Appraisers; only thooc who had scrvocl as Appraisers for five years were entitled to he promoted .to the higher grade.

Since the direct recruits bad to wait for five yeara D Wore they could bec-Ome Principal Appraiser the promotecs below thcm

who had put in five years as Appriasers became Principal Appraisers.

In order to ...,., tore the seniority of the direct rei:nW thus loot, the rotallooal

system wu applied to the cadre of Principal Appraisers also l.1. ooo vacancy was to go to a promotee and the other to a direct recruit. The pl~ of inequality in violation of Art. 16(1) of the Constitution was raised by the petitioners in respect of this al!10.

HELD : (i) There is no inhent vice in the principle of fixing seniority by rotation in a case wheo a service is composed in fixed proportion of direct recruits and promotees.

Any anomalies that may have resulted .. ac.oount of insufficient recruitment of direct recruits in the pa~ could DOC be a ground for striking down the system itself. [605 B.C, G]

T. Devada:ran v. Union of Ind/a and Ors. (1964} 4 S.C.R. 680 • diluinguisbed.

(ii) The same however, cannot be said when the rotational system i& applied to the recruitment of Principal Appraisers. The source of recruitment for these is one only, namely, the grade of Appraisers. There ia

no question of any quota being reserved from two sources in their case.

In so far therefore as the Government was doing what it called restor-.. lion of oeoiority of direct recruits in Appraisers grade on their promoliOll to the higher grade it was clearly denying equality of opportunity. [605 C-G]

ORIGINAL JURISDICTION : Writ Pclilion No. 97 of 1964.

Petition under Art. 32 of the Conslitution of India for the enforcement of fundamental righls.

Ved Vyasa, J. R. Gagrat, B. R. Agarwala and N. K. Puri, for the petitioners.

C. K. Dhtary, Attorney-General, R. Ganapathy lytr and .It N. Sachthey, for respondent no. I.

,. ., :1~ -,

A B. R. L. Iyengar and S. K. Mehta, for respondents Nos. 6 to

""'"

23.

I. M. Lal, S. K. Mehta and K. L. Mehta, for respondents Nos. , 25 and 27 to 34.

Respondent No. 24 appeared in person.

B The Judgment of the Court was delivered by ' .

Wanchoo, J, This petition under Art. 32 of the Constitution by i certain Appraisers in the Customs Department of the Government oflndia is directed against the seniority list prepared in 1963 under the order of the Central Board of Revenue (hereinafter referred to c as the Board). The petitioners contend that the list in question denies them equality of opportunity in matters relating to employment under the State enshrined in Art. 16(1) of the Constitution.

The system that prevails for recruitment to the post of Appraisers is that 50 per cent is reserved for direct recruits while the remaining 50• per cent is filled up by promotion from subordinates in the Customs

" D Department. It further appears that seniority is determined in the cadre by the system of rotation, i.e.; the list is arranged in such a way that there is one person from the direct recruits and one from the promotees alternately. The contention of the petitioners is that this sytem bas resulted in discriminatory treatment against them with the consequence that promotees of much longer service in the ' cadre of Appraisers are put in the seniority list below direct recruits E with much shorter service. This, according to the petitioners, offends against equality of opportunity guaranteed under Art. 16(1)' of the Constitution. That is one grievance of the petitioners.

The other grievance of the petitioners is that in the cadre of Principal Appraisers who are all promoted from Appraisers, there is _,. again discrimination and violation of equality of opportunity ' inasmuch as the same method is followed in the matter of fixation • of seniority of Principal Appraisers, though in this case there is only one source of recruitment i.e., by promotion from the cadre of Appraisers. The petitioners therefore pray that the seniority list prepared in 1963 should be struck down as violative of Art. 16(1) and directions be issued to prepare a fresh seniority list for the cadr•

G of Appraisers. They further pray that in the matter of appointmeni of Principal Appraisers, the system at present being followed in the matter of seniority should be struck down. -

The petition has been opposed on behalf of the Union. It is ' contended that in a service where recruitment is partly by promotion

~,./ and partly by direct recruitment, the system of fixing seniority by

H rotation is followed and that this is being done in a number of serr vices under the Union. It is urged that there is nothing discrimi-

---; .,

natory in such a system and there is no denial of equality of opportunity by following the rotational system for determining seniority

602 SUPRBMB COUllT REPORTS

(1966) 3 S.C.R.

in such circumstances. As to the Principal Appraisers, tho case of the Union is that these posts are selection posts and selection is made from the cadre of Appraisers. For this purpose Appraisers with a minimum service of five years are eligible for promotion and there is a probation of two years before they are confirmed. The Union further contends that by the system of rotation which is being followed in the cadre of Principal Appraisers also what happens is that the seniority of a direct recruit in the cadre of Appraisers is restored as on account of five years qualification, adirect recruit cannot be promoted to the post of Principal Appraiser while his junior promo tee in the post of Appraiser gets such promotion.

According to the Union, therefore, this system which is given effect to in the cadre of Principal Appraisers merely restores the seniority which a direct recruit had in the cadre of Appraisers. This is the only justification for the system in the matter of seniority in the cadre of Principal Appraisers.

We shall first consider the question of Appraisers. As far back as 1936, an order was passed by the Board which laid down that recruitment to the Customs Appraisers' Service would be from two sources, i.e. 50 per cent by promotion, 25 per cent directly from experts and 25 per cent by means of a competitive examination or selection by the Public Service Commission. It was also said in the said order that those percentages would be the maximum and the Collectors of Customs would not be bound to recruit upto the maximum particularly in the case of recruitment by promotion.

In actual practice however this order has been acted upon as if it provides 50 per cent for promotees and 50 per cent for direct recruits, whether they arc experts or come by competitive examination or selection by the Public Service Commission. In 1940, the Government of India issued a circular for the detennination of relative seniority of candidates appointed by direct recruitment and by promotion. In that circular it was stated that "where in a department two pennanent or quasi permanent vacancies occur, even simultaneously, and the first vacancy is in accordance with the rota tion meant for a direct recruit, the direct recruit will rank in seniority above the promotee el'en though he joined his post after the promotee had been promoted and confinned". Reliance ha• been placed on behalf of the Union on this circular in the matter of fixation of seniority between direct recruits and promotees in a cadre in which rotational system prevails. The petitioners however rely in reply on a circular issued in June 1949. That circular dealt with the seniority of displaced government servants who had been absorbed temporarily in service under the Central Government. The occasion for that circular was the division of India, and the creation of Pakistan resulting in displacement of a large number of public servants from the area which went to Pakistan.

That circular provided for a change in the system due to displaced

...._ - • ,

.. i

' 1

~:.

~~· / .j ..

government servants having in most cases lost all their property and having to migrate in difficult circumstances. It was therefore thought fit to give some weightage in the matter of seniority to such persons on compassionate grounds. It was therefore decided that the seniority of persons appointed on permanent or quasi permanent basis before January l, 1944 should not be disturbed, but thereafter displaced persons should be given consideration and their seniority counted on the basis of length of service in the particular grade as well as service in an equivalent grade. "Service in an equivalent grade" was defined as service on a rate of pay higher than the minimum of the time scale of the grade concerned. The principle of this circular was also applied to ex-Government servants of Burma appointed under the Central Government and employees of the former Part B States taken over by the Centre as a result of federal financial integration. Naturally as this change could not be applied only to displaced persons etc., it was applied to the existing government servants of the Government of India also from January l, 1944. But there is nothing in the circular to show that the seniority of the existing government servants inter se was to be disturbed on the basis of this circular. The real purpose of this circular appears to be to fix seniority for displaced persons etc., in accordance with it and for that purpose it applied the same principle to the existing central government servants from January 1, 1944.

It appears that by 1959, the circular of 1949 for absorption of displaced government servants etc., had worked itself out. Therefore, on December 12, 1959, the Government of India issued another circular containing general principles for determining seniority of various categories of persons employed in central services. By this circular, the circular of 1949 and certain other circulars issued to deal with special types of recruitment like war service candidates were cancelled, and thereafter seniority was to be determined by the circular of 1959, which states that instructions contained in the said circulars had achieved their object and there was no longer any reason to apply those instructions in preference to the normal principles for determining seniority in future. For the future certain general principles were laid down for fixing the seniority in the circular of 1959. These principles were not to apply retrospectively but were given effect to from the date of their issue, subject to certain reservations with which we are not concerned.

One of the principles in this circular of 1959 is with respect to relative seniority of direct recruits and promotees. It provides that relative seniority of direct recruits and promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of reservation for direct recruitment and promotion respectively in the recruitment rules.

It was further explained that a roster should be maintained based on the reservation for direct recruitment and promotion in the recruitment rules. Where, for example, the reservation for each method i5 50 per cent, the roster will run as follows-(1) promotion, (2) direct recruitment, (3) promotion, (4) direct recruitment, and so on.

Appointments should be made in accordance with this roster and seniority determined accordingly. A question has been raised whether the circular of 1940 to which we have already referred survived after this circular of 1959; but in our opinion it is unnecessary to decide that question, for the circular of 1959 itself lays down that seniority shall be determined accordingly, i.e. in accordance with the rotational system, depending upon the quota reserved for direct recruitment and promotion respectively. It is this circular which according to the respondent has been followed in determining the seniority of Appraisers in 1963.

Before we come to what has been done in 1963 in the matter of fixing seniority of Appraisers, we may refer to two other circulars.

The first is a circular of the Board issued in 1953. That circular in our opinion has nothing to do with the question of fixing of seniority as between direct recruits and promotees. Its main value is that it emphasises that the proportion fixed for direct recruits and promotees should be rigidly maintained. It also directs that promotion to higher grades should be made on the basis of a combined seniority list of both direct recruits and promotees. Then there is another circular of 1955. That circular again emphasises the rotational system and says that it has been decided that "inter se seniority of direct recruits and promotecs in the grade of Appraisers should be determined in the order in which the vacancy in that grade is filled by a direct recruit or by a promotee according to the quota fixed for such appointments". Stress has been laid on behalf of the petitioners on the words "is filled" in this circular, and it is urged that this means that until the direct recruit is actually recruited and fills the vacancy meant for a direct recruit he cannot get seniority from before the date he fills the vacancy merely on the ground of rotational system of fixing seniority. We do not think that this is the meaning of the words "is filled" used in this circular. We have already said that this circular also emphasises the rotational system in the matter of fixing of seniority and all that it means is that vacancies should be filled either by direct recruits or by promotees according to the quota fixed for such appointments.

This brings us back to the circular of 1959, and the main question in that connection is the meaning to be assigned to the words "seniority determined accordingly", in the e:tplanation to principle 6 relating to relative seniority of direct recruit~ and promotees. As we read these words, their plain meaning is that seniority as between direct recruits and promotees should be determined in accordance with the roster, which has also been specified, namely, one promotee followed by one direct recruit and so on.

Where therefore recruitment to a cadre is from two sources, namely,

from year to year. This is very different from a case where a service A is divided into two parts and there are two sources of recruitment, one of promotion and the other by direct recruitment. In such a case, the whole cadre of a particular service is divided into two parts and there is no question of carrying anything forward from year to year in the matter of annual intake. The basis on which the carry-forward rule was struck down by this Court does not therefore B apply to a case where the whole cadre of a service is divided in certain fixed proportions between promotees and direct recruits. The petitioners therefore can get no assistance from Devdasa11's cau.(I) The petition must therefore fail so far as seniority of Appraisers is concerned.

This brings us to the question of Principal Appraisers. We are of opinion that the petitioners have a legitimate grievance in this respect. The source of recniitment of Principal Appraisers is one, namely, from the grade of Appraisers. There is therefore no question of any quota being reserved from two sources in their cases. The rotational system cannot therefore apply when there is only one source of recruitment and not two sources of recruitment.

In a case therefore where thcrcis only one source of recruitment, the normal rule will apply, namely, that a person promoted to a higher grade gets his seniority in that grade according to the date of promotion subject always to his being found fit and being confirmed In the higher grade after the period of probation is over. In such a case it is continuous appointmcntin the higher grade which determines seniority for the source of recruitment is one. There is no question in such a case of reflecting in the higher grade the seniority of the grade from which promotion is made to the higher grade.

In so far therefore as the respondent is doing what it calls restoration of seniority of direct recruits in Appraisers' grade when they are promoted to the Principal Appraisers' grade, it is clearly denying equality of opportunity to Appraisers which is the only source of recruitment to the Principal Appraisers' grade. There is only one source from which the Principal Appraisers are drawn, namely, Appraisers, the promotion being by selection and five years' experience as Appraiser is the minimum qualification. Subject to the above all Appraisers selected for the post of Principal Appraisers must be treated equally. That means they will rank in seniority from the date of their continuous acting in the Principal Appraisers' grade subject of course to the right of government to revert any of them who have not been found fit during the period of probation.

But if they are found fit after the period of probation they rank in seniority from the date they have acted continuously as Principal Appraisers whether they arc promotees or direct recruits. The present method by which the respondent puts a direct recruit from the grade of Appraiser, though he is promoted later, above a promotee

(I) (1964) 4 S.C.R. 680.

who is promoted to the grade of Principal Appraiser on an earlier date clearly denies equality of opportunity where the grade of Principal Appraiser has only one source of recruitment, namely, from the grade of Appraisers. In such a case the seniority in th!:" grade of Principal Appraisers must be determined according to the date of continuous appointment in that grade irrespective of whether the person promoted to that grade from the Appraisers' grade is a direct recruit or a promotee. This will as we have already said be subject to the government's right to revert any one promoted as a Principal Appraiser if he is not found fit for the post during the period of probation. The petition therefore will have to be allowed with respect to the method by which seniority is fixed in the grade of Principal Appraisers. That method denies equality of opportunity of employment to the Appraisers who are the only source or recruitment to the grade of Principal Appraisers. What the impugned method seeks to do is to introduce a kind of reservation in respect of the two categories of Appraisers from which the promotions arc made, and that cannot be done when the source of promotion is one.

We therefore dismiss the petition so far as the seniority of Appraisers is concerned but allow it so far as the seniority of Principal Appraisers is concerned and the method used by the respondent in that connection must be struck down, and we further direct the determination of their seniority in the manner we have stated above. In the circumstances we pass no order as to costs.

Petition allowed in part •.

COllECTOR OF CUSTOMS, BOMBAY It

P. B. GAJENDRAGADKAR, C.J.

K. N. WANCHOO, J

C. SHAH

v. RAMASWAMI, JJ

Art. 16(1)

Art. 32

Ved Vyasa

J. R. Gagrat

B. R. Agarwala

N. K. Puri

C. K. Dhtary

N. Sachthey

B. R. L. Iyengar

S. K. Mehta

I. M. Lal

K. L. Mehta

Wanchoo

Art. 32

Art. 16(1)

Art. 16(1)

Art. 16(1)

Public Service Commission

Government of India

Central Government

India

Pakistan

January l, 1944

Burma

January 1, 1944

December 12, 1959

(1964) 4 S.C.R. 680


V. M. RV. MR. RAMASWAMI CHEITIAR AND ANR.

l'.

R. MUTIIUKRISHNA IYER AND OTHERS .

February 16, 1966

[K. SUBBA RAO AND V. RAMASWAMI JJ.]

Indemnity and guarantee-Sale of land by one having a voidable till• ancl puuing purchaser in posession-Agreenient to indemniry purcha.ser-

Sale sec aside al the instance of person, entitled to avold-Nt> disposjeS slon of purcharer-Enforceabiliry of indemnity bond.

The second defendant sold property belonging to himself and his minor .on the third defendant. and also executed an indemnity bond in favour

of the vendee agreeing to indemnify him for any loss that might be caused C to him in case the sale of the third defendant's half share should later on be set aside. The vendee sold the property to the plaintiffs and assianed the indemnity bond in their favour and the plaintiffs took possession of tho propeny.

The third defendant, after attaining majority, sued for settinJ1 aside the sale in respect of his half share and for partition. The plaintiffs contested the suit but the third defendant's suit was decreed.

He, however, did not dispossess the plaintifis.

Meanwhile, a creditor of the third defendant obtained a money decree against him and in execution D tllereof attached and brought to sale the third defendant's half share, and, the brother-in-law of the plaintiffs purchased the property, hut the plaintiffs continued in possession of the property.

The plaintiffs, thereafter, filed the suit for recovery of half the consideration paid by them, on the allegation that they sustained damage by the lo~•

of one half of the prop<>rty bought by them, and that they were entitled to recover damages from the second defendant. The suit was conte>ted on the ground that the court sale in favour of the brothers-in-law of the E plaintiffs was benami for the plaintiffs, and that as the plaintiffs never lost

ownership or possession of the halfshare. they did not sustain any loss. lbe trial court decreed the suit.

The High Court, on appeal, confined the de<:ree to the actual loss sustained, namely, tho amount for the court •ale and the amount spent for the defence of the third defendant's suit.

In appeal to the Court, on the question of the quantum of damages to which the plainti1fs were entitled, r HELD : High Court was right in granting a decree to the plaintiffs only for the rum whiah was the actual loss sustained by them.

The sale of the half share of the third defendant was not void ab initio but was only voidable. In such a caoe the indemnity bond becomes enforceable only if the vendee is disposscsed from the properties, hccausc, a broach of the covenant can only occur on the diaturbancc or the vendee"s pQISea.<ion.

So long as tho vendee remains in on. he suffers no G loss and no suit can be brought for damage. either on the basis of the indemnity bond or for the broach of a convcnant of the warranty of title.

[610 H-611 BJ

Subbaroya Reddiar v. Ra; agopala Reddiar, (1915) IL R. 38 Mad. 887 Muhammad Siddiq v. Muhammad Nuh, J.L.R. 52 All. 604 ond Gulabchand Daularram v. Suryaji Rao Ganpatrao, A.l.R. 1950 Born. 401, approved.

CIVIL APPELLATE JURISDICTJO'S: Civil Appeal No. 7 of 1964.

H Anneal from the judgment and decree dated January 7, I 955 of the Madras High Court in Appeal Suit No. 371 of 1959.

. i

""'Ji.

CHETTIAR v. IYER (Ramaswami, /.) 609

R. Ganapathy Iyer and R. Thiagarajan, for appellants.

M. S. K. Sastri and M. S. Narasimhan, for respondent No. 2

The Judgment of the Court was delivered by

Ramaswami. J. In the suit which is thesubject-matter of this appeal the plaintiffs alleged that Plaint 'A' Schedule properties belonged to the second defendant and his son, the third defendan~.

The second defendant sold the village for Rs. 28,000/· to one Swanunatha Sarma by a sale deed Ex. A dated December 12, 1912 which he executed for himself and as guardian of the third defendant who was then a minor. The second defendant also agreed to indemnify any loss that might be caused to his vendee in case the sale of his minor son's half share should later on be set aside. Accordingly the second defendant executed the Indemnity Bond-Ex.

B in favour of Swaminatha Sarma. The sons of Swaminatha Sarma sold Plaint 'A' Schedule village to the father of the Plaintiffs for a sum of Rs. 53,000/-. On the same date they assigned the Indemnity Bond-Ex. B to the father of the plaintiffs under an Assignment Deed-Ex. D. The third defendant after attaining majority filed O.S. no. 640 of 1923 in the Chief Court of Pudukottai for setting aside the sale deed_::._Ex. A in respect of his share and for partition of joint family properties. The plaintiffs were impleaded as defendants 108 and 109 in that suit. The suit was decreed in favour of the third defendant and the sale of his share was set aside on condition of his paying a sum of Rs. 7,000/· to defendants

108 and 109, and a preliminary decree for partition was also granted. In further proceedings, the village was divided by metes and bounds and a final decree-Ex. F was passed on October 6, 1936.

Meanwhile, a creditor of the third defendant obtained a money decree and in execution thereof, attached and brought to sale the third defendant's half-share in the 'A' Schedule village. In the auction-sale Subbaiah Chettiar, the plaintiff's brother-in-law purchased the property for a sum of Rs. 736/- subject to the liability for payment of Rs. 7,000/- under the decree in O.S. no. 640 of

1923. Thereafter, the plaintiffs have brought the present suit on the allegation that they have sustained damage by the loss of one half of the 'A' Schedule village and are entitled to recover the same from the second defendant personally and out of the 'B' Schedule properties. The plaintiffs have claimed damages to the extent of half of the consideration for the sale deed-Ex. C. minus Rs. 7,000/-withdrawn by them. The plaintiffs claimed a further sum of Rs. 500/- as Court expenses making a total of Rs. 20,000. The suit was contested on the ground that the Court sale in favour of Subbaiah Chettiar was benami for the plaintiffs and the latter never lost ownership or possession of a half-share of the 'A' Schedule village and consequently the plaintiffs did not sustain any loss. The trial court held that Subbaiah Chettiar-P.W. I was benamidar of

the plaintiffs who continued to remain in possession of the whole village. The trial court was, however, of the opinion that though the plaintiffs had, in fact, purchased the third defendant's halfshare in the Court sale, they were not bound to do so and they could claim damages on the assumption that third parties had purchased the same. The trial court accordingly gave a decree to the plaintiffs for the entire amount claimed and made the payment of the amount as charge on 'B' Schedule properties. The second defendant took the matter in appeal to the Madras High Court which found that the only loss actually sustained by the plaintiffs was the sum of Rs. 736/- paid for the Court sale and the sum of Rs. 500/- spent for the defence of O.S. no. 640 of 1923. The High Court accordingly modified the decree of the trial court and limited the quantum of damages to a sum of Rs. 1236/- and interest at 6 per cent p.a. from the date of the suit.

The question presented for determination in this appeal iswhat is the quantum of damages to which the plaintiffs arc entitled for a breach of warranty of title under the Indemnity Bond-Ex. B dated Decemher 19, 1912.

It was contended hy Mr. Ganapathy Iyer on behalf of the appellants that in O.S. no. 640 of 1923, defendant no. 3 obtained a partition decree and a declaration that defendant no. 2 was not entitled to alienate his share in the 'A' Schedule properties. It was submitted that on account of this decree the appellants lost title to half-share of 'A' Schedule properties and accordingly the appellants were entitled to get hack half the amount of consideration under the Indemnity Bond-Ex. B. The arugment was stressed on behalf of the appellants that the circumstance that the plaintiffs had a title of benamidar to the half-share of the third defendant in Court auction, was not a relevant factor so far as the claim for damages was concerned. It was suggested that the purchase in court auction was an independent transaction and the defendants wuld not take the benefit of that transaction. We are unable to accept the contention of the appellants as correct. In the present case it should he observed, in the first place, that the Indemnity Bond--Ex. B states that defendant no. 2 shall be liable to pay the amount of loss "in case the sale of the share of the said minor son- Chidambaram-· is sci aside and you arc made to sustain any loss".

In the second place, it is important to notice that the sale deed-Ex.

A executed by the second defendant in favour of Swaminatha Sarma was only voidahle with regard to the share of the third defendant and the family properties. The sale of the half-share of defendant no. 3 was not void ab initio but it was only voidable if defendant no. 3 chose to avoid it and proved in Court that the alienation was not for legal necessity. In a case of this description the Indemnity Bond becomes enforceable only if the vendee is dispossessed from the properties in dispute. A breach of the

D '

G ,

CHETTJAR v. IYER (Ramaswami, !.) 611

convenant can only occur on the disturbance of the vendee's possession and so long as the vendee remains in possession, he suffers no loss and no suit can be brought for damages either on the basis of the Indemnity Bond or for the breach of a convenant of the warranty of title. The view that we have expressed is borne out by the decision of the Madras High Court in Subbaroya Reddiar v. Rajagopala Reddiar (') in which A who had a title to certain immovable property, voidable at the option of C, sold it to Band put Bin possession thereof. C then brought a suit against A and B, got a decree and obtained possession thereof in execution. In this state of facts it was held by Seshagiri Ayyar, J, that B's cause of action for the return of the purchase money arose not on the date of the sale but on the date of his dispossession when alone there was a failure of consideration and the article applicable was article 97 of the Limitation Act. At page 889 of the Report Seshagiri Ayyar, J. states:

"These cases can roughly speaking be classified under three heads: (a) where from the inception the vendor had no title to convey and the vendee has not been put in possession of the property; (b) where the sale is only voidable on the objection of third parties and possession is taken under the voidable sale; and (c) where though the title is known to be imperfect, the contract is in part carrried out by giving possession of the properties. In the first class of cases, the starting point of limitation will be the .date of the sale. That is Mr. Justice Bakewell's view in [Ramanatha Iyer v. Ozhapoor Pathiriseri Raman Namburdripad (1913) 14 M.L.T. 524]; and I do not think Mr. Justice Miller dissents from it. However, the present case is quite different. In the second class of cases the cause of action can arise only when it is found that there is no good title.

The party is in possession and that is what at the outset under a contract of sale a purchaser is entitled to, and so long as his possession is not disturbed, he is not damnified.

The cause of action will therefore arise when his right to continue in possession is disturbed. The decisions of the Judicial Committee of the Privy Council in Hanuman Kamat v. HanumanMandur (1892) I.L.R. 19 Cal. 123 (P.C.) and in Bassu Kuar v. Dhum Singh (1889) I.L.R. 11 All. 47 (P.C.) are authorities for this position." A similar view has been expressed by the Allahabad High Court in .Muhammad Siddiq v. .Muhammad Nuh (2) and the Bombay High Court in Gulabchand Daulatram v. Survajirao Ganpatrao.(') In the present case it has been found by the High Court that P.W.

1, the auction-purchaser was the brother-in-law of the plaintiffs

(I) I.LR. 38 Mad. 887.

(2) I.LR. 52 All. 604.

(3) A.l.R. 1950 Born. 401.

and that he was managing the estate of the plaintiffs and defending 0.S. 640 of 1923 on their behalf. It has also been found that P. W. I did not take possession at any time and plaintiffs have been cultivating and enjoying the whole village all along and at no time were the plaintiffs dispossessed of the property. The only loss sustained by the plaintiffs was a sum of Rs. 736/- paid at the Court sale and a sum of Rs. 500/- spent for the defence of 0.S. no. 640 of 1923 which the plaintiffs had to incur for protecting the continuance of their possession over the disputed share of land.

Accordingly the High Court was right in granting a decree to the plaintiffs only for a sum of Rs. 1236/- which was the actual loss sustained by them and they are not entitled to any further amount.

For these reasons we hold that there is no merit in this appeal which is dismissed with costs.

Appeal dismissed.

R. MUTIIUKRISHNA IYER AND OTHERS

K. SUBBA RAO

CIVIL APPELLATE JURISDICTJO

R. Ganapathy Iyer

R. Thiagarajan

M. S. K. Sastri

M. S. Narasimhan

Ramaswami

Swanunatha Sarma

Swaminatha Sarma

Chief Court of Pudukottai

640 of 1923 in the Chief Court of Pudukottai for setting aside the sale deed::.Ex.

October 6, 1936

Subbaiah Chettiar

Subbaiah Chettiar

Madras High Court

Decemher 19, 1912

Ganapathy Iyer

Chidambaram-

Seshagiri Ayyar

article 97

Limitation Act

Bakewell

Miller

Allahabad High Court

Bombay High Court

S. 640


G ,

STATE OF GUJARAT

JAGANBHAIBHAGWANBHAI

February 16, 1966.

[K. SUBBA RAO AND V. RAMASWAMI, JJ.]

Bombay Prevention of Gambling Act, 1887 (Born. 4 of 1887), ss. 3 & 7-N ecessity of expert to prove articles seized whether ''instruments of ganiing"-Evidence of officer to whom warrant issued-Corroboration ii necessary.

The respondent was charged under ss. 4 and 5 of the Bombay Prevention of Gambling Act, on the allegation that ha was found accepting bets on American futures, and on being searched currency notes and two slips, on which American Futures were recorded, were found. The trial Magistrate acquitted the respondent, which was confirmed, on appeal, by the High Court. In appeal to this Court the appellant-State contended that it was not necessary to examine an expert to corroborate the evidence of the prosecuting sub-Inspector that the articles seized were "instruments

of gaming" and that the ll\idence of the Police Inspector to whom the warrant was issued under s. 6 of the Act did not require corroboration in each and every case.

HELD : The contentions are well founded and must be accepted as correct.

There is nothing in the Act to suggest that in order to prove that the articles seized are "instruments of gaming" it is the duty of the prosecution to examine an expert in every case.

It is open to the prosecution to prove that the articles seized are instruments of gaming by proper evi~ dence and it is not necessary to examine an expert for the purpose in each and every case.

It is also not proper to make a distinction be.tween the evidence of -an officer who makes a complaint under the proviso to s. 6 of the Act and to whom a wanrant issued for search and the evidence of a person to whom a warrant is issued but who makes no such complaint under the proviso.

The question as to whether the .,,-idence of the person who executes the warrant requires corroboration depends on the facts and circumstances of each case and no legal distinction can be made merely because the pern who executes the warrant happens to be the person who make• the complaint under the proviso to s. 6 of the Act to the Commissioner of Police or to the Magistrate. [616 A-CJ

CRIMINAL

APPELLATE

JURISDICTION: Criminal Appeal No. 167 of 1964.

Appeal from the judgment and order November 4, 1963 of the Gujarat High Court in Criminal Appeal No. 734 of 1962.

G. S. Patwardhan, R. N. Sachthey and B.R.G.K. Achar, for the appellant.

The respondent did not appear.

The Judgment of the Court was delivered by

Ramaswami, J. ll1is appeal is brought by the State of Gujarat against the judgment of the High Court of Gujarat at Ahmeda- .bad dated November 4, 1963 in Criminal Appeal No. 734 of 1962.

The respondent was charged in the Court of the Judicial Magistrate First Class, Bulsar under ss. 4 and 5 of the Bombay Preven- B lion of Gambling Act, 1887 (Bombay Act IV of 1887), hereinafter called the 'Act'. The case of the prosecution was that on January 31, 1962 at about 9 p.m. the respondent was found accepting bets on American futures.

On being searched in the presence of panchas currency notes of Rs. 119/- and two slips on which American futures were recorded were found.

The trying Magistrate, C however, held that slips \Vere not "instruments of gaming" within the meaning of s. 7 of the Act. The Magistrate was also not satisfied that the police officer who carried out the search and seized the articles had reasonable grounds to believe that the slips and other articles recovered from the respondent were instruments of gaming. The Magistrate held that the presumption under s. 7 of the Act could not be raised. The respondent was, D therefore, acquitted <>f the charge. Against the onkr of acquittal the State of Gujarat preferred an appeal to the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 734 of 1962. The appeal was dismissed hy Raju, J. on November 4, 1963.

In support of this appeal '-'Ir. Patwardhan submitted that the High Court was in error in holding that it is necessary to examine an expert to corroborate the evidence of the prosecuting Sub- Inspector that the articles seized were "instruments of gaming".

It was also contended by Counsel that the High Court was not right in taking the view that the evidence of the Police Inspector to whom the warrant was issued under s. 6 of the Act required corrob"ration in each and e\ery case.

In our opinion, both the contentions of Mr. Patwardhan arc well-founded am! must he

accepted as correct.

Section 3 of the Act defines the expression "instruments of gaming" as including any article used or intended to be used as a subject or means of gaming, any document used or intended to be used as a register or rcc"rd or evidence of any gaming, the proceeds of any gaming, and any winnings or prizes in money or -otherwise distributed or intended to he distributed in respect of any gaming. Section 6 provides for entry and search by 1wlicc <ifficers in gaming houses.

Section 6( I) states:

"6. (I) It shall be lawful for a Police Ofliccr-

(i) in :my area for which a Commissioner of Police has heen appointed not below the rank of a Sub-Inspector and either empowered by general order in writing or

G • H

GUJARAT v. BHAGWANBHAI (Ramaswami, J.) '615

authorized in each case by special warrant issued by the Commissioner of Police, and

. (ii). elsewhe}'e not i)elow the rank of a Sub-Inspector of Police authorised by special warrant issued in each case by a District Magistrate or Sub-Divisional Magistrate or by a Taluka Magistrate specially empowered by the State Government in this behalf or by a Superintendent of Police or by an Assistant or Deputy Superintendent of Police especially empowered by the State Government in this behalf, and

(iii) without prejudice to the provision in clause (ii) above, in such other area as the State Government may, by notification in the Official Gazette, specify in this behalf, not below the rank of a Sub-Inspector and empowered by general order in writing issued by the District Magistrate.

(a) to enter, with the assistance of such persons as may be found necessary, by night or by day, and by force, if necessary, any house, room or place which he has reason to suspect is used as a common gaming-house.

(b) to search all parts of the house, room, or place which he shall have so entered, when he shall have reason to suspect that any instuments of gaming are concealed therein, and also the persons whom he shall find therein whether such persons are then actually gaming or not,

(c) to take into custody and bring before a Magistrate all such persons,

( d) to seize all things which are reasonably suspected to have been used or intended to be used for the purpose of gaming, and which are found therein:

Section 7 of the Act relates to presumptive proof of keeping or gaming in common gaming-house. Section 7 provides as follows:

"7. When any instrument of gaming has been seized in any house, room or place entered under section 6 or about the person of any one found therein, and in the case of any other thing so seized if the court is satisfied that the Police officer who entered such house, room or place had reasonable grounds for suspecting that the thing so seized was an instrument of gaming, the seizure of such instrument or thing shall be evidence, until the contrary is proved, that such house, room or place is used as a common gaming-house and the persons found therein were then present for the purpose of gaming, although no gaming was actually seen

by the Magistrate or the Police officer or by any person act- A ing under the authority of either of them:

• There is nothing in the Act to suggest that in order to prove that the articles seized are "instruments of gaming" it is the duty of the prosecution to examine an expert in every case. It is open to the prosecution to prove that the articles seized are instruments of gaming by proper evidence and it is not necessary to examine an expert for the purpose in each and every case. It is also not proper to make a distinction between the evidence of an officer .who makes a complaint under the proviso to s. 6 of the Act and to whom a warrant is issued for search and the evidence of a person to whom a warrant is issued but who makes no such complaint under the proviso. The question as to whether the evidence of the person who executes the warrant requires corroboration depends on the facts and circumstances of each case and no legal distinction can be made merely because the person who executes the warrant happens to be the person who makes the complaint under the proviso to s. 6 of the Act to the Commissioner , of Police or to the Magistrate.

We do not, however, propose to interfere with the order of acquittal in this case, because the offence is petty and the offence was committed several years back. We accordingly dismiss the appeal.

Appeal dismissed.

. '

OF GUJARAT

JAGANBHAIBHAGWANBHAI

February 16, 1966

K. SUBBA RAO

V. RAMASWAMI, JJ.

Bombay Prevention of Gambling Act, 1887

ss. 3 & 7

ss. 4 and 5

s. 6

s. 6

s. 6

Gujarat High Court

G. S. Patwardhan

R. N. Sachthey

B.R.G.K. Achar

Ramaswami

State of Gujarat

High Court of Gujarat at Ahmeda-

November 4, 1963

Judicial Magistrate First Class, Bulsar

ss. 4 and 5

Bombay Act IV of 1887

s. 7

s. 7

High Court of Gujarat at Ahmedabad

Raju

Patwardhan

s. 6

Section 3

Section 6

Section 6( I)

Section 7

Section 7

section 6

s. 6

s. 6


G ..

• H

ABDUL W AHEED KHAN v.

BHA W ANI AND ORS.

February 21, 1966

[K. SUBBA RAO AND V. RAMASWAMI, JJ.]

Bhopal State Land Revenue Act (4 of 1932), ss. 71, 89, 93, 95 and 200(1)-Suit based on title-If barred by decision of revenue officer.

The suit of the appellant as khatedar of the land in dispute, for eject ment of the respondents on the ground that they were shikmi tenants, wM decreed by the Tahsildar under s. 71 of the Bhopal Stato Land Revenue Act 1932.

Within 12 years of the date of their dispossession the respoi{dents filed the suit against the appellant in the civil court, claiming to be the khatedars and for possession. The lower courts and the High Court held that the decision of the revenue court did not bar the jurisdiction of the civil court on the question of title to the suit land and decreed the suit.

In appeal to this Court,

HELD: Section 200(1) of the Act, read with ss. 71, 89, 93 and 95, does not exclude the jurisdiction of the civil court to entertain a suit based on title.

[ 621 E-FJ

Section 200(1) bars the civil court from entertaining a suit with respect to any matter which a revenue officer is empowered by the Act to determine. But the question of title is a matter foreign to the scope of s. 71. The Tahsildar is no doubt empowered under s. 93 to decide on any dispute about any entry to be made in the Record of rights showing the persons who are holders of land, but, under s. 95, the effect of such an entry is only to make it a presumptive piece O!f evidllllce in a collateral proceeding such as a suit based on title.

Therefore, it is assumed that such a suit could be filed in spite of a decision under s. 93. The suit was within time under Art. 142, Limitation Act, 1908, and since the High Court and tho lower courts held that the presumption raised by the entry was rebutted by the oral and documentary evidence adduced by the respondent>, tho correctness of the concurrent findings of fact could not be canvassed in the appeal under Art. 136.

(621 B, C; 622 B, CJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1039 of 1963.

Appeal by special leave from the judgment and order dated June 24, 1959 of the Madhya Pradesh High Court iu Civil Second Appeal No. 8 of 1957 .

N. N. Keswani and Urmilla Kapur, for the appellant.

B. Sen, C. L. Sanghi and A. G. Ratnaparkhi, for the respondents.

The Judgment of the Court as delivered by:

Sobba Rao, J. This appeal by special leave raises mainly the question whether a civil court had jurisdiction to entertain the

sui~ filed by the respondents for the recovery of possession of the A plamt-schedulc land and mesnc profits. ~

. l)ie relevant facts may be briefly stated: The respondents, clrummg to be the khatedars of an extent of 57.07 acres of land in Mau.za Banpur, Tahsil Huzur, Western District Bhopal, filed a suit against the appellant on the ground that the latter was in illegal possession thereof.

The appellant contested the suit mainly S on the ground that he was the khatedar of the said land and that he w:is in possession thereof in that capacity. He also pleaded that his title to the property was declared by the Tahsildar in an application for ejectment filed by him against the respondents under the Bhopal State Land Revenue Act, 1932 (Act No. IV of 1932), hereinafter called the Act, and that the said decision would be a bar to C the maintainability of the suit in a civil court.

The learned Subordinate Judge, Bhopal, held that the respondents were the khatedars of the suit land and that they had been in possession thereof in that capacity.

He held that the suit was maintainable in a civil court.

On appeal, the Additional District Judge agreed with the findings arrived at by the trial court.

On second appeal to the Madhya Pradesh High Court, Shiv Dayal, J., of that Court, after admitting certain notifications as evidence, came to the same conclusion both on the question of title and on the question of jurisdiction. In the result he dismissed the second appeal.

Hence the present appeal by special leave.

Mr. Keswani, learned counsel for the appellant, raised before us a number of points; but his arguments may conveniently be crystallized into the following points: (I) whether the decision of the revenue court on the question of title to the suit land bars the jurisdiction of the civil court; (2) whether the concurrent finding given by the lower courts on the question of title was vitiated by an error of law by the courts wrongly throwing the burden of establishing title on the appellant notwithstanding the fact that in the Record of Rights the said land was entered in the name of the appellant; and (3) whether the suit was barred by limitation. The other questions mooted by him were pure questions of fact and, therefore, they need not be noticed.

To appreciate the first question it is necessary to notice a few facts.

The appellant as klwtedar of the land in dispute had filed a suit under s. 71 of the Act in the court of the Tahsildar, Tahsil Huzur, Bhopal for the ejcctment of the respondents on the ground that they were his shikmi tenants. The said court held that the appellant was the khatedar of the land in dispute and the respon-

• H

dents were his shikmi tenants. The present contention is that the said decree was given by a court of exclusive jurisdiction and, therefore, the respondents could not reagitate the same subjectmatter in a civil court.

Under s. 9 of the Code of Civil Procedure, a civil court can entertain a suit of a civil nature except a suit of which its cognizance is either expressly or impliedly barred. It is settled principle that it is for the party who seeks to oust the jurisdiction of a civil court to establish his contention. It is also equally well settled that a statute ousting the jurisdiction of a civil court must be strictly construed.

The question is whether a suit based on title of a khatedar and for possession is either expressly or by necessary implication barred by the provisions of the Act. The relevant provisions of the Act may now be read: Section 200 (i) Except as otherwise provided in this Act, or in any other enactment for the time being in force no civil court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the Government or any revenue officer is, by this Act, empowered to determine, decide or dispose of, and in particular and without prejudice to the generality of this provision, no civil court shall exercise jurisdiction over any of the following matters : Cls. (a) to (u) No reliance is placed on the matters described in els. (a) to (u) of this section. But it is said that under the other provisions of the Act a revenue officer is empowered to determine, decide or dispose of a question of title of a person to a land as khatedar and, therefore, a suit in a civil court is barred in terms of s. 200(1). The first section relied upon in that context is s. 71, which reads:

"A shikmi may be ejected by order of the Tahsildar if he fails to vacate land on the termination of his lawful possession or does anything in contravention of his agreement, if any, provided that no ejectment shall take effect before the commencement of the next agricultural year." "Shikmi" is defined under the Act to mean a person who holds land from an occupant and is or but for a contract, would be liable to pay rent for such land to that occupant, but does not include a mortgagee or a person holding .land directly from Government. "Occupant" is defined to mean "a person who holds land direct from Government or would do so but the right of collecting land revenue having been assigned or relinquished." Section 71, therefore, presupposes the existence of a legal relationship of landlord and tenant and enables the occupant to evict his shikmi if he does not comply with one or other of the conditions mentioned therein; it does not comprehend a decision on a question of

title. The question of title is a matter foreign to the scope of A s. 71.

If so, a suit in a civil c0urt for a declarallon of title and possession by a khatadar against a trespasser falls outside the scope of s. 200( I) of the Act.

The second limb of the contention turns upon a fasciculus of provisions relating to the preparation of the Record of Rights.

The relevant provisions are as follows: D

Section 89. The Record of rights in each village shall comprise

(I)

(2) a register, to be called the "register of rights", showing all persons who arc holders of land and the nature and extent of their interests and the conditions and liabilities, if any, attaching thereto.

Section 92. No entry in the register of rights shall be contrary to the dec-ree or order of a civil court.

Section 93. ([) If any dispute arises about any entry to be made in any document of the record of rights, the Tahsildar or other officer preparing the record shall inquire into it summarily and shall pass such order as he thinks fit.

(2) Such order, if passed with reference to any entry in the register of rights, shall not be subject to appeal, but no such order shall debar any person from establishing any right to land in a civil court, and the civil court may

dir~-ct that the entry relating to the land shall be altered in accordance with its decision.

(3) Any such order, if passed with reference to a record other than the register of rights shall be subject to appeal but shall not be called in question in a civil court, except in so far as any private right, is infringed and then only by a suit instituted within one year from the date on which the contents of the record were announced under section 88.

Section 95. Any entry in the register of rights shall be presumed to he correct until the contrary is proved, and all other entries in the record of rights, subject to any change which may be ordered in appeal, revision or review only or by a ivil court under sub-section (3) of section 93, shall be conclusive evidence of the facts to which they relate.

On the basis of the said provisions it is argued that under the said provisions the right of a person to hold land shall be entered in the register of rights under s. 89(2) of the Act and a dispute in respect thereof shall be decided by the Tahsildar under s. 93(1) thereof and

' ,. •

.;.•··-"'-1'~

that thereafter such an entry shall be rectified only by filing a suit in a civil court in the manner prescribed in s. 93(2) of the Act and that, therefore, the Tahsildar, subject to the statutory suit, has the exclusive jurisdiction to determine or decide the question in regard to the said matter within the meaning of s. 200 of the Act.

This argument appears to be plausible, but a deeper scrutiny reveals a fallacy. The scope of an entry in regard to the right to hold a land under s. 89(2) of the Act and the decision under s. 93 thereof is disclosed by s. 95. When such an entry is made in the register of rights and is not corrected in the manner prescribed in

i. 93, under s. 95 it shall be presumed to be correct until the contrary is proved. The effect of such an entry, therefore, is only to make it a presumptive piece of evidence in a collateral proceeding: that is to say, in a suit based on title when such an entry is relied upon by one or other of the parties, the court shall presume it to be correct unless the other party rebuts the presumption. Not only s. 95 does not by necessary implication bar a suit but also assumes that in such a suit the correctness of such an entry could be questioned subject to the said presumption.

Learned counsel for the appellant, in support of his contention, relied upon Gokhul Sahu v. Jodu Nundun Roy(1), and Jatindra Nath Chowdhury v. Azizur Rahaman Shana(). Those decisions turned upon provisions which are not in pari materia with those with which we are now concerned. They do not, therefore, throw any light on the construction of the relevant provisions of the Act.

It is, therefore, clear that s. 200(1) of the Act, read with the said group of sections, does not exclude the jurisdiction of a civil court to entertain a suit based on title.

Learned counsel for the appellant then contended that though the patta was granted in favour of the ancestors of the respondents in the year 1929 it was revoked later on, that under the new settlement of 1935 the appellant's name was recorded in the register of rights, that in subsequent khasras up to 1953 his name continued to be shown as the owner of the suit land and that, therefore, the courts below should have held that the presumption raised by the register of rights in his favour was not rebutted and the plaintiff had failed to prove his title. But a perusal of the judgments of the courts below shows that all the courts, after taking into consideration the entire oral and documentary evidence, came to the conclusion that the respondents had established their title. Indeed, though the High Court rightly pointed out that the finding of fact given by the lower appellate court was conclusive, in view of the insistence of the Advocate in the High Court, it considered the entire documentary and oral evidence over again and came

(I) [1890] I.LR. 17 Cal. 721. (2} A.I.R. 1923 Cal. 433.

MllSup. CI/66-8

to the same conclusion. It also admitted the notifications in A rcapcct of the settlement as fresh evidence and, after considering them, held that they did not disclose that the patta issued in favour of the respondents' ancestors was cancelled. In our view, the High Court should have accepted the finding of the first appellate court and should not have reviewed the evidence over again. The courts in effect held that the said presumption was rebutted by the B oral and documentary evidence adduced by the respondents. We are not, therefore, justified in an appeal under Art. 136 of the Constitution to permit the appellant to canvass the correctness of the said concurrent findings of fact.

The last argument raises a question of limitation. If, as we haye held, the suit is outside the scope of the Act, the question of C limitation turns upon the provisions of the Indian Limitation Act.

The suit was originally filed by the respondents for a declaration -0f their title to the suit property, but as they were dispossessed

-0f the land on March 5, 1953, subsequent to the filing of the suit, the plaint was amended on July 24, 1954, praying for delivery of possession. To such a suit Art. 142 of the Limitation Act applies.

D The suit is, therefore, clearly not barred by limitation.

ln the result, the appeal fails and is dismissed witn costs.

Appeal dismissed.

- it . ,( .

H

ABDUL W AHEED KHAN

BHA W ANI AND ORS

February 21, 1966

K. SUBBA RAO

V. RAMASWAMI, JJ.

Bhopal State Land Revenue Act

ss. 71, 89, 93, 95 and 200(1)

s. 71

Bhopal Stato Land Revenue Act 1932

Section 200(1)

ss. 71, 89, 93 and 95

Section 200(1)

s. 71

s. 93

s. 95

s. 93

Art. 142

Limitation Act, 1908

Art. 136

Madhya Pradesh High Court

N. N. Keswani

Urmilla Kapur

B. Sen

A. G. Ratnaparkhi

Sobba Rao

Bhopal

Subordinate Judge, Bhopal

Shiv Dayal

Keswani

s. 71

s. 9

the Code of Civil Procedure

Section 200

s. 200(1)

s. 71

Section 71

s. 71

s. 200( I)

Section 89

Section 92

Section 93

section 88

Section 95

section 93

s. 89(2)

s. 93(1)

s. 93(2)

s. 200

s. 89(2)

s. 93

s. 95

s. 95

s. 95

s. 200(1)

Art. 136

Limitation Act

March 5, 1953

The suit was originally filed by the respondents for a declaration -0f their title to the suit property, but as they were dispossessed
0f the land on March 5, 1953, subsequent to the filing of the suit, the plaint was amended on July 24, 1954, praying for delivery of possession.

July 24, 1954

Art. 142

Limitation Act